# Petition for a Writ of Certiorari — Segura v. Immigration & Naturalization Service > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_2229%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 420 U.S. 946 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_2229%3A1. Public record. Not legal advice.