Petition — Valand v. Immigration & Naturalization Service

To be argued by OCT 6 i978

MANSUKHLAL A. KOYA, ESQ.

—— DAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

“TB -5oV7

SHANTILAL VALAND,

Petitioner,

versus

IMMIGRATION & NATURALIZATION

SERVICE, NEWARK, NEW JERSEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MANSUKHLAL A. KOYA, P.C.

Suite 1960

100 Church Street

New York, N.Y. 10007

Counsel for Petitioner

(7547)

COUNSEL PRESS, INC., 55 West 42nd Street, New York, N.Y. 10036 @ (212) 391-6622

TABLE OF CONTENTS

Page

ee ww ween, l

ES SIE Ee 2

QUESTIONS PRESENTED............ 3

Seem. 5. we 5

STATEMENT OF THE CASE ......... -

REASONS FOR GRANTING THE WRIT... 11

l. The decision of the Court of

Appeals for the Third Circuit

is in conflict with the decision

of the Court of Appeals for the

District of Columbia Circuit.

)

The Court of Appeals for the

Third Circuit has departed

from the accepted and usual

course of judicial proceeding.

3. Im Matter of Kim, decided on

April 25, 1978 by the Board of

Immigration Appeals, the Immi-

gration & Naturalization Service

has accepted as a rule of gen-

eral applicability the holding in

Castaneda-Gonzales vs. INS.

DT See pb eb ceccscecsesecssee 17

ii

TABLE OF CONTENTS (Continued)

APPENDICES

A - Oral decision of Immigration

Judge dated August 30, 1976.... la

B - Decision of Board of Immigration

Appeals dated June 7, 1977..... 12a

C - Decision of Board of Immigration

Appeals dated July 28, 1977.... 22a

D - Judgment Order of U.S. Court of

Appeals for the Third Circuit,

dated May 12, 1978 .......00-. 26a

E - Order of this Court extending

petitioner's time to and including

October 9, 1978 to file a Petition

for a Writ of Certiorari ...... 28a

F - Decision of Board of Immigration

Appeals in the Matter of Kim .. 30a

G - Petitioner's Brief filed in the

U.S. Court of Apneals: Cover

page, pages 31 and 32........ 35a

iii

TABLE OF AUTHORITIES

Page

Cases:

Castaneda-Gonzales vs. INS,

564 F. 2nd 417 (D.C. Cir. #75-1580

Es ea a a ae ee ll

Matter of Yun Sook Kim

Files #A34 151 005 thru 009

decided by the Board of Immigration

Appeals on April 25, 1978 ........ ta

Statutes:

IMMIGRATION & NATIONALITY ACT:

Section 24l(a)(2): 8 U.S.C.

ee ee a 5

Section 212(a)(14): 8 U.S.C.

EE ee 5

Section 212(a)(19): 8 U.S.C.

I tae See 6

Section 245(a): 8 U.S.C. 1255(a). 7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

SHANTILAL VALAND,

Petitioner,

versus

IMMIGRATION & NATURALIZATION

SERVICE, NEWARK, NEW JERSEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

OPINIONS BELOW

The unreported oral decision of the

Immigration Judge, Newark, New Jersey under

File No. Al9 399 008 dated August 30, 1976,

appears at Appendix A, infra, page la. The

unreported decision of the Board of Immigration

Appeals (Board), under same file number, dated

June 7, 1977, appears at Appendix B, infra, page

12a, and unreported decision of the Board, under

same file number, dated July 28, 1977 on Motion

for Reconsideration of its decision dated June

7, 1977, appears at Appendix C, infra, page 22a.

The unreported Judgment Order or the United

States Court of Appeals for the Third Circuit

(Court of Appeals), under Docket No. 77-2126,

dated May 12, 1978, appears at Appendix D,

infra, page 28a.

JURISDICTION

The decision of the Court of Appeals

was announced on May 12, 1978. Thereafter,

the petitioner petitioned this Court on August

10, 1978 for an extension of time to file a Writ

of Certiorari to review the Judgment Order

dated May 12, 1978 of the Court of Appeals,

which was granted by this Court on August 16,

1978, extending petitioner's time to and includ-

ing October 9, 1978. Such order appears at

Appendix E, infra, page 28a. The jurisdiction

of this Court is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the Court of Appeals has

rendered a decision .n conflict with the decision

of Court of Appeals of District of Columbia Cir-

cuit.

2. Whether the Court of Appeals has

departed from the accepted and usual course of

judicial proceedings:

a. In not upholding or accepting

or comparing or distinguishing or discussing

or commenting upon the decision of another

Court of Appeals on the same subject matter,

to wit, validity of labor certification and author-

ity to invalidate it, and

b. In not giving any reason for

denying the petition for review, and

c. In not giving an opportunity

for an oral argument inspite of a specific re-

quest by the petitioner in his petition for review.

3. Immigration & Naturalization Ser-

vice (INS) has accepted holding in Castaneda-

Gonzales vs. INS as a rule of general applic-

ability. See Matter of Kim, Appendix F, infra,

page 30a.

FEDERAL STATUTES

IMMIGRATION & NATIONALITY ACT (ACT)

Section 24l(a)(2) of the Act: 8 U.S.C. 1251(a)(2)

provides:

Entered the United States without inspec-

tion or at any time or place other than

as designated by the Attorney General or

is in the United States in violation of

this Act or in violation of any other law

of the United States.

Section 212(a)(14) of the Act: 8 U.S.C. 1182(a)(14)

provides:

Aliens seeking to enter the United States,

for the purpose of performing skilled

or unskilled labor, unless the Secretary

of Labor has determined and certified

to the Secretary of State and to the

a

Attorney General that

(A) there are not sufficient workers in

the United States who are able, willing,

qualified, and available at the time of

application for a visa and admission to

the United States and at the place to

which the alien is destined to perform

such skilled or unskilled labor, and

(B) the employment of such aliens will

not adversely affect the wages and work-

ing conditions of the workers in the

United States similarly employed.

Section 212(a)(19) of the Act: 8 U.S.C. 1182(a)(19)

provides:

Any alien who seeks to procure, or has

sought to procure, or has procured a

visa or other documentation, or seexs

to enter the United States, by fraud, or

by willfully misrepresenting a material

fact.

Section 245(a) of the Act: 8 U.S.C. 1255(a) pro-

vides:

The status of an alien, other than an

alien crewman, who was inspected and

admitted or paroled into the United

States may be adjusted by the Attorney

General, in his discretion and under

such regulations as he may prescribe

to that of an alien lawfully admitted

for permanent residence if (1) the alien

makes an application for such adjust-

ment, (2) the alien is eligible to re-

ceive an immigrant visa and is admis-

sible to the United States for perman-

ent residence, and (3) an immigrant

visa is immediately available to him

:

at the time his application is approved.

STATEMENT OF THE CASE

The petitioner is a 33 year old mar-

ried male, a native and national of India. He

was admitted to the United States at New York,

N. Y. on August 24, 1972 as a Visitor and was

authorized to remain in the United States until

January 15, 1976.

On or about April 4, 1974, the petitioner

received a job offer as Bilingual Secretary at

gross weekly salary of $165.00 from YOGIJI

BAZAR, located at 806 Newark Avenue, Jersey

City, New Jersey, dealing in the foods items

from India including gift articles and imports

of the same.

A labor certification was issued on or

about May 3, 1974 in favor of the petitioner by

Ee

the U.S. Secretary of Labor. Based upon said

labor certification, the petitioner applied for

adjustment of status to that of a lawful perman-

ent resident, under Section 245(a) of the Act.

Said application was denied.

On August 30, 1976, a hearing was held

before the Immigration Judge, upon the charge

under Section 241l(a)(2) of the Act (Remained

longer-Visitor). The petitioner renewed his

application for adjustment of status to that of a

lawful permanent resident and for exercise of

administrative discretion before Immigration

Judge, which was denied by an oral decision on

the same day and it was ordered that the peti-

tioner be deported to India.

The petitioner preferred an appeal

against said order dated August 30, 1976, before

the Board. On June 7, 1977, Board affirmed the

‘decision of Immigration Judge.

Te

10

On July 1, 1977, the petitioner made a

motion to re-open and re-consider Board's deci-

sion dated June 7, 1977, supported with documen-

tary evidence which was not presented before

INS, Immigration Judge or Board of Immigration

Appeals. On July 28, 1977, Board denied said

motion and re-affirmed its decision dated June

7, 1977, without giving an opportunity for an oral

argument.

On August 24, 1977, the petitioner pres-

ented a petition before the Court of Appeals for

the review of aforesaid decisions of Immigration

Judge and Board. Said review petition was

denied on May 12, 1978. Court of Appeals did

not give an opportunity for an oral argument

and did not give any reasons for such denial.

ll

REASONS FOR GRANTING

THE WRIT

l & 2.

The Court of Appeals for the District

of Columbia Circuit rendered a decision in the

matter of CASTANEDA-GONZALES vs. IMMI-

GRATION AND NATURALIZATION SERVICE,

564 F. 2nd 417 (D.C. Cir. No. 75-1580). The

issue was validity of Labor Certification gran-

ted by the U.S. Secretary of Labor and author-

ity to invalidate such certification.

In that case, the Court of Appeals for

the District of Columbia Circuit held that the

validity of a labor certification may not be re-

examined by the INS or the Board other than

on a charge under Section 212(a)(19) of the

INA, where it must be established that the mis-

representation was not only material but will-

fully false. The Court further stated that

ee

12

"The Attorney General has broad power

to inquire into the admissibility and de-

portability of aliens. This includes the

authority to decide whether they are

within one of the 31 excludable classes

of Section 212(a), but insofar as 212(a)

(14) is concerned, the Attorney General's

inquiry is limited to whether the Secre-

tary of Labor has determined that the

substantive requirements of that subsec-

tion are satisfied. Once an alien shows

that the Secretary of Labor has made

such a determination in his favor, the

statutorily delegated enforcement power

of the Attorney General is exhausted.

There is nothing in subsection 212(a)(14)

itself that permits the Attorney General

to ignore the Secretary's determination

because he decides for himself that un-

der the correct facts a labor certificate

should not have been granted. Subsec-

tion 212(a)(14) delegates that substantive

determination only to the Secretary of

Labor and simply directs the Attorney

General to ensure that the Secretary has

certified the alien. An alien so certified

is not excludable under 212(a)(14)."'

The petitioner herein was charged under

Section 24l(a)(2) - Remained longer-Visitor, and

not under Section 212(a)(19), where it must be

established that the misrepresentation was not

only material but was willfully false.

13

The petitioner contends that the Court

of Appeals has rendered a decision in conflict

with the decision of the Court of Appeals for

the District of Columbia Circuit.

The Court of Appeals did not give any

reasons for denial. It did not uphold or accept

or compare or comment upon or distinguish or

depart from the rationale of the decision of

Columbia Circuit. The failure for doing so

and the denial of petitioner's petition without

giving any reasons must be considered as a

decision in conflict.

In addition thereto, by failing to do any

of the aforesaid and by not granting an oral

argument, although specifically requested in

petitioner's brief, the Third Circuit Court has

departed from the accepted and usual course of

judicial proceeding.

14

3.

INS has accepted as a rule of general

applicability the holding in CASTANEDA-

GONZALES vs. INS, 564 F. 2nd 417 (D.C. Cir.

No. 75-1580).

In an unpublished opinion dated April

25, 1978, in MATTER OF KIM (Files A34 151005

through 009), the Board has stated that INS has

elected to apply CASTANEDA decision nation-

wide. (See Appendix F, infra, page 33a).

This is one more reason that the Writ

should be issued.

The petitioner has, on page 31 and 32

of his Brief submitted to the Court of Appeals,

quoted and relied upon this decision. See Appen-

dix G, infra, page 36a. Had Court of Appeals

read the brief pages 31 and 32 and had the Court

of Appeals given an opportunity for an oral

argument to the petitioner, he certainly would

15

have pointed out relevancy and importance of

this decision.

In fact, petitioner's case is on more

solid ground than the MATTER OF KIM. In

MATTER OF KIM, there was a charge under

Section 212(a)(19) of the Act. But, Immigra-

tion Judge did not pass on the Service's alle-

gation under said Section. Therefore, in

KIM, record was remanded for further pro-

ceeding. Whereas, in the present case, there

is no charge under Section 212(a)(19) at all.

The only charge is under Section 241(a)(2)

(Remained longer-Visitor). (See Appendix E,

infra, page 28a. )

The petitioner is a beneficiary of a

Labor Certification issued by the U.S. Secre-

tary of Labor on May 3, 1974, which is as

follows:

16

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Oc61 ty f ek wy FE ae Rn a ‘

: Scygo Aveser may ‘uoquaay | Py_'/O€ AW WIAY UbLG --:

*aspriaq Arysnpuy RF 10Qe87 ‘ELIOT WwOoOy | __—- 9909 240 we a 2390 ez ebioeas ____ 2002 om tt

quowsoe[d Y eouRsee[D eT JJoueqUT ee a DRE

SeITALag JuswAOTdwy Jo uoTSsTAIG a Many:

eg ee ‘eas

pre art,

PER, ‘peters Ayequms 3° —

: FIOM $0 SuDTOUE? FeAAIOM Put #7234 4) 4 Mas reape a

HTN] on] Settee Reatnn'tn oe mpwcan s fem

—— ee: BEE cee eeeS

Nevist32v Se GIA3990 JOY SHOOT TING Az ; '_ DANIWESWOOND

17

The Labor Certification is issued under

Section 212(a)(14) of the Act and it is still valid.

Petitioner has established eligibility for adjustment

of status by becoming beneficiary of a labor certi-

fication and is entitled to adjustment of status to

that of a lawful permanent resident under Section

245(a) of the Act. Therefore, petitioner requests

this Court to order INS to adjust his status and

issue Form I-151 (Green Card) to the petitioner.

CONCLUSION

For the reasons above stated, a Writ

of Certiorari should issue to review the judg-

ment order of the U.S. Court of Appeals for

the Third Circuit.

By his attorney,

MANSUKHLAL A. KOYA, P.C.

; Suite 1960, 100 Church Street

New York, N.Y. 10007

(212) 233-8285

i

a eee

la

APPENDIX A

UNITED STATES DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

File: Al9 399 008 - Newark,

New Jersey August 30, 1976

In the Matter of )

)

SHANTILAL VALAND ) IN DEPORTATION

) PROCEEDINGS

Respondent )

CHARGE: I& N Act - Section 241(a)(2) -

Remained Longer - Visitor

APPLICATION: Adjustment of Status -

Section 245 - I & N Act

IN BEHALF OF IN BEHALF OF

RESPONDENT: SERVICE:

Franklin S. Abrams, Esq. Sydney B. Rosenberg

for Abrams & Abrams Trial Attorney

One Penn Plaza Newark, New Jersey

New York, New York 10001

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 33-year-old married male,

a native and national of India.

At a hearing held before me on August 30, 1976,

2a

respondent conceded through counsel that the

allegations of fact in the Order to Show Cause

were true. I find that he entered the United

States at Newark, New Jersey about August 24,

1972. At that time he was admitted as a visi-

tor and authorized to remain in the United

States until January 15, 1976. He remained in

the United States after that date without author-

ization from the United States Immigration and

Naturalization Service. I have concluded from

these facts that the respondent is subject to

deportation on the charge contained in the Order

to Show Cause,

Respondent applied for adjustment of status to

that of a permanent resident, under Section 245

of the Immigration and Nationality Act. He

claimed eligibility for a visa as a non-prefer-

ence immigrant by virtue of a Labor Certifica-

tion as a secretary, issued to an organization

|

i

i

:

/

|

}

'

]

/

3a

called Yagiji Bazaar, at 806 Newark Avenue,

Jersey City, New Jersey. The job offer was

made by a man named M.N. Parekh, who said

he was the owner, and said he would pay $165

a week.

Testimony at the hearing today by the owner

established that the business had started around

1973 and the job offer was made April 8, 1974.

The business was brand new and could not afford

any employee. It was a Mama and Papa retail

store. Mr. Parekh and his wife ran the store,

while Mr. Parekh also worked as a conductor

on the trains of the Penn Central Railroad.

Although Mr. Parekh made a job offer he didn't

have a business which required any employees

and he certainly couldn't afford to pay anybody

$165 a week. In order to stay in business he

had to supplement the earnings of the business

by his earnings as a conductor on the railroad.

4a

He didn't need any secretary because the few

letters that were required could be written by

himself. The job offer said that he had an

electric typewriter and dictation equipment for

a secretary. He testified before me that he

never owned an electric typewriter in his busi-

ness and he never had any dictation equipment.

At the beginning he did most of his purchasing

in the United States although he now claims that

he buys 75% of his merchandise abroad. Al-

though the respondent is represented by an ex-

perienced attorney, he has brought no records

whatsoever to establish how much business this

Yagiji Bazaar does. No evidence has been sub-

mitted to establish that this business does any

correspondence with anybody or that they are

actually importing any merchandise from abroad,

or to establish the truth of his story that 75%

of his $100,000.00 annual business consists of

a ee ee Kee ae. we

5a

imports.

The job offer stated that the respondent was

recommended to the employer by a business

acquaintance. The evidence established that

when the respondent came to the United States

in 1972, he said he was coming to visit his

brother, It was developed that the brother in

the arrival record was Mr. Parekh, who is

now supposed to be the employer, and that Mr.

Parekh posted a $500 Maintenance of Status bond.

Respondent testified that when he came to the

United States he told the Immigration office he

was a farmer and he was. The family business

is farming. His experience as a secretary was

supposed to be his work for the Indian Army,

where he apparently was a Junior Clerk. There

is a substantial difference between a Junior

Clerk in any Army and a capable secretary.

There appears to be no resemblance in the jobs.

6a

Although the respondent came from a family of

farmers and his usual occupation was farmer,

he had done some clerical work in the Army.

This was supposed to be his qualification for a

Secretary in the retail store, where he was

supposed to be working 35 hours a week in a

store open 7 days a week. I just can't believe

that a retail store selling household foods to

housewives has so much correspondence that

they need a secretary 7 hours a day for 5 days

a week, or 5 hours a day for 7 days a week.

I am satisfied they have no need for such a

secretary.

I note, too, that respondent having breached a

bond to guarantee to the Immigration and

Naturalization Service that he would not violate

his status as a visitor and go to work, applied

on February 18, 1973 for an extension of the

stay after the first 6 months and that application

att et ey

7a

for extension said, ''My usual occupation is

butcher. '' He said he had not worked in the

United States; he had $1000.00 in the United

States; and he had sums left behind in India.

Despite this application, shortly thereafter,

during the sarme month, he went to work. He

worked for a company called Empress Handbag

and he worked for a company called Clopay

until May of 1976. The job offer by the alleged

brother, who is now said to be a cousin, not a

brother, is dated April 1974. The employer

stated that until May 1976, he did not need any

employee and he and his wife managed the busi-

ness. In addition, he was also able to handle’

a full time job as a conductor on the Penn Cen-

tral Railroad.

I find first, that respondent was not a bonafide

visitor and any discretion should be exercised

against him. I am satisfied that he came to

8a

his "brother'' "'cousin'' for the purpose of get-

ting a job. I do not accept this story, that

from August 1972 to February 1973, he was not

employed. I am satisfied when he applied for

extension of stay that application was not made

in good faith. He did not intend to remain here

as a visitor. He went to work. He knew at

the time he made the application that it was his

intention to go to work. I am not satisfied that

the job offer in which the Labor Certification

was based, was made in good faith. In fact, I

find it was not made in good faith. The job

offer was for a job which did not exist. I am

not satisfied that it exists today. I do not

accept the testimony without records of the

employer that he has enough business to justify

| hiring a man. I am satisfied that the respond-

| ent is working for this employer solely for the

purpose of this application and for no other

eT

9a

purpose.

I have considered whether or not to grant the

respondent the privilege of voluntary departure

in lieu of deportation. He was granted that

privilege in December 1975 and given until

January 15, 1976 to leave at his own expense.

He apparently ignored that instruction from the

Immigration Service. I am satisfied this res-

pondent will not leave, I am satisfied he will

have to be deported. I have every sympathy

| for people in countries with excessive popula-

tions, where persons who can emigrate and go

to a country where they can make a living,

have a tremendous urge to do so. I have no

| doubt that's what happened in this case. Our

Immigration laws, however, are designed to

prevent this country from being inundated by

people from all over the world who find a

tremendous need to emigrate and come to the

LSS

10a

United States to look for a job. Those people

are welcome if they meet the standards of our

Immigration Laws. I am satisfied that not

| only has this respondent not met the standards

\ | of the Immigration Laws, but that he has en-

gaged in substantial conniving in order to get

to this point. I have no doubt that if I grant

him the priviless of voluntary departure, we

would have more of the same. The only solu-

tion here is to compel his departure by the

deportation process.

ORDER: IT IS ORDERED that the application

by the respondent for adjustment of status under

Section 245 of the Immigration and Nationality

Act be denied, on the ground that the respond-

| ent has not established to my satisfaction that

the job, for which he has a labor certification,

actually exists. If I am held to be wrong, I

would deny this application as a matter of

Te ee ETE

a

es eens =

lla

discretion.

IT IS FURTHER ORDERED that the application

by the respondent for the privilege of voluntary

departure in lieu of deportation be denied as a

matter of discretion.

IT IS FURTHER ORDERED that the respondent

be deported from the United States to India on

the charge contained in the Order to Show Cause.

/s/ Julius Goldberg

Julius Goldberg

IMMIGRATION JUDGE

12a

APPENDIX B

UNITED STATES DEPARTMENT OF JUSTICE

BOARD OF IMMIGRATION APPEALS

WASHINGTON, D.C. 20530

JUN - 7 1977

File: Al9 399 008 - Newark

In re: SHANTILAL VALAND

IN DEPORTATION PROCEEDINGS

APPEAL

ON BEHALF OF

RESPONDENT: Franklin S. Abrams, Esq.

Abrams & Abrams

One Penn Plaza

New York, New York 10001

ON BEHALF OF

I&N SERVICE: George Indelicato

Appellate Trial Attorney

ORAL ARGUMENT: March 14, 1977

CHARGE:

Order: Section 24l(a)(2), I&N Act (8 U.S.C.

1251(a)(2)) - Nonimmigrant

visitor, remained longer

than authorized

APPLICATION: Adjustment of status under

l3a

section 245, or, in the alter-

native, voluntary departure

In a decision dated August 30, 1976,

the immigration judge found the respondent

deportable, upon his own admission, on the

charge contained in the Order to Show Cause.

The reepondent's application for adjustment of

status was denied. The respondent's applica-

tion for voluntary departure in lieu of deporta-

tion was also denied. The respondent has

appealed. We will dismiss the appeal on the

issue of adjustment of status, but grant the

respondent's request for voluntary departure.

The respondent is a 32-year-old native

and citizen of India. He has a wife and two

children in India. He entered the United States

on August 24, 1972, as a visitor for pleasure.

He was authorized to remain until January 15,

1976, but remained thereafter without authority.

l4a

The immigration judge found that the

respondent was not a bona fide visitor when he

came here. Although this has not been proven,

the circumstantiai evidence clearly points to

that conclusion.

When the respondent came to the United

States, he said his purpose was to visit his bro-

ther. It turns out that the man he visited is

his "cousin, '' one M.N. Parekh. Mr. Parekh

posted a $500 Maintenance of Status bond for

his "cousin, "'

On February 18, 1973, the respondent

applied for an extension of stay as a visitor.

In this application he stated that he was a

butcher, that he had not worked in the United

States, that he had $1,000 in the United States

and more money back in India. Despite this

application, he wert to work illegally that very

month. He worked for two companies, Empress

15a

Handbag and Clopay, until May, 1976.

Meanwhile, he was offered a job by

his "cousin, '' Mr. Parekh, or at least that is

what the Labor Department was told. Mr.

Parekh is a conductor for the Penn-Central

Railroad. He decided to open up what he des-

cribed at the hearing as an “import-export"

business, while still keeping his job as a con-

ductor. The job offer was dated April 4, 1974.

The position was that of a bilingual secretary.

An application for a labor certification was sub-

mitted on April 8, 1974. This "import-export"

business is actually a ''ma and pa" Indian gro-

cery store in Jersey City, called Yogiji Bazaar.

Mr. Parekh admitted that so far he has exported

nothing. He also admitted that at the time he

made the job offer, he could not afford to hire

his "cousin. '' The store was run by himself

and his wife. They imported pickles and papad

- oem eee

A Ce Se OR Ee en neo

l6a

and mango pulp from India, rice from Pakistan,

beans from Kenya, and raksha, which the res-

pondent described as "religious thread.'' When

the job offer was submitted to the Labor Depart-

ment, Mr. Parekh claimed his annual sales were

$50,000. At the deportation hearing, he admit-

ted that was "only a projection, "'

There is no claim that the respondent

started working for Mr. Parekh at any time be-

fore May, 1976. What the immigration judge

doubted was whether the respondent does any

real work for Yogiji Bazaar even at present.

The job offer stated that the employer

had an electric typewriter and dictation equip-

ment. Actually, he had only a manual typewriter,

as he admitted.

Under "Efforts you have made to fill

the job,'' Mr. Parekh wrote: ''Called agencies;

asked around in the Indian community." Yet,

ES a 0 eee a Ee aes

17a

at the deportation hearing, the story apparently

was that the respondent had been offered the

position as soon as the business was conceived

of by Mr. Parekh,

Under ''Describe how you learned that

alien named above was available, '' Mr. Parekh

wrote: ‘Recommended by a business acquaint-

ance. '' This, he admitted, was a fabrication.

The respondent's itaiiatel as a sec-

retary supposedly derives from his work as a

junior clerk for the Third Gujurat Battalion of

the Indian National Guard.

Mr. Parekh testified that he handled

all of his correspondence himself before hiring

the respondent. He did this, it is to be remem-

bered, while holding down a job as a conductor

with the Penn-Central. It does not seem inher-

ently plausible that he would or could hire the

respondent as a full-time secretary, and pay

ed

18a

him $715 a month, to handle the correspondence

and files of a ''ma and pa" grocery store.

The respondent brought no documents

to the hearing to support his claim that he

worked as a secretary for Mr. Parekh.

Mr. Parekh stated that he could pro-

duce documentary evidence in one day, if given

the chance. On appeal, the respondent com-

plains that the immigration judge did not grant

him the time to submit documentary evidence

to buttress his case, and that the immigration

judge was biased. We reject these assertions.

8 C.F.R. 242.13 states that the "special in-

quiry officer may grant a reasonable adjourn-

ment either at his own instance or, for good

cause shown, upon application by the respondent

or the trial attorney. '' (Emphasis supplied. )

The immigration judge stated that he would not

grant the respondent's adjustment of status in

ns a ee ae ee ~

etna cule Oe

19a

any case, so that there was no reason to post-

pone decision to give the respondent an oppor-

tunity to attempt to buttress his case. It was

within the proper discretion of the immigration

judge to refuse to grant him the opportunity to

attempt to salvage a hopeless case. We cannot

imagine what sort of documentary evidence

could possibly prove that the respondent was

Mr. Parekh's full-time secretary, and that Mr.

Parekh intended to continue to employ him after

he had received permanent resident status.

Even if the respondent was the full-time secre-

tary of Mr. Parekh, and even if his offer of

employment were not a sham to help his cou-

sin gain permanent residence, a discretionary

denial of adjustment would be proper on the

basis of the respondent's misrepresentations

and his previous illegal employment. Indeed,

under the recent amendments to section 245,

20a

the previous illegal employment would be a

statutory bar to eligibility for adjustment. See

P.L. 94-571, 90 Stat. 2703, enacted October

20, 1976 and effective January 1, 1977.

The immigration judge's decision deny-

ing voluntary departure is understandable and

supportable, in view of the misrepresentation

that pervades this case. However, we choose

to grant the respondent the privilege of depart-

ing voluntarily.

ORDER: The immigration judge's deci-

sion denying adjustment of status is affirmed.

FURTHER ORDER: The respondent is

permitted to depart from the United States vol-

untarily within 30 days from the date of this

order or any extension beyond that time as

may be granted by the District Director; and

in the event the respondent fails so to depart,

the respondent shall be deported as provided in

2la

the immigration judge's order.

Chairman

22a

APPENDIX C

UNITED STATES DEPARTMENT OF JUSTICE

BOARD OF IMMIGRATION APPEALS

WASHINGTON, D.C. 20530

JUL 28 1977

File: Al9 399 008 - Newark

In re: SHANTILAL VALAND

IN DEPORTATION PROCEEDINGS

MOTION

ON BEHALF OF

RESPONDENT: Mansukhlal A. Koya, Esquire

80 Broad Street

New York, NY 10004

CHARGE:

Order: Section 24l(a)(2), I&N Act (8 U.S.C.

1251(a)(2)) - Nonimmigrant

visitor - remained longer

than permitted

APPLICATION: Motion for reconsideration

The respondent has submitted a motion

to reconsider our decision of June 7, 1977,

along with a request for oral argument and an

23a

extension of his voluntary departure time.

The request for oral argument will be

denied. We have carefully considered all of

the new evidence submitted by the respondent,

and see no reason to change our prior decision.

Indeed, the new evidence confirms that our

decision of June 7 was correct. We have no

authority to grant the respondent an extension

of his time for voluntary departure. That

authority lies exclusively with the local District

Director. See 8 C.F.R. 244. 2.

In our prior decision, which we hereby

incorporate by reference, we stated that "i]t

does not seem inherently plausible that [Mr.

Parekh] would or could hire the respondent as

a full-time secretary, and pay him #715 a month,

to handle the correspondence and files of a 'ma

and pa' grocery store."

Counsel states that the respondent was

Sethian Are

24a

employed by Mr. Parekh only between May,

1976 and August, 1976. Counsel states that Mr.

Parekh will rehire the respondent as soon as

his status is adjusted. At the deportation hear-

ing, the respondent testified that he was earning

$715 a month. This is supported by a W-2

Form for the quarter ending June 30, 1976.

(Ex. 24)

However, Yogiji Bazaar's balance sheet

for the year ending December 31, 1976 shows

that only $1,598 was paid in wages that year.

(Ex. 21) By our calculation, four months' wages

at $715 a month equals $2, 860, not $1,598.

Yogiju Bazaar's 1976 United States cor-

poration income tax return also shows $1,598

as the total for salaries and wages paid. The

same return shows that the company's profits

amounted to $1,118 for that year. (Ex. 18)

The company's 1975 United States”

25a

corporation income tax return shows a loss of

$531.

We do not see how a little grocery

store with that kind of profit and loss record

could even support Mr. Parekh and his wife.

This is presumably why he also works part

time as a conductor for the Penn-Central Rail-

road. It is clear to us that Mr. Parekh is in

no position to hire the respondent full time at

any salary, much less $715 a month.

In view of the repeated misrepresenta-

tion in this case, and in light of the store's

profit and loss record, we attach little weight

to the W-2 Form.

ORDER: The decision of June 7, 1977

is affirmed.

Chairman

ee oe

26a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 77-2126

SHANTILAL VALAND,

Petitioner

Vv.

IMMIGRATION AND NATURALIZATION

SERVICE, Newark, New Jersey

On Petition for Review of an Order

of the Board of immigration Appeals

Entered june 7, 1977

Submitted Under Third Circuit Rule 12(6)

May 4, 1978

Before: ADAMS, VAN DUSEN, and ROSENN,

Circuit Judges.

JUDGMENT ORDER

2 EM Ne tH,

iE OR BoE) AO Rk A de

27a

After consideration of the contentions

raised by Petitioner, it is

ADJUDGED AND ORDERED that the

petition for review is hereby denied, and order

of the Board of Immigration Appeals be and is

hereby affirmed.

BY THE COURT,

/s/ Arlen M, Adams

Circuit Judge

ATTEST:

/s/ Thomas F. Quinn

Thomas F, Quinn, Clerk

DATED: MAY 12 1978

Certified as a true copy and issued in lieu

of a formal mandate on June 5, 1978.

Test: THOMAS F. QUINN

Clerk, United States Court of Appeals

for the Third Circuit

$F LAER OOS eS OM OL asmAD

OSL SR AOE AE

i UPA EAL

PALES Mk ar PE ans ae ea Bc

28a

APPENDIX E

SUPREME COURT OF THE UNITED STATES

No. A-183

SHANTILAL VALAND,

Petitioner,

Vv.

IMMIGRATION AND NATURALIZATION

SERVICE, ETC.

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the applica-

tion of counsel for petitioner,

IT IS ORDERED that the time for filing

a petition for writ of certiorari in the above-

entitled cause be, and the same is hereby, ex-

tended to and including October 9, 1978.

"7

ee ee ee ee

29a

/s/ William J. Brennan, Jr.

Associate Justice of the Supreme

Court of the United States

Dated this 16

day of August, 1978.

ee i ec

ee ee

30a

APPENDIX F

UNITED STATES DEPARTMENT OF JUSTICE

BOARD OF IMMIGRATION APPEALS

WASHINGTON, D.C. 20530

Files: A34

A34

A34

A34

A34

APR 25 1978

151 009 - Philadelphia

151 006

151 007

151 008

151 005

In re: YUN SOOK KI

YONG AE KIM

SANG YONG KIM

IN YONG KIM

IL YONG KIM

IN EXCLUSION PROCEEDINGS

APPEAL

ON BEHALF OF

APPLICANTS: Richard D. Steel, Esquire

636 Public Ledger Bldg.

Sixth & Chestnut Streets

Philadelphia, PA 19106

ON BEHALF OF

I&N SERVICE: Mary Jo Grotenrath

Appellate Trial Attorney

Sydney B. Rosenberg

Trial Attorney

DM O-AP BB ee Oe

ee eee Se es

Bees ™ .

3la

ORAL ARGUMENT: July 27, 1977

EXCLUDABLE: Sec. 212(a)(14), I&N Act (8

U.S.C. 1182(a)(14) - No

valid labor certification

(adult male applicant)

Sec. 212(a)(19), I&N Act (8

U.S.C. 1182(a)(19) -

Visa obtained by will-

fully misrepresenting

material facts (adult

male applicant)

Sec. 212(a)(20), I&N Act (8

U.S.C. 1182(a)(20)) -

Not in possession of

valid immigrant visa

(adult female applicant

and three children)

APPLICATION: Admission as lawful perman-

ent residents

The respondents appeal from a deci-

sion of an immigration judge dated March 4,

1977. In his decision, the immigration judge

found the principal male applicant excludable

under section 212(a)(14) of the Immigration and

Nationality Act, 8 U.S.C. 1182(a)(14), and the

uu Peewee

Pe | itt tS ta Metts a A hain pA at Be ae

eel te rw

ais eT

ok neat

32a

other applicants excludable under section 212(a)

(20) of the Act, 8 U.S.C. 1182(a)(20). The rec-

ord will be remanded for further proceedings

and the entry of a new decision.

The applicants are all natives and citi-

zens of Korea. The principal applicant was

issued an immigrant visa on October 15, 1973

primarily on the basis of a labor certification

approved by the Department of Labor on Aug-

ust 21, 1972. The female applicant and the

three other applicants in these proceedings

were issued visas under the provisions of sec-

tion 203(a)(9) of the Act, 8 U.S.C. 1153(a)(9),

as the spouse and children of the principal ap-

plicant who were accompanying or following to

join him. As such, their admissibility depends

on that of the principal applicant.

After the immigration judge rendered

his decision, the United States Court of Appeals

ks iO ee Bie ae

ee ee ee te

33a

for the District of Columbia Circuit rendered

its ‘decision in Castaneda-Gonzalez v. INS, 564

F.2d 417 (1977). The Service has elected to

apply that decision nationwide. Also, the

Department of Labor issued new regulations

effective February 18, 1977 concerning the in-

validation of labor certifications by the Immi-

gration and Naturalization Service. See Matter

of Patel, Interim Decision 2632 (BIA 1978).

In light of these developments, and

considering that the immigration judge did not

pass on the Service's allegation that the prin-

cipal applicant is excludable under section

212(a)(19) of the Act, 8 U.S.C. 1182(a)(19), we

will remand the record so as to allow the par-

ties to present such additional evidence as they

deem necessary in light of the above and for

the immigration judge to pass initially on the

charge under section 212(a)(19) of the Act and

34a

consider the charge under section 212(a)(14) of

the Act in light of Castaneda-Gonzalez v. INS,

supra, and the new regulations. The immigra-

tion judge should certify his decision to us for

review if adverse to the applicants.

ORDER: The record is remanded for

further proceedings not inconsistent with the

foregoing opinion and the entry of a new deci-

sion,

Chairman

ee a ee |

DN ee a ee ee aa ee

SLs FOaey See ee Kel 7.

35a

APPENDIX G

77-2126

To be argued by

MANSUKHLAL A. KOYA, ESQ.

In The

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

“x

SHANTILAL VALAND

(Al9 399 008)

Petitioner,

vs.

IMMIGRATION & NATURALIZATION

SERVICE

Respondent.

PETITIONER'S BRIEF

MANSUKHLAL A. KOYA

Attorney for the Petitioner

80 Broad Street

New York, N.Y. 10004

(212) 425-0055

36a

[31] VALIDITY OF LABOR CERTIFICATION

MAY NOT BE REEXAMINED BY

IMMIGRATION & NATURALIZATION SERVICE

The petitioner contends that the valid-

ity of a labor certification may not be re-

examined by Immigration & Naturalization Ser-

vice or by the Board other than on a charge

under Section (212)(a)(19) of the Immigration &

Nationality Act, where it must be established

that the misrepresentation was not only mate-

rial but willfully false.

In a landmark decision in Castaneda-

Gonzalez v. INS, _F.2d__ (D.C. Cir., No.

75-1580, May 27, 1977), the Court of Appeals

held that the validity of a labor certification

may not be re-examined by the Service or the

Board other than on a charge under Section 212

(a)(19) of the INA, where it must be established

that the misrepresentation was not only material

but willfully false.

37a

The Court of Appeals fur-

ther stated that

[32]

"The Attorney General has broad power

to inquire into the admissiblity and de-

plorability of aliens. This includes

the authority to decide whether they

are within one of the 31 excludable

classes of Section 212(a), but insofar as

(212) (a)(14) is concerned the Attorney

General's inquiry is limited to whether

the Secretary of Labor has determined

that the substantive requirements of that

subsection are satisfied. Once an alien

shows that the Secretary of Labor has

made such a determination in his favor,

the statutorily delegated enforcement

power of the Attorney General is ex-

hausted. There is nothing in subsec-

tion 212 (a)(14) itself that permits the

Attorney General to ignore the Secre-

tary's determination because he finds

it factually defective and to decide for

himself that under the correct facts a

labor certificate should not have been

granted. Subsection 212(a)(14) delegates

that substantive determination only to

the Secretary of Labor and simply dir-

ects the Attorney General to ensure

that the Secretary has certified the

alien. An alien so certified is not ex-

cludable under 212(a)(14). '"'