Luis Enrique Cubillos-Gonzalez v. Immigration and Naturalization Service, Los Angeles, California
1965 U.S. App. LEXIS 4203 · 352 F.2d 782
October 26, 1965 · Docket 20057_1
Headnotes
Generated summaries- Headnote 1
The Ninth Circuit applies this standard to ensure deference to the agency’s factual findings unless the adjudication was fundamentally flawed.
- Headnote 2
The petitioner entered the United States on a visitor visa, later applied for adjustment, and the special inquiry officer denied the application citing deceit. The court found substantial evidence of pre‑conceived intent to stay and concluded the denial was not arbitrary.
- Headnote 3
Petitioner claimed abuse of discretion in the denial. The court held that review is limited to whether the record shows substantial evidence and whether the decision was arbitrary, finding no such abuse.
- Headnote 4
The record showed sworn statements indicating the petitioner intended to remain permanently despite claiming a temporary visit, providing substantial evidence of misrepresentation.
- Headnote 5
If an alien’s intent to remain permanently was not pre‑conceived and the alien acted in good faith, adjustment of status may be granted.
The court contrasted the present case with Brownell, where the aliens intended to stay only if permitted and acted in good faith, leading to a grant of adjustment.
- Headnote 6
The special inquiry officer denied the petitioner's application because the petitioner had sworn at the visa interview that he would visit briefly but later admitted he intended to remain permanently.
- Headnote 7
The court held it could not disturb the denial because the record contained substantial evidence and there was no indication that the officer acted capriciously or arbitrarily.
- Headnote 8
The court found substantial evidence in the record that the petitioner had a pre‑conceived intent to remain permanently, satisfying the fraud requirement.
- Headnote 9
The appellate court affirmed the denial because there was no indication of capricious or arbitrary conduct by the officer in applying discretion.
- Headnote 10
The Ninth Circuit affirmed the special inquiry officer’s denial, applying Murillo‑Aguilera and Ocon, and concluded there was no indication the officer acted capriciously, arbitrarily, or abusively.
- Headnote 11
INA §245 (8 U.S.C. §§ 1255(a)‑(b)) authorizes the Attorney General’s discretionary power; the officer denied the petition stating that deceit on the visa‑issuing officer precluded a favorable exercise of discretion.
- Headnote 12
When the record shows the alien had a pre‑conceived intent to remain permanently at the time of entry, denial of adjustment is upheld; a finding of good‑faith intent is required for a favorable discretionary decision.
The record contained substantial evidence that the petitioner harbored preconceived intent to remain permanently, distinguishing the case from Brownell, where aliens acted in good faith and were granted adjustment.
- Headnote 13
The appellate court affirmed the special inquiry officer’s denial because the record contained substantial evidence of fraud and there was no indication the officer acted capriciously or arbitrarily.
Opinion
Here, we are concerned with a Petition for Review of a final order of deportation. The Petitioner, a native citizen of Colombia, gained entry to the United States under the authority of a nonimmigrant visa. The authorized visitation period expired and was extended until May 10, 1963. Forty-five days thereafter, the alien filed an application in which he requested that his status of nonimmigrant visitor be changed to that of permanent resident. Immigration and Nationality Act, § 245, 8 U.S.C. § 1255. The application was denied, the special inquiry officer presenting his reason as follows:
“At the time you applied for a visitor’s visa at the American Embassy in Bogata, Colombia, in September of 1962, you presented a sworn statement to the visa-issuing officer that you intended to visit the United States for thirty days and return to Colombia (R. 92, 104, 105). On September 3, 1963, you made a sworn statement to an officer of this Service in which you admitted that at the time you secured the visa, you actually intended to remain permanently in the United States (R. 98).
“In view of the deceit practiced upon the visa-issuing officer, favorable exercise of discretion by the Attorney General is not warranted in your case, and your application is denied * * * ”
The Petitioner vigorously urges that there was an abuse of discretion in the denial of his application. We do not agree. The record contains substantial evidence from which it can reasonably be inferred that at the time of his entry into this country, the Petitioner harbored the preconceived intent to remain permanently. We cannot disturb the finding unless we can see that the hearing officer acted capriciously, arbitrarily, or abusively in the exercise of his discretion. Murillo-Aguilera v. Rosenberg, 351 F.2d 289 (9th Cir. 1965); Ocon v. Guercio, 237 F.2d 177 (9th Cir. 1956). Here, there is nothing to indicate such misapplication of quasi-judicial duty.
Petitioner strongly relies upon Brownell v. Stejepan Bozo Carija, 102 U.S. App.D.C. 379, 254 F.2d 78 (1957). There, the court affirmed, with some modification, the granting of an application for change of status, but the facts in that case are dissimilar from those which are controlling here. There, it was found that the aliens intended to remain in the United States beyond the permitted period only if they might lawfully do so. Also, there was much evidence that they, honoring their commitments for limited visitation, had sought entry into several other countries. The facts had been found in favor of the aliens, and the D. C. Circuit, applying the same restrictive principles which we must apply in the review of factual determination, upheld the findings. In Stejepan Bozo Carija, the aliens acted in good faith, whereas the Petitioner in this case has been found, upon substantial evidence, not to have done so.
Affirmed.