Maria Antonieta Plasencia v. Joseph Sureck, District Director of the Immigration and Naturalization Service

In this appeal we must decide whether the Immigration & Naturalization Service (INS) may determine, at the border, in summary exclusion proceedings, whether a lawfully admitted permanent resident alien may return to the United States after a brief visit abroad. The district court held that the INS could proceed against such an alien only in deportation proceedings. We agree and affirm.

Appellant, Maria Plasencia, is a citizen of El Salvador and since 1970 has been a permanent resident alien in the United States. In 1975, returning from a brief visit to Mexico, she was arrested at the border and charged with attempting to smuggle six aliens into the country. She declined to obtain counsel. The next day exclusion proceedings were commenced at the border and she was ordered excluded from the United States pursuant to INA § 212(a)(31), 8 U.S.C. § 1182 (a)(31), which makes the smuggling of aliens for gain an excludable offense. In those proceedings Plasencia had the burden of proving that she was entitled to enter the country. INA § 291, 8 U.S.C. § 1361 . The Immigration Judge regarded it appropriate in the exclusion proceedings to determine whether Plasencia’s visit to Mexico was “a…

dissenting:

Although I am sympathetic with Plasencia’s plight, the cases that bind us require me to dissent. The law simply does not provide for the full panoply of procedural rights which the majority concludes are required.

If Plaseneia “entered” the United States with an intent to accomplish an object which is contrary to some policy in the immigration laws, the district court must be reversed. The Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449 , 83 S.Ct. 1804 , 10 L.Ed.2d 1000 (1963), held that a resident alien, who has left our country, does not “enter” the United States if he or she did not intend “to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” Id. at 462 , 83 S.Ct. at 1812 . The Court stated that one factor relevant to the determination of that intent “is the purpose of the visit, for if the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would properly be regarded as meaningful.” Id.

Thus, the focus of our attention is whether Plasencia’s purpose in…

637 F.2d 1286 Maria Antonieta PLASENCIA, Petitioner-Appellee, v. Joseph SURECK, District Director of the Immigration and Naturalization Service, Respondent-Appellant. No. 78-2641. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 5, 1980. Decided Nov. 7, 1980. Denis W. Campbell, Los Angeles, Cal., for respondent-appellant. C. William Kircher, Jr., Asst. U. S. Atty., Los Angeles, Cal., for petitioner-appellee. Appeal from the United States District Court for the Central District of California. Before WALLACE and SCHROEDER, Circuit Judges and CORDOVA * , District Judge. SCHROEDER, Circuit Judge: 1 In this appeal we must decide whether the Immigration & Naturalization Service (INS) may determine, at the border, in summary exclusion proceedings, whether a lawfully admitted permanent resident alien may return to the United States after a brief visit abroad. The district court held that the INS could proceed against such an alien only in deportation proceedings. We agree and affirm. 2 Appellant, Maria Plasencia, is a citizen of El Salvador and since 1970 has been a permanent resident alien in the United States. In 1975, returning from a brief visit to Mexico,…