Catalina Montano De Figueroa, Petitioner, v. Immigration and Naturalization Service, Respondent, 501 F.2d 191 (7th Cir. 1974)

This is a review of an order of deportation.

Pursuant to a petition filed under provisions of section 106(a) of the Immigration and Nationality Act, 8 U.S.C. 1105a(a), we review an order of deportation issued against the petitioner by the Immigration and Naturalization Service.

Petitioner Catalina Montano De Figueroa, a native and citizen of Mexico, entered the United States in March 1970 at Chicago as a visitor for pleasure and was authorized to remain in the United States until September 21, 1970. Having remained in the United States beyond that date, she was served with an order to show cause in a deportation proceeding and given notice of a hearing scheduled for February 25, 1972. The hearing did not occur. After posting bond petitioner was given a voluntary departure letter requiring her to depart the United States on March 22, 1972.

On March 10, 1972 petitioner married Jose Ramon Figueroa, a United States citizen. Thereafter, on March 29 Jose Figueroa as petitioner's spouse filed a petition with the Immigration Service to accord her the status of a nonquota immigrant under section 204 of the Immigration and Nationality Act, 8 U.S.C. 1154, and thereby qualify her for an immigrant visa under the provision of 8 U.S.C. 1101(a) (27) (A). The Attorney General through the Immigration Service approved the petition and sent it to the American Consulate in Toronto, Canada, the port of entry where petitioner indicated she intended to apply for an immigrant visa.

On May 11, 1972 two Immigration Service investigators arrested Jose Figueroa in Chicago and obtained his signed statement in which he made the following representations. After telling him she had no immigration papers, petitioner offered him $500 if he would marry her 'so she could obtain a visa.' He accepted the offer and received $500. He was paid an additional $500, but, after petitioner explained that 'the Immigration was looking for her,' he returned the second sum because it was to be used 'in case of a bond.' Thereafter, on March 10, 1972 they were married, but never lived together 'as man and wife.'

On June 8, 1972 the surety on the bond was notified to surrender petitioner at the Immigration office in Chicago on August 1. On that date a hearing was conducted by a special inquiry officer. Shortly thereafter the special inquiry officer rendered his decision. He found from 'believable testimony' that petitioner's marriage had been entered into 'merely for the purpose of circumventing the immigration laws' and that she had given false testimony at the hearing about her marital relationship with Jose Figueroa. The officer decided that petitioner, having failed to establish a good moral character as required by statute, did not qualify for the privilege of voluntary departure in lieu of deportation. The petitioner was ordered deported from the United States to Mexico. The Bureau of Immigration Appeals affirmed and this petition to review followed.

* The show cause order issued in February 1972 charged the petitioner as deportable pursuant to section 241(a) (2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a) (2), in that after admission as a nonimmigrant under section 101(a) (15) of the Act, 8 U.S.C. 1101(a) (15), she remained in the United States for a longer time than permitted. At the deportation hearing, counsel for petitioner admitted 'for the sake of the record' her deportability on the 'charges specified,' and then asked that she be given the privilege of voluntary departure at her own expense in lieu of deportation. Although this was the apparent issue, the real issue, as stated by the special inquiry officer, was whether petitioner was subject to deportation under the laws of the United States.

Petitioner contends it was error to decide she was deportable since a petition to accord her the status of a nonquota immigrant under section 205 had been approved by the Attorney General. Although this circuit has not previously spoken on the question, we are persuaded to hold that an approval of a petition under this statutory provision does not alone give the beneficiary of the petition an immediate right to an immigrant visa. See Amarante v. Rosenberg, 326 F.2d 58 (9th Cir. 1974) and Scalzo v. Hurney,225 F. Supp. 560 (E.D. Pa. 1963). The beneficiary is required if out of the country to request an immigrant visa from a United States consular officer at the port of entry. The approved petition is merely prima facie evidence of qualification for issuance of the visa. The visa may be issued only if the consular officer concludes that the alien is fully qualified under the immigration laws for the visa. The immigration officer who inspects the alien upon his arrival must be satisfied that the alien is admissible for permanent residence. If the alien is already living in the United States, he may under certain circumstances, apply under section 245 of the Act, 8 U.S.C. 1255, for adjustment of his status to that of a permanent resident and avoid the necessity of leaving the country to apply for a visa. Such adjustment, however, also requires an inspection process before the application may be approved. Since no immigrant visa had been issued to petitioner at the time of her hearing, it is clear that the mere petition for a visa in her behalf did not affect her deportability.

II

Petitioner attempts to avoid the foregoing conclusion by contending that even though no immigrant visa had been issued, her husband's petition under section 205 mooted the charge contained in the order to show cause. An additional fact must be noted in order to consider this contention. On August 1, 1972, while being held by the Immigration Service agents, Jose Figueroa signed a withdrawal of the petition he had filed on March 29, 1972. Accordingly, at the time of the deportation hearing the order to show cause had not been superseded, as petitioner argues, by an approved petition to accord her the status of a nonquota immigrant.

Petitioner argues, however, that the withdrawal of the petition was accomplished by the agents after subjecting her husband to duress by virtue of his arrest and that in any event, the provisions of the immigration regulations were not followed with respect to the withdrawal of the petition.¹ 

The circumstances underlying the withdrawal of the petition are not properly before us for consideration. Those circumstances raised a collateral issue which is not subject to our review of the order of deportation. We say collateral because the matter relating to the approval and withdrawal of visa petitions is not within the scope of a deportation proceeding under section 242(b) of the Act, 8 U.S.C. 1252(b), and therefore not reviewable by a court of appeals under section 106(a) of the Act, 8 U.S.C. 1105a(a). See Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968). On this aspect of the case, we agree with the Government's statement in its brief: 'The withdrawal of the visa petition is pertinent to this proceeding only in that, under the circumstances . . ., it is additional evidence that the marriage was not bona fide.'

With respect to petitioner's argument that the withdrawal did not comport with the regulations, a more troublesome question would be presented if we were free to consider it. The Government says that the notice of withdrawal was 'duly' signed by Jose Figueroa before an officer of the Immigration Service at the same office which had approved the petition and that this 'obviously' meets the requirements of 8 C.F.R. 205.1(a) (1). We are not as sanguine as Government counsel. The regulation requires that a formal notice of withdrawal be filed with the officer 'who approved the petition.' A reading of the regulation indicates that the action here taken did not literally comport with the provision. However, we do not think this case should turn on the point in light of what we have said about its reviewability.

III

III

Finally, petitioner contends that her marriage is valid under the laws of Illinois and that the marriage, in some unspecified manner, bars her deportation. The contention is not relevant since a valid marriage to United States citizen does not of itself exempt an alien from deportation. Silverman v. Rogers, 437 F.2d 102 (1st Cir. 1970), cert. denied, 402 U.S. 983, 91 S. Ct. 1667, 29 L. Ed. 2d 149 (1971). Swartz v. Rogers, 103 U.S.App.D.C. 1, 254 F.2d 338 cert. denied, 357 U.S. 982, S. Ct. 1373, 2 L. Ed. 2d 1372 (1958).

In summary, we think that the contentions advanced by petitioner to vacate the order of deportation are legalisms which blink the real issue, whether her marriage was in bad faith and undertaken solely to circumvent the immigration laws of the United States. On that issue we hold that subtantial evidence supports the finding of the special inquiry officer and that the Board of Immigration Appeals was correct in ruling that the marriage was a subterfuge designed to prevent deportation.

The petition for review is denied.

FAIRCHILD, Circuit Judge (dissenting).

The majority may well be correct in holding that approval of Mr. Figueroa's petition under 8 U.S.C. 1154(a) neither vested in Mrs. Figueroa the right to a nonquota immigrant visa, nor mooted (under the circumstances here) the charge of deportability in the February 17 order to show cause. I believe, however, that due process required a fuller notice of the matters to be considered at the hearing on August 1, and therefore respectfully dissent from denial of the petition to review.

In view of the severity of the remedy, procedural fairness is essential at a hearing culminating in a deportation order. Once an alien has been lawfully admitted to the United States, "not even Congress may expel him without allowing him a fair opportunity to be heard.' Kwong Hai Chew v. Colding (344 U.S. 590, 597-598, 73 S. Ct. 472, 97 L. Ed. 576 (1953)). It is likewise axiomatic that adequate notice is the first and foremost prerequisite of a fair hearing.' Aalund v. Marshall, 461 F.2d 710, 712 (5th Cir., 1972).

Petitioner and her surety received a written demand that the surety produce petitioner 'for hearing' August 1, before a special inquiry officer. This document was silent as to the purpose of the hearing. At the hearing it developed that the allegations of deportability set forth in the February 17 order and the question of permitting voluntary departure would be considered and determined; that the Service regarded petitioner's marriage as a subterfuge to circumvent the immigration laws; that the Service had, on the morning of the hearing, obtained from Mr. Figueroa a revocation of the visa petition earlier filed and approved; and that Mr. Figueroa testified as a witness for the Service on the matter of the purpose of the marriage. The basis for the denial of voluntary departure is the finding that petitioner's testimony at the hearing concerning the bona fides of the marriage constituted false testimony for the purpose of obtaining benefits under the immigration laws.

Perhaps it can be parsed out that (1) the demand to the surety reasonably implied that the August 1 hearing would constitute a delayed hearing on the February 17 order to show cause; (2) that since it is now held that the approval of the visa petition is not relevant to petitioner's deportability, petitioner was not entitled to advance notice that the Service would so contend; (3) that in testifying in support of voluntary departure, petitioner assumed the risk that the special inquiry officer could be convinced that her testimony was false; and (4) that she was not entitled to advance notice of the proof the Service would use to challenge her testimony in support of voluntary departure.¹ 

In practical terms, however, the position of the Service concerning the marriage and the visa petition probably brought about the holding of the August 1 hearing, and dominated, if not controlled, the result. It seems to me that fundamental fairness required that petitioner be given advance notice of the position the Service would take on those matters.