# Opposition Brief — Magafan v. United States Immigration & Naturalization Service > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1155%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1971 - **Citation:** 403 U.S. 931 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1155%3A2. Public record. Not legal advice.