Talanoa v. Immigration and Naturalization Service

• Decision Date: 21 June 1968
• Docket Number: No. 22119.,22119.
• Citation: 397 F.2d 196
• Parties: Tevita TALANOA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

397 F.2d 196 (1968)

Tevita TALANOA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 22119.

United States Court of Appeals Ninth Circuit.

June 21, 1968.

Donald L. Ungar (argued), of Phelan, Simmons & Ungar, San Francisco, Cal., for appellant.

David R. Urden (argued), Asst. U.S. Atty., Cecil F. Poole, U.S. Atty., San Francisco, Cal., Steven M. Suffin, Attorney, Immigration & Naturalization Service, San Francisco, Cal., Ramsey Clark, Atty. Gen., of the United States, Department of Justice, Washington, D.C., for appellee.

Before KOELSCH, and CARTER, Circuit Judges, and ROGER D. FOLEY, District Judge.^*

JAMES M. CARTER, Circuit Judge.

This is a petition, pursuant to Section 106 of the Immigration and Naturalization Act, 8 U.S.C. § 1105a, (hereafter "The Act"), to review a final order denying petitioner's application for status as a permanent resident.

Two questions are presented:

(1) Is the Immigration and Naturalization Service precluded from applying the provisions of Section 212(a) (14) of the Act, 8 U.S.C. § 1182(a) (14), (requiring employment certification), because the Service failed to conduct a hearing in May, 1965, when a visa became available to petitioner?

(2) Are the provisions of P.L. 89-732, enacted November 2, 1966, 80 Stat. 1161, exempting all applications for permanent residence made by Western Hemisphere natives from the requirement for employment certification, applicable to the petitioner?

FACTS

Petitioner is a native and citizen of Tonga, an island in the South Pacific. He entered the United States at Honolulu, Hawaii, on January 15, 1963, as a student. He was 36 years old at the time. He did not register or attend school. His status was changed to that of a temporary worker after he began working in violation of his student status. This status was temporary only, and he was thereafter notified to leave the United States on or before December 11, 1963.

When petitioner did not leave, deportation proceedings were begun. A hearing was held on February 24, 1964, at Honolulu, where petitioner was then living. Petitioner conceded deportability, but applied for adjustment of status to that of a permanent resident, pursuant to Section 245 of the Act, 8 U.S.C. § 29, 1965.¹

On February 24, 1964, the special inquiry officer found the petitioner to be a deportable alien and denied his application under Section 245 of the Act, 8 U.S.C. § 1255, on the ground he had not established availability of an immigrant visa under the quota for the Asia-Pacific Triangle to which he was chargeable at a native of Tonga. Petitioner was granted the privilege of voluntary departure.

Thereafter the State Department recognized Tonga as a separate quota area. A motion to reopen petitioner's file was denied on November 19, 1964, because the non-preference category of the Tonga quota was oversubscribed. The Board of Immigration Appeals dismissed an appeal from this denial on January 29, 1965.

On March 9, 1965, petitioner again moved to reopen his case. He alleged the availability of immigrant visas under the nonpreference portion of the Tonga quota. This motion to reopen was granted by the Board on March 23, 1965. The Honolulu office of the Service received the Board's remand order on March 29, 1965. The Honolulu office had previously, on March 15, 1965, requested the State Department to assign Tongan quota numbers for the Service's use. The State Department allocated such quota numbers in May 1965. The allocation was made before the Honolulu office knew whether petitioner was eligible for adjustment of status, pursuant to Section 245 of the Act, 8 U.S.C. § 1255.²

There was no special inquiry officer in Hawaii and none had been assigned to conduct hearings during the month of May. On May 10, 1965, the quota numbers were returned by the Service to the State Department, "because they could not be used during that month (May), since the cases had not yet been completely processed and reopened hearings could not be held during the month of May." (Decision Board of Immigration Appeals, August 11, 1967).

On April 26, 1965, petitioner's counsel had written the District Director at Honolulu, regarding "Tongan Cases." He requested any up-to-date information with respect to the scheduling of further hearings in those cases. The letter made no reference to petitioner by name nor to his case in particular. Apparently he was notified that hearings were to be calendared in June of 1965. In any event, on June 2, 1965, official notice of hearing was issued to petitioner and his counsel, and on June 22, 1965, at Honolulu, a hearing was held in petitioner's case. A visa was not then available for petitioner and the special inquiry officer reserved making a decision. Before a quota number again became available for petitioner's use, Congress on October 3, 1965, and effective as of December 1, 1965, amended Section 212(a) (14) of the Act, 8 U.S.C. § 1182(a) (14),³ to require the submission of a certification from the Secretary of Labor establishing the eligibility for permanent resident status.

On August 6, 1965, petitioner moved to California where he now lives. Further hearings were held before a special inquiry officer. On January 13, 1966, petitioner's application for status as a permanent resident was denied. The denial was based on the requirement of certification by the Labor Department. An appeal was dismissed by the Board of Appeals on May 17, 1966.

A petition for rehearing was filed on July 12, 1966, alleging that because petitioner had started his own business as a gardener, he was not subject to Section 212(a) (14) of the Act, 8 U.S.C. 1182 (a) (14), since the section did not apply to one self-employed. Petitioner also contended, for the first time, that the Service was estopped from requiring a labor certificate because a quota number had been made available to petitioner prior to the enactment of the amendment to Section 212(a) (14) of the Act, 8 U.S.C. § 1182(a) (14).

The special inquiry officer rejected the estoppel argument but found petitioner to be exempt from the labor certification requirement. Adjustment of status as a permanent resident under Section 245 of the Act, 8 U.S.C. § 1255 was granted on September 21, 1966.

Petitioner thereafter lost his business and went to work as a laborer. On March 13, 1967, the Immigration Service moved to reconsider petitioner's status. The Service alleged that petitioner was a laborer and was not exempt from the labor certification requirement as a self-employed person. On April 17, 1967, the Board granted the motion and remanded the case to the special inquiry officer. At the reopened hearing held on April 27, 1967, petitioner admitted he was employed as a laborer and withdrew his claim of exemption from the labor certification requirement. The special inquiry officer found petitioner ineligible for adjustment of status under Section 245 of the Act, 8 U.S.C. § 1255, but gave petitioner the privilege of voluntary departure. Petitioner's appeal from the officer's decision was dismissed by the Board of Appeals on August 11, 1967. This petition for review then followed.

DISCUSSION

Section 245 of the Act, 8 U.S.C. § 1255 as amended, gives the Attorney General discretionary power to change the status of an alien from non-immigrant to permanent resident if "(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is approved."

Pursuant to the statute, an applicant must first become eligible for the relief sought. In order to become eligible, an applicant for adjustment of status is assimilated to the position of an applicant for entry into the United States. An applicant must therefore comply with a procedure assimilated to admission.

In this case, Petitioner had been eligible for the relief sought when he first applied for it. He became ineligible by virtue of the change in the law, to-wit, he became unable to obtain a labor certification pursuant to Section 212(a) (14) of the Act, 8 U.S.C. § 1182(a) (14). It is settled that when the law is changed before a decision is handed down by an administrative agency, the agency must apply the new law. Patsis v. Immigration and Naturalization Service, 337 F.2d 733 (8 Cir. 1964); cert. den. 380 U.S. 952, 85 S.Ct. 1085, 13 L.Ed.2d 970; DeLucia v. Immigration and Naturalization Service, 370 F.2d 305 (7 Cir. 1966); cert. den. 386 U.S. 912, 87 S.Ct. 861, 17 L.Ed.2d 784. Since the provisions of Section 212(a) (14) of the Act, 8 U.S.C. § 1182(a) (14), applied to petitioner, the only question remaining is whether petitioner is exempt from obtaining a labor certification.

(1) Estoppel

Petitioner's first claim of exemption from the labor certification is based on the grounds of estoppel. It is contended that it was the Government's conduct which prevented the Petitioner from becoming a permanent resident prior to the enactment of Section 212(a) (14) of the Act, 8 U.S.C. § 1182(a) (14), to-wit, a quota number was made available to petitioner in May 1965, and no hearing was held until June 22, 1965, after the quota number was returned to the State Department. The contention is invalid.

An applicant for adjustment of status is assimilated to the position of an applicant for entry, Amarante v. Rosenberg, 326 F.2d 58 (9 Cir. 1964), and he must comply with the requirements of entry. An alien against whom deportation proceedings have been brought must submit his application to a special inquiry officer during the deportation proceedings. 8 C.F.R. 245.2.

The Honolulu office apparently disregarded the normal administrative procedure when it requested the State Department to assign a quota number for Petitioner's use on March 15, 1965, since petitioner's motion to reopen his case was not even received until March 23,...