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In re Franca


decided: July 23, 1969.


Hays and Feinberg, Circuit Judges, and Jameson, District Judge.*fn*

Author: Jameson

JAMESON, District Judge:

Petitioner seeks to review and reverse a final order of deportation of the Board of Immigration Appeals denying a motion to reopen petitioner's deportation proceedings.*fn1 Petitioner contends that (1) his arrest without a warrant was illegal, rendering subsequent deportation proceedings void; (2) his arrest in New Jersey and removal to New York for hearing was "jurisdictionally improper"; and (3) he should have been afforded the opportunity to establish eligibility for voluntary departure.

Petitioner is an alien, a native and citizen of Italy. On two prior occasions he was deported from the United States. He last entered the United States on February 20, 1967, as a transient without visa and was authorized to remain for four days. He did not depart within the allotted time and remained at large until his arrest on June 13, 1968.

Petitioner was placed under arrest by two immigration officials at a bakery shop which he owned and operated in Jersey City, New Jersey, and was taken to the New York Office of the Immigration and Naturalization Service. The following day he was served with a warrant of arrest and an order to show cause alleging that he was deportable under Section 241(a) (2) of the Immigration and Naturalization Act, 8 U.S.C. § 1251(a) (2).

A hearing was commenced on June 17, 1968, at which petitioner was represented by Lyle O'Rourke, an experienced attorney,*fn2 and was accompanied by a relative, who was also an attorney and who acted as interpreter. Petitioner's counsel contended that since petitioner was arrested in New Jersey, the case should be heard in Newark and requested a two day extension to "check the file, consider the facts," and talk to his client.

The hearing resumed on June 20, 1968. Petitioner's counsel abandoned his contention that the hearing should be conducted in New Jersey.*fn3 He conceded that the petitioner was deportable*fn4 and advised the special inquiry officer that petitioner was not requesting voluntary departure.*fn5

The special inquiry officer entered an order directing petitioner's deportation to Italy. Petitioner waived his right to appeal and was released upon posting a $3,500 appearance bond. He was granted the right to leave the United States within 30 days and subsequently was granted a 30 day extension.

On August 19, 1968, through new counsel, petitioner moved to reopen the deportation proceedings and requested an opportunity to apply for the privilege of voluntary departure. Following a hearing on August 20 before a special inquiry officer, the motion was denied.*fn6 This decision was affirmed by the Board of Immigration Appeals on September 3, 1968, and, upon reconsideration, again affirmed on October 17, 1968. Petition for review was filed November 1, 1968.*fn7

Legality of Arrest

8 U.S.C. § 1357(a) (2) provides, inter alia, that any officer or employee of the Immigration Service may arrest an alien without a warrant "if he has reason to believe that the alien so arrested is in the United States in violation of any * * * law or regulation and is likely to escape before a warrant can be obtained for his arrest * * *." Petitioner was the owner and operator of a bakery in Jersey City. It would seem that a warrant might have been obtained for his arrest. On the other hand, petitioner had twice been deported and subsequent to re-entry in February, 1967, had absconded. From the record we cannot say that the officers did not have reason to believe that petitioner was likely to escape before a warrant could be obtained.

Certainly there was probable cause to place petitioner under arrest, and his deportability was conceded at the hearing. The Immigration Service did not rely upon any statements taken or evidence seized at the time of his arrest. Under these circumstances, even if the arrest without a warrant were illegal, this would not invalidate the subsequent deportation proceedings. As the Supreme Court said in Bilokumsky v. Tod, 1923, 263 U.S. 149, 158, 44 S. Ct. 54, 68 L. Ed. 221: "Irregularities on the part of the government official prior to, or in connection with, the arrest would not necessarily invalidate later proceedings in all respects conformable to law."*fn8

Place of Hearing

There is no clear mandate in either the statute or regulations as to where a hearing should be held.*fn9 Here the hearing was held in New York City instead of Newark -- a distance of 15 miles.*fn10 Petitioner resided in Jersey City, where he was arrested. The place of hearing was easily accessible to him. He was represented by competent counsel. At the initial hearing he was accompanied by a relative who was also an attorney. Petitioner was able to post bond. When the hearing was resumed three days later, he waived any objection to the place of hearing. This is a matter of venue rather than jurisdiction, and plaintiff could properly waive any right to have the hearing in the district of his residence or place of arrest.

There is no showing that the immigration officials acted arbitrarily or capriciously in holding the hearing in New York City or that petitioner was in any way prejudiced or denied a fair hearing. His counsel expressly abandoned any objection to the place of hearing. Accordingly, there is no valid basis for plaintiff's contention that it was improper to hold the hearing in New York City. See United States ex rel. Vermiglio v. Butterfield, 6 Cir. 1955, 223 F.2d 804; United States ex rel. Mastoras v. McCandless, 3 Cir. 1932, 61 F.2d 366.

Refusal to Reopen Proceedings

We find no merit in petitioner's final contention that the hearing should have been reopened to permit him to attempt to establish eligibility for voluntary departure. His counsel specifically stated at the June 20 hearing that petitioner did not request voluntary departure.*fn11

8 C.F.R. § 242.22 provides:

"A motion to reopen will not be granted unless the special inquiry officer is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the hearing; nor will any motion to reopen for the purpose of providing the respondent with an opportunity to make an application under § 242.17*fn12 be granted if respondent's right to make such application was fully explained to him by the special inquiry officer and he was afforded an opportunity to do so at the hearing, unless circumstances have arisen thereafter on the basis of which the request is being made."

The special inquiry officer at the August 20 hearing found that petitioner had failed to submit any evidence which could not have been presented at the first hearing*fn13 and that there was "nothing here to warrant * * * either the stay of deportation proceedings or the grant of the motion to reopen the cause." The Board of Immigration Appeals affirmed this decision and dismissed the appeal.

The grant or denial of a motion to reopen a deportation proceeding is discretionary with the Board of Immigration Appeals. "The courts cannot review the exercise of such discretion; they can interfere only when there has been a clear abuse of discretion or a clear failure to exercise discretion." United States ex rel. Adel v. Shaughnessy, 2 Cir. 1950, 183 F.2d 371, 372. There was no abuse of discretion on the part of the Board in denying petitioner's motion.

The petition is denied.


The petition is denied.

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