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Hibbert v. Immigration and Naturalization Service

decided: April 4, 1977.

ROY HIBBERT, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT



After a hearing before an immigration judge, petitioner was ordered deported. Before the Board of Immigration Appeals, he urged that the deportation order be set aside and the privilege of voluntary departure granted. The Board denied this relief. Petitioner thereupon moved to reopen the proceeding. The motion was denied. He then moved for a reconsideration of the refusal to reopen, which was similarly denied. He now appeals to this Court, pursuant to 8 U.S.C. § 1105(a), seeking to reopen the deportation proceedings on the ground of abuse of discretion. Affirmed.

Gurfein and Meskill, Circuit Judges, and Bartels, District Judge.*fn*

Author: Meskill

MESKILL, Circuit Judge:

With some regularity, this Court notes the incredible complexity of the Immigration and Nationality Acts. Chief Judge Kaufman, for example, has aptly compared them to the labyrinth of ancient Crete. Tim Lok v. INS, 548 F.2d 37 (2d Cir. 1977). Frequently, we are called upon to extricate a hapless immigrant from the maze of statutory and regulatory language in which he finds himself enmeshed. This case, however, provides a graphic illustration of the opposite problem. It demonstrates how a resourceful litigant can exploit the procedural complexities of the immigration laws to render justice anything but "just, speedy and inexpensive." This petitioner has illegally been in the United States for nearly seven years. First ordered to leave the country in 1971, he has put off the day of reckoning time and again by astute legal maneuvers. He is now under a final order of deportation, which he has appealed to this Court pursuant to 8 U.S.C. § 1105a(a). We find no abuse of discretion in the deportation order, and accordingly, we affirm.

Facts.

Roy Hibbert is a native and citizen of Jamaica. In November, 1970, he illegally entered the United States by paying someone to drive him across the Canadian border into New York. Shortly thereafter, in May, 1971, Hibbert "married" Mattie Martin, an American citizen. At this point, the immigration authorities were still unaware of Hibbert's presence in the United States. The following month, a visa petition was filed by Martin on his behalf. It sought an exemption from the immigration quota and labor certification requirements on the ground that Hibbert was an immediate relative of an American citizen, as defined in 8 U.S.C. § 1151(b), and thus qualified for a visa. Both Hibbert and Martin testified under oath to the bona fides of their marriage. In September, 1971, the District Director approved the visa petition. Accordingly, Hibbert was granted the privilege of voluntary departure until October, 1971. Had all gone according to plan, he could have then legally re-entered the country. He failed, however, to leave the United States at that time.

In June, 1973, Hibbert's wife withdrew her sponsorship of the visa petition. In its place, she gave a sworn statement denying that she and Hibbert had ever been actually married. She stated that she had been paid to enter into a sham marriage, solely to establish Hibbert's immigration status. Armed with this new information, the District Director revoked his approval of the visa petition in October, 1973, pursuant to 8 C.F.R. § 205.1(a). The same day, the INS began deportation proceedings against Hibbert.

At the hearing, Hibbert conceded his deportability, but requested the privilege of voluntary departure, which he had been afforded once before. The immigration judge who heard the case rendered his decision in March, 1974. He found that Hibbert's statements about the fraudulent marriage constituted false testimony under 8 U.S.C. § 1101(f)(6), and thus that Hibbert was ineligible for the privilege of voluntary departure because of his bad moral character. 8 U.S.C. § 1254(e). The immigration judge further stated that even in the absence of a statutory bar, he would not exercise his discretion favorably, in view of Hibbert's immigration history of illegal entry and false statements. On review, the Board of Immigration Appeals held, in November, 1974, that the immigration judge was correct in refusing to grant voluntary departure in view of Hibbert's immigration history, whether or not he was eligible under the statute.

Hibbert appealed to this Court in February, 1975, and thus was granted an automatic stay of deportation. 8 U.S.C. § 1105a(a)(3). In April, 1976, Hibbert withdrew this appeal with prejudice.*fn1 Meanwhile, in March, he had petitioned the Board of Immigration Appeals to reopen the deportation proceedings pursuant to 8 C.F.R. §§ 3.2, 3.8. The grounds alleged for relief were that Hibbert was now married to a resident alien about to become a citizen; he also stated that his new wife was pregnant. The Board, exercising its administrative discretion, denied this petition in May, 1975.

Undaunted, Hibbert then filed a motion to reconsider the Board's refusal to reopen the deportation proceedings, seven days after the withdrawal of his first appeal. Again, he claimed that there was new evidence meriting reconsideration of his case. The grounds alleged were that Hibbert's wife was now a citizen and he was the father of a citizen child. He further claimed that his bad moral character was no longer the five-year period set out in 8 U.S.C. § 1254(e) would expire on August 4, 1976, and thus he was now eligible for voluntary departure. This motion, too, was denied, in June, 1976. In July, just before Hibbert was to report for deportation, he appealed to this Court for the second time.

Discussion.

Hibbert carries a double burden in this case. First, he must establish that he meets the statutory requirements for the discretionary privilege of voluntary departure. Next, he must demonstrate that the Board failed to exercise its discretion, and that there was some likelihood that a remand to the Board of Immigration Appeals would result in a favorable decision.

The privilege of voluntary departure is granted by 8 U.S.C. § 1254(e), which provides:

The Attorney General may, in his discretion, permit any alien under deportation proceedings, other than an alien within the provisions of paragraphs (4), (5), (6), (7), (11), (12), (14), (15), (16), (17), or (18) of section 1251(a) of this title (and also any alien within the purview of such paragraphs if he is also within the provisions of paragraph (2) of subsection (a) of this section), to depart voluntarily from the United States at his own expense in lieu of deportation if such alien shall establish to the satisfaction of the Attorney General that he is, and has ...


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