Lee Fook Chuey v. Immigration & Naturalization Service

• Decision Date: 22 February 1971
• Docket Number: No. 24376.,24376.
• Citation: 439 F.2d 244
• Parties: LEE FOOK CHUEY, also known as Huey Gock Yut and Jimmie Huey, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

439 F.2d 244 (1971)

LEE FOOK CHUEY, also known as Huey Gock Yut and Jimmie Huey, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 24376.

United States Court of Appeals, Ninth Circuit.

September 29, 1970.

Rehearing Denied and Rehearing Denied February 11, 1971.

Dissenting Opinion February 22, 1971.

Fallon, Hargreaves & Bixbey, San Francisco, Cal., for petitioner.

James L. Browning, U. S. Atty., Stephen M. Suffin, Atty., I. & N. S., San Francisco, Cal., John N. Mitchell, Atty. Gen., Washington, D. C., for respondent.

Before BARNES, HAMLEY and CARTER, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied February 11, 1971.

BARNES, Circuit Judge:

Petitioner seeks review of a final decision of the Attorney General entered against him in a proceeding under 8 U.S.C. § 1251(a) (2). The jurisdiction of this Court rests on § 106 of the Immigration and Nationality Act Act, 8 U.S.C. § 1105a.

The petitioner is a native and citizen of China. On February 4, 1952, the petitioner (who was then 15 years old) entered the United States at Hawaii and was admitted as a United States citizen because of his knowingly false claim that he derived citizenship from his father. In September of 1957, petitioner voluntarily confessed before an officer of the Immigration and Naturalization Service (hereinafter "I. & N.S.") that he was not a citizen of the United States. Because of petitioner Lee's entry into the United States without inspection, he was ordered deported pursuant to § 241(a) (2) of the Act, 8 U.S.C. § 1251(a) (2).

No steps were taken to deport petitioner under this order, however. In 1965, he married a citizen of the United States and they subsequently had one child, who is a United States citizen by birth. Petitioner then moved to reopen the deportation proceedings for consideration of an application for suspension of deportation pursuant to 8 U.S.C. § 1254. After a hearing on February 16, 1967, the Special Inquiry Officer denied the application for suspension of deportation, and terminated deportation proceedings, on the ground that petitioner was entitled to the relief provided by § 241(f) of the Act, 8 U.S.C. § 1251(f).

The I. & N.S. appealed to the Board of Immigration Appeals from the decision terminating the deportation proceedings. On June 2, 1967, the Board dismissed the Appeal and later denied the Service's motion for reconsideration. At the request of the I. & N.S. the Board referred its decision to the Attorney General for review pursuant to 8 C.F.R. 3.1(h) (1) (iii). In a decision rendered May 1, 1969, the Attorney General found the petitioner deportable, and reversed the order of the Board which had affirmed the decision of the Special Inquiry Officer terminating deportation proceedings. (See Matter of Lee, Interim Decision #1960 (May 1, 1969))

Upon reversal of the Board's order, the Attorney General remanded the case to the Board for disposition of petitioner's application for suspension of deportation under 8 U.S.C. § 1254. In order to avoid any question of exhaustion of remedies, on August 28, 1969, a final administrative order was entered granting petitioner's application for suspension of deportation. This did not affect his ultimate deportability. Petitioner here seeks review of the final decision and order of the Attorney General which found him to be deportable.

The broad issue in this case is whether petitioner is saved from deportation by § 241(f) of the Immigration and Nationality Act, 8 U.S.C. § 1251(f), which provides:

"The provisions of this section 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 the 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."

More narrowly, the issue is whether an alien who obtains entry into the United States under a false claim of citizenship can qualify as an "alien otherwise admissible at the time of entry" within the meaning of 1251(f). It was the decision of the Attorney General that an alien who does not submit himself to the statutorily required system for gathering information from aliens who seek immigrant visas cannot satisfy the "otherwise admissible" requirement of 1251(f). Petitioner contends that the Attorney General's decision is in error and is contrary to the Supreme Court's interpretation of 1251(f) in Immigration and Naturalization Service v. Errico, 385 U.S. 214, 87 S.Ct. 473, 17 L.Ed. 2d 318 (1966). The application of 1251 (f) to a fraudulent claim of citizenship has never been decided by any court.

In Errico, the Court said that "the meaning of the words `otherwise admissible' is not obvious." (385 U.S. at 218, 87 S.Ct. at 476) In making an interpretation of these words, the Court considered the legislative history of 1251 (f), although there is little to consider. (See U.S.Code Cong. & Admin.News 1952, pp. 1754-55; U.S.Code Cong. & Admin.News 1957, pp. 2022-24; U.S. Code Cong. & Admin.News 1961, p. 2981. See also: Errico v. Immigration and Naturalization Service, 349 F.2d 541 (9th Cir. 1965); Godoy v. Rosenberg, 415 F.2d 1266 (9th Cir. 1969), 45 Washington Law Review 637 (1970); 66 Columbia Law Review 188 (1966).

The Supreme Court held in Errico that the statute could not be literally applied in view of its broad humanitarian purpose to prevent the separation of family members. It further held that the evasion of quota restrictions cannot preclude immigrants with the required family ties from being considered "otherwise admissible."

This Court has on several occasions made the distinction between quantitative and qualitative immigration restrictions with respect to the "otherwise admissible" language. Quantitative restrictions in the immigration laws serve to limit the number of immigrants (e. g., quota restrictions) while qualitative restrictions are intended to exclude those who are mentally, morally or physically unfit or undesirable. See Godoy v. Rosenberg, supra, 415 F.2d at 1270-1271, and Muslemi v. Immigration and Naturalization Service, 408 F.2d 1196 (9th Cir. 1969). In these later cases, this Court stated that Errico establishes that the satisfaction of qualitative, not quantitative, restrictions must be the basis for determining whether an alien can be considered "otherwise admissible." These qualitative restrictions appear in the enumeration of the classes of aliens who are ineligible for admission in § 212 of the Act, 8 U.S.C. § 1182.

There is no suggestion in the government's brief or the administrative record that the petitioner comes under any of the qualitative exclusions of § 1182. The decision of the Special Inquiry Officer on February 16, 1967, found Lee to be a person of good moral character for at least seven years preceding his application for suspension of deportation. Petitioner is employed at a trade, and has no arrest record. A character investigation by the Immigration and Naturalization Service revealed nothing adverse to petitioner (Matter of Lee, Decision of the Special Inquiry Officer, Exhibit "A" attached to Petition for Review, p. 2 (February 16, 1967)). The record therefore shows no qualitative ground upon which petitioner could be excluded from admission.

It is the government's contention, however, that § 241(f) "only encompasses fraud or misrepresentation committed by an alien in the course of furnishing information, or otherwise being processed, as required by our immigration laws." Matter of Lee, supra, at p. 10. The government, relying upon the Attorney General's opinion, seeks to distinguish Errico on the ground that in both cases decided in that opinion (Errico and Scott), the aliens did not attempt to evade completely the immigration process. The Attorney General took the position that although "each of those aliens misrepresented facts for the purpose of evading quota restrictions, each did submit himself to the statutory system for obtaining information from aliens who seek immigration visas, and presumably the information provided by each was found to satisfy all applicable immigration requirements other than those relating to his false status." Matter of Lee, supra at p. 9. Because of his claim of citizenship, petitioner was allowed to enter without being subjected to any screening process required of immigrants.

The government thus contends, in essence, that it has a significant interest in distinguishing the species of fraud perpetrated in Errico from that perpetrated by Lee in order to maintain the integrity of the immigration processing system established by the Act. In order to fulfill the requirements of the immigration laws it suggests that those aliens who wish to enter as immigrants should and must be thoroughly screened and investigated.

Against these considerations urged by the government, the interests of the alien with the requisite family ties must also be weighed, as was done in Errico. In it, the Supreme Court found that a major purpose of Congress in establishing § 241(f) was a humanitarian desire to keep family units together.

"Congress felt that, in many circumstances, it was more important to unite families and preserve family ties than it was to enforce strictly the quota limitations or even the many restrictive sections that are designed to keep undesirable and harmful aliens out of the country.

"In this context it is not surprising that Congress also granted relief to aliens facing exclusion or deportation because they had gained entry through misrepresentation." (385 U.S. at pp. 220-221, 87 S.Ct. at p. 478)

In discussing § 7 of the 1957 Act (of which § 241(f) is a codification), the Supreme Court said:

"The construction of the statute that we adopt in these cases is

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