Chow v. Immigration and Naturalization Service

• Decision Date: 20 April 1981
• Docket Number: No. 80-7010,80-7010
• Parties: Ying Suet CHOW, aka Monica Chow, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1384

641 F.2d 1384

Ying Suet CHOW, aka Monica Chow, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 80-7010.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted December 9, 1980.

Decided April 20, 1981.

Richard D. Steel, Wasserman, Orlow, Ginsberg & Rubin, Philadelphia, Pa., for petitioner.

Eric A. Fisher (argued), Washington, D.C., for respondent; Joseph F. Ciolino, Atty., Dept. of Justice, Washington, D.C., on brief.

On Petition to Review a Decision of the U. S. Immigration and Naturalization Service.

Before CHOY, ANDERSON, and SCHROEDER, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Chow petitions for review of a decision of the Board of Immigration Appeals finding her to be deportable as a non-preference immigrant who failed to obtain a labor certification from the Secretary of Labor, as required by § 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(14). We remand for further findings.

Chow, a native and citizen of Hong Kong, entered the United States in 1975 on the basis of her representation that she was married to Tony Ying, a lawful permanent resident alien. The spouse of a permanent resident alien is entitled to a second preference visa classification under § 203(a)(2) of the Act, 8 U.S.C. § 1153(a)(2). As Chow later conceded and does not dispute here, her marriage to Ying was a sham entered into for the sole purpose of gaining admission to the United States. She subsequently divorced Ying and married her present husband, Samson Chow, also a native of Hong Kong and present in the United States on a student visa. She apparently came to this country with the intent of marrying Samson Chow, or at least to join him.

The U. S. Immigration and Naturalization Service ("the Service") issued an Order to Show Cause on March 3, 1978, charging Chow with deportability as an alien who had entered the United States on the basis of a visa procured by fraud, and therefore excludable at time of entry under § 212(a) or the Act, 8 U.S.C. § 1182(a)(19). At Chow's deportation hearing on June 2, 1978, she conceded deportability on the basis of fraud, but raised as a defense the imminent birth of her child, an event which would qualify her as the parent of a United States citizen, a complete defense under § 241(f) of the Act, 8 U.S.C. § 1251(f), to a charge of entry in violation of § 212(a)(19) for an alien who is "otherwise admissible." At the hearing, the service lodged an additional charge of deportability under § 241(a)(1) of the Act, 8 U.S.C. § 1251(a)(1), as an alien excludable at time of entry for failure to obtain a labor certification under § 212(a)(14), 8 U.S.C. § 1182(a)(14).

The Service introduced various exhibits at the hearing. The evidence tended to establish a number of facts. Chow admittedly entered into the marriage with Ying for the sole purpose of gaining admission to the United States. At the time she entered, Chow had approximately $708 deposited in an account in a Vancouver, B.C. bank. While she did go first to Ying's residence after arriving in the United States, Chow spent little time there and almost immediately moved into Samson Chow's residence. Sometime in February, 1976, approximately eight months after entering the United States, Chow took employment as a waitress. Chow elected to remain silent at the hearing. After the birth of her child, her attorney offered the child's birth certificate and moved to reopen the proceedings for the purpose of establishing a § 241(f) defense.

The administrative law judge found Chow to be deportable under § 212(a)(14) because of her failure to obtain a labor certification. The judge found that Chow was not exempt from the labor certification requirement, and further ruled that § 241(f) relief is not available to forgive deportability on a charge arising under § 212(a)(14).

The Board of Immigration Appeals affirmed. The basis of the Board's decision is unclear. While the Board held that deportability had been established because of Chow's failure to obtain labor certification, it further held that because she was excludable under § 212(a)(14), she was not "otherwise admissible" within the meaning of § 241(f) and, therefore, was ineligible for relief under that section. Whether her ineligibility for relief under § 241(f) served to revive the fraudulent visa procurement charge under § 212(a)(19) as an additional ground of deportability independent of the labor certification charge was not made explicit by the Board's opinion.

In petitioning this court for review of the Board's order, Chow argues that the Service did not carry its burden of proving deportability by clear, convincing, and unequivocal evidence, and that the Board improperly treated her as a non-preference immigrant. She also attempts to persuade us to overrule our holding in Cacho v. Immigration and Naturalization Service, 547 F.2d 1057 (9th Cir. 1976), that § 241(f) is not available as a defense against a charge of failure to obtain a labor certification.

The Service argues that it carried its burden of proving Chow's deportability by clear and convincing evidence, and urges us to follow our ruling in Cacho. At oral argument, the Service raised the issue whether Chow had carried her burden of proving that she was "otherwise admissible" under § 241(f).

We concur with the Service's assessment that the outcome of this appeal will turn largely upon the question of whether Chow was "otherwise admissible," though we would have appreciated the benefit of the Service's thinking on the subtle complexities of the phrase, had such thinking been offered. We begin our analysis, as we must, with the wording of the statute:

"The provisions of (Section 241) relating to the deportation 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 time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence."

Section 241(f), Immigration and Nationality Act, 8 U.S.C. § 1251(f).

Section 241 generally prescribes the conditions under which an alien may be deported. Under § 241(a)(1), an alien is deportable if at the time of entry he or she was within one of the classes of aliens excludable under the Act. Section 212 of the Act, 8 U.S.C. § 1182, lists 31 classes of aliens excludable at entry. § 212(a)(19), 8 U.S.C. § 1182(a)(19), renders excludable any alien "who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact; ..." § 212(a)(14), 8 U.S.C. § 1182(a)(14), the labor certification requirement, makes excludable:

"Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed...."

The Supreme Court, relying in the main upon the language of the Act, has held that the § 241(f) "forgiveness" provision excuses only fraud committed under § 212(a)(19). Reid v. Immigration and Naturalization Service, 420 U.S. 619, 95 S.Ct. 1164, 43 L.Ed.2d 501 (1975). In Cacho, supra, we interpreted Reid to preclude the applicability of § 241(f) to a charge of deportability based upon failure to comply with the labor certification requirement of § 212(a)(14). We have been joined by other circuits in our understanding of Reid regarding § 212(a)(14). See Skelly v. Immigration and Naturalization Service, 630 F.2d 1375 (10th Cir. 1980); Cobian-Hernandez v. Immigration and Naturalization Service, 587 F.2d 872 (7th Cir. 1978); David v. Immigration and Naturalization Service, 578 F.2d 1373 (3d Cir.), cert. denied, 439 U.S. 927, 99 S.Ct. 312, 58 L.Ed.2d 320 (1978). Even were we empowered as a panel to overrule Cacho, no persuasive reason for rescinding that decision is apparent.

On this appeal, the Service appears to argue not only that Chow is ineligible for § 241(f) relief as against the § 212(a)(14) labor certification charge, but also that she is ineligible to assert the defense under § 212(a)(19) on the ground that she was not "otherwise admissible" at time of entry because she had not complied with the labor certification requirement. The difference is significant. If the Service is required to prove Chow's failure to comply with § 212(a)(14) as a separate charge of deportability, then it must carry its burden of proof under the "clear, convincing, and unequivocal" standard established by Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). On the other hand, if Chow's alleged failure to obtain a labor certification is regarded as an event which renders her "otherwise (in)admissible" under § 241(f), then the burden of proving compliance or exemption will fall upon Chow. In deportation proceedings, the alien bears the burden of proving eligibility for relief under § 241(f) by showing that he or she would have been "otherwise admissible" except for the fraud or misrepresentation perpetrated by the alien's entry. Cortez-Flores v. Immigration and Naturalization Service, 500 F.2d 178 (5th Cir. 1974). If Chow fails to carry her burden of proving admissibility under § 241(f), then the separate charge of...