building for hiding illegal alien employees, the employers were not eligible for that exemption. United States v. Winnie Mae Manufacturing Co., 451 F. Supp. 642 (C.D. Cal. 1978).

SECTION 276. REENTRY OF DEPORTED ALIEN

This section provides a criminal penalty for a deported alien who reenters the United States without the permission of the Attorney General.

Where judicial review of a deportation order was not sought, Gonzalez-Parra v. United States, 438 F. 2d 694 (5th Cir. 1971), cert. denied, 402 U.S. 1010 (1971), held that the deportation order could not be collaterally attacked in a subsequent prosecution under this statute. The Court of Appeals for the Ninth Circuit held otherwise in United States v. Barraza-Leon, 575 F. 2d 218 (9th Cir. 1978), where it ruled that in prosecutions under this section, the lawfulness of the underlying deportation is a material element of the offense and thus may be collaterally attacked. See also United States v. CalderonMedina, 591 F. 2d 529 (9th Cir. 1979). However, where an alien charged with illegal reentry has displayed a continuous and flagrant disregard for the immigration laws and has persisted in reentering the United States as a stowaway despite repeated deportations and criminal sanctions, United States v. Pereira, 574 F. 2d 103 (2d Cir. 1978), cert. denied, 439 U.S. 847 (1978), held that such collateral attack may be denied.

SECTION 287. POWERS OF IMMIGRATION OFFICERS

The authority of immigration officers to stop vehicles within a reasonable distance from the border, to interrogate the occupants, and to conduct a reasonable search in connection with such interrogation was sustained in Ramirez v. United States, 263 F. 2d 385 (5th Cir. 1959) and Haerr v. United States, 240 F. 2d 533 (5th Cir. 1957). These cases also upheld criminal prosecutions for nonimmigration violations predicated on evidence discovered in such searches.

However, in Uni'ed States v. Brignoni-Ponce, 422 U.S. 873 (1975), the Supreme Court ruled that roving patrols could stop vehicles and question their occupants only if there were specific, articulable facts and rational inferences therefrom to warrant reasonable suspicion that the vehicle contained illegal aliens. The Court found that the occupant's appearance of Mexican ancestry, standing alone, did not provide the reasonable suspicion necessary to justify such a stop. The court applied this reasonable suspicion test in United States v. AvalosOchoa, 557 F. 2d 1299 (9th Cir. 1977), cert. denied, 434 U.S. 974 (1977), where it found the combination of an informant's tip, a border sensor alert, a group of people crossing the street, and the observation of a fleeing, low riding car, all in an area known for smuggling activity, sufficient to create the necessary reasonable suspicion to justify a stop of the fleeing vehicle. In United States v. Contreras-Diaz, 575 F. 2d 740 (9th Cir. 1978), cert. denied, 439 U.S. 855 (1978), the court applied the Brignoni-Ponce test to the actions of a highway patrol officer and found that where the defendant's car was speeding and changing lanes, the driver was without a license, the driver and a passenger gave conflicting stories as to their destination, and the two

passengers in the backseat resembled illegal aliens and were unable to speak English, the officer had reasonable suspicion to justify a brief detention long enough to issue a traffic citation and for the Border Patrol to arrive. The Brignoni-Ponce rule requiring reasonable suspicion to stop was not made retroactive and thus does not apply to stops and subsequent searches made prior to the June 21, 1973, Almeida-Sanchez ruling requiring probable cause to search. United States v. Torres-Rios, 534 F. 2d 865 (9th Cir. 1976), cert. denied, 429 U.S. 898 (1976).

The authority of roving border patrols was severely limited by Almeida-Sanchez v. United States, 413 U.S. 266 (1973). The Court held that a roving patrol's warrantless search of an automobile for concealed aliens, conducted without probable cause, viloated the Fourth Amendment. The Court stated that a search of this type could only be conducted at the border or its functional equivalent. The majority of the Court, however, noted in dicta that a judicial officer could issue an area warrant for a roving search on a particular road or roads for a reasonable period of time. The court applied AlmeidaSanchez in United States v. Brennan, 538 F. 2d 711 (5th Cir. 1976), rehearing denied, 542 F. 2d 575 (1976), cert. denied, 429 U.S. 1092 (1977), rehearing denied, 430 U.S. 960 (1977). It ruled that an airport at which international flights made up only a small percentage of the traffic and where there were no regularly conducted border searches or inspection procedures, could not be considered a functional equivalent of the border. Thus, neither agents of the Border Patrol nor the Customs Service could conduct a search for contraband on less than probable cause. However, given the combination of an informant's tip and preflight corroboration of a surreptitious landing at a predicted time and place, officers had both probable cause and exigent circumstances which justified a warrantless arrest of the defendant and the subsequent search of his plane.

The authority of border patrol officers stationed at road check points several hundred miles from the border to detain briefly and question occupants of automobiles regarding their right to be in the United States has been upheld. United States v. Saldana, 453 F. 2d 352 (10th Cir. 1972). An authorized officer may stop an automobile and conduct a limited investigative inquiry without probable cause, in order to ascertain whether aliens have been smuggled into the United States. United States v. Zubia-Sanchez, 448 F. 2d 1232 (9th Cir. 1971).

In the reasonable exercise of their authority to interrogate persons believed to be aliens, immigration officers are authorized to impose brief restraints, short of arrest. Wong v. INS, 468 F. 2d 1123 (D.C. Cir. 1972); Au Yi Lau v. INS, 445 F. 2d 217 (D.C. Cir. 1971).

The court found no arrest where immigration officers were posted outside a restaurant while other officers were interrogating employees inside the restaurant. Yam Sang Kwai v. INS, 411 F. 2ď 683 (Ď.C. Cir. 1969), cert. denied, 396 U.S. 877 (1969). Under various circumstances, race may be considered a relevant factor in determining whether to question or interrogate an individual about his immigration status. Kung v. INS, 356 F. Supp. 571 (E.D. Mo. 1973), (affirmed by 8th Circuit), cert. denied 416 U.S. 904 (1974). Yet in Illinois Migrant Council v. Pilliod, 540 F. 2d 1062 (7th Cir. 1976), rehearing

modified, 548 F.2d 715 (1977), the fact that persons had Spanish surnames and the appearance of Mexican ancestry was found insufficient of itself either to provide probable cause to believe that such persons were illegal aliens or to justify a warrantless search of their dwelling. (See also Zepeda v. INS, F. Supp. (C.D. Cal. 1979).) The court applied the Brignoni-Ponce rule reasoning that a street stop for questioning requires reasonable suspicion not simply of alienage but of illegal presence in the United States. At a rehearing en banc, the court held that as long as the queried person voluntarily submits to questioning, it is lawful for an INS officer to approach on reasonable suspicion of alienage alone, but a detention for questioning, however brief, requires reasonable suspicion of unlawful presence in the United States. In Marquez v. Kiley, 436 F. Supp. 100 (S.D.N.Y. 1977), the court found this distinction meaningless and required a reasonable suspicion of illegality to justify an officer's initial approach to question.

In Abel v. United States, 362 U.S. 217 (1960), the Supreme Court endorsed the authority of immigration officers, armed with an administrative warrant of arrest, to make an arrest of a suspected immigration violator and to conduct a reasonable search of his person and the premises where the arrest took place. Here, the search produced evidence of a nonimmigration violation, and a criminal prosecution predicated on such evidence was upheld. The authority of immigration officers to make arrests without warrants in appropriate cases was supported in United States v. Alvarado, 321 F.2d 336 (2d Cir. 1963), thus applying and extending the holding in Abel v. United States, supra. In United States v. Rodriguez, 532 F.2d 834 (2d Cir. 1976), where the INS officer arrested an admitted illegal alien outside and then properly followed him inside the house to obtain his passport, the court held that the officer was justified in questioning only persons who were in plain view as to their identity and alienage but not in searching the house from top to bottom for illegal aliens.

In the spirit of Brignoni-Ponce, supra, the court in Zepeda v. INS, -F. Supp. (Č.D. Cal. 1979), issued a temporary restraining order prohibiting INS officers from approaching homes for the purposes of questioning, searching or arresting persons therein in the absence of a reasonable suspicion based on articulable facts that aliens present in the United States in violation of the Immigration and Nationality Act are inside. In the same order, the court prohibited officers from making home visits between the hours of 8:00, p.m. and 7:00 a.m. without exigent circumstances, a warrant, or other court order. Following the Zepeda order, the Attorney General announced as policy the discontinuation of investigations at residences. as a usual method of enforcement. (See section 242 (1) and (2) for additional cases on arrest and search and seizure.)

SECTION 292. RIGHT TO COUNSEL

Decisions involving the right to counsel are discussed under Deportation Hearings, section 242 (b), subsection (k) pp. 42-43.

SECTION 301. ACQUISITION OF U.S. CITIZENSHIP AT BIRTH

A child born abroad prior to May 24, 1934, to an American citizen mother did not acquire American citizenship at birth since at that

time citizenship at birth abroad was transmitted only by a citizen father. Montana v. Kennedy, 366 U.S. 308 (1961). Although subsequent legislation conferred upon American women the power to transmit citizenship to their children born abroad, such legislation was not made retroactive and did not bestow citizenship on persons born before the enactment of such legislation. D'Alessio v. Lehmann, 289 F.2d 317 (6th Cir. 1961), cert. denied, 368 U.S. 822 (1961); Wolf v. Brownell, 253 F.2d 141 (9th Cir. 1958), cert. denied, 358 U.S. 859 (1958). A child born abroad on or after May 24, 1934, who acquired U.S. citizenship through one citizen parent had to comply with certain conditions for establishing American residence in order to to retain American citizenship. In Fee v. Dulles, 236 F.2d 885 (7th Cir. 1956), the court upheld the original administrative position that a person who had not complied with the conditions prescribed by previous statutes had lost his citizenship and derived no benefits from the more generous retention provisions of the 1952 Act. However, upon reconsideration of this issue when it reached the Supreme Court, the Solicitor General confessed error, taking the position that a person who could comply with the terms of section 301 (b) and (c) would retain his American citizenship even though he had not fulfilled similar provisions of the earlier statutes. The Supreme Court reversed the lower court and thus adopted the view projected in the Solicitor General's confession of error. 355 U.S. 61 (1957).

In Rogers v. Bellei, 401 U.S. 815 (1971), the Supreme Court upheld the constitutionality of the retention provision in section 301(b), declaring that Congress not only had power to legislate regarding the acquisition of citizenship at birth abroad to one citizen and one alien parent but also could constitutionally impose a "condition subsequent" under which such statutory citizenship would be lost if the person failed to establish residence in the United States for a prescribed period after reaching maturity. In Rucker v. Saxbe, 552 F.2d 998 (3d Cir. 1977), cert. denied, 434 U.S. 919 (1977), where the foreign born son of a U.S. citizen was a man of independence and ability yet failed to make any rational inquiry, his lack of specific knowledge of the retention residency requirement did not bar its application. Thus, ignorance of this requirement does not excuse a failure to satisfy it so as to prevent loss of citizenship. Ramos-Hernandez v. INS, 566 F.2d 638 (9th Cir. 1977).

SECTION 313. PROHIBITION OF NATURALIZATION OF Subversives

In its present form this statute, which continued a similar prohibition of the Nationality Act of 1940, bars the naturalization of aliens who have been members of the Communist Party and other subversive groups within the preceding period of ten years. In Polites v. United States, 364 U.S. 426 (1960), the Supreme Court indicated that such membership would be evaluated in light of the meaningful association test it has formulated for deportation cases. (See section 241.) In construing the statutory exemption of members who had joined to obtain employment or the essentials of living, one court has held that a petitioner who became a Communist Party member in Poland during the statutory ten-year period in order to procure a

college education was not disqualified from naturalization. GrzymalaSiedlecki v. United States, 285 F.2d 836 (5th Cir. 1961).

SECTION 314. INELIGIBILITY FOR NATURALIZATION OF DESERTERS FROM ARMED FORCES

Although no cases have arisen under this section, it is appropriate to note that the Supreme Court's decision in Trop v. Dulles, 356 U.S. 86 (1958), discussed under section 349, invalidated a statutory provision for expatriating citizens who desert from the Armed Forces. SECTION 315. ALIENS RELIEVED FROM MILITARY SERVICE

Since World War I the selective service laws have permitted certain categories of aliens to obtain relief from military service but have decreed that aliens applying for such relief would be perpetually barred from citizenship. Such aliens were not precluded from continuing their residence here but could be prevented from reentering if they left since they would be ineligible for citizenship. The naturalization preclusion of aliens relieved from military service was recorded in the naturalization statute for the first time in section 315 of the 1952 Act. However, as noted under section 101 (a) (19), the provisions of this section and the definition of ineligibility to citizenship in section 101(a)(19) are not fully consistent since the language of section 315 requires that the applicant must have actually been relieved from service. See Application of Mirzoeff, 253 F.2d 671 (2d Cir. 1958): United States v. Bazan, 228 F.2d 455 (D.C. Cir. 1955). However, it is agreed that the terms of this section are retroactive and attach to aliens who previously sought and obtained relief from service. Barber v. Reitmann, 248 F.2d 118 (9th Cir. 1957), cert. denied, 355 U.S. 923 (1958); Pons v. United States, 220 F.2d 399 (1st Cir. 1955), cert. denied, 350 U.S. 830 (1955). This perpetual disqualification has produced considerable litigation by those who have sought to escape its consequences. The issues raised generally have fallen into the following categories:

1. Was the alien liable for service?

Many have sought to avert the disability by contending that they were not liable for service or not eligible for the exemption. If the asserted nonliability for service depended upon making a request to the selective service authorities for a determination of nonresidence one who had failed to make such a timely request was liable for service and could not avert the consequences of his application for relief from service. Prieto v. United States, 289 F.2d 12 (5th Cir. 1961); Memishoglu v. Sahli, 258 F.2d 350 (6th Cir. 1958); Savoretti v. Small, 244 F.2d 292 (5th Cir. 1957); Giz v. Brownell, 240 F.2d 25 (D.C. Cir. 1956). A claim that the application for relief was meaningless since his induction was not imminent was held insubstantial. Gilligan v. Barton, 265 F.2d 904 (8th Cir. 1959).

One court has held that under the broad language of section 315 the disqualification attaches if the alien has applied for and been granted relief even if he was not eligible for such an exemption. Petition of Skender, 248 F.2d 92 (2d Cir. 1957). Cf. United States v. Hoellger, 273 F. 2d 760 (2d Cir. 1960). However, another court found that an