Perdido v. Immigration and Naturalization Service, 27456 Summary Calendar.
| Decision Date | 23 December 1969 |
| Docket Number | No. 27456 Summary Calendar.,27456 Summary Calendar. |
| Citation | 420 F.2d 1179 |
| Parties | Dominador S. PERDIDO and Melva Pating Liguigan Perdido, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Sam Williamson, Houston, Tex., for petitioners.
John Mitchell, Atty. Gen., U. S. Dept. of Justice, Washington, D. C., Troy A. Adams, Dist. Director, U. S. Immigration and Naturalization Service, New Orleans, La., District Director, U. S. Immigration & Naturalization Service, Port Isabel, Tex., Morton L. Susman, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for respondent.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
This is a proceeding brought here pursuant to 8 U.S.C.A. § 1105a to review an order of deportation which was affirmed by the Board of Immigration Appeals and is now final.1 Dominador S. Perdido and his wife, Melva P. Perdido, both 28 years of age, are natives and citizens of the Philippines. Dominador came to this country in June, 1964, as a student under the provisions of 8 U.S.C.A. § 1101(a) (15) (J). Mrs. Perdido entered the United States as the spouse of a student in December of 1964, also under the provisions of 8 U. S.C.A. § 1101(a) (15) (J). They were later reclassified as an exchange visitor and the spouse of an exchange visitor, respectively, and authorized to remain in the United States until September 8, 1968. Since that time they have remained in this country without authority and are now under orders to leave.
The Perdidos' difficulty arises from the provisions of 8 U.S.C.A. § 1182(e) which states:
"No person admitted under section 1101(a) (15) (J) of this title or acquiring such status after admission shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 1101(a) (15) (H) of this title until it is established that such person has resided and been physically present in the country of his nationality or his last residence, or in another foreign country for an aggregate of at least two years following departure from the United States * * *."
Since the Perdidos both entered the United States under the provisions of § 1101(a) (15) (J), they can no longer remain in this country and are required under § 1182(e) to spend two years outside the United States before they are eligible to return on a permanent basis. Section 1182(e) does contain a proviso allowing the waiver of this two-year requirement if it would "impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien)." The Perdidos applied for such a waiver, claiming that their two-year exile would cause an exceptional hardship on their two children who, because of their birth in this country, are United States citizens. The waiver was denied when the Immigration Service determined that no extraordinary hardship existed.
Petitioners are further handicapped in their efforts to remain in this country by the provisions of 8 U.S.C.A. § 1151(b), which allows the admission as non-quota immigrants of immediate relatives of United States citizens, but provides that in the case of parents, the citizen child who can confer this privilege must be twenty-one years of age. Since the Perdido children are one and two years old, the Perdidos cannot benefit from the immediate relative provisions of § 1151(b).
The petitioners contend that as applied to them the two-year foreign residence requirement of § 1182(e) is unconstitutional. Their argument is that a deportation order against the parents of a citizen child deprives the child of a constitutional right. This argument has been raised and rejected on other occasions. United States ex rel. Hintopoulos v. Shaughnessy, 1957, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652; Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Mendez v. Major, 8 Cir. 1965, 340 F.2d 128.
It is undisputed that the Perdido children have every right to remain in this country. The parents, however, enjoy no such right. They entered this country under a special program which requires a two-year absence before a participant is eligible for permanent residence. Entry into this country by aliens has always been a matter of Congressional discretion. Harisiades v. Shaughnessy, supra. The petitioners here took advantage of that discretion in order to come here for educational purposes. They cannot now complain because the privilege exception under which they arrived also requires that they depart for two years. Nor can they complain because the discretionary waiver of this requirement provided under § 1182(e) was denied. As ...
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