Newton v. I.N.S., 83-3246

• Decision Date: 07 June 1984
• Docket Number: No. 83-3246,83-3246
• Parties: Alfred Kwamena NEWTON and Florita S. Newton, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 336

736 F.2d 336

Alfred Kwamena NEWTON and Florita S. Newton, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 83-3246.

United States Court of Appeals, Sixth Circuit.

Argued April 31, 1984.

Decided June 7, 1984.

Mario H. Cisneros (argued), Detroit, Mich., for petitioners.

Immigration & Naturalization Serv., Cincinnati, Ohio, David V. Bernal (LC) (argued), Office of Immigration Litigation, Criminal Div., Thomas W. Hussey, Washington, D.C., Nicholas J. Pantel, Asst. U.S. Atty., Cincinnati, Ohio, for respondent.

Before KEITH, Circuit Judge, WEICK, Senior Circuit Judge, and REED, District Judge. ^*

WEICK, Senior Circuit Judge.

Petitioners Alfred K. and Florita S. Newton, husband and wife, have petitioned this Court for review of the Board of Immigration Appeals decision affirming the order for their deportation. The Immigration and Naturalization Service (INS) alleges, and Petitioners concede, deportability under Section 241(a)(2) and (9) of the Immigration and Nationality Act (the Act), 8 U.S.C. Sec. 1251(a)(2), (9). Petitioners contend, however, that they are denied equal protection of the laws by being precluded from seeking suspension of deportation pursuant to section 244(a)(1) of the Act, 8 U.S.C. Sec. 1254(a)(1), and that their American-citizen children would suffer de facto deportation if the order is carried out. We disagree.

For the following reasons, we affirm the decision of the Board of Immigration Appeals.

I.

Petitioners are both natives and citizens of the Republic of Ghana in West Africa. Dr. Alfred Newton entered the United States on August 24, 1973, and his wife entered on October 25, 1973, as a non-immigrant exchange visitor and exchange visitor's spouse, respectively, under section 101(a)(15)(J) of the Act, 8 U.S.C. Sec. 1101(a)(15)(J). With extensions, their lawful sojourn in this country continued until September 30, 1979.

Dr. Newton, a graduate of a foreign medical school, took part in the exchange visitor program in order to complete post-graduate residency programs in pediatrics at schools in Massachusetts and Michigan. In 1974, he received a master's degree in public health from the University of Michigan. He has since become duly licensed to practice medicine in Michigan, and is a clinical instructor at the Wayne State University School of Medicine, a staff member at several Detroit-area hospitals, and the owner and operator of a small pediatric clinic, earning in excess of $40,000 per year.

Mrs. Newton worked as a seamstress at a Chrysler Corporation plant, sewing automobile cushion covers and earning approximately $8.00 an hour, from May 1976 until she was laid off in December 1980. ¹ She attended college in her native land, and has taken college courses at Wayne County Community College with a view toward ultimately completing her education and obtaining a professional degree.

Dr. and Mrs. Newton have two children, now aged eight and a half and two and a half years, respectively, both of whom were born in this country and consequently are citizens of the United States. The Newtons are also purchasing a $49,000 home in Oak Park, Michigan, having made a down payment of $10,000. Dr. Newton's initial investment in the clinic totalled approximately $20,000.

Petitioners first came to the attention of the Immigration and Naturalization Service when Alfred voluntarily appeared at the Detroit INS office in November 1980, followed by his wife, Florita, in December of that year. The Service considered them deportable because they had both remained in the United States longer than authorized, and (in Dr. Newton's case) because he had ended his residency programs and was engaging in employment not authorized by the INS.

Pursuant to a "show cause" order, a hearing was held, on February 26, 1981, before an Immigration Judge in Detroit. At the hearing, Petitioners conceded that they were deportable under the Act, but wished to challenge certain provisions of the Act, as well as their deportation in particular, on constitutional grounds. The Immigration Judge maintained that he and the Board of Immigration Appeals have no authority to question the constitutionality of their governing statutes, but permitted Petitioners' counsel to put those arguments in a brief.

On May 7, 1981, the Immigration Judge filed a decision in which he found Petitioners to be deportable under the Act, according to evidence "that is clear, convincing and unequivocal." (App. at 4-6). He accordingly ordered Petitioners deported to Ghana (the country of their choice), but permitted them to depart from the United States voluntarily within 30 days. The Board of Immigration Appeals dismissed Petitioners' appeal on March 21, 1983, and affirmed the deportation order. Again, the Petitioners' constitutional issues were not addressed. Judicial review of the Board's decision in this Court is now sought pursuant to 8 U.S.C. Sec. 1105a.

II.

Petitioners first contend that, as exchange visitors admitted to the United States pursuant to 8 U.S.C. Sec. 1101(a)(15)(J), ² they are denied the opportunity to apply for suspension of deportation by the Attorney General, based on extreme hardship, although numerous other classes of non-immigrant aliens are permitted to do so. ³ Conceding that the Attorney General might not find the requisite hardship, and thus deny their request for suspension, they nevertheless insist that the fifth amendment guarantee of equal protection mandates treatment of exchange visitors on the same basis as other non-immigrant aliens. ⁴

Despite this argument, Petitioners have failed to cite a single case which would require, or even persuade this Court to invalidate the statute in question. Congressional power to draw lines with respect to what classes of aliens will be admitted to the United States, and the conditions of such admission, is subject only to limited judicial review. Fiallo v. Bell, 430 U.S. 787, 794-96 & n. 6, 97 S.Ct. 1473, 1479-80 & n. 6, 52 L.Ed.2d 50 (1977). Moreover, the exercise of such power, if predicated on a rational basis, may distinguish between classes of aliens, and confer benefits on one or more classes that are not available to others. See Mathews v. Diaz, 426 U.S. 67, 81-84, 96 S.Ct. 1883, 1892-93, 48 L.Ed.2d 478 (1976) (reasonable for Congress to deny Part B Medicare benefits to aliens unless they are permanent residents who have resided in this country for at least five years).

The Newtons, however, argue that there is no rational basis for distinguishing between exchange visitor aliens and others who also enter the United States for a limited personal or business reason and also initially intend to return to their home countries. Citing to the Second Circuit decision in Francis v. Immigration and Naturalization Service, 532 F.2d 268 (2d Cir.1976), they believe that denying exchange visitors the right to seek the discretionary relief available under section 1254(a)(1) subjects them to disparate treatment wholly unrelated to any legitimate governmental interest. According to the Petitioners, "the governmental interest concerning exchange visitors is that the program seeks to foster better international relationships by a mutual exchange of persons to study and to import knowledge and skills." (Petitioners' Brief at 8). In addition to distinguishing Francis on its facts, we see that this argument overlooks those legitimate interests which Congress may consider.

In Francis, the petitioner was convicted in a New York court for possession of marijuana. As a consequence, the INS instituted deportation proceedings against him under section 241(a)(11) of the Act, 8 U.S.C. Sec. 1251(a)(11) (requiring the deportation of any alien "who at any time has been convicted of a violation of ... any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana"). When he sought discretionary relief under 8 U.S.C. Sec. 1182(c), which permits the Attorney General, in his discretion, to re-admit, after a temporary absence abroad, a permanent resident alien who has been convicted of such an offense, the Immigration Judge and the Board of Immigration Appeals held that such relief was not available to Francis since he was not being "excluded" from the United States after travel abroad, but was being deported. The court of appeals, on review, held the administrative interpretation of the statute to be unconstitutional since the Government "failed to suggest any reason why this petitioner's failure to travel abroad following his conviction should be a crucial factor in determining whether he may be permitted to remain in this country." 532 F.2d at 273.

This Court does not dispute the result in Francis, but finds that the exclusion of exchange visitors in general (and particularly those admitted for graduate medical education and training) from eligibility for suspension of deportation does not rest on "irrelevant and fortuitous factors." Id. Unlike some of the other groups of temporary visitors admitted to this country, exchange visitors have been permitted to come to the United States, and avail themselves of our educational and training facilities, not merely to benefit themselves or provide special expertise for American employers but rather to foster better relations between the United States and their native lands, and to bring the benefits of our learning back home to their countrymen.

In Velasco v. Immigration and Naturalization Service, 386 F.2d 283 (7th Cir.1967), cert. denied, 393 U.S. 867, 89 S.Ct. 153, 21 L.Ed.2d 136 (1968), the court--in holding that the subsequent residence in Canada of two Filipino nurses who had been admitted to the United States as exchange visitors did not satisfy the two years of foreign residence required before permanent resident status could be obtained--made the following observations:

By the amendments of 1961 (P.L. 87-256, 75 Stat. 535), Congress made it clear that the Exchange Program...