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Rassano v. Immigration and Naturalization Service

decided: February 21, 1974.

LAWRENCE RASSANO, PETITIONER-APPELLANT,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT-APPELLEE



Petition for Review of an Order of the Board of Immigration Appeals.

Swygert, Chief Judge, Hastings, Senior Circuit Judge, and O'Sullivan, Senior Circuit Judge.*fn*

Author: Hastings

HASTINGS, Senior Circuit Judge.

In Rassano v. Immigration and Naturalization Service, 7 Cir., 377 F.2d 971 (Dec. 13, 1966), we considered the petition of Lawrence Rassano to review and set aside an order of his deportation and an order denying his request for suspension of deportation. A division of our court hearing the same denied such petition and affirmed both orders.

On February 1, 1967, petitioner filed his petition for a rehearing by virtue of three decisions of the Supreme Court handed down after our court had affirmed the orders of the Immigration and Naturalization Service. These decisions were Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 17 L. Ed. 2d 362, 87 S. Ct. 483 (Dec. 12, 1966); Garrity v. New Jersey, 385 U.S. 493, 17 L. Ed. 2d 562, 87 S. Ct. 616 (Jan. 16, 1967); and Spevack v. Klein, 385 U.S. 511, 17 L. Ed. 2d 574, 87 S. Ct. 625 (Jan. 16, 1967). Respondent INS answered and stated that the case should be remanded to the Board of Immigration Appeals (the Board) for reopening and further determination in view of these three decisions of the Supreme Court. We concurred in these suggestions and vacated our orders and remanded the cause as requested for further proceedings. Rassano, supra, 377 F.2d at 975.

The entire review and remandment proceedings are reported as above indicated and are incorporated herein by reference.

DEPORTABILITY

In Woodby, supra, 385 U.S. at 283-286, the Court noted that the standard of review previously adopted by the Board in determining the validity of a deportation order was whether there was "reasonable, substantial, and probative evidence" to support it. The Court rejected this standard. Instead, the Court said: "We hold that no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true." 385 U.S. at 286 (emphasis added).

In Spevack, supra, 385 U.S. at 514, and in Garrity, supra, 385 U.S. at 496-498, the Court held that no inference may be drawn against one who chooses to exercise his right to remain silent. It appeared in the instant case that the special inquiry officer had prejudicially considered that petitioner had declined to answer questions before a grand jury on a claim of privilege.

On remand the Board rejected petitioner's contentions that the special inquiry officer, as the hearer of the facts, should initially determine whether the INS has sustained its burden of proof as to deportability by clear, unequivocal and convincing evidence, and whether denial of discretionary relief is justified.

The Board reconsidered both issues on the record as it stood and on August 29, 1967, held on the issue of deportability "that the [petitioner] has not met his burden of proving he is a United States citizen, that the Service has established by competent evidence that is clear, convincing and unequivocal that the [petitioner] is an alien and that he was convicted after entry of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct."

On its face, this appears to be a restatement by the Board of its prior holding couched in the language of the Supreme Court and not much else.

Further, the Board stated that "on the issue of suspension of deportation, we find, without drawing an adverse inference from the [petitioner's] failure to testify before a grand jury, that his connection with gambling and questionable associates, viewed in light of his criminal background, require the finding, despite favorable factors of record, that he has failed to establish he is a person of good moral character or that he is worthy as a discretionary matter of the privilege of the suspension of his deportation." The Board thereupon ordered that no change be made in its prior order.

In all candor, we feel compelled to observe that in further following the mandates of the Supreme Court on petitioner's right to silence, the Board appears merely to have given lip service to this requirement but otherwise left its findings and orders unchanged.

On February 8, 1968, petitioner again sought review in this court of the Board's latest final order of August 29, 1967. Subsequently, however, the Board granted petitioner's motion to reopen the deportation hearing because of changed circumstances arising from the death of petitioner's younger son in March 1968 while on duty in Vietnam. After a further hearing and a new decision by the special inquiry officer adverse to petitioner, the Board, on April 2, 1973, dismissed an appeal therefrom and again ordered that petitioner be deported pursuant to its order of August 29, 1967.

We now have before us for review the final orders of the Board entered August 29, 1967 and April 2, 1973. Thus, since our original opinion in this case was handed down on December 13, 1966, this matter has been in litigation for 6 years, 9 months and 15 days until final argument here on September 28, 1973.

At the outset it must be said that in the light of Woodby, we entertain serious doubts as to the validity of the Board's determination of deportability without first requiring a fact-finding decision by the special inquiry officer. See Rodriques v. Immigration and Naturalization Service, 3 Cir., 389 F.2d 129, 132-133 (1968); Waziri v. Immigration and Naturalization Service, 9 Cir., 392 F.2d 55, 57 (1968).

We have examined each of the many cases which have cited Woodby. In the various remandments for reconsideration a wide variety of actions have been taken by the Board and almost all have been approved on subsequent review by the federal courts of appeal. It is quite clear that Woodby applies only to a deportation proceeding and not to the exercise of discretionary relief by the Attorney General. See Hyppolite v. Immigration and Naturalization Service, 7 Cir., 382 F.2d 98, 99 (1967). In the initial decision in Rassano, supra, our court found and held that petitioner was deportable. 377 F.2d at 974. No additional evidence was offered at the Board hearing on remand relating to petitioner's deportability.

Without further considering this question in the instant appeal, we accept the fact that in this case Rassano has been properly found to be deportable, and that ...


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