Moises Ponce-gonzalez, Petitioner, v. Immigration and Naturalization Service, Respondent, 775 F.2d 1342 (5th Cir. 1985)

This is an appeal from an order of deportation by the Immigration and Naturalization Service ("INS"). Petitioner sought to avoid deportation by collaterally attacking a prior deportation order, seeking thereby reinstatement of the status he allegedly held and was entitled to prior to that earlier finding of deportability for having fraudulently obtained immediate relative immigrant status. We affirm.

Facts and Proceedings Below

Petitioner Moises Ponce-Gonzalez is a thirty-six-year-old native and citizen of Mexico. He entered this country on September 10, 1971, as an immediate relative immigrant, based upon his marriage, on August 3, 1970, to Amelia Flores ("Amelia"), a United States citizen. On December 31, 1972, he was married in San Juan de Sabinas, Coahuila, Mexico to Bertha Calvillo De Anda ("Bertha"), a citizen of Mexico admitted to this country in 1960 as a permanent resident alien. Their first child, Laura, was born in San Antonio, Texas on January 15, 1974.

On July 25, 1974, petitioner was ordered by the INS to show cause why he should not be found deportable on the basis of an Order to Show Cause charging that he had entered the United States illegally and was an alien who was excludable at the time of entry for having made fraudulent material misrepresentations respecting his immediate relative status.¹  At petitioner's request, a hearing before an Immigration Judge was held the next day. Petitioner admitted all the factual allegations in the show cause order²  and conceded deportability. Petitioner waived appeal. He requested and was granted voluntary departure. He departed this country to Mexico on July 31, 1974.

Petitioner's first marriage (to Amelia) was annulled on September 23, 1975 by the state district court in Bexar County, Texas. The annulment proceedings were instituted by Amelia, and petitioner, having waived citation, did not appear. Petitioner thereafter, on December 28, 1976, in Mexico, remarried Bertha, who is presently his spouse. Bertha visited him occasionally in Mexico after his departure. They have two more children, also born in this country, Julia Isela, born June 12, 1975, and Moises, Jr., born August 13, 1977.

Petitioner remained in Mexico from July 31, 1974 until July 15, 1979, when he re-entered this country as a nonimmigrant for pleasure, authorized to remain until September 30, 1979.³  On October 2, 1979, an Order to Show Cause was issued, alleging petitioner's deportability for having overstayed his visitor's visa. See 8 U.S.C. § 1251(a) (2) (Sec. 241(a) (2) of the Act). At his subsequent deportation hearing, petitioner admitted the facts in this second order and conceded deportability, subject to his "Motion to Terminate" the deportation proceedings. In that motion, petitioner asserted that the 1974 deportation order was improper because he was allegedly then eligible for relief from deportation by virtue of the provisions of section 241(f) of the Act, 8 U.S.C. § 1251(f), the "forgiveness" section.⁴  Petitioner thus sought to avoid the 1979 order of deportation by collaterally attacking the 1974 order of deportation.

The Immigration Judge found that petitioner, who had been represented by counsel in the 1974 proceeding, had not there raised the question of his eligibility for section 241(f) relief, and that petitioner might not now successfully assert the failure of the INS at the prior hearing to sua sponte grant that relief. The Immigration Judge also specifically found that, at the time of petitioner's entry into this country in 1971, he was not in possession of a valid labor certificate as required by section 212(a) (14) of the Act.⁵  The hearing judge further found that petitioner's assertion that the INS was estopped from deporting him because of "affirmative misconduct"--its failure to investigate his familial status as allegedly required by its Operations Instructions⁶ --was without merit. The Immigration Judge determined that petitioner's current (1979) deportability was supported by "evidence that is clear, convincing and unequivocal." See Woodby v. INS, 385 U.S. 276, 87 S. Ct. 483, 484, 488, 17 L. Ed. 2d 362 (1966); cf. 8 U.S.C. § 1252(b) (4); 8 U.S.C. § 1105a(a) (5). The judge granted voluntary departure, to be accomplished by July 8, 1980, and ordered petitioner deported should he not so depart.

Petitioner timely appealed to the Board of Immigration Appeals ("BIA"), challenging the Immigration Judge's rejection of the collateral attack upon the 1974 order of deportation and his determination that the INS was not estopped from deporting petitioner in 1979 by virtue of its alleged affirmative misconduct. The BIA rejected petitioner's collateral attack on the 1974 deportation order, because, in part, his attack did not address the finding of deportability, but instead dealt with the question of whether relief from deportation had been properly withheld. It found that petitioner had admitted the facts supporting a finding of deportability in 1974, had waived appeal, and had voluntarily departed the country; and that he had not asserted at that time his eligibility for section 241(f) relief, nor borne his burden to prove facts relevant to establishing that eligibility. The BIA concluded, therefore, that no miscarriage of justice had resulted which would have justified collateral attack on the 1974 order; that petitioner's failure to assert his eligibility for section 241(f) relief from deportation, and an absence of any evidence of such eligibility in the 1974 hearing record, precluded a finding that such relief had been wrongly withheld; and that the 1979 charge of overstay had been established by clear, convincing, and unequivocal evidence. The decision of the Immigration Judge was affirmed, and petitioner's administrative appeal was dismissed on February 23, 1984. Petitioner was granted thirty days' voluntary departure, and was ordered deported unless he so departed.

Petitioner timely filed a petition for review with this Court.

Prior Determination of Deportability

"An order of deportation ... shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right ... or if he has departed from the United States after the issuance of the order." 8 U.S.C. § 1105a(c) (emphasis added). Petitioner expressly waived his right to appeal the order of the Immigration Judge in 1974, and he voluntarily departed the country following the entry of that order.

No Injustice in the Prior Order

Orders of deportation are not ordinarily subject to collateral attack, see, e.g., United States v. Gonzalez-Parra, 438 F.2d 694 (5th Cir.), cert. denied, 402 U.S. 1010, 91 S. Ct. 2196, 29 L. Ed. 433 (1971), at least in the absence of a "gross miscarriage of justice." United States ex rel Steffner v. Carmichael, 183 F.2d 19, 20 (5th Cir. 1950). Petitioner alleges that just such a "gross miscarriage" occurred respecting the 1974 order, sufficient to justify a collateral attack. We disagree.

We find no indication that the 1974 order of deportation was improperly entered or that it was contrary to law. Petitioner does not now attempt to attack the finding of deportability, which he then conceded, nor to deny any of the facts which supported that finding, which he then admitted. Instead, he seeks to overturn the 1974 deportation order collaterally by alleging that he was, in effect, improperly denied relief from deportation to which he was entitled under section 241(f) of the Act.

The only relief petitioner requested at his 1974 hearing, however, was that he be allowed to depart voluntarily, which was granted. Where a finding of deportability has been made, it is incumbent upon the alien to apply for section 241(f) relief, and to advance factual particulars in support of that application. See Cortez-Flores v. INS, 500 F.2d 178, 189 (5th Cir. 1974); Chow v. INS, 641 F.2d 1384, 1387, 1391 (9th Cir. 1981); Matter of Fereira, 14 I & N Dec. 509, 511 (BIA 1973) ("it is the alien who must bear the burden of proof in establishing the applicability of section 241(f) to his case"). Petitioner admits that he did neither at the 1974 hearing, but now asserts that the INS had at that time knowledge of his familial circumstances--his marriage to Bertha and the birth of their United States citizen child, Laura--and was therefore under an affirmative obligation to conduct an investigation in order to determine whether he was eligible for section 241(f) relief.

Petitioner bases this "affirmative duty" argument upon the language of INS Operations Instructions Sec. 241.2. See note 6, supra. The Operations Instructions are, however, only internal guidelines for INS personnel, and neither confer upon petitioner substantive rights nor provide procedures upon which he may rely. See Dong Sik Kwon v. INS, 646 F.2d 909, 918-19 (5th Cir. 1981); Pasquini v. Morris, 700 F.2d 658, 662 (11th Cir. 1983); see also Velasco-Gutierrez v. Crossland, 732 F.2d 792, 794-98 (10th Cir. 1984). The alleged "failure" of the INS to conduct sua sponte an investigation of petitioner's situation thus affords no legal basis for a conclusion that the failure of the Immigration Judge to sua sponte accord petitioner section 241(f) relief in 1974 constituted a "gross miscarriage of justice."

Additionally, we note that the language of the relevant Operations Instruction admits to a different and, we think, more appropriate interpretation. The portion of the Operations Instruction upon which petitioner relies (see emphasis in quoted language in note 6, supra) is preceded by a requirement that the alien "shall be required to submit any necessary documentary evidence to establish his eligibility" for any relief from deportation. We think that this language was intended not to imply an affirmative duty to investigate any alien to determine his or her eligibility for relief, but only to reflect that, once an alien had asserted eligibility for relief and had alleged factual particulars in support thereof, INS personnel should investigate as required to establish the truth or falsity of those factual allegations. This interpretation is consistent with the rule that the burden of making application for and of offering proof of his eligibility for section 241(f) relief is upon the alien.

Moreover, even were we to agree with petitioner that some substantive duty was implied in this Operations Instruction, we would conclude that, as in Dong Sik Kwon, the INS was at worst guilty of "inaction not misconduct" by not investigating his familial circumstances. 646 F.2d at 918. The 1974 hearing record shows that petitioner, represented by counsel, requested no relief from deportation following the Immigration Judge's inquiry for any requests for relief. The 1974 record is devoid of any indication that petitioner was the parent of a United States citizen child at the time, which, had it been present, might have catalyzed the Immigration Judge to sua sponte determine whether section 241(f) relief was warranted.⁷  Petitioner was not foreclosed procedurally or otherwise from requesting such relief in 1974 by the failure of the INS to conduct any investigation.

In his reply brief in this Court, petitioner alleges ineffective counsel at the 1974 hearing, a matter which is also mentioned in his 1982 brief to the BIA; however, no such claim or showing was ever made before the Immigration Judge or in petitioner's initial brief to this Court. We find no clear demonstration of ineffective counsel. We note specifically that his 1974 counsel had explained to petitioner, for example, the significance of his waiver of notice of deportability and his request for a prompt hearing, and that the Immigration Judge himself was at pains to ensure that petitioner understood the nature and significance of the waivers involved and, in general, the nature of the proceedings themselves. And, of course, we are dealing here with a civil, not a criminal, proceeding. We reject petitioner's tardy assertion that his failure to raise section 241(f) eligibility (or to appeal the 1974 order) may be excused on the theory that it was a result of waiver which was neither voluntary nor knowledgeable. Cf. Jones v. Estelle, 722 F.2d 159 (5th Cir. 1983), cert. denied, --- U.S. ----, 104 S. Ct. 2356, 80 L. Ed. 2d 829 (1984).

The Question of Eligibility for Relief

Moreover, it is not established on the record of the 1974 hearing that petitioner was eligible for section 241(f) relief at the time. To be eligible, an alien must allege and show by suitable factual particulars that he was "otherwise admissible at the time of entry." Sec. 241(f). See note 4, supra. The Immigration Judge noted specifically that petitioner did not possess a labor certificate at the time of his 1971 entry to this country. Such a certificate would ordinarily have been required, had the provisions of petitioner's (fraudulently obtained) immediate relative immigrant visa not waived such a requirement. See note 5, supra. Under the Supreme Court's decision in Reid v. INS, 420 U.S. 619, 95 S. Ct. 1164, 43 L. Ed. 2d 501 (1975), as interpreted in Morales-Cruz v. United States, 666 F.2d 289 (5th Cir. 1982); Chow v. INS, supra; Skelly v. INS, 630 F.2d 1375 (10th Cir. 1980); and Matter of Gonzalez, 16 I & N Dec. 564 (BIA 1978), petitioner would have been deportable in 1974 under section 241(a) (1), as having been excludable when he entered in 1971 because of the absence of the labor certificate required under section 212(a) (14), and section 241(f) would not have afforded petitioner relief, even if he met its relative status requirements, because he would not have met its "otherwise admissible at the time of entry " requirement.⁸  The Immigration Judge, however, did not make such an ultimate finding; he recognized the possible relevancy of the Ninth Circuit's decision in Castillo-Godoy v. Rosenberg, 415 F.2d 1266 (9th Cir. 1969), which held, in effect, that the section 212(a) (14) requirement of a labor certificate was intended to be waived by section 241(f) in situations involving a finding of deportability based upon excludability under sections 212(a) (14) and 212(a) (19).

Contrary to petitioner's implicit premise on appeal, this Circuit was not necessarily bound at the time of petitioner's 1974 hearing by the Ninth Circuit's decision in Castillo-Godoy. The Supreme Court later effectively overruled Castillo-Godoy by its decision in Reid. See Cacho v. INS, 547 F.2d 1057, 1062 & n. 5 (9th Cir. 1976); Chow v. INS, supra. As Reid indicates, there had been vast confusion as to the general scope of section 241(f). 95 S. Ct. at 1170. With regard to the interplay between sections 212(a) (14) and 241(f), in our 1982 decision in Morales-Cruz we stated, " [T]his precise issue has not been before this Court." 666 F.2d at 291. We do not accept the suggestion that this Circuit was at the time bound by a Ninth Circuit construction of the law in a context we had not yet ruled on--an interpretation which was later determined to have been in error. We are reluctant to hold that the Board was bound to grant relief because of "gross miscarriage" of justice on the basis that petitioner might have benefited from an erroneous theory of law.

The Estoppel Claim

Petitioner asserts that the INS' failure to investigate sua sponte to determine petitioner's eligibility for section 241(f) relief constituted "affirmative misconduct" sufficient to now estop the INS from deporting him for his 1979 overstay. We reject this contention for the same reasons that we found such "failure" to investigate insufficient to have caused a "gross miscarriage of justice." Moreover, petitioner's 1979 admitted overstay constituted a violation of the immigration laws wholly distinct from the 1974 charges and attendant hearing.

Conclusion

Petitioner does not here contest the present finding of deportability because of an overstay, which he has conceded. We reject the attempt to collaterally attack the 1974 deportation order. The Board's decision is AFFIRMED.