Imagini ale paginilor
PDF
ePub

Page

329—Special Naturalization Benefits for Honorable Military Service

during Specified Periods of Armed Conflict 340Revocation of Naturalization..

- Affidavit showing good cause.

-Manner of proof..
-Res judicata and laches..

-Concealments and misrepresentations-
349-355 Expatriation

-Constitutionality -
-Voluntariness.-

-Evidence and burden of proof..
360—Declaratory Judgement of Citizenship-

- Jurisdiction.--.
-Evidence and burden of proof..
-Index

54 54 54 55 55 55 56 56 57 58 58 59 60 61

[ocr errors]

SUMMARIES OF JUDICIAL DECISIONS

SCOPE AND NATURE OF DISCUSSION

This review will deal briefly with the major judicial decisions under the Immigration and Nationality Act of 1952, as amended. Since the volume of cases has been heavy, the study will necessarily be selective. Included will be all decisions of the Supreme Court, many in the United States courts of appeals, and a few in the district courts. The decisions will be listed under the section of the statute to which they relate.

SECTION 101. DEFINITIONS 1. Alien (101(a)(3))

The Supreme Court has held that upon the grant of independence to the Philippine Islands on July 4, 1946, Filipinos who had not acquired U.S. citizenship became aliens subject to the immigration laws. Raband v. Boyd, 353 U.S. 427 (1957). 2. Entry (101(a)(13))

The Supreme Court has held that entry of a Filipino prior to enactment of the Philippine Independence Act in 1934 was not an entry for the purposes of the deportation provisions dealing with conviction of crimes after entry. The statute was deemed to require entry as an alien and not as a national of the United States. Barber v. Gonzales, 347 U.S. 637 (1954). However, where a Filipino committed a narcotics violation in this country after he had become an alien at the time of the grant of independence to the Philippines, he was found deportable since the provisions for deportation of narcotics violators were not keyed to an entry. Raband v. Boyd, 353 U.S. 427 (1957).

A similar situation involved a criminal violator who was a naturalized citizen of this country at the time of his entry although his naturalization was later revoked. The court found that deportability for the criminal violation had to be predicated on entry as an alien. Since the individual involved was not an alien at the time of entry, the deportation order against him was not upheld. Brancato v. Lehmann, 239 F. 2d 663 (6th Cir. 1956). In an analogous situation, the Supreme Court invalidated a deportation order against a person convicted of two crimes involving moral turpitude before his naturalization was revoked. Costello v. ÎNS, 376 U.S. 120 (1964).

In Cheng v. INS, 534 F. 2d 1018 (2d Cir. 1956), the court found that aliens had made an entry and were therefore subject to deportation rather than exclusion proceedings where there was overwhelming evidence of actual and intentional evasion of inspection coupled with freedom from official surveillance or restraint for at least o of a mile after crossing the border.

In Rosenberg v. Fleuti, 374 U.S. 449 (1963), the Supreme Court announced a marked departure from the long-established concept of entry under the immigration laws. It held that an alien who made a

(1)

visit of a few hours to Mexico had not made an entry upon his return. Interpreting the requirement of section 101 (a)(13) that the departure to a foreign port or place must have been "intended”, the Court found that such intention would not inhere in a trip to a foreign country which was "innocent, casual, and brief”. The Court did not define the precise circumstances under which a new entry would occur but suggested that among the factors which might be considered in ascertaining whether there was an "intent to depart in a manner which could be regarded as meaningfully interruptive of the alien's permanent residence” were, the length of the absence, whether its purpose was opposed to a policy reflected in the immigration laws, and whether travel documents had to be procured for the trip.

In Wadman v. INS, 329 F. 2d 812 (9th Cir. 1964), the court applied this concept in holding that the continuous physical presence required for suspension of deportation (see section 244) was not interrupted by a five-day vacation in Mexico. Again, in Zimmerman v Lehmann, 339 F. 2d 943 (7th Cir. 1965), returns to the United States following brief vacation trips to Canada by a long time resident were found not to be entries. A frequent border crosser was also found not to have made an entry upon return to the United States after a brief visit to Mexico in which, armed with an ice pick, he sought but did not find persons who had robbed him on a previous visit. YanezJacquez v. INS, 440 F. 2d 701 (5th Cir. 1971). In Solis-Davila v. INS, 456 F. 2d 424 (5th Cir. 1972), an alien's return to the United States while smuggling other aliens into the United States was found to be an entry. However, Vargas-Banuelos v. INS, 466 F.2d 1371 (5th Cir. 1972), found no entry had occurred even though the alien became involved in a smuggling scheme where his primary motive in traveling to Mexico was to pay a condolence call

. Yet, in LaredoMiranda v. INS, 555 F. 2d 1242" (5th Cir. 1977), although a permanent resident alien's visit to Mexico was short and his intentions upon leaving the United States were innocent, the court found that he brought about a meaningful interruption of his permanent residence and thus effectuated a deportable entry without inspection when he actually participated in smuggling illegal aliens into the United States by serving as their pathfinder for a surreptitious crossing at an unauthorized place. 3. Immigrants and nonimmigrants (101(a)(15))

The statute does not define immigrants but classifies as immigrants all aliens who do not come within designated nonimmigrant classes. An alien who intends to remain permanently is regarded as an immigrant (and subject to appropriate numerical and visa requirements even though he or she professes to be in a nonimmigrant category. Feretic v. Shaughnessy, 221 F. 2d 262 (2d Cir. 1955), cert. denied, 350 U.S. 822 (1955). However, a wish to remain in this country, if an opportunity to do so legally presents itself at some future time, has been deemed not necessarily inconsistent with lawful nonimmigrant status. Brownell v. Larija, 254 F. 2d 78 (D.C. Cir. 1957). On the other hand, where an alien entered without inspection and within two months opened a small maintenance business requiring his continual supervision, the court found that he was not visiting the United States temporarily for business or pleasure, was not entitled to non

immigrant status, and was therefore deportable as an immigrant not in possession of a valid visa. Pereira-Diaz v. INS, 551 F.2d 1149 (9th Cir. 1977).

A nonimmigrant alien spouse who had been informed when he first entered the country that he had to get government approval before he accepted employment but who accepted employment prior to certification by the Department of Labor, was found not to have been denied due process by reason of any failure of INS to give him notice of his rights when he was ordered to depart voluntarily in lieu of deportation David v. INS, 548 F. 2d 219 (8th Cir. 1977). I nonimmigrant student who accepts employmept without permission of the Service violates his status and is deportable. Pilapil v. INS, 424 F. 2d 6 (10th Cir. 1970), cert. denied, 400 U.S. 908 (1970). Reasoning that the Government's failure to advise an alien admitted as an exchange student that he could not work until labor certification was received did not constitute affirmative conduct, the court in Oki v. INS, 598 F. 2d 1160 (9th Cir. 1979), held that the Government could not be estopped from ordering his deportation for working in violation of student status.

The regulation defining criteria for approval of schools attended by alien students have been judicially endorsed as necessary to avoid fraud and to protect alien students from exploitation. Royalton College v. Clark, 295 F. Supp. 365 (D.Vt. 1969). One court has held that while an adversary hearing is not required for withdrawal of approval of an institution for attendance by nonimmigrant alien students, due process requires a procedure that permits a meaningful opportunity to test and offer facts, present perspective, and invoke official discretion. Blackwell College of Business v. Attorney General, 454 F. 2d 928 (D.C. Cir. 1971). Where an alien student did not request authorization to change schools and his course of study until six weeks after he transferred schools and where he requested a two-year rather than the maximum one-year extension of visa, the district director's denial of these requests was not without rational explanation, made on an impermissible basis, or an abuse of discretion. Ibrahim v. Kiley, 420 F. Supp. 13 (S.D.N.Y. 1976).

The Supreme Court has held that nonimmigrants who are officers or employees of international treaty organizations and their families can form the requisite intent to and have the legal capacity to change their domicile to the United States, subject to the applicable state law. Elkins v. Moreno, 435 U.S. 647 (1978).

In Kun YoungKim v. District Director of U.S. INS, 586 F. 2d 713 (9th Cir. 1978), the court upheld INS use of a State Department regulation (8 C.F.R. 41.41(a)) in determining the requisite substantial investment for a nonimmigrant treaty investor to be more than the investment of a small amount of capital in a marginal enterprise solely for the purpose of earning a living. 4. Ineligible to citizenship (101(a)(19))

This definition relates primarily to aliens who are disqualified from entry because of an application for relief from military service. Although the terms of this definition are not fully consistent with section 315 of the Act which deals with a like disqualification from naturalization benefits, in an effort to avoid duplication, this study addresses the cases in this area under section 315.

74-386 0 - 81 - 2

« ÎnapoiContinuați »