ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
McLaughlin, Van Dusen and Adams, Circuit Judges. Van Dusen, Circuit Judge, concurring. Adams, Circuit Judge, concurring.
McLAUGHLIN, Circuit Judge.
The United States Immigration and Naturalization Service has been endeavoring for the last fourteen years (since December 16, 1957) to deport this alien petitioner. During that whole period the Service has met with time consuming maneuvers that up to now have resulted in Bufalino continuing his illegal stay in the United States. For the past ten years his present attorney has been in charge of the tactics which have held petitioner in this country despite the fact that he deliberately and falsely asserted United States citizenship. In passing we note that Bufalino was definitely present November 14, 1957, at the notorious Appalachian, New York gangland convention. He was arrested at that time in connection with his attendance at that meeting. However, the Service hearing officer said that the record did not establish that Bufalino was a mobster. The officer noted that his deportation decision was the result of Bufalino's failure to establish good moral character, his lying under oath regarding his birthplace and other false testimony and his two fraudulent entries into the United States in 1956. Bufalino through his lawyer, the same one as in this litigation, brought an action for review of the deportation order in the District Court of the Eastern District of Pennsylvania. That court granted summary judgment to the Service. This Court affirmed that ruling. Certiorari to the United States Supreme Court was denied. Four days after that Bufalino's lawyer requested that Bufalino's deportation be stayed because he would be persecuted if he was deported to Italy. That application was denied, so petitioner and his attorney went down to the District of Columbia and came up with the proposition that said deportation had been prejudged by the United States District Court for the Eastern District of Pennsylvania. The District Court turned the matter over to the Administrative Authority. Bufalino also sought the Board's reconsideration of the deportation order. Permanent residence for petitioner was denied as was Bufalino's second attempt not to be deported to Italy. In 1965 in the District of Columbia, he and his lawyer again tried out the contention that petitioner's claim had been prejudged. The Court of Appeals there sustained the position of the Service and dismissed the proceedings. After that this Court was faced with another attack from Bufalino by the same attorney in 1967, alleging "illegal wiretapping." That attorney refused to make identification of the tapes. His motion to enlarge the hearing was denied.
Our consideration of the present petition in this matter is limited by 8 U.S.C. § 1105a(a)(1) concerning timeliness, to the Board of Immigration Appeals order dated June 5, 1967 and its supplemental order of October 7, 1971. Our sole question for determination as to said order and its supplement is whether the order's issuance was an abuse of discertion by the Board. Lopez v. Immigration and Naturalization Service, 356 F.2d 986 (3 Cir. 1966), cert. den. 385 U.S. 839, 17 L. Ed. 2d 73, 87 S. Ct. 88. See also Espinosa v. Immigration and Naturalization Service, 404 F.2d 544 (9 Cir. 1968); Gena v. Immigration and Naturalization Service, 424 F.2d 227 (5 Cir. 1970). Rosa v. Immigration and Naturalization Service, 440 F.2d 100 (1 Cir. 1971).
The June 5, 1967 order denied petitioner's motion to reopen, reconsider, and then terminate the deportation proceedings. Such an order comes within 8 U.S.C. § 1105a(a) as a "final order of deportation," Giova v. Rosenberg, 379 U.S. 18, 13 L. Ed. 2d 90, 85 S. Ct. 156 (1964), and since petition for review was timely filed on June 26, 1967, this court has jurisdiction. Petitioner relies substantially on the applicability of three cases decided after the deportation decision. He asserts that these necessitate reconsideration of his deportability. He urges that in the light of Rosenberg v. Fleuti, 374 U.S. 449, 10 L. Ed. 2d 1000, 83 S. Ct. 1804 (1963), Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 17 L. Ed. 2d 362, 87 S. Ct. 483 (1966) and Immigration and Naturalization Service v. Errico, 385 U.S. 214, 17 L. Ed. 2d 318, 87 S. Ct. 473 (1966) such decision would be an abuse of discretion. Actually, based on the pertinent law, including the above noted opinions, said conclusion is not only proper but it soundly called for the end of this spurious litigation and for the prompt deportation of petitioner.
The latter has failed to file address reports each year in accordance with 8 U.S.C. § 1305, thus making him deportable under 8 U.S.C. § 1251(a)(5). Woodby demands that evidence as to deportability must be "clear, unequivocal and convincing." In this instance, the Service has definitely shown that the required address reports have not been made. Under 8 U.S.C. § 1251(a)(5) it is petitioner's burden to show that "such failure was reasonably excusable or was not willful," in order to avoid deportation. Petitioner's testimony as to his good faith in this regard was not only inconsistent but designedly untruthful. The finding of the inquiry officer and the Board that petitioner had not met his burden of showing excusability and nonwillfulness was obviously no abuse of discretion. He had wittingly violated the address filing requirements and made himself subject to deportation.
Petitioner also questions the Board's ruling that his return to this country following trips to Bimini and Cuba constituted an entry within the meaning of 8 U.S.C. § 1101(a)(13). On his return, petitioner knowingly made a false claim of United States citizenship, thereby avoiding inspection as an alien. Fleuti held that permanent resident aliens should be deemed to have made an entry only if their departure could be construed as one "meaningfully interruptive of the alien's permanent residence." 374 U.S. at 462. The language there implied that a resident alien's innocent excursion outside of this country was not intended as a departure disruptive of his resident alien status. That standard has recently been interpreted by the Board in a decision re aliens and citizenship, 41 L.W. 2267 (11/21/72). It holds that there are numerous factors to be considered to determine "innocent, casual, and brief excursion" and that a manifested intent to abandon permanent residency in the United States is merely one factor, and not the decisive factor, in such a consideration. A false claim of citizenship obviously frustrates a major policy of our immigration law which is the inspection of aliens. This petitioner not only brazenly pretended to be a United States citizen but used that lying assertion to leave and return to the United States on at least three occasions without being inspected as the alien he was and is. In Zimmerman v. Lehmann, 339 F.2d 943 (7 Cir. 1965), cert. den. 381 U.S. 925, 14 L. Ed. 2d 683, 85 S. Ct. 1559, on which petitioner relies, the claim of United States citizenship, though false, was not knowingly so and was thus held to be "innocent" under Fleuti. There is no honest basis in this litigation for asserting that a conscious misrepresentation of United States citizenship as Bufalino presented here, for the purpose of avoiding inspection, would be an innocent excursion calling for application of the Fleuti leniency standard. To the contrary, it would be a total miscarriage of justice to reopen the proceeding on that theory. There is nothing in this fourteen years of litigation that would warrant the claim that the Board's decision concerning this fraudulent entry was an abuse of discretion.
Finally, petitioner urges that even if this were held to be an entry, that 8 U.S.C. § 1251(f) as interpreted in Errico excuses deportability based on these same grounds. In line with the statutory language of 1251(f) and a proviso to the regulations which the Board followed (8 C.F.R. 242.7(a)), it plainly appears that a waiver of the fraud and the quantitative documentary grounds alone, have no effect if the alien is "otherwise inadmissible" on a qualitative ground. Jolley v. Immigration and Naturalization Service, 441 F.2d 1245 (5 Cir. 1971), cert. den. 404 U.S. 946, 30 L. Ed. 2d 262, 92 S. Ct. 302 (draft evasion); Gambino v. Immigration and Naturalization Service, 419 F.2d 1355 (2 Cir. 1970), cert. den. 399 U.S. 905, 26 L. Ed. 2d 559, 90 S. Ct. 2195 (entry as stowaway). In situations involving "otherwise inadmissible," there is nothing in Errico to justify the waiver of the documentary requirements for entry as petitioner seeks here. Matter of K, 9 I. & N. Dec. 585 (B.I.A. 1962). This court in Bufalino v. Holland, 277 F.2d 270 (3 Cir. 1960), cert. den. 364 U.S. 863, 5 L. Ed. 2d 85, 81 S. Ct. 103, held that under 8 U.S.C. § 1251(a)(5), petitioner was "otherwise inadmissible" at the time of the entry in question. 277 F.2d at 278. Errico dealt with a problem where the fraudulent citizenship representations were made to circumvent quota restrictions and not to destroy the primary purpose of the regulation, which was to force alien inspection (as in the instant matter). In Errico, neither of the aliens was subject to deportation on anything other than the entry charge. That court had no reason to consider the effect of the regulation previously discussed. The issue before us is completely distinguished from Errico. It offers no sound reason for reopening or reconsidering the order of the Immigration and Naturalization Service.
The final item for us to consider is whether the supplemental order of April 28, 1971, which resulted from the evidentiary hearing before a special inquiry officer, was an abuse of discretion. This depends on whether the supplemental administrative proceedings concerning the government's evidence were in accordance with this court's order of February 20, 1969, and whether the Board had correctly concluded that no evidence obtained by illegal electronic surveillance had tainted that evidence relied on in the determination of the question of deportability. There is no real question before us of whether petitioner was entitled to discretionary relief since the Board afforded him every opportunity to show taint in the record, and he failed to do so. In the hearing before the special inquiry officer, the prosecuting attorney and his principal investigator stated that they had no knowledge whatsoever of wiretapping in the cause and that there was none to the best of their knowledge. It is very clear that in order for evidence to have an effect on the government theory, the prosecutor must have knowledge of it so that he could use it in establishing his position. The inquiry officer passed upon all the material presented by the trial attorney and found that the latter had not utilized F.B.I. information for anything of substance in the litigation. He also concluded that there was no tainted information contained in the record of the 1969 proceedings. There was an affidavit in evidence of B. Franklin Taylor, an official of the Department of Justice, which stated that logs and other information turned over to Bufalino contained the only conversations in which he had participated, or which had occurred on his premises, monitored by the United States. Bufalino, during the course of the hearing, refused to designate any portion of the 1964 proceeding which he said had been tainted. These factors point sharply to the frivolous nature of the delaying tactic on behalf of petitioner which has been spread over these proceedings since their inception. The present contention for petitioner is founded upon a Detroit police tapping of the telephone of one William Bufalino, an attorney who is a relative of petitioner. Re-examining the affidavits of petitioner's named attorney and his investigator produces nothing that might possibly have been overheard which could have been used to the disadvantage of petitioner.
In light of this and the contemptuous delaying procedures of petitioner throughout the past fourteen years, it is plainly unnecessary to authorize further supplemental administrative evidentiary proceedings on the issue of whether evidence relied on in the deportation proceeding resulted from the F.B.I. monitoring. While the established policy of the Department of Justice is to make disclosure to the courts of electronically monitored conversations of defendants in pending litigation, there is in this instance no possible purpose to such proposed course other than do whatever could be done to mess up petitioner's deportation once more. Proper care was taken to make certain that no illegally tainted wiretap evidence was used.
The Board's orders of June 5, 1967 and October 7, 1971 are affirmed; the statutory stay of deportation is vacated and the petition for review is dismissed.
VAN DUSEN, Circuit Judge, concurring.
I concur in the result reached in the foregoing opinion, but wish to add this statement concerning petitioner's claim of improper electronic surveillance. Petitioner contends that his telephone conversations were monitored by various agencies of the Federal and State Government and that either evidence secured from that surveillance or the fruits derived from that evidence were utilized in connection with ...