Filomeno Sotelo Mondragon, Petitioner, v. Immigration and Naturalization Service, Respondent, 625 F.2d 270 (9th Cir. 1980)

Filomeno Sotelo Mondragon, a Mexican alien, appeals the refusal of the Board of Immigration Appeals to reconsider a deportation order. Because this court has previously sustained the deportation order, we find that we are without jurisdiction to review the Board's action.

On January 25, 1975, Mondragon, a lawful permanent resident of the United States for fourteen years, left this country to visit a relative in Juarez, Mexico. The following day, Mondragon and his relative were apprehended as they attempted to cross the border at El Paso, under circumstances indicating that he was aiding her illegal entry. The Immigration and Naturalization Service prevented Mondragon from reentering the United States pending an exclusion hearing on charges of violating 8 U.S.C. § 1182(a) (31).¹  Before the completion of the exclusion proceedings, Mondragon reentered the United States without submitting to inspection and returned to his home in California.

In October 1976, an immigration judge found that Mondragon had reentered illegally and ordered him deported, granting voluntary departure. Mondragon unsuccessfully appealed this decision and subsequently moved to reopen, arguing that the Board of Immigration Appeals should consider his application for a waiver of exclusion under 8 U.S.C. § 1182(c).²  The Board denied this motion and, in April 1978, issued a deportation order.

Mondragon then filed a petition for a writ of habeas corpus in district court, claiming that the deportation order was unlawful because he had been improperly prevented from entering the United States after the El Paso crossing incident. Mondragon also sought review of the Board's denial of his motion to reopen. The district court denied relief, and this court affirmed in Mondragon v. Ilchert, No. 78-3051 (9th Cir. Jan. 25, 1980).

Following the district court's denial of his habeas corpus petition, Mondragon filed a motion for reconsideration with the Board. This motion was based upon a claim that Mondragon had not raised in any previous administrative or judicial proceedings: because Mondragon had not "entered" the United States within the meaning of 8 U.S.C. § 1251(a) (2),³  he was not deportable. Mondragon urged the Board to apply the rule of Rosenberg v. Fleuti, 374 U.S. 449, 83 S. Ct. 1804, 10 L. Ed. 2d 1000 (1963), arguing that because his excursion into Mexico was not "meaningfully interruptive" of his permanent residence, his return to the United States was not an "entry." The Board denied the motion to reconsider, and this appeal followed.

We find that 8 U.S.C. § 1105a(c) bars review of the Board's refusal to reopen. That section reads as follows:

"(c) An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order. Every petition for review or for habeas corpus shall state whether the validity of the order has been upheld in any prior judicial proceeding, and, if so, the nature and date thereof, and the court in which such proceeding took place. No petition for review or for habeas corpus shall be entertained if the validity of the order has been previously determined in any civil or criminal proceeding, unless the petition presents grounds which the court finds could not have been presented in such prior proceeding, or the court finds that the remedy provided by such prior proceeding was inadequate or ineffective to test the validity of the order."

Mondragon contends that, despite this court's previous consideration of the deportation order in Mondragon v. Ilchert, the second sentence of § 1105a(c) does not preclude review of the refusal to reconsider because the basis of his motion to reconsider could not have been presented in the prior judicial proceedings. Specifically, Mondragon contends that because he had not raised the Fleuti issue in immigration proceedings before filing his habeas action, the district court would have found a failure to exhaust administrative remedies and refused to consider the question.

This analysis is flawed. The grounds for Mondragon's motion to reconsider could have been presented in prior judicial proceedings. The factual and legal bases of the Fleuti claim existed before the first deportation hearing, before Mondragon filed his habeas action. He could have raised the issue in his habeas corpus petition if he had raised it previously before the Board. He could, and should, have done so before going into court.

Were we to adopt Mondragon's reading of § 1105a(c), we would be inviting alien petitioners to withhold colorable defenses to deportation and to then file successive appeals from denials of motions for discretionary relief, claiming an inability to raise certain issues in prior judicial proceedings because of a "failure to exhaust." This result would be directly contrary to the congressional intent in enacting § 1105a(c) of "forbidding repeated judicial review of an order on grounds which could have been effectively raised in the initial judicial review proceeding." Yamada v. Immigration and Naturalization Service, 384 F.2d 214, 218 (9th Cir. 1967). See Cheng Fan Kwok v. Immigration Serv., 392 U.S. 206, 214-16, 88 S. Ct. 1970, 1975-76, 20 L. Ed. 2d 1037 (1968); Acevedo v. Immigration and Naturalization Service, 538 F.2d 918 (2nd Cir. 1976).⁴ 

Mondragon's failure to raise the Fleuti issue in a timely manner is perhaps unfortunate. That failure does not, however, warrant construing § 1105a(c) in a manner which would thwart its essential purpose.

The appeal is dismissed for want of jurisdiction.