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they are unmarried. In Corniel-Rodriguez v. INS, 532 F. 2d 301 (2d Cir. 1976), where the U.S. Consul in Santo Domingo issued a special immigrant visa to the child of a special immigrant but failed, in violation of 8 C.F.R. 42.122(d), to warn her that her visa would become invalid if she married before entering the United States, the court held that she was not deportable for having wed a Dominican only three days before entering the United States. In Chan v. Bell, 464 F. Supp. 125 (D.D.C. 1978), where the marriage of a U.S. citizen petitioner to an alien spouse was lawful at its inception and lawful at the time the immediate relative visa petition was filed, the court held the marriage valid for visa purposes. The court, noting that the parties were living apart but that no divorce or separation proceeding had been instituted, held that the INS had no authority to invalidate such a marriage by terming it “not viable.” The INS now accepts this decision as a rule of general applicability.

SECTION 235. INSPECTION BY IMMIGRATION OFFICERS

1. Delayed inspection

In Klapholz v. Esperdy, 201 F. Supp. 294 (S.D. N.Y. 1961), aff'd per curiam, 302 F. 2d 928, cert. denied, 371 U.S. 891 (1962), the court upheld the exclusion of a returning resident alien who was paroled upon his return to await disposition of criminal charges against him and who later was exluded on the basis of his conviction for such charges. 2. Subpoenas

Section 235(a) contains broad authority, which does not appear elsewhere in the Act, for the issuance of subpoenas "relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this Act." Although this language appears in a section dealing with entry procedures, it apparently was intended to encompass all immigration procedures, including expulsion cases, United States v. Vivian, 224 F.2d 53 (7th Cir. 1955), cert. denied, 350 U.S. 953 (1956). Cf. Mew v. Jones, 268 F. 2d 376 (9th Cir. 1959), which doubts such extensive authority. See also United States v. Minker, 350 U.S. 179 (1956). Although the statute refers to the subpoena of witnesses, it has been deemed to authorize the subpoena of an alien who is a prospective respondent in deportation procedeings. Sherman v. Hamilton, 295 F. 2d 516 (1st Cir. 1961), cert. denied, 369 U.S. 820 (1962). The Supreme Court has ruled that the statute does not authorize the subpoena of a naturalized citizen for the purpose of determining whether good cause exists for bringing revocation proceedings against him. United States v. Minker, 350 U.S. 179 (1956). However, this does not preclude the subpoena of a citizen as a witness in an immigration proceeding brought against another person. United States v. Zuskar, 237 F. 2d 528 (7th Cir. 1956), cert. denied, 352 U.S. 1004 (1957).

SECTION 236. ExcLUSION PROCEEDINGS

1. Effect of prior determinations

This question most frequently concerns prior determinations of citizenship. To avoid duplication, it is considered in connection with expulsion hearings under section 242.

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requires that INS officials focus not on whether a bona fide and lasting relationship exists at the time the application is reviewed but on whether a valid marriage was entered into in the first place. Whetstone V. INS, 561 F. 2d 1303 (9th Cir. 1977).

SECTION 215. TRAVEL CONTROL DURING TIME OF WAR OR

NATIONAL EMERGENCY

Decisions relevant to this section chiefly have concerned the requirement of American passports by citizens departing from or reentering the United States during a national emergency. In Kent v. Dulles, 357 U.S. 116 (1958), the Supreme Court underscored the critical value of an American passport, particularly in the light of section 215, and found that while the Secretary of State's power to issue passports is discretionary, such discretion is not unbridled. It held that the Secretary of State did not then have authority to deny passports because of Communist membership or associations since the relevant provision of the Internal Security Act had not yet become effective. In Aptheker v. Secretary of State, 378 U.S. 500 (1964), a statutory provision precluding the issuance of passports to Communists was found unconstitutional as too broad. On the other hand, the restrictions imposed on travel of American citizens to Cuba were upheld by the Supreme Court. Zemel v. Rusk, 381 U.S. 1 (1965). Similar restrictions on travel to Communist China have also been upheld. Porter v. Herter, 278 F. 2d 280 (D.C. Cir. 1960) cert, denied, 364 U.S. 837 (1960); Worthy v. Herter, 270 F. 2d 905 (D.C. Cir. 1959); Frank v. Herter, 269 F. 2d 245 (D.C. Cir. 1959), cert. denied, 361 U.S. 918 (1959). However, it has been held that the statute does not authorize the Secretary of State to refuse to issue or renew a passport if the citizen agrees to abide by the area restrictions in using the passport but plans to travel to restricted areas without using his passport, Lynd v. Rusk, 389 F. 2d 940 (D.C. Cir. 1967).

In another type of restrictive situation, not limited in scope to times of war or national emergency, the Supreme Court in Califano v. Aznavorian, 439 U.S. 170 (1978), held that section 1611(b) of the Social Security Act, which provides that no person shall receive Supplemental Security Income benefits for any month spent entirely outside the United States, has a rational basis and its incidental effect on the freedom of international travel does not render it unconstitutional.

In Worthy v. United States, 328 F. 2d 386 (5th Cir. 1964), the criminal penalty imposed upon a citizen entering the United States without à valid passport was found unconstitutional as an improper restraint on his right to return to his own country. Moreover, the Supreme Court has held that the criminal penalties imposed by this section apply only to one'who has departed without a valid passport and are inapplicable when the holder of the passport simply violates restrictions on its use. United States v. Laub, 385 U.S. 475 (1967); Travis v. United States, 385 U.S. 491 (1967).

SECTION 224. IMMEDIATE RELATIVE AND SPECIAL IMMIGRANT

VISAS

Children of special immigrants may be admitted as special immigrants exempt from labor certification requirements provided that they are unmarried. In Corniel-Rodriguez v. INS, 532 F. 2d 301 (2d Cir. 1976), where the U.S. Consul in Santo Domingo issued a special immigrant visa to the child of a special immigrant but failed, in violation of 8 C.F.R. 42.122(d), to warn her that her visa would become invalid if she married before entering the United States, the court held that she was not deportable for having wed a Dominican only three days before entering the United States. In Chan v. Bell, 464 F. Supp. 125 (D.D.C. 1978), where the marriage of a U.S. citizen petitioner to an alien spouse was lawful at its inception and lawful at the time the immediate relative visa petition was filed, the court held the marriage valid for visa purposes. The court, noting that the parties were living apart but that no divorce or separation proceeding had been instituted, held that the INS had no authority to invalidate such a marriage by terming it “not viable.” The INS now accepts this decision as a rule of general applicability.

SECTION 235. INSPECTION BY IMMIGRATION OFFICERS

1. Delayed inspection

In Klapholz v. Esperdy, 201 F. Supp. 294 (S.D. N.Y. 1961), aff'd per curiam, 302 F. 2d 928, cert. denied, 371 U.S. 891 (1962), the court upheld the exclusion of a returning resident alien who was paroled upon his return to await disposition of criminal charges against him and who later was exluded on the basis of his conviction for such charges. 2. Subpoenas

Section 235(a) contains broad authority, which does not appear elsewhere in the Act, for the issuance of subpoenas "relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this Act." Although this language appears in a section dealing with entry procedures, it apparently was intended to encompass all immigration procedures, including expulsion cases, United States v. Vivian, 224 F.2d 53 (7th Cir. 1955), cert. denied, 350 U.S. 953 (1956). Cf. Mew v. Jones, 268 F.2d 376 (9th Cir. 1959), which doubts such extensive authority. See also United States v. Minker, 350 U.S. 179 (1956). Although the statute refers to the subpoena of witnesses, it has been deemed to authorize the subpoena of an alien who is a prospective respondent in deportation procedeings. Sherman v. Hamilton, 295 F. 2d 516 (1st Cir. 1961), cert. denied, 369 U.S. 820 (1962). The Supreme Court has ruled that the statute does not authorize the subpoena of a naturalized citizen for the purpose of determining whether good cause exists for bringing revocation proceedings against him. United States v. Minker, 350 U.S. 179 (1956). However, this does not preclude the subpoena of a citizen as a witness in an immigration proceeding brought against another person. United States v. Zuskar, 237 F. 2d 528 (7th Cir. 1956), cert. denied, 352 U.S. 1004 (1957).

SECTION 236. ExcLUSION PROCEEDINGS

1. Effect of prior determinations

This question most frequently concerns prior determinations of citizenship. To avoid duplication, it is considered in connection with expulsion hearings under section 242.

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2. Blood test evidence

Various issues have arisen in connection with the use of blood grouping tests in testing alleged relationship to a U.S. citizen. The use of the tests has been sustained if they were conducted without discrimination by qualified technicians under adequate safeguards and if the applicant was given opportunity to cross-examine the techincians and to rebut their findings. Hoy v. Murff, 355 U.S. 169 (1957); Ott v. Shaughnessy, 220 F. 2d 537 (2d Cir. 1955); Hoy v. Shaughnessy, 115 F. Supp. 302 (S.D. N.Y. 1953). They must also have been voluntary. Cheung v. Rogers, 272 F. 2d 354 (9th Cir. 1959). 3. Finality of decisions

A valid exclusion order based upon a final judgement, in which direct appeals have been exhausted or waived, cannot be disturbed by a post-conviction attack upon that judgement, even where that attack results in expungement. Furthermore, a post-conviction attack upon an exclusion order will not be permitted unless there is shown a gross miscarriage of justice at the prior proceedings. HernandezAlmanza v. INŠ, 547 F. 2d 100 (9th Cir. 1976).

SECTION 237. DEPORTATION OF EXCLUDED ALIENS 1. Place of deportation

The statute requires that an excluded alien be sent to the country whence he came. One case held that this normally means the country in which he lived before coming here and that an alien could not be sent to his native country which he had left as a refugee thirteen years earlier. Milanovic v. Murff, 253 F. 2d 941 (2d Cir. 1958). Where a longtime resident alien of the United States was excluded upon

his return from a temporary absence, the court refused to sanction the execution of his exclusion order to any other country since no country other than the United States fit the description of "country whence he came." Stacher v. Rosenberg, 216 F. Supp. 511 (S.D. Cal. 1963).

It has been held that the exclusion statute, unlike the expulsion statute, does not require advance consent of the country of destination. Therefore the court approved a procedure to deport an excluded alien to The People's Republic of China through Hong Kong upon the Government's assurance that it would bring him back to this counrry if The People's Republic did not accept him. Shung v. Murff, 176 F. Supp. 253 (S.D. N.Y. 1959), aff'd per curiam, 274 F. 2d 667 (1960). 2. Persecution claims

In the absence of a statutory provision for the consideration of a claim that an excluded alien would be subject to persecution, the Supreme Court upheld the refusal to consider such claims submitted by aliens who were admitted on parole, even though the execution of the exclusion order was delayed considerably by challenges to its validity. Ma v. Barber, 357 U.S. 185 (1958); Rogers v. Quan, 357 U.S. 193 (1958).

One court has held that an alien crewman granted shore leave is not in the same position as a parollee. Having been admitted to the United States, such person is subject to deportation rather than exclusion proceedings and thus can take advantage of section 243(b). Szaljmer v. Esperdy, 188 F. Supp. 491 (S.D. N.Y. 1960). However, this holding has been disputed by other courts, which have held that an alien crewman whose conditional landing permit had been revoked was not entitled to a deportation hearing and thus could not take advantage of section 243(h). Luk v. Rosenberg, 409 F. 2d 555, (9th Cir. 1969); Klordic v. Esperdy, 386 F.2d 232 (2d Cir. 1967), cert. denied, 392 U.S. 935 (1968); Glavic v. Beechie, 225 F. Supp. 24 (S.D. Tex. 1963), af'd, 340 F. 2d 91 (5th Cir. 1964). This conflict was resolved in INS v. Stanisic, 395 U.S. 62 (1968), rehearing denied, 395 U.S. 987 (1968), in which the Supreme Court held that although an alien crewman is not entitled to a deportation hearing before a special inquiry officer, his request for asylum may nevertheless be heard by a district director pursuant to 8 C.F.R. 253.1(f). The Court stressed that this regulation applies to any alien crewman whose conditional landing permit has been revoked pursuant to section 252(b), regardless of whether his vessel is still in port or has already departed.

It should be noted that under The Refugee Act of 1980, Pub. L. No. 96-212, Sec. 208(a), 94 Stat. 107 (1980), a new statutory provision has been established whereby any alien physically present in the United States or at a land border or port of entry, "irrespective of such alien's status”, may apply for asylum on the basis of a well founded fear of persecution (as defined in section 201(a) of that Act). However, no cases arising under this new provision are digested here.

SECTION 241. GROUNDS FOR DEPORTATION

1. Interpretation of deportation statutes

The Supreme Court has repeatedly emphasized the severe consequences of expulsion and the necessity that deportation statutes be narrowly construed. INS v. Errico, 385 U.S. 214 (1966); Costello v. INS, 376 U.S. 120 (1964); Rosenberg v. Fleuti, 374 U.S. 449 (1963); Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963); Bonetti v. Rogers, 356 U.S. 691 (1958); Barber v. Gonzales, 347 U.S. 637 (1954). 2. Constitutionality

There have been numerous challenges to the constitutionality of various aspects of the deportation statute. In Galvan v. Press, 347 U.S. 522 (1954), the Supreme Court upheld the provisions for deportation of former members of the Communist Party. A frequent contention has been that retroactive provisions of the deportation statute violate the ex post facto clause of the Constitution. This contention was rejected in Galvan v. Press, supra, and in Mulcahey v. Catalanotte, 353 U.S. 692 (1957); Lehmann v. Carson, 353 U.S. 685 (1957); Marcello v. Bonds, 349 U.S. 302 (1955). The courts have also rejected contentions that deportation orders inflict cruel and unusual punishment. Chabolla-Delgado v. INS, 384 F. 2d 360 (9th Cir. 1967); De Lucia v. INS, 370 F. 2d 305 (7th Cir. 1966), cert. denied, 386 U.S. 912 (1967); Burr v. INS, 350 F. 2d 87 (9th Cir. 1965), cert. denied, 383 U.S. 915 (1966).

As noted under section 212, the exclusion of sexual deviates or persons afflicted with psychopathic personalities was found not to rest on an unconstitutionally vague statute in Boutilier v. INS, 387 U.S. 118 (1967).

A deportation order was approved based on a retrospective construction of a 1960 amendment making excludable and deportable an

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