# Petition — Valand v. Immigration & Naturalization Service

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 439 U.S. 1069

## Text

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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: 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). '"'

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1845%3A1. Public record. Not legal advice.