# Cecilia S. Jacobe v. Immigration and Naturalization Service

> Court of Appeals for the Third Circuit · May 11, 1978 · 578 F.2d 42

URL: https://www.frixlaw.com/law-library/cases/9464846

## Case

- **Full name:** Cecilia S. JACOBE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** May 11, 1978
- **Citations:** 578 F.2d 42; 1978 U.S. App. LEXIS 11222
- **Precedential status:** Published
- **Opinion:** Dissent by Garth
- **Judges:** Garth, Weiner
- **Cited by:** 11 later opinions in the Frix Law Library

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## Opinion text

GARTH, Circuit Judge,
dissenting.
I am unable to join in the majority opinion because I believe that it fails to address the factor most germane to Cecilia Jacobe’s appeal: this court’s recent decision in Per-saud v. Immigration and Naturalization Service, 537 F.2d 776 (3d Cir. 1976). 1 There we held that section 241(f) of the Immigration and Nationality Act (Act) 2 may prevent the deportation of a party who, having fraudulently entered the United States, is deportable because of a failure to possess valid entry documents. 3 As Jacobe is such a party, she may qualify for relief from deportation under this provision if she satisfies the other statutory requisites. Yet the Immigration and Naturalization Service (Service) and the Board of Immigration Appeals (Board) refused even to consider Per-saud during Jacobe’s motion to reopen proceedings, thereby precluding her from relief.
I would hold that at the least this refusal constitutes an abuse of discretion, or more accurately, a failure to exercise a sound discretion. Thus I would grant Jacobe’s petition for review.
It is helpful at this point to restate briefly the relevant facts which underlie Ja-cobe’s section 241(f) claim. Jacobe entered this country on January 15, 1974 as a resident alien, but with admittedly fraudulent entry documents. These documents denoted that Jacobe was the spouse of a (fictitious) American citizen. Jacobe’s American citizen child was born ten days later. Upon the issuance by the Service of an order to show cause why Jacobe should not be deported, on April 23, 1976 the immigration judge ruled Jacobe deportable under Section 212(a)(20) of the Act. 4 That provision provides for the excludability and hence the deportability 5 of:
any immigrant who at the time of application for admission is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, .
Throughout the proceedings Jacobe emphasized that she was the parent of an American citizen child, and, as such, section 241(f) afforded her relief from deportation. E.g., Transcript of Hearing (Tr.) 11, reproduced at Certified Administrative Record (Rec.) 52; see Board Order dated June 3, *46 1977, at 2. Section 241(f)’s “forgiveness” provision reads:
The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.
(Emphasis added.)
The Service denied Jacobe’s claim, and she appealed to the Board from the April 23rd Order of Deportation. Jacobe subsequently withdrew her appeal however, in light of her May 4th marriage to Mr. Ja-cobe, an American citizen. She alleges that the withdrawal of her appeal was in reliance on the advice given her by an immigration judge. 6
On June 29, 1976, our court decided Per-saud v. Immigration and Naturalization Service, 537 F.2d 776 (3d Cir. 1976). As noted above we held that, contrary to the position urged by the Service, the forgiveness provision of section 241(f) was indeed available to an alien in Jacobe’s exact position, i.e. deportable under section 212(a)(20) because, having sought entry by fraud, the alien possessed improper entry documents.
On August 26, 1976, Jacobe filed her motion to reopen her deportation proceedings (Rec. 31-33). The grounds urged for vacation of the April 23rd Order of Deportation included her argument that section 241(f) afforded her relief from deportation (see Rec. 32). 7 The immigration judge, however, ignoring or having no knowledge of our decision in Persaud, denied Jaeobe’s motion to reopen. 8 Rec. 26; App. at A-10. 9
Jacobe appealed from the September 1st Order to the Board of Immigration Appeals. Her notice of appeal urged two grounds for reversal. She sought relief from deportation based upon her current marriage to a citizen. 10 She also sought relief under the forgiveness provision contained in section 241(f), an argument which, as noted, had been rejected by the immigration judge (Rec. 11). The Board nonetheless addressed only the former contention, Board Order dated June 3, 1977, at 2-3, and, as the majority opinion observes, properly rejected it. No explanation appears in the record however as to why the Board completely ignored Jacobe’s section 241(f) claim, even though that claim had been adequately raised in the proceedings below and had been erroneously ruled upon (see Persaud) by the immigration judge in the order from which Jacobe was appealing.
It was at this juncture that Jacobe sought relief before us. 11
The record before us demonstrates clearly that Jacobe had adequately preserved her section 241(f) claim throughout the adminis *47 trative proceedings below. Thus we do not deal here with surprise or prejudice experienced by an agency confronted with a novel claim; nor do we deal with litigious interruptions of an agency proceeding; nor do we deal with a failure to allow an agency to correct its own mistakes. 12
Nor did Jacobe’s failure to appeal from her first deportation order prevent our affording her relief. It should be remembered that we are not examining her original deportation order but rather are passing upon a denial of a motion to reopen deportation proceedings — a motion which is properly reviewable by us. 13 Indeed the petitioner in Persaud had taken no appeal from his original deportation order, 537 F.2d at 777 , yet that failure to appeal did not prevent our court from granting relief from deportation under section 241(f) in a review of Persaud’s motion to reopen deportation proceedings. I see no reason therefore why Jacobe’s failure to appeal under even more egregious circumstances should be treated differently.
Having continuously raised the 241(f) issue of forgiveness, and having been denied Board consideration of that issue after its erroneous disposition by the immigration judge, and not having been barred from relief by an ill-advised withdrawal of her original appeal, at the least Jacobe is entitled to reconsideration of her 241(f) “parent” claim. At the most, she is entitled to complete relief from deportation. We said in Persaud that:
Congress enacted § 241(f) of the Immigration and Nationality Act, 8 U.S.C. § 1251 (f), as a humanitarian measure to ease the plight of aliens who had entered the country by fraud but who had close family ties with American citizens or permanent resident aliens. This provision was intended to keep families united by relaxing some of the rigorous provisions of existing law.
537 F.2d at 777 . Application of the forgiveness provision of section 241(f) “entails no exercise of discretion by the Attorney General.” Id. at 779 , citing 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 4.7c (1975). Rather “[ojnce the alien qualifies under the provisions of § 241(f), he will not be deported.” Id. at 777.
The Service has not demonstrated, and I cannot perceive, any reason why under the circumstances present here Jacobe should not be permitted relief under this remedial provision. Application of section 241(f) would prevent the hardship of deportation, separation from a citizen family, 14 and possible barring of future reentry into the United States even were an immigrant visa to become available. 15 Refusal by the Service, therefore, to consider Persaud and the remedial application of section 241(f) ap *48 pears to me to constitute an abuse — “or more accurately a ‘misuse’ ” — of the Service’s discretion. 16
Our court’s recent decision in Yang v. INS, 574 F.2d 171 (3d Cir. 1978), lends strong support to this position. In Yang , a newly-issued Service memorandum afforded relief to aliens who had been misinformed by immigration officials as to the operation of their own regulations. Further, “it appealed] that petitioners may well be within the INS policy as expressed in the memoranda.” Id. at 175 . Yet the Service denied relief, failing to “formally and fully consider petitioners’ case.” Id. Our court, necessarily holding that the Service had abused its discretion, granted petitioners’ motion to remand the case to the Board to reopen deportation proceedings. We ruled that “[t]he Board should be accorded an opportunity to consider the several material changes in fact and law that have been noted, and in particular whether the INS remedial filing policy applies in petitioners’ case.” Id. at 175 .
Similarly here, our decision in Persaud, constituting a material change in the law, may well afford Jacobe relief at the hands of the Board if the Board once considers and applies that decision. As in Yang , we too should remand to the Board for consideration of this significant, intervening factor. Even if this change in the relevant law does not mandate relief (which I think it does), it must be considered in connection with an appropriate exercise of the Board’s discretion.
The availability of section 241(f) to Ja-cobe 17 distinguishes her case from those where an alien merely seeks permission from the Service to remain in this country while an immigrant visa application is pending. Here by contrast Jacobe, as a parent of a citizen child, seeks the protection of a statute which does not permit her deportation if she can demonstrate compli-anee with its provisions. The Service may dislike applying the forgiveness provision contained in section 241(f), but that is not its prerogative.
I would grant Jacobe’s petition for review and at the very least remand her case to the Service for consideration in the first instance of her section 241(f) claim in light of Persaud. I therefore respectfully dissent from the majority’s denial of her petition for review.
. It is significant that both the Government on appeal before us and the Board of Immigration Appeals decision below failed to mention Per-sa ud.
. Codified at 8 U.S.C. § 1251(f), quoted at p. 8 infra.
. 8 U.S.C. §§ 1182 (a)(20), 1251(a)(1).
. 8 U.S.C. § 1182 (a)(20).
. Section 241(a)(1) of the Act, 8 U.S.C. § 1251 (a)(1).
. Letter Motion to Reopen Deportation Proceedings dated August 26, 1976, at 1-2, reproduced at Rec. 31-32.
. Jacobe did not specifically mention our decision in Persaud, which had been decided two months earlier. Rather she claimed that she was deportable under § 212(a)(19) of the Act (not under § 212(a)(20) as charged), a section which the forgiveness provision of § 241(f) clearly covered. In Persaud we held that de-portability under § (a)(20), as a “lesser included offense” of § (a)(19), permits an alien who entered this country through fraud or misrepresentation to invoke the forgiveness provision. Thus Jacobe has consistently, and I believe sufficiently, raised the argument during the administrative proceedings that § 241(f) affords her relief from deportation.
. Order dated September 1, 1976, reproduced at Rec. 24 and at A-8.
. The immigration judge ruled that Jacobe, who was deportable under § 212(a)(20), could not avail herself of relief under § 241(f), the precise contention which our court rejected in Persaud. See n.7 supra.
. Section 245 of the Act, 8 U.S.C. § 1255 (adjustment of status), discussed in Maj. Op. at 44.
. In her petition for review filed with our court, Jacobe again raised her § 241(f) claim. Petition for Review at 3, fl 10, reproduced at Rec. 4.
. See McKart v. United States, 395 U.S. 185 , 89 S.Ct. 1657 , 23 L.Ed.2d 194 (1969); cf. Wein-berger v. Salfi, 422 U.S. 749, 765-67 , 95 S.Ct. 2457 , 45 L.Ed.2d 522 (1975).
. See Maj. Op. at 44-45; Bufalino v. INS, 473 F.2d 728 (3d Cir.), cert. denied, 412 U.S. 928 , 93 S.Ct. 2751 , 37 L.Ed.2d 155 (1973). As is apparent throughout this dissent I believe that Persaud requires a reopening of Jacobe’s deportation order. I recognize that Persaud was filed after Jacobe’s original order of deportation, but it preceded Jacobe’s motion to reopen. Thus at the very least it should be considered an intervening change in law (i.e. a change in circumstance) which in the context of the undisputed hardship of deportation should justify plenary reconsideration of her § 241(f) claim. See 8 C.F.R. § 3.2 (1977); Yang v. INS, 574 F.2d 171, 174-7 , No. 77-1615 (3d Cir. 1978); cf. Persaud v. INS, 537 F.2d at 777 .
. “[Djeportation is a drastic measure and at times the equivalent of banishment or exile.” Fong Haw Tan v. Phelan, 333 U.S. 6, 10 , 68 S.Ct. 374, 376 , 92 L.Ed. 433 (1948). It is akin to punishment, see id., and may result in “loss of both property and life; or of all that makes life worth living.” Ng Fung Ho v. White, 259 U.S. 276, 284 , 42 S.Ct. 492, 495 , 66 L.Ed. 938 (1922).
. Under 8 U.S.C. § 1316 , a deported alien may reenter the United States only upon permission granted by the United States Attorney General. An alien who reenters without permission faces conviction of a felony and imprisonment for up to two years. Id. Yet permission to reenter is usually denied, and courts are often hesitant to review discretionary denials by the Service. Comment, 51 N.Y.U.L.Rev. 1021, 1023-24 n.19 (1976). For a fuller discussion of the effects of a deportation order, see 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 4.6d (rev. ed. 1976).
. Lindy Bros. Builders Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 116, 118 (3d Cir. 1976) (en banc) (failure to use proper standards or failure to exercise a sound discretion constitutes a “misuse” of discretion).
. I am assuming of course that she satisfies all statutory requirements. See 8 U.S.C. § 1251 (f); Persaud v. INS, 537 F.2d at 777-79 . See also id. at 779-80 (Stern, J., concurring).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9464846. Public record. Not legal advice.