Opinion — Reid v. INS

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. - REID v. INS

and Scott were therefore “excludable” at the time of

their entry within the meaning of § 241 (a)(1).

Section 211 of the Act of 1952, 66 Stat. 181-182, is

entitled “Documentary Requirements.” Section 212 of

the same Act, 66 Stat. 182-188, is entitled “General

Classes of Aliens Ineligible to Receive Visas and Exeluded -

from Admission.” INS could clearly have proceeded

against either Scott or Errico under § 212 (a)(19), on

the basis of their procuring a visa or other documentation

by fraud or misrepresentation. . Just as clearly Scott and

Errico could have then asserted thcir claim to the benefit

of $241 (f), waiving deportation based upon fraud for

aliens who had given birth to children after their entry

and who were otherwise admissible. Instead the INS

relied on the provisions of § 211*(a), which deal with the

general subject of the necessary documentation for admis-

sion of immigrants, rather than with the general subject

of exeludable aliens. Rather than questioning whether

a failure to comply with $211 (a)(3) or (4) by itself

rendered an alien “excludable” as that term is used in

$ 241 (a)(1), the Court in Errico implicitly treated it as —

doing so and went-on to hold that § 241 (f) “saves from

deportation an alien who misrepresents his status for the

purpose of evading quota restrictions, if he has the necés-

sary familial relationship to a United States citizen or

lawful permanent resident.” JNS vy. Err'co, 385 Ux S.

214, 215.

Errico was decided. by a divided Court over a strong

dissenting opinion. Even the most expansive view of

is holding could not avail these petitioners, since § 241(f)

which it construed applies by its terms only to. “the

deportation of aliens within the United States on the

ground that they were excludable at the time of entry.”

Here, as we have noted, INS seeks to deport petitioners

not under the provisions of $241 (a)(1). relating to

aliens excludable at the time of entry, but instead under

\

KEID v. INS : 9

the provisions of § 241 (a)(2). relating to aliens who do

not present themselves for inspection. Yet there is no

doubt that_the broad language used in some portions of

the Court’s opinion in Errico. has led one Court of

Appeals to apply the provisions of § 241 (f) to a case ~

indistinguishable from petitioners’, Lee Fook Chuey v.

INS, supra, and to decisions of other Courts of Appeals

in related areas which may be summarized in the lan-

guage of Lady MacBeth, “C onfusion 1 now hath made his

masterpiece.”

Aliens entering the United States under temporary

visitor permits, wino acquire one of the specified familia!

relationships described in § 241 (f) after entry, have

argued with varying resylts that their fraudulent intent

upon entry to remain in this country permanently cloaks

them with immunity from deportation even though they

overstayed their visitors’ permit. Aeceptance of this

theory leads to the conclusion that § 241 (f) waives a

substantive ground for deportation based on overstay if

the alien can affirmatively prove his fraudulent intent at

the time of entry, but grants no relief to aliens with

exactly the same familial relationship who are unable to

satisfactorily establish. their dishonesty. See Cabuco-

Flores v. — , 477 F. 2d 108 (CA9 1973), cert, denied,

414 U. S841: ef. Jolley v. INS, 441 F. 2d 1245 (CA5

1971). babs at such an irrational result, one court

has gone so far as te declare that § 241 (f) waives deport-

ability under § 241 (a)(1) even though no fraud is in-

*For an exemple of the differing results within one circuit, see

Muslemi vo INS, 408 F. 2d 1196 (CA9 1969); Vitales v. INS, 443 F.

2d 348 (CAQ 1972); vacated as moot, 405 U.S. 983 (1973); Cabuco-

Flores vo INS, 477 F.2d 108 (CA9), cert. ‘eae 414 U.S. 841

(1973). Other circuits have generally held § 241 (f) not available

on similar taets. De Vargas v. INS, 409. F. 2d 335 (CAS 1968);

Ferrante v INS, 399 F. 2d 98 (CA6 1968); Milande v. INS; 484 F.

2d 774 (CAT 1973); Prucz v. INS, 484 F. 2d 396 (CA10 1973).

10 REID v. INS

volved if the alien is able merely to establish the requisite

familial tie. Jn re Yuen Lan Hom, 289 F. Supp. 204

(SDNY 1968).

“Nor has there been agreement among those courts

which have construed § 241 (f) to waive substantive

grounds for deportation under § 212 other than the fraud

delineated in § 212 ¢(a)(19) as to which other grounds

are waived. While some courts have found that § 241

(f) waives any deportation charge to which fraud is

“germane” ° others have found it waives ‘ quantitative”

but not “qualitative” grounds where its requirements are

met.’ Still others have required that “but for’ the mis-

representation, the alien meet the substantive require-

-ments of the Act‘ while at least one court has discerned

in Errico a test requiring that the aliens’ fraudulent

statement be taken as true, with determination on such

hypothetical facts whether the aliéh would be deportable.

Cabuco-Flores v. INS, supra, at 110.

We do not believe that § 241 (f) as interpreted by

Errico requires such results. We adhere to the holding

of that case, which we take to be that where the INS

chooses not to seek deportation under the obviously avail-

able provisions of § 212 (a)(19) relating to the fraudulent

procurernent of visas, documentation, or entry, but in-

stead asserts a failure to ‘tgs with these separate re-

* See Vuslemiv. INS, supra. at 1199,

® See, e. g.. Godoy v. Rosenberg, 415 F. 2d 1266 (CA9 1969);

Jolley v. INS, 441 F. 2d 1245 (CA5 1971). It is of course difficult

to determine which grounds for. exclusion fit which characterization.

Arguably for example the failure to obtain the required certification

by the Secretary of Labor dealt with in Godoy v. Rosenberg, supra,

could as easily have been characterized as “qualitative.” The

Ninth Circuit in Lee Fook Chuey, 439 F. 2d 244, 246 (CA9 1971),

found evasion of inspection a “quantitative” ground while the Third

Circuit in Bufalino v. INS, supra, at 731, found it a “qualitative”

* grounds not subject to § 241 (f) waiver.

7 See, e. g., Loos v. INS, 407 F, 2d 651 (CA7 1969).

-

REID v. INS. 1]

quirements of § 211 (a), dealing with compliance with

quota requirements, as a ground for deportation under

$ 241 (a)(1), $ 241 (f) waives the fraud on the part of

the alien in showing compliance with the provisions of

$211 (a). In view of the language of § 241 (f) and the

cognate provisions of § 212 (a)(19), we do not believe

Errico’s holding may properly be read to extend the

waiver provisions of § 241 (f) to any of the grounds of

excludability specified in $212 (a) other than subsec-

tion 19. This conclusion, by extending the waiver pro-

vision of $241 (f) not only to deportation based on

excludability under § 212 (a)(19), but to a claim of de-

portability based on fraudulent misrepresentation in order

to satisfy the requirements of § 211 (a), gives due weight

to the concern expressed in Errico that the provisions of

€ 241 (f) were intended to apply to some misrepresenta-

tions that were material to the admissions procedure. It

likewise gives weight to our belief that Congress, in enact-

ing § 24! (f), was intent upon granting relief to limited

classes of aliens whose fraud was of such a nature that

it was more than counterbalanced by after-acquired fam-

ily ties: * it did not intend to arm the dishonest alien

* The legislative history of this provision, designed primarily to

prevent the deportation of refugees from totalitarian nations for

harmless misrepresentations mide solely to escape persecution, is

fully consistent with our interpetation of the provision. See H. Conf.

Rep. No. 2096, S2d Cong.. 2d Segs., p. 128: EH. Doe. No. 329, 84th

Cong., 2d Sess., p. 5: H. Doe, No. 85, 85th Cong., Ist Sessgp. 5;

H. R. Rep. No. 1199. 85th Cong., Ist Sess., p. 10; 103 Cogg. Rec.

15487-15499, 16298-16310; H. R. Rep. No. 1086, 87th Cong., Ist

Sess., pp. 37-38. The predecessor of current $241 (f), $7, of the

Immigration Act of 1957, Pub. L. 85-316, 71 Stat. 640, was con-

sistently described during debate by its supporters as making minor

adjustments in the immigration. and naturalization system. Con-

gressman Celle, a sponsor of the pill enacting §7, summarized it

during House debate in these words:

“fAfter summary of non-related provision of §7] This section also

|R REID + ENS

seeking admission to our country with a sword by which

Fhe could avoid the numerous substantive grounds for

exelusion unrelated to traud, which are set forth in

$212 ¢a) of the Immigration and Naturalization Act.

The judgment of the Court of Appeals is

Affirmed.

Mr. Justice DovGias took no part in the consideration

ov decision of chis case.

provides for lemeney in the consideration of visa applications made

by close relatives of Umited States citizens and aliens lawfully

admitted for permanent residence who in the pest may have pro-

cured documentation for entry by misrepresentation.” 103 Cong.

Ree. 16301.

* a

SUPREME COURT OF THE UNITED STATES

No. 73-1541

Robert Reid and Nadia Alice}

Reid, Petitioners,

° v.

On Writ of Certiorari to

the United States Court

of Appeals for the Sec-

Immigration and Naturaliza-| (1.4 Cireuit.

‘tion Service.

| March 18, 1975}

Mr. Justice BRENNAN. with whom Mx. Justice Mar-

SHALL Joins, dissenting.

In Immigration and Naturalization Service vy. Errico,

385 U. S. 214 (1966), respondent evaded quota restric-

tions by falsely claiming to be a skilled mechanic. Once

in this country, he became the parent of a United

States citizen. We found FErrico’s deportation barred by

$ 241 (f) of the Immigration and Nationality Act. In

the instant case, petitioners evaded quota restrictions by

falsely claiming United States citizenship. After settling

here, they too became parents of United States citizens.

Yet the Court today finds that § 241 (f) is no bar to their

deportation. Because I find no material difference be-

tween the instant ease and Errico, I dissent.

Section 241 (f) of the Immigration and Nationality

Act provides:

“The provisions of this section relating to the de-

portation of aliens within the United States on the

ground that they were excludable at the time of

entry as aliens who have sought to procure, or have

procured visas or other documentation, 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

2 -REID v. INS

child of a United States citizen or of an alien law-

fully admitted for permanent residence.”

In Frrico, supra, after a full review of the statute and

its legislative nistory, the Court concluded that § 241 (f)

was intended “not to sequire that aliens who. are

close relatives of United States citizens have complied

with quota restrictions to escape deportation for their

fraud....” J/d., at 223. This conclusion was necessary

“to give meaning to the statute in light of its humani- -

tarian purpose of preventing the breaking up of families

composed in part at least of American citizens. .

Td., at 225.

Thus Errico governs the instant case. The Court,

however, distinguishes Errico on the ground that there

deportation proceedings were based on § 211 (a) (4) of the

Act. which deals with quota requirements, whereas here

deportation is based on § 241 (a)(2). which deals with

inspection requirements. This distinction is grounded

on the arguraent that $241 (f) tracks $ 212 (a)(19),

which deals with excludable aliens, and Errieco was such

an alien. ‘ But petiticners in the instant case were also

excludable under § 212 (a)(19). since thev sought “to

enter the United States. by fraud.” Indeed the Court's

entire approach was explicitly rejected in Errico itself:

“At the outset it should be noted that even the

Government agrees that $ 241 (f) cannot be applied

with strict literaliess. Literally, § 241 (f) applies

only when the alien is charged with entering in vio-

lation of §$212(a)(19) of the statute, which ex-

cludes from entry ‘[a]ny alien who... has procured

a visa or other documentation .. . by fraud, or by

willfully misrepresenting a material fact.’ Under

this interpretation, an alien who entered by fraud

could be deported for having entered with a defec-

tive visa or for other documentary irregularities even

REID v. INS 3

if he would have been admissible if he had not com-

mitted the fraud. The Government concedes that

such an interpretation would be inconsistent with

the manifest purpose of the section, and the admin-

istrative authorities have consistently held that

§ 241 (f) waixes any deportation charge that results

directly on Nevers preneutation regardless of the

section of the statute ander which the charge was

brought, provided that the alien was ‘otherwise ad-

missible at the time of entry.” Errico, supra, at 217

(emphasis added;. footnote omitted).

Even if statutory language is unclear any doubt should

be resolved in. favor of the alien since “deportation is a

drastic measure and at times the equivalent of banish-

ment or exile.” Fong Haw Tan v. Phelan, 333 U. S. 6,

10 (1948). See also Barber v. Gonzales, 347 U. S. 637,

642-643 (1954); Immigration and Naturalization Service

v. Errico, supra, at 225. Today the Court strains to

construe statutory language against the alien.

The Government contends that if petitioners were to

succeed in this case, “the sky would fall in on the Immi-

gration and Naturalization Service.’ Apart from the

lack of credible support for this dire prediction,’ if the

1Tr. of Oral Arg., at 44.

>The Government contends that:

“An alien who enters as an immigrant submits himself to the

investigations required for the issuance of an immigration visa, and

to the supplementary inspection at the port of entry. Records of

these investigations are available when a claim of eligibility for

waiver under Section 241 (f) is subsequently made. They provide

the Immigration Service with a substantial basis for determining

later, when the waiver is sought, whether the alien was ‘otherwise

admissible at the time of entry’ and thus entitled to the waiver.

“In contrast, there is no contemporaneous investigation of an alien

who enters on .. fslse claim of citizenship; there is unlikely even to

be any record of such entry. It weald therefore be extremely diffi-

cult, if not impossible, to determine whether such an alien was ‘other-

4 REID vo INS

linmigration and Nationality Aet is indeed unworkable,

‘the remedy is for Congress to amend it, not for this Court

to distort its language and the cases construing it.

wise admissible at the time of entry.’” Brief for the United States,

at 10-11.

This argument, however, overrates the effectiveness of the immi-

grant visa system. The Fifth and the Ninth Circuits, in decisions

conflicting with the opinion below, have found that the visa system

provides no basis for the distinction the Government urges:

“Almost invariably, by the time that the relief provision of 241 (f)

is invoked, the integrity of the immigrant visa svstem has been long

violated. Section 241 (f) deals with the problem after the breach

has occurred. .. . For example, when the alien misrepresents his

identity during the visa process, the information elicited {fom him

is often valueless. When the fraud is discovered, the information

derived from the visa process which was tainted by the misrepresen-

tation, may be useless or have little or no bearing upon the ultimate

disposition of the case.” Lee Fook Chuey v. Immigration and

Naturalization Service, 439 F. 2d 244, 250, 251 (CA9 1970).

“Lies concerning identity, occ ipation, and country of origin may

well render the initial immigration investigation either as worthless

as no investigation at all. or as difficult and fruitless as a later

§ 241 (f) inquiry.” Gonzales de Moreno v. Immigration and Natu-

ralization Service, 492 F. 2d 532, 5387 (CA5 1974).

As the Ninth Cireuit held, the very essence of FErrico was that

“(when § 241 (f) is invoked, the immigration processing system has

already proved ineffective. Congress made the wholly reasonable

choice that the interest in family unity outweighs the deterrent

effects of a more draconian policy.” Lee Fook Chuey, supra, at 251.