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Cruz v. U.S. Immigration and Naturalization Service

filed*fn*: December 16, 1991.

RODOLFO BERNABE DE LA CRUZ, PETITIONER,
v.
U.S. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition to Review a Decision of the Immigration and Naturalization Service. INS No. A27-157-924.

Before: James R. Browning, Arthur L. Alarcon and Thomas G. Nelson, Circuit Judges.

Author: Per Curiam

Per Curiam:

Bernabe de la Cruz appeals from the decision of the Board of Immigration Appeals (BIA) affirming the Immigration Judge (IJ) who found de la Cruz to be a deportable alien pursuant to 8 U.S.C. § 1251(a)(4) (1988).*fn1 Petitioner argues that the BIA should not have affirmed the IJ because: (1) the IJ abused his discretion in failing to grant a continuance of the deportation hearing; (2) the IJ erred in admitting a copy of de la Cruz's criminal record without allowing petitioner's counsel an opportunity to examine de la Cruz's public defender to ascertain whether de la Cruz understood the deportation consequences of his guilty plea; and (3) the IJ abused his discretion in failing to find de la Cruz eligible for voluntary departure pursuant to 8 U.S.C. § 1254(e). We affirm.

De la Cruz entered the United States in February 1981 without a visa. He was convicted of burglary in the first degree on July 9, 1985 in state court in California and was sentenced to two years in prison. At the conclusion of his sentence, he was turned over to the INS. On June 27, 1986, the INS issued an Order to Show Cause why de la Cruz should not be deported, charging him with being a deportable alien pursuant to 8 U.S.C. § 1251(a)(4) for having been convicted of a crime of moral turpitude within five years of entry and sentenced to prison for one year or more.

On January 29, 1987, de la Cruz was notified that he was scheduled for a deportation hearing on February 11, 1987. The notice informed de la Cruz's counsel that de la Cruz's case was scheduled for a "master calendar hearing," that de la Cruz would be expected to plead to the allegations in the charging document, and that all applications and motions for relief should be submitted at that time.

At the deportation hearing, counsel for de la Cruz sought a continuance because he was not aware that he would have to present his case on that day. The judge noted that counsel had represented de la Cruz in this matter for nine months and that, in any event, if the government was able to prove its case, de la Cruz would be statutorily ineligible for voluntary departure. On these grounds, the motion for a continuance was denied.

De la Cruz denied that he was deportable under § 1251(a)(4). In response, the government submitted a copy of de la Cruz's criminal record. De la Cruz's attorney objected, arguing that he had not had an opportunity to cross-examine de la Cruz's public defender with regard to de la Cruz's knowledge of the deportation consequences of his guilty plea. De la Cruz then testified that he did not know of the deportation consequences of his guilty plea at the time he entered it.

Counsel for de la Cruz indicated that he was seeking voluntary departure for de la Cruz pursuant to 8 U.S.C. § 1254(e).*fn2 The immigration judge found that de la Cruz was deportable under section 1251(a)(4) and was not eligible for voluntary departure, because he could not demonstrate that he was a person of "good moral character." The judge referred to 8 U.S.C. § 1101(f)(7) which states

no person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was - one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more . . . .

The judge also found de la Cruz statutorily ineligible for voluntary departure under 8 U.S.C. § 1101(f)(6), which states that no person shall be found to be of good moral character if they have "given false testimony for the purpose of obtaining any benefits under this chapter." The judge found that de la Cruz had violated this section by denying that he was informed of the deportation consequences of his guilty plea because he initialed the box on his conviction record indicating that he was aware of such deportation consequences. The judge further mentioned that he would deny voluntary departure as a matter of discretion on this ground.

De la Cruz appealed to the BIA, which affirmed the immigration judge on February 2, 1990. The BIA did not affirm the IJ's discretionary refusal to grant voluntary departure, only his finding that de la Cruz was statutorily ineligible. De la Cruz appeals.

We review determinations of the BIA involving questions of law de novo. Rodriguez-Rivera v. I.N.S., 848 F.2d 998, 1001 (9th Cir. 1988). Our review is confined to the bases upon which the BIA relied. Martinez-Zelaya v. I.N.S., 841 F.2d 294, 296 (9th Cir. 1988).

[1] Although de la Cruz makes three separate arguments on appeal, all are premised on one factual allegation - that de la Cruz did not understand the deportation consequences of his guilty plea in state court. De la Cruz's argument is essentially that he was denied effective assistance of counsel in his state court criminal trial because he was not advised of the deportation consequences of pleading guilty to burglary (that burglary is classified as a crime of moral turpitude for purposes ...


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