It found that aggravated battery, armed robbery and unlawful aggravated restraint are crimes of moral turpitude, and the fact that the petitioner was convicted of these serious crimes indicates that he is a danger to the community. As a result, Mr. Hernandez-Gonzalez was not eligible for asylum or withholding of exclusion and deportation. The BIA also held that because the petitioner was an alien in exclusion proceedings as opposed to deportation proceedings, the suspension of deportation provision was not available to him; 8 U.S.C. §§ 1182(c), (h) did not apply to the petitioner because he has never been given permanent resident status; the purported delay in instituting exclusion proceedings was not reviewable because the decision to commence such proceedings involves the exercise of prosecutorial discretion; and the immigration judge properly considered the 1989 conviction in making his determination.
Subsequently, Mr. Hernandez-Gonzalez filed this petition for habeas corpus pursuant to 8 U.S.C. § 1105a(b) seeking judicial review of the BIA's final order of exclusion. The respondent, A.D. Moyer, INS District Director, has moved to dismiss the petition. For the reasons discussed below, the respondent's motion will be granted.
The Petitioner's Arguments
Mr. Hernandez-Gonzalez argues that respondent's motion to dismiss must be denied for several reasons. He first argues that the immigration judge and the BIA should have taken into account that his leaving the United States would cause hardship to his wife who had undergone heart surgery several times and was still ill. On this ground, the petitioner believes that he should be able to avoid exclusion under 8 U.S.C. §§ 1182(c), (h), 1254(a)(1).
Section 1254(a)(1), which permits the Attorney General to "suspend deportation and adjust the status to that of an alien lawfully admitted" for certain aliens, does not apply to the petitioner. "Deportation" is different from "exclusion." Individuals who are seeking admission into the United States are subject to exclusion proceedings while those who have been admitted into the country but want to avoid being expelled benefit from deportation proceedings. Sale v. Haitian Centers Council, Inc., 125 L. Ed. 2d 128, 113 S. Ct. 2549, 2560-61 (1993). As a parolee, Mr. Hernandez-Gonzalez was permitted to remain in the United States without being officially admitted. Leng May Ma v. Barber, 357 U.S. 185, 186-90, 2 L. Ed. 2d 1246, 78 S. Ct. 1072 (1958); Gerrero v. Moyer, 738 F. Supp. 1164, 1165 (1990) (citing Leng May Ma v. Barber, supra, 357 U.S. at 187-90). Consequently, he was subject to the exclusion provisions in 8 U.S.C. §§ 1221-1230 rather than the laws governing deportation which are codified at 8 U.S.C. §§ 1251-1260. See Mejia-Ruiz v. Immigration and Naturalization Service, 51 F.3d 358, 360 n.1 (2nd Cir. 1995). Mr. Hernandez-Gonzalez is not eligible for suspension of deportation under 8 U.S.C. § 1254(a)(1).
8 U.S.C. § 1182(c) states that the class of excludable aliens does not include
aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years.