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MEJIA-RUIZ v. INS

December 16, 1994

ROBERTO MEJIA-RUIZ, A 30 670 149, Petitioner, against IMMIGRATION & NATURALIZATION SERVICE, Respondent.


The opinion of the court was delivered by: FREDERIC BLOCK

 BLOCK, District Judge:

 Petitioner Roberto Mejia-Ruiz ("Mejia-Ruiz"), an alien, *fn1" seeks a writ of habeas corpus directing respondent Immigration & Naturalization Service ("INS") to parole him during the pendency of an "exclusion proceeding" seeking his removal from the United States. *fn2" He claims that the INS (i) violated his due process rights by denying his application for parole without affording him a hearing and (ii) abused its discretion by acting arbitrarily and capriciously in denying parole. The INS not only vigorously contests these claims, but argues that Mejia-Ruiz could not, in any event, receive parole because of his status as an "aggravated felon." For the reasons set forth below, the petition is denied.

 I.

 FACTS AND PROCEDURAL HISTORY

 Mejia-Ruiz is a native and citizen of the Dominican Republic. He entered the United States in 1971 as a lawful permanent resident alien. He has a United States citizen wife and two United States citizen children. He has no family in the Dominican Republic.

 On April 13, 1989, Mejia-Ruiz was convicted in New York State court for the sale of a controlled substance (cocaine). *fn3" He was sentenced to prison for a term of two to four years for this conviction, of which he served approximately eighteen months. Based upon the conviction, on May 13, 1991 the INS instituted deportation proceedings. On May 27, 1993, an immigration judge ordered Mejia-Ruiz deported and denied his request for a waiver of deportation, concluding that there existed no evidence of rehabilitation. Mejia-Ruiz thereafter filed an administrative appeal to the Board of Immigration Appeals ("BIA").

 On April 27, 1994, while this appeal was pending, Mejia-Ruiz left the United States for the Dominican Republic, where he stayed for approximately one month. On May 24, 1994, upon his attempted return to the United States, he was subjected to an exclusion proceeding because he was not clearly admissible to enter the United States due to his conviction for a drug-related offense and the order of deportation. *fn4" On August 26, 1994, the BIA dismissed Mejia-Ruiz's appeal of the deportation order pursuant to 8 C.F.R. § 3.4 because he had made a departure from the United States during the pendency of the appeal. Section 3.4 provides in pertinent part:

 
Departure from the United States of a person who is the subject [of] deportation proceedings subsequent to the taking of an appeal but prior to a decision thereon shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.

 (Emphasis added.)

 On September 16, 1994, Mejia-Ruiz appealed the BIA's dismissal of his appeal of the deportation order to the Second Circuit, contending that the promulgation of section 3.4 violated the Administrative Procedures Act because the INS purportedly published the section without providing notice and an opportunity for public comment as required under 5 U.S.C. § 553. *fn5" This appeal is still pending.

 Meanwhile, on August 18, 1994, after a hearing, an immigration judge determined and ordered that Mejia-Ruiz should be "excluded." On August 25, 1994, Mejia-Ruiz appealed the exclusion order to the BIA. This appeal also is still pending.

 On July 27, 1994, shortly before Mejia-Ruiz's hearing before the immigration judge to determine whether he should be "excluded," he filed with the INS district director a letter requesting parole during the pendency of the exclusion proceeding. The letter, which was prepared by his attorney, stated that Mejia-Ruiz's wife and two children are United States citizens and that his mother, father and six siblings are lawful permanent residents of the United States. It also stated that Mejia-Ruiz had been employed full time since March 1990, which allowed him to support his wife and children. The letter did not request a hearing on the issue of whether Mejia-Ruiz should ...


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