Faustino v. Immigration and Naturalization Service

• Decision Date: 05 October 1970
• Docket Number: No. 56,Docket 33811.,56
• Citation: 432 F.2d 429
• Parties: Susan M. FAUSTINO, an infant under the age of 14 years, by her Guardian Ad Litem, Albano Vieira, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

432 F.2d 429 (1970)

Susan M. FAUSTINO, an infant under the age of 14 years, by her Guardian Ad Litem, Albano Vieira, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Appellee.

No. 56, Docket 33811.

United States Court of Appeals, Second Circuit.

Argued September 28, 1970.

Decided October 5, 1970.

Julius C. Biervliet, Mt. Vernon, N. Y. (Edward Q. Carr, Jr., The Legal Aid Society, New York City, of counsel), for appellant.

Daniel Riesel, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York and T. Gorman Reilly, Asst. U. S. Atty., of counsel), for appellee.

Before DANAHER, FRIENDLY and HAYS, Circuit Judges.

PER CURIAM:

This action was brought in the District Court for the Southern District of New York on behalf on Susan Faustino, a child now eight years of age. She was born in the United States while her parents, Portuguese citizens, were here in a non-immigrant status. The INS District Director denied an application by her to classify her father as an immediate relative pursuant to § 201(b) of the Immigration and Nationality Act of 1952, 66 Stat. 163, as amended by the Act of October 3, 1965, 79 Stat. 911, 8 U.S.C. § 1151(b), and thereby relieve him of the numerical limitations imposed on immigrants other than those from the Western Hemisphere. The Director did this on the ground, admittedly valid so far as the language of the statute goes, that Susan was not 21 years of age. After the Board of Immigration Appeals dismissed an appeal from his ruling, plaintiff brought this action, seeking a declaration of unconstitutionality of the proviso to § 201(b) which allows citizen children to secure admission of their parents free from numerical limitation only when the child is 21 or more, and a mandatory injunction directing the District Director to process her father's visa petitions. She moved for the convening of a three-judge court pursuant to 28 U.S.C. § 2282; the INS cross-moved to dismiss the complaint. Finding the constitutional question insubstantial, Judge Cannella granted the INS' motion, 302 F.Supp. 212.

On the issue argued in the District Court, namely, the alleged invalidity of Congress' distinguishing between citizen children more or less than 21 for the purpose of relieving their parents from the quota limitation of § 201(a), we can add nothing useful to the opinions of the district judge and of the Fifth Circuit in Perdido v. INS, 420 F.2d 1179, 1181 (1969). Accord, Application of Amoury, 307 F.Supp. 213, 216-217 (S.D.N.Y. 1969). The only reason for even this brief opinion is that plaintiff advanced a new assertion of unconstitutionality in this court. She points to § 212(a) (14) of the Act, 8 U.S.C. § 1182(a) (14), which requires "aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor" to obtain a certificate from the Secretary of Labor before they can be granted a visa. Among those exempted from this requirement are immigrants who were "born in any independent foreign country of the Western Hemisphere" so long as they have a child, of whatever age, who is a United...