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Although we disapprove of the receipt in evidence of opinions of the Department of State with respect to the probable persecution of the particular alien (except, of course, when he consents), we think it would be helpful if the INS would furnish the Department with the names of aliens whose § 243(h) applications have been denied and if the Department would endeavor to follow up on what occurred. This would help to make the Departments analyses of

conditions in various countries current and realistic. Marijuana Conviction

The Supreme Court denied certiorarion October 12, 1976, in Kolios v. Immigration and Naturalization Service, No. 75-1685(45 U.S. Law Week 3274). It thus left standing the ruling below (CA 1, 19 Cr. L 2111) that despite a Texas court order setting aside his marijuana conviction, a Greek national who had pleaded guilty in a Texas court to selling marijuana was still subject to the Immigration and Nationality Act provision (8 U.S.C. 1251(a) (11)) requiring deportation of aliens convicted of illegal possession of or traffic in narcotics or marijuana. The alien in question had been placed on probation and after he had fulfilled the conditions of his probation, the State court set aside the conviction pursuant to State procedure regarding probation. The alien sought Supreme Court review on the ground that the setting aside of the conviction removed the basis for the deportation order. War Crimes

The Department of Justice announced on October 13, 1976, that the Immigration and Naturalization Service had served orders to show cause and notice of hearings on three permanent resident aliens in the United States who were accused of participating in war crimes in Eastern Europe during World War II. The notices directed them to report for hearings before an immigration judge on November 15, 1976, and to show cause why they should not be deported from the United States.

The aliens on whom papers were served were two Latvians and a Lithuanian. The Latvians were charged with obtaining immigrant visas through fraud or misrepresentation, with having lied about their activities during World War II, and with having falsely sworn when they obtained immigrant visas that they had not participated in the persecution of anyone because of race, religion, or national origin. They had entered as displaced persons under a law passed June 25, 1948. The Lithuanian was charged with having been ineligible to enter the United States because of wartime activities. He entered the United States under the general provisions of the immigration law in effect in 1947 and was not required under that law to swear that he had not participated in persecution. All three were alleged to have participated in the selection of Jews for execution and in assaults on Jews.

Dept. of Justice Press Release, INS, Oct. 13, 1976. Political Asylum Claims

In Daniel v. U.S. Immigration and Naturalization Service, 528 F.2d 1278 (1976), the U.S. Court of Appeals for the Fifth Circuit, on March 22, 1976, denied a petition for review of an order of deportation of a number of Haitian nationals who entered the country surreptitiously and sought to avoid deportation by claiming political asylum. The Court held that the immigration judges' consideration, in the deportation proceedings, of Department of State opinions that the aliens had not established valid claims to political asylum was not manifest error, and since the aliens did not raise that objection at the hearings, any objection was waived.

The Court ruled that the burden of proof rested on the petitioners to prove the probability of persecution upon which they attempted to base their request for relief under section 243(h) of the Immigration and Nationality Act (8 U.S.C. 243(h) ). That section authorizes the Attorney General to withhold deportation if, in his opinion, the alien would be subject to persecution on account of race, religion, or political opinion. The Haitian nationals had expressly chosen not to testify in their own behalf at the hearings and relied on earlier written statements which the immigration judges weighed along with other evidence, including the State Department opinions. The Court found that a fair and reasonable assessment of the record failed to disclose that the Immigration and Naturalization Service's denial of aliens' political asylum claims was arbitrary, capricious or an abuse of discretion.

Entry without Valid Visa

In Escobar Ordonez v. Immigration and Naturalization Service, 526 F.2d 969 (1976), the U.S. Court of Appeals for the Fifth Circuit held, on February 6, 1976, that where an alien was found deportable under section 212(a) (20) of the Immigration and Nationality Act (8 U.S.C. 1182(a) (2)) for having entered the United States without a valid visa, the forgiveness clause of the Act was not available to allow reopening of deportation proceedings, even though the companion ground of fraud, on which the alien was also found deportable, would have permitted reopening. The forgiveness clause in section 241(f) of the Act (8 U.S.C. 1251(f)) excludes from deportability, on grounds of procuring a visa or entry into the United States by fraud or misrepresentation, an alien otherwise admissible at time of entry who is the spouse, parent, or child of a U.S. citizen or of an alien lawfully admitted for permanent residence.

The Court said that in Reid v. Immigration and Naturalization Service, 420 U.S. 619 (1975) (see the 1975 Digest, p. 141), the Supreme Court had held, with one minor exception, that the forgiveness clause was only applicable where 8 U.S.C. 1182(a)(19) (fraud) is the ground for excludability. The Court of Appeals referred also to its own decision in Castro Guerrero v.INS, 515 F.2d 615 (1975), interpreting Reid to require that 8 U.S.C. 1182(a) (20) (invalid visa) could not be a ground that would allow use of the forgiveness section. It rejected plaintiff's attempt to distinguish his fact situation from both Reid and Castro in that he was found excludable under both subsection (19) (fraud), which is reviewable under the forgiveness section and subsection (20) (invalid visa), which is not reviewable under the section. Such an attempted distinction, said the Court, is without a difference.

Prolonged Delay

The U.S. Court of Appeals for the Fifth Circuit, in Paul v. Immigration and Naturalization Service, 529 F.2d 1278(1976), held on February 2, 1976, that a lengthy delay in resolving the question of an alien's deportability, where the government was at least partly to blame, warranted remanding his application for voluntary departure to the Board of Immigration Appeals. Further, the Court held it would be appropriate for the Board to reconsider petitioner's application for relief under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. 1253 (h), pertaining to the Attorney General's withholding deportation to any country in which the alien would be subject to persecution on account of race, religion, or political opinion.

The Court stated, in part:

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we are . . . aware that relief under $ 243(h) is intimately linked to the vagaries of evolving circumstances and that a decision made several years ago might not be consonant with contemporary realities. . . . However, the burden should be on petitioner to show that there has, in fact, been a change in circumstances, and the

hearing should be limited to that issue. Consul's Failure to Follow Visa Regulations

In Corneil-Rodriguez v. I.N.S., 532 F.2d 301 (1976), the U.S. Court of Appeals for the Second Circuit held, on March 22, 1976, that the failure of the American consul in Santo Domingo in violation of Department of State regulations, 22 CFR 42.122(d), to warn a 19year-old alien that she would forfeit her exemption from a labor certification requirement for entry if she married before admission to the United States, precluded her deportation. Unaware of the requirement, the alien had married her childhood sweetheart three days before her departure from the Dominican Republic. Judge Irving R. Kaufman's opinion stated, in part:

It is, as Justice Cardozo stated long ago, a “fundamental and unquestioned” principle of our jurisprudence that“no one shall be permitted to take advantage of his own wrong." R. H. Stearns Co. v. United States, 291 U.S.54, 61-62 (1934). We are called upon to decide whether this venerable maxim should be invoked against the United States, to bar the deportation of a young and naive alien whose inadvertent violation of one subsection of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) was occasioned by the affirmative misconduct of American consular officers who failed to impart crucial information to her.

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We believe that basic notions of fairness must preclude the Government from taking advantage of the consul's dereliction, and that a contrary result would work a serious and manifest injustice. We therefore grant . . . petition for review and reverse the deportation order entered by the Board of Immigration Appeals.

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§ 4 Refugees; Asylum; Statelessness

Refugees Refugees from Indochina

On May 6, 1976, Attorney General Edward H. Levi, after consultation with appropriate congressional committees, and acting under his discretionary authority provided by section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d) (5)), authorized the parole into the United States of an additional 11,000 Indochina refugees. The Department of Justice announced that the authorization would complete the U.S. special program for Indochina refugees. It stated further that all of the adult refugees would require security clearances and that each family would require a sponsor in the United States before being permitted to enter. The Department described the refugees as consisting of about 2,000 principals and 9,000 members of their families, with the remainder consisting of former U.S. Government employees and others particularly vulnerable to persecution if they returned home. The majority were then in Thailand.

Dept. of Justice Press Release, INS, May 6, 1976.

An amendment to the Indochina Migration and Refugee Assistance Act of 1975 providing for the inclusion of refugees from Laos became effective on June 21, 1976 (P.L. 94-313; 90 Stat. 691; 22 U.S.C. 2601). The amendment makes Loatian refugees eligible for the same types of assistance as authorized for Cambodian and Vietnamese refugees by the 1975 Act(P.L. 94-23; 89 Stat. 87), under which the Federal Government provides funds for the transportation and resettlement of Cambodian and Vietnamese refugees and reimburses States for health care and educational expenses incurred for, and public assistance provided to, those refugees.

See S. Rept. 94-629 and H. Rept. 94-1191. For a summary of the 1975 Act, see the 1975 Digest, pp. 152-153.

The Indochina Refugee Children Assistance Act of 1976 was signed into law on September 10, 1976 (P.L. 94-405; 90 Stat. 1225; 20 U.S.C. 1211b note). Its principal purpose is to provide Federal financial assistance to States in order to assist local educational agencies to provide education to Vietnamese and Cambodian refugee children. It provides for the reimbursement to local education agencies of a basic cost-of-education grant plus a $300 per refugee

a child payment for supplementary educational services, over a twoyear period. Adult education programs for refugees are set forth in an amendment to the Adult Education Act (20 U.S.C. 1211b). Refugees from Cuba

The Department of Justice announced on September 16, 1976, that on the basis of a legal opinion of its Office of Legal Counsel, it had ruled that Cuban refugees in the United States may become permanent residents without having to wait for visa numbers to become available under immigration quotas. Previously, refugees in the United States in parole status had been required to compete with other persons in the Western Hemisphere for the 120,000 permanent residence visas issued annually. The announcement stated that the effective date of the permanent resident status for the refugees would be rolled back to the date they were paroled into the United States, with the maximum rollback being 30 months prior to the date they filed application.

Dept. of Justice News Release, INS, Sept. 16, 1976. The ruling permits Cuban refugees to become permanent residents outside of the 120,000 annual quota limit set by § 21(e) of the Act of Oct. 3, 1965 (79 Stat. 921). Refugees from South America

On October 27, 1976, the Immigration and Naturalization Service (INS) of the Department of Justice announced that the Attorney General had approved a request by the Department of State to parole into the United States up to 200 additional refugees and their families who were fleeing from persecution in South American countries. The refugees were natives of Chile, Uruguay, and Bolivia

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