# Opinion — Reid v. INS > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0390%3A7 ## Record - **Collection:** Supreme Court brief - **Document type:** Opinion - **Published:** January 1, 1975 - **Citation:** 420 U.S. 619 ## Text : he . - 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0390%3A7. Public record. Not legal advice.