UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
argued: October 17, 1977.
MARTINEZ DE MENDOZA, YOLANDA AND MENDOZA, YOLANDA CARMEN, PETITIONERS,
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
ON APPEAL FROM THE BOARD OF IMMIGRATION APPEALS.
Adams and Garth, Circuit Judges, and Layton, District Judge.*fn*
Author: Per Curiam
Opinion OF THE COURT
In this case, a Colombian citizen, who entered the United States illegally, and her American daughter ask us to review an order entered by the Immigration and Naturalization Service (INS) that the mother be deported. They base their challenge on the ground that deportation would expose both mother and daughter to mortal peril. We remand the case for reconsideration by the INS in light of newly available evidence indicating that the mother and daughter may be endangered if the deportation order remains firm.
Yolanda Martinez de Mendoza, the alien petitioner in this case, first entered the United States in July, 1969, when she was admitted on a tourist visa. After overstaying that visa, she was required to depart in April, 1970. In June, 1970, Ms. Martinez de Mendoza re-entered the United States using a new Colombian passport and a new visa. She returned to Colombia in February, 1974 to visit her family. Petitioner's most recent entry into the United States, in March of 1974, was secured by use of an illegally obtained American passport. She was thus admitted without inspection, in violation of 8 U.S.C. § 1251(a)(2) (1970), making her subject to deportation.
Yolanda Carmen Mendoza, also a petitioner in this action,*fn1 is the seven-year-old daughter of Ms. Martinez de Mendoza and Fernando Mendoza. Yolanda Carmen was born during her mother's second sojourn in the United States, and is therefore a United States citizen.
On November 28, 1975, a hearing was held before an immigration judge pursuant to an effort by the INS to deport Ms. Martinez de Mendoza. Ms. Martinez de Mendoza did not contest the assertion that she had entered the country illegally and that she was therefore subject to deportation. Rather, the mother requested the privilege of departing voluntarily in order to increase her chances of readmission. Her request was denied in an oral opinion, and a deportation order was entered.
The Board of Immigration Appeals dismissed the mother's appeal on July 21, 1976 with a very brief per curiam opinion that summarily affirmed the order below. In its opinion, the Appeals Board made no mention of any potential danger to the mother or to her daughter or of the fact that Ms. Martinez de Mendoza had cooperated with INS officials in an investigation of the source of her illegal passport.*fn2
Before deportation, Ms. Martinez de Mendoza filed a petition with the INS District Director, dated November 4, 1976, requesting a stay of deportation. The petition was accompanied by affidavits stating that Fernando Mendoza, the husband of the petitioner-mother and the father of petitioner-daughter had been returned to Colombia in August of 1976.*fn3 This fact was significant, the affidavits alleged, because Mr. Mendoza had on several previous occasions assaulted Ms. Martinez de Mendoza, twice causing injuries that were sufficiently serious to result in hospitalization and, prior to his return to Colombia, he had been serving a jail term for shooting two men who had sought to prevent him from attacking the mother and daughter. The affidavits asserted that Fernando Mendoza had threatened the lives of his wife and daughter, and that if Ms. Martinez de Mendoza were deported to Colombia, she and her daughter, who would perforce accompany her, would be placed in mortal danger from Mr. Mendoza's assaults.
Without mentioning the allegations of danger to either Ms. Martinez de Mendoza or her American citizen daughter, the District Director denied, by a letter dated November 6, 1976 the petition for stay.*fn4 On November 9, 1976 the present petition was filed challenging the order of deportation.
Before this Court, therefore, is an administrative record containing uncontradicted affidavits alleging that deportation of Ms. Martinez de Mendoza would endanger both her safety and the safety of her American daughter. Yet the record lacks any reasoned evaluation by the INS regarding this alleged threat.
At oral argument, counsel for the government urged that this Court has no jurisdiction to grant relief on the basis of the alleged danger. As authority for that proposition, the government pointed to Cheng Fan Kwok v. INS, 392 U.S. 206, 20 L. Ed. 2d 1037, 88 S. Ct. 1970 (1968). In that case, Cheng Fan Kwok, after having been ordered to depart the U.S. voluntarily, was denied a stay of deportation by the District Director of INS. Cheng Fan Kwok attempted to challenge the denial of the stay in the Court of Appeals in a proceeding brought under 8 U.S.C. § 1105a. The Supreme Court held that the Court of Appeals had no jurisdiction over the claim that the INS had erred in denying the stay, since it involved neither a challenge to a "final order of deportation" nor an order "entered in the course of administrative proceedings conducted under § 242(b) [of the Immigration and Naturalization Act]." 392 U.S. at 212.
In our judgment, Cheng Fan Kwok does not bar relief in this case. Unlike the situation before the Supreme Court, there is no question but that this Court has jurisdiction over the case before us. Jurisdiction over the challenge by the petitioner to the order deporting her is expressly vested in this Court by 8 U.S.C. § 1105a (1970) as an appeal from a "final order of deportation." The Court's jurisdiction over Ms. Martinez de Mendoza's appeal from the order of deportation may well vest in us ancillary or pendent jurisdiction to review the refusal of the District Director to grant a stay.*fn5 And if our review reached the District Director's order, we would entertain grave doubts about the failure of the District Director to articulate reasons for the summary dismissal of a petition for a stay founded on an alleged threat to the life of an American citizen.*fn6
We need not reach these questions, however, since § 1105a, itself, gives us power to dispose of the case before us by treating this appeal as an application under 28 U.S.C. § 2347 for leave to adduce additional evidence.*fn7 § 2347(c) provides:
If a party to a proceeding to review applies to the court of appeals in which the proceeding is pending for leave to adduce additional evidence, and shows to the satisfaction of the court that -
(1) the additional evidence is material; and
(2) there were reasonable grounds for failure to adduce the evidence before the agency;
the court may order the additional evidence and any counterevidence the opposite party desires to offer to be taken by the agency.
The evidence that deportation will put both mother and daughter in danger of assault and possible homicide is "material" to the decision to deport Ms. Martinez de Mendoza.*fn8 Since the "evidence" proffered here regarding the release of Mr. Mendoza and his return to Colombia did not become available until after the Board of Appeals rendered its decision, reasonable grounds exist for not bringing that information to the attention of the Board of Immigration Appeals.*fn9
We therefore conclude that the case should be remanded to the INS to receive evidence concerning the threats to the life and safety of Ms. Martinez de Mendoza and her daughter, as well as any other evidence which the INS desires to offer pursuant to 28 U.S.C. § 2347. The order of deportation will be stayed pending receipt by this Court of the Board's findings, conclusions, and any modifications it may make.