Opposition Brief — Magafan v. United States Immigration & Naturalization Service

Iu the Supreme Court of the United States

OCTOBER TERM, 1970

No, 1658

JOHN MAGAFAN, PETITIONER

Vv. ¥

IMMIGRATION AND NATURALIZATION SERVICE |

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The judgment of the court of appeals (Pet. App.

A1-A2) was entered without an opinion. The opin-

ion of the Board of Immigration Appeals (Pet. App.

A3-A7) is not reported.

JURISDICTION

The judgment of the court of appeals was entered

on February 3, 1971. A petition for rehearing was de-

nied on March 1, 1971. On April 30, 1971, the peti-

tion for a writ of certiorari was filed. The jurisdic-

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

(1)

12 —EESE—~E—7*!

2

QUESTIONS PRESENTED

1. Whether the Attorney General was authorized

by Congress to declare a nonimmigrant alien in

transit without visa ineligible for an adjustment of

status under Section 245 of the Immigration and

Nationality Act.

2. Whether the Special Inquiry Officer had the

power to alter petitioner’s classification nunc pro

tunc from transit without visa to nonimmigrant

visitor,

STATUTE AND REGULATION INVOLVED

Section 245(a) of the Immigration and Nationality

Act (8 U.S.C..1255(a)) provides that:

(a) The status of an alien, other than an

alien crewman, who was inspected and admit-

ted or paroled into the United States may be

adjusted by the Attorney General, in his dis-

cretion 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 adjustment, (2) the

alien is eligible to receive an immigrant visa

and is admissible to the United States for per-

manent residence, and (3) an immigrant visa

is immediately available to him at the time

his application is approved.

8 C.F.R. 214.2 provides in relevant part that:

The general requirements in § 214.1 are modi-

fied for the following nonimmigrant classes:

+ & & *

(c) Transits—(1) Without visas. An appli-

cant for admission under the transit without

visa privilege must establish that he is admis- |

sible under the immigration laws; that he has

confirmed and onward reservations to at least

the next country beyond the United States, and

that his departure from the United States will

be accomplished within ten calendar days after

his arrival * * *, * * * The privilege of transit

without a visa may be authorized only under the

conditions that the carrier, without the prior

consent of the service, will not refund the tick-

et which was presented to the Service as evi-

dence of the alien’s confirmed and onward res-

ervation, that the alien will not apply for ex-

tension of temporary stay or for adjustment of

' status under section 245 of the Act, and that at

all times he is not aboard an aircraft which is

in flight through the United States he shall be

in the custody directed by the district director.

STATEMENT

The essential facts are not in dispute. Petitioner,

a Greek national, entered this country on October

20, 1968, as a nonimmigrant alien without a visa

in immediate and continuous transit through the

United States. Although he had never worked on a

ship, he was allegedly en route from Greece to Mi-

ami, Florida, where he was to board a Greek vessel

as a seaman. He was to remain in this country for

one day, until October 21, 1968.

Upon his arrival in New York, petitioner claims

that he was met at the airport by his American

brothers and told that his mother, who was already

4

in this country, was very ill. His story is that he

thus went with his brothers to his mother’s side

rather than proceeding on to Miami, Florida (Pet.

4).

Some three months later, on January 20, 1969,

petitioner sought to obtain an adjustment of status

to permanent residence pursuant to Section 245 of

the Immigration and Nationality Act, 18 U.S.C.

1255. The District Director rejected the application

on the ground that, as a visitor in transit without

visa, petitioner was precluded by the terms of 8

C.F.R. 214.2(c) (1)? from applying for that form of

relief (Pet. App. A5).

On July 2, 1969, petitioner was ordered to show

cause why he should not be deported. A hearing was

held on September 10, 1969, during which he again

applied for an adjustment of status. The Special

Inquiry Officer (Pet. App. A7-A10) found him in-

eligible for such relief but granted him the option

of voluntary departure in lieu of deportation. Peti-

tioner then took an appeal to the Board of Immigra-

tion Appeals; on May 12, 1970, the Board, relying

on its earlier decision in Matter of Davis, 10 1& N

Dec. 441 (BIA 1964), held that petitioner was not

entitled to an adjustment of status (Pet. App. A3-

A7). The United States Court of Appeals for the

District of Columbia Circuit affirmed per curiam

1 The regulation provides in pertinent part as follows: “The

privilege of transit without a visa may be authorized only

under the conditions * * * that the alien will not apply for

extension of temporary stay or for adjustment of status under

section 245 of the Act * * *.”

5

(Pet. App. Al-A2), and denied a petition for re-

hearing (Pet. App. A2-A8).

ARGUMENT

I. Petitioner concedes that he entered this coun-

try as an alien without a visa for “immediate and

continuous transit through the United States” under

Section 101(a) (15) (C) of the Immigration and Na-

tionality Act, 8 U.S.C. 1101(a)(15)(C), and that

he violated a condition of his entry by remaining

here beyond the one-day period allotted to him for

transit to Miami, Florida. He contends, however,

that the summary rejection of his Section 245 appli-

cation for adjustment of status was unjustified.

Specifically, he urges that the regulation barring his

application, 8 C.F.R. 214.2(c)(1), relates solely to

Section 214 of the Act (8 U.S.C. 1184), which au-

thorizes the Attorney General to prescribe condi-

tions to the admission of any alien, and thus does

not foreclose applications for adjustment to perma-

nent residence status under the separate statutory

provisions of Section 245. Such an interpretation

would, he argues further, be contrary to the intent of

Congress, which specifically excluded other classes of

aliens from eligibility for Section 245 relief, but did

not exclude aliens in transit without a visa.

a. The fact that aliens in transit are barred from

applying for adjustment of status by a regulation

promulgated under Section 214 of the statute does

not thereby make the regulation inapplicable to such

aliens seeking permanent residence under Section

245. Section 214(a) (8 U.S.C. 1184(a)) provides:

1 aM A Pe ED OIE: OEM, ~ abies Pr =f i

6

The admission to the United States of any alien

as nonimmigrant shall be for such time and un-

der such conditions as the Attorney General may

by regulations prescribe * * *.

The general rule, as expressed in Section 212(a)

(26) of the Act (8 U.S.C. 1182(a) (26)), is that

nonimmigrants are excludable unless they possess a

visa and passport. Pursuant to Section 212(d) (4)

(C) (8 U.S.C. 1182 (d)(4)(C)), however, Con-

gress has authorized the Attorney General and the

Secretary of State, acting jointly, to waive the visa

and passport requirements in the case of aliens ‘“‘in

immediate and continuous transit through the

United States.” In exercising this authority, the

Attorney General chose to admit such aliens on the

condition that they not be eligible to apply for ad-

justment of status under Section 245. As the Sec-

ond Circuit recently held in Fook Hong Mak v. Im-

migration and Naturalization Service, 435 F.2d

728, 731 (Pet. App. A16), that determination

“was reasonably related to the statutory scheme.”

Having once imposed the condition in 8 C.F.R.

214.2(c) (1), the Attorney General was not required

to repeat it in another part of the regulations before

it could take effect. See La Franca v. Immigration

and Naturalization Service, 433 F. 2d 992 (C.A, 2);

Tomasello v. Rogers, 306 F. Supp. 705 (S.D. N.Y.).

b. Nor is there any substance to petitioner’s con-

tention that this conclusion is contrary to the intent

of Congress. The answer to this argument was

given by the Second Circuit in Fook Hong Mak

(Pet. App. A17): “* * * it is fallacious to reason

7

ittorney Gen-

that because Congress prevented the Aavor of those

eral from exercising any discretion in f have abused

groups, which Congress had found tot to require

the privileges accorded them, it Meal]ge on a case-

him to exercise it in favor of everyone €convince him

by-case basis even if experience should 1 similar po-

of the existence of another group with emphasis in

tentialities or actualities of abuse”

Gntrary Sec-

original; footnotes omitted). To the 9 Attorne

tion 245 in specific terms delegates to tl y

General, in his discretion and under such regula-

tions as he may prescribe” (8 U.S.C. 1255), 898

plicit authority to treat additional clas**5 °f aliens

in the same manner that Congress h¢S- chosen_to

treat those groups within the statutory ¢xclusion,

if he determines that there are “som® Categories

* * * susceptible to handling on a less individualized

basis.” Fook Hong Mak v. Immigration and Nat-

uralization Service, supra (Pet. App. Al7). See

generally 8 C.F.R, 245.1(a) (alien who has been

allocated an immigrant visa number); 8 C.F.R.

245.1(b) (exchange alien); and see Gambino v. Im-

migration and Naturalization Service, 419 F. 24

1355 (C.A. 2), certiorari denied, 399 US, 941; Tua-

zon v. Immigration and Naturalization somyice 389

F. 2d 863 (CA. 7). And, as explained in rook Hong

Mak (Pet. App. A16), it was not unrez.onable for

2Section 245 specifically excludes two clas. z

from eligibility for adjustment of status unde®S °f aliens

sion—alien crewmen and aliens who are na‘ that provi-

country of the Western Hemisphere or any ac!V€S of any

named in Section 101(b) (5), 8 U.S.C. 1101 (b) aes island

SO OORT PEE ES BONE

the Attorney General to conclude that aliens in tran-

sit without visa constitute such a category. Thus, for

him to declare this group ineligible for Section 245

relief is a valid exercise of his authority.

2. Petitioner’s additional contention that the

Special Inquiry Officer and the Board of Immigra-

tion Appeals had authority to waive possession of a

visitor’s visa and to admit petitioner as a visitor

nunc pro tunc is without merit. Section 248 of the

Act (8 U.S.C, 1258), which governs changes of non-

immigrant classifications, expressly forbids chang-

ing the classification of “* * * an alien classified as a

nonimmigrant under paragraph 15(C) [“aliens in im-

mediate and continuous transit through the United

States”] * * * of section 1101(a) of this title.”

CONCLUSION

For the reasons stated, it is respectfully submitted

that the petition for a writ of certiorari should be

denied.

ERWIN N. GRISWOLD,

Solicitor General.

WILL WILSON,

Assistant Attorney General.

JUNE 1971. Attorneys.

3X &. S. GOVERNMENT PRinvine oFrice; 1971 426466 687