excludable at the time of entry as aliens who have sought to procure or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence. The petitioners were found deportable, and on petition for review the Court of Appeals affirmed, rejecting their contention of being saved by Section 241(f). The Supreme Court granted certiorari to resolve the conflict between this holding and the contrary conclusion of the Court of Appeals for the Ninth Circuit in Lee Fook Chuey v. Immigration and Naturalization Service, 439 F.2d 244 (1971).

The opinion of the Supreme Court, delivered by Mr. Justice Rehnquist and joined in by Justices Burger, Stewart, White, Blackmun, and Powell, held that the petitioners were deportable under Section 241(a)(2) of the Act, which establishes as a separate ground for deportation, quite independently of whether the alien was excludable at the time of his arrival, the failure of an alien to present himself for inspection at the time he made his entry. The Court found that aliens like petitioners, who accomplish entry into this country by making a willfully false representation of United States citizenship, are not only excludable under Section 212(a)(19) but have also so significantly frustrated the process for inspecting incoming aliens that they are also deportable as persons who have "entered the United States without inspection" (Section 241(a)(2)).

The Court distinguished the case from United States v. Errico, 385 U.S. 214 (1966), where the Court had decided two companion cases involving fraudulent representation by aliens in connection with quota requirements which were repealed prospectively in 1965. In Errico the Court implicitly treated failure to comply with the quota requirements as rendering an alien excludable and went on to hold that Section 241(f) "saves from deportation an alien who misrepresents his status for the purpose of evading quota restrictions, if he has the necessary familial relationship to a United States citizen or lawful permanent resident." Even the most expansive view of that holding, said the Court, could not avail the petitioners in the instant case, since Section 241(f) which it construed applies by its terms only to "the deportation of aliens within the United States on the ground that they were excludable at the time of entry." It pointed out that in Reid INS sought to deport petitioners not under Section 241(a)(1), relating to aliens excludable at the time of entry, but instead under 241(a)(2), relating to aliens who do not present themselves for inspection. The Court said that the Errico holding did not extend the waiver

provisions of Section 241(f) to any of the grounds of excludability specified in Section 212(a) other than those of Section 212(a)(19), which declares ineligible for visas and excludes from admission “[a]ny alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact." The Supreme Court opinion concluded by stating:

Congress, in enacting § 241(f), was intent upon granting relief to limited classes of aliens whose fraud was of such a nature that it was more than counterbalanced by after-acquired family ties; it did not intend to arm the dishonest alien seeking admission to our country with a sword by which he could avoid the numerous substantive grounds for exclusion unrelated to fraud, which are set forth in § 212(a) of the Immigration and Naturalization Act.

Mr. Justice Brennan, in a dissenting opinion joined in by Mr. Justice Marshall, found no material difference between the instant case and Errico, where the Court had concluded that Section 241(f) was intended "not to require that aliens who are close relatives of United States citizens have complied with quota restrictions to escape deportation for their fraud. . . . "Errico, supra, at 223. The Court had there stated that this conclusion was necessary "to give meaning to the statute in light of its humanitarian purpose of preventing the breaking up of families composed in part at least of American citizens. . . . " Id., at 225.

The dissent asserted that the petitioners in the instant case were, in fact, excludable under Section 212(a)(19), since they sought "to enter the United States, by fraud," and that the Court's approach in the instant case had been explicitly rejected in Errico itself, where the Court had noted that "the administrative authorities have consistently held that Section 241(f) waives any deportation charge that results directly from the misrepresentation regardless of the section of the statute under which the charge was brought, provided that the alien was 'otherwise admissible at the time of entry." Errico, supra, at 217. Further, it declared that even if statutory language is unclear, any doubt should be resolved in favor of the alien since deportation is a drastic measure, at times equivalent to banishment or exile. If the Immigration and Nationality Act was indeed unworkable, it said, the remedy was for Congress to amend it, and not for the Court to distort its language and the cases construing it.

Constitutional Safeguards

In Lieggi v. United States Immigration and Naturalization Service, 389 F. Supp. 12 (1975), the United States District Court for the Northern District of Illinois decided, on January 24, 1975, that a resident alien should not be subjected to the penalty of deportation without application, at a minimum, of those standards of due process and equal protection which would be enjoyed in a criminal trial involving a citizen.

The petitioner had come from Italy to the United States at the age of 15 as a lawful immigrant to join his father, a resident and citizen of the United States. Over a 10-year period he had been involved with the law only once, when he was convicted on his own guilty plea of having sold marijuana. The sale had consisted of three marijuana cigarettes sold to his former roommate. The INS Special Inquiry Officer ordered him deported under § 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. 1251(a), under which an alien may be deported, upon the order of the Attorney General, if he has been convicted of a violation of any law or regulation relating to illicit possession of or traffic in narcotic drugs or marijuana. The Board of Immigration Appeals refused petitioner's motion to reopen.

In granting the resident alien's petition for a writ of habeas corpus, the Court held not only that a legal resident alien in a deportation proceeding was entitled to certain due process and equal protection standards, but that since the Supreme Court has recognized that alienage is a suspect criterion, deportation should be upheld only on a showing of a compelling state interest. On the latter point, the Court relied upon Graham v. Richardson, 403 U.S. 365 (1971), Sugarman v. Dougall, 413 U.S. 634 (1973), and In re Griffiths, 413 U.S. 717 (1973). The Court enumerated the standards of due process and equal protection to which the alien was entitled as at least requiring right of counsel at all significant stages, some form of judicial approval of searches, a presumption of innocence, a right to bail, and freedom from cruel and unusual punishment. It concluded that deportation of an alien, who had lived in the United States from age 15, who was the sole support of his family, and who had maintained steady employment, constituted cruel and unusual punishment and was violative of the Eighth Amendment, especially in light of changing legal and social attitudes toward violators of marijuana laws.

In Chavez-Raya v. Immigration and Naturalization Service, 519 F.2d 397 (1975), the United States Court of Appeals for the Seventh

Circuit held on July 16, 1975, that the failure of Immigration and Naturalization Service (INS) agents to give Miranda warnings to an alien did not render evidence inadmissible in deportation proceedings. (See Miranda v. Arizona, 384 U.S. 436 (1966).)

The petitioners, Mr. and Mrs. Chavez, natives and citizens of Mexico, asked the Court to review a final order of deportation rendered by INS. The immigration judge had admitted into evidence sworn statements signed by Mr. Chavez after he had received Miranda warnings, but which confirmed admissions he had made while in custody of INS agents before receiving warnings about his right to keep silent, and documents provided by Mrs. Chavez under similar circumstances. The immigration judge found the petitioners were deportable as charged; the Board of Immigration Appeals held that their deportability was established by clear, convincing and unequivocal evidence and dismissed their appeal. They thereupon sought review in the Court of Appeals, where they challenged the admissibility of the statements and documents but conceded that, if the statements and documents were admissible, the evidence was sufficient to establish deportability.

The Court found that Chavez had been clearly subjected to "custodial interrogation" within the meaning of the Miranda holding and that the warnings given were too late in the interrogation process to constitute an assumption of an intelligent waiver of constitutional rights. However, the Court pointed out that deportation proceedings had consistently been classified as civil rather than criminal and "while an alien is entitled to due process in the deportation proceedings . . . such proceedings are not subject to the constitutional safeguards for criminal prosecutions. Abel v. United States, 362 U.S. 217, 237 (1960)." The Court concluded:

In the present case, there is no indication whatsoever that the investigation had assumed any aspects of criminality; this was merely routine civil investigation which could lead to deportation of a person who had no right to be in this country.

Given the differences between a deportation hearing and a criminal trial and the fact that Miranda warnings "are not mandated by the Constitution itself," . . . [United States v. Oliver, 505 F.2d 301, 304 (7th Cir. 1974)], we conclude that, although the lack of Miranda warnings would render an alien's statement, made during a custodial interrogation, inadmissible in a criminal prosecution for violation of the immigration laws, United States v. Campos-Serrano [430 F.2d 173 (1970), aff'd on other grounds, 404 U.S. 293 (1971)], the failure to give the Miranda warnings does not render the statement inadmissible in deportation proceedings.

On August 21, 1975, the United States Court of Appeals for the Ninth Circuit held, inter alia, in United States v. Gasca-Kraft, 522 F.2d 149 (1975), that for the purpose of prosecution under Section 276 of the Immigration and Nationality Act, 8 U.S.C. 1326, for illegal entry after deportation, an earlier deportation order was lawful even though the alien had not been offered appointed counsel in the deportation proceeding. A material element of the offense defined by 8 U.S.C. 1326 is a lawful deportation. The Court pointed out that since a deportation hearing is a civil proceeding, not a criminal one, and a deportation order is not a criminal punishment, courts have uniformly held that respondents are not entitled to have counsel appointed at government expense.

Extended Departure Date

In Noel v. Chapman, 508 F.2d 1023 (1975), cert. denied 44 U.S. Law Week 3201 (1975), the U.S. Court of Appeals for the Second Circuit, held on January 3, 1975, that the policy of the Immigration and Naturalization Service (INS) permitting Western Hemisphere aliens married to American citizens to extend their voluntary departure dates until they could obtain visas did not deny the equal protection of the laws to aliens married to resident aliens, who were granted no such permission. The Court also held that the INS policy was exempt from any notice requirement of the Administrative Procedure Act, since it was a general statement of policy and not a rule.

The appellants in this case were Haitian citizens admitted to the United States for two-month periods as nonimmigrant visitors for pleasure. Both stayed illegally beyond their original departure dates, as well as beyond limited extensions given them to depart voluntarily. They instituted court action to restrain their deportation, relying upon the fact that each had meanwhile married a permanent resident alien. They contended that the INS policy with respect to their deportation was unconstitutional in view of the concurrent INS policy of permitting Western Hemisphere aliens married to American citizens to extend their departure dates. They claimed that (a) nothing in the 1965 amendment to Section 201 of the Immigration and Nationality Act (P.L. 89-236; 79 Stat. 921; 8 U.S.C. 1151), which established a numerical quota for Western Hemisphere aliens, required the INS to distinguish between family members of resident aliens and family members of citizens for the purpose of setting voluntary departure dates; (b) the INS policy violated the equal protection concepts inherent in the due process clause of the Fifth Amendment, and constituted an abuse of administrative discretion; and (c) the policy was issued in violation of the Administrative Procedure Act, 5 U.S.C. 553.