condition of probation that the defendant return to Mexico was invaHd and revocation of probation for violation of the invaHd condition was an abuse of discretion
How later courts described this case
- condition of probation that the defendant return to Mexico was invaHd and revocation of probation for violation of the invaHd condition was an abuse of discretion
- the Supremacy Clause of the United States Constitution dictates that federal immigration law, not a trial court’s decision, governs an immigrant’s right to remain in or to reenter the United States
- “The supremacy clause of the United States Constitution dictates that federal immigration law, not the decision of the trial court in this case, controls the circumstances under which appellant may or may not re-enter the United States.”
- “ ‘The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States.’ ” (Citation omitted.)
Written by the judges who cited it.
The opinion
OPINION CONCURRING IN PART AND DISSENTING IN PART ON STATE’S MOTION FOR REHEARING
ONION, Presiding Judge.
The original panel opinion reversed on the ground that the evidence was insuffi *291 cient to support revocation for violation of the condition “that upon exiting the United States, remain within the Republic of Mexico,” and the condition “do not re-enter the United States, legally or illegally, without the prior written permission of the court.”
On October 5, 1979, the court vacated an earlier order of revocation and released the appellant on the same probationary conditions. On November 8,1979, the State filed a second motion to revoke alleging, inter alia, a violation on October 18, 1979 of the two conditions described above.
For proof of such violations, the State offered the testimony of Jose L. Gonzales, a probation officer. Gonzales testified he was with Vincent Brown, another probation officer, when they saw the appellant in the city of El Paso in the 300 block of South El Paso Street on October 18,1979. Believing that appellant was to be in violation of his probationary conditions, he was arrested. Gonzales was not shown to have any personal knowledge that since October 5, 1979, when appellant was placed on probation, appellant had returned to Mexico and then re-entered the United States.
Robert E. Lally, a supervisory deportation officer for the Immigration Service, testified the records of such agency reflected that an “Adolfo Hernandez Ochoa” was granted a voluntary return to Mexico on October 12, 1979, and was returned to Mexico. He testified from the records. He was not shown to have any personal knowledge of the appellant or of any actual return to Mexico.
There is no showing that the “Adolfo Hernandez Ochoa” mentioned by Lally is the appellant whose name is shown throughout the record as Adolph Ochoa Hernandez. The exhibit offered through the witness Lally is not in the record before us nor any of the other exhibits.
There being insufficient evidence to show that the appellant ever left the United States between October 5, and October 18, 1979, the appeal was properly disposed on original submission. There is no need to reach a discussion of the validity of the probationary conditions. It is observed that the majority overrules the panel opinion on original submission which was based on insufficient evidence to show probationary violations without even discussing the evidence. I concur only in the disposition of the motion for rehearing.
W. C. DAVIS, J., joins this opinion.