United States ex rel. Martin-Gardoqui v. Esperdy
United States ex rel. Martin-Gardoqui v. Esperdy
Opinion of the Court
This is an appeal from an August 12, 1966 order of Judge Herlands in the Southern District of New York, dismissing relator’s writ of habeas corpus. We find no error and affirm the judgment.
Relator, a forty-three year old male alien, is a native and citizen of Spain. He most recently entered the United States on or about November 1953. He is married to a United States citizen and has five citizen minor children. On October 9, 1959 he was convicted in New York State of robbery in the first degree, and on November 25, 1959 was sentenced to prison for a term of not less than ten, nor more than twenty, years. On May 11, 1966 relator was paroled to the Immigration Service for deportation proceedings.
Relator seeks relief under 8 U.S.C. § 1254(a) (1) which allows the Attorney General, in his discretion, to suspend deportation if, among other matters, the alien has been physically present in the United States for seven years and is of good moral character. Appellant was in the United States more than seven years, but by 8 U.S.C. § 1101(f) (7) his confinement for more than 180 days precluded any finding of good moral character. Thus, there was no room for an exercise of discretion by the Attorney General. Hence, relator’s arguments about abuse of discretion are irrelevant to the claim for suspension of deportation under § 1254.
Appellant also relies on 8 U.S.C. § 1255. This provision allows for an adjustment of status from that of an alien to that of a permanent resident if the alien is eligible to receive a visa and is admissible to the United States as a permanent resident. Appellant is ex-cludable because of his crime involving moral turpitude. However, by 8 U.S.C. § 1182(h) the Attorney General may waive that ground. In this case, appellant’s petition was denied. In the light of his felony conviction for a particularly serious crime of violence, we cannot say that such denial constituted an abuse of discretion. Cf. Wong Wing Hang v. Immigration and Naturalization Service (Esperdy), 360 F.2d 715 (2d Cir. 1966). Here consideration was given to the
The judgment dismissing the writ of habeas corpus is affirmed.
Reference
- Full Case Name
- UNITED STATES of America ex rel. Jose Ignacio MARTIN-GARDOQUI, Relator-Appellant v. P. A. ESPERDY, District Director of Immigration and Naturalization of the United States of the New York District or such other person, if any, as may have the said Jose Ignacio Martin-Gardoqui in custody
- Cited By
- 1 case
- Status
- Published