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Mueller v. United States Immigration and Naturalization Service

filed*fn*: February 22, 1993.

KURT WOLFGANG MUELLER, PETITIONER,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition to Review an Order Of the Board of Immigration Appeals. INS No. A11-813-358

Before: Goodwin, Schroeder, and Canby, Circuit Judges.

MEMORANDUM

Kurt W. Mueller, a native and citizen of Germany, petitions for review of the Board of Immigration Appeals' ("BIA") summary dismissal of his appeal for failure to specify adequately the grounds for his appeal pursuant to 8 C.F.R. § 3.1(d)(1-a)(i). We have jurisdiction pursuant to 8 U.S.C. § 1105a(a), and we grant the petition for review.

I

Background

Mueller entered the United States as a legal permanent resident on May 19, 1959. On November 13, 1985, Mueller was issued an order to show cause why he should not be deported pursuant to section 241(a)(4) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1251(a)(4), as an alien convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.*fn1

At his deportation hearing on March 27, October 10, October 21, and December 5, 1986, Mueller, represented by counsel, denied deportability and applied for a waiver of deportability under section 212(c) of the Act, 8 U.S.C. § 1182(c).*fn2

Nevertheless, on February 6, 1987, the immigration Judge ("IJ") found that Mueller was deportable based upon his criminal convictions, held invalid the Judicial Recommendation against Deportation ("JRAD") issued in connection with Mueller's 1978 conviction, denied Mueller's request for section 212(c) relief, and ordered Mueller deported to Germany.

Through counsel, Mueller filed a timely notice of appeal with the BIA. Mueller's stated grounds for appeal were:

(a) Immigration Judge (IJ) erred by finding that had more than one deportable moral turpitude conviction:

(1) IJ made an erroneous Conclusion of law by rejecting JRAD for 1978 grand theft conviction in that he failed to allow re-confirmed JRAD per Cerujo v. INS, 570 F.2d 1323 (7th Cir. 1978).

(2) IJ made an erroneous factual and legal Conclusion in finding that [Mueller's] two 1985 grand theft charges did not [arise out] of a common scheme of criminal misconduct.

(b) IJ abused his discretion in denying [Mueller] relief under INA [Section] 212(c).

(c) IJ abused his discretion and made erroneous Conclusions of law in denying [Mueller's] request for a continuance to complete probation and to seek expungement of any remaining moral turpitude convictions, as provided by ...


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