Opposition Brief — Noel v. Chapman

INDEX

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Constitutional provisions, statutes and

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CITATIONS

Cases:

Diaz v. Weinberger, 361 F. Supp. 1, probable

jurisdiction noted, 416 U.S. 980 0.0... eee eeeee 8

Flemming v. Nestor, 363 U.S. 603 .0.......cccccccceceeseeeeees 7

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Graham v. Richardson, 403 U.S. 365 ..........2.ccceceeeees 8

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Harisiades v. Shaughnessy, 342 U.S. 580 ............... 7,10

Kleindienst v. Mandel, 408 U.S. 753 .0..........c0ccceceeeeees 9

Lewis-Mota v. Secretary of Labor, 469 F.2d 478 ..... 11

Mow Sun Wong v. Hampton, 500 F.2d 1031, cer-

tiorart gramted, 417 U.S. DO6 ....ccrcccsccccccevscovccscoccoses 8

Stanley v. Illinois, 405 U.S. 645 ......ccccceeccccceeseeeeeeeeeee 6

Sugarman v. Dougall, 413 U.S. 634 o....ceeecce cece ee 6,8

Texaco, Inc. v. Federal Power Commission,

PE UE UU. ccsitaanccticidetaebaiadbnnaninbedebastosighilintinnnbesiin 11

Constitution, statutes and regulation:

United States Constitution:

Article 1, Section 8, clause 4 ......... a ae tei Ae 2.9

a a ea dicecuauibuacebon 2

Act of October 3, 1965, Sec. 21(e), 79 Stat. ee Sanaa ae

Administrative Procedure Act, 5 U.S.C. 551,

et seq.:

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a i at co 3,5

Miscellaneous:

H.R. 981, 93d Cong., Ist Sess. (1973) ........:::cccceeeeeeees 9

—

Iu the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-1257

RODOLPHE NOEL, ET AL., PETITIONERS

Vv.

LEONARD H. CHAPMAN, COMMISSIONER OF THE

IMMIGRATION AND NATURALIZATION SERVICE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-16a)

is reported at 508 F.2d 1023. The opinion of the district

court (Pet. App. 17a-28a) is reported at 376 F. Supp. 1095.

JURISDICTION

The judgment of the court of appeals was entered on

January 3, 1975. The petition for a writ of certiorari was

filed on April 3, 1975. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

(1)

2

QUESTIONS PRESENTED

Aliens who are unlawfully in this country but who marry

permanent resident aliens-are eligible by statute to re-

ceive visas that will allow them to live in this country le-

gally. Another statute allows Eastern Hemisphere aliens

to receive such visas under a special preference. Western

Hemisphere aliens, however, must wait until a visa be-

comes available under the quota rules. It is the policy of

the Immigration and Naturalization Service that, in the

absence of exceptional circumstances, an illegal alien must

leave this country until a visa authorizing his return be-

comes available. The questions presented are:

1. Whether this policy denies petitioners equal pro-

tection of the laws.

2. Whether this policy is invalid because it was an-

nounced without notice and opportunity to comment.

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATION INVOLVED

Article I, Section 8, clause 4 of the United States Con-

stitution provides in relevant part:

The Congress shall have Power * * * To establish

an uniform Rule of Naturalization * * *.

The Fifth Amendment to the United States Constitution

provides in relevant part:

No person shall be * * * deprived of life, liberty,

or property, without due process of law * * *.

The relevant portions of the Administrative Procedure

Act are set out at Pet. 3-4.

Section 2l(e) of the Act of October 3, 1965, 79 Stat.

921, provides in relevant part with respect to immigrants

from the Western Hemisphere:

Kae dase eres ee.

3

* **the number of special immigrants [entitled

to admission for permanent residence], exlusive of

special immigrants who are immediate relatives of

United States citizens * * * shall not, [in any fiscal

year], exceed a total of 120,000.

8 U.S.C. 1254(e) provides in relevant part:

The Attorney General may, in his discretion, per-

mit any alien under deportation proceedings, other

than [enumerated classes of aliens], to depart volun-

tarily from the United States at his own expense in

lieu of deportation * * *.

8 C.F.R. 244.2 provides in relevant part:

Authority to extend the time within which to de-

part * * * is within the sole jurisdiction of the district

director.

STATEMENT

The facts are not in dispute and are set out ia the opin-

ion of the court of appeals (Pet. App. 2a-4a). Petitioners

Rodolphe Noel and Antoine Petit are natives and citizens

of Haiti. Noel was admitted to this country on May 24,

1969, as a non-immigrant visitor for pleasure and was au-

thorized to stay for two months. He remained illegally be-

yond the prescribed time and was apprehended on June 15,

1972. Deportation proceedings were commenced, and at a

hearing on June 27, 1972, Noel admitted that he was de-

portable and requested the privilege of voluntary departure

in lieu of deportation. He was given until September 27,

1972, to depart voluntarily. He again failed to leave. A

warrant of deportation was issued on July 12, 1973, and

Noel was directed to report on August 21, 1973, to be de-

ported. Instead of reporting, he requested an indefinite

extension of voluntary departure while awaiting issuance

of a visa in light of his marriage, on April 13, 1973, to peti-

tioner Emiris Noel, a permanent resident alien. The New

York district director of the Immigration and Naturaliza-

tion Service (the INS) denied the request.

LAC TAT IRE ALY ate SNE REE ALI LR OGY LINEN BERL LSLEU DRI LLE A) SALLE SEES ILE ENTE SRP

4

Petitioner Antoine Petit was admitted to the country on

August 4, 1970, as a visitor for pleasure for two months.

He did not depart as required and obtained employment in

violation of his non-immigrant status. He was apprehended

on June 7, 1973. He, too, conceded deportability and re-

quested voluntary departure. He was given until July 8,

1973, to depart. On June 26, 1973, he married petitioner

Yanick Petit, who had entered the United States a week

earlier as a permanent resident immigrant. He then re-

quested an extension of voluntary departure until a visa

became available. The district director denied the request

and required him to leave the country by July 27, 1973. He

did not leave, and on August 6, 1973, a warrant of de-

portation was issued.

On August 24, 1973, petitioners brought suit in the

United States District Court for the Southern District of

New York seeking a declaratory judgment that the policy

of INS declining to permit aliens to remain in this country

pending the issuance of a visa was unconstitutional. They

also sought a preliminary injunction to prohibit INS from

deporting any of them. The district court denied the motion

for a preliminary injunction (Pet. App. 17a-28a), and the

court of appeals affirmed (Pet. App. la-16a).' The court

considered and rejected the claims made here.

ARGUMENT

| Aliens, from whatever country of origin, who are

the parents, children or spouses of American citizens may

enter this country without prior labor certification or nu-

merical limitation. 8 U.S.C. 1151(a), (b) and 1182(a)(14).

Similarly, aliens who are the parents, children or spouses

'Petitioners appealed from an order denying a preliminary injunc-

tion. The court of appeals concluded, however, that the district court’s

decision on the underlying legal and constitutional issues was final.

It therefore treated petitioners’ claims on the merits.

5

of resident aliens, and who are not from the Western Hemis-

phere, are exempt from the labor certification require-

ment (8 U.S.C. 1182(a)(14)) and, although they are sub-

ject to a quota limit of 170,000, they receive a special right

of preference over others seeking a visa within that yearly

quota limit (8 U.S.C. 1153(a)). As a result, they receive

visas very quickly. On the other hand, Western Hemisphere

aliens (such as petitioners) who are the immediate rela-

tives of permanent resident aliens, although exempt from

prior labor certification, are subject to the yearly numeri-

cal limit of 120,000 visas for permanent residence and en-

joy no right of preference over others seeking visas within

the same limit. Act of October 3, 1965, Sec. 21(e), 79 Stat.

921. We have been informed by INS that the current wait-

ing period for the issuance of visas to persons in this cate-

gory is approximately two years.

Since 1940 the Attorney General has had statutory dis-

cretion to permit the voluntary departure of deportable

aliens (8 U.S.C. 1254(e)). The authority to grant this

privilege and to set the date for departure has been dele-

gated to district directors (8 C.F.R. 244.2). The national

policy of INS has been that.deportable Western Hemis-

phere aliens must leave and wait abroad until they become

eligible for visas, even though married to a permanent

resident alien. The New York district, departing from this

rule, had in the past routinely granted “extended volun-

tary departure” pending availability of a visa.

The New York district’s practice reverted to the norm

in the summer of 1972 when INS informed all district

directors, including the New York district director, that as

of July 31, 1972, Western Hemisphere aliens should be

granted extended voluntary departure only if compelling

circumstances warranted the privilege.

6

This statement of policy was prompted by a letter to the

Commissioner of INS from Congressman Rodino, Chair-

man of the House Judiciary Committee, advising the Com-

missioner that evidence before the Subcommittee on

Immigration and Nationality indicated that the employ-

ment of illegal aliens in this country was unfavorably in-

fluencing the domestic job market, and that routinely per-

mitting deportable aliens to remain in the country pending

issuance of visas was not justifiable.2 On April 10, 1973,

again in response to a letter from Congressman Rodino

(Pet. App. 29a-30a), the INS provided that aliens present in

the United States and who had acquired the requisite family

status on or before April 10, 1973, would be allowed to

remain pending visa issuance in accordance with the earlier

New York practice. On the other hand, the policy was not

to be applied prospectively so as to act “as an invitation to

aliens to thereafter enter this country, acquire the speci-

fied relationship, and remain unlawfully” (Exh. K, p. 2,

Letter of Acting INS Commissioner Greene). Petitioners’

marriages took place on April 13, 1973, and June 26, 1973.

- 2. Petitioners’ primary contention (Pet. 10) is that the

policy requiring aliens from the Western Hemisphere who

are illegally in this country to depart until visas become

available to them cannot withstand the “close judicial

scrutiny” to which classifications based on alienage are

subject (Sugarman v. Dougall, 413 U.S. 634), and violates

the “fundamental right” of the family to remain intact

(Stanley v. Illinois, 405 U.S. 645). These arguments are

insubstantial.

2This letter is reprinted as an Appendix, infra.

7

The power of Congress to fix, and of the executive to

enforce, “the conditions under which aliens are to be per-

mitted to enter and remain in this country” is plenary

(Flemming v. Nestor, 363 U.S. 603, 616; Galvan v. Press,

347 U.S. 522, 531), so much so that this power is “largely

immune from judicial inquiry or interference.” Harisiades

v. Shaughnessy, 342 U.S. 580, 589. Yet here, the source of

petitioners’ complaint lies with acts of Congress. Congress

determined that aliens married to citizens are entitled to a

preference; Congress decided that Eastern Hemisphere

aliens married to permanent resident aliens are entitled to

a preference; Congress decided that Western Hemisphere

aliens married to permanent resident aliens are not en-

titled to a preference. We do not think it open to doubt

that Congress has the power to make such decisions.

The INS policy of which petitioners complain is a policy

putting aliens who are illegally in this country on a footing

similar to that of aliens who have not yet arrived; that is,

the INS requires aliens to live up to the limitations on the

visas by which they initially entered this country and to

leave when their permitted stay has expired. As the court

of appeals observed (Pet. App. 13a):

* * * ranting the relief sought would place Noel

and Petit in a position of precedence over those West-

ern Hemisphere aliens who have made application for

visas in regular course and who are awaiting their

turn for admission. There is no reason to prefer those

who have flouted the immigration laws, which per-

mitted their entry for a limited time and purpose,

over those who have steadfastly and patiently fol-

lowed legal procedures.

Petitioners have demanded, in effect, that the INS

administratively provide the immigration preference

that Congress has withheld. The INS has declined to pro-

vide such a preference to deportable aliens in petitioners’

8

position and has required such aliens io await their turn in

order of preference before they can take up legitimate

residence in this country. Nothing in the Constitution

precludes the INS from implementing the statutes in this

manner.

Petitioners argue that the INS policy is unconstitutional

because alienage is a “suspect” classification. But this

argument fails to take account of the nature of the policy

under attack. The cases cited by petitioners* deal with

discrimination against aliens lawfully admitted for per-

31t is, therefore, not necessary to explore petitioners’ contention

that the INS policy is irrational and not supported by compelling in-

terests. The government argued in the district court and the court of

appeals that the policy requiring deportable aliens to leave the country

until they could obtain a visa was justified by the exigencies of the

domestic labor market; the courts below agreed (See Pet. App. 12a).

But the more fundamental justification for the INS policy is that it

simply implements the policy of Congress; petitioners are complain-

ing that the INS must advance some compelling interest not to relieve

them of burdens placed upon them by Congress. We submit that an

administrative agency is not required to provide reasons, compelling

or otherwise, for declining to provide discretionary relief from con-

gressional policy. Aine

_ 4Graham v. Richardson, 403 U.S. 365; Sugarman v. Dougall, supra;

and In re Griffiths, 413 U.S. 717, upon which petitioners rely in de-

manding close judicial scrutiny of INS’ policy, involved state classi-

fications based on alienage. But federal power to act in respect to

aliens is plenary, and the proposition that alienage is a “suspect”

category as to federal legislative or executive action is inaccurate.

Nor do Mow Sun Wong v. Hampton, 500 F.2d 1031 (C.A. 9), cer-

tiorari granted, 417 U.S. 944, restored to the calendar for reargument,

March 3, 1975, and Diaz v. Weinberger, 361 F. Supp. | (S.D. Fla.),

probable jurisdiction noted, 416 U.S. 980, restored to the calendar for

reargument, March 3, 1975, support petitioners’ claim. We believe that

those cases were incorrectly decided. Whether or not they were cor-

rectly decided, however, they go no further, as the court of appeals

noted (Pet. App. 8a, n. 3), “than to declare that the federal and state

governments cannot treat aliens legally residing in this country dif-

ferently from citizens with regard to certain rights or privileges.”

Neither case can be controlling in regard to the power of the executive

branch to deal—even at the cost of hardship to lawful residents—with

aliens who are by their own admissions deportable.

9

manent residence; here, by contrast, there is discrimination

among groups of individuals, a// of whom are aliens. The

policy differentiates among aliens, but does not discrim-

inate against them. Congress’ power to decide which

aliens shall enter or remain in the country, individually and

as groups, is undisputed and has been reaffirmed recently

by this Court. Kleindienst v. Mandel, 408 U.S. 753. Peti-

tioners, far from being lawfully admitted permanent resi-

dents, are by their own concessions deportable; they can

hardly complain that Congress has used alienage as a

category in carrying out its powers under Article I, Section

8, clause 4 of the Constitution to establish rules for the ad-

mission and exclusion of aliens to this country.‘

Nor are petitioners correct in arguing (Pet. 10) that the

INS has burdened the “fundamental right” of marriage.

Neither INS nor Congress has imposed burdens upon mar-

riage. The government has said no more than that aliens

unlawfully within the country—whether married or not—

are subject to deportation. Congress and the INS have de-

clined to allow marriage to produce a benefit unavailable

to unmarried aliens unlawfully within the country. The

Constitution does not demand that marriage be the source

of preferential treatment.®

‘Petitioners refer (Pet. 7) to H.R. 981, 93d Cong., Ist Sess. (1973),

which would have granted preferences in the award of immigrant visas

to immediate family members of both citizens and lawful resident

aliens, and would thus eliminate the long wait for immigrant visas by

Western Hemisphere aliens. No corresponding bill was introduced in

the Senate in the 93d Congress, nor has any been introduced in the

Senate in the 94th Congress.

*Indeed, marriage is a source of preferential treatment for peti-

tioners because Western Hemisphere aliens married to permanent

resident aliens are exempt from the labor certification requirements.

Petitioners’ complaint is that Congress and the INS did not provide

the additional benefit of preference within the quota (or even exemp-

tion from the quota).

Pistia si PEER NG SER FO AINA LUS? LIM SOE SARA IER EER IPE LE MOEN R(T IS EARNERS HE DIRS HEE: OT BIE RRS

10

3. Petitioners contend that the INS policy is invalid

because it was announced without use of the notice and

comment rulemaking provisions of the Administrative

Procedure Act, 5 U.S.C. 553. Even if Section 553 is

applicable to INS,’ Section 701(a)(2) of the Act exempts

from judicial review agency action that is committed to

agency discretion by law. Here, 8 U.S.C. 1254(e) explicitly

commits to the discretion of the Attorney General the au-

thority to grant voluntary departure. While, as the court

of appeals noted (Pet. App. 13a-14a), the district courts

have jurisdiction to review exercises of INS discretion to de-

termine Mhether they are arbitrary or capricious, the

basis of that jurisdiction is contained in the Immigration

Act (8 U.S.C. 1329), not in the Administrative Procedure

Act.

At all events, Section 553(b)(3)(A) of the Administra-

tive Procedure Act exempts “general statements of policy”

from the notice requirements of Section 553. Both lower

courts correctly held that the July 31, 1972, policy and the

April 10, 1973, modification are within the statutory ex-

ception for general policy statements. The court of ap-

peals reasoned (Pet. App. 15a):

In the first place, the regulation governing the issue

of extensions of time to depart which is here rele-

vant explicitly provides that the “[aJuthority to ex-

tend the time within which to depart... is within .

the sole jurisdiction of the district director.” 8 C.F.R.

§244.2. The “instructions” complained of in this case

do not purport to amend the published regulation or

7Section 553 does not apply “to the extent that there is involved

***a4 military or foreign affairs function of the United States”

(5 U.S.C. 55aX(1)). As this Court has repeatedly observed, federal

“[p]olicies pertaining to the entry of aliens and their right to remain

here are peculiarly concerned with the practical conduct of govern-

ment” (Galvan v. Press, supra, 347 U.S. at 531), for such policies are

“vitally and intricately interwoven with contemporaneous policies in

regard to the conduct of foreign relations, the war power, and the

maintenance of a republican form of government” (Harisiades v.

Shaughnessy, supra, 342 U.S. at 588-589).

11

to oust the District Director of his “sole” discretion.

In fact, the District Director of New York was the

only INS officer who “routinely” extended the stay in

the case of an alien married to a resident alien; the

practice in the rest of the country was otherwise. We

construe the instruction to be simply a statement by

the agency of its general policy as a guideiine for the

District Directors. * * * One scholar has suggested

that “[iJt may be that ‘general statements of policy’

are rules directed primarily at the staff of an agency

describing how it will conduct agency discretionary

functions, while other rules are directed primarily at

the public in an effort to impose obligations on them.”

Bonfield, Some Tentative Thoughts on Public Partici-

pation in the Making of Interpretative Rules and Gen-

eral Statements of Policy under the APA, 23 Admin.

L. Rev. 101, 115 (1970-71).

Finally, as both courts below found, the change in policy

affected no “existing rights and obligations” of peti-

tioners and therefore was not open to challenge by them.

Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 482 (C.A.

2); Texaco, Inc. v. Federal Power Commission, 412 F.2d

740, 744 (C.A. 3). Petitioners’ claim that they had “pre-

existing expectations which were extinguished by admin-

istrative fiat” (Pet. 16) rings hollow in light of the fact that

they were not married at the time either of the policy

change or of its subsequent limited relaxation.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be denied.

RoBERT H. Bork,

Solicitor General.

JOHN C. KEENEY,

Acting Assistant Attorney General.

SHIRLEY BAccus-LOBEL,

MICHAEL W. FARRELL,

Attorneys.

JUNE 1975. DOJ-1975-06

12

APPENDIX

U.S. HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

WASHINGTON, D.C. 20515

June 27, 1972

Honorable Raymond F. Farrell, Commissioner

Immigration and Naturalization Service

Department of Justice

119 D Street, N.E.

Washington, D.C. 20536

Dear Mr. Commissioner:

Hearings conducted by this Subcommittee over the past

year in the field of immigration law enforcement have

pointed up the unfavorable influence which employment

by illegal aliens is having on the domestic job market.

This is, of course, particularly evident in those areas of

the United States having a high rate of unemployment

among Americans.

With this in mind, the Subcommittee believes that the

Service practice of routinely permitting alien professionals

and certain natives of the Western Hemisphere to remain

in the United States until their visa priority dates are

reached is no longer justifiable. These non-resident aliens

and their dependents are competing for jobs when un-

employed residents of the United States, and their numbers

should not be allowed to increase further. The Subcom-

mittee therefore recommends that this practice be ter-

minated immediately, but that those aliens who have al-

ready been granted permission to remain pending visa

availability be allowed to stay if they maintain the quali-

fications on which the privilege was given originally. —

13

The Subcommittee is of the opinion that existing provisions

of the Immigration and Nationality Act, particularly sec-

tion 101(a) 15) H)(i), are sufficient to provide for the ad-

mission of professionals to the United States to fill those

positions which cannot be filled by United States resi-

dents.

Kindest regards.

Sincerely,

Peter W. Rodino, Jr.

Chairman