Zaoutis v. Kiley

• Decision Date: 12 July 1977
• Docket Number: No. 889,D,889
• Citation: Zaoutis v. Kiley, 558 F.2d 1096 (2nd Cir. 1977)
• Parties: Stefanos ZAOUTIS, Plaintiff-Appellee, v. Maurice KILEY, as District Director for the New York District of the Immigration and Naturalization Service, and Immigration and Naturalization Service, Defendants-Appellants. ocket 76-6182.
• Court: U.S. Court of Appeals — Second Circuit

Page 1096

558 F.2d 1096

Stefanos ZAOUTIS, Plaintiff-Appellee, v. Maurice KILEY, as District Director for the New York District of the Immigration and Naturalization Service, and Immigration and Naturalization Service Defendants-Appellants.

No. 889, Docket 76-6182.

United States Court of Appeals Second Circuit.

Argued April 26, 1977.

Decided July 12, 1977.

Daniel Riesel, New York City (Winer, Neuburger & Sive, New York City, of counsel), for plaintiff-appellee.

Robert S. Groban, Jr., Sp. Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., for the Southern District of New York, Thomas H. Belote, Sp. Asst. U. S. Atty., New York City, of counsel), for defendants-appellants.

Before MANSFIELD, Circuit Judge, SMITH, Chief Judge, ^* and PALMIERI, District Judge. ^**

MANSFIELD, Circuit Judge:

The Immigration and Naturalization Service ("the INS") appeals from a decision and summary judgment entered by Judge Inzer B. Wyatt of the Southern District of New York declaring void an INS order which had rescinded appellee Stefanos Zaoutis' adjustment of status from non-immigrant to resident alien on the ground that the INS order was barred by the five-year time period prescribed by § 246(a) of the Immigration and Nationality Act, 8 U.S.C. § 1256(a). ¹ We hold that the rescission proceeding was timely instituted under § 246(a) and reverse.

On November 6, 1963, Zaoutis, a citizen of Greece, was admitted to the United States as a non-immigrant employee at the Greek consulate. On January 10, 1965, he participated in a sham marriage ceremony whereby he purported to marry one Fredeswinda Camacho, a Spanish-speaking United States citizen. She had never met Zaoutis prior to the day of the ceremony, which had been arranged by one Angelo Collazo, acting in collaboration with an attorney. Immediately after the ceremony Collazo, Zaoutis and Camacho went to the attorney's office where appellee's new "wife" signed a petition (INS Form I-130), which had been prepared by the attorney, seeking adjustment of Zaoutis' status to that of resident alien, based on his having married an American citizen. For her services Camacho was paid a sum of money and provided for a period of time with an apartment under the name of Zaoutis.

Based on the petition executed by Camacho and an application by Zaoutis, the INS district director on August 25, 1965, adjusted appellee's status to that of a permanent resident alien pursuant to §§ 201(b) and 245 of the Act, 8 U.S.C. §§ 1151, 1255, which permit such an adjustment based on an alien's marriage to a United States citizen, see 8 C.F.R. § 204. ²

On April 5, 1967, Zaoutis travelled to Mexico and obtained an ex parte divorce from Camacho. On October 1, 1967, while temporarily in Greece, he married Helene Gaglia, a Greek citizen and childhood acquaintance, and filed with the INS an application (again on a Form I-130) seeking a preference for his new wife.

An investigation by the INS into the use of fraudulent marriages to secure immigration benefits for Greek citizens led to the conviction on May 26, 1966, of James Kaperonis, an accomplice of Collazo. On February 18, 1969, Collazo pleaded guilty to two counts charging him with defrauding the United States in violation of 18 U.S.C. §§ 1001-2 by arranging sham marriages for the purpose of securing immigration benefits. Shortly thereafter Collazo decided to cooperate with the investigators. On February 24, 1970, faced with Collazo's statements, Camacho, after earlier denials, admitted that her marriage to Zaoutis had been fraudulent and signed a statement giving the details. ³

On May 20, 1970, less than five years after the INS had adjusted appellee's status, the District Director of the INS issued a notice of intention to rescind Zaoutis' adjustment of status pursuant to 8 C.F.R. § 246.1. ⁴ Following a series of delays, none of which are attributable to the INS, ⁵ a hearing was commenced before Immigration Judge Joseph J. Mack. After defense counsel moved to dismiss the proceeding as barred by § 246(a), it was adjourned to await briefs and the Ninth Circuit's decision in Singh v. I.N.S., 456 F.2d 1092 (9th Cir.), cert. denied, 409 U.S. 847, 93 S.Ct. 53, 34 L.Ed.2d 89 (1972), which was to hold that a district director's issuance of a notice of intention to rescind tolled the five-year period prescribed by § 246(a).

On April 10, 1972, Judge Mack, relying on Singh, denied Zaoutis' motion to dismiss. After another series of delays the hearing was finally completed on February 7, 1973. Judge Mack ruled on October 15, 1973, that Zaoutis had been ineligible for adjustment of status on August 25, 1965, because his marriage to Camacho had been a sham. The Board of Immigration Appeals ("the Board") dismissed Zaoutis' appeal on May 2, 1974, and Zaoutis commenced this action in the district court seeking injunctive and declaratory relief on June 10, 1975.

The sole issue presented to the district court on cross motions for summary judgment was whether rescission of Zaoutis' adjustment of status was timely under § 246(a). The district court, 418 F.Supp. 198, held that the INS's service, on May 10, 1970, of a notice of intent to rescind did not amount to a determination to "the satisfaction of the Attorney-General" that Zaoutis "was not in fact eligible for such adjustment of status," as that phrase is used in § 246(a) and that the determination was only made when the Board of Immigration Appeals, acting for the Attorney General, issued its order on May 2, 1974, affirming the initial decision of the special inquiry officer and dismissing Zaoutis' appeal, which was more than five years after the adjustment of his status. On this appeal the INS argues that the District Director's service on May 20, 1970, within the five-year period, of notice of intent to rescind the adjustment tolled the provisions of § 246(a).

DISCUSSION

Section 246(a) of the Act, 8 U.S.C. § 1256(a) provides in pertinent part that

"If, at any time within five years (after a person's status had been adjusted) . . . it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken. . . ."

Read literally, the statute's language requires only that the Attorney General be satisfied as to the alien's ineligibility within five years after the adjustment, not that he rescind within that period of time. If satisfied within the five-year period that the person had been ineligible for adjustment, the Attorney General may rescind thereafter. The central question governing this appeal, therefore, is what Congress meant by the term "appear to the satisfaction." Did it mean that the Attorney General must within the five-year period reach a final and irrevocable decision manifested by some act such as a rescission order? Or would the institution of rescission proceedings based upon a completed investigation suffice?

Zaoutis argues that the Attorney General cannot be "satisfied" as to ineligibility until an Immigration Judge, as his delegate, see § 103 of the Act, 8 U.S.C. § 1103, 8 C.F.R. § 1.1(e), has heard the evidence and issued an order of rescission and the Board of Immigration Appeals has dismissed the appeal. The government, on the other hand, contends that this mechanical or wooden construction of the phrase ignores the fact that the evidence of ineligibility may be so overwhelming at the close of the District Director's investigation that he, as the Attorney General's delegate, may be satisfied when he serves the notice of intent to rescind. Moreover, argues the government, its position has the support of prior judicial and administrative interpretation of almost identical language used in similar predecessor statutes, which predated Congress' adoption of § 246(a).

As happens often in our search for the true meaning of an ambiguous legislative enactment, it becomes important to inquire into the purpose of § 246(a) and the practical consequences of the differing interpretations offered by the parties in order to determine which construction accords with Congress' intent as well as the statute's language. Where the results of a "plain meaning" interpretation do violence to the drafters' clear intent, the tempering influence of a flexible judicial construction plays an important role in avoiding injustice. As Learned Hand said long ago: "There is no surer guide in the interpretation of a statute than its purpose when that is sufficiently disclosed; nor any surer mark of over solicitude for the letter than to wince at carrying out that purpose because the words used do not formally quite match with it." Federal Deposit Ins. Corp. v. Tremaine, 133 F.2d 827, 830 (2d Cir. 1943). "It is commonplace that a literal interpretation of the words of a statute is not always a safe guide to its meaning." Peter Pan Fabrics, Inc. v. Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960), see also Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) ("It does not therefore seem to me an undue liberty to give the section as a whole the meaning it must have had, in spite of the clause with which it begins. . . . There is no surer way to misread any document than to read it literally".); Eck v. United Arab Airlines, 360 F.2d 804, 812-14 (2d Cir. 1966).

Language to the effect that the Attorney General must be "satisfied" as to an alien's status before taking action adverse to the alien, such as deportation, is found in federal immigration laws going back to the Act of October 18, 1888, Ch. 1210, 25 Stat. 565, 566, which authorized the Attorney General, upon being satisfied that an immigrant had illegally entered the United States, to return him within one year to his country of origin. Consistently, the time limits fixed by these statutes have been interpreted administratively as requiring only that proceedings be instituted rather than completed within the specified period. See, e. g., In...