# Norma Andalis Bagamasbad v. Immigration and Naturalization Service

> Court of Appeals for the Third Circuit · March 8, 1976 · 531 F.2d 111

URL: https://www.frixlaw.com/law-library/cases/9462522

## Case

- **Full name:** Norma Andalis BAGAMASBAD, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** March 8, 1976
- **Citations:** 531 F.2d 111
- **Precedential status:** Published
- **Opinion:** Dissent by Van Dusen
- **Judges:** Biggs, Van Dusen Aldi-Sert, Nov, Seitz, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis, Garth
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by Immigration & Naturalization Service v. Bagamasbad, 429 U.S. 24 (1976).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9462522

## Opinion text

VAN DUSEN, Circuit Judge
(dissenting):
I respectfully dissent because I believe that the majority opinion extends the scope of judicial review of action by the Attorney General under Section 245 of the 1952 Immigration and Nationality Act, 8 U.S.C. § 1255 , beyond that authorized by the applicable congressional statutes, as implemented by Executive Regulations and construed by the Supreme Court of the United States.
Unlike the majority, I believe that the statutory language in 8 U.S.C. § 1255 (a) and analogous case law only requires the Attorney General to examine the facts and decide whether to exercise his “discretion” on an application for adjustment of status to that of an alien lawfully admitted for permanent residence in cases where he determines not to grant such discretionary relief. The inclusion in the congressional statute of three other pre-conditions for the grant of any application under § 1255(a) 1 does not preclude the Attorney General from denying relief on the basis of the first pre-condition listed in the statute, namely, “the status of an alien . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe. 2 to that of an alien lawfully admitted for permanent residence if 11
Congress has, therefore, provided that the Attorney General, not the courts, shall make the decision on any application for adjustment of status “in his discretion.” 3
In Silva v. Carter, 326 F.2d 315, 320 (9th Cir. 1963), the court said:
“If the lack of an express ruling on the second eligibility requirement is to be taken as an indication that no determination whatever was made as to that matter, Silva was likewise not prejudiced. In that event the matter left to the Attorney General’s discretion must have been exercised without reference to the facts concerning eligibility. This is as it should be, whether or not there are express rulings on the questions of eligibility. Had the regional commissioner ruled that Silva met both eligibility tests, he was still empowered to deny the request for waiver in the exercise of discretion. His power could not be less where no such ruling had been made.
“Silva calls attention to Jay v. Boyd, 351 U.S. 345, 353 , 76 S.Ct. 919 , 100 L.Ed. 1242 , a case involving the discretionary form of relief known as suspension of deportation. The court there said that eligibility for such relief ‘is governed by specific statutory standards which provide a right to a ruling on an applicant’s eligibility.’ Granting the application, by analogy, of this statement to the problem now before us, we do not believe that it helps Silva.
“. . . [Tjhere is here nothing to indicate that discretionary relief was denied by the regional commissioner on the ground of ineligibility. Thus Silva could not possibly have been prejudiced by the lack of an express ruling as to eligibility.
“We conclude that the regional commissioner did not err in denying the request for waiver on the discretionary ground, without first making an express ruling on the second element of statutory eligibility specified in section 212(g).” (Footnotes omitted.)
*120 As noted below, the record and statistics subject to judicial notice make these points clear:
A. Petitioner has been illegally in this country for over six years and represented to the officials of this country that her entry as a temporary tourist visitor in early July 1968 was for a pleasure visit of two months.
B. By violating our immigration laws and advancing the technical arguments accepted by the majority, Bagamasbad has been able to take advantage of her illegal misrepresentations upon entry and her illegal overstay through litigation of contentions carefully considered and rejected repeatedly by administrative officials and the Board of Immigration Appeals.
C. It is most unlikely that any prejudice to petitioner would have resulted from her additional false representations and duplicity if she had returned to the Philippines and waited for the labor certification to become available in 1972.
D. Current releases by Commissioner of Immigration Leonard F. Chapman, Jr. estimate that there are eight million aliens illegally in the United States today. 4
In order to understand the factual background of this case, in which the record shows careful review by the administrative officials of the petitioner’s several applications for discretionary relief, it is significant that petitioner became deportable in 1969 for overstaying her 1968 temporary tourist visa for a pleasure visit to the United States, estimated by her to last two months. If she had complied with the law and her representations concerning her alleged, proposed, short visit to the United States by returning to the Philippines in that year, there would have been no findings of material false statements, including what her attorney describes as “concealed information; no question but what she misrepresented her status.” 5 Instead of complying with the temporary 1968 visa granted pursuant to 8 U.S.C. § 1101 (a)(15)(B) to petitioner as “an alien having a residence in a foreign country which [she] has no intention of abandoning and who is visiting the United States . . . temporarily for pleasure . . petitioner overstayed her permission to visit this country for several years and filed, in 1972 and thereafter, applications for adjustment of status under § 245 of the 1952 Immigration and Nationality Act ( 8 U.S.C. § 1255 ). These applications resulted in the findings of misrepresentations by petitioner which are exemplified by this language of the Administrative Law Judge’s June 8, 1973, decision (A.R. 20-23): 6
*121 “Respondent,' as noted above, previously had submitted her application for adjustment of status to the Immigration and Naturalization Service which had denied it on the ground that respondent had wilfully misrepresented a material fact when she had applied for her nonimmigrant visa at the American Consulate in Manila.
“In her sworn statement of January 26, 1973 (Ex. 2) respondent admitted that in applying for her nonimmigrant visa at the American Consulate at Manila, she stated she had no degree ‘because that is what my agent advised me to do.’ She admitted that he had informed her it would be difficult for her to get a visa to go to the United States if she stated she had a medical technology degree. During her deportation hearing on April 19, 1973 respondent admitted that she had not set forth her occupation as a teacher, again on advice of her travel agent, ‘because he said it could be difficult to get the visa’ (Tr. p. 6).
“It is pertinent to note that respondent testified that ... she went to a travel agency for aid in getting to the United States ‘for education and training,’ without success. Hence she went to the second one for help and managed to secure her nonimmigrant visitor’s visa on which is listed for the purpose of the trip ‘Tourism — Pleasure trip for two months’ (Ex. 3).
“Obviously, the whole pattern of respondent’s behavior indicates clearly that she was fully aware that she was deliberately deceiving the American Consul when applying for her nonimmigrant visa by falsifying her amount of education, her occupation and even the purpose of her trip which she listed with tongue in cheek. Respondent has shown that her objective was to get to the United States for ‘education and training’ and she did not hesitate to use any means to accomplish it. “Respondent was fully aware of her misleading representations but, as she stated, were she to tell the truth ‘it could be difficult to get the visa’ (Tr. p. 6). Obviously, such false statements were material, deliberate misrepresentations of respondent’s true status and purpose.
“The extraordinary relief provided by Section 245 of the Immigration and Nationality Act should be granted only in meritorious cases. .
“Counsel argues that were respondent forced to seek her immigrant visa abroad, she would be unable to overcome the fraud factor of Section 212(a)(19) of the Act, supra. Such argument concerning consular action should be addressed to the Department of State — not here. We are concerned only with the facts before us. Were we to accord respondent the extraordinary relief requested, we would be placing a premium on falsehood and deceit and, in effect, encourage others to trod a similar path.
“The granting of adjustment of status is discretionary and is not automatic upon the establishment merely of statutory eligibility. . . .
“We find that the respondent has not sustained her burden of establishing that her application for adjustment of status *122 merits the favorable exercise of discretion. Therefore, as a matter of administrative discretion her application will be denied. Although we shall deny the application for adjustment of status, we shall again, as a matter of discretion, grant her the lesser relief of voluntary departure. She has selected the Philippines as the country of deportation in the event that becomes necessary.”
On appeal, the Board of Immigration Appeals concluded (A.R. 3): “The immigration judge’s decision was correct.”
This record makes clear that petitioner had ample opportunity to dispute the facts found by the administrative officials receiving her application for adjustment of status and, hence, she was not denied due process of law. See Morrissey v. Brewer, 408 U.S. 471, 486-89 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972).
The following language of the United States Court of Appeals for the Second Circuit in Noel v. Chapman, 508 F.2d 1023, 1027-29 (1975), is appropriate in this case:
“There is no reason to prefer those who have flouted the immigration laws, which permitted their entry for a limited time and purpose, over those who have steadfastly and patiently followed legal procedures.”
The Supreme Court of the United States has consistently . recognized the limited scope of judicial review of discretionary decisions by the Attorney General pursuant to congressional legislation in the immigration field. In Hintopoulos v. Shaughnessy, 853 U.S. 72 , 77, 77 S.Ct. 618, 621 , 1 L.Ed.2d 652 (1957), the Court said:
“It is clear from the record that the Board applied the correct legal standards in deciding whether petitioners met the statutory prerequisites for suspension of deportation. The Board found that petitioners met these standards and were eligible for relief. But the statute does not contemplate that all aliens who meet the minimum legal standards will be granted suspension. Suspension of deportation is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised even though statutory prerequisites have been met.”
More recently, the Supreme Court said in Kleindienst v. Mandel, 408 U.S. 753, 766-67 , 92 S.Ct. 2576, 2583 , 33 L.Ed.2d 683 (1972):
“The Court without exception has sustained Congress’ ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’ [Citing case.] ‘[O]ver no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens. [Citing case.] In Lem Moon Sing v. United States, 158 U.S. 538, 547 , [ 15 S.Ct. 967 , 39 L.Ed. 1082 ] (1895), the first Mr. Justice Harlan said:
‘The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.’
“Mr. Justice Frankfurter ably articulated this history in Galvan v. Press, 347 U.S. 522 , [ 74 S.Ct. 737 , 98 L.Ed. 911 ] (1954), a deportation case, and we can do no better. After suggesting, at 530, [ 74 S.Ct. at 742 ], that ‘much could be said for the view’ that due process places some limitations on congressional power in this area ‘were we writing on a clean slate,’ he continued:
‘But the slate is not clean. As to the extent of the power of Congress under review, there is not merely “a page of history” . . but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. . . . But that formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative *123 and judicial tissues of our body politic as any aspect of our government. .
“We are not inclined in the present context to reconsider this line of cases.”
The decisions which have emphasized that the appellate courts can review only refusal to exercise discretion by the administrative officials on the standard of abuse of discretion and need not review other administrative action which can become relevant only if discretion has been exercised seem persuasive in this situation. See, for example, Goon Wing Wah v. Immigration & Naturalization Service, 386 F.2d 292, 293-94 (1st Cir. 1967). Similarly, Silva v. Carter, supra, supports the action of the Board in this case in its holding that the Attorney General’s denial of relief on a discretionary basis was within his power as granted by Congress.
Foti v. Immigration Service, 375 U.S. 217 , 84 S.Ct. 306 , 11 L.Ed.2d 281 (1963), seems to me more consistent with the result reached by the Board than that of the majority opinion. In that case, the Court said at 228, 84 S.Ct. at 313 :
“Admittedly, the standard of review applicable to denials of discretionary relief cannot be the same as that for adjudications of deportability, since judicial review of the former is concededly limited to determinations of whether there has been any abuse of administrative discretion.”
Furthermore, the Court emphasized that the intent of Congress in enacting § 5a of P.L. 87-301, adding 8 U.S.C. § 1105a to the Immigration and Nationality Act, “was to prevent delays in the deportation process” ( 375 U.S. 232 , 84 S.Ct. 315 ). Such delays will result from the additional administrative burden required by the majority’s mandate that eligibility for deportation be the subject of findings in every application under 8 U.S.C. § 1255 . Reliance on Jay v. Boyd, 351 U.S. 345 , 76 S.Ct. 919 , 100 L.Ed. 1242 (1956), by the majority would appear to be misplaced. The regulations applicable in 1956 to requests for adjustment of status, which require “a discussion of the evidence relating to the alien’s eligibility for such relief. . . . ” 7 were not in effect in 1972. In addition, the application in Jay was based on language in § 244 (not 245) of the 1952 Immigration and Nationality Act, 8 which was far different in 1956 than the wording in § 245 9 was in 1972. 10
Since the Supreme Court has emphasized its concern with adding burdens to “the efficient operation of the lower federal courts,” Swift & Co. v. Wickham, 382 U.S. 111, 128-29 , 86 S.Ct. 258, 268 , 15 L.Ed.2d 194 (1969); cf. Gonzalez v. Employees Credit Union, 419 U.S. 90, 98 , 95 S.Ct. 289 , 42 L.Ed.2d 249 (1974); Rosado v. Wyman, 397 U.S. 397, 403 , 90 S.Ct. 1207 , 25 L.Ed.2d 442 (1970), 11 we should not be insensitive to the *124 imposition by our decisions of additional requirements on administrative agencies burdened with applications for relief from large numbers of aliens illegally in this country. See page 120 and note 4 above. 12
ADAMS and ROSENN, Circuit Judges, join in this opinion.
. The other three statutory pre-conditions are:
(1) An application for the described adjustment of status.
(2) Eligibility to receive an immigrant visa and admissibility to this country for permanent residence.
(3) Immediate availability of an immigrant visa at the time the application is approved.
The language of the statute is quoted under II (page 114) of the majority opinion.
. In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 (1954), the Court approved the delegation of preliminary administrative proceedings to quasi-judicial administrative officials of the Immigration Service, including the Board of Immigration Appeals.
. See SEC v. Chenery Corp., 318 U.S. 80, 87-88 , 63 S.Ct. 454 , 87 L.Ed. 626 (1943).
. See November 6, 1975, release based on Report for Immigration Service by Lesko Associates, Washington, D.C., under L.E.A.A. grant to study impact of the illegal alien population on tax, health, welfare, and school systems, as well as on the labor market.
. The argument presented by petitioner’s attorney to the Board of Immigration Appeals included this language:
“Sticking out like a red flag before a red bull was the question of fraud, deceit, misrepresentation, before the consular officer abroad, at the time Miss Bagamasbad applied for her B-2 visa.
“There is no question but what she concealed information; no question but what she misrepresented her status.”
See Administrative Record (A.R.) at 5.
. These findings are supported by substantial evidence in the record. Also, at a personal appearance before an officer of the Immigration & Naturalization Service in January 1973 with her attorney, petitioner conceded that she signed the 1968 application for a temporary visa prepared by the second travel agency with which she dealt in order to secure permission to come to this country and gave the following sworn answer among others (A.R. 40):
“Q. Why did you apply for your visa through a travel agency?
“A. I tried to make contact with various hospitals in different states in the United States and received no answers. Then I tried with a first travel agency to get to the United States for education and training without success. This consumed about one year and a half. So I went to a second agency and explained that I wanted to go to the United States to further my education and training and ask them if they would help me.”
The District Director denied the application for adjustment of status under 8 U.S.C. § 1255 on February 21, 1973, making a statement of reasons including this language (A.R. 35):
*121 “You willfully misrepresented a material fact when you applied for your nonimmigrant visa. In a statement made before an officer of this Service on January 26, 1973, you admitted that at the time you applied for your nonimmigrant visa at the American Consulate in Manila, Philippines, you had not stated that you had received a degree whereas you had actually received a Bachelor of Science degree on January 4, 1966, from Centro Escolar University, Manila, Philippines. You also stated that you had done this on the advice of a travel agent who told you that it would be difficult to get a visa to go to the United States if you said you had a degree in medical technology. In view of these circumstances, favorable exercise of discretion is not warranted in your case . . [T]he favorable exercise of discretion is not warranted because the mere making of a misrepresentation by an alien to a United States consular officer abroad in obtaining a visa for entry into this country is an important element in the consideration of any subsequent application for adjustment of status under section 245 of the Immigration and Nationality Act, as amended.”
. 8 C.F.R. (Rev. 1952) 242.61(a); see also 8 C.F.R. (Rev. 1952) 242.53(i).
. 8 U.S.C. § 1254 .
. 8 U.S.C. § 1255 .
. For example, 8 U.S.C. § 1254 requires reports to Congress on action taken by the Attorney General to adjust the status of aliens under that section, whereas such reports were not required in 1972 when there was an adjustment of status under 8 U.S.C. § 1255 , indicating a congressional desire for more detailed findings where applications were made under 8 U.S.C. § 1254 .
. The Chief Justice of the United States has pointed out that the impact of legislation and court decisions should be carefully considered by those prescribing such legal rules. See The State of the Judiciary — 1975, by Chief Justice Burger, 61 A.B.A.J. 439 (1975); The State of the Judiciary — 1972, by Chief Justice Burger, 58 A.B.A.J. 1049, 1050 (1972). In 58 A.B.A.J. at 1050, the Chief Justice said:
“In recent years Congress has required every executive agency to prepare an ‘environmental impact statement’ whenever a new highway, a new bridge or other federally funded projects are planned. I suggested, with all deference, that every piece of legislation creating new cases be accompanied by a ‘court impact statement,’ prepared by the reporting committee and submitted to the judiciary committees of the Congress with an estimate of how many more judges and supporting personnel will be needed to handle the new cases.
“This is not to suggest that Congress reject legislation simply because it would increase litigation in the federal courts, but only to suggest that Congress consider the needs of *124 the courts along with the need for new legislation. What we sadly lack at the present time is the ability to plan rationally for the future with regard to the burdens of the courts. It is essential that we do this if our courts are ever to function as they should.”
Again, in 61 A.B.A.J. at 439, this language appears:
“Various enactments of Congress and decisions of the courts have sought to make more certain that justice will be administered in an even-handed way and that there will be faithful compliance with the statutes and constitutional provisions for the protection of the rights of accused persons.
“These developments have occurred in a period of rising crime and of mounting public concern over crime. Taken together, these factors have materially increased the burdens on the federal courts, and not all aspects of those added burdens are readily apparent.”
. A December 8, 1975, release by Commissioner Chapman (see note 4 above) includes, inter alia, this language:
“Commissioner Leonard F. Chapman, Jr., said the cost to the United States of the illegal alien problem may run as high as $16 billion a year, and is increasing by $500 million each year. The cost figures as based upon findings in a policy analysis done for the Immigration Service by Richard G. Darman, a former Deputy Assistant Secretary of the Department of Health, Education and Welfare and currently a principal in ICA, Incorporated, a Washington, D.C., firm which specializes in public policy development. The ICS analysis states that for every one million adult illegal aliens in the United States there is a presumable next tax burden of roughly $2 billion. The analysis also states that the number of illegal aliens is conservatively estimated to be increasing by about 250,000 per year or more adding at least $500 million yearly to the tax burden. INS believes the number is increasing by more than 250,000 a year. An earlier study done for INS by Leska Associates, Inc., estimated the number of illegal aliens in the nation at 8 million. At least 80 percent or more are adult. Indicating an annual tax burden of $13 billion or higher.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9462522. Public record. Not legal advice.