Interim Decision #3101 

MATTER OF DURAN 

In Deportation Proceedings 

A-14690913 

Decided by Board March 23, 1989 

(1) An immigration judge in deportation proceedings properly denied the respondent's 

motion to subpoena government records where the respondent failed to comply with 

the requirements of B C.F.R. § 287.4(a)(2) (1984) by not specifically stating what he 

expected to prove by such documentary evidence and by not affirmatively showing a 

diligent effort to obtain the records. 

(2) While a subpoena is not required in the instant proceedings and access should 

generally be given to a person in immigration proceedings concerning records 

maintained about himself, the respondent failed to show compliance with the 

requirements of 8 C.F.R. § 103.21 (1984) which permit such access. 

CHARGE: 

Orden Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)J—Entered without inspection 

ON BEHALF OF RESPONDENT: 

Rudy Cardenas, Jr., Esquire 

Cardenas & Fifield 

229 Main Street, Suite 111 

Post Office Box 91 

Brawley, California 92227 

ON BEHALF OF SERVICE: 

Alan S. Rabinowitz 

General Attorney 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated September 5, 1984, the immigration judge found 

the respondent deportable as charged under section 241(a)(2) of the 

Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), as an 

alien who entered the United States without inspection by an 

immigration officer, denied his requests for relief from deportation 

under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1982), and for 

voluntary departure in lieu of deportation, and ordered that he be 

deported to Mexico. The respondent has appealed from that decision. 

The appeal will be dismissed. 

The respondent, a 40-year-old married native and citizen of 

Mexico, was admitted to the United States for lawful permanent 

residence on July 30, 1965. The record indicates that the respondent 

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Interim Decision #3101 

subsequently attempted to enter the United States on January 18, 

1971. On April 12, 1971, the respondent was convicted, on his plea of 

guilty, in the United States District Court for the Southern District of 

California, of failure to pay a special tax on marihuana and was 

sentenced to 2 years in prison. The information upon which the 

respondent was convicted alleged that he unlawfully imported approximately 150 pounds of marihuana.' 

The respondent acknowledged that he appeared before an immigration judge in 1972. A Warrant of Deportation (Form 1-205), dated 

June 16, 1972, provides for the exclusion and deportation of the 

respondent pursuant to section 212(a)(23) of the Act. The record 

reflects that the Warrant of Deportation was executed on June 20, 

1972. 

The respondent returned to the United States. In 1981, he 

apparently was given administrative voluntary departure. The respondent testified that he remained in Mexico 2 weeks before coming back 

to the United States. 

In an Order to Show Cause, Notice of Hearing, and Warrant for 

Arrest of Alien (Form I-221S), served on the respondent on July 20, 

1982, it was alleged that the respondent was not a citizen or national of 

the United States but that he was a native and citizen of Mexico who 

entered the United States without inspection on or about July 3, 1982. 

He was charged with deportability under section 241(a)(2) of the Act 

for entering the United States without inspection. 

At his hearing, the respondent denied the allegations in the Order to 

Show Cause and denied deportability. However, he admitted that he 

was a native and citizen of Mexico and that his parents were natives 

and citizens of Mexico who had never been citizens of the United 

States. He also admitted that he last entered the United States in 1982, 

driving a car and claiming to be a United States citizen. 

The respondent further admitted that he had been convicted on July 

21, 1982, in a federal court, on his plea of guilty, of entry without 

inspection in violation of 8 U.S.C. § 1325 (1982). The respondent 

received a sentence of 120 days in prison. 

On appeal, the respondent reiterates the argument he raised below, 

i.e., that he was eligible for section 212(c) relief at his deportation. 

hearing because his 1972 exclusion hearing resulted in a gross 

miscarriage of justice. The respondent maintains that it was prejudicial error to deny his motion to subpoena the record of his 1972 

exclusion hearing. In this regard, the respondent claims that he was not 

afforded due process at that hearing by not being informed of his 

rights, by not being allowed representation by counsel, and by not 

1 The respondent alleges that the amount involved was only 80 pounds of marihuana. 

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being given a full hearing where the Government had the burden of 

proof. 

The respondent submits that a subpoena is necessary in order to 

obtain the records of his 1972 exclusion hearing. As pertinent, 8 

C.F.R. § 287.4(a)(2) (1984) (now codified at 8 C.F.R. 

§ 287.4(a)(2)(ii)(B) (1989)) provided: 

A party applying for a subpoena shall be required, as a condition precedent to its 

issuance, to state in writing or at the proceeding what he expects to prove by such 

witnesses or documentary evidence, and to show affirmatively that he has made 

diligent effort, without success to produce the same. 

The record reflects that when the respondent appeared at his 

deportation hearing, he requested the immigration judge to subpoena 

the records of his prior hearing. However, there is no indication, 

whatsoever, in this record that the respondent attempted to obtain 

these records prior to his appearance before the immigration judge. 

The respondent has failed to show that he made a diligent effort to 

obtain the records of his 1972 hearing. The respondent also has failed 

to show that he adequately stated what he expected to prove. The 

respondent's generalized and conclusory assertions do not state, with 

any specificity, what he was going to prove. Thus, the respondent has 

failed to comply with 8 C.F.R. § 287.4(a)(2) (1984). 

Further, a subpoena is not required in these proceedings. "Any 

individual who seeks access to records about himself in a system of 

records ... must submit a written request in person or by mail to the 

manager of the particular system of records to which access is sought." 

8 C.F.R. § 103.21(a) (1984). Thus, the regulations provide that an 

individual may have access to the records maintained about himself. 2 

See 8 C.F.R. §§ 103.10, 292.4(b) (1984). The regulations also set forth 

the procedures by which an individual may seek access to those 

records. See 8 C.F.R. § 103.21 (1984); see also 8 C.F.R. § 103.10(a) 

(1984).3 

We have no difficulty concluding that, with the exception of the 

regulation exemptions, a person in immigration proceedings should be 

given access to the records maintained about himself by the Immigration and Naturalization Service and by the Executive Office for 

Immigration Review. In this case, however, the respondent made no 

showing that he complied with the procedures for obtaining his 

records. He made no showing that he even attempted to comply with 

the specified procedures. Thus, the respondent failed to show that he 

complied with the applicable regulations. We note the respondent 

made no allegation that, prior to his appearance before the immigra2Some records are exempt. See, e.g., 8 C.F.R. §§ 103.10(b)(2), 103.22 (1984). 

3 The regulations cited in this paragraph are currently in effect. 

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Interim Decision #3101 

tion judge at the deportation hearing, he attempted to obtain the 

records of his 1972 exclusion hearing. 

In addition, the respondent's claims regarding the "gross miscarriage of justice" at his 1972 exclusion hearing are not only conclusory 

but also speculative. The respondent alleges no facts to support his 

claims.4Under the circumstances of this case, we find no basis to 

remand the record for further proceedings. 

Moreover, even if the respondent could successfully challenge the 

1972 exclusion order,3his illegal entry in July 1982 would remain as a 

wholly independent ground for deportation. See Ramirez-Juarez v. 

INS, 633 F.2d 174 (9th Cir. 1980); Hernandez-Almanza v. United 

States Department of Justice, 547 F.2d 100 (9th Cir. 1976). This case 

arises within the jurisdiction of the United States Court of Appeals for 

the Ninth Circuit. A section 212(c) waiver of inadmissibility is 

authorized in deportation proceedings only where the ground of 

deportability sought to be waived is also a ground of excludability 

specified in section 212(c). See Cabasug v. INS, 847 F.2d 1321 (9th 

Cir. 1988) (section 241(a)(14)). The respondent's reference to Gutierrez v. INS, 745 F.2d 548 (9th Cir. 1984), is not applicable inasmuch as 

that case was qualified by Cabasug v. INS, supra, at 1325-26. 

The respondent's deportability under section 241(a)(2) of the Act, as 

an alien who entered the United States without inspection, has been 

established by clear, unequivocal, and convincing evidence. See 

Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R. § 242.14(a) (1989). In 

addition, the respondent is ineligible as a matter of law for relief from 

deportation under section 212(c). Further, the respondent has failed to 

adequately identify the reasons underlying his appeal from the denial 

of voluntary departure. 

Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

4The respondent admitted, and the record reflects, that he has a 1971 conviction 

involving at least 80 pounds of marihuana. We note that the respondent's 1971 

marihuana conviction would have rendered him excludable under section 212(a)(23) of 

the Act_ We further note that the respondent was excluded and deported pursuant to 

section 212(a)(23) of the Act. 

5The respondent was statutorily ineligible for section 212(c) relief at his 1972 

exclusion hearing inasmuch as he had not yet acquired the requisite domicile of 7 

consecutive years. 

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