Memorandum — Yuen Sang Low v. Attorney General of the United States

“) ‘SUPREME COURT, U. Ss. .

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OCTOBER TERM, 1973, 4

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YUEN SANG Low, ET AL., PETITIONERS

Vv.

RosBert H. BorK, ACTING ATTORNEY GENERAL, ET AL.

CN PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

RosBerT H. Bork,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

3u the Supreme Court of the Auited States

Octoser Term, 1973

No. 73-395

YUEN SANG Low, ET AL., PETITIONERS

; v.

Rosert H. Bork, ACTING ATTORNEY GENERAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

Each petitioner is a native and citizen of China who

sought entry into the United States in 1951 or 1952

claiming to be the son of an American citizen. Each was

denied admission, following a finding that he had not

established citizenship, and each was ordered exluded.

However, while proceedings were pending, each peti-

tioner was paroled into the United States pursuant to

Section 212 (d)(5) of the Immigration and Nationality

Act (8 U.S.C. 1182(d)(5)).

Thereafter, petitioners submitted applications for sus-

pension of deportation and adjustment of status to

that of a permanent resident alien under the provisions

(1)

2

of Section 244(a) of the Act (8 U.S.C. 1254(a)).' The

District Director of the Immigration and Naturalization

Service rejected the applications on the ground that

excluded aliens were ineligible for the relief afforded by

that section. Petitioners sought review of that adminis-

trative decision in the United States District Court for

the Northern District of California. The district court

granted petitioners’ motion for summary judgment,

finding that they had been physically present in this

country for the prescribed period and were thus eligible

for relief under Section 244(a) (Pet. App. A).

On May 30, 1973, the court of appeals reversed in a

comprehensive opinion (Pet. App. B). The petition for

certiorari was not filed until August 30, 1973, more than

ninety days after the decision of the court below, and

no extension of time for petitioning was obtained. The

petition is therefore jurisdictionally out of time under

28 U.S.C. 2101(c) and accordingly should be denied.

Teague, et al. v. Regional Commissioner of Customs,

Region Il, et al., 394 U.S. 977; Scofield v. National

Labor Relations Board, 394 U.S. 423, 427.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

OCTOBER 1973.

'Section 244(a) provides in pertinent part:

***([T)}he Attorney General may, in his discretion, suspend

deportation and adjust the status to that of an alien lawfully

admitted for permanent residence, in the case of an alien who

applies to the Attorney General for suspension of deportation

and—

(1) is deportable under any law of the United States * * *

has been physically present in the United States for a con-

tinuous period of not less than seven years immediately

preceding the date of such application * * *.

Deon ier tio