Review under 8 U.S.C. § 1105a, of an order entered by the Board of Immigration Appeals, dismissing petitioners' appeal from an order of an immigration judge finding the alien deportable and denying motion of citizen child to intervene in the deportation proceedings instituted against the parent.
Moore, Mulligan and Adams,*fn* Circuit Judges.
The primary issue on this appeal is whether the infant citizen petitioner was denied due process of law when he was refused permission to intervene in the deportation proceedings instituted against his alien mother.
Lenin Enciso-Cardozo, the alien petitioner on this appeal and the mother of the infant petitioner, entered the United States on November 2, 1970 as a non-immigrant for pleasure.*fn1 Unmarried at the time of her entry, she married Eduardo Enciso-Cardozo in New York City on September 18, 1971. Eduardo was at that time, and still is, also a non-immigrant for pleasure. On November 27, 1972, in New York City, Lenin gave birth to Edwin Michael Enciso, the infant citizen petitioner in this appeal.*fn2 By the time of Edwin's birth, both Eduardo and Lenin had been in the United States beyond the time authorized by their visas.
On February 19, 1973, the Immigration and Naturalization Service instituted deportation proceedings against Lenin.*fn3 At the deportation hearing relating to Lenin, held on February 26, 1973, counsel for the mother entered an oral motion on behalf of the infant, requesting that the infant be permitted to intervene in the proceedings. Counsel made no offer of evidence or arguments to be adduced on behalf of the child, and the immigration judge denied the infant's motion to intervene. The immigration judge then found the mother to be deportable,*fn4 but granted her the privilege of departing voluntarily on or before May 26, 1973.*fn5
Lenin and her child on March 2, 1973, appealed the decision of the immigration judge to the Board of Immigration Appeals. The Board dismissed the appeal on September 28, 1973, and granted Lenin, the alien petitioner, 89 days in which to depart voluntarily. At the request of Lenin, the period of voluntary departure for her was extended to January 23, 1974. The petition for review by this Court was filed on January 23, 1974.*fn6
On this review, the petitioners -- the mother and the child -- do not challenge the finding of the immigration judge that the mother is deportable. Instead, they contend that the infant petitioner, a United States citizen, was denied procedural due process when he was not permitted to intervene in the deportation proceedings brought against his mother. More specifically, petitioners contend that the infant citizen has a right to be reared in the United States, that the deportation of his mother necessarily implies his de facto deportation and that, therefore, since his rights and interests are so vitally affected by the deportation of his mother, he has a constitutional right to intervene in these proceedings, especially the portion of the proceedings dealing with the discretionary grant of voluntary departure.
In response, the Immigration and Naturalization Service contends that the infant petitioner has no substantive right to prevent the deportation of his mother, who has been found otherwise deportable, merely because the child is a citizen of the United States. Thus, the Service argues, since the immigration judge has jurisdiction to decide only the question of the deportability of the parent, the child has no substantive rights which may be asserted at the deportation proceeding, and there is, therefore, no need to allow him to intervene.
Although it appears to be firmly established that an infant's status as a citizen and his dependence on his alien parent do not prevent the deportation of the alien parent,*fn7 the question presently facing the Court is not whether the infant petitioner is entitled to have his mother remain in the United States, but whether he has a constitutional right to be heard by the immigration judge on the deportability of his mother and on the grant of discretionary relief in the form of extended voluntary departure. This issue has been alluded to by the Court of Appeals for the Ninth Circuit in dictum in the per curiam opinion in Agosto v. Boyd, 443 F.2d 917 (9th Cir. 1971), and by Judge Weinfeld in Application of Amoury, 307 F. Supp. 213 (S.D. N.Y. 1969).
In Agosto, the wife and minor children of an alien had filed a complaint seeking an order from the district court permitting them to intervene in the deportation proceedings brought against the alien. The Court of Appeals affirmed the dismissal of the complaint on the ground that the district court had no jurisdiction to entertain such an action ancillary to the administrative proceedings. The opinion continued, however, stating: "We discover no basis for conferring standing upon the relatives of an alien to intervene in pending deportation proceedings." 443 F.2d at 917. In Amoury, an action was brought in the district court on behalf of an infant citizen of the United States, seeking a declaratory judgment as to the rights of the infant as they related to the deportation of his alien parents. The district court, after concluding that it had jurisdiction under the Administrative Procedure Act to hear the suit, dismissed the complaint for failure to state a claim. It was asserted on behalf of the child*fn8 that if his parents were deported he, because of his age, would be forced to leave the country as well and that, since he had not been a party to the deportation proceeding, he had been deprived of due process. The district court held that the constitutional rights of the child had not been violated by the manner in which ...