Petition for a Writ of Certiorari — Segura v. Immigration & Naturalization Service

Subject Index

Page

II ec ticctus ven Caesue ue Socek ita teuccsnadoce 1

hace ass pyc ae utieur enue tite iene Coke 2

III occas cca buucuvis wie eakes ticeea se suneews 2

I ia gt aaa oot ce eer eel polars 2

SE teeta eee eat ey re ee 4

Reasons for granting the writ ..................c00cceuee 6

Neha ee gta oc teh Lue re oes 12

Table of Authorities Cited

Cases Pagos

Amarante y. Rosenberg, 326 F.2d 58 (9th Cir. 1964) ...... 6,7

Ambra v. Aherns, 325 F.2d 468 (1963) .................. 9

Campos vy. Immigration and Naturalization Serviee, 402 F.2d

St Ce ocacahassy benwaeg keemeckueea wena 7

Ferrante v. Immigration and Naturalization Serviee, 399

ee ee IE vicina nanncuweee's* sou.cuwebwhs 8,9

Immigration and Naturalization Service vy. Errico, 385 U.S.

I 6 Atak ese a eas De a re 9, 10, 11, 12

Khadjenouri vy. Immigration and Naturalization Service,

460 P2da 461 (Sth Cir. 1972) ..........0.00-. 5, 6, 8,9, 10,11

Lee Fook Chuey vy. Immigration and Naturalization Service,

ee ee ee ED. ccueaduvenwewecah condesveennocans 11

Matter of Smith, 11 T. & N, Dee. 325 (Board of Imnigration

Appeals, Oct. 8, 1965) ......... Rhies Chhwhaekaeue vanes 7

GE ECT AES ED TR RTS, OAS MIT BACB

NAR a > ce com RL OAT sean:

li TaB_e or Autuoritits CiTep

i Regulations Pages

ae EEE 40s nh Rbe eas chee akes casi ceeyers sau 8

Statutes

i Immigration and Nationality Act:

q OUI LD I BUONO) 66s vncinvnceucniencsacsss 4

RS ROP ey ee ee eee eee ore 8

SNE, OUNOETCUD «os htnneeaxdecceacvaesars's 8

SN ED osc vadhar ss txaoednekenheebesaaweeses 8

: IE * a6 vicbeakennskotnasstbeecsecasuras 8

I NOR 6: hc FG Buea ee oe ee ose e dsb eeaRwers 8

Seetion 241(a)(2) (8 U.S.C. 1251(a)(2)) ........... 5

Section 241(f) (8 U.S.C. 1251(f)) ..... 2, 5, 6, 8, 9, 10, 11, 12

Section 245 (8 U.S.C. 1255) .......... cece 3, 4, 6, 7,10, 11

Ne: ee A BOD on pre ensdcwavecavsckecces +

ee ee, ED voc sch0050scs nesde ens secksaned 2

Texts

2 Gordon and Rosenfield, Immigration Law and Procedure,

EE US gnaw cacapun senxnu cess paeeth ebaeedaseedaee 7

Iu the Suprene Court

OF THE

united States

OcroBER Term, 1974

No.

ZENADWA SARMENTA SEGURA,

also known as ZENAIDA SARMENTA TOMANENG,

Petitioner,

VS.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

The petitioner respectfully prays that a writ of

certiorari issue to review the order of the United

States Court of Appeals for the Ninth Cireuit en-

tered in this case on April 5, 1974.

OPINIONS BELOW

The order of the Court of Appeals affirming the

order of the Board of Immigration Appeals is set

PIPES IL PL ORI

cE nL eet SEE SD ae ee et “|

s

9

forth at page A-1 of Appendix A, and the order of

the Court of Appeals denying petition for rehearing

en bane is set forth at page A-2 of Appendix A.

The opinion of the Board of Immigration Appeals

is set forth in Appendix B.

JURISDICTION

The order of the Court of Appeals for the Ninth

Circuit was entered on April 5, 1974. A timely peti-

tion for rehearing en bane was denied on August

23, 1974, and this petition for certiorari was filed

within ninety days of that date. The jurisdiction of

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

QUESTION PRESENTED

Whether an alien who meets all substantive re-

quirements for exemption from deportation under

Section 241(f) of the Immigration and Nationality

Act, 8 U.S.C. 1251(f), can be denied relief under

that section on the ground that she acquired her

permanent resident status through the procedure of

an adjustment of status within the United States

rather than procuring an immigrant visa abroad.

STATUTES INVOLVED

Section 241(f) of the Immigration and Nationality

Act, 8 U.S.C. 1251(f), provides:

“The provisions of this section relating to the

deportation of aliens within the United States

on the ground that they were excludable at the

time of entry as aliens who have sought to pro-

cure, or have proeured visas or other documen-

tation, or entry into the United States by fraud

or misrepresentation shall not apply to an alien

otherwise admissible at the time of entry who

is the spouse, parent, or a child of a United

States citizen or of an alien lawfully admitted for

permanent residence.”

Section 245 of the Immigration and Nationality

Act, as amended, 8 U.S.C. 1255, provides in perti-

nent part, as follows:

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

erewman, who was inspected and admitted or

paroled into the United States may be adjusted

by the Attorney General, in his discretion 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 permanent residence,

and (3) an immigrant visa is immediately avail-

able to him at the time his application is ap-

proved.

(b) Upon the approval of an application for

adjustment made under subsection (a), the At-

torney General shall record the alien’s lawfvl

admission for permanent residence as of the date

the order of the Attorney General approving the

application for the adjustment of status is made,

and the Secretary of State shall reduce by one

the number of the preference or nonpreference

visas authorized to be issued under section 203 (a)

4

within the elass to waich the alien is chargeable,

for ‘the tiseal year then current.”

STATEMENT

Petitioner is a native and citizen of the Philippines,

how twenty-nine Years of age CR. 1S). She was ad-

mitted to the United States on January 27, L968 as

a visitor CR. 13, 30).

On April 1, L969, petitioner’s status was adjusted

to that of an alien lawfully admitted for permanent

residence pursuant to the previsions of section 24

vf the Jhomigration and Nationality Act, 8 U.S.C,

1255 CR. 13, 82). Her admission for permanent. resi-

dence was predicated upon her marriage to Manuel

‘Tomaneng, a permanent resident alien. Thereatter,

it was determined that petitioner had married ‘To-

maneng solely tor the purpose of obtaining permanent

resident status, and her status was accordingly re-

sanded under Section 246 of the Lmnigration and

Nationality Act, 8 U.S.C. 1256, on August 12, 1972

(R. 13-14, 32).

Prior to the rescission of her permanent resident

status, the petitioner obtained a Final Judgment of

Divorce from Tomaneng, and on December 2, 1971,

she married Rodolfo Segura, then a permanent. resi-

dent alien CR. 15. 34)2 The petitioner and her present

“R.” References are to the certified administrative recon, tiled

in the Court below in response to the petition for review, pursuant

to section 106 of the Immigration and Nationality Aet, as amended,

8 U.S.C. 1105a.

2Rodolfe Segura is now a United States citizen, having been

naturalized on duly 19, 1974 in the United States Distriet Court

at San Jose, California and issued Naturalization Certificate No,

9667162.

A

husband have lived together continuously since their

marriage, and they are the parents of a United States

citizen ehild born in San Francisco, California on

January 15, L972 CR. 15, 30)

On March 14, L973, petitioner was served with an

order te show eanse alleging that because her per-

manent resident status had been rescinded on the

basis of her fraudulent marriage to ‘Tomaneng, she

Was subject to deportation under section 24h ca) (2)

of the Immigration and Nationality Aet, 8 U.S.C,

IW5tca) (2), as a nonimmigrant who had overstayed

the period of her authorized stay CR. 30-32). At her

deportation heaving before an immigration judge ne-

titioner denied deportability, conter.ding that she was

saved from deportation by the provisions of section

M41¢f) of the Immigration and Nationality Aet, 8

Us.c. 1251 Cf) CR. 16 et seq.)

The immigration judge held that: section 241(1)

did not apply to the petitioner and ordered her to be

deported to the Philippines (R. 13-15), The Board of

Immigration Appeals dismissed petitioner's appeal,

citing Ahad jenourt v. im migration and Naturaltzation

Serviec, 400 F.2d 461 (9th Cir. 1972), for its eonelu-

8The petitioner and her husband expect a second child within

the next two months.

4In the administrative proceedings below petitioner contended

that section M41(f) applied to her beeause: (1) She had obtained

her visitor’s visa by frand, and (2) she had obtained her perma.

nent. resident status through a fraudulent marriage. In the Court

below, the petitioner abandoned her first contention and relied

solely upon her second contention--that her deportation should be

waived under section M41( 1) beeanse she procured her adjustment

of status by fraud. Petitioner is qualitatively admissible to the

United States and possesses the familial relationship required by

section 241(f).

mS EPA MA A eS 4 eee EE TE LENS a sin

: '

sion that section 241(¢f) has no application te the alien

who fraudulently procures permanent residence by

an adjustment of status within the United States.

Petitioner then filed a petition for review chal-

lenging the Board’s determination. In a summary

order, the Court of Appeals affirmed the decision of

the Board of Immigration Appeals (Appendix A).

REASONS FOR GRANTING THE WRIT

1. There is a_ econtlet among the ecireuits over

whether an alien who is admitted to the United States

for permanent residence by the procedure for ad-

justinent under section 245 of the Immigration and

Nationality Act is to be treated in the same way as

an alien admitted for permanent residence with an

immigrant visa obtained abroad. Prior to its decision

in Khadjenowit ve. Immigration and Naturalization

Service, supra, tie Ninth Cireuit subseribed to the

view that both classes of immigrants were to be ae-

corded like treatment for the logieal reason that

beth were in functionally similar situations. In Ama-

rante v. Rosenberg, 326 F.2d 58 (9th Cir. 1964),

the Court said:

“If the Attorney General adjusts his status to

that of a permanent resident under section 245,

it is equivalent to the issuance of a visa by a

United States Consul outside the United States.

The parties agree that when the alien seeks an

adjustment of his status by the Attorney General

under section 245, the Attorney General performs

the same functions as does a consular officer when

7

the alien is seeking to enter the country and

applies for a nonquota visa. Accordingly, it is

appellant's position that when the consular officer

acts favorably on a visa or when the Attorney

General acts favorably on an application for

adjustment of status, the alien is thereby ac-

corded his status, and not when the petition of

the spouse is approved.

We agree.” (326 F.2d at 61)

And in Campos v. Immigration and Naturalization

Service, 402 F.2d 758, 760 (9th Cir. 1968), the Court

stated :

‘An alien seeking to adjust his status to that

of a permanent resident is assimilated to the

position of an alien seeking to enter the United

States for permanent residence.”

It has also been the position of the administrative

authorities in the past to equate adjustment of status

with entry with an immigrant visa, since the appli-

eant for adjustment must, under the provisions of

section 245 of the Act, meet the same substantive

requirements as the visa applicant in order to qualify

for admission as a permanent resident, and the pro-

cedure in establishing eligibility for adjustment paral-

lels the procedure in establishing eligibility for a

visa. See Matter of Smith, 11 1. & N. Dee. 325 (Board

of Immigration Appeals, Oct. 8, 1965) ; Immigration

Law and: Procedure by Gordon and Rosenfield Voi. 2,

§7.7e. Further support for this position is found in

the regulations of the respondent which grant the

applicant for adjustment the same rights as the visa

CPLR AOS

8

applicant to apply for waivers of exeludability under

sections 212(g¢), (h), and (i) of the Immigration

and Nationality Act, and for the benefits of section

212(¢) and seetion 212(a)(28)(1) (ii) of the Immi-

gration and Nationality Act. See 5 C.FLR. 245.1(f).

Although the summary order of affirmance of the

Court below made no mention of Ahad jenouri v. Im-

migration and Naturalization, supra, its order un-

doubtedly rested upon its decision in that case. In

the context of interpreting section 241(1) in Ahad-

jenourt, the Ninth Cireuit abruptly departed from

its prior decisions placing applicants for adjustment

in pari materia with visa applicants. The Court's

brief order of affirmance contains no discussion of

the issue, merely stating that there is a difference

between fraud after entry [referring to adjustment

of status] and fraud to obtain entry [referring to

entry with an immigrant visa]. Although the Court's

order of affirmance cites Ferrante ve. Immigration

and Naturalization Service, 399 F.2d 98 (6th Cir.

1968), reliance on that case would seem to be mis-

placed. Counsel for Ferrante failed to raise the issue

of relief from deportation under section 241(f) in

the administrative proceedings. The section was ini-

tially invoked on petition for review. In rejecting

Ferrante’s eontention that he was eligible for the

protection of the statute, the Sixth Circuit simply

said that it was not applicable to Ferrante because

he had entered the United States lawfully as a

visitor without fraud or misrepresentation. Ferrante

contains no discussion of the issue presented in

oe

9

Khadjenouri and in this case—that is, whether aliens

in functionally similar situations should be treated

differently solely on the basis of the procedure which

they utilized in acquiring their permanent resident

status. Since the Ferrante Court made no mention

of this issue, it is doubtful that it was argued or

considered in arriving at decision.

Had this petitioner obtained an immigrant visa

abroad on the basis of her marriage to Manuel Toma-

neng, rather than adjusting her status within the

United States, she would stand in the very same

position as Murtel May Scott, the petitioner in Jmmi-

gration and Naturalization Service v. Errico, 385

U.S. 214 (1966). This Court held that section 241(f)

applied to Scott who entered into a fraudulent mar-

riage to procure an immigrant visa and to Errico

who misrepresented his occupational eligibility for

first preference quota status. There is no language

in Frrico suggesting that a distinction should be

drawn in the application of section 241(f) between

the alien who acquires permanent resident status by

fraudulently procuring an immigrant visa abroad and

one who follows the procedure of adjusting status

within the United States.

The Fifth Cireuit, in a case arising in a different

context, has recognized the essentially similar fune-

tion performed by the Attorney General in the ad-

justment of an alien’s status with that of a consular

officer in the issuance of an immigrant visa. Ambra

v. Aherns, 325 F.2d 468 (1963). The apparent conflict

between the Ninth and the Fifth Circuits, as well as

10

the divergent decisions of the Ninth Cireuit, concern-

ing the treatment to be accorded visa applicants and

adjustment of status applicants, warrants a resolu-

tion of the issue by this Court.

2. The decision below substantially affects the

administration of our immigration laws sinee it de-

prives an entire class of aliens from the relief from

deportation afforded by section 241(f). The dissent-

ing opinion of Judge Trask in Ahadjenourt v. Im-

migration and Naturalization Service, supra, demon-

strates the fallacy of attempting to distinguish be-

tween the fraudulent procurement of an immigrant

visa and the fraudulent procurement of an adjustment

of status when it comes to applying section 241(f).

Not only is there a lack of logical foundation for

such a distinction, but, as Judge Trask so ably points

out, withholding the benefits of section 241(f) from

the alien who adjusts status runs counter to this

Court’s expansive reading of the statute in Immi-

gration and Naturalization Service v. Errico, supra.

Both the petitioner in the instant ease and Muriel

May Scott, the petitioner in Errico, acquired per-

manent. resident status by entering into fraudulent

marriages. The fact that this petitioner aequired her

permanent resident status by adjustment, whereas

Scott acquired permanent residence by obtaining an

immigrant visa, is purely fortuitous.’

5Prior to enactment. of the Immigration and Nationality Act. of

1952, incorporating the provisions of section 245, an alien who

desired to acquire permanent. residence on the basis of marriage

had to travel abroad to procure an immigrant visa and reenter

the United States.

4 ATT MAUI, BUR in ee

AP RE Seetert eye,

11

The decision of the Court of Appeals contravenes

the intent of Congress. Congress chose to facilitate

the acquisition of permanent resident status for aliens

able to qualify within the United States by its enact-

ment of section 245 of the Act. Certainly, it was not

Congress’ intention to discriminate against the class

of aliens that acquire permanent resident status pur-

suant to the provisions of section 245. The Ninth

Cireuit, in a different factual context, rejected the

government’s contention that section 241(f) applies

only to aliens who have procured immigrant visas at

consular offices abroad, making the following observa-

tions concerning construction of section 241(f) which

are pertinent to the instant ease.

‘We have always understood that a cardinal

principle of statutory interpretation is that Con-

gressional enactments should be read as ‘ational,

coherent and purposeful elaborations of legisla-

tive policy. They should never be construed as

establishing statutory schemes which are illogi-

eal, unjust or capricious. We may never aseribe

to Congress an intent to provide different rules

in functionally similar situations, involving im-

portant individual interests such as the right to

remain in this country with one’s family, based

on purely fortuitous factual differences.”

Lee Fook Chucy v. Immigration and Naturali-

zation Service, 439 F.2d 244, 249 (1971).

In its marked departure from its prior decisions,

the Court below in Khadjenouri v. Immigration and

Naturalization Service, supra, and in the instant ease,

faiied to give adequate weight to Immigration and

a Sear eane oe +R re, ZI MBQOPELS A: HUN BNE Seay CREAT BO PAR OS NT Ak! POAT SAL Re Dette te ees

4 Aen seuss heen RR een

Shs

*ohate a SA ARRAN IT Oe he ates

Naturalization Service v. Errico, supra. In that ease,

this Court declared that the major purpose of Con-

gress in the enactment of section 241(f) was to main-

tain family unity. Furthermore, this Court emphasized

that in view of the broad humanitarian purpose of

section 241(f) the statute is not to be literally ap-

plied, and that if some doubt as to the correct con-

struction of the statute exists, such doubt should be

resolved in favor of the alien. While we do not be-

lieve there is any doubt that the statute applies with

equal foree to one who enters with a visa and to

one who adjusts status, we urge this Court to re-

solve such doubt in favor of the petitioner in the

light of Errico.

CONC.USION

For the reasons stated, it is respectfully submitted

that the petition for a writ of certiorari should be

eranted.

Dated, San Franciseo, California,

November 12, 1974.

Respectfully submitted,

Roeert S. Brxey,

Fariox, Hancreaves, Brxray & McVey,

Attorneys for Petitioner.

(Appendices Follow)

A-1

Appendix A

United States Court of Appeals for

The Ninth Circuit

No. 73-3210

A

Zenaida Sarmenta Segura, also known !

. |

as Zenaida Sarmenta Tomaneng, |

Petitioner,

vs.

Immigration & Naturalization Service, |

Respondent. J

(April 5, 1974)

Before: Chambers and Merrill, Circuit Judges

ORDER

The order of the Board of Immigration Appeals

entered in this matter on October 4, 1973, is affirmed.

Richard Chambers

Charles M. Merrill

U. S. Circuit Judges

A-2

United States Court of Appeals for

The Ninth Circuit

No. 73-3210

Zenaida Sarmenta Segura, also known |

as Zenaida Sarmenta Tomaneng,

Petitioner,

vs.

Immigration & Naturalization Service,

Respondent. :

(August 23, 1974)

Before: Chambers and Merrill, Circuit Judges

ORDER

The petition for rehearing is denied and the sugges-

tion for a rehearing en banc is rejected.

All judges of the Court have been advised of the

suggestion for a rehearing en bane and no judge of

the Court has requested a rehearing en bance.

B-1

Appendix B

United States Department of Justice

Board of Immigration Appeals

Washington, D.C. 20530

[Oct. 4, 1973]

File: A18 481 790—San Francisco

In re: Zenaida Sarmenta Segura

formerly Tomaneng

In Deportation Proceedings

Appeal

On Behalf of Respondent:

Robert 8. Bixby, Esquire

30 Hotaling Place

San Francisco, Calif, 94111

On Behalf of IGN Service:

Bernard J. Hornbach

Trial Attorney

Charges: .

Order: Section 241(a)(2), I&N Act (8 U.S.C.

; 1251(a) (2))—nonimmigrant_ visi-

tor—remained longer than per-

mitted |

Application: Termination of proceedings under sec-

tion 241(f)

This case presents an appeal from a decision of the

immigration judge on April 10, 1973, denying the re-

spondent’s request for termination of these proceed-

Bot sates ae

B-2

ings under section 241(f) of the Immigration and

Nationality Act, as amended, and ordering that she be

deported to the Philippines. The appeal will be dis-

missed. :

Our review of the record, including briefs submit-

ted by the parties, satisfies us that the hearing was

fair, that deportability has been established by clear,

convincing and unequivocal evidence, and that the im-

migration judge properly applied the pertinent legal

principles. The respondent’s status as a permanent

| resident of the United States was rescinded in Au-

gust, 1972, following a determination that she had

married a permanent resident alien, Manuel Toma-

neng, solely for, the purpose of obtaining permanent

residence here. Prior to the time of the rescission, the

' respondent married another lawful permanent resi-

dent, Rodolfo Segura, on December 2, 1971, and he is

the father of the respondent’s United States citizen

child born on January 15, 1972. The respondent ad-

mitted at the hearing that she had made certain false

statements in order to obtain her visitor’s visa, but

claimed that. they had been made at the behest of a

travel agent in the Philippines. She further conceded

her preconceived intention to remain in the United —

States (Tr. p. 9, 12). |

We have long held that section 241(f) of the Act

‘does not benefit an alien who entered the United

States as a nonimmigrant, Matter of Mangabat, In-

terim Decision 2131 (BIA 1972); affirmed Cabuco-

Flores v. INS, 477 F.2d 108 (9 Cir. 1973). In any

event, contrary to counsel’s contention, section 241(f)

B-3

does not apply to rescission proceedings which are

grounded here on the respondent's ineligibility for the

status accorded due to her fraud after entry into the

United States. ‘he sole question in the rescission pro-

ceedings was whether there was eligibility for adjust-

ment of status. Section 241(f) cannot be utilized to

save an adjustment of status based on fraud because

once rescission has been ordered, the alien reverts to

his preadjustment status and the fraudulent adjust-

ment of status is no longer a relevant matter, Khad-

jenourt v. INS, 460 F.2d 461 (9 Cir. 1972). The re-

spondent did not apply for any form of discretionary

relicf. Accordingly, the appeal will be dismissed.

Order: The appeal is dismissed

Louisa Wilson

Acting Chairman