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Gunaydin v. United States Immigration and Naturalization Service

September 4, 1984



Author: Weis

Before: WEIS and BECKER, Circuit Judges, and ACKERMAN, District Judge*fn*


WEIS, Circuit Judge.

In this deportation case, petitioners contend that a lawful entry into the United States nullified an earlier illegal entry without inspection. Their theory is that because their current presence in this country is based on a proper entry, the purposes of inspection have been accomplished and deportation for absence of inspection on an earlier border crossing is excessively harsh. We conclude that the Immigration and Naturalization Act would be thwarted by such an interpretation and accordingly will deny the petition for review.

An Immigration Judge found petitioners to be deportable for entering the United States without inspection in September 1981. The Board of Immigration Appeals dismissed an appeal from that decision.

Petitioners Abdullah Gunaydin and Husnu Kircali are citizens of Turkey and beginning at some time before September 1981, were lawful permanent residents of the United States. On September 7, 1981, two days after having driven to Canada, they reentered the United States without presenting themselves for inspection at the border. According to INS, when petitioners returned to this country, they were accompanied by another Turkish alien who did not have a United States visa. The day following their reentry, petitioners pleaded guilty to the misdemeanor of entering without inspection, 8 U.S.C. § 1325, and were sentenced to ten days in jail.

Orders to show cause were issued against petitioners on September 7, 1981, charging that they were subject to deportation pursuant to 8 U.S.C. § 1251(a)(2). Under that section, an alien is deportable if he "entered the United States without inspection."

On October 29, 1981 on the advice of counsel and before any final action had been taken on the September order, petitioners left the United States and returned the next day, duly submitting to inspection. The were admitted to this country in their status as lawful permanent residents.

INS then issued a second order to show cause, asserting that the October reentry was improper because the September illegal entry had terminated the petitioners' resident status. The Board of Immigration Appeals rejected this legal theory, and the second order to show cause was dismissed. The case was remanded for resolution under the September order to show cause.

At the hearing on the September incident, the aliens asserted that deportability under section 1251(a)(2) could be based only on the last entry into the country. Petitioners argued that since they had undergone inspection in October 1981, they were no longer subject to deportation for the September infraction. The Immigration Judge rejected that contention and ordered petitioners to be deported. The Board dismissed their appeal, citing its decision in Matter of Ruis, Interim Dec. #2923 (BIA September 30, 1983).

In Ruis, the Board concluded that section 1251(a)(2) "relates to any entry made by an alien who fails to submit to inspection. Consequently, [an alien's] deportability for entering without inspection is not prevented by the mere fact he [subsequently] departed and returned. . . ." Id. at 4.

In this court, petitioners challenge the rationale of Ruis, renewing the contention that they may be deported only if on the last entry they did not submit to inspection. They argue that under the Board's view, an alien is forever subject to deportation, a result that is unduly harsh in light of other grounds for deportation listed in the statute. INS contends that Congress intended that every entry without inspection subjects an alien, even one holding the status of permanent resident, to deportation.

The Immigration Act defines "entry" as "any coming of an alien into the United States, from a foreign port or place." 8 U.S.C. § 1101(13). Examination of an entry applicant's qualifications for entry is known as inspection, and the failure to apply for inspection at a time and place designated ...

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