5. United States (101(a) (38))

Following the effective date of the Philippine Independence Act on May 1, 1934, the Philippine Islands have been regarded as foreign territory. Banez v. Boyd, 236 F. 2d 934 (9th Cir. 1956). Aliens who travel from the continental United States to a territory of the United States are not subject to the restrictions of the immigration laws in entering the territory or in returning to their homes in the United States. Alcantra v. Boyd, 222 F. 2d 445 (9th Cir. 1955); Savoretti v. Voiler, 214 F. 2d 425 (5th Cir. 1954); Cf. I.L.W.U. v. Boyd, 347 U.S. 222 (1954). Of interest also are district court decisions holding that the Pacific Trust Territory is not part of the United States for the purposes of the deportation and naturalization statutes (Matter of Reyes, 140 F. Supp. 130 (D. Haw. 1956); Aradanas v. Hogan, 155 F. Supp. 546 (D. Haw. 1957)); holding that Midway is a part of the United States for naturalization purposes (Petition of Alacar, 196 F. Supp 564 (D. Haw. 1961)); and that Wake Island is not a foreign port or place or an outlying possession (United States v. Paquet, 131 F. Supp. 32 (D. Haw. 1955)).

6. Child (101(b) (1))

The determination of a child's legitimacy for the purposes of visa preference is governed by the applicable law at the time and place of his or her birth. Thus, since all children born in the People's Republic of China are considered legitimate under Chinese law, a petitioner for a visa preference on behalf of his child born out of wedlock in China need not show any legal procedure of legitimation but only that the beneficiary is his natural child. Lau v. Kiley, 563 F. 2d 543 (2d Cir. 1977).

In Fiallo v. Bell, 430 U.S. 787 (1977), the Supreme Court upheld the constitutionality of section 101(b)(1)(D), which excludes the relationship between an illegitimate child and his natural father from the preferences accorded by the Act of the "child" or "parent" of a U.S. citizen or lawful permanent resident, reasoning that Congress has the power to draw such distinctions in immigration policy. However, in Hyppolite v. Sweeney, No. 77-1865 Civ.-W.M.É. (S.D. Fla., decided Jan. 6, 1979), the court endorsed the view of Andrade v. Esperdy, 270 F. Supp. 516 (S.D.N.Y. 1967), and held that where a U.S. Citizen stepmother, married to the natural father of an illegitimate alien child, petitions for nonquota status for that child, there is no need to show a prior family relationship in order for the petition to be approved.

In Pascual v. O'Shea, 421 F. Supp. 80 (D. Haw. 1976), adopted children were classified as "immediate relatives" where they had been adopted in a court of competent jurisdiction prior to the time they attained the age of fourteen years, had been in the legal custody of their petitioning parents for at least two years after the adoption, and had resided with those petitioners for at least two years prior to the adoption.

7. Good moral character (101(f))

The Act of 1952 introduced a definition of good moral character which is significant chiefly in connection with applications for naturalization, suspension of deportation, and other discretionary benefits. Litigants have contended that this definition, which precludes

the establishment of good moral character in certain situations, is excessively rigid.

One area of dispute has concerned the asserted commission of adultery which is specifically designated in the statute as precluding the establishment of good moral character during the critical period. In Dickhoff v. Shaugnessy, 142 F. Supp. 535 (S.D.N.Y. 1956), the court found that the statute was not aimed at persons who have committed "technical adultery" resulting from a remarriage in good faith following an invalid Mexican divorce. This holding thereafter was adopted and followed by the administrative authorities as a correct evaluation of the legislative design. Isolated acts of sexual intercourse by a man whose wife had abandoned him were found in Wadman v. INS, 329 F. 2d 812 (9th Cir. 1964), not to constitute adultery within the statute and thus did not preclude the establishment of good moral character. The court stated that the statute was aimed at "extramarital intercourse which tends to destroy an existing marriage, which evidences disregard of marital vows and responsibilities." Another significant decision is Posusta v. United States, 285 F. 2d 533 (2d Cir. 1961). This case involved a twenty year relationship, adulterous at first, which was continued after the impediment was removed and thereafter was regularized by marriage within the prescribed statutory period of good moral character. The court held that the conduct within the statutory period was not inconsistent with the establishment of good moral character. Of Gutierrez-Sosa v. Del Guercio, 247 F. 2d 266 (9th Cir. 1957); Zacharias v. Shaughnessy, 221 F. 2d 578 (2d Cir. 1955). In denying voluntary departure to a deportable alien who had committed adultery, BreaGarcia v. INS, 531 F. 2d 693 (3d Cir. 1976), held that adultery must be construed according to the civil, as opposed to the criminal, law of the state in which the act occurs. The statutory designation of adultery does not reach extra marital relationships short of adultery. Behavior of the parties in such relationships is assessed on the facts in each individual case. See Estrada-Ojeda v. Del Guercio, 252 F. 2d 904 (9th Cir. 1958); Flumerfelt v. United States, 230 F. 2d 870 (9th Cir. 1956); Petition of Kielblock, 163 F. Supp. 687 (S.D. Cal. 1958

Another area of litigation has concerned the giving of false testimony for the purpose of obtaining benefits under the Act. Some authorities have read this language narrowly and have not regarded it as reaching false statements which are not in the form of testimony. Sharaiha v. Hoy, 169 F. Supp. 598 (S.D. Cal. 1959) (sworn certificate attached to application for extension of stay). Other authorities have interpreted the statute more expansively. Orlando v. Robinson, 262 F. 2d 850 (7th Cir. 1959), cert. denied, 359 U.S. 980 (1959) (naturalization and registry applications); Langhammer v. Hamilton, 295 F. 2d 642 (1st Cir. 1961) (application for immigrant visa). See also Bufalino v. Holland, 277 F. 2d 270, 276 (3d Cir. 1960), cert. denied, 364 U.S. 863 (1960) (deportation proceedings). Still another area of controversy has concerned the absolute preclusion from establishment of good moral character by those who at any time have been convicted of murder. Some authorities suggest that a pardon may remove the disqualification. Taylor v. United States, 231 F. 2d 856 (5th Cir. 1956); Petition of De Angelis, 139 F. Supp. 779 (E.D.N. Y. 1956). Others take a contrary view, unless the pardon was based on a finding that the defendant

had been improperly convicted. Petition of Salani, 196 F. Supp. 513 (N.D. Cal. 1961); Matter of Siacco, 184 F. Supp. 803 (D.Md. 1960). One court has ruled that a pardon cannot expunge the disqualification. In re Quintana, 203 F. Supp. 376 (S.D. Fla. 1962).

8. Deportation (101 (g))

Reciting the definition of deportation in earlier law, which is carried forward in the present statute, the Supreme Court found that an alien who had left the United States while an order of deportation against him was outstanding had been deported. Mrvica v. Esperdy, 376 U.S. 560 (1964).

SECTION 103. POWERS OF THE ATTORNEY GENERAL

1. Delegation of authority

The statute confers on the Attorney General broad authority to delegate the powers it grants him. One expression of such delegation is the establishment of the Board of Immigration Appeals and the assignment to it of broad appellate authority. In Accardi v. Shaughnessy, 347 U.S. 260 (1954), the Supreme Court recognized the propriety of such delegation but found that the Attorney General could not deviate in individual cases from the authority he had reposed in the Board of Immigration Appeals under his published regulations. It ruled that an issue requiring trial was posed by an allegation that the Attorney General had prohibited the Board from exercising its discretion in regard to persons on a list of "unsavory characters." However, after the trial was conducted the Court found that the allegations of prejudgment had not been substantiated. Shaughnessy v. Accardi, 349 U.S. 280 (1955). Similar charges of prejudgment have been made in other cases, which are discussed under section 242(b), paragraph 2. The courts have held that in exercising its delegated authority the Board can make its own independent determinations on questions of law and fact and on whether discretionary relief should be granted. Woodby v. INS, 385 U.S. 276 (1966); Carrasco-Favela v. INS, 445 F. 2d 865 (9th Cir. 1971); Ameeriar v. INS, 438 F. 2d 1028 (3d Cir. 1971); Noverola-Bolaina v. INS, 395 F. 2d 131 (9th Cir. 1968); De Lucia v. INS, 370 F. 2d 305 (7th Cir. 1966), cert. denied, 386 U.S. 912 (1967).

In Faddah v. INS, 580 F. 2d 132 (5th Cir. 1978), the court ruled that the BIA did not abuse its discretion in refusing to reopen deportation proceedings for consideration of discretionary relief where much of the material presented for the first time in the motion to reopen could have been presented in earlier motions. A contention that the absence of guidelines from the Attorney General makes determinations improper has been rejected. Jarecha v. INS, 417 F. 2d 220 (5th Cir. 1969).

Even before the enactment of 8 C.F.R. 3.1(a)(h), providing that three members shall at all times constitute a quorum, courts held that the common law rule, under which a simple majority constitutes a quorum of a collective body, was ample authority for conducting hearings before three of the five members of the Board of Immigration Appeals. Au Yi Lau v. INS, 555 F. 2d 1036 (D.C. Cir. 1977); Ho Chong Tsao v. INS, 538 F. 2d 667 (5th Cir. 1976), cert. denied, 430 U.S. 906 (1977). Also, in Au Yi Lau v. INS, supra, the court

held that even though four of the five participants in the Board's decision had not been present at the oral argument, because a transcript of the argument was circulated to all participants prior to their vote on the merits, 8 C.F.R. 3.1 (e), authorizing oral argument before the Board, was not rendered a nullity.

The broad authority to delegate powers has been exhibited in other areas. In United States v. Thompson, 475 F. 2d 1359 (5th Cir. 1973), the court declared that there was no unlawful delegation of authority from one agency to another when a Border Patrol Officer was given power to conduct customs searches. The Attorney General is also authorized to establish such regulations as deemed necessary in accordance with the notice and comment requirements of the Administrative Procedure Act, (5 U.S.C. 553). In U.S. ex. rel. Parco v. Morris, 426 F. Supp. 976 (E.D. Pa. 1977), although a change in INS operations instructions to deny extended voluntary departure to third preference petitioners was supported by a rational basis, the court held the change invalid for failure to satisfy the notice and comment requirements. Similarly, in Sannon v. United States, 460 F. Supp. 458 (S.D. Fla. 1978), on remand through the Court of Appeals for the 5th Circuit from the Supreme Court (where the aliens' cases were remanded for a determination as to mootness on the basis of the Government's representation that it was promulgating regulations providing full evidentiary hearings on asylum claims in exclusion proceedings), the court held that the cases were not moot because the new regulations violated both the notice and comment and delayed effective date requirements of the Administrative Procedure Act and were thus null and void. However, in Narenji v. Civiletti. 617 F.2d 745 (D.C. Cir. 1979), cert. denied, U.S. (1980), the court upheld the Attorney General's promulgation of 8 C.F.R. 214.5 requiring all Iranian students to report to INS to provide information as to residence and maintenance of status or else face deportation despite the lack of compliance with the notice and comment requirements. The court characterized the regulation in this instance as a fundamental element of the President's political efforts to resolve the Iranian crisis and thus declined to overrule it.

2. Review by the Attorney General of Board decisions

The regulations provide for referral to the Attorney General of certain Board decisions for review. 8 CFR 3.1(h). Under current procedures the respondent ordinarily is not informed of such referral and is not given an opportunity to make additional representations to the Attorney General. One court has characterized this procedure as improper and illegal. Bannout v. Brownell, 129 F. Supp. 488 (D.C. 1955). However, other courts have found no defect in this procedure, particularly when only issues of law are involved. Klapholz v. Esperdy, 201 F.Supp. 294 (S.D.N. Y. 1961) aff'd, 302 F. 2d 928, cert. denied, 371 U.S. 891 (1962); Nani v. Brownell, 247 F. 2d 103 (D.C. Cir. 1957), cert. denied, 355. U.S. 807 (1951).

SECTION 106. JUDICIAL REVIEW

This section was added by section 5, Act of September 26, 1961, Public Law 87-301, 75 Stat. 651. Previously, the Supreme Court had

ruled that judicial review in a U.S. district court under section 10. of the Administrative Procedure Act, 5 U.S.C. 1009, was appropriate in challenging an order of deportation (Shaughnessy v. Pedreiro, 349 U.S. 48 (1955)), an order of exclusion (Brownell v Shung, 352 U.S. 180 (1956)), or a denial of discretionary relief (Ceballos v Shaughnessy, 352 U.S. 599 (1957)). Section 106 was designed "to create a single, separate, statutory form of review" of final deportation orders by petition for review in the U.S. Court of Appeals (H. Rept. 565, 87th Cong., 1st sess., p.1).

In Foti v. INS, 375 U.S. 217 (1963), the Supreme Court rejected the narrow reading of the statute adopted by some of the lower courts and ruled that the courts of appeals now have exclusive jurisdiction to review orders denying suspension of deportation. It also declared that the consideration of other discretionary relief during the deportation proceeding (such as applications for adjustment of status and registry and to withhold deportation because of anticipated persecution) are merged in the final deportation order so that denials of such relief during the course of the deportation proceeding are reviewable only in the courts of appeals.

Subsequently, the Supreme Court went further and ruled in Giova v. Rosenberg, 379 U.S. 18 (1964), that the denial of a motion to reopen the deportation proceeding is part of the final deportation order and reviewable under section 106. However, Reyes v INS, 571 F. 2d 505 (9th Cir. 1978), explained that while a motion to reopen the proceedings is still pending before the Board of Immigration Appeals, the court of appeals lacks the jurisdiction to review the Board's denial of a stay of deportation because such discretionary denial of interim relief does not constitute a final order of deportation or its functional equivalent. Still unsettled is whether such review is available when the denial of the motion to reopen occurs after the six-month period during which the original deportation order could have been challenged. See Kladis v. INS, 343 F. 2d 513 (7th Cir. 1965), holding that a petition for review is unavailable after such six-month period.

After the foregoing decisions there was a continuing debate as to the extent to which section 106 governs review of determinations ancillary to the deportation order. This debate was largely resolved by the Supreme Court in Kwok v. INS, 392 U.S. 206 (1968), which ruled that ancillary determinations not made in a proceeding conducted under section 242 (b) of the statute, even though they seek to nullify or delay the deportation order, are not directly reviewable in the court of appeals under section 106. To the extent that such reviews are appropriate, they must be brought in the district court. Moreover, under the terms of the statute the exclusive review procedure in the court of appeals is inapplicable to exclusion orders which can be reviewed only through habeas corpus proceedings. Chin v. INS, 386 F. 2d 935 (9th Cir. 1967), cert. denied 392 U.S. 927 (1968). One court has ruled that in a review proceeding under this section it could compel reopening of the administrative proceedings to receive evidence bearing on future eligibility for a visa which was deemed relevant to the consequences of the deportation order. Rose v. Woolwine, 344 F. 2d 993 (4th Cir. 1965).

The courts have found that the six-month time limitation fixed in the statute cannot be modified and have refused to entertain petitions for review brought after such six-month period. Russo v. U.S. Immigra