decided: February 25, 1976; As Amended April 14, May 14, June 11, 1976 .
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
Gibbons, Biggs and Weis, Circuit Judges. Gibbons, Circuit Judge (dissenting).
This is a petition for review of an order from the Board of Immigration Appeal's refusal to overturn an immigration judge's denial of Giambanco's petition for adjustment of status and waiver of a ground of excludability under the Immigration and Nationality Act of 1952. Giambanco bases his claim on his marriage to a United States citizen and requests permanent resident status on the strength of his wife's relative-immigrant visa petition. In addition, Giambanco has filed a motion of remand in this court to allow the Board of Immigration Appeals to consider the birth of a citizen child to Giambanco and his citizen wife subsequent to the Board's finding. This Court has jurisdiction under 8 U.S.C. § 1105a.
Giambanco, an Italian citizen, entered this country on November 11, 1969, under a visitor for pleasure visa. He was authorized to stay until November 1, 1970. He overstayed and on April 26, 1971, admitted deportability before a special inquiry officer. He was given a month within which to voluntarily depart. Giambanco failed to depart by that time and on May 20, 1971, entered into a marriage with a United States citizen that was subsequently found to be designed to defraud the United States to obtain a permanent residence visa, 18 U.S.C. § 371. As a result of the fraud conviction, Giambanco received a suspended sentence and two years probation. Sentencing took place on February 12, 1974. At that time the trial judge recommended, pursuant to section 241(b)(2), 8 U.S.C. § 1251(b)(2), of the Immigration and Nationality Act of 1952 (INA) and 8 CFR § 241, that Giambanco's conviction not be the cause of deportation under section 241(a)(4), 8 U.S.C. § 1251(a)(4).
His first marriage ended on August 20, 1973, and, after approximately two weeks, Giambanco married the daughter of one of his co-conspirators in the fraud. On the basis of his wife's citizenship, Giambanco petitioned to reopen his deportation hearing. He sought an adjustment of status to that of a permanent resident under INA section 245, 8 U.S.C. § 1255, and waiver of a ground of excludability under INA section 212(h), 8 U.S.C. § 1182(h), controlling 8 U.S.C. § 1182(a)(9), which provides for exclusion of aliens who have been convicted of certain crimes of moral turpitude. The hearing was reopened and the immigration judge denied the adjustment. Giambanco's timely petition for review to the Board of Immigration Appeals was dismissed on April 8, 1975. Subsequent to the filing of this appeal, Giambanco made a motion to remand on the basis of the birth to him and his citizen wife of a child. The government has responded by submitting a brief in opposition. This court has dispensed with oral argument proceeding under our Rule 12(6)(a).
This action presents two questions of law. First, does the Administrative Procedure Act of 1966 (APA), 5 U.S.C. § 500 et seq., preclude from sitting as a member of the Board an attorney, who was employed by the Service's general counsel at the time of the case's oral argument before the Board, but was in nowise involved with the case? Second, does the trial judge's recommendation under INA section 241(b)(2) that Giambanco not be deported because of his fraud conviction prevent discretionary consideration of the conviction by the Board in an adjustment of status proceeding under INA section 245?
Giambanco argues that the presence of the two former attorneys in the office of the Immigration Service's General Counsel, Irving Appleman, Esq., and David Milhollan, Esq., on the Board violated his right to due process of law under the Fifth Amendment. Further, in his reply brief, Giambanco raises for the first time, a possible violation of section 5 of the APA, 5 U.S.C. § 554(d). It is undisputed that Appleman at the time of oral argument was the supervisor of the attorney who argued the case, Paul Vincent, Esq. At the very least, Giambanco contends there is an appearance of conflict of interest.
In response, the government has filed with its brief affidavits from Appleman, Milhollan and Vincent. Both Appleman and Milhollan aver that they had no connection with the case prior to becoming Board members and that they were not influenced by Vincent's involvement in the case. Milhollan goes further and states that there was no discussion of the case in conference after he became a member of the Board. Presumably, he and Appleman voted solely on the basis of the record. There is no indication whether they listened to a recording of or read the oral argument after becoming members of the Board. The Board's vote on the Giambanco dismissal was unanimous.
The issue is presented whether the APA's section 5 requirement of separation of adjudicative and prosecutorial functions, 5 U.S.C. § 554(d), applies to a proceeding to consider a petition to adjust status under section 245 of the INA, 8 U.S.C. § 1255, and to waive a ground of excludability under section 212(h), 8 U.S.C. § 1182(h). Under the former provision the Attorney General has the discretion to grant an alien permanent resident status if certain statutory conditions are met. Under the latter the Attorney General may waive exclusion of those with certain criminal backgrounds or with citizen children, on a proper showing.
Various discretionary authorities of the Attorney General under the INA have been found limited by the requirements of the APA.*fn1 Here, the Board of Immigration Appeals declined to overturn the immigration judge's refusal to revoke Giambanco's deportation order. Under Marcello v. Bonds, 349 U.S. 302, 99 L. Ed. 1107, 75 S. Ct. 757 (1955), the hearing procedures of the immigration judge are not subject to the APA. The question here is whether the Board, which sits in review of these determinations and is established at the discretion of the Attorney General, 8 U.S.C. § 1252(b), is also exempt from APA requirements. We think it is, for it would be anomalous to find that the initial immigration hearing was exempt, only to say that the review of such hearing was not exempt. To so hold would interject needless complexity into what is designed to be a discretionary process*fn2 and require different standards for separation of adjudicative and prosecutorial functions for the immigration judges and the Board members.*fn3
Complexity problems aside, this result is compelled by the language of section 242 itself. The Board has been established at the Attorney General's discretion to implement the statutory requirements of deportation and exclusion under the INA. Subsection (b)(4) requires that the Attorney General assure by regulation that all deportations be made on grounds of "reasonable substantial and probative evidence". The Attorney General is to see under subsection (c) that deportation is carried out in a proper manner after the final order "under administrative processes is made." On these matters the Attorney General's determinations are to be administratively final.*fn4
To carry out these section 242 duties, as well as his exclusion obligations, the Attorney General has established the Board under 8 CFR § 3.1. In reviewing the findings of the immigration judge, the Board acts as the Attorney General's surrogate to insure that the rights and privileges of the alien are protected and that deportation is undertaken only on the basis of sufficient evidence. The Board has been made by the Attorney General a central part of his implementation of section 242. Thus the exclusive procedure language of section 242 should apply to exempt the Board from the APA under Marcello. When the Board is asked to adjust a hearing determination under section 245 or waive a ground of excludability under section 212(h), it is acting as an integral part of the exempt section 242 procedure. The Board was in existence at the time of the passage of the INA and there is no indication that it was not intended by Congress to operate in conjunction with the exempt specialized hearing procedures of section 242.*fn5 To find the Board non-exempt would be to hypothesize a disjointed congressional intent that makes no appearance in the legislative history of the 1952 Act.*fn6
Accordingly, we hold that the APA has no relevance to Board review of dismissals of the section 245 ...