decided: February 25, 1976; As Amended May 14, 1976.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
Gibbons, Biggs and Weis, Circuit Judges. Gibbons, Circuit Judge, dissenting.
Cisternas-Estay petitions for review of an order by the Board of Immigration Appeals dismissing an appeal of Cisternas-Estay and his wife, in which it was contended that they were entitled to suspension of deportation under section 243(h) of the Immigration and Nationality Act of 1952, (INA), 8 U.S.C. § 1253(h). Four issues of law present themselves. The first goes to the applicability of the Administrative Procedure Act of 1966, (APA), 5 U.S.C. § 500 et seq., to the review by the Board of a section 242 deportation determination. The second concerns whether the determination that the Cisternas-Estays did not carry their burden under section 243(h) was an abuse of discretion. The third goes to whether the immigration judge and the Board were in error because they did not consider an amendment to regulation 8 CFR § 242.8, "authorizing" them to take into account in section 242 deportation proceedings articles 32 and 33 of the United Nations Convention Relating to the Status of Refugees, 1967 Protocol, Jan. 31, 1967  19 U.S.T. 6223, T.I.A.S. No. 6577. The amendment occurred three months prior to the filing of the immigration judge's opinion. Finally, there is a question whether the couple were granted de facto asylum due to the approximately two and one-half years delay in processing their request for asylum.
Cisternas-Estay and his wife, citizens of Chile, were married within one day of their entry into the United States on a visitor for pleasure visa on March 13, 1971. Their passports indicated they were single persons.*fn1 Cisternas-Estay was authorized to stay approximately five and one-half months; his wife for one and one-half months. In August of 1971, near the end of the stay permitted by his visa, Cisternas-Estay applied for asylum for both.*fn2 This application was denied by the Immigration and Naturalization Service in February of 1974, approximately two and one-half years after it was filed and five months after the fall of the Allende government, which, the Cisternas-Estays argued in their request, would persecute them on their return to Chile.*fn3
The district director of the Service in making this determination relied in part on a letter from the Office of Refugee and Migration Affairs of the Department of State dated on November 26, 1973.*fn4 Commenting on this and three other asylum requests, that letter noted that the Allende government in Chile had been removed from power. The letter argued there was no basis for granting political asylum. The letter closed, "We hope the Service will be sympathetic to individual hardship cases such as those where an American citizen child is involved." The Cisternas-Estays have one child, born in the United States, approximately one month after visa expired and before the request for asylum and the Service's decision.
The basis of the Cisternas-Estays' request for asylum was an unspecified "political problem" with the Allende government. However, a month and one-half after the Service denied the asylum request and sixteen days before the Cisternas-Estay deportation hearing on April 10, 1974, they and their counsel held a press conference, where Cisternas-Estay read a very brief statement attacking the denial of liberties in Chile under the regime succeeding the Allende government. It is this statement that the aliens claim will result in a loss of Chilean citizenship and leave them open to criminal action on return under a junta proclamation forbidding crimes against the "essential interests" of Chile by nationals living abroad. At the hearing Cisternas-Estay introduced secondary material in support of his general claim that the current government in Chile is repressive. There is no evidence as to any manifestation of hostility by this government toward the Cisternas-Estays.
After the hearing, but three months before the filing of the judge's opinion, 8 CFR § 242.8 was amended by the Attorney General, giving the "special inquiry officer," the immigration judge,*fn5 the authority "to consider claims for relief from deportation under Articles 32 and 33 of the Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees. . . ."*fn6 No mention of the articles was made in the immigration judge's opinion, nor in the decision of the Board dismissing appeal. The immigration judge made reference to the letter from the Department of State, which did not treat the articles. The counsel for the Cisternas-Estays did not raise this defense in argument before the Board. Administrative Record, pp. 9-16.
On February 18, 1975 the Board dismissed the appeal from the immigration judge's denial of the request for withholding of deportation. Sitting on the Board was David Milhollan, Esq., and Irving Appleman, Esq., who at the time of argument before the Board, were attorneys in the office of the Service's general counsel. Mr. Appleman disqualified himself.*fn7 Mr. Milhollan helped decide the instant case. There is no showing that he had anything to do with the case when he was with the Service; his affidavit to that effect is attached to the government's brief. Further, he indicates that he did not discuss the case with other members of the Board.
Cisternas-Estay has filed a timely petition for review with this court. We have jurisdiction under section 106 of the INA, 8 U.S.C. § 1105a.
Reaching the APA issue first, we hold that Giambanco v. Immigration and Naturalization Service, 531 F.2d 141 (3d Cir. 1976), filed concurrently with this opinion), controls. There we held that the APA did not apply to Board section 245, 8 U.S.C. § 1255, and section 212(h), 8 U.S.C. § 1182(h), proceedings, involving adjustment of status and waiver of a ground of excludability. The only factor distinguishing the Giambanco case from that of Cisternas-Estay is that Cisternas-Estays' action is under section 243(h)*fn8 and seeks suspension of deportation. However this distinction should not affect the application of the APA.
In Giambanco, we relied upon Marcello v. Bonds, 349 U.S. 302, 99 L. Ed. 1107, 75 S. Ct. 757 (1955), to find that review by the Board of section 245 and 212(h) orders affecting section 242 deportation was an integral part of the section 242 specialized hearing procedures found in Marcello not to be subject to the APA.
All the provisions of the INA relied upon by both Giambanco and Cisternas-Estay, sections 212, 243 and 245 relate to an adjustment of a section 242 determination. The section 242 keystone was drafted with a specialized procedure different from that of the APA, as Marcello tells us. When the Board sits in review of determinations under other INA sections ultimately relating to the correctness of section 242 deportation, it functions as an integral part of these specialized procedures. The Board is the oversight mechanism used by the Attorney General in fulfilling his duty to assure that the hearing requirements of the section are met. We refrain from promulgating a rule that, where an immigration judge, or special inquiry officer, is not accountable to the APA during a section 242 ...