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ESPINOZA-CASTRO V INS
Case Number: Date Filed:
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioner, No. 99-70588
v. I&NS No.
IMMIGRATION AND NATURALIZATION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 15, 2001--Pasadena, California
Filed March 22, 2001
Before: Robert R. Beezer, Thomas G. Nelson, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge T. G. Nelson
Gary Finn, Indio, California, for the petitioner.
Jeffrey J. Bernstein and John S. Hogan, United States Depart-
ment of Justice, Civil Division, Washington, D.C., for the
T.G. NELSON, Circuit Judge:
Ernesto Espinoza-Castro, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals'
(BIA's) decision affirming the Immigration Judge's (IJ's)
finding that Espinoza was deportable pursuant to 8 U.S.C.
S 1251(a)(1) because (1) he was excludable at entry under 8
U.S.C. S 1182(a)(22) for having remained outside the United
States to avoid or evade military service during a period of
national emergency, and (2) he was not covered by a presi-
dential pardon for violations of the Selective Service Act.
At oral argument, counsel conceded that petitioner was not
covered by the presidential pardon. Thus, the only question
remaining is whether substantial evidence supports the BIA's
determination that Espinoza was excludable at entry under 8
U.S.C. S 1182(a)(22). Espinoza argues that he was not
excludable because he did not leave the United States primar-
ily to avoid or evade service in the armed forces but rather
because he needed to support his family. In addition, he
argues that he was not excludable because no national emer-
gency existed when he deserted the Army. Because substan-
tial evidence supports the BIA's decision, we deny Espinoza's
FACTS & PROCEDURAL HISTORY1
A. Initial Entry under Immigrant Visa
The petitioner, Ernesto Espinoza-Castro, is approximately
sixty-three years old. He is a native and citizen of Mexico, but
his mother is a United States citizen. In August 1960, when
Espinoza was twenty-two, his mother obtained an immigrant
visa for him. At that time, Espinoza was the principal, if not
the sole, supporter of his family, which consisted of his
mother and five younger brothers. Before he received his visa
in 1960 and came to the United States, Espinoza earned
approximately $200 per month working as a professional
musician in Mexicali, Mexico.
When Espinoza entered the United States, he was informed
by United States Government authorities that he was required
to register for selective service within six months of entry. He
did so. For a brief time, Espinoza worked as a professional
musician in the United States, earning approximately $400
per month. He was able to give his mother approximately half
of his earnings for the support of the family. Within a short
time, however, Espinoza was drafted. He was inducted into
the United States Army on October 26, 1961.
While in the Army, Espinoza was paid approximately $85
per month. Because his basic expenses were paid by the
1 The underlying facts, which are essentially undisputed, are taken from
the IJ's oral decision.
Army, Espinoza was able to send 90% to 95% of this amount
(or approximately $75 per month) to his family.
Espinoza underwent basic training at Fort Ord, California,
for about two months. He was given leave around Christmas
to visit his family. Espinoza never returned from that leave.
Instead, on the day he was to report for duty, he went to Mex-
ico City, where he remained for several years.
While in Mexico City, Espinoza enrolled in music school,
which he attended for at least three years. While in school, he
worked part-time as a musician, earning approximately $150
per month. After paying expenses, he was able to send
approximately $75 per month to his family, roughly the same
amount he sent while in the Army.
As of January 12, 1962, the Army deemed Espinoza a
peacetime deserter. United States Government authorities
contacted Espinoza twice while he lived in Mexico City. The
FBI contacted him in 1964. Espinoza stated that he intended
never to return either to the United States or to military ser-
vice. The INS contacted him in 1969. They informed
Espinoza that he had to surrender his I-551 (his resident alien
card) and that he could not return to the United States because
of his desertion.
Espinoza was given an undesirable discharge from the
Army on September 23, 1965. The reason listed for the dis-
charge is "[d]esertion." His discharge papers note that the
desertion was a peacetime desertion and state that a trial was
B. Re-Entry under Immigrant Visa
Sometime prior to 1988, Espinoza went to the United States
Consulate to inquire about the possibility of re-immigrating.
When Espinoza stated that he had previously deserted from
the United States Army, consular officials told him that he
would never be able to return to the United States.
In 1998, Espinoza's brother indicated that an attorney to
whom he had spoken thought Espinoza might still be able to
re-immigrate to the United States despite his desertion.
Espinoza again began the process of applying for an immi-
grant visa. He applied, just as he had before, as the unmarried
son of a United States citizen -- his mother. After consulting
an attorney, Espinoza answered "no" to the question of
whether he had ever departed from or remained outside the
United States to avoid or evade military service. In August
1998, Espinoza was granted an immigrant visa.
When Espinoza presented himself at the United States Port
of Entry, the INS discovered that he was in fact a deserter
who had previously been a lawful permanent resident of the
United States. Espinoza was charged with and convicted of
willfully making false and misleading representations upon
entry into the United States, a misdemeanor. He was sen-
tenced to six months in jail.
C. Deportation Proceeding and IJ and BIA Decisions
After Espinoza served his six-month sentence, the INS ini-
tiated deportation proceedings. Espinoza was charged with
being deportable under 8 U.S.C. S 1251(a)(1) (1990) because
he was excludable at entry under 8 U.S.C. S 1182(a)(22). At
the time of Espinoza's entry, S 1182(a)(22) provided for the
exclusion of aliens who deserted the United States armed
forces to avoid service or training during a period of war or
2 Espinoza was also charged with being excludable at entry for commit-
ting fraud or willful misrepresentation of a material fact and not having a
valid immigrant visa. However, the order of deportation that was eventu-
ally issued was based only on Espinoza being excludable at entry as an
alien who had deserted the United States armed forces to avoid service or
After several hearings, the IJ held that Espinoza had left
and remained outside the country to avoid or evade military
service or training. Thus, the IJ concluded he was excludable
at entry pursuant to 8 U.S.C. S 1182(a)(22). 3 In so holding, the
IJ considered and accepted Espinoza's testimony that he was
the primary supporter of his family. In addition, the IJ consid-
ered and accepted the fact that Espinoza had been able to con-
tribute approximately $200 per month towards the support of
his family just prior to being drafted. The IJ nonetheless
rejected Espinoza's contention that he left the military out of
economic necessity -- the need to provide for his family.
Although Espinoza earned less when he served in the military
than he had previously, the IJ noted that he could devote a
much larger percentage of those earnings to the support of his
family. The military provided his room, board, and other basic
necessities. Moreover, the IJ noted that Espinoza did not
return to his employment in Mexicali, from which he had
been earning approximately $200 per month. Instead,
Espinoza went to music school for several years and worked
only part-time. He was able to contribute, at most, $75 per
month to his family's support during that period, approxi-
mately the same amount he could have contributed had he
remained in the military. The IJ stated:
[I]n reality, between the choices that he made, not
between the possibilities that existed but between the
choices that he made, there was no legitimate eco-
nomic disadvantage; that is, he would not have been
any more disadvantaged by having remained in the
military than by having chosen on the date, instead
of reporting for duty, to go to music school in Mex-
ico City that he chose. My evaluation of all of the
3 The IJ also found Espinoza excludable under 8 U.S.C. S 1182(a)(20)
(1990) for not having a valid entry document. However, because resolu-
tion of the S 1182(a)(22) issue controls in this case whether or not
Espinoza is also excludable under S 1182(a)(20) for not having a valid
entry document, we do not separately analyze S 1182(a)(20).
circumstances is indeed that the military pay and the
military service would probably have provided a
more certain level of support than that which he
faced in a somewhat uncertain or uneven work in
conjunction with his school in Mexico City, but, at
best, they are nearly even. So, his later statements in
1989 that he left because of economic hardship may
be in reflection of those 30 years ago of the money
he was making in Brawley, the money that he made
in Mexicali. Maybe he thought in looking at it nearly
30 years after the fact that yes, well, that's why I
left; but from the point of view of 1961 and 1962,
that wasn't true.
Thus, the IJ concluded that remaining in the military would
have posed no immediate economic disadvantage to Espinoza.
Quite the contrary, the IJ reasoned that the military salary was
probably more secure than the earnings received from work-
ing as a musician. For these reasons, the IJ rejected
Espinoza's contention that he had left out of economic neces-
sity and concluded that Espinoza left and remained outside
the United States to avoid or evade service or training in the
The IJ also rejected Espinoza's claims that his desertion
from the Army did not occur during a time of war or national
emergency, and that his desertion was pardoned by President
Carter's Presidential Proclamation No. 4483 issued on Janu-
ary 21, 1977. The IJ therefore ordered Espinoza deported.
The BIA dismissed Espinoza's appeal for the reasons set
forth in the IJ's decision. The BIA specifically found, after its
own review of the record, that Espinoza's argument that he
deserted the Army to better support his family economically
was "not plausible," and that Espinoza was not covered by
Presidential Proclamation No. 4483. Because Espinoza has
abandoned his appeal of the second point, regarding the Presi-
dential Proclamation, we only review the first.
Deportation proceedings were initiated against petitioner
prior to April 1, 1997. Therefore, the jurisdiction of this court
arises under 8 U.S.C. S 1105a(a), as modified by the transi-
tional rules for judicial review set forth in S 309(c)(4) of the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA).4
STANDARD OF REVIEW
We review the factual findings underlying the BIA's deci-
sion for substantial evidence.5 We must deny the petition for
review unless the evidence not only supports a contrary result,
but compels it.6
Substantial evidence supports the BIA's determina-
tion that Espinoza was deportable because he
remained outside the United States to avoid or evade
training or service in the United States military dur-
ing a period of war or national emergency.
The IJ found Espinoza excludable under 8 U.S.C.
S 1182(a)(22). At the time of Espinoza's deportation hearing,
this provision excluded from admission to the United States
aliens "who have departed from or who have remained out-
side the United States to avoid or evade training or service in
4 Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996); see Kalaw v.
INS, 133 F.3d 1147, 1150 (9th Cir. 1997).
5 Salaam v. INS, 229 F.3d 1234, 1237-38 (9th Cir. 2000).
6 INS v. Elias-Zacarias, 502 U.S. 478, 481, 483-84 (1992); Lim v. INS,
224 F.3d 929, 933 (9th Cir. 2000); Singh-Kaur v. INS, 183 F.3d 1147,
1149-50 (9th Cir. 1999).
the armed forces in time of war or a period declared by the
President to be a national emergency."7
Espinoza claims that the finding of excludability under
S 1182(a)(22) was unsupported by substantial evidence
because (1) he did not depart and remain outside the United
States to avoid or evade military service and (2) the period of
time in question was neither a time of war nor a period
declared by the President to be a national emergency. We dis-
agree on both points.
A. Purpose of Departure
Espinoza first argues that he left the United States primarily
to support his family and not to avoid service in the United
States military. Thus, he claims he does not fall under the pro-
visions of S 1182(a)(22). In support of his argument, he relies
on Matter of Nunez-Toro.8
In Nunez-Toro, the BIA held that S 1182(a)(22) did not
exclude the alien in question because his primary purpose in
leaving the United States had not been to avoid military ser-
vice but to help his mother.9 In so holding, the BIA relied on
facts showing that the alien had voluntarily enlisted in the
United States Army, that he genuinely believed his mother
needed aid, that he had voluntarily surrendered to the United
States military authorities in Costa Rica in 1963, and that he
had, for some time, expressed a desire to be permitted to com-
plete his enlistment of three years in the United States Army.10
 The facts in this case are in stark contrast to those in
Nunez-Toro. First, Espinoza showed no desire to complete his
term of military service after his desertion. When contacted
7 8 U.S.C. S 1182(a)(22) (1991).
8 11 I&N Dec. 501 (BIA 1966).
9 Id. at 504.
by United States officials in 1964, for example, he told them
he had no intention of returning either to military service or
to the United States. Thus, unlike Nunez-Toro, Espinoza has
never sought to fulfill his military duties. Second, even if in
some circumstances economic reasons might remove an alien
from the reach of S 1182 as familial need did in Nunez-Toro,
this case would not present those circumstances. 11 The facts
belie Espinoza's claim that he left for economic reasons. As
the IJ pointed out, after Espinoza deserted, he chose to engage
in an enterprise that allowed him to send no more money back
to his family than had his military service.
The IJ specifically rejected Espinoza's contention that he
left for economic reasons and found instead that Espinoza left
and remained outside the United States to avoid or evade ser-
vice or training in the military. The BIA agreed, specifically
noting that Espinoza's contention that he left the military for
economic reasons was "not plausible." The evidence support-
ing the BIA's decision is substantial and does not compel a
contrary result. Thus, we deny the petition for review on this
B. National Emergency
An alien who has left or remained outside the United States
to evade military service or training will be excluded under
S 1182(a)(22) only if the alien left or remained outside the
United States during a "time of war or a period declared by
the President to be a national emergency."13 Espinoza argues
that insufficient evidence supported the IJ's finding that he
departed from or remained outside the United States during a
time of war or national emergency. We disagree.
11 We need not decide whether economic circumstances might remove
an alien from the reach of the statute. Accordingly, we decline to do so.
12 See Elias-Zacarias, 502 U.S. at 483-84; Lim, 224 F.3d at 933; Singh-
Kaur, 183 F.3d at 1149.
13 U.S.C. S 1182(a)(22) (1991).
 On December 16, 1950, President Truman issued Presi-
dential Proclamation No. 2914.14 That proclamation, which
was in effect until September 14, 1978,15 declared that a state
of national emergency existed.16 Thus, at the time that
Espinoza departed the United States and during the time he
remained outside the United States prior to his dishonorable
discharge in 1965, a state of national emergency existed in the
For the foregoing reasons, the petition for review is
14 Presidential Proclamation No. 2914, 3 C.F.R. 99 (1953).
15 See 50 U.S.C. S 1601 ("All powers and authorities possessed by the
President, any other officer or employee of the Federal Government, or
any executive agency . . . as a result of the existence of any declaration of
national emergency in effect on September 14, 1976 are terminated two
years from September 14, 1976."); Jolley v. INS, 441 F.2d 1245, 1255
n.17 (5th Cir. 1971) (noting that Presidential Proclamation No. 2914
declared a state of national emergency and that this state of national emer-
gency still existed in 1967).
16 See Presidential Proclamation No. 2914, 3 C.F.R. 99 (1953); Jolley,
441 F.2d at 1254 n.17.
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