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LIEGGI v. UNITED STATES IMMIGRATION & NAT. SERV.

January 24, 1975

ANDREA LIEGGI, PETITIONER,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes before the Court on the motion of the Government to dismiss this petition for a writ of habeas corpus.

Petitioner Andrea Lieggi was born in Vola Debari, Italy on October 4, 1947. On April 25, 1963, when 16 years old, he came to the United States as a lawful immigrant to join his father, Guisseppi, a resident and citizen of the United States. In April, 1969, his mother, Isabelle and sister, Michelle, 11 years of age, joined his father in the United States. Upon his arrival in the United States, petitioner attended elementary and one year of high school in Chicago and became gainfully employed in this city until September, 1968, when he temporarily moved to and was employed in California.

On April 25, 1969, based on his own guilty plea, petitioner was convicted of violating Section 11531 of the California Health and Safety Code, for "wilfully, unlawfully and feloniously selling, furnishing or giving away a narcotic, to wit, marijuana." Petitioner's sentence was deemed to have been served by the 69 days he spent in the county jail before pleading guilty. In addition, a three year sentence of probation was imposed. Petitioner returned to Chicago to continue to live with his citizen parents and sister who were his only living relatives. From that time until the present, he has conducted himself in an exemplary lawful fashion, living with and supporting his family, maintaining steady employment, and never having any further trouble with the law.

There is nothing in the record before this Court which concretely establishes the exact details of the offense committed by petitioner. However, at the hearing counsel represented to the Court that the facts and circumstances were that Mr. Lieggi sold 3 marijuana cigarettes to his former roommate. Counsel repeatedly emphasized that although Mr. Lieggi was a personal user of marijuana he was never a seller or dealer.

Petitioner now alleges that the consent to the entry of the plea of guilty, the foregoing of a jury trial, and, the failure to protest the same were the result of petitioner's free will and judgment being over-reached by certain untrue representations told to petitioner by his trial attorneys. In substance as follows: "that a plea of guilty to either of said counts and a conviction thereof would in no mannner prejudice or jeopardize the Permanent Immigrant Status previously granted him by the U.S. Immigration Service." There is no doubt that if such a representation were made it was totally inaccurate.

Petitioner further contends that the California Courts erred in refusing to vacate his conviction of June 11, 1969. This contention is addressed particularly to said Appellate and Supreme Courts which summarily dismissed his appeals without giving him a "day in Court" and without ordering or even requiring the Respondent, the State of California, to deny the otherwise uncontroverted allegations of fact and law advanced by the petitioner.

On August 4, 1969, an order to show cause and notice of hearing was issued by the Immigration and Naturalization Service, charging that the petitioner was subject to deportation under the provisions of Section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a) in pertinent part provides:

    "(a) Any alien in the United States . . .
  shall, upon the order of the Attorney General, be
  deported who —
    (11) is, or hereafter at any time after entry
  has been, a narcotic drug addict, or who at any
  time has been convicted of a violation of, or a
  conspiracy to violate, any law or regulation
  relating to the illicit possession of or traffic
  in narcotic drugs or marihuana, * * *.

After two continuances, a deportation hearing was held pursuant to the August 4, 1969, order to show cause in Chicago on January 15, 1970. At the hearing, during which petitioner was represented by counsel, he admitted that as a result of a guilty plea he was convicted of "unlawfully and feloniously selling and furnishing and giving away a narcotic, to wit, marijuana." When questioned, petitioner declined to name a country to which his deportation should be directed if required by law. He was informed that if ordered deported, his deportation would be directed to Italy, the country of his citizenship. Petitioner was informed further of the provisions of Section 243(h) of the Immigration and Nationality Act, which would permit the withholding of his deportation to Italy if he felt that he would be persecuted by that country because of his race, religion or political opinions. He declined to make any application under that provision of the law. On March 4, 1970, the Special Inquiry Officer rendered his decision ordering petitioner to be deported to his native Italy on the charge contained in the August 4, 1969, order to show cause.

Petitioner obtained the services of a new attorney and attempted to reopen his deportation proceedings. In response the Special Inquiry Officer stated: "Beyond the vague assertion that he might be deprived of the opportunity to provide for himself or might be denied all forms of employment, he has failed to present any evidence that would bring him within the provisions of 243(h) of the Immigration and Nationality Act."

Denial of petitioner's motion to reopen was appealed to the Board of Immigration Appeals, Washington, D.C. for the reasons that the decision was ". . . 1) rote, summary, peremptory, arbitrary, capricious, and contrary to the evidence and the law; and 2) . . . unfair to the extent it is tantamount to a denial of due process of law." The Board of Immigration Appeals, after consideration of the motion on its merits, affirmed the Special Inquiry Officer's denial of petitioner's motion to reopen.

On various occasions petitioner was granted a stay of deportation pending the outcome of his appeals in the California Courts. Finally on June 14, 1974 petitioner filed a petition for a writ of habeas corpus with this Court. The government responded with a motion to dismiss. A hearing on this matter was held by the Court. At the hearing no evidentiary materials were submitted. However counsel for both sides have provided this Court with an ample and adequate record of the previous proceedings in which petitioner has been involved. There are no real factual disputes. Yet, the appropriateness of granting the petition for a writ of habeas corpus in this case involves some very serious and substantial legal questions.

To summarize briefly, the petitioner has presented in his petition the following issues:

(1) Whether or not this Court has jurisdiction of this matter on a petition for a writ of habeas corpus;

(2) Whether or not his conviction in the California Court was proper due to incompetency of counsel in advising petitioner that his immigration status would not be affected by pleading guilty to the marijuana charges;

(3) Whether or not deportation under the Immigration and Nationality Act violates Constitutional rights allegedly guaranteed to petitioner;

(4) Whether or not deportation amounts to cruel and unusual punishment in violation of the Eighth Amendment.

I.  THIS COURT HAS PROPER JURISDICTION OVER THE DEFENDANT'S
    PETITION

Initially the government asked for a straight and narrow construction of the basic requirement that as a jurisdictional condition precedent to the qualification for habeas corpus the petitioner must be in actual custody under, or, by the authority of, the United States. This Court is of the opinion that the law only requires that the petitioner be under demand to surrender himself for deportation. Currently petitioner ...


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