Amicus Curiae Brief — INS v. Yueh-Shaio Yang

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Supreme Court, U.S.

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(4) QUE 8 1996

No. 95-938 CLERK

EISEN Se NRG TOR RIES 2 AE A © OI —— ——

In The

Supreme Court of the United States

October Term, 1995

IMMIGRATION AND NATURALIZATION SERVICE,

Petitioner,

Vv.

YUEH-SHAIO YANG,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

BRIEF OF AMICI CURIAE AMERICAN

IMMIGRATION LAWYERS ASSOCIATION,

LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER

LAW OF TEXAS - IMMIGRANT AND REFUGEE

RIGHTS PROJECT AND NATIONAL IMMIGRATION

PROJECT OF THE NATIONAL LAWYERS GUILD

IN SUPPORT OF RESPONDENT

SANDRA E. KupeLiAN

Counsel of Record

Cassipay, SCHADE & GLOOR

333 West Wacker Drive

Suite 1200

Chicago, Illinois

1289

(312) 641-3100

Counsel for Amici Curiae

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAI

SUMMARY OF ARGUMENT

INTRODUCTION

ARGUMENT

The Attorney General exceeded the bounds of the

authority delegated to her under Section

241(a)(1)(H) by considering the elements of fraud

for which the Respondent sought forgiveness in

making her waiver determination

The Attorney General's discretion is not unfet

tered; her discretion must be exercised within

the parameters established by Section

241(a)(1)(H)

The statutory language of Section

241(a)(1)(H) and its legislative history and

development define the “form” within

which the Attorney General must exercise

her authority

a. The language of Section 241(a)(1)(H) and

this Court’s decision in INS v. Errico pre-

clude any consideration of the wrong for

which the alien seeks forgiveness

The legislative history and development

of Section 241(a)(1)(H) is consistent with

the limitations on the Attorney General's

discretion formed by the statute

1]

17

TABLE OF CONTENTS - Continued

Page

2. The authority cited by the Attorney General

is unpersuasive and only serves to establish

that the Court of Appeals acted correctly in

reversing the Attorney General's decision... 18

B. Our system of government requires the judiciary

to police the parameters of the authority dele-

gated to executive agencies .............eeee0es 24

CONCLUSION... ccvccccccsccssscuseene ss auuEEE 26

TABLE OF AUTHORITIES

Page

Cases:

American Ship Bldg. Co. v. NLRB, 380 U.S. 300

ee eee ee ade ccccccceccccceccccceces 24

Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464

ECP E CC hh Sc ceeeccccescccecccccccce 24

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)................ 8, 10

Costello v. INS, 376 U.S. 120 (1964).................. 16

Diaz-Resendez v. INS, 960 F.2d 493 (5th Cir. 1992)..... 6

EEOC v. Arabian American Oil Co., 499 U.S. 244

EEE EEU Umeda adceccccccccereccccccescces 25

Fong Haw Tan v. Phelan, 333 U.S. 6 (1948)........... 16

Foti v. Immigration and Naturalization Service, 375

eee Esc acccccesccccescccccces: 18

Guillen-Garcia v. INS, 60 F.3d 340 (7th Cir. 1995)...... 6

Immigration and Naturalization Service v. Errico, 385

EEE EEE TTT ETT ET passim

INS v. Cardoza-Fonseca, 480 U.S. 421

a 9, 10, 11, 12, 16, 23

INS v. Doherty, 502 U.S. 314 (1992)............... 18, 25

INS v. Elias-Zacarias, 502 U.S. 478 (1992) .......... 11

INS v. Jong Ha Wang, 450 U.S. 139 (1981) .... 18, 19, 20

INS v. Phinpathya, 464 U.S. 183 (1984)........ 11, 12, 21

INS v. Rios-Pineda, 471 U.S. 444 (1985) .............. 18

Jay v. Boyd, 351 U.S. 345 (1956) .. 0.6... eee eee, 18

iv

TABLE OF AUTHORITIES - Continued

Page

Liwanag v. INS, 872 F.2d 685 (Sth Cir. 1989)......... 15

NLRB v. Brown, 380 U.S. 278 (1965) .........-..-5005 24

Rusello v. United States, 464 fe 7, arerrr 23

United States v. Alaska, 503 U.S. 569 (1992) ....... 18, 21

United States v. Wong Kim Bo, 472 F.2d 720 (5th Cir.

SOOM. . ccccccccccnccesuccscdesecebecesoesenecescess 23

United States ex rel. Kaloudis v. Shaughnessy, 180

B2d GOP (28 Cle. 19GB)... cc ccccsvccccccccccscccens 8

STATUTES AND REGULATIONS:

Immigration and Nationality Act, 8 U.S.C. 1101 et seq.:

§ 208(a), 8 U.S.C. 1158(a) ..... 666s 4

§ 241(a)(1)(H), 8 U.S.C 1251(a)(1)(H) ........-. passim

6 24%h), 8 U.S.C. 1253(N).... 1... e eee eeeeeeeees 4

§ 244(a)(1), 8 U.S.C. 1254(a)(1) .. 6. eee ees 20

G BGB, 8 UGC. 120D .ncccccccccccsccccvcececvesses 19

8 C.F.R.:

Deis BS no cciccccuccnévedutcntssncusssnceucsaaees 5

Dees BD oc ccccsctccdanoncectesucddunsdecedenesns 5

eis DOO og i cccccoccetusendneséenscesséconetines 5

ees BO oc ccéccckéunecaceussceeendes Sbéennsens 5

ets OSD. u.cc0cecescenbesacassausensedtsseneeal 5

eee Se... cs nnncedidunéadedsdesasneowaees 5

Vv

TABLE OF AUTHORITIES - Continued

MISCELLANEOUS:

Micwaet Fix & Jerrrey S. Passer, THe Ursan Insti-

TUTE, IMMIGRATION AND IMMIGRANTS: SETTING THE

Pemcc Domasmeey CIGPED. 2 oc cc ccccccccccccccccees

Richard H. Fallon, Jr., Of Legislative Courts, Admin-

istrative Agencies, Article III, 101 Harv. L. Rev.

Ser See CE he wes obenssccdsuvesscddeneoees és

The Federalist No. 47 (J. Madison) (C. Rossiter ed.

P66 ccncd acbicensccsnecddvedcceveconscéucess

The Federalist No. 78 (A. Hamilton) (C. Rossiter ed.

Bn 6 6 bbbeeocncesieceeee dcdssecadotneeduesecs

Page

INTEREST OF AMICI CURIAE

The American Immigration Lawyers Association

(AILA); the Lawyers’ Committee for Civil Rights Under

Law of Texas, Immigrant and Refugee Rights Project

(Texas Lawyers’ Committee); and the National Immigra-

tion Project of the National Lawyers Guild (National

Immigration Project) submit this brief as amici curiae in

support of the Respondent's Brief with the consent of all

parties.

Amicus AILA, founded in 1946, is a national non-

profit association of immigration and nationality lawyers

with 34 chapters across the United States and Canada

including over 4,200 members. AILA is an affiliated orga-

nization of the American Bar Association. Its objectives

are to advance the administration of law pertaining to

immigration, nationality and naturalization; to cultivate

the jurisprudence therein; to promote reforms in the laws

with regard thereto; and to facilitate the administration of

justice therein.

Amicus Texas Lawyers’ Committee, founded in 1991,

is part of a national network of non-partisan, non-profit

offices established originally in 1963 at the request of

President John F. Kennedy to provide legal services to

victims of racial discrimination. The Texas Lawyers’

Committee is dedicated to defending the rights of immi-

grants by engaging in class action litigation, appellate

advocacy and community education.

Amicus National Immigration Project is a national

organization of attorneys, law students and paralegals

engaged in legal projects of public concern to promote

the fair and humane administration of justice relating to

immigration, nationality and refugee law. Its goal is to

enable citizens to exercise their civil and constitutional

rights, regardless of race, religion, nationality, gender or

economic position.

Amici maintain a profound interest in the develop-

ment of sound precedent regarding the availability of

humanitarian relief from deportation and the preserva-

tion of meaningful judicial review of agency decisions.

Amici are particularly concerned when public sentiment

has entrenched itself against an identifiable group of

individuals, as it has against immigrants in the United

States, that the judiciary be especially rigorous in enforc-

ing statutory limits on the exercise of agency discretion.

°

SUMMARY OF ARGUMENT

The Court of Appeals properly enforced the limits on

the Attorney General's discretion proscribed by Section

241(a)(1)(H) of the Immigration and Nationality Act

when it reversed the decision of her delegate, the Board

of Immigration Appeals, in this case. 8 U.S.C.

1251(a)(1)(H). The language of Section 241(a)(1)(H), its

legislative history and development and its purpose cir-

cumscribe the parameters within which the Attorney

General must exercise her discretion.

The inclusion of the language “otherwise admissible”

in Section 241(a)(1)(H) reveals that Congress intended to

remove any consideration of the elements of fraud that

triggered the need for the waiver, both in determining

initial eligibility and in assessing whether relief is war-

ranted. See Immigration and Naturalization Service v. Errico,

385 U.S. 214 (1966). The history and development of

Section 241(a)(1)(H) confirm the limitations proscribed by

its language. From its inception, the primary purpose of

the statute was to gran exceptions to the restrictive sec-

tions of the Act for the purpose of keeping families

together. Id. at 220. Recent amendments to Section

241(a)(1)(H) have actually broadened the application of

the waiver in an effort to insure that its humanitarian

goals are met.

The Board’s consideration of the elements of the

Respondent's fraudulent entry in determining whether

relief was warranted under Section 241(a)(1)(H) in the

instant case contravened the language and purpose of the

statute. Although relief under Section 241(a)(1)(H) is dis-

cretionary, discretion is not abdication and must be exer-

cised within the limits set by Congress. In reversing the

decision of the Board of Immigration Appeals, the Court

of Appeals was performing its constitutionally required

function to police the parameters of the authority dele-

gated to the Attorney General under Section 241(a)(1)(H).

°

INTRODUCTION

The United States continues to thrive with the tre-

mendous infusion of energy and talent of recent immi-

grants. However, the current anti-immigrant sentiment

prevailing in the United States ignores these contribu-

tions and many others. In this climate, misperceptions

abound. For example, much of the public believes that

immigrants are more likely to receive public benefits than

U.S. citizens, and that immigrants take away jobs from

U.S. citizens, when the opposite is actually true.'! Immi-

grants today are perceived to be less educated than the

native population, when, in fact, recent legal immigrants

are more likely to hold a college degree (thirty-three

percent) than natives (twenty percent).? Such mispercep-

tions are typical of the current overreaction to immigra-

tion and only serve to fuel hostility toward this uniquely

vulnerable group.*

It is especially when a particular group of individ-

uals, such as recent arrivals to the United States, is the

object of significant public and political anger that a

vigorous and independent judiciary is required to func-

tion as a meaningful check on the actions of the executive

branch charged with administering this country’s laws.

' In a 1994 study by the Urban Institute, it was shown that

non-refugee immigrants of working age are considerably less

likely to use welfare (2 percent) than natives of working age (3.7

percent). Micnaet Fix & Jerrery S. Passet, THe Ursan INstrrute,

IMMIGRATION AND IMMIGRANTS: SETTING THE RECORD STRAIGHT 63

(1994). It was also shown that given expenditures on U.S. goods

and services and the number of new businesses started,

immigrants actually create more jobs than they fill. Id. at 47.

2 Id. at 34.

* Another example of how immigration issues are distorted

can be found in the statement of interest in the brief submitted

by amicus curiae in support of the Petitioner. Amicus express

interest in the instant case based on its concern for crime

prevention. This stated interest is puzzling given that this case

presents no criminal issues, and, in fact, involves the

interpretation of an ameliorative provision based on family

unification applied in the civil immigration context.

The Ninth Circuit Court of Appeals performed this cru-

cial function when it reversed the decision of the Board of

Immigration Appeals in this case.

S

ARGUMENT

THE ATTORNEY GENERAL EXCEEDED THE

BOUNDS OF THE AUTHORITY DELEGATED TO HER

UNDER SECTION 241(a)(1)(H) BY CONSIDERING

THE ELEMENTS OF FRAUD FOR WHICH THE

RESPONDENT SOUGHT FORGIVENESS IN MAKING

HER WAIVER DETERMINATION.

Contrary to the contentions of the Petitioner, this is

not a case in which the Court of Appeals encroached

upon the unfettered discretion of the Attorney General to

make family waiver determinations under Section

241(a)(1)(H) of the Immigration and Nationality Act

(hereafter “INA” or “Act”).4 8 U.S.C. 1251(a)(1)(H).

Rather, this is a case in which the Attorney General

exceeded the parameters of the authority delegated to her

by Congress by considering illegal and impermissible

factors in making the family waiver determination. It

4 As set forth in the Petitioner's Brief at p. 17, n.10, the

Attorney General has delegated her authority to direct the

administration of the INS and to enforce the INA and other laws

relating to the immigration and naturalization of aliens to the

Commissioner of the INS, 8 C.F.R. 2.1, and the Executive Office

for Immigration Review, which includes the Board of

Immigration Appeals (BIA), 8 C.F.R. 3.0, 3.1(a) and (b), and

immigration judges, 8 C.F.R. 3.10, 242.8. All references to the

Attorney General contained herein are made with regard to the

Attorney General and her delegates.

does not involve the review of an application of the

Attorney General's discretion to specific facts. Therefore,

the Court of Appeals was properly enforcing the limits on

the Attorney General's discretion proscribed by the stat-

ute when it reversed her decision in this case.

It is true that the Attorney General may, in her discre-

tion, select factors to be considered in making waiver

determinations under Section 241(a)(1)(H). However, the

Attorney General’s power to identify those factors is

bounded by the authority delegated to her by the statute.

The language of Section 241(a)(1)(H), its legislative his-

tory and its purpose circumscribe the parameters within

which the Attorney General must exercise her discretion.

The Attorney General's assertion that Congress has

placed no restrictions on the exercise of her discretion,

and, therefore, has vested her with unfettered discretion

to make family waiver determinations is wholly erro-

neous. The Attorney General’s decision may be reversed

whenever her actions are arbitrary, irrational, not in

accordance with the law or rest on an impermissible

basis. Diaz-Resendez v. INS, 960 F.2d 493, 495 (5th Cir.

1992); Guillen-Garcia v. INS, 60 F.3d 340, 344 (7th Cir.

1995). To determine whether her decision rests on an

impermissible basis, the judiciary must assess whether

the statute constrains the Attorney General’s discretion,

and, if so, to what extent. Under the circumstances pre-

sented in this case, the Court of Appeals correctly

reversed the Attorney General’s decision because she

exceeded the limits of her authority by considering fac-

tors contrary to the language and purpose of Section

241(a)(1)(H) of the Act.

A. THE ATTORNEY GENERAL'S DISCRETION IS

NOT UNFETTERED; HER DISCRETION MUST

BE EXERCISED WITHIN THE PARAMETERS

ESTABLISHED BY SECTION 241(a)(1)(H).

The Attorney General improperly frames the issue in

this case as one involving a review of the exercise of her

unfettered discretion to make waiver determinations

under Section 241(a)(1)(H), and, therefore, contends the

judiciary should have simply deferred to her decision.

She asserts that her authority to forgive fraud or misrep-

resentations at the time of entry should be viewed as a

“matter of grace,” according to her “unfettered discre-

tion.” See Petitioner’s Brief at 18-19. Further, she con-

strues Section 241(a)(1)(H) to commit the selection of

factors in making this determination entirely to her dis-

cretion. Given this statutory construction, she posits that

she would be justified in considering, along with other

positive and negative factors, the nature and gravity of

the initial fraud or misrepresentation which renders the

alien deportable in the first instance, but, that, in her

discretion, she has adopted a more lenient policy in

which she elects not to do so. See Petitioner’s Brief at 24.

In fact, both the Attorney General and the amicus curiae in

support of the Attorney General appear to assert that the

Attorney General’s decision in this case is altogether

unreviewable.

However, this case involves the Attorney General’s

statutory interpretation of Section 241(a)(1)(H) in identi-

fying the factors to be considered in making a waiver

determination, and, therefore, the issue presented is one

of statutory construction. The inquiry must focus on

whether the Attorney General’s exercise of discretion

rests on an impermissible basis or exceeds the bounds of

her authority. To make this determination, the judiciary

must analyze Section 241(a)(1)(H) to identify whether the

provision limits the Attorney General's exercise of discre-

tion.> The judiciary, not the Attorney General, is the final

authority on whether the Board of Immigration Appeals’

(BIA or Board) interpretation of Section 241(a)(1)(H) was

proper. See Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 843 n.9, 104 S.Ct. 2778

(1984).°

5 Even the case cited by Petitioner for the proposition that

the discretion of the Attorney General with respect to

suspension of deportation is like “a judge’s power to suspend

the execution of a sentence or a President's power to pardon a

convict”, U.S. ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491

(2d Cir. 1950) (Hand, J.), emphasizes that, “[I]t is a matter of

grace *** unless —- as we are assuming — it affirmatively appears

the denial has been actuated by considerations that Congress

could not have intended to make relevant.” Id.

© Under this Court’s holding in Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. at 842, when a

court reviews an agency’s construction of the statute which it

administers, it is confronted with two questions. The first

question is always whether Congress has directly spoken to the

precise issue presented. For, if the intent of Congress is clear, the

court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress and the analysis

goes no further. Chevron, 467 U.S. at 842-43. If, however, the

statute is silent or ambiguous, the question for the court is

whether the agency’s answer is based on a permissible

construction of the statute. Id.

1. The Statutory Language Of Section

241(a)(1)(H) And Its Legislative History

And Development Define The “Form”

Within Which The Attorney General Must

Exercise Her Authority.

The proper method of analysis to be utilized in

assessing the Attorney General's interpretation of Section

241(a)(1)(H) is set forth in this Court’s decision in INS v.

Cardoza-Fonseca, 480 U.S. 421 (1987). Just as in this case,

the heart of the issue presented in Cardoza-Fonseca per-

tained to the parameters within which the then Attorney

General could exercise his authority.

Specifically, at issue was whether the same standard

of proof applied to claims to asylum under Section 208(a)

and to claims to a withholding of deportation under

Section 243(h) of the Act. 8 U.S.C. 1158(a), 1253(h). The

BIA concluded that the same standard was applicable to

both sections, and, therefore, that an alien must prove

that he is “more likely than not” to be subject to persecu-

tion in his home country under Section 208(a). Id. at 423.

The Ninth Circuit Court of Appeals rejected this inter-

pretation of the statute. This Court affirmed the decision

of the Court of Appeals.

The Attorney General’s argument in Cardoza-Fonseca

was twofold. First, the Attorney General argued that the

structure of the Act itself dictated a decision in its favor.

Id. at 443. Second, the Attorney General argued that the

BIA’s construction of the Act was entitled to substantial

deference, even if the Court of Appeals’ reading of the

statute was more in keeping with Congress’ intent. Id. at

445. This Court rejected both arguments stating, “the first

10

ignores the structure of the Act; the second misconstrues

the federal courts’ role in reviewing an agency’s statutory

construction.” Cardoza-Fonseca, 480 U.S. at 443.

Citing Chevron, this Court emphasized that the issue

presented was a question of statutory construction for the

courts to decide. Employing traditional tools of statutory

construction, this Court concluded that Congress did not

intend the two standards of proof to be identical. Id. at

446-447. Noting that the vesting of discretion in the Attor-

ney General is typical in the immigration area, this Court,

nonetheless, explicitly rejected the Attorney General's

contention that the BIA’s construction of the statute was

entitled to substantial deference since the case was one of

statutory construction. Id. at 444, 445.

Thus, this Court recognized that it was well within

the province of the judiciary to enforce the limits on the

Attorney General's authority set forth in the language of

the statute. Jd. at 448. While stopping short of giving

substance to the term “well founded fear”, this Court

rejected the BIA’s interpretation of the phrase and

directed the agency to the appropriate sources from

which it should derive the proper meaning. Id. at 432-43,

446. Those sources included the plain language of the

statute, its legislative history and other sources of inter-

national law and schoiarship. Id. at 432-43. In other

words, this Court found that the Ninth Circuit properly

policed the parameters of the Attorney General’s author-

ity proscribed by Congress under the statute.

In a separate concurrence, Justice Blackmun noted

that, although the final contours of the standard are to be

shaped by the standard’s application to facts of specific

11

cases, the form of the standard was at first given by the

statutory language and the intimations of the legislative

history. Id. at 451-52 (Blackmun, J., concurring). There-

fore, it was well within the province of the Court of

Appeals to insure that the then Attorney General exer-

cised his authority within that form.

Under the forgoing analysis, the Attorney General's

interpretation of Section 241(a)(1)(H) must similarly be

rejected here because the Attorney General's conclusion

that the statute imposes no limits on her discretion

“ignores the structure of the Act” and “misconstrues the

federal courts’ role in reviewing an agency’s statutory

construction.” Cardoza-Fonseca, 480 U.S. at 443. As set

forth below, the language of Section 241(a)(1)(H) and its

legislative development form the parameters of the

authority within which the Attorney General may make

family waiver determinations. Accordingly, the Court of

Appeals acted well within its authority in enforcing the

boundaries of the Attorney General's exercise of her dis-

cretion.

a. The Language Of Section 241(a)(1)(H)

And This Court’s Decision In INS v.

Errico Preclude Any Consideration Of

The Wrong For Which The Alien Seeks

Forgiveness.

In all cases involving statutory construction, the star-

ting point must be the language employed by Congress.

INS v. Phinpathya, 464 U.S. 183, 189 (1984). It is assumed

that the legislative purpose is expressed by the ordinary

meaning of the words used. /NS v. Elias-Zacarias, 502 US.

12

478, 482 (1992); INS v. Cardoza-Fonseca, 480 U.S. 421, 431

(1987); INS v. Phinpathya, 464 U.S. at 189. Section

241(a)(1)(H) of the INA provides that an alien who has

procured his or her entry into the United States by fraud

or misrepresentation, either willful or innocent, may seek

a waiver of deportation if that alien:

(i) is the spouse parent son, or daughter of

a citizen of the United States or of an alien

lawfully admitted to the United States for per-

manent residence; and

(ii) was in possession of an immigrant visa

or equivalent document and was otherwise

admissible to the United States at the time of

such entry except for those grounds of inad-

missibility specified under paragraphs 5(A) and

7(A) of section 1182 of this title which were a

direct result of that fraud or misrepresentation.

8 U.S.C. 1251(a)(1)(H) (emphasis added).

The Attorney General contends that this language

merely sets forth the “eligibility requirements” for the

application of the family waiver and places no restrictions

whatsoever on the factors that may be considered by the

Attorney General and her delegates in making a waiver

determination. Petitioner’s Brief at 16-17. The Attorney

General concludes, therefore, “that section 241(a)(1)(H)

on its face, vests the Attorney General with essentially

unfettered discretion.” Petitioner's Brief at 17. However,

this argument ignores the meaning of the phrase “other-

wise admissible” and this Court's decision in Jmmigration

and Naturalization Service v. Errico, 385 U.S. 214 (1966).

It is true that Section 241(a)(1)(H) sets forth the

requirements necessary for the application of a family

13

waiver. It provides, in pertinent part, that the applicant

must be a spouse, parent, or child of a citizen or a lawful

permanent resident, and that the applicant was in posses-

sion of an immigrant visa or equivalent document and

was “otherwise admissible” at the time of entry. 8 U.S.C.

1251(a)(1)(H). Given its plain and ordinary meaning, the

use of the language “otherwise admissible” reveals that

Congress intended to remove any consideration of the

elements of fraud triggering the need for the waiver, both

in determining initial eligibility and in assessing whether

the applicant merits discretionary relief.

This meaning is clear in light of the very structure of

Section 241(a)(1)(H), which provides that an alien who

has “procured his or her entry into the United States by

fraud or misrepresentation, either willful or innocent”

may seek a waiver of deportation if that alien has the

requisite family ties and was “otherwise admissible” -

meaning admissible aside from the elements of the fraud-

ulent entry. A fraudulent entry necessarily involves sev-

eral steps in its planning and execution. The structure of

the statute reveals that the separate elements of the fraud

or misrepresentations made as a part of a fraudulent

scheme to enter the United States should not be held

against the alien in making the family waiver determina-

tion. Any other construction of Section 241(a)(1)(H)

would render the phrase “otherwise admissible” mean-

ingless.

In fact, the meaning of the phrase “otherwise admis-

sible” was examined by this Court in Immigration and

Naturalization Service v. Errico, 385 U.S. 214 (1966). In that

case, the Board of Immigration Appeals affirmed a depor-

tation order against an alien who had falsely represented

14

that he was a skilled mechanic with specialized experi-

ence in repairing foreign automobiles. On the basis of

that misrepresentation, he was granted first preference

quota status and entered the country with his wife in

1959. The couple had a child in 1960 who acquired U.S.

citizenship at birth. The government began deportation

proceedings against Errico in 1963. Errico argued that the

provisions of Section 241(f) of the INA (now 241(a)(1)(H))

saved him from deportation.

The BIA ruled that relief under Section 241(f) was not

available because Errico had not complied with quota

requirements, and, hence, was not “otherwise admissible

at the time of entry”.” Errico, 385 U.S. at 216. The Ninth

Circuit Court of Appeals held that the construction of the

statute adopted by the Board would strip it of practically

all meaning, since a material misrepresentation would

presumably be given to conceal some factor that would

bear on admissibility, and reversed the BIA decision. /d.

After close attention to the language of 241(f) and its

predecessor, as well as the legislative history of those

provisions, a majority of this Court concluded:

7 Under the Attorney General's position in this case, the

BIA could have considered all the separate elements of Errico’s

fraudulent entry, including his evasion of the quota

requirements, his own fraudulent entry, and his wife's

fraudulent entry which was gained through his. However, it

does not appear that the Attorney General unnaturally divided

Errico’s conduct into separate elements of fraud to be weighed

as negative factors. See Immigration and Naturalization Service v.

Errico, 385 U.S. 214 (1966). For a detailed discussion of the

Attorney General's inappropriately narrow definition of

“fraud”, see Section III of the Respondent's Brief.

15

This language would be meaningless if an alien

who committed fraud for the purpose of evad-

ing quota restrictions would be deportable as

not ‘otherwise admissible at the time of entry.’

Id. at 222-23. This Court emphasized that it was clear

from the language of Section 241(f) that aliens who are

close relatives of U.S. citizens are not required to comply

with quota restrictions to escape deportation for their

fraud and that nothing in the legislative history sug-

gested Congress had a contrary result in mind. Id. at 223.

Thus, this Court recognized that for the statute to

achieve its purpose, the “wrong” for which the applicant

sought to be forgiven must be set aside in determining

whether the applicant merits relief. In so ruling, this

Court noted that the INA was not a punitive statute and

that Section 241(f), in particular, was designed to accom-

plish a humanitarian result - uniting families. Id. at 225.

Even Justice Stewart, in his dissent, agreed that the plain

meaning of the phrase “otherwise admissible” required

that fraud be removed as a ground for deportation. Id. at

229 (Stewart, J., dissenting).®

The Errico court's reading of the plain meaning of the

phrase “otherwise admissible” remains valid today.

Although Section 241(f) has been amended since the

Errico decision, the phrase “otherwise admissible” has

® Similarly, in Liwanag v. INS, 872 F.2d 685, 687 (5th Cir.

1989), the Court of Appeals stated that the waiver “ presupposes

that the petitioner has committed an act justifying deportation.

In its brief, the INS concedes that the original fraudulent act

should not be considered as an adverse factor in the balancing

equation.”

16

been preserved, and, in fact, the application of the waiver

has been expanded.® At no time has Congress expressed a

desire to depart from this Court's interpretation of the

plain meaning of the phrase or from the humanitarian

goal of uniting families originally sought to be achieved

by the inclusion of such language.

It is clear from the plain meaning of Section

241(a)(1)(H) that Congress set limits on the Attorney

General's exercise of discretion in making family waiver

determinations. Thus, the Attorney General's assertion

that the statute does not limit her discretion is contrary to

the plain meaning of Section 241(a)(1)(H) and the clear

intent of Congress.'?

Therefore, the Court of Appeal’s reversal of the BIA’s

decision in this case does not reflect an encroachment

upon the authority of the Attorney General to select and

weigh factors, but, rather, a proper exercise of its function

to police the boundaries within which the Attorney Gen-

eral may exercise her discretion. The Court of Appeals

properly rejected the Attorney General’s construction of

Section 241(a)(1)(H), which is contrary to the plain mean-

ing and purpose of the statute.

9 A detailed analysis of the history, development and

expansion of Section 241(a)(1)(H) is contained in Section I of

Respondent’s Brief.

10 The plain meaning of the statute is clear without regard to

the longstanding principle of construing any lingering

ambiguities in deportation statutes in favor of the alien. See [NS

v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); INS v. Errico, 385

U.S. 214, 225 (1966); Costello v. INS, 376 U.S. 120, 128 (1964); Fong

Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)

17

b. The Legislative History And Develop-

ment Of Section 241(a)(1)(H) Is Consis-

tent With The Limitations On The

Attorney General’s Discretion Formed

By The Statute.

The limitations set by the plain meaning of the lan-

guage of Section 241(a)(1)(H) are only confirmed by an

examination of its history and development. A thorough

and detailed analysis of the history and development of

Section 241(a)(1)(H) is contained in Section I of the

Respondent's Brief and will not be set forth again here.

However, it should be emphasized that from its incep-

tion, Section 7 of the 1957 Act, which later evolved into

Section 241(f) and then Section 241(a)(1)(H), was

intended “plainly to grant exceptions to the rigorous

provisions of the 1952 Act for the purpose of keeping family

units together.” INS v. Errico, 385 U.S. 214, 220 (1966).

Describing the purpose underlying Section 241(a)(1)(H),

the Errico Court stated:

Congress felt that, in many circumstances, it

was more important to unite families and pre-

serve family ties than it was to enforce strictly

the quota limitations or even the many restric-

tive sections that are designed to keep undesir-

able or harmful aliens out of the country.

Id.

Consistent with this intent, the waiver and its appli-

cation have been broadened by amendments to the Act in

1981 and again in 1990. See Section I of Respondent's

Brief. Therefore, the Attorney General's restrictive appli-

cation of the waiver in this case, which involved the

consideration of elements of the initial fraudulent entry,

18

contravened the intent of Congress in creating and

expanding the waiver.

2. The Authority Cited By The Attorney Gen-

eral Is Unpersuasive And Only Serves To

Establish That The Court Of Appeals Acted

Correctly In Reversing The Attorney Gen-

eral’s Decision.

Most of the cases cited by the Attorney General in

support of her position are not cases involving the inter-

pretation of a statutory provision and the enforcement of

the statutory limits on her authority to identify the fac-

tors to be considered in the exercise of her discretion.

Rather, the balance of the cases cited in the Petitioner’s

Brief involve judicial review of the application of the

Attorney General’s discretion to the facts of specific

cases. See e.g. Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919 (1956);

Foti v. Immigration and Naturalization Service, 375 U.S. 217,

84 S.Ct. 306 (1963); INS v. Rios-Pineda, 471 U.S. 444, 105

S.Ct. 2098 (1985); INS v. Doherty, 502 U.S. 314, 112 S.Ct.

719 (1992). This distinction is critical to a proper analysis

of the issues in this case because the latter does not

require an analysis of the statutory provision at issue, a

function involving heightened judicial review and less

deference to the Attorney General's decision. Moreover,

two of the cases relied upon by the Attorney General in

which the interpretation of a statute was at issue, INS v.

Jong Ha Wang, 450 U.S. 139 (1981) (per curium) and United

States v. Alaska, 503 U.S. 569, 576 (1992), actually support

the Court of Appeal’s decision in this case.

19

At issue in Wang was the propriety of the Court of

Appeals’ decision to order that deportation proceedings

be reopened. The Wang case appears to support the Attor-

ney General’s position in this case because it was ulti-

mately determined that the Court of Appeals had

encroached upon the authority of the Attorney General in

ordering that the case be reopened. However, the Oppo-

site is true. Wang demonstrates that, in determining

whether the Attorney General acted properly, her actions

must be evaluated in light of the meaning of the language

employed and the intent of Congress.

The respondents in Wang were ordered deported in

November 1974 and were granted the privilege of volun-

tarily departing by February 1, 1975. Wang, 450 U.S. at

141. Instead of departing voluntarily, they applied for an

adjustment under Section 245 of the Act, 8 U.S.C. 1255,

but were found ineligible on July 17, 1975. Id. at 141-42.

Their appeal from this ruling was dismissed by the BIA in

October 1977. Respondents, by that time, had satisfied the

7-year continuous-physical-presence requirement under

Section 244 of the Act and filed a second motion to

reopen to hear the suspension of deportation claim. Id. at

142.11

Section 244 of the INA provides that the Attorney

General may, in her discretion, suspend deportation and

adjust the status of an otherwise deportable alien who: (1)

'! Unlike the relief sought in this case, the relief sought by

the respondent in Wang - a reopening of proceedings - is not

provided for by Congress in the INA itself. Rather, such relief is

provided for only in the regulations promulgated by the

Attorney General under the Act.

20

had been physically present in the United States for not

less than seven years; (2) is a person of good moral

character; and (3) is “a person whose deportation would,

in the opinion of the Attorney General, result in extreme

hardship to the alien or to his spouse, parent, or child,

who is a citizen of the United States or an alien lawfully

admitted for permanent residence.” 8 U.S.C. § 1254(a)(1).

The Wangs’ motion contained unverified allegations that

the deportation would result in extreme hardship to their

children and would also be an economic hardship to the

entire family. Wang, 450 U.S. at 142. The BIA denied the

motion to reopen without a hearing, finding that respon-

dents failed to establish a prima facie case to entitle them

to discretionary relief under the Act. Id. at 142-43. The

Court of Appeals, sitting en banc, reversed and remanded

for a hearing under Section 244 of the Act. Id. at 143.

This Court concluded that the Court of Appeais erred

in reversing the case in two respects. First, the Court of

Appeals ignored the regulation the required the alien

seeking suspension to allege and su___ ort by affidavit, or

other evidentiary material, the particular facts claimed to

constitute extreme hardship. Id. at 143. Second, and more

importantly, the Court of Appeals encroached on the

authority which the Act confers on the Attorney General.

Id. at 144.

This Court looked to the then Attorney General's

interpretation of the words “extreme hardship”, noting

that his construction and application of this standard

should not be overturned by a reviewing court merely

because it prefers another interpretation. Id at 145.

21

Acknowledging that the Attorney General’s interpreta-

tion was narrow, the Court emphasized that such a nar-

row interpretation was consistent with the “extreme

hardship” language, which itself indicated the excep-

tional nature of the suspension remedy. Id. Thus, this

Court concluded that the BIA did not exceed the parame-

ters of the authority delegated by the Act, and that the

Court of Appeals erred in ordering the case reopened.

In stark contrast, here, the Attorney General’s inter-

pretation of Section 241(a)(1)(H) renders the phrase “oth-

erwise admissible” meaningless and is inconsistent with

the legislative history and development of the provision.

As the discussion above demonstrates, no matter the

context, when the interpretation of a statutory provision

is at issue, it is the language of the statute, and its

legislative history, development and purpose that are the

decisive considerations. See also INS v. Phinpathya, 464

U.S. 183 (1984) (rejecting the Court of Appeals construction of

the continuous-physical-presence requirement of Section

244(a) of the Act and finding that such a construction was

contrary to the plain meaning of the statute and the intent of

Congress.)

Likewise, a closer look at United States v. Alaska, 503

U.S. 569, 576 (1992), a case relied upon by the Petitioner

for the proposition that she has unfettered discretion to

grant or withhold relief from deportation, reveals that it,

too, lends support to the decision of the Court of Appeals

in this case. In United States v. Alaska, this Court examined

Section 10 of the Rivers and Harbors Appropriation Act

(RHA) to determine whether the Secretary of the Army

acted within his discretion in conditioning approval of

—

22

the construction of a port in Nome, Alaska on a dis-

claimer by the State of Alaska relating to a potential

change in the federal-state boundary as a result of the

project. Id. at 572. Ultimately, this Court determined that

the Secretary acted within his discretion, but only after

engaging in the required statutory construction analysis,

which the Attorney General claims is unnecessary in this

case.

First, this Court looked to the language of Section 10

itself to determine whether it contained any criteria by

which the Secretary was to make an authorized decision.

Id. at 576. Unlike the language of Section 241(a)(1)(H), the

language of Section 10 did not contain any limits on the

Secretary’s discretion. Next, this Court looked to the leg-

islative history of Section 10 to determine whether it

contained a “hint” of whether the drafters sought to vest

in the Secretary the apparently unbridled authority the

plain language of the statute seemed to suggest. Id.

Unlike this case, the legislative history and statutory

antecedents offered little insight into the intent of Con-

gress.

Thus, only after examining the plain meaning of the

statute and its legislative history and finding no limits on

the Secretary’s discretion, did this Court conclude that

the Secretary acted within the bounds of the discretion

conferred upon him by the statute. In marked contrast,

here, as set out in great detail in the Respondent's Brief,

an examination of the plain meaning of the statute, as

well as its legislative history, development and purpose,

reveals that the Attorney General exceeded the authority

to make family waiver determinations delegated to her

by the statute because she considered the very elements

23

of fraud in making her determination that the Act itself

precludes from consideration.

The Attorney General’s analogies to other waiver

provisions contained in the INA are equally unpersua-

sive. Specifically, the analogies to waivers under Section

212(c) and suspensions of deportation under Section

244(a) are inappropriate because the language, history

and purpose of those sections are so unlike that of Section

241(a)(1)(H). Those provisions do not contain the “other-

wise admissible” language of 241(a)(1)(H).!2

It is well recognized that:

[W]here Congress includes particular language

in one section of a statute but omits it in another

section of the same Act, it is generally presumed

that Congress acts intentionally and purposely

in the disparate inclusion or exclusion.

Cardoza-Fonseca, 480 U.S. at 432; quoting Rusello v. United

States, 464 U.S. 16, 23 (1983), quoting U.S. v. Wong Kim Bo,

472 F.2d 720, 722 (5th Cir. 1972). Thus, the fact that only

Section 241(a)(1)(H) contains the language “otherwise

admissible” indicates that the sections differ in meaning

and application and the Attorney General’s analogies

between the sections are false.

2 A detailed discussion of the differences in the language,

history and purpose of sections 212(c), 241(a)(1)(H) and 244, is

set forth in Section IV of Respondent's Brief.

24

B. OUR SYSTEM OF GOVERNMENT REQUIRES

THE JUDICIARY TO POLICE THE PARAME-

TERS OF THE AUTHORITY DELEGATED TO

AGENCIES.

Under our system of separation of powers, indepen-

dent judicial review is required to insure that the wiel-

ders of governmental power are subject to the limits of

law. See Richard H. Fallon, Jr., Of Legislative Courts,

Administrative Agencies, and Article III, 101 Harv. L. Rev.

915, 938 (1988). The applicable limits should be deter-.

mined, not by those institutions whose authority is in

question, but by an impartial judiciary. Id.; see The Feder-

alist No. 78 (A. Hamilton) (C. Rossiter ed. 1961). This is

the role filled by Article III courts.

These courts were created because the framers of the

Constitution believed that arbitrariness and tyranny

could result from the excessive concentration of power in

a single branch of government. In fact, James Madison

wrote that “[T]he accumulation of all powers, legislative,

executive and judiciary, in the same hands * * * [is] the

very definition of tyranny.” The Federalist No. 47, at 301 (J.

Madison) (C. Rossiter ed. 1961). Under our system of

government, independent judicial review is a constitu-

tionally required check on the authority delegated to

executive agencies by Congress.

Toward that end, this Court has stated that, whe™

reviewing agency interpretations of law, courts must "ot

“slip into * * * judicial inertia” or simply “rubber sta™p”

agency decisions. Bureau of Alcohol, Tobacco & Firear™S .

FLRA, 464 U.S. 89, 97 (1983), quoting American Ship Bldg.

Co. v. NLRB, 380 U.S. 300, 318 (1965); NLRB v. Brow, 380

25

U.S. 278, 291-92 (1965). Deference is not abdication and

even discretion has its legal limits. See INS v. Doherty, 502

U.S. 314, 330 (1992) (Scalia, J., concurring in part and

dissenting in part); EEOC v. Arabian American Oil Co., 499

U.S. 244, 260 (1991) (Scalia, J., concurring).

Congress, not the Attorney General, enacted Section

241(a)(1)(H) as a humanitarian measure designed to keep

families together. Congress, not the Attorney General,

defined the outer limits of the Attorney General's author-

ity by making the policy determination that an alien

could avoid deportation based on his or her acts of fraud

it the alien possessed the requisite family ties. Section

241(a)(1)(H) was designed specifically to allow an alien to

escape deportation in spite of his or her fraudulent entry

into the country if the alien has a family member who is a

U.S. citizen or a lawful permanent resident, and if the

alien would have been admissible aside from the alien's

acts of fraud or misrepresentations. The inclusion of the

language “otherwise admissible”, reflects a legislative

intent to remove the elements of fraud or misrepresenta-

tions from the analysis in making a waiver determination.

Thus, the Court of Appeals was merely performing its

constitutionally required role of policing the limits of the

authority delegated to the Attorney General by the stat-

ute when it reversed the BIA’s decision in this case.

°

CONCLUSION

[The judgment of the Court of Appeals should be

iftirmed

Respec ttully submitted

SANDRA | K PI AN

\ unsel rf Re rd

4 ASSITDAY SCH AT)? ay ( 7

333 West Wacker Drive

Suite 1200

Chicago, Illinois 60606-1289

312) 641-3101

Counsel for Amici Curia

American Immigration

Lawyers Association

Lawyers Committee for

Civil Rights Under Law of

Texas — Immigrant & Refuges

Rights Project, Nationa!

Immigration Project of the

National Lawyers Guild