which it pointed out that: (1) Obitz had been granted voluntary departure on three prior occasions and had failed to depart; (2) the only grounds for a stay of deportation were her marriage to an American citizen and the pending visa petition; and (3) a pending visa application did not entitle an alien to stay of deportation. The Ninth Circuit had stated, further, that Obitz' marriage, "contracted long after she knew she was under an order of deportation,. . .[did] not create substantial equities in her favor."

After the Immigration and Naturalization Service approved the visa petition filed on Obitz' behalf, she filed a new motion to reopen, claiming changed circumstances: statutory eligibility for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255. The Board again denied the request, and a full bench of the Ninth Circuit, by 7 to 2, again upheld the Board's action, dismissing Obitz' petition for review.

Writing the Court's decision of June 16, 1980, Circuit Judge Joseph T. Sneed stated that while eligibility for adjustment of status turned on compliance with fixed statutory standards, which Obitz had established, Obitz had presented no new evidence bearing on whether the Attorney General should exercise his statutory discretion to suspend her deportation. Aside from establishment of Obitz' eligibility for adjustment of status "as the result of an essentially ministerial act of the Service", the facts, the Court said, remained substantially as they had been previously.

Labor Certification Requirement

In Skelly v. Immigration and Naturalization Service, 630 F.2d 1375 (10th Cir. 1980), the United States Court of Appeals for the Tenth Circuit affirmed a Board of Immigration Appeals holding that an alien who had entered the United States as an "immediate relative" under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. 1151(b), being the spouse of an American citizen, and whose marriage was terminated one week afterwards was not entitled to a discretionary waiver of deportability for fraudulent entry into the United States pursuant to section 241(f) of the Act, 8 U.S.C. 1251(f). The grounds for deportation were not fraudulent entry but the alien's failure to have at the time of entry the labor certification that would have been required under section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14), had she not been married to an American citizen. Although the alien would not have been able to meet those requirements, she had, after entry, performed both skilled and unskilled labor.

While conceding her deportability under the charge of labor certification, the alien sought delays of her departure through a number of administrative and judicial measures; and in the course of the

various proceedings contracted marriage with a second American citizen (who filed a petition to classify her as an alien relative) and became the mother of an American citizen child.

The alien argued before the Ninth Circuit that the court must disregard the charge of failure to have a valid labor certification, upon which she had been found deportable, and must "reach a new and independent conclusion" that the facts of her case corresponded to a charge of excludability upon the grounds of fraudulent entry under section 212(a)(19) of the Act, that would entitle her to a waiver of deportability. She urged in the alternative that the lack of a labor certification was a "lesser included offense" that gave her legal status at the time of entry. Finally, she contended that as the wife of a United States citizen and mother of a United States citizen child, she qualified for a waiver of deportability under section 241(f), and "that this conquers all other deficiencies."

The Court rejected the petitioner's contentions. In a decision dated September 18, 1980, Circuit Judge William E. Doyle held:

It may well be inevitable that aliens who have procured entry into the United States by fraud within the meaning of § 241(f) and § 212(a)(19) will find it necessary to support themselves and in doing so will violate the labor certification requirement of § 212 (a)(14). This does not, however, render § 212(a)(14) a lesser included offense in § 212(a)(19), or result in § 212(a)(14) violations being inextricably linked to § 212(a)(19) violations. It cannot be said that every case of fraud in the procurement of entry documents within § 212(a)(19) will also involve a violation of the § 212(a)(14) labor certification requirement. The labor certification requirement has entirely different policy underpinnings than § 212(a)(20). It is designed to protect the American labor market, while § 212(a)(20) is intended to protect the integrity of the visaissuing process. See Cacho v. Immigration and Naturalization Service, . . . 547 F.2d [1057 (9th Cir. 1976)] at 1062. Mrs. Skelly's violation of § 212 (a)(14) is a separate and independent basis for her deportation, not related to any potential charge of deportability for fraud under § 212(a)(19). In accord with Cobian-Hernandez [v. Immigration and Naturalization Service, 587 F.2d 872 (7th Cir. 1978), David [v. Immigration and Naturalization Service, 578 F.2d 1373 (3d Cir.) "(summary affirmance of BIA decision)", cert. denied, 439 U.S. 927 (1978)], and Cacho, this court should hold that § 241(f) cannot waive Mrs. Skelly's deportation charges based on 212(a)(14).

630 F.2d 1375, 1381.

Judge Doyle also addressed the petitioner's challenge to the validity of her original deportation order on the argument that: (1) she was validly married to a U.S. citizen at the time of entry and was thus exempt from the labor certification requirement; and (2) since the subsequent annulment did not void the marriage ab initio under Okla

homa law, if she were deportable at all under sec. 241 of the Act, it would be under the marital fraud provision contained in sec. 241(c). This provision, the petitioner asserted, was also waived under sec. 241(f).

The argument was "untenable", the Court said, both as being untimely and on the merits. Even admitting that the labor certification requirement did not apply to special immigrants, spouses of U.S. citizens, and even assuming arguendo that the petitioner was validly married under Oklahoma law at the time of entry, the status of the marriage for Federal immigration purposes was not governed by State law. An alien's marriage to a U.S. citizen was deemed fraudulent and invalid for immigration purposes, if the alien did not intend to enter into a bona fide marital relationship but entered into the marriage solely to facilitate receipt of a visa. The Court noted that Mrs. Skelly fell "well within the 2-year rule of §241(c)" and that she had conceded the fraudulent nature of the first marriage and its purpose to obtain entry into the United States. Thus, the Court said, she was "not exempt from the requirement that she either secure a labor certificate, or refrain from working in the United States."

Since the Court found the original deportation order valid, it was unnecessary, it said, to consider whether the petitioner were deportable only under sec. 241(c) charges, or whether such charges were waived by sec. 241(f).

Deferred Departure Date: Iranian Nationals

In Yassini v. Crosland, 613 F.2d 219 (9th Cir. 1980), the plaintiffs had challenged a directive of the Acting Commissioner of the Immigration and Naturalization Service, issued on November 13, 1979, as part of President Carter's response to the hostage crisis, which rescinded their deferred departure date of June 1, 1980. That date had been granted by the Service on August 9, 1979, in consultation with the Secretary of State, and represented a further extension of a deferred departure date of September 1, 1979 (announced on April 26, 1979), for Iranian nationals who had indicated an unwillingness to return to Iran because of unstable conditions there early in 1979. The Service had granted the nine-month extension from September 1, 1979, to June 1, 1980, in consultation with the Secretary of State, "because a large proportion of Iranian nationals in the United States were students enrolled in nine-month programs." Yassini v. Crosland, 618 F.2d 1356 (9th Cir. 1980), see post.

The district court had certified the Yassini case as a class action over the plaintiff's objections, and had then dismissed it on the merits. On appeal, the Ninth Circuit on January 29, 1980, vacated both the class certification and the judgment of dismissal, and remanded the case for further proceedings as to the individually named plaintiffs. It pointed out in a per curiam, first, that while the Acting Commissioner's directive purported to deprive every plaintiff of the June departure date, the deprivation produced "significantly disparate effects", since, among other things, some plaintiffs faced immediate deportation unless they initiated administrative or judicial actions, and others, merely the commencement of deportation proceedings. Questions of fact unique to each individual appeared to

predominate, the Court of Appeals said, and, because individual concerns might well be alleviated through administrative and judicial processes, the constitutional validity of the challenged directive under the due process clause was not yet ripe for judicial determination. The Ninth Circuit held that the district court's dismissal had "purported to tie members of a nationwide class, ignorant to the proceedings, to an unnecessary constitutional ruling."

In remanding the case, the Court directed the district court to ascertain the factual issues relating to each plaintiff, and for each, to determine if any administrative remedies could be pursued to avoid the loss of the June 1, 1980 departure date. If an individual plaintiff had no administrative remedy, the Ninth Circuit pointed out, "the district court is free . . . to determine the individual plaintiffs' claims and to issue individual stays." The Court stayed the deportation of any named plaintiff through February 8, 1980, to allow the district court to consider the named plaintiffs' individual claims.

Following remand, the U.S. District Court for the Northern District of California rendered judgment for the Immigration and Naturalization Service, and an individual plaintiff, Masoud Mahdjoubi, appealed, in Yassini v. Crosland, 618 F.2d 1356 (9th Cir. 1980).

On appeal, the Ninth Circuit affirmed the district court on May 14, 1980. Reviewing the facts in Mahdjoubi's case, the Court of Appeals noted in its per curiam opinion that at the time the Acting Commissioner issued his directive of April 16, 1979, extending departure dates to September 1, 1979, ante, Mahdjoubi had been awaiting a scheduled hearing on deportation (for overstay of time as a nonimmigrant student and for transfer to another school without permission from the Immigration and Naturalization Service).

The Court then examined Mahdjoubi's contentions. Citing 5 U.S.C. 553(b)(B) and 553(a)(1), the Court ruled that the Acting Commissioner's directive of November 13, 1979, revoking the deferred departure date of June 1, 1980, for all Iranian nationals (granted by the Acting Commissioner on August 9, 1979, see ante), was exempt from the rulemaking procedures of the Administrative Procedure Act under its "good cause" and "foreign affairs function" exceptions. The Court of Appeals ruled, further, that publication of the directive of revocation in the Federal Register had been unnecessary, since the Immigration and Naturalization Service had sent actual notice thereof to all affected Iranian nationals.

The Ninth Circuit also rejected Mahdjoubi's two due process claims.

His first claim was that under "well-established policies of the Immigration and Naturalization Service to grant deferred departure to the nationals of countries in political turmoil (its 'temporary

sanctuary program'), he had a legitimate claim of entitlement to the deferred departure date." The Court declined to decide this claim, finding that the Acting Commissioner's directive was, as the Government alleged, "an integral part of the President's response to the crisis in Iran", and that the President had acted "in response to a sensitive area of foreign policy."

Mahdjoubi's second claim was that he could not be deprived of a liberty or property interest without prior notice and hearing. Again, the Court found no deprivation of due process, even on the assumption that Mahdjoubi's claim of entitlement to the deferred departure date were legitimate-which it declined to decide. Citing authorities, the Court pointed out that "where an agency action is not based on individual grounds, but is a matter of general policy, no hearing is constitutionally required, especially where, as in this case, there is a post-decision review."

618 F.2d 1356, 1362-1363.

Undocumented Aliens

Admission to Public Free Schools

In Doe v. Plyler, 628 F.2d 448 (5th Cir. 1980), aff'd, 457 U.S. 202, reh'g denied, 458 U.S. 1131 (1982), the U.S. Court of Appeals for the Fifth Circuit affirmed a 1978 ruling of the U.S. District Court for the Eastern District of Texas, that had enjoined the defendants from applying a Texas statute (section 21.031 of the Texas Education Code) and a tuition policy in implementation thereof, adopted by the Tyler Independent School District, "so as to deny free public education to any child in the Tyler Independent School District on the basis of his or her status as an undocumented Mexican alien." The statute required either United States citizenship or legal admission as an alien as a condition for attendance at the public free schools. The tuition policy required payment of $1,000 per year for enrollment of an undocumented alien child in the Tyler public schools.

While the Court of Appeals did not agree with the district court's conclusion that the statute and the policy infringed upon an area preempted by Federal law, it affirmed the district court's holding that application of the statute to undocumented alien children violated the Equal Protection clause.

Writing for the Court, Circuit Judge Frank M. Johnson, Jr., noted in his opinion dated October 20, 1980, that the Supreme Court had never "squarely addressed" the question, whether aliens illegally residing in the United States are entitled to equal protection of the law. Rejecting the defendants' contention that an alien illegally within the territorial boundaries of the United States is not a person "within the jurisdiction" of a State, Judge Johnson pointed out the