United States v. Gustavo Osuna-Picos

Ninth Circuit

United States v. Gustavo Osuna-Picos

443 F.2d 907, 1971 U.S. App. LEXIS 10020

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 26, 1971

Docket26549

StatusPublished

Cited by14 cases

This text of 443 F.2d 907 (United States v. Gustavo Osuna-Picos) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Gustavo Osuna-Picos, 443 F.2d 907, 1971 U.S. App. LEXIS 10020 (9th Cir. 1971).

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PER CURIAM:

Appellant seeks review of his conviction under 8 U.S.C. § 1326 for illegally re-entering the United States after deportation. Our jurisdiction rests upon 28 U.S.C. § 1291. Both entries into the United States were made upon fraudulent claims of citizenship. Appellant’s defense at trial was based upon the fact that he is the child of an alien lawfully admitted for permanent residence. He now asserts that the deportation order was rendered invalid by 8 U.S.C. § 1251(f), thereby negating an essential element of the crime. The trial court, 319 F.Supp. 558, rejected this contention and upheld the order of deportation on the basis of the decision of the Attorney General in Matter of Lee, Interim Decision No. 1960 (1969).

[908]*908Subsequently, we considered the scope of § 1251(f) and reversed the said Attorney General’s decision in Lee Fook Chuey v. Immigration and Naturalization Service, 439 F.2d 244, (9th Cir. Sept. 29, 1970), pet. rh. denied (Feb. 11, 1971). In that case we held that an alien who has the requisite family ties and meets the qualitative requirements of the Immigration and Naturalization Act is entitled to the relief provided by § 1251(f), even though he has obtained entry by misrepresentation. No petition for certiorari has been filed by the government.

Because this case is factually indistinguishable from Chuey, we must reverse the judgment of conviction. It is so ordered.

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PER CURIAM:

Appellant seeks review of his conviction under 8 U.S.C. § 1326 for illegally re-entering the United States after deportation. Our jurisdiction rests upon 28 U.S.C. § 1291. Both entries into the United States were made upon fraudulent claims of citizenship. Appellant’s defense at trial was based upon the fact that he is the child of an alien lawfully admitted for permanent residence. He now asserts that the deportation order was rendered invalid by 8 U.S.C. § 1251(f), thereby negating an essential element of the crime. The trial court, 319 F.Supp. 558, rejected this contention and upheld the order of deportation on the basis of the decision of the Attorney General in Matter of Lee, Interim Decision No. 1960 (1969).

[908]*908Subsequently, we considered the scope of § 1251(f) and reversed the said Attorney General’s decision in Lee Fook Chuey v. Immigration and Naturalization Service, 439 F.2d 244, (9th Cir. Sept. 29, 1970), pet. rh. denied (Feb. 11, 1971). In that case we held that an alien who has the requisite family ties and meets the qualitative requirements of the Immigration and Naturalization Act is entitled to the relief provided by § 1251(f), even though he has obtained entry by misrepresentation. No petition for certiorari has been filed by the government.

Because this case is factually indistinguishable from Chuey, we must reverse the judgment of conviction. It is so ordered.

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443 F.2d 907, 1971 U.S. App. LEXIS 10020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gustavo-osuna-picos-ca9-1971.

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