in his discretion, is pursuaded that relief should be granted. Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957). The courts will not interfere with the exercise of such discretion except upon the clearest showing of abuse. Ng v. Pilliod, 279 F. 2d 207 (7th Cir. 1960), cert. denied, 365 U.S. 860 (1961); MacKay v. McAlexander, 268 F. 2d 35 (9th Cir. 1959), cert. denied, 362 U.S. 961 (1960).

The opportunity of departing voluntarily from the United States is a privilege which may be granted to one who otherwise would be expelled. It is a benefit which may be granted or withheld in the sound discretion of the immigration authorities, acting in conformity with the legal requirements. Moreover, the five-year period during which a deportable alien must show good moral character is not a statute of limitations but merely a threshold requirement for a grant of voluntary departure. Hibbert v. INS, 554 F. 2d 17 (2d Cir. 1977). Thus in Fan Wan Keung v. INS, 434 F. 2d 301 (2d Cir. 1970), it was held that a deportable alien crewman who had overstayed his voluntary departure time limit for dilatory reasons in reliance on a generous "second chance" policy was not entitled to relief when the policy became stricter.

When there is a change in eligibility requirements while the case is under consideration, the applicant's eligibility for relief is adjudged, in the absence of a savings clause, on the basis of the law in effect at the time of final consideration by the administrative authorities or the courts. Patsis v. INS, supra; Foti v. INS, 332 F. 2d 424 (2d Cir. 1962), reversed and remanded, 375 U.S. 217 (1963), on remand, 332 F. 2d 424 (2d Cir. 1964); Fassilis v. Esperdy, 301 F. 2d 429 (2d Cir 1962). Another question related to eligibility qualifications concerns the requirement of continuous physical presence. One court has found that the requisite period of physical presence was not in terrupted by a departure from the United States induced by the error of government officers in denying discretionary relief. McLeod v. Peterson, 283 F.2d 180 (3d Cir. 1960). The requirement of continuous physical presence was read expansively in Wadman v. INS, 329 F.2d 812 (9th Cir. 1964), where the court found that the continuity of such physical presence was not interrupted by a five-day vacation trip in Mexico. A similar expansive reading led to the decision in Kamheangpatiyooth v. INS, 597 F. 2d 1253 (9th Cir. 1979), where the court held that because an alien student's thirty-day trip to Thailand to visit his dying mother was the only break in a period of twelve years' presence in the United States and it was temporary by design, keyed to the break between semesters and as limited in duration and distance as the exigencies that produced it, it did not render him ineligible for suspension of deportation. See also Chan v. INS, 610 F. 2d 651 (9th Cir. 1979).

The rights and privileges obtained by continuous physical presence have not been extended to aliens paroled into the United States. Since parolees are not considered physically present in this country, they are only excludable and not deportable under the law. Low v. Attorney General, 479 F. 2d 820 (9th Cir. 1973), cert. denied, 414 U.S. 1039 (1973).

In addition to continuous physical presence and good moral character, the third eligibility requirement for suspension of deportation is extreme hardship. This requirement, that deportation would

result in extreme hardship to the alien or his or her immediate relative who is a U.S. citizen or permanent resident, has been the subject of much litigation.

The fact that aliens, if deported, may suffer economic hardship if they cannot find employment due to the economic conditions in their home country has been held to be insufficient to establish extreme hardship. Acosta v. Gaffney, 558 F. 2d 1152 (3d Cir. 1977). Facts showing that an alien, if deported, would be forced to liquidate his business and then might face difficulties with the Thai military authorities for draft violations were not deemed sufficient to constitute the necessary extreme hardship. Chokloikaew v. INS, 601 F. 2d 216 (5th Cir. 1979). However, in Urbano de Malaluan v. INS, 577 F. 2d 589 (9th Cir. 1978), where the deportable alien and her spouse were employed in the United States, owned their own home and had two U.S. citizen children, the court found a strong interference of extreme hardship.

Similarly, in Bastidas v. INS, 609 F.2d 101 (3d Cir. 1979), where a father subject to deportation expressed deep affection for his U.S. citizen child and where the record demonstrated that his actions were consistent with and supportive of his expression of affection, the court held that a failure to find extreme hardship would not be affirmed unless the reasons for such a finding were made clear.

Even though the statute does not demonimate grandchildren among those immediate family members whose hardship, it extreme, would permit suspension of deportation, the court held that hardship to a grandchild should be considered in determining his deportable grandmother's eligibility for relief where her relationship with the grandchild closely resembled that of parent to child. Tovar v. INS, 612 F. 2d 794 (3d Cir. 1980). An infant U.S. citizen child of alien parents who are subject to a valid deportation order is not entitled to suspension of that order because it does not deny but merely postpones her constitutional right to choose to reside in the United States. Acosta v. Gaffney, 558 F. 2d 1153 (3d Cir. 1977). Moreover, in Banks v. INS, 594 F. 2d 760 (9th Cir. 1979), where a deportable alien's citizen child had hearing problems and, spoke only English the court found the possibility of inconvenience to the child, if her mother was deported to Germany, insufficient to constitute extreme hardship.

SECTIONS 245 AND 249. ADJUSTMENT OF STATUS AND REGISTRY

The courts have entertained suits to review denials of adjustment of status and registry on the same limited basis as other discretionary determinations-to appraise assertions of misinterpretation of statutory qualifications, unfairness of procedure, and abuse of discretion. Fassilis v. Esperdy, 301 F. 2d 429 (2d Cir. 1962). Cf. Scozzari v. Rosenberg, 302 F. 2d 592 (9th Cir. 1962), cert. denied, 369 U.S. 886 (1962). Absent any express statutory requirement, the immigration judge need not arrive at purely advisory findings as to an alien's statutory eligibility for adjustment prior to denying it as a matter of discretion. INS v. Bagamasbad, 429 U.S. 24 (1976).

The statutory requirement that an applicant for adjustment of status must have been inspected and admitted is deemed to contemplate inspection as an alien and not to benefit one who entered on a false claim to U.S. citizenship. Heung v. INS, 380 F. 2d 236 (1st Cir.

1967), cert. denied, 389 U.S. 975 (1967). In Fassilis, supra, the court found that the 1960 amendment barring adjustment to aliens who had entered as crewman, lacked a saving clause, and thus precluded the grant of adjustment to crewmen who previously had applied for this relief. Likewise, a regulation barring adjustment of status for a TRWOV-an alien transiting the United States from one foreign country to another without an entry document to the United Stateswas upheld. Fook Hong Mak v. IÑS, 435 F. 2d 728 (2d Cir. 1970). Also upheld, was INS imposition of the "continuing viability of marriage" requirement upon spouses seeking adjustment. The court in Menezes v. INS, 601 F. 2d 1028 (9th Cir. 1979), reasoned that such treatment was rationally related to the valid government objective of preserving existing marriages. Yet, in Dabaghion v. Civiletti, 607 F. 2d 868 (9th Cir. 1979) the court held that a marriage which is not a sham or fraudulent from its inception is valid for the purpose of determining eligibility for adjustment of status. The court distinguished Menezes saying that it is only after the threshold eligibility has been established that the continuing-viability-of-marriage requirement is taken into consideration in deciding whether to grant or deny adjustment.

The statute requires that a visa be available to the alien at the time of his or her adjustment. In Shon Ning Lee v. INS, 576 F. 2d 1380 (9th Cir. 1978), the INS was not estopped from denying an alien adjustment of status for lack of a visa number merely because nonpreference numbers had opened up on three occasions during the time her appeal was pending before the BIA. However, effective estoppel was permitted in Jung Been Suh v. INS, 592 F. 2d 320 (5th Cir. 1979), where in violation of its own regulation INS accepted and a djudicated an alien's nonpreference adjustment application at a time when no nonpreference visa numbers were available, and in doing so prevented her from filing for a sixth-preference number which was then available. The court ordered INS to permit her to apply for a sixth-preference number with the benefit of her initial priority date. The statute prescribes continuous residence in the United States originating prior to a prescribed date-June 28, 1940-as a prerequisite to eligibility for registry of lawful entry for permanent residence under section 249. In Mrvica v. Esperdy, 376 U.S. 560 (1964), the Supreme Court held that the continuity of such residence was broken by the alien's deportation after the prescribed date, followed by his reentry shortly thereafter.

SECTION 246. RESCISSION OF ADJUSTMENT OF STATUS

The "clear, unequivocal, and convincing" burden of proof, prescribed in deportation proceedings under section 242, is also applicable in proceedings to rescind adjustment of status. Rodriques v. ÎNS, 389 F.2d 129 (3d Cir. 1968); Waziri v. INS, 392 F. 2d 55 (9th Cir. 1978). One court ruled that suspension of deportation cannot be rescinded under this section unless the Attorney General's determination to rescind is made within five years after suspension is approved. Quintana v. Holland, 255 F. 2d 161 (3d Cir. 1958). However, a contrary conclusion was reached in Singh v. INS, 456 F. 2d 1092 (9th Cir. 1972)

which found a rescission proceeding timely if commenced within five years after approval of adjustment of status. The five-year time limit for rescission was tolled when an INS district director, acting in good faith within five years after adjustment, issued a notice of intention to rescind which was based on sufficient prima facie evidence to warrant rescission. Zaoutis v. Kiley, 558 F. 2d 1096 (2d Cir. 1977).

SECTION 247. ADJUSTMENT OF STATUS FROM RESIDENT TO

NONIMMIGRANT

An alien who received notice of a proposed change in visa status, from that of permanent resident to nonimmigrant employee of a foreign government, and waived by silence various options available, could not deny the fact that she knowingly abandoned her status and thus was subject to deportation upon termination of employment. Nauck v. INS, 475 F. 2d 1008 (2d Ĉir. 1973).

SECTIONS 251-257. CREWMEN

The statutory provisions relating to the control and expulsion of alien crewmen ordinarily are inapplicable to seamen on foreign naval vessels and treaty stipulations may govern the apprehension and return of foreign naval personnel who desert in our ports. Perez-Varella v. Esperdy, 285 F. 2d 723 (2d Cir. 1960); Medina v. Hartman, 260 F.2d 569 (9th Cir. 1958); Martinez-Angosto v. Mason, 344 F. 2d 673 (2d Cir. 1965).

The 1952 Act's directives for the issuance and revocation of conditional landing permits for alien crewmen were applied and upheld in Savelis v. Vlachos, 248 F. 2d 729 (4th Cir. 1957). The court found that these were discretionary determinations, as was the decision whether to change the alien's status from D-1 (required to return with his vessel) to D-2 (authorized to reship within twenty-nine days on another vessel). The court concluded that no abuse of such discretion had been shown.

In United States v. Cores, 356 U.S. 405 (1958), the Supreme Court held that a criminal prosecution under section 252 (c) of an alien crewman who willfully remained in the United States in excess of the twenty-nine days allowed by his conditional landing permit was for a continuing offense and could be brought in any district where the alien was found. In Der-Rong Chour v. INS, 578 F. 2d 464 (2d Cir. 1978), the court held that because alien crewmen are specifically ineligible for adjustment of status under section 245, INS approval of a crewman's spouse-preference visa could not cure that ineligibility.

Another decision of interest is United States v. Seaboard Surety Co., 239 F. 2d 667 (4th Cir. 1957), which held that the penalty in section 256, for paying off or discharging an alien crewman without the permission of the Attorney General, is incurred only if the employment is terminated: the law does not prohibit payment of wages to a crewman if the employment is not terminated.

SECTIONS 261-266. ALIEN REGISTRATION

Stating that the primary purpose of an Alien Registration Receipt Card is for identification rather than entry, the Supreme Court held that possession of a counterfeit alien registration card was not an act

punishable under 18 U.S.C. 1546 which prohibits the counterfeiting or altering or possession of a counterfeit or altered "immigrant or nonimmigrant visa, permit, or other document required for entry into the United States." United States v. Campos-Serrano, 404 U.S. 293 (1971).

SECTION 273. BRINGING ALIENS WITHOUT VISA

This section authorizes the imposition of a fine of $1,000 against a transportation line which brings in an alien returning to a lawful permanent residence in the United States without a reentry permit or equivalent document. Swissair v. Kennedy, 327 F. 2d 860 (D.C. Cir. 1963).

SECTION 274. BRINGING IN AND HARBORING ALIENS

This section imposes criminal sanctions upon those who, by any means, either bring, transport, harbor, or encourage aliens to illegally enter the United States. A challenge to the section prohibiting transportation has led to a judicial determination that the section is not unconstitutionally vague. Banderas-Aguiree v. United States, 474 F.2d 985 (5th Cir. 1973). While the statute requires active conduct on the part of the defendant, it is not limited to those activities which involve personal operation or direct control of the vehicle. United States v. Washington, 471 F. 2d 402 (5th Cir. 1973), cert. denied, 412 U.S. 930 (1973).

Persons charged under this section are often also charged with conspiracy to transport illegal aliens under 18 U.S.C. 371. In one such case United States v. Contreras-Diaz, 575 F. 2d 740 (9th Cir. 1978), cert. denied, 439 U.S. 855 (1978), the court found sufficient evidence to convict a defendant who was present at the drop house where illegal aliens were taken, left the house to buy food, knew the address where aliens were to send payment for their trip north and knew that aliens riding in the car with him had no valid identification. On the other hand, in United States v. McMahon, 562 F. 2d 1192 (10th Cir. 1977), where the evidence against the defendants showed only their presence in the border area and suspicious acts, but no conduct connected with or incriminating contact with the parties actually transporting the aliens, the court found the evidence insufficient to sustain a conviction for conspiracy, aiding and abetting or actually transporting illegal aliens.

Under this section, the term "harbor" means affording shelter to and it is not limited to clandestine sheltering. United States v. Acosta De Evans, 531 F. 2d 428 (9th Cir. 1976), cert. denied, 429 U.S. 836 (1976). In fact, United States v. Cantu, 557 F. 2d 1173 (5th Cir. 1977), rehearing denied, 561 F.2d 831 (1977), cert. denied, 434 U.S. 1063 (1978), held that although the language of this section provides penalties for those who harbor aliens in any place, the fact that illegal aliens were arrested outside defendant's restaurant did not preclude his prosecution where he had arranged for them to exit with customers as a ploy to escape INS detection. Similarly, although this section provides an exemption for employers in that the usual anp normal practices incident to employment do not constitute harboring, where employers allegedly constructed and used as a hiding place, a hidden stairwell, a chamber with a false wall, and an unmarked