Santiago v. Immigration & Naturalization Service
| Decision Date | 31 October 1975 |
| Docket Number | 73-2499,No. 73-2497,73-2498 and 73-2462.,73-2497 |
| Citation | 526 F.2d 488 |
| Parties | Raul Domingo SANTIAGO, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Benjamin PAGLINAWAN, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Vicente Ada CATAM, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Muhammad Aslam KHAN, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert S. Bixby (argued), of Fallon, Hargreaves, Bixby & McVey, San Francisco, Cal., for Muhammad Aslam Khan.
Donald L. Ungar (argued), of Phelan, Simmons & Ungar, San Francisco, Cal., for Santiago, Paglinawan and Catam.
Bernard Hornbach, Atty. (argued), of Immigration & Naturalization Service, San Francisco, Cal., for respondent.
Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, Circuit Judges.
These four cases present the question whether, on the particular facts of each, the action of an immigration officer in admitting an otherwise excludable alien estops the Government from asserting such excludability at entry as a basis for deportation. We hold estoppel to be unavailable in each case.
The petitioner in each case was granted an immigrant visa under 8 U.S.C. § 1153(a)(9) as the husband or child of a person entitled to a preference under the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(2), (4). The visa of each petitioner was valid only if he were "accompanying, or following to join, his spouse or parent." 8 U.S.C. § 1153(a)(9).1 Each petitioner traveled to the United States alone and was admitted by an immigration officer. Death or expiration of the visa of the spouse or parent who held the preference prevented the spouse or parent from later joining the petitioner in the United States.
After hearings, the INS determined that the petitioners were excludable at entry and, pursuant to 8 U.S.C. § 1251(a)(1),2 ordered them to voluntarily leave the country or be deported. The Board of Immigration Appeals dismissed their appeals and they thereafter petitioned for review in this court.3
In No. 73-2497, the wife of petitioner Santiago was entitled to a fourth preference visa as a married daughter of a United States citizen. 8 U.S.C. § 1153(a)(4). The American consul in Manila issued visas to Santiago and his wife at the same time but, because of financial difficulties, Santiago traveled to the United States alone with the intention of earning the money to pay for his wife's ticket. Santiago testified that the Honolulu immigration officer stamped his visa and wrote "P4-2" on it in pen, a code indicating that he held his visa because of the preferred status of a wife or parent. The officer nevertheless admitted Santiago without inquiring where his wife was. The record is unclear whether Santiago knew at that time that his visa was invalid because he was not accompanying or following his wife. Santiago worked for two years in San Francisco and saved the money to bring over his wife and children. By this time, however, his wife's visa had expired and he therefore petitioned for the admittance of his family as relatives of a lawfully admitted resident alien. 8 U.S.C. § 1153(a)(2). The legality of Santiago's own presence was then challenged.
The facts in Nos. 73-2498 and 73-2499 are similar to each other and those surrounding Santiago's entry. The wives of petitioners Catam and Paglinawan did not accompany them because of illness. Both petitioners were admitted by immigration officers at Honolulu without question. The record is unclear whether Catam knew that his visa was invalid. There is no evidence that Paglinawan had such knowledge.
In No. 73-2462, the father of petitioner Khan held a fifth preference visa as the brother of a United States citizen. 8 U.S.C. § 1153(a)(5). Petitioner Khan held a P5-3 visa as a child "accompanying, or following to join" his father. This visa was valid for only one month, expiring on Khan's twenty-first birthday. See 8 U.S.C. § 1101(b)(1). Because of this deadline, Khan left Pakistan before his father. The New York immigration officer inquired concerning Khan's father and learned that Khan was preceding his father to the United States. Despite this knowledge, the officer admitted Khan. While Khan had been en route his father had died. There is no evidence that Khan knew of his father's death prior to Khan's entry into the United States nor is there evidence suggesting that Khan knew that his entry was in violation of the "accompanying, or following to join" requirement.
Petitioners initially contend that the words "accompanying, or following to join" in 8 U.S.C. § 1153(a)(9) should be construed to also mean "preceding with the hope or expectation of being joined later." There is no authority for such a construction. The plain language of the statute is designed to assure that those aliens who derive their preference cannot exercise their right to enter until the person from whom they derive their preference has actually entered. Congress clearly intended to preserve family unity by this language and to permit the lawfully entering alien to either bring his family with him or to send for them later when he had the ability to do so. But there is nothing in this language to indicate that Congress ever intended that the grant of a preference to one alien would effectively work a grant of a like preference to the members of his family so that they might enter at whatever time they wished. If Congress had wished to equate derivative preferences with actual preferences the words "accompanying, or following to join" would be absent from this statute.
In asserting that the Government should be estopped from asserting their excludability at entry as a basis for deportation, each petitioner alleges that he was unfairly misled into the belief that his entry was lawful. Each petitioner points to three of the four following factors as the basis of his alleged reliance on the presumed validity of his entry:
(a) failure of the consular official who issued his visa to fully inform the petitioner of the "accompanying, or following to join" requirement. (Santiago,4 Catam, Paglinawan, Khan)
(b) failure of the immigration officer at the point of entry to inform the petitioner of that requirement. (Santiago, Catam, Paglinawan, Khan)
(c) failure of the immigration officer at the point of entry to inquire concerning the whereabouts of the spouse entitled to preference, thereby failing to determine whether the requirement had been met. (Santiago, Catam, Paglinawan)
(d) failure of the immigration officer to deny entry after learning that the requirement had not been met. (Khan)
Petitioners argue that the proper standard of estoppel against the Government is that which we applied in United States v. Georgia-Pacific Co., 421 F.2d 92 (9th Cir. 1970).5 The elements of estoppel against the Government set out there, they say, are also found in the present cases. Georgia-Pacific was not an immigration case but a suit by the Government seeking specific performance of a contract to convey land.6 We have never held the particular formulation of equitable estoppel applied against the Government there to be applicable in an immigration case, nor do we need to reach that question here.7 Whatever the rule of estoppel may be in immigration cases, it can only be invoked if the governmental conduct complained of amounts to "affirmative misconduct" as that term was used in INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973). We find no "affirmative misconduct" on the facts now before us.
In Hibi the Supreme Court reversed a decision of this circuit, 475 F.2d 7 (9th Cir. 1973), which had held the Government to be estopped from asserting delay in filing as a basis for rejecting a petition for naturalization. Hibi had sought naturalization in 1967 under §§ 701-05 of the Nationality Act of 1940 which provided for naturalization of noncitizens who had served honorably in the Armed Forces of the United States during World War II. Hibi, a native of the Philippines, was a member of this class but his 1967 petition did not meet the Act's requirement that all petitions be filed no later than December 31, 1946. He asserted estoppel against the Government based on the Government's "failure to advise him, during the time he was eligible, of his right to apply for naturalization, and from INS's failure to provide a naturalization representative in the Philippines during all of the time Hibi and those in his class were eligible for naturalization." 414 U.S. at 7-8, 94 S.Ct. at 21.
There is no doubt that the course of conduct pursued by INS to the detriment of Hibi was a serious breach of duty by Government officials. We stated that the Government had "denied petitioner of a fair opportunity to apply for naturalization during the only time he could apply" and that the conduct of the responsible officials was "in derogation of their duty to carry out an Act of Congress." 475 F.2d at 10, 11. The dissent of Mr. Justice Douglas in Hibi characterized this conduct as "the deliberate — and successful — effort on the part of agents of the Executive Branch to frustrate the congressional purpose and to deny substantive rights to Filipinos such as Hibi by administrative fiat." 414 U.S. at 11, 94 S.Ct. at 23. Nevertheless, a majority of the Court held estoppel to be unavailable against the Government on those facts, stating that:
While the issue of whether "affirmative misconduct" on the part of the Government might estop it from denying citizenship was left open in Montana v. Kennedy, 366 U.S. 308, 314, 315, 81 S.Ct. 1336, 6 L.Ed.2d 313 (1961), no conduct of the sort there adverted to was involved here. We do not think that the failure to fully publicize the rights which Congress accorded under the Act of 1940, or...
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