Motion to Affirm — Tyler v. Wyrick

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No. 75-6297

MICHAEL RODAK, JR., CLERK

IN THE SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975 OCTOBER TERM, 1975

RAMON MARTIN FIALLO, ET AL., APPELLANTS No. 75-6297

Vv.

RAMON MARTIN FIALLO, ET AL., APPELLANTS

EDWARD H. LEVI, ET AL.

v-

EDWARD H. LEVI, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

MOTION TO AFFIRM

MOTION TO AFFIRM

Pursuant to Rule 16 of the Rules of this Court, appellees

move that the judgment of the district court be affirmed.

STATEMENT

This is a direct appeal from the final judgment of a three-

judge district court, dismissing appellants’ constitutional

challenge to classifications established by Congress in Sections

ROBERT H. BORK,

Solicitor General,

101(b) (1) and 101(b) (2) of the Immigration and Nationality Act

of 1952, 8 U.S.C. 1101(b) (1) and 1101(b) (2), for the admission of

RICHARD L. THORNBURGH,

Assistant Attorney General, aliens into the United States (J.S. App. A, B; 406 F. Supp. 162).

JEROME M, FEIT, 1. Congress has determined to grant special immigration

; WILLIAM G. OTIS,

Attorneys, preference status to aliens who are “children” or “parents” of

Department of Justice,

Washington, D.C. 20530. American citizens and resident aliens, within the meaning of the

Immigration and Nationality Act of 1952. Aliens who qualify

under this statutory parent-chilé relationship may enter the

United States independent of any applicable quota or numerical

limitations, 8 U.S.C. 1151(b), and may secure an immigrant visa

without a labor certification, 8 U.S.C. 1182(a) (14).

The terms "child" and "parent" are defined in Sections

101(b) (1) and (2) of the Act. Included in this definition, and

thus accorded a status that facilitates their being allowed to

live together in this country, are a legitimate or legitimated

child and his parent, a stepchild and stepparent, and an ille-

gitimate child seeking preference by virtue of his relationship

to his adopted mother or to his unwed natural mother. Illegiti-

mate children seeking preference by virtue of their relationship

to their natural fathers are not included within the statutory

definition of "child." Similarly, the preference does not extend

to natural fathers of illegitimate children who are citizens or

resident aliens of the United States.

Appellant Ramon Fiallo is a citizen of the United States

and appellants Trevor and Arthur Wilson are aliens permanently

residing in this country. All are illegitimate, minor children

who attempted to have their natural fathers (who are aliens)

admitted to the United States under the immigration preference

accorded a "parent" by Section 101(b)(2). Appellant Cleophus

Warner is a naturalized United States citizen who sought to have

his illegitimate, minor son admitted to this country as a

permanent resident under the preference accorded a “child” by

Section 101 (b) (1) .2/ the Immigration and Naturalization Service

denied the petitions on the ground that the son in each case was

not the legitimate or legitimated offspring of the father and that

the statutory definition of “parent” and “child” had therefore not

been satisfied.

1/ Also named as appellants, and as plaintiffs below, are the

father of appellants Fiallo and Trevor and Arthur Wilson and the son

of appellant Warner. The circumstances surrounding appellants' immi-

gration status are set forth in more detail in the opinion of the

district court (J.S. App. A 2-3).

_

Appellants thereupon brought this suit, alleging that

Sections 101(b) (1) and (2) of the Act abridged their constitu-

tional right to equal protection of the laws by excluding unwed

natural fathers (but not unwed natural mothers) from the immi-

gration preference. They sought to enjoin the enforcement of

those provisions insofar as they operated to exclude appellants

from the immigration preference granted other parents and children.

A three-judge district court, convened pursuant to 28 U.S.C. 2282

(J.S. App. C), granted judgment for the government and dismissed

the action. The court held, with one judge dissenting, that the

Classifications established by the Act were a proper exercise of

Congress' extensive authority over the admission of aliens. The

court concluded in addition that Congress could rationally exclude

aliens whose lives did not "reflect personal standards of conduct

important to our society's sense of morality” (J.S. App. A 5),

that the provisions excluding aliens claiming to be unmarried,

natural fathers and their illegitimate children foreclosed an

avenue for numerous fraudulent claims that could pose "extremely

difficult problems of investigation and proof" (id. at 8), and

that the provisions in issue facilitated the fair administration

of the Act as a whole.

ARGUMENT

The decision of the district court is correct and is

supported by principles of immigration law that have long been

accepted by this Court. There is no necessity for plenary review.

1. As this Court stated in Galvan v. Press, 347 U.S. 522,

531, the proposition that ‘the formulation of [policies pertaining

to the entry of aliens] is entrusted exclusively to Congress has

become about as firmly embedded in the legislative and judicial

tissues of our body politic as any aspect of our government.”

The Court reaffirmed this in Kleindienst v, Mandel, 408 U.S. 753,

766: -~3-

vr

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.” * * *

"{[O]ver no conceivable subject is the legislative

power of Congress more complete than ‘t is over"

the admission of aliens.

Hence, while distinctions based on sex and legitimacy

might be suspect if embodied in domestic Legislation. congress

is free to employ those and similar criteria in determining

what status to accord various classes of aliens seeking to enter

the United States. See Harisiades v. Shaughnessy, 342 U.S. 580,

597 (Frankfurter, J., concurring). Accordingly, aliens may be

denied preferential admission, or excluded from this country

altogether, on the basis of race (Dunn v. Immigration and

Naturalization Service, 499 F.2d 856, 858 (C.A. 9), certiorari

denied, 419 U.S. 1106) or other “immutable” characteristics such

as age (Nazareno v. Attorney General, 512 F.2d 936 (C.A.D.C.),

certiorari denied, 423 U.S. 832)and national origin (Noel v.

Chapman, 508 F.2d 1023 (C.A. 2), certiorari denied, 423 U.S. 824)

and they may be barred because of their sexual proclivities

(Boutilier v. Immigration and Naturalization Service, 387 U.S. 118)

or political beliefs (Kleindienst v. Mandel, supra, 408 U.S. at 762).

3/

See J.S. App. A 5.

_2/ +=But cf. Labine v. Vincent, 401 U.S. 532 (classification based

on illegitimacy upheld) and Kahn v. Shevin, 416 U.S. 351 (classifica-

tion based on sex upheld).

_3/ See also The Japanese Immigrant Case, 189 U.S. 86; Faustino v.

Immigration and Naturalization Service, 432 F.2d 429 (C.A. 2), certi-

Orari denied, 401 U.S. 921; Perdido v. Immigration and Naturalization

Service, 420 F.2d 1179 (C.A. 5); Talanoa v. Immigration and Naturaliza-

tion Service, 397 F.2d 196 (C.A. 9). Contrary to appellants’ sug-

gestion (J.S. 20-21), this, Court's decisions in Almeida-Sanchez v.

United States, 413 U.S. 266, and United States v. Brignoni-Ponce, 422

U.S. 873, do not represent an inroad upon this consistent recognition

of the plenary power of Congress to determine the conditions under

which classes of aliens may be admitted into the country. Those cases

involve the procedures that the government may undertake, consistent

with the Fourth Amendment, to stem the illegal entry of aliens into

the United States, not the power of Congress to determine which alien

(Footnote continued on next page)

+

2. In view of Congress' plenary power over the admission

of aliens, its enactments are not to be measured against a

"compelling interest" test or other test suggested by appellants.

Nonetheless, the challenged provisions of the Act are rational

and further legitimate governmental interests.

At the outset, we note, as did the district court (J.S.

App. A 9-10), that appellants’ exclusion from the preference

accorded to a "parent" and "child," as those terms are defined in

the Act, was not a legislative oversight. On the contrary, it is

apparent from the precise wording of Sections 101(b)(1) and (2)

that Congress, in considering the problem of illegitimacy and

special preferences in the admission of aliens, made a deliberate

choice to include unwed mothers and their offspring and to deny

the benefit to unwed fathers and their illegitimate children.

While the provisions granting exemptions to certain "parents"

and “children” were, in general, designed to serve the humanitarian

purpose of family unity (see Immigration and Naturalization Service v.

Errico, 385 U.S. 214, 219-220) neither the language nor the history

of the Act supports appellants’ contention (J.S. 17) that “the

exclusive purpose of Congress [was] to maintain or reunite family

units, legitimate or otherwise, which include a United States

citizen or permanent resident member * * *." To the contrary,

large classes of persons commonly thought of as "children" are

excluded from the Act's definition of the term: all children,

(Footnote continued from preceding page)

entries are legal and which are not. Indeed, Almeida-Sanchez

explicitly reaffirmed the undoubted authority of Congress to exclude

aliens, 413 U.S. at 272, and Brignoni-Ponce (citing Kleindienst v.

Mandel, supra) noted the "broad congressional power over immigration"

but explained that "this power cannot diminish the Fourth Amendment

rights of citizens who may be mistaken for aliers." 422 U.S. at 884.

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regardless of age, who are married; all children who are more

than twenty-one years of age; stepchildren who were older than

eighteen when the marriage creating their status occurred;

children who were legitimated after they were eighteen; and

children adopted after the age of fourteen. Similarly, parents

of these children are not "parents," within the meaning of

Section 101(b) (2), for the purpose of securing special immigration

preferences by virtue of their relationship to American citizens

Or permanent residents. Furthermore, the Act not only creates

numerous categories of children and parents who are not granted

privileged status, but also establishes several modified privileges

relating to "parents" and “children” that depend on a number of

other factors having little relation to family aie In light

of this elaborate scheme, appellants’ claim that Congress in-

advertently omitted them from the preferred categories of aliens

is sieaitie

The challenged provisions also advance legitimate substantive

and procedural government interests. One rational basis for the

preference exception was noted by the district court (J.S. App.

A 5):

{It] is a perfectly proper exercise of Congressional

responsibility to admit into this country those

individuals who will be desirable additions to our

populace. This includes individuals who will respect

our system of government and who will be useful addi-

tions to our labor force, as well as those whose

lives reflect personal standards of conduct important

to our society's sense of morality. (Footnotes

omitted).

_4/ For example, a resident alien "parent™ will confer on his

“child” either a derivative priority date, 22 C.F.R. 42.62, if the

“child” is a “special imaigrant" (8 U.S.C. 110l(a)(27)), or a pre-

ference, 8 U.S.C. 1153, if the child is subject to 8 U.S.C. 115l{(a),

though the child still must enter under the applicable numerical

limitation.

_5/ It is also inconsistent with appellants’ contention that the

challenged provisions amount to an unconstitutional “irrebuttable

presumption." See p. 7, infra.

wie

ee

Moreover, Congress could properly have determined to limit the

preference in a manner that would avoid difficult administra-

tive problems (see Weinberger v. Salfi, 422 U.S. 779, 780) and

would diminish the opportunities for fraud (J.S. App. A 8):

[I]n view of the need to establish administrative

procedures abroad which can process immigration

applications efficiently, avoid extremely difficult

problems of investigation and proof, and minimize

the potential for sham claims, we cannot say that

the legislative decision to exclude unwed, biological

fathers and their illegitimate children from the

statutory definitions of parent and child is

patently unreasonable. Cf. Faustino v. INS, supra.

For example, while the names of biological mothers

routinely appear on such documents as birth certi-

ficates, this may not be the case where unmarried

fathers have not acknowledged paternity officially

at about the time of birth. Although such evidence

would not necessarily be conclusive of one's status

as a parent, nevertheless we perceive that it might

be more difficult for an unrelated adult to pose

as a child's mother than a child's father, where

the birth certificate contains a definite name and

identification of the mother only.

3. Appellants’ contention (J.S. 20) that the Act embodies

an unconstitutional “irrebuttable presumption"--that an illegitimate

child and his father are never a “viable family unit"--also is

insubstantial. As we have noted above, Congress did not intend to

grant an immigration preference to every alien who was part of a

“viable family unit" with an American citizen or resident alien,

nor, despite appellants’ claim (J.S. 19), did it “conclude” that

unwed fathers never maintain close ties to their children while

presuming that unwed mothers always do. Rather, Congress determined

to grant immigration preferences to selected categories of aliens

for a variety of reasons, some relating to the alien, some to his

relatives in this country, : and some for the convenience of immi-

gration officials here and overseas.

Nor is this case analogous to Jimenez v. Weinberger, 417 U.S.

628, and similar cases upon which appellants rely (J.S. 20). The

statutes in those cases purported to grant benefits to all persons

-

who suffered from certain conditions (e.g., pregnancy OF dependency)

that were determined to require relief, but excluded individuals

who in fact labored under those handicaps by an irrebuttable

presumption that they did not. By contrast, the preference at issue

here does not presume to alleviate every adversity based on the

separation of an alien's family, and depends not on the existence

of any particular factual condition or characteristic (such as

the closeness of a family unit) but solely on the class of applicant.

As discussed earlier, Congress excluded large groups of alien

children and parents, without regard to the degree of family unity

that could be demonstrated, and had ample reason for excluding

categories such as those occupied by ¢ppellants from the benefits

of Sections 101(b) (1) and (2) of the Act.

We realize, as did the district court (J.S. App. A 5, 9).

that the Act may work hardships in individual cases. However,

Congress has not barred aliens such as appellants from immigrating

to the United States. The fact that an individual is an illegitimate

child or the father of such a child is not a basis for exclusion

under the Act. Appellants, like other aliens, therefore remain

free to immigrate to this country, subject to appropriate quota

and other restrictions, and may be eligible for other types of relief

from the Attorney General.

CONCLUSION

The judgment of the district court should be affirmed.

Respectfully submitted.

ROBERT H. BORK,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. FEIT,

WILLIAM G. OTIS,

Attorneys.

MAY 1976.

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