Rodolfo Carreon-hernandez, Appellant, v. Edward H. Levi, Attorney General of the United States, Etal., Appellees, 543 F.2d 637 (8th Cir. 1976)

This is an appeal from an order of the United States District Court for the District of Minnesota denying appellant's petition for a writ of habeas corpus. We affirm the judgment of the trial court.

Appellant, a citizen of Mexico, lawfully entered this country in 1955. He has resided here since that time, living at the same address in Chicago for the last thirteen years. He married an American citizen and they have a fifteen-year old son, who is also an American citizen. Until an accident in 1970 which left appellant 100% disabled and dependent on social security benefits, he was employed by the 3-M Company in Chicago. Prior to 1974, it appears that appellant lived an exemplary life, working, paying taxes, registering for the Selective Service, etc. However, appellant has never applied for United States citizenship.

In 1974 appellant was convicted of distributing a controlled substance (heroin), in violation of 21 U.S.C. § 841(a) (1). He was sentenced to eighteen months imprisonment plus the mandatory special parole term of three years. While he was incarcerated at the Federal Correctional Facility at Sandstone, Minnesota, the Immigration and Naturalization Service (INS) issued an order to show cause why appellant should not be deported. After a deportation hearing, it was ordered that appellant be deported pursuant to 8 U.S.C. § 1251(a) (11), having been convicted of unlawfully distributing a narcotic drug. This order was affirmed by the United States Board of Immigration Appeals on December 30, 1975. Appellant's motion for a stay of deportation was denied by the District Director of the INS. Further discretionary relief under 8 U.S.C. § 1251(b) and 8 U.S.C. § 1254(a) (2) was unavailable because appellant had been ordered deported pursuant to 8 U.S.C. § 1251(a) (11).

On January 15, 1976, the INS issued a warrant for appellant's deportation. Appellant then filed an application for a temporary restraining order and a petition for a writ of habeas corpus. Appellant was released from the Sandstone facility on January 23 and taken into custody by the INS. On January 26 Judge Devitt issued a temporary restraining order preventing appellant's deportation. The INS released appellant on a $500 bond.

On March 24 Judge Devitt issued an order and memorandum denying appellant's habeas petition. Appellant filed a notice of appeal on May 20 and Judge Devitt stayed the effect of his March 24 order, pending the decision on appeal.

We affirm the judgment of the district court on the basis of Judge Devitt's well-reasoned memorandum opinion, Carreon-Hernandez v. Levi, 409 F. Supp. 1208 (D. Minn. 1976). His reliance upon Oliver v. United States Department of Justice, Immigration and Naturalization Service, 517 F.2d 426 (2d Cir. 1975), cert. denied, 423 U.S. 1056, 96 S. Ct. 789, 46 L. Ed. 2d 646 (1976), and upon Galvan v. Press, 347 U.S. 522, 74 S. Ct. 737, 98 L. Ed. 911 (1954) was entirely appropriate under the circumstances of this case.

This affirmance is without prejudice to appellant's right to file his motion for stay of mandate pursuant to Rule 41(b) of the Federal Rules of Appellate Procedure; and the appellee is directed not to take further deportation action until such motion, if filed on a timely basis, has been ruled upon by this court.