343 F.2d 466 (2nd Cir. 1965), 358, Hitai v. Immigration and Naturalization Service

Docket Nº:358, 29176.
Citation:343 F.2d 466
Party Name:Isao HITAI, also known as Mario Isao Hitai, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:March 29, 1965
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 466

343 F.2d 466 (2nd Cir. 1965)

Isao HITAI, also known as Mario Isao Hitai, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 358, 29176.

United States Court of Appeals, Second Circuit.

March 29, 1965

Argued March 5, 1965.

Francis L. Giordano, Brooklyn, N.Y., for petitioner.

James G. Greilsheimer, Sp. Asst. U.S. Atty., New York City (Robert M. Morgenthau, U.S. Atty. for Southern Dist. of New York, and Francis, J. Lyons, Sp. Asst. U.S. Atty., New York City, of counsel), for respondent.

Before MOORE, KAUFMAN and HAYS, Circuit Judges.

HAYS, Circuit Judge.

Petitioner, a citizen of Brazil, was born in Brazil. His father, who is now dead, was a Brazilian citizen as is his mother who is still living. Both parents were, as the special inquiry officer found, 'natives of Japan of the Japanese or Asiatic race.'

Petitioner entered this country as a temporary visitor for pleasure on January 25, 1964, with permission to remain in that status until June 30, 1964.

In May 1964 the Immigration and Naturalization Service commenced deportation proceedings charging petitioner with having violated the terms of his permission to enter as a visitor by working as a hospital porter. At the hearing held pursuant to Section 242(b) of the Immigration

Page 467

and Nationality Act 1 petitioner admitted that he had worked full time since February 17. The special inquiry officer found him deportable. Petitioner then applied for adjustment from the status of a 'bona fide nonimmigrant' to that of 'an alien lawfully admitted for permanent residence' under Section 245(a) of the Act. 2 The special inquiry officer denied the application on the ground that petitioner did not meet the requirement of Section 245(a) that 'the alien (be) * * * eligible to receive an immigrant visa.' Although as an 'immigrant who was born in * * * an independent country of Central or South America,' petitioner would otherwise be classified as a 'nonquota immigrant,' 3 the special inquiry officer assigned petitioner to the quota area for Japan because of Section 202(b)(4) of the Act. Under the terms of that section an

'immigrant born outside the Asia-Pacific triangle (defined by geographic boundaries including Japan) who is attributable by as much as one-half of his ancestry to a people or peoples indigenous to not more than one separate quota area, situate wholly...

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