Opposition — Jain v. Immigration & Naturalization Service

Supreme Court, U.

No. 79-1321

qm oe

In the Supreme Court of the United States

OcTOBER TERM, 1979

Om PRAKASH JAIN, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

WapbeE H. McCrer, JR.

Solicitor General

PHiLip B. HEYMANN

Assistant Attorney General

JOHN C. WINKFIELD

Attorney

Department of Justice

Washington, D.C. 20530

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In the Supreme Court of the Hnited States

OcTOBER TERM, 1979

No. 79-1321

Om PRAKASH JAIN, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIPCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-13a)

is reported at 612 F. 2d 683. The opinions of the District

Director (Pet. App. 22a-24a), the immigration judge (Pet.

App. 17a-2la), and the Board of Immigration Appeals

(Pet. App. 14a-16a) are not reported.

JURISDICTION

The judgment of the court of appeals was entered on

December 21, 1979. The petition for a writ of certiorari

was filed on February 25, 1980. The jurisdiction of this

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

QUESTIONS PRESENTED

1. Whether the Attorney General abused his discretion

in denying petitioner's request for adjustment of status to

that of a permanent resident alien.

(1)

2. Whether the courts of appeals have jurisdiction to

review the denial of adjustment of status in the context of

a deportation proceeding.

3. Whether due process requires that an alien be

afforded an opportunity, in addition to that provided in

the context of a deportation proceeding, to contest the

denial of his request for adjustment of status.

STATEMENT

1. Petitioner has resided in the United States, by virtue

of a four-month business visitor visa, since January 1976

(Pet. App. 3a). He had previously entered the United

States as a business visitor on two other occasions (id. at

2a-4a). In June 1974 petitioner came to the United States

on a nonimmigrant business visa as the proprietor and

business representative of an Indian company that

purportedly exported gems, beads, and semiprecious

stones (R. 122-123).! Approximately four or five weeks

later, he left the United States, without having transacted

any business (R. 36). In September 1975 petitioner again

visited the United States as the representative and

proprietor of that firm (R. 35, 37, 122-123). He departed

four weeks later, having again failed to obtain any orders

for his merchandise (R. 37).

During petitioner's second visit, however, he engaged

an attorney, who assisted him in creating an American-

based import company, Asian Imports, which was

purportedly located in the hotel where petitioner was

Staying (R. 57, 144). Petitioner obtained both a certificate

of business for this new venture and a social security

number for himself (R. 37). Having completed these

“R.” refers to the certified administrative record.

. ee Ec

preliminary business arrangements, petitioner returned to

India. Within two months, he had liquidated his Indian

export firm by turning it over to his brother (R. 41).

On January 13, 1976, petitioner reentered the United

States on a four-month nonimmigrant business visa with

the ostensible purpose of transacting business for the

Indian export firm (R. 122-123).2 The actual purpose of

petitioner's third entry into the United States, however,

was to conduct the business of Asian Imports, the new

company for which he had obtained the _ business

certificate during his second visit and which he now

operated from his hotel room (R. 38, 40, 43-44). One

month later, on February 13, 1976, petitioner applied for

permanent resident alien status under Section 245 of the

Immigration and Nationality Act, 8 U.S.C. 1255 (R. 50-

51, 124-128). He claimed that he was eligible for an

investor status exemption under 8 C.F.R. 212.8(b)(4)

(1976).3

?Upon application to an appropriate consular officer. an otherwise

eligible alien may obtain a nonimmigrant business visa to conduct

business in the United States, on a temporary basis, for the benefit of

a foreign employer. A temporary business visitor will normally be

admitted for only a period of six months or less. 8 C.F.R. 214.2(b)

(1978). To obtain a nonimmigrant business visa, the alien must

establish to the satisfaction of the consular officer that he has a

foreign residence which he does not intend to abandon and that he

will leave the United States voluntarily at the expiration of his

authorized stay. 8 U.S.C. 1101(a)(15)B).

‘In applying for permanent resident status under Section 245,

petitioner was required to show that an immigrant visa was

immediately available to him when he made his application. Because

he could not qualify for a preferential immigrant visa under Section

203(aX(1)-(7) of the Act, 8 U.S.C. 1153(a)(1)4{7), petitioner had to

establish the availability of a non-preference immigrant visa under

Section 203(a)(8) of the Act, 8 U.S.C. 1153(aX(8). To qualify for a

non-preference immigrant visa, however, petitioner either had to

comply with the labor certification requirements under Section

212(aX(14) of the Act, 8 U.S.C. 1182(a\14), or qualify for an investor

Status exemption under 8 C.F.R. 212.8(b\4) (1976).

2. The District Director denied petitioner’s application

for adjustment of status. Because petitioner had establish-

ed his American business well before his latest entry, the

District Director found that petitioner had not acted in

good faith either when he applied to the United States

Consul in New Delhi for a nonimmigrant business visa or

when he thereafter entered the United States under the

guise of a business visitor for his Indian firm. Petitioner

was granted until April 24, 1978, to depart voluntarily

from the United States or be subject to deportation

proceedings, in the course of which he would be able to

renew his application for permanent resident alien status

(Pet. App. 22a-24a).

Petitioner failed to depart voluntarily and deportation

proceedings were begun. In those proceedings, petitioner

conceded his deportability. renewed his application for

permanent resident status as an investor, and applied

alternatively for voluntary departure (Pet. App. 17a-18a).

The immigration judge found, after a hearing, that

petitioner did not meet applicable requirements to become

a permanent resident alien as an investor (id. at 18a-20a).

Even assuming that petitioner met those requirements,

however, the immigration judge held that the application

would be denied on discretionary grounds because

petitioner had last entered the United States by concealing

his pre-existing intention to remain permanently (id. at

20a-21a). The immigration judge ordered that petitioner

be allowed to depart voluntarily, but that he should be

deported if he failed to do so (id. at 21a).

The Board of Immigration Appeals affirmed the

immigration judge's decision on the discretionary ground

and again granted petitioner the privilege of voluntary

departure (Pet. App. 14a-16a). On December 21, 1979, the

court of appeals denied a petition for review and affirmed

the Board’s decision (id. at la-1 3a).

ARGUMENT

1. Petitioner contends that the Board of Immigration

Appeals acted improperly by basing its denial of his

application for permanent resident alien status on the

undisputed fact that petitioner had entered the United

States by fraud. Petitioner's contention is without merit,

and it warrants no further review.

Prior to the enactment of Section 245, nonimmigrant

aliens were required to leave and reenter the United States

if they wished to apply for immigrant visas. Because this

procedure placed a hardship on aliens who wished to

change their status, Congress enacted Section 245 to allow

the Attorney General, in his discretion, to adjust the

Status of nonimmigrant aliens without requiring them to

leave the United States. /NS v. Bagamashad, 429 U.S. 24

(1976). Because Section 245 exempts such aliens from

normal immigration requirements by providing rights

exceeding those that they would have had if they had not

been admitted to the United States on a nonimmigrant

basis, a Section 245 change in status constitutes

“extraordinary discretionary relief,” which will be granted

only in meritorious cases. Astudillo v. INS, 443 F. 2d 525,

527 (9th Cir. 1971); Ameeriar v. INS, 438 F. 2d 1028,

1030 (3d Cir.), cert. dismissed, 404 U.S. 801 (1971);

Santos v. INS, 375 F. 2d 262, 264 (9th Cir. 1967).

To secure an adjustment of status under Section 245, an

alien must meet two tests. First, he must show that he

fulfills the statutory requirements: namely, that he is

eligible to receive a visa, that he is admissible as a

permanent resident alien, and that a visa is immediately

available for him. Thomaidis v. INS, 431 F. 2d 711 (9th

Cir. 1970); Gambino v. INS, 419 F. 2d 1355, 1358 (2d

Cir.), cert. denied, 399 U.S. 905 (1970); Jarecha v. INS,

417 F. 2d 220, 222 (Sth Cir. 1969). Second, he must

persuade the Attorney General, acting through the

Immigration and Naturalization Service, to exercise his

discretion in favor of granting the application. Ameeriar

v. INS, supra, 438 F. 2d at 1030; Thomaidis v. INS, supra;

Jarecha v. INS, supra, 417 F. 2d at 223; Chen v. Foley,

385 F. 2d 929, 934 (6th Cir. 1967); Tibke v. INS, 335 F.

2d 42 (2d Cir. 1964).

In exercising its discretion, INS must consider the full

factual record, and “due consideration [must] be given to

the presence or absence of special equities.” Santos v.

INS, supra, 375 F. 2d at 264. The record shows that

petitioner failed to prove the existence of any special

equities, such as close family ties, that would argue in

favor of granting his application. To the contrary, the

evidence clearly established that petitioner had entered the

United States by fraud in that he failed to disclose his

preconceived intention to remain permanently. Every

court of appeals that has considered the question has held

that an alien’s procurement of a nonimmigrant visa with a

preconceived intention to remain in the United States

permanently is a factor that may be considered in the

denial of discretionary relief. See Faddah v. INS, 553 F.

2d 491, 495 (Sth Cir. 1977); Soo Yuen v. INS, 456 F. 2d

1107 (9th Cir. 1972); Ameeriar v. INS, supra, 438 F. 2d at

1033 & n.6; Chen v. Foley, 385 F. 2d 929, 935-936 (6th

Cir. 1967), cert. denied, 393 U.S. 838 (1968); see also /NS

*Petitioner contends (Pet. 12) that the decision in this case conflicts

with the District of Columbia Circuit's decisions in Brownell v.

Carija, 254 F. 2d 78 (1957), and Brownell v. Gutnaver. 212 F. 2d 462

(1954). In Carija, however, the court stated (254 F. 2d at 80): “It is

quite true that, if an alien enters the United States on a temporary

permission but with a determination to stay here if possible~

meaning by any means possible. —so that his representations to the

authorities are false or fraudulent or misrepresentative, he has not

lawfully entered this country.”

v. Bagamasbad, supra.* Moreover, the legislative history

of Section 245 states that “only those aliens who enter the

United States in good faith and without any intention of

circumventing quota restrictions * * * shall be entitled to

the benefits of section 245(a), as amended.” S. Rep. No.

1651, 86th Cong., 2d Sess. 27 (1960).

The court of appeals fully considered and properly

rejected petitioner’s claim (Pet. App. 10a-Ila: footnote

omitted):

[A]llowing the Service the discretion to deny section

245 relief to nonimmigrant aliens who enter in bad

faith appears to comport with the proper administra-

tion of the statute. As previously noted, the Act

distinguishes between immigrants and nonimmigrants

and specifically requires those seeking nonimmigrant

Status to establish that they have no intention of

abandoning their foreign residence and that they will

depart voluntarily at the end of their authorized stay.

We do not know whether [petitioner] would have

received an immigrant visa had he applied for one in

India with a true statement of his intent. But had the

true facts been known, he clearly would not have

received a nonimmigrant visa because he would not

have been entitled to one. [Petitioner] did not seek

entry into the United States to represent a foreign

employer for a limited period; he instead sought

entry to remain permanently and to run his own

business here. To require the Service to disregard this

misrepresentation by [petitioner] would effectively

undercut the Act’s requirement that nonimmigrants

demonstrate their bona fide status. In contrast,

permitting the Service to deny section 245 relief

based on the nonimmigrant’s lack of good faith

protects the integrity of the consular procedures

established by the Act.

In sum, the court of appeals correctly held that the denial

of petitioner’s application for adjustment of status was

not an abuse of discretion.

2. Petitioner’s contention that the court of appeals

lacked jurisdiction to review the denial of his application

for adjustment of status is frivolous. Under Section

106(a)(2) of the Act, 8 U.S.C. 1105a(a)(2), the courts of

appeals have exclusive jurisdiction to review final

deportation orders. See Foti v. INS, 375 U.S. 217 (1963).

An alien cannot oust the court of appeals of jurisdiction

by challenging only the denial of status adjustment

aspect of the deportation order. Bagamashad v. INS, 531

F. 2d 111, 113 n.3 (3d Cir.), reversed on other grounds,

429 U.S. 24 (1976).5

3. The court of appeals also correctly rejected

petitioner’s contention that it was unfair to require him

to contest the denial of his status adjustment application

in the context of a deportation proceeding.® As the court

5Scalzo v. Hurney, 314 F. 2d 675 (3d Cir. 1963), upon which

petitioner relies, was overruled in Ameeriar v. INS, supra, 438 F. 2d

at 1035 n.I (Gibbons, J. dissenting).

*Petitioner was clearly afforded all the process that was due. It is

immaterial, therefore, that different procedures may apply in other

circumstances (see Pet. 12-13). Petitioner sought to change his status

from that of a nonimmigrant to that of an immigrant. The procedures

prescribed in Section 248 of the Act, 8 U.S.C. 1258, apply only to

changes from one nonimmigrant status to another. Because those

procedures are inapplicable to persons in petitioner's position, they

are irrelevant here.

of appeals remarked (Pet. App. 12a-13a):

Although the regulations do preclude a direct

administrative appeal from the denial by a district

director of a section 245 application, 8 C.F.R.

§245.2(a)(4), the alien is entitled to a de novo review

of his application in the context of deportation

proceedings. Id. We consider this dual opportunity to

present a section 245 application to provide ample

process, particularly in light of the discretionary

nature of section 245 relief. The fact that the second

consideration of the application takes place within

the context of a deportation proceeding is irrelevant.

Petitioner's argument to the contrary assumes that

[petitioner] could have avoided deportation

proceedings simply by choosing not to renew his

section 245 application. However, since [petitioner's]

deportability as an overstay was clear, the initiation

of deportation proceedings was a matter over which

he had no control.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapbeE H. McCree, JR.

Solicitor General

Puitip B. HEYMANN

Assistant Attorney General

JOHN C. WINKFIELD

Attorney

APRIL 1980

DOj-1980-06