# Reyes Frias Deleon v. Immigration and Naturalization Service

> Court of Appeals for the Second Circuit · October 18, 1976 · 547 F.2d 142

URL: https://www.frixlaw.com/law-library/cases/9463402

## Case

- **Full name:** Reyes Frias DeLEON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** October 18, 1976
- **Citations:** 547 F.2d 142; 1976 U.S. App. LEXIS 6631
- **Precedential status:** Published
- **Opinion:** Concurrence by Stern
- **Judges:** Lumbard, Oakes, Timbers
- **Cited by:** 12 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/9463402

## How later opinions describe it (automated extraction)

- applying this principle sub silentio

## Opinion text

(Stern, J.,
concurring).
Pereira-Barreira is distinguishable from this case because the ground for deportation there was under Section 241(a)(2) and in no way dependent upon entry; rather, the fraud was in remaining in the United States beyond the authorized period. See 523 F.2d at 506. So, too, in Reid, deportation proceedings were brought under Section 241(a)(2); they involved evasion of inspection. As the Supreme Court specified in Reid, the charge under 241(a)(2) “[did] not depend in any way upon the fact that an alien was excludable at the time of his entry on one of the grounds specified in § 212(a).” 420 U.S. at 623, 95 S.Ct. at 1167. Here, however, the charge wholly relates to the time of entry; it is also entirely dependent upon fraud at entry. The conviction of Mr. Frias was not, within the meaning of Reid and Pereira-Barreira, a charge with *152 out regard to entry. The conviction added no “frustration” to the process beyond the original fraud.
The INS argument, accepted in the majority opinion, suggesting that Mr. Frias’s fraud was more serious than Errico’s because his act was criminally punishable, falls short of the mark. Errico and Scott also admitted illegal acts punishable under 18 U.S.C. § 1546 when they conceded evasion of the quota laws. They presented applications containing false statements with respect to material facts. See 18 U.S.C. § 1546 .
In another context, the Third Circuit has recently pointed out that Reid was concerned with the use of Section 241(f) to evade grounds for deportation having no connection with the fraud. Persaud v. INS, supra, 537 F.2d at 778-79. That this reading has support in the Reid opinion is evident from that portion of Reid stating that Congress “did not intend to arm the dishonest alien seeking admission to our country with a sword by which he could avoid the numerous substantive grounds for exclusion unrelated to fraud, which are set forth in § 212(a) . . . .” 420 U.S. at 630-31, 95 S.Ct. at 1171 (emphasis added). Like the Third Circuit, I “believe that the essence of Reid and Errico is that § 241(f) will not be available when its application would permit an alien to avoid a basis for deportation which is separate, independent and unrelated to the fraud.” 537 F.2d at 779.
Finally, the majority opinion states that “[t]he fraud of impersonation clearly is not in the same category as the relatively less serious fraudulent conduct contemplated by Section 212(a)(19).” I do not see how this qualitative judgment can be made. 18 U.S.C. § 1546 punishes and makes subject to the same fine or imprisonment a whole series of acts constituting fraud both at entry and otherwise, including but not limited to “knowingly mak[ing] under oath any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder . .” If I read the majority opinion correctly, it is really saying that section 241(f) relief will no longer be available whenever the Government decides to prosecute under 18 U.S.C. § 1546 any fraud or misrepresentation at entry that otherwise would fall under Section 212(a)(19). If this reading is correct, Errico as construed in Reid is no longer the law.
Believing that the majority’s decision here both strains to interpret an ambiguous statute against an alien and gives inadequate deference to Supreme Court authority while doing so, I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463402. Public record. Not legal advice.