Interim Decision #2539 

MATTER OF WIELENDEZ 

In Deportation proceedings 

A-20852165 

A-20852166 

Decided by Board October 20, 1976 

Respondents, the alien parents of a United states citizen child, have no constitutional 

right to remain in the United States in violation of the immigration laws merely because 

of the existence of the citizen child. Notwithstanding the instant case falls within the 

ambit of Acosta v. Gaffney, 413 F. Supp. 827 (D. N.J., 1976), and arises within the 

jurisdiction of that District Court, the Acosta ruling (holding unconstitutional the 

deportation of parents of a United States citizen minor child) is not binding in the 

instant case because that ruling, which is presently pending before the United States 

Court of Appeals for the Third Circuit, has mot become final. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) [8 U.S. C. 1251 (a)(2)1—Nonimmigrant visitor tor 

business—remained longer (male respondent) 

Nonimmigrant visitor for pleasure—remained longer (female 

respondent) 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Franklin S. Abrams, Esquire Farel Bond 

Abrams & Abrams Trial Attorney 

One Penn Plaza 

New York, New York 10001 

This is an appeal from an immigration judge's decision dated June 18, 

1976, denying the respondents' motion to reopen the proceeding. The 

appeal will be dismissed 

The respondents, natives and citizens of Colombia, were married in 

their native country in December 1972, and entered the United States 

separately, the husband in January 1973 and the wife in January 1974. 

Subsequent to entry, a child was born to the couple. Both respondents 

remained in the United States beyond the time authorized and deportation proceedings were initiated, at which both conceded deportability 

and were granted 75 days voluntary departure. Prior to the expiration 

of this period, the respondents moved for a reopening of the deportation 

proceedings on the basis of the decision in Acosta v. Gaffney, 413 F. 

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Interim Decision #2539 

Supp. 827 (D. N.J. 1976), appeal docketed, No. 76-2094, 3d Cir., holding 

unconstitutional the deportation of parents of a United States citizen 

minor child. The immigration judge denied the motion on the ground 

that the case was not binding upon him, and the respondents appealed. 

In Acosta v. Gaffney, supra, the trial judge emphatically rejected the 

prevailing doctrine of the Board and various United States Courts of 

Appeals and held, under the factual situation of that case, that the 

deportation of alien parents constituted an unconstitutional violation of 

the rights of their United States citizen child. The present case arises in 

the same jurisdiction as did Acosta. 

It has been well established that the deportation of alien parents will 

not deprive a minor citizen child of his constitutional rights. U.S. ex rel. 

Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957); Aalund v_ Marshall, 

461 F.2d 710 (5 Cir. 1972); Perdido v. INS, 420 F.2d 1179 (5 Cir. 1969); 

Mendez v. Major, 340 F.2d 128 (8 Cir. 1965); Application of Amoury, 

307 F. Supp. 213 (S.D.N.Y. 1969); Dayao v. Staley, 303 F. Supp. 16 

(S.D. Tex. 1969), affd per curiam, 424 F.2d 1131 (5 Cir. 1970). Whatever rights the child may have under the Constitution do not authorize 

the respondents to remain here in violation of the immigration laws. 

Matter of Anaya, Interim Decision 2243 (BIA 1973), affd AnayaPerches v. INS, 500 F.2d 574 (5 Cir. 1974); Matter of Lopez, Interim 

Decision 2224 (BIA 1973). 

On appeal, the respondents' counsel contends that the immigration 

judge was bound by Acosta v. Gaffney, supra, and should be required to 

follow the decision of the United States District Court in all cases 

arising within the same district. We note that, in Matter of Amado and 

Monteiro, 13 I. & N. Dec. 179 (BIA 1969), we stated that we were 

obliged to apply a ruling of a district court (which had become final) in 

subsequent cases arising within that court's jurisdiction. Here we are 

dealing with a different situation. In the Acosta case, on which counsel 

relies, an appeal is presently pending before the United States Court of 

Appeals for the Third Circuit. Therefore, vre shall continue to adhere to 

the doctrine enunciated in our previous decisions. Matter of Anaya, 

supra; Matter of Lopez, supra. 

The appeal will be dismissed. 

ORDER: The appeal is dismissed. 

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