tion Commissioner, 342 F. 2d 42 (1st Cir. 1965); Liadakis v. INS, 339 F.2d 447 (4th Cir. 1964). However, a petition to review denial of a motion to reopen is timely if filed within six months after such denial. Wong v. INS, 363 F. 2d 234 (9th Cir. 1966). See also Yamada v. INS, 384 F.2d 214 (9th Cir. 1967).

When there has been no deportation proceeding, the exclusive procedure prescribed by this section apparently is inapplicable, and immigration determinations can still be reviewed by a declaratory proceeding in the district court. Mendez v. Major, 340 F. 2d 128 (8th Cir. 1965) (waiver for exchange visitor). In addition, the Supreme Court has held that whenever there is a genuine issue of material fact as to nationality, a petitioner claiming citizenship is entitled to a de novo hearing in the district court. Agosto v. INS, 436 U.S. 748 (1978). Where deportation had been in contravention of due process in that the alien's counsel had not been given notice of the alien's order to appear for deportation and the alien had been deported without managing to contact counsel, the court ordered that the alien should not be deprived of judicial review but should be readmitted with predeportation status to pursue any administrative and judicial remedies to which he was entitled. Mendez v. INS, 563 F. 2d 956 (9th Cir. 1977). The standard of federal judicial review of state statutes governing aliens has been the subject of much litigation. In Graham v. Richardson, 403 U.S. 365 (1971), the Supreme Court held that classifications based on alienage are inherently suspect and require strict judicial scrutiny. It had state statutes that denied welfare benefits to resident aliens and to aliens who had not resided here for a specific number of years unconstitutional as violations of the equal protection clause of the Fourteenth Amendment. See also United States v. Carolene Products Co., 304 U.S. 144 (1938). Similarly, in Nyquist v. Mauclet, 432 U.S. 1 (1976), where the Court found no legitimate and substantial governmental interest to justify a New York statute which barred certain resident aliens from state financial aid for higher education, it held the statute unconstitutional on equal protection grounds. This standard has become known as the compelling state interest test. See also In re Griffiths, 413 U.S. 717 (1973). However, in Foley v. Connelie, 435 U.S. 291 (1978), the Court declined to apply strict scrutiny in matters firmly within a state's constitutional prerogatives. Upholding a New York statute restricting membership in the state troopers to citizens, the Court reasoned that the restriction had a rational relationship to the state's interest in democracy. See also Sugarman v. Dougall, 413 U.S. 634 (1973). Employing the same standard Ambach v. Norwick, 441 U.S. 68 (1979), the Court found a state statute forbidding permanent certification as a public school teacher of any person who is not a U.S. citizen, unless that person manifested an intent to apply for citizenship, had a rational relationship to a legitimate state interest and thus did not violate equal protection. The Court explained that since public school teaching is a governmental function, its regulation is subject only to the rational basis test rather than the strict scrutiny otherwise applicable to classification based on alienage.

SECTION 201 NUMERICAL LIMITATIONS

This section provides that "immediate relatives" are not subject to the annual limitation of immigrants. "Immediate relatives" are

defined as children, spouses, and parents of a citizen of the United States, provided that in the case of parents, such citizen must be at least twenty-one years of age. The court applied this age limitation in Rubio de Cachu v. INS, 568 F. 2d 625 (9th Cir. 1977), reasoning that an alien illegally present in the United States cannot gain favored status merely by birth of his or her citizen child. This limitation is constitutional and not a violation of an infant's right to equal protection or due process. Ghassemi v. United States (2d Cir. 1972), cert. denied, 409 U.S. 886 (1972); Faustino v. INS, 432 F. 2d 429 (2d Cir. 1970), cert. denied, 401 U.S. 921 (1971); Perdido v. INS, 420 F. 2d 1179 (5th Cir. 1969); King v. Katzenback, 360 F.2d 304 (5th Cir. 1966). In Silva v. Bell, 605 F. 2d 978 (7th Cir. 1979), where 144,999 visa numbers distributed to Cuban refugees under the Cuban Adjustment Act of 1966 had been wrongly charged against the Western Hemisphere quota, the court ordered that those numbers be recaptured and reissued to persons on the waiting list in accordance with historical immigration patterns for the countries involved rather than in strict chronological order without regard to national origin.

SECTION 203. PREFERENCES WITHIN QUOTAS

It is well established that in order to qualify as a son or daughter for the purposes of obtaining visa preference, one must once have qualified as a child under section 101 (b) (1) of this Act. Lau v. Kiley, 563 F. 2d 543 (2d Cir. 1977). In denying a second preference visa petition, the court in Oi Lan Lee v. District Director, 573 F.2d 592 (9th Cir. 1978), found that the district director did not abuse his discretion in considering blood test data which did not definitley exclude the claimed mother/son relationship but which was all but conclusive that no such relationship existed.

In Bergen Dress Co. v. Bouchard, 304 F. 2d 145 (3d Cir. 1962) the court upheld the reasonableness of the criteria of age and experience established by the Attorney General in passing on preference petitions filed on behalf of tailors. In Lee v. INS, 375 F. 2d 723 (9th Cir. 1967), cert. denied, 389 U.S. 856 (1967), and Mui v. Esperdy, 371 F.2d 772 (2d Cir. 1966), cert. denied, 386 U.S. 1017 (1967), the courts ruled that adjustment of status under section 203 (a) (7) for refugees in the United States is governed by the general requirements for adjustment of status prescibed by section 245.

In Rosenberg v. Yee Chien Woo, 402 U.S. 49 (1971), the Supreme Court established that seventh preference conditional entry under section 203 (a) (7) (A) for refugees fleeing Communist or Middle East countries for fear of persecution on account of race, religion or political opinion requires that the alien's physical presence in the United States be a consequence of his or her flight. In addition, that presence must be reasonable proximate to the flight, not remote in time or interrupted by residence in a third country which constitutes a termination of the original flight for refuge. This resettlement concept was applied in Chinese American Civic Council v. Attorney General of the U.S., 566 F.2d 321 (D.C. Cir. 1977), where sixteen to twenty years residence in Hong Kong came between the aliens' flight from mainland China and their application for refugee status in the United States. The court

found that the aliens' applications were not reasonably proximate to their flight but rather indicated that they had already firmly resettled and were thus no longer eligible for seventh preference refugee status. In Ishak v. District Director, 432 F. Supp. 624 (N.D. Ill. 1977), the court held that an alien's own conclusory statements that he would be subject to persecution if he returned to his home country may not be sufficient of themselves to meet the burden of proof necessary to establish refugee status under section 203 (a) (7). Furthermore, secondary materials of a general nature, such as newspaper articles in Ishak which referred only vaguely to "anti-government religious riots", are insufficient to prove the probable persecution necessary for a particular individual seeking refugee status.

SECTION 204. VISA PETITIONS

Judicial review of orders denying visa petitions has been sought with increasing frequency. In Montgomery v. Ffrench, 299 F. 2d 730 (8th Cir. 1962), the court found the Attorney General's rejection of a visa petition on behalf of an alien orphan on a finding that the child would not be cared for properly was a discretionary determination and not subject to judicial review.

In Maggiore Bakery, Inc. v. Esperdy, 238 F. Supp. 374 (S.D.N.Y. 1964), the procedure for considering visa petitions was found essentially fair and not subject to the procedural requirements of the Administrative Procedure Act. Judicial review of denial of preference visa classification is limited to whether the denial was an abuse of discretion. Mamengo v. INS, 446 F. 2d 51 (9th Cir. 1971); Suh v. Rosenberg, 437 F. 2d 1098 (9th Cir. 1971); Asuncion v. District Director, 427 F. 2d 523 (9th Cir. 1970); Pizarro v. District Director, 415 F. 2d 481 (9th Cir. 1969). Spata v. INS, 442 F. 2d 1013 (2d Cir. 1971), cert. denied, 404 U.S. 857 (1971), upheld a refusal to postpone the expulsion of a sixth preference alien for whom a visa number was not then available.

SECTION 205. REVOCATION OF VISA PETITIONS

The regulations prescribing automatic revocation of a visa petition for a spouse upon request of the petitioner for withdrawal were approved in Wright v. INS, 379 F. 2d 275 (6th Cir. 1967), cert. denied, 389 U.S. 928 (1967); Stellas v. Esperdy, 366 F. 2d 266 (2d Cir. 1966), remanded, 388 U.S. 462 (1967); Periera v. INS, 342 F. 2d 422 (1st Cir. 1965); Scalzo v. Hurney, 225 F. Supp. 560 (E.D.Pa. 1963), aff'd per curiam, 338 F. 2d 339 (3d Cir. 1964), cert. denied, 382 U.S. 849 (1965). However, the propriety of automatic revocation of a visa petition upon death of the petitioning husband was questioned in Pierno v. INS, 397 F. 2d 949 (2d Cir. 1968).

In Navarro v. District Director of U.S. INS, 574 F. 2d 379 (7th Cir. 1978), cert. denied, 439 U.S. 861 (1978), the court found that the Attorney General had "good and sufficient cause" to revoke the approval of an alien's third preference petition where she had not qualified as a registered nurse within two years after her admission, despite an indication that this was expected of her.

SECTION 212. ALIENS EXCLUDED FROM THE UNITED STATES

This section, which specifies the grounds for exclusion and grants authority to waive excludability in certain situations, has been the subject of many cases. Some of these have involved deportation charges based on an alleged illegal entry or reentry.

1. Psychopathic personality (212(a)(4))

In Boutilier v. INS, 387 U.S. 118 (1967), the Supreme Court upheld the administrative position that in this ground for exclusion Congress specifically intended to bar sexual deviates. This position has been endorsed by the courts. The Court also rejected a contention that the statute was unconstitutionally vague.

2. Criminals (212(a)(9) and (10))

Some of the terms used in this section are identical with those in the equivalent deportation statute, Sec. 241 (a) (4). The court cases generally have concerned deportation charges; thus, the cases cited under Section 241 (a) (4), infra, should be consulted.

3. Aliens coming to perform labor (212(a)(14))

This provision replaced the contract labor laws and was designed to protect American labor. Certain classes of aliens coming to perform skilled or unskilled labor may be barred if the Secretary of Labor has not certified that their entry will not adversely affect American labor. The statutory ban does not apply, under its terms, to aliens lawfully admitted for permanent residence who are returning from a temporary absence abroad.

The Immigration and Naturalization Service consequently has construed the statute as not applicable to so-called commuters who are lawfully admitted for permanent residence so that they can work in this country but who return to their homes across the border each day. This construction was adopted in Saxbe v. Bustos, 419 U.S. 65 (1974), where the Court upheld the legality of the daily and seasonal commuter programs. The majority felt that on the basis of long time administrative construction and congressional acquiescence in such construction, the program should be allowed to continue until Congress affirmatively decides otherwise. Reasoning that policy considerations provide a rational basis for special treatment for workers commuting from Canada and Mexico, the court in Alvarez v. District Director, 539 F.2d 1220 (9th Cir. 1976), upheld as not violative of equal protection the INS practice of granting commuter status to workers from contiguous countries.

Recently several cases of interest relating to labor certifications have arisen. Castaneda-Gonzalez v. INS, 564 F. 2d 417 (D.C. Cir. 1977), held that absent fraud or willful misrepresentation in an application for labor certification, an alien who enters the United States with a good faith intent to accept his certified employment is not later deportable simply because it turns out that the particular job is no longer available, that the working conditions or wages are unsatisfactory, or that he is not fully qualified for the job. Similarly, Yui Sing Tse v. INS, 596 F. 2d 831 (9th Cir. 1979), held that an alien admitted as a sixth-preference immigrant with certified employment as a Chinese specialty cook need not intend to remain in that certified

job forever or entertain no intension of advancement, but need only intend to occupy the certified job for a reasonable period of time. Thus, the fact that the alien intended to engage in the certified employment unless and until he could complete the educational requirements for dentistry did not render him ineligible for adjustment of status as a sixth-preference immigrant. On the other hand, where an alien who entered as a permanent resident not only failed to take his certified job and immediately took other employment but also ignored indications that there were problems with the certified job before entry and made at best half-hearted attempts to find out about the job after entry, the court in Spyropoulos v. ÎNS, 590 F. 2d 1 (1st Cir. 1978), found that the alien lacked the necessary intent to take the certified job and was therefore deportable under this section.

In Lewis-Mota v. Secretary of Labor, 469 F. 2d 478 (2d Cir. 1972), the court held that a directive suspending the "Precertification List" which exempted certain aliens from showing they had specific job offers in order to obtain visas, was a legislative rule and required publication under sections 552 (a) (1) and 553(b) of the Administrative Procedure Act. There remains an exemption from labor certification for alien investors; yet due to the rapid and substantial changes in the investor regulation, 8 C.F.R. 212.8(b)(4), Pistentis v. INS, 611 F.2d 483 (3d Cir. 1979), held that requests for investor exemption should be decided under either current or previous precepts whichever are more favorable to the alien. In Heitland v. INS, 551 F. 2d 495 (2d Cir. 1977), cert. denied, 434 U.S. 819 (1977), the court found an alien ineligible for the investor exemption reasoning that his one-man delivery service did not qualify as a substantial investment because it did not create new jobs but simply performed a preexisting job that would otherwise have been done by American workers.

Regarding the religious worker exemption from labor certification, Lee v. INS, 541 F.2d 1383 (9th Cir. 1976), held that an alien need not be a minister or meet any specific standard of training to qualify for this exemption. He need only do religious work as a regular profession or occupation and his status is not undermined by training or a period of employment in a non-religious field.

In Wang v. INS, 602 F. 2d 211 (9th Cir. 1979), the court denied labor certification exemption to an alien under 8 C.F.R. 212.8(a) on the grounds that her dependence upon support payments from her estranged husband abroad did not constitute the requisite reasonably assured financial self-sufficiency.

Judicial review of orders denying labor certification have been sought with increased frequency. In Dept. of Labor v. Farino, 490 F.2d 885 (7th Cir. 1973), the court established a standard of review based on the consideration of relevant factors and whether there has been a clear error of judgment. The courts have imposed an increasingly heavy burden upon the Secretary of Labor to conduct a thorough investigation of the labor market prior to denying certification. See Suk Yee Chan v. Regional Manpower Administrator, 521 F. 2d 592 (7th Cir. 1975); Dagilab, Inc. v. Secretary of Labor, 495 F. 2d 323 (1st Cir. 1974); Elton Orchards, Inc. v. Brennon, 508 F. 2d 493 (1st Cir. 1974); First Girl, Inc. v. Regional Manpower Administrator, 499 F.2d 122 (7th Cir. 1974); Reddy Inc. v. Dept. of Labor, 492 F. 2d 538 (5th Cir. 1974); Bitany v. Regional Manpower Administrator, 474 F.2d 985