# Heitland v. Immigration & Naturalization Service > Court of Appeals for the Second Circuit · January 27, 1977 · 551 F.2d 495 URL: https://www.frixlaw.com/law-library/cases/8901508 ## Case - **Full name:** Heinz H. HEITLAND (A17 587 648) and Hennelore Heitland (A19 492 601) v. IMMIGRATION AND NATURALIZATION SERVICE - **Court:** Court of Appeals for the Second Circuit - **Decided:** January 27, 1977 - **Citations:** 551 F.2d 495; 1977 U.S. App. LEXIS 10310 - **Precedential status:** Published - **Opinion:** Dissent by Kaufman - **Judges:** Kaufman, Mansfield, Meskill - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8901508 ## Opinion text IRVING R. KAUFMAN, Chief Judge (dissenting): The majority holds that Heinz and Hennelore Heitland, apparently outstanding members of their community 1 and parents of a 7-year old daughter who was born and has lived all her life in New York, may not even appeal to the Attorney General for discretionary suspension of deportation. It takes this rigid position because it is of the view that the Heitlands’ six-week trip to Germany in 1971-72 to visit Heinz’s sick and, as it then appeared, possibly dying sister “meaningfully interrupted” their seven year continuous presence in the United States. I cannot agree that anything in the Immigration and Nationality Act compels such a harsh result, and accordingly I dissent. I. Section 244(a) of the Immigration and Nationality Act, 8 U.S.C. § 1254 (a), provides . the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the ease of an alien who applies to the *505 Attorney General for suspension of deportation and— (1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United States for. a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence The obvious purpose of this provision was to enable the Attorney General to mitigate the egregious result of a relentless application of the deportation law to a class of potentially deserving cases. Wadman v. Immigration and Naturalization Service, 329 F.2d 812, 817 (9th Cir. 1964). Of course, as the majority felicitously observes, the statute was not designed to protect the “wanderers and the rootless”. It was, however, intended to protect those who, like the Heitlands, have established solid roots in their communities over a seven-year period. The majority apparently agrees that interpreting the Act’s “continuous presence” requirement rigidly would frustrate the liberal purpose of § 244(a) — at least for aliens lawfully present in this country ab initio. But my brothers appear to favor a more niggardly rule where an alien’s initial presence in the United States is unlawful. Despite the intimation to the contrary, I trust my brothers would not go so far as to hold aliens not properly admitted to the United States completely bereft of protection from the unfair consequences of a literal reading of “continuous presence”. See Git Foo Wong v. Immigration and Naturalization Service, 358 F.2d 151 (9th Cir. 1966). On the other hand, it seems absolutely clear that the Heitlands’ trip to Germany would not be regarded “meaningfully interruptive” of their presence here if they had been lawfully admitted, even if, as in Itzcovitz v. Selective Service Local Board No. 6, 447 F.2d 888 (2d Cir. 1971), they had foreseen possible immigration problems. 2 Accordingly, the majority appears to espouse the rule that persons illegally in this country may not leave for more than the few hours involved in Rosenberg v. Fleuti, 374 U.S. 449 , 83 S.Ct. 1804 , 10 L.Ed.2d 1000 (1963), though people legally resident here may interrupt their residency for much longer periods of time, as in Itzcovitz . This distinction is, of course, entirely devoid of support in the language of the statute. And, insofar as it is based upon a comparison of the relative hardship of deporting legal residents and those with no legitimate expectation of remaining here, I believe the entire subject is more appropriately left to the Attorney General’s discretion. The wisdom of leaving an evaluation of hardships to the discretion of the Attorney General is especially patent on the facts presented here. My brother Mansfield’s scholarly opinion makes much of the Government’s assertion that Mr. Heitland’s initial papers seeking lawful permanent residence were returned to him in 1968. Accordingly, in the majority’s view, the Heitlands must have known that their presence here may have been subject to brusk intervention by the Immigration and Naturaliza *506 tion Service, and cannot, therefore, have developed the psychological ties to the community that the statute presupposes. But, there is not a shred of evidence in the record that the Heitlands were ever informed of the Service’s failure to process Mr. Heitland’s application. The Government concedes that the papers were not returned to Mr. Heitland personally, but to his former labor union which had made the application on his behalf. Thus, we do not have any reason to doubt Mr. Heitland’s claim that he believed his application for permanent residence was caught up in the toils of the immigration bureaucracy. And, indeed, both Mr. Heitland’s inquiry on November 3,1968, requesting information concerning “his” application and his subsequent voluntary inquiry in the winter of 1972 suggest Mr. Heitland is telling the truth. We, of course, are ill-equipped to evaluate such factors in fulfilling our duty of applying the language of the statute. Such considerations should be left to the sensitive judgment of the Attorney General. The unfortunate result of the majority’s decision is that it prevents this and other potentially meritorious cases from ever reaching the Attorney General’s consideration. II. The majority also relies on the Heitlands’ alleged deception in securing reentry into the United States to demonstrate they were engaged in “a course of conduct directly contrary to a ‘policy reflected in our immigration laws’ ”. I simply cannot understand how this position can be maintained on the record before us. There is not a shred of evidence that Mr. and Mrs. Heitland lied to anyone so that they could reenter the United States. On the contrary, when questioned by the customs inspector at Kennedy airport, Mr. Heitland was very candid about his intention to return to his home in Brooklyn, 3 and, indeed, several *507 days later he voluntarily went to the Immigration Service to clarify what he thought was confusion regarding his status. I can only assume that my brothers agree with this reading of the record, since they do not refer to any actual misrepresentation but rely on “implicit” deception. I do not believe this record supports an inference that there was any deception. Nor, in any event, can the Heitlands justly be accused of conduct subversive of the immigration laws. Their purpose in leaving the country was not to smuggle other aliens in, or to accomplish any other illegal or immoral objective. See, e. g., Solis-Davila v. Immigration and Naturalization Service, 456 F.2d 424 (5th Cir. 1972). They took the unhappy voyage to visit a sister whom the Heitlands believed to be affected with a fatal illness. In the absence of any actual deception, the Heitlands’ sole misconduct was their desire to return to their home in the United -States. The “implicit” fraud here would exist whenever a person illegally in this country ventured abroad and sought to return. III. Finally, it is clear that a permanent resident alien may travel to faraway places for substantial periods of time, fully aware that his departure involves potential immigration problems, without meaningfully interrupting the continuity of his presence in the United States. Itzcovitz v. Selective Service Local Board No. 6, supra. The Court decides today, ostensibly to avoid rendering “meaningless the express requirement that the seven-year residence be ‘continuous’ ”, that an alien residing unlawfully in the United States does not have the same right to a liberal interpretation of “continuity.” I believe this distinction is unjustified by the statute, which pointedly refrains from making eligibility for suspension of deportation rest on the legality of an alien’s initial entry. In using the word “presence” Congress surely envisioned that those unlawfully in the United States had the right to take full advantage of the liberal provision of § 244(a). I would hold, on the facts presented to us here, that the Heitlands’ compelling voyage to Germany did not meaningfully interrupt their seven-year presence in the United States. 4 This holding, of course, would signify only that the Heitlands were eligible to apply for suspension of deportation. If, as the majority appears to believe, they are undeserving, I am sure that the Attorney General, after a hearing in which the record could be clarified, would deny their application. But I cannot agree that the Heitlands do not merit the Attorney General’s discretionary consideration, at the least, merely because their residence in the United states was unlawful ab initio. This is a doctrine for which I can find no basis in the immigration laws. . The Heitlands offered numerous testimonials to their standing in their community and involvement in civic affairs. The letter submitted by Sister Lorna Colin, Educational Director of the John Oravécz Child Center, is typical: I have known Heinz and Laura Heitland for the past two years. Their daughter, Martina, is enrolled in our Day Care Program and they have been actively engaged in all activities that call for parent involvement. Heinz was elected to our Policy Advisory Committee by the total parent body and has proved to be a strong advocate for quality program that emphasizes sound child development concepts. Both he and his wife are concerned about community projects and volunteer their assistance whenever participation is requested. Through close association with the Heitlands during these two years, I would describe both Heinz and Laura as people of strong moral character; interested, enthusiastic, concerned. It has been a privilege to know them and I hope that privilege will be extended for many years to come. . In Itzcovitz an Argentine national who exercised his treaty right of exemption from American military service sought a declaratory judgment that he would not' be excludable on his return after a three-week trip to Israel. The purpose of Itzeovitz’s proposed trip was to attend a special training course required byTiis employer, El A1 Airlines. We held that Itzeovitz’s absence would not be meaningfully interruptive of his residence in the United States, and consequently his return would not be a “reentry” subjecting him to exclusion. It is important that Itzcovitz obviously foresaw potential immigration problems associated with his trip; that is why he sought a declaratory judgment. It is accordingly somewhat late in the day for us to restrict the application of Rosenberg v. Fleuti, 374 U.S. 449 , 83 S.Ct. 1804 , 10 L.Ed.2d 1000 (1963) to those cases in which the alien’s absence is too trivial to alert him to the possible repercussions. . According to the majority opinion, Mr. Heitland swore that he entered the United States in transit to Canada. With due respect, they are in error. Heitland testified on February 21, 1975, as follows: Q. Incidentally, let me ask you something, Mr. Heitland, when you came off the plane, you came off with your wife and child? A. That’s correct. Q. You were examined standing together? A. That’s right. Q. Well what did you tell the inspector you were coming to the United States for? Did he ask you how long you were coming here? How long you expected to stay here? A. Yes. Q. What did you tell him? A. I said I live here in United States, and I show him the passport of my daughter. Q. You told him you lived in the United States? A. Yes. Q. And he took your word and let you in? A. That’s right. I think he wrote something in there about my residence or something like this and he put the white paper in there. I think he mentioned something about no residence or something like this, and he put the white piece of paper in there. Q. What did he question you about? A. That I couldn’t go whereever [sic] I feel like. Q. That’s right, you weren’t a resident, so how could he admit you as a resident? That’s what we want to know. A. I don’t know. I don’t know. Q. Did you tell him you were going back to Canada in a few days? A. No. On April 28, 1975, Immigration Judge Maltin read into the record that Mr. Heitland’s Canadian passport showed his readmission “N/C”, which Judge Maltin interpreted to mean that Mr. Heitland was admitted “as a nonimmigrant transit to the United States.” The Immigration Judge then questioned Mr. Heitland as follows: Q. But do you understand that all you did was, well all he could do, was to admit you to pass through the U.S. to Canada, because you had no other kind of permit? Did you understand that at the time? A. At that time, I had an alien card, well not an alien card but a permanent residence because it was more or less issued. Well I told him that the inspector in 1968 told me I would get my alien card in three to four weeks. Q. And he admitted you and said to go down to the New York office and straighten that out? A. Right. . Q. I just wanted to know just how much the inspector explained to you. Did he explain to you that without the proper papers in your hand, he couldn’t admit you for per"manent residence. And did he tell you how he was admitting you? A. No. Judge Mansfield in footnote 12 of his opinion seems to labor under the erroneous belief that *507 Judge Maltin found Mr. Heitland’s testimony incredible. But, significantly, Judge Maltin not only did not rely on a theory of “implicit fraud” in denying consideration of the Heitlands’ application for suspension of deportation but it seems, that this doctrine never crossed his mind. He believed, as the majority does not, that a six-week trip to Germany was in itself “meaningfully interruptive” of the Heitlands’ presence here. Moreover, Judge Maltin never indicated any doubts regarding Mr. Heitland’s credibility at any point in the transcript. Of course, Mr. Heitland has always conceded his illegal presence in the United States. It is the majority’s reliance on this fact — rather than any actual misrepresentation- — that I find so disturbing. In effect, the majority appears to discriminate between aliens illegally in this country and lawful residents in conferring the benefits of the liberal Fleuti rule. I believe this unwarranted discrimination is unauthorized by statute. . We recently indicated in another context the advisability of a flexible approach to the residence requirements of the immigration laws. See Tim Lok v. Immigration and Naturalization Service, 548 F.2d 37 (January 4, 1977). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8901508. Public record. Not legal advice.