US Code 1182 Chapter 12 - Immigration and Nationality

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UNITED STATES CODE ANNOTATED

TITLE 8. ALIENS AND NATIONALITY
CHAPTER 12--IMMIGRATION AND NATIONALITY
SUBCHAPTER II--IMMIGRATION
PART II--ADMISSION QUALIFICATIONS FOR ALIENS; TRAVEL CONTROL OF CITIZENS
AND ALIENS
Copr. West Group 2003. No claim to Orig. U.S. Govt. Works.
Current through P.L. 108-17, approved 04-23-03
1182. Inadmissible aliens
(a) Classes of aliens ineligible for visas or admission
Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to
receive visas and ineligible to be admitted to the United States:
(1) Health-related grounds
(A) In general
Any alien-(i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to
have a communicable disease of public health significance, which shall include infection with the etiologic agent for
acquired immune deficiency syndrome,
(ii) except as provided in subparagraph (C), who seeks admission as an immigrant, or who seeks adjustment of
status to the status of an alien lawfully admitted for permanent residence, and who has failed to present documentation
of having received vaccination against vaccine-preventable diseases, which shall include at least the following
diseases: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B,
and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for
Immunization Practices,
(iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in
consultation with the Attorney General)-(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a
threat to the property, safety, or welfare of the alien or others, or
(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which
behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to
recur or to lead to other harmful behavior, or
(iv) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services)
to be a drug abuser or addict,
is inadmissible.
(B) Waiver authorized
For provision authorizing waiver of certain clauses of subparagraph (A), see subsection (g) of this section.
Copr. West 2003 No Claim to Orig. U.S. Govt. Works
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(C) Exception from immunization requirement for adopted children 10 years of age or younger
Clause (ii) of subparagraph (A) shall not apply to a child who-(i) is 10 years of age or younger,
(ii) is described in section 1101(b)(1)(F) of this title, and
(iii) is seeking an immigrant visa as an immediate relative under section 1151(b) of this title,
if, prior to the admission of the child, an adoptive parent or prospective adoptive parent of the child, who has
sponsored the child for admission as an immediate relative, has executed an affidavit stating that the parent is aware
of the provisions of subparagraph (A)(ii) and will ensure that, within 30 days of the child's admission, or at the
earliest time that is medically appropriate, the child will receive the vaccinations identified in such subparagraph.
(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In general
Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits
committing acts which constitute the essential elements of-(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit
such a crime, or
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a
foreign country relating to a controlled substance (as defined in section 802 of Title 21),
is inadmissible.
(ii) Exception
Clause (i)(I) shall not apply to an alien who committed only one crime if-(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the
alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years
before the date of application for a visa or other documentation and the date of application for admission to the
United States, or
(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits
having committed or of which the acts that the alien admits having committed constituted the essential elements) did
not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a
term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately
executed).
(B) Multiple criminal convictions
Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction
was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the
offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is
inadmissible.
(C) Controlled substance traffickers
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Any alien who the consular officer or the Attorney General knows or has reason to believe-(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802
of title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit
trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or
(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years,
obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known
that the financial or other benefit was the product of such illicit activity,
is inadmissible.
(D) Prostitution and commercialized vice
Any alien who-(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in
prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,
(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa,
admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the
purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of
prostitution, or
(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to
prostitution,
is inadmissible.
(E) Certain aliens involved in serious criminal activity who have asserted immunity from prosecution
Any alien-(i) who has committed in the United States at any time a serious criminal offense (as defined in section 1101(h) of
this title),
(ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense,
(iii) who as a consequence of the offense and exercise of immunity has departed from the United States, and
(iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction
with respect to that offense,
is inadmissible.
(F) Waiver authorized
For provision authorizing waiver of certain subparagraphs of this paragraph, see subsection (h) of this section.
(G) Foreign government officials who have engaged in particularly severe violations of religious freedom
Any alien who, while serving as a foreign government official, was responsible for or directly carried out, at any time
during the preceding 24-month period, particularly severe violations of religious freedom, as defined in section 6402 of
Title 22, and the spouse and children, if any, are inadmissible.
(H) Significant traffickers in persons
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(i) In general
Any alien who is listed in a report submitted pursuant to section 7108(b) of Title 22, or who the consular officer or
the Attorney General knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or
colluder with such a trafficker in severe forms of trafficking in persons, as defined in the section 7102 of Title 22, is
inadmissible.
(ii) Beneficiaries of trafficking
Except as provided in clause (iii), any alien who the consular officer or the Attorney General knows or has reason to
believe is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years,
obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known
that the financial or other benefit was the product of such illicit activity, is inadmissible.
(iii) Exception for certain sons and daughters
Clause (ii) shall not apply to a son or daughter who was a child at the time he or she received the benefit described
in such clause.
(I) Money laundering
Any alien-(i) who a consular officer or the Attorney General knows, or has reason to believe, has engaged, is engaging, or
seeks to enter the United States to engage, in an offense which is described in section 1956 or 1957 of Title 18
(relating to laundering of monetary instruments); or
(ii) who a consular officer or the Attorney General knows is, or has been, a knowing aider, abettor, assister,
conspirator, or colluder with others in an offense which is described in such section;
is inadmissible.
(3) Security and related grounds
(A) In general
Any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter
the United States to engage solely, principally, or incidentally in-(i) any activity (I) to violate any law of the United States relating to espionage or sabotage or (II) to violate or evade
any law prohibiting the export from the United States of goods, technology, or sensitive information,
(ii) any other unlawful activity, or
(iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the
United States by force, violence, or other unlawful means,
is inadmissible.
(B) Terrorist activities
(i) In general
Any alien who--
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(I) has engaged in a terrorist activity,

(II) a consular officer or the Attorney General knows, or has reasonable ground to believe, is engaged in or is
likely to engage after entry in any terrorist activity (as defined in clause (iv)),
(III) has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist
activity,
(IV) is a representative (as defined in clause (v)) of-(aa) a foreign terrorist organization, as designated by the Secretary of State under section 1189 of this title, or
(bb) a political, social or other similar group whose public endorsement of acts of terrorist activity the Secretary
of State has determined undermines United States efforts to reduce or eliminate terrorist activities,
(V) is a member of a foreign terrorist organization, as designated by the Secretary under section 1189 of this title,
or which the alien knows or should have known is a terrorist organization [FN1]
is inadmissible. An alien who is an officer, official, representative, or spokesman of the Palestine Liberation
Organization is considered, for purposes of this chapter, to be engaged in a terrorist activity.
(VI) [FN2] has used the alien's position of prominence within any country to endorse or espouse terrorist activity,
or to persuade others to support terrorist activity or a terrorist organization, in a way that the Secretary of State has
determined undermines United States efforts to reduce or eliminate terrorist activities, or
(VII) is the spouse or child of an alien who is inadmissible under this section, if the activity causing the alien to be
found inadmissible occurred within the last 5 years,
(ii) Exception
Subclause (VII) of clause (i) does not apply to a spouse or child-(I) who did not know or should not reasonably have known of the activity causing the alien to be found
inadmissible under this section; or
(II) whom the consular officer or Attorney General has reasonable grounds to believe has renounced the activity
causing the alien to be found inadmissible under this section.
(iii) "Terrorist activity" defined
As used in this chapter, the term "terrorist activity" means any activity which is unlawful under the laws of the place
where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of
the United States or any State) and which involves any of the following:
(I) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to
compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or
implicit condition for the release of the individual seized or detained.
(III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of Title 18) or
upon the liberty of such a person.
(IV) An assassination.
(V) The use of any--
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(a) biological agent, chemical agent, or nuclear weapon or device, or

(b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain),
with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial
damage to property.
(VI) A threat, attempt, or conspiracy to do any of the foregoing.
(iv) Engage in terrorist activity defined
As used in this chapter, the term "engage in terrorist activity" means, in an individual capacity or as a member of an
organization-(I) to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily
injury, a terrorist activity;
(II) to prepare or plan a terrorist activity;
(III) to gather information on potential targets for terrorist activity;
(IV) to solicit funds or other things of value for-(aa) a terrorist activity;
(bb) a terrorist organization described in clause (vi)(I) or (vi)(II); or
(cc) a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate that he did not
know, and should not reasonably have known, that the solicitation would further the organization's terrorist
activity;
(V) to solicit any individual-(aa) to engage in conduct otherwise described in this clause;
(bb) for membership in a terrorist organization described in clause ( vi)(I) or (vi)(II); or
(cc) for membership in a terrorist organization described in clause ( vi)(III), unless the solicitor can demonstrate
that he did not know, and should not reasonably have known, that the solicitation would further the organization's
terrorist activity; or
(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe
house, transportation, communications, funds, transfer of funds or other material financial benefit, false
documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or
training-(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a
terrorist activity;
(cc) to a terrorist organization described in clause (vi)(I) or (vi)( II); or
(dd) to a terrorist organization described in clause (vi)(III), unless the actor can demonstrate that he did not
know, and should not reasonably have known, that the act would further the organization's terrorist activity.
This clause shall not apply to any material support the alien afforded to an organization or individual that has
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committed terrorist activity, if the Secretary of State, after consultation with the Attorney General, or the
Attorney General, after consultation with the Secretary of State, concludes in his sole unreviewable discretion,
that this clause should not apply.
(v) "Representative" defined
As used in this paragraph, the term "representative" includes an officer, official, or spokesman of an organization,
and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist
activity.
(vi) Terrorist organization defined
As used in clause (i)(VI) and clause (iv), the term "terrorist organization" means an organization-(I) designated under section 1189 of this title;
(II) otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with
or upon the request of the Attorney General, as a terrorist organization, after finding that the organization engages in
the activities described in subclause (I), (II), or (III) of clause (iv), or that the organization provides material support
to further terrorist activity; or
(III) that is a group of two or more individuals, whether organized or not, which engages in the activities
described in subclause (I), (II), or (III) of clause (iv).
(C) Foreign policy
(i) In general
An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to
believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.
(ii) Exception for officials
An alien who is an official of a foreign government or a purported government, or who is a candidate for election to
a foreign government office during the period immediately preceding the election for that office, shall not be
excludable or subject to restrictions or conditions on entry into the United States under clause (i) solely because of the
alien's past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would
be lawful within the United States.
(iii) Exception for other aliens
An alien, not described in clause (ii), shall not be excludable or subject to restrictions or conditions on entry into the
United States under clause (i) because of the alien's past, current, or expected beliefs, statements, or associations, if
such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State
personally determines that the alien's admission would compromise a compelling United States foreign policy interest.
(iv) Notification of determinations
If a determination is made under clause (iii) with respect to an alien, the Secretary of State must notify on a timely
basis the chairmen of the Committees on the Judiciary and Foreign Affairs of the House of Representatives and of the
Committees on the Judiciary and Foreign Relations of the Senate of the identity of the alien and the reasons for the
determination.
(D) Immigrant membership in totalitarian party
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(i) In general
Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or
subdivision or affiliate thereof), domestic or foreign, is inadmissible.
(ii) Exception for involuntary membership
Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction
of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for
admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by
operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether
necessary for such purposes.
(iii) Exception for past membership
Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction
of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for
admission) that-(I) the membership or affiliation terminated at least-(a) 2 years before the date of such application, or
(b) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with
the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and
(II) the alien is not a threat to the security of the United States.
(iv) Exception for close family members
The Attorney General may, in the Attorney General's discretion, waive the application of clause (i) in the case of an
immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son,
or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or
when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States.
(E) Participants in Nazi persecutions or genocide
(i) Participation in Nazi persecutions
Any alien who, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of,
or in association with-(I) the Nazi government of Germany,
(II) any government in any area occupied by the military forces of the Nazi government of Germany,
(III) any government established with the assistance or cooperation of the Nazi government of Germany, or
(IV) any government which was an ally of the Nazi government of Germany,
ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion,
national origin, or political opinion is inadmissible.
(ii) Participation in genocide
Any alien who has engaged in conduct that is defined as genocide for purposes of the International Convention on
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the Prevention and Punishment of Genocide is inadmissible.

(F) Association with terrorist organizations
Any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after
consultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in
the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or
security of the United States is inadmissible.
(4) Public charge
(A) In general
Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the
Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public
charge is inadmissible.
(B) Factors to be taken into account
(i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General
shall at a minimum consider the alien's-(I) age;
(II) health;
(III) family status;
(IV) assets, resources, and financial status; and
(V) education and skills.
(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any
affidavit of support under section 1183a of this title for purposes of exclusion under this paragraph.
(C) Family-sponsored immigrants
Any alien who seeks admission or adjustment of status under a visa number issued under section 1151(b)(2) or
1153(a) of this title is inadmissible under this paragraph unless-(i) the alien has obtained-(I) status as a spouse or a child of a United States citizen pursuant to clause (ii), (iii), or (iv) of section
1154(a)(1)(A) of this title or
(II) classification pursuant to clause (ii) or (iii) of section 1154(a)(1)(B) of this title; or
(ii) the person petitioning for the alien's admission (and any additional sponsor required under section 1183a(f) of
this title or any alternative sponsor permitted under paragraph (5)(B) of such section) has executed an affidavit of
support described in section 1183a of this title with respect to such alien.
(D) Certain employment-based immigrants
Any alien who seeks admission or adjustment of status under a visa number issued under section 1153(b) of this title
by virtue of a classification petition filed by a relative of the alien (or by an entity in which such relative has a significant
ownership interest) is inadmissible under this paragraph unless such relative has executed an affidavit of support
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described in section 1183a of this title with respect to such alien.

(5) Labor certification and qualifications for certain immigrants
(A) Labor certification
(i) In general
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is
inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney
General that-(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien
described in clause (ii)) and available at the time of application for a visa and admission to the United States and at
the place where the alien is to perform such skilled or unskilled labor, and
(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the
United States similarly employed.
(ii) Certain aliens subject to special rule
For purposes of clause (i)(I), an alien described in this clause is an alien who-(I) is a member of the teaching profession, or
(II) has exceptional ability in the sciences or the arts.
(iii) Professional athletes
(I) In general
A certification made under clause (i) with respect to a professional athlete shall remain valid with respect to the
athlete after the athlete changes employer, if the new employer is a team in the same sport as the team which
employed the athlete when the athlete first applied for the certification.
(II) Definition
For purposes of subclause (I), the term "professional athlete" means an individual who is employed as an athlete
by-(aa) a team that is a member of an association of 6 or more professional sports teams whose total combined
revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the
contests and exhibitions in which its member teams regularly engage; or
(bb) any minor league team that is affiliated with such an association.
(iv) Long delayed adjustment applicants
A certification made under clause (i) with respect to an individual whose petition is covered by section 1154(j) of
this title shall remain valid with respect to a new job accepted by the individual after the individual changes jobs or
employers if the new job is in the same or a similar occupational classification as the job for which the certification
was issued.
(B) Unqualified physicians
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An alien who is a graduate of a medical school not accredited by a body or bodies approved for the purpose by the
Secretary of Education (regardless of whether such school of medicine is in the United States) and who is coming to the
United States principally to perform services as a member of the medical profession is inadmissible, unless the alien (i)
has passed parts I and II of the National Board of Medical Examiners Examination (or an equivalent examination as
determined by the Secretary of Health and Human Services) and (ii) is competent in oral and written English. For
purposes of the previous sentence, an alien who is a graduate of a medical school shall be considered to have passed
parts I and II of the National Board of Medical Examiners if the alien was fully and permanently licensed to practice
medicine in a State on January 9, 1978, and was practicing medicine in a State on that date.
(C) Uncertified foreign health-care workers
Subject to subsection (r), any alien who seeks to enter the United States for the purpose of performing labor as a
health-care worker, other than a physician, is inadmissible unless the alien presents to the consular officer, or, in the case
of an adjustment of status, the Attorney General, a certificate from the Commission on Graduates of Foreign Nursing
Schools, or a certificate from an equivalent independent credentialing organization approved by the Attorney General in
consultation with the Secretary of Health and Human Services, verifying that-(i) the alien's education, training, license, and experience-(I) meet all applicable statutory and regulatory requirements for entry into the United States under the
classification specified in the application;
(II) are comparable with that required for an American health-care worker of the same type; and
(III) are authentic and, in the case of a license, unencumbered;
(ii) the alien has the level of competence in oral and written English considered by the Secretary of Health and
Human Services, in consultation with the Secretary of Education, to be appropriate for health care work of the kind in
which the alien will be engaged, as shown by an appropriate score on one or more nationally recognized,
commercially available, standardized assessments of the applicant's ability to speak and write; and
(iii) if a majority of States licensing the profession in which the alien intends to work recognize a test predicting the
success on the profession's licensing or certification examination, the alien has passed such a test or has passed such an
examination.
For purposes of clause (ii), determination of the standardized tests required and of the minimum scores that are
appropriate are within the sole discretion of the Secretary of Health and Human Services and are not subject to
further administrative or judicial review.
(D) Application of grounds
The grounds for inadmissibility of aliens under subparagraphs (A) and (B) shall apply to immigrants seeking
admission or adjustment of status under paragraph (2) or (3) of section 1153(b) of this title.
(6) Illegal entrants and immigration violators
(A) Aliens present without admission or parole
(i) In general
An alien present in the United States without being admitted or paroled, or who arrives in the United States at any
time or place other than as designated by the Attorney General, is inadmissible.
(ii) Exception for certain battered women and children
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Clause (i) shall not apply to an alien who demonstrates that-(I) the alien qualifies for immigrant status under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section
1134(a)(1) of this title),
(II) (a) the alien has been battered or subjected to extreme cruelty by a spouse or parent, or by a member of the
spouse's or parent's family residing in the same household as the alien and the spouse or parent consented or
acquiesced to such battery or cruelty, or (b) the alien's child has been battered or subjected to extreme cruelty by a
spouse or parent of the alien (without the active participation of the alien in the battery or cruelty) or by a member of
the spouse's or parent's family residing in the same household as the alien when the spouse or parent consented to or
acquiesced in such battery or cruelty and the alien did not actively participate in such battery or cruelty, and
(III) there was a substantial connection between the battery or cruelty described in subclause (I) or (II) and the
alien's unlawful entry into the United States.
(B) Failure to attend removal proceeding
Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine
the alien's inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien's
subsequent departure or removal is inadmissible.
(C) Misrepresentation
(i) In general
Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or
has procured) a visa, other documentation, or admission into the United States or other benefit provided under this
chapter is inadmissible.
(ii) Falsely claiming citizenship
(I) In general
Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States
for any purpose or benefit under this chapter (including section 1324a of this title) or any other Federal or State law
is inadmissible.
(II) Exception
In the case of an alien making a representation described in subclause (I), if each natural parent of the alien (or, in
the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or
naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien
reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be
considered to be inadmissible under any provision of this subsection based on such representation.
(iii) Waiver authorized
For provision authorizing waiver of clause (i), see subsection (i) of this section.
(D) Stowaways
Any alien who is a stowaway is inadmissible.
(E) Smugglers
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(i) In general
Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or
to try to enter the United States in violation of law is inadmissible.
(ii) Special rule in the case of family reunification
Clause (i) shall not apply in the case of alien who is an eligible immigrant (as defined in section 301(b)(1) of the
Immigration Act of 1990), was physically present in the United States on May 5, 1988, and is seeking admission as an
immediate relative or under section 1153(a)(2) of this title (including under section 112 of the Immigration Act of
1990) or benefits under section 301(a) of the Immigration Act of 1990 if the alien, before May 5, 1988, has
encouraged, induced, assisted, abetted, or aided only the alien's spouse, parent, son, or daughter (and no other
individual) to enter the United States in violation of law.
(iii) Waiver authorized
For provision authorizing waiver of clause (i), see subsection (d)(11) of this section.
(F) Subject of civil penalty
(i) In general
An alien who is the subject of a final order for violation of section 1324c of this title is inadmissible.
(ii) Waiver authorized
(G) Student visa abusers
An alien who obtains the status of a nonimmigrant under section 1101(a)(15)(F)(i) of this title and who violates a term
or condition of such status under section 1184(l) of this title is inadmissible until the alien has been outside the United
States for a continuous period of 5 years after the date of the violation.
(7) Documentation requirements
(A) Immigrants
(i) In general
Except as otherwise specifically provided in this chapter, any immigrant at the time of application for admission-(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification
card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel
document, or document of identity and nationality if such document is required under the regulations issued by the
Attorney General under section 1181(a) of this title, or
(II) whose visa has been issued without compliance with the provisions of section 1153 of this title,
is inadmissible.
(ii) Waiver authorized
For provision authorizing waiver of clause (i), see subsection (k) of this section.
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(B) Nonimmigrants
(i) In general
Any nonimmigrant who-(I) is not in possession of a passport valid for a minimum of six months from the date of the expiration of the
initial period of the alien's admission or contemplated initial period of stay authorizing the alien to return to the
country from which the alien came or to proceed to and enter some other country during such period, or
(II) is not in possession of a valid nonimmigrant visa or border crossing identification card at the time of
application for admission,
is inadmissible.
(ii) General waiver authorized
(iii) Guam visa waiver
For provision authorizing waiver of clause (i) in the case of visitors to Guam, see subsection (l).
(iv) Visa waiver program
For authority to waive the requirement of clause (i) under a program, see section 1187 of this title.
(8) Ineligible for citizenship
(A) In general
Any immigrant who is permanently ineligible to citizenship is inadmissible.
(B) Draft evaders
Any person who has departed from or who has remained outside the United States to avoid or evade training or service
in the armed forces in time of war or a period declared by the President to be a national emergency is inadmissible,
except that this subparagraph shall not apply to an alien who at the time of such departure was a nonimmigrant and who
is seeking to reenter the United States as a nonimmigrant.
(9) Aliens previously removed
(A) Certain aliens previously removed
(i) Arriving aliens
Any alien who has been ordered removed under section 1225(b)(1) of this title or at the end of proceedings under
section 1229a of this title initiated upon the alien's arrival in the United States and who again seeks admission within 5
years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in
the case of an alien convicted of an aggravated felony) is inadmissible.
(ii) Other aliens
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Any alien not described in clause (i) who-(I) has been ordered removed under section 240 or any other provision of law, or
(II) departed the United States while an order of removal was outstanding,
and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of
such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an
aggravated felony) is inadmissible.
(iii) Exception
Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien's
reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the
Attorney General has consented to the alien's reapplying for admission.
(B) Aliens unlawfully present
(i) In general
Any alien (other than an alien lawfully admitted for permanent residence) who-(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily
departed the United States (whether or not pursuant to section 1254a(e) [FN3] of this title) prior to the
commencement of proceedings under section 1225(b)(1) or section 1229(a) of this title, and again seeks admission
within 3 years of the date of such alien's departure or removal, or
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within
10 years of the date of such alien's departure or removal from the United States,
is inadmissible.
(ii) Construction of unlawful presence
For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present
in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the
United States without being admitted or paroled.
(iii) Exceptions
(I) Minors
No period of time in which an alien is under 18 years of age shall be taken into account in determining the period
of unlawful presence in the United States under clause (i).
(II) Asylees
No period of time in which an alien has a bona fide application for asylum pending under section 1158 of this title
shall be taken into account in determining the period of unlawful presence in the United States under clause (i)
unless the alien during such period was employed without authorization in the United States.
(III) Family unity
No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the
Immigration Act of 1990 shall be taken into account in determining the period of unlawful presence in the United
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States under clause (i).

(IV) Battered women and children
Clause (i) shall not apply to an alien who would be described in paragraph (6)(A)(ii) if "violation of the terms of
the alien's nonimmigrant visa" were substituted for "unlawful entry into the United States" in subclause (III) of that
paragraph.
(iv) Tolling for good cause
In the case of an alien who-(I) has been lawfully admitted or paroled into the United States,
(II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the
period of stay authorized by the Attorney General, and
(III) has not been employed without authorization in the United States before or during the pendency of such
application,
the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such
application, but not to exceed 120 days.
(v) Waiver
The Attorney General has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or
daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the
satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme
hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a
decision or action by the Attorney General regarding a waiver under this clause.
(C) Aliens unlawfully present after previous immigration violations
(i) In general
Any alien who-(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or
(II) has been ordered removed under section 1225(b)(1) of this title, section 1229a of this title, or any other
provision of law,
and who enters or attempts to reenter the United States without being admitted is inadmissible.
(ii) Exception
Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure
from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be
readmitted from a foreign contiguous territory, the Attorney General has consented to the alien's reapplying for
admission. The Attorney General in the Attorney General's discretion may waive the provisions of subsection
(a)(9)(C)(i) in the case of an alien to whom the Attorney General has granted classification under clause (iii), (iv), or
(v) of section 1154(a)(1)(A) of this title, or classification under clause (ii), (iii), or (iv) of section 1154(a)(1)(B) of this
title, in any case in which there is a connection between-(1) the alien's having been battered or subjected to extreme cruelty; and
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(2) the alien's-(A) removal;

(B) departure from the United States;
(C) reentry or reentries into the United States; or
(D) attempted reentry into the United States.
(10) Miscellaneous
(A) Practicing polygamists
Any immigrant who is coming to the United States to practice polygamy is inadmissible.
(B) Guardian required to accompany helpless alien
Any alien-(i) who is accompanying another alien who is inadmissible and who is certified to be helpless from sickness, mental
or physical disability, or infancy pursuant to section 1222(c) of this title, and
(ii) whose protection or guardianship is determined to be required by the alien described in clause (i),
is inadmissible.
(C) International child abduction
(i) In general
Except as provided in clause (ii), any alien who, after entry of an order by a court in the United States granting
custody to a person of a United States citizen child who detains or retains the child, or withholds custody of the child,
outside the United States from the person granted custody by that order, is inadmissible until the child is surrendered
to the person granted custody by that order.
(ii) Aliens supporting abductors and relatives of abductors
Any alien who-(I) is known by the Secretary of State to have intentionally assisted an alien in the conduct described in clause (i),
(II) is known by the Secretary of State to be intentionally providing material support or safe haven to an alien
described in clause (i), or
(III) is a spouse (other than the spouse who is the parent of the abducted child), child (other than the abducted
child), parent, sibling, or agent of an alien described in clause (i), if such person has been designated by the
Secretary of State at the Secretary's sole and unreviewable discretion, is inadmissible until the child described in
clause (i) is surrendered to the person granted custody by the order described in that clause, and such person and
child are permitted to return to the United States or such person's place of residence.
(iii) Exceptions
Clauses (i) and (ii) shall not apply-(I) to a government official of the United States who is acting within the scope of his or her official duties;
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(II) to a government official of any foreign government if the official has been designated by the Secretary of State
at the Secretary's sole and unreviewable discretion; or
(III) so long as the child is located in a foreign state that is a party to the Convention on the Civil Aspects of
International Child Abduction, done at The Hague on October 25, 1980.
(D) Unlawful voters
(i) In general
Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or
regulation is inadmissible.
(ii) Exception
In the case of an alien who voted in a Federal, State, or local election (including an initiative, recall, or referendum)
in violation of a lawful restriction of voting to citizens, if each natural parent of the alien (or, in the case of an adopted
alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently
resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such
violation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this
subsection based on such violation.
(E) Former citizens who renounced citizenship to avoid taxation
Any alien who is a former citizen of the United States who officially renounces United States citizenship and who is
determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by
the United States is inadmissible.
(b) Notices of denials
(1) Subject to paragraphs (2) and (3), if an alien's application for a visa, for admission to the United States, or for
adjustment of status is denied by an immigration or consular officer because the officer determines the alien to be
inadmissible under subsection (a) of this section, the officer shall provide the alien with a timely written notice that-(A) states the determination, and
(B) lists the specific provision or provisions of law under which the alien is inadmissible or ineligible for entry or
adjustment [FN4] of status.
(2) The Secretary of State may waive the requirements of paragraph (1) with respect to a particular alien or any class or
classes of inadmissible aliens.
(3) Paragraph (1) does not apply to any alien inadmissible under paragraph (2) or (3) of subsection (a) of this section.
(c) Repealed. Pub.L. 104-208, Div. C, Title III, 304(b), Sept. 30, 1996, 110 Stat. 3009-597
(d) Temporary admission of nonimmigrants
(1) The Attorney General shall determine whether a ground for inadmissibility exists with respect to a nonimmigrant
described in section 1101(a)(15)(S) of this title. The Attorney General, in the Attorney General's discretion, may waive the
application of subsection (a) of this section (other than paragraph (3)(E)) in the case of a nonimmigrant described in section
1101(a)(15)(S) of this title, if the Attorney General considers it to be in the national interest to do so. Nothing in this section
shall be regarded as prohibiting the Immigration and Naturalization Service from instituting removal proceedings against an
alien admitted as a nonimmigrant under section 1101(a)(15)(S) of this title for conduct committed after the alien's admission
into the United States, or for conduct or a condition that was not disclosed to the Attorney General prior to the alien's
admission as a nonimmigrant under section 1101(a)(15)(S) of this title.
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(2) Repealed. Pub.L. 101-649, Title VI, 601(d)(2)(A), Nov. 29, 1990, 104 Stat. 5076
(3) Except as provided in this subsection, an alien (A) who is applying for a nonimmigrant visa and is known or believed
by the consular officer to be ineligible for such visa under subsection (a) of this section (other than paragraphs (3)(A)(i)(I),
(3)(A)(ii), (3)(A)(iii), (3)(C), and (3)(E) of such subsection), may, after approval by the Attorney General of a
recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his
inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the
discretion of the Attorney General, or (B) who is inadmissible under subsection (a) of this section (other than paragraphs
(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and (3)(E) of such subsection), but who is in possession of appropriate documents
or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a
nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction
of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for
temporary admission under this paragraph.
(4) Either or both of the requirements of paragraph (7)(B)(i) of subsection (a) of this section may be waived by the
Attorney General and the Secretary of State acting jointly (A) on the basis of unforeseen emergency in individual cases, or
(B) on the basis of reciprocity with respect to nationals of foreign contiguous territory or of adjacent islands and residents
thereof having a common nationality with such nationals, or (C) in the case of aliens proceeding in immediate and continuous
transit through the United States under contracts authorized in section 1223(c) of this title.
(5)(A) The Attorney General may, except as provided in subparagraph (B) or in section 1184(f) of this title, in his
discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis
for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such
parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the
opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which
he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for
admission to the United States.
(B) The Attorney General may not parole into the United States an alien who is a refugee unless the Attorney General
determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled
into the United States rather than be admitted as a refugee under section 1157 of this title.
(6) Repealed. Pub.L. 101-649, Title VI, 601(d)(2)(A), Nov. 29, 1990, 104 Stat. 5076
(7) The provisions of subsection (a) of this section (other than paragraph (7)) shall be applicable to any alien who shall
leave Guam, Puerto Rico, or the Virgin Islands of the United States, and who seeks to enter the continental United States or
any other place under the jurisdiction of the United States. The Attorney General shall by regulations provide a method and
procedure for the temporary admission to the United States of the aliens described in this proviso. [FN5] Any alien described
in this paragraph, who is denied admission to the United States, shall be immediately removed in the manner provided by
section 1231(c) of this title.
(8) Upon a basis of reciprocity accredited officials of foreign governments, their immediate families, attendants, servants,
and personal employees may be admitted in immediate and continuous transit through the United States without regard to the
provisions of this section except paragraphs (3)(A), (3)(B), (3)(C), and (7)(B) of subsection (a) of this section.
(9), (10) Repealed. Pub.L. 101-649, Title VI, 601(d)(2)(A), Nov. 29, 1990, 104 Stat. 5076
(11) The Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise
in the public interest, waive application of clause (i) of subsection (a)(6)(E) of this section in the case of any alien lawfully
admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and who
is otherwise admissible to the United States as a returning resident under section 1181(b) of this title and in the case of an
alien seeking admission or adjustment of status as an immediate relative or immigrant under section 1153(a) of this title
(other than paragraph (4) thereof), if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at
the time of such action was the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in
violation of law.
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(12) The Attorney General may, in the discretion of the Attorney General for humanitarian purposes or to assure family
unity, waive application of clause (i) of subsection (a)(6)(F) of this section-(A) in the case of an alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and
not under an order of deportation or removal and who is otherwise admissible to the United States as a returning resident
under section 1181(b) of this title, and
(B) in the case of an alien seeking admission or adjustment of status under section 1151(b)(2)(A) of this title or under
section 1153(a) of this title,
if no previous civil money penalty was imposed against the alien under section 1324c of this title and the offense was
committed solely to assist, aid, or support the alien's spouse or child (and not another individual). No court shall have
jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this paragraph.
(13)(A) [FN6] The Attorney General shall determine whether a ground for inadmissibility exists with respect to a
nonimmigrant described in section 1101(a)(15)(T) of this title.
(B) In addition to any other waiver that may be available under this section, in the case of a nonimmigrant described in
section 1101(a)(15)(T) of this title, if the Attorney General considers it to be in the National interest to do so, the Attorney
General, in the Attorney General's discretion, may waive the application of
(i) paragraphs (1) and (4) of subsection (a); and
(ii) any other provision of such subsection (excluding paragraphs (3), (10)(C), and (10(E)) [FN7] if the activities
rendering the alien inadmissible under the provision were caused by, or were incident to, the victimization described in
section 1101(a)(15)(T)(i)(I) of this title.
(13) [FN6] The Attorney General shall determine whether a ground of inadmissibility exists with respect to a
nonimmigrant described in section 1101(a)(15)(U) of this title. The Attorney General, in the Attorney General's discretion,
may waive the application of subsection (a) (other than paragraph (3)(E)) in the case of a nonimmigrant described in section
1101(a)(15)(U) of this title, if the Attorney General considers it to be in the public or national interest to do so.
(e) Educational visitor status; foreign residence requirement; waiver
No person admitted under section 1101(a)(15)(J) of this title or acquiring such status after admission (i) whose
participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by
an agency of the Government of the United States or by the government of the country of his nationality or his last residence,
(ii) who at the time of admission or acquisition of status under section 1101(a)(15)(J) of this title was a national or resident of
a country which the Director of the United States Information Agency, pursuant to regulations prescribed by him, had
designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the
alien was engaged, or (iii) who came to the United States or acquired such status in order to receive graduate medical
education or training, shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa
under section 1101(a)(15)(H) or section 1101(a)(15)(L) 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 for an aggregate of at least two years following
departure from the United States: Provided, That upon the favorable recommendation of the Director, pursuant to the request
of an interested United States Government agency (or, in the case of an alien described in clause (iii), pursuant to the request
of a State Department of Public Health, or its equivalent), or of the Commissioner of Immigration and Naturalization after he
has determined that departure from the United States 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), or that the alien cannot return to the country
of his nationality or last residence because he would be subject to persecution on account of race, religion, or political
opinion, the Attorney General may waive the requirement of such two-year foreign residence abroad in the case of any alien
whose admission to the United States is found by the Attorney General to be in the public interest except that in the case of a
waiver requested by a State Department of Public Health, or its equivalent, or in the case of a waiver requested by an
interested United States Government agency on behalf of an alien described in clause (iii), the waiver shall be subject to the
requirements of section 1184(l) of this title: And provided further, That, except in the case of an alien described in clause (iii),
the Attorney General may, upon the favorable recommendation of the Director, waive such two-year foreign residence
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requirement in any case in which the foreign country of the alien's nationality or last residence has furnished the Director a
statement in writing that it has no objection to such waiver in the case of such alien.
(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be
detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary,
suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any
restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to
comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent
documents used by passengers traveling to the United States (including the training of personnel in such detection), the
Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
(g) Bond and conditions for admission of alien inadmissible on health-related grounds
The Attorney General may waive the application of-(1) subsection (a)(1)(A)(i) in the case of any alien who-(A) is the spouse or the unmarried son or daughter, or the minor unmarried lawfully adopted child, of a United States
citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa,
(B) has a son or daughter who is a United States citizen, or an alien lawfully admitted for permanent residence, or an
alien who has been issued an immigrant visa; or
(C) qualifies for classification under clause (iii) or (iv) of section 1154(a)(1)(A) of this title or classification under
clause (ii) or (iii) of section 1154(a)(1)(B) of this title;
in accordance with such terms, conditions, and controls, if any, including the giving of bond, as the Attorney General, in
the discretion of the Attorney General after consultation with the Secretary of Health and Human Services, may by
regulation prescribe;
(2) subsection (a)(1)(A)(ii) of this section in the case of any alien-(A) who receives vaccination against the vaccine-preventable disease or diseases for which the alien has failed to
present documentation of previous vaccination,
(B) for whom a civil surgeon, medical officer, or panel physician (as those terms are defined by section 34.2 of title 42
of the Code of Federal Regulations) certifies, according to such regulations as the Secretary of Health and Human
Services may prescribe, that such vaccination would not be medically appropriate, or
(C) under such circumstances as the Attorney General provides by regulation, with respect to whom the requirement
of such a vaccination would be contrary to the alien's religious beliefs or moral convictions; or
(3) subsection (a)(1)(A)(iii) of this section in the case of any alien, in accordance with such terms, conditions, and
controls, if any, including the giving of bond, as the Attorney General, in the discretion of the Attorney General after
consultation with the Secretary of Health and Human Services, may by regulation prescribe.
(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E)
The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of
subsection (a)(2) of this section and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of
simple possession of 30 grams or less of marijuana if-(1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that-(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the
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alien is inadmissible occurred more than 15 years before the date of the alien's application for a visa, admission, or
adjustment of status,
(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of
the United States, and
(iii) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien
lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's
denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son,
or daughter of such alien; or
(C) the alien qualifies for classification under clause (iii) or (iv) of section 1154(a)(1)(A) of this title or classification
under clause (ii) or (iii) of section 1154(a)(1)(B) of this title; and
(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by
regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or
adjustment of status.
No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted
committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a
criminal act involving torture. No waiver shall be granted under this subsection in the case of an alien who has previously
been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such
admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the
United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the
alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a
waiver under this subsection.
(i) Admission of immigrant inadmissible for fraud or willful misrepresentation of material fact
(1) The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection
(a)(6)(C) of this section in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an
alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal
of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident
spouse or parent of such an alien or, in the case of an alien granted classification under clause (iii) or (iv) of section
1154(a)(1)(A) of this title or clause (ii) or (iii) of section 1154 (a)(1)(B) of this title, the alien demonstrates extreme hardship
to the alien or the alien's United States citizen, lawful permanent resident, or qualified alien parent or child.
(2) No court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under
paragraph (1).
(j) Limitation on immigration of foreign medical graduates
(1) The additional requirements referred to in section 1101(a)(15)(J) of this title for an alien who is coming to the United
States under a program under which he will receive graduate medical education or training are as follows:
(A) A school of medicine or of one of the other health professions, which is accredited by a body or bodies approved for
the purpose by the Secretary of Education, has agreed in writing to provide the graduate medical education or training
under the program for which the alien is coming to the United States or to assume responsibility for arranging for the
provision thereof by an appropriate public or nonprofit private institution or agency, except that, in the case of such an
agreement by a school of medicine, any one or more of its affiliated hospitals which are to participate in the provision of
the graduate medical education or training must join in the agreement.
(B) Before making such agreement, the accredited school has been satisfied that the alien (i) is a graduate of a school of
medicine which is accredited by a body or bodies approved for the purpose by the Secretary of Education (regardless of
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whether such school of medicine is in the United States); or (ii)(I) has passed parts I and II of the National Board of
Medical Examiners Examination (or an equivalent examination as determined by the Secretary of Health and Human
Services), (II) has competency in oral and written English, (III) will be able to adapt to the educational and cultural
environment in which he will be receiving his education or training, and (IV) has adequate prior education and training to
participate satisfactorily in the program for which he is coming to the United States. For the purposes of this subparagraph,
an alien who is a graduate of a medical school shall be considered to have passed parts I and II of the National Board of
Medical Examiners Examination if the alien was fully and permanently licensed to practice medicine in a State on January
9, 1978, and was practicing medicine in a State on that date.
(C) The alien has made a commitment to return to the country of his nationality or last residence upon completion of the
education or training for which he is coming to the United States, and the government of the country of his nationality or
last residence has provided a written assurance, satisfactory to the Secretary of Health and Human Services, that there is a
need in that country for persons with the skills the alien will acquire in such education or training.
(D) The duration of the alien's participation in the program of graduate medical education or training for which the alien
is coming to the United States is limited to the time typically required to complete such program, as determined by the
Director of the United States Information Agency at the time of the alien's admission into the United States, based on
criteria which are established in coordination with the Secretary of Health and Human Services and which take into
consideration the published requirements of the medical specialty board which administers such education or training
program; except that-(i) such duration is further limited to seven years unless the alien has demonstrated to the satisfaction of the Director
that the country to which the alien will return at the end of such specialty education or training has an exceptional need
for an individual trained in such specialty, and
(ii) the alien may, once and not later than two years after the date the alien is admitted to the United States as an
exchange visitor or acquires exchange visitor status, change the alien's designated program of graduate medical
education or training if the Director approves the change and if a commitment and written assurance with respect to the
alien's new program have been provided in accordance with subparagraph (C).
(E) The alien furnishes the Attorney General each year with an affidavit (in such form as the Attorney General shall
prescribe) that attests that the alien (i) is in good standing in the program of graduate medical education or training in
which the alien is participating, and (ii) will return to the country of his nationality or last residence upon completion of the
education or training for which he came to the United States.
(2) An alien who is a graduate of a medical school and who is coming to the United States to perform services as a member
of the medical profession may not be admitted as a nonimmigrant under section 1101(a)(15)(H)(i)(b) of this title unless-(A) the alien is coming pursuant to an invitation from a public or nonprofit private educational or research institution or
agency in the United States to teach or conduct research, or both, at or for such institution or agency, or
(B)(i) the alien has passed the Federation licensing examination (administered by the Federation of State Medical Boards
of the United States) or an equivalent examination as determined by the Secretary of Health and Human Services, and
(ii) (I) has competency in oral and written English or (II) is a graduate of a school of medicine which is accredited by a
body or bodies approved for the purpose by the Secretary of Education (regardless of whether such school of medicine is in
the United States).
(3) The Director of the United States Information Agency annually shall transmit to the Congress a report on aliens who
have submitted affidavits described in paragraph (1)(E), and shall include in such report the name and address of each such
alien, the medical education or training program in which such alien is participating, and the status of such alien in that
program.
(k) Attorney General's discretion to admit otherwise inadmissible aliens who possess immigrant visas
Any alien, inadmissible from the United States under paragraph (5)(A) or (7)(A)(i) of subsection (a) of this section, who is
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in possession of an immigrant visa may, if otherwise admissible, be admitted in the discretion of the Attorney General if the
Attorney General is satisfied that inadmissibility was not known to, and could not have been ascertained by the exercise of
reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the
United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous
territory, before the time of the immigrant's application for admission.
(l) Guam; waiver of requirements for nonimmigrant visitors; conditions of waiver; acceptance of funds from Guam
(1) The requirement of paragraph (7)(B)(i) of subsection (a) of this section may be waived by the Attorney General, the
Secretary of State, and the Secretary of the Interior, acting jointly, in the case of an alien applying for admission as a
nonimmigrant visitor for business or pleasure and solely for entry into and stay on Guam for a period not to exceed fifteen
days, if the Attorney General, the Secretary of State, and the Secretary of the Interior, after consultation with the Governor of
Guam, jointly determine that-(A) an adequate arrival and departure control system has been developed on Guam, and
(B) such a waiver does not represent a threat to the welfare, safety, or security of the United States or its territories and
commonwealths.
(2) An alien may not be provided a waiver under this subsection unless the alien has waived any right-(A) to review or appeal under this chapter of an immigration officer's determination as to the admissibility of the alien at
the port of entry into Guam, or
(B) to contest, other than on the basis of an application for asylum, any action for removal of the alien.
(3) If adequate appropriated funds to carry out this subsection are not otherwise available, the Attorney General is
authorized to accept from the Government of Guam such funds as may be tendered to cover all or any part of the cost of
administration and enforcement of this subsection.
(m) Requirements for admission of nonimmigrant nurses during five-year period
(1) The qualifications referred to in section 1101(a)(15)(H)(i)(c) of this title, with respect to an alien who is coming to the
United States to perform nursing services for a facility, are that the alien
(A) has obtained a full and unrestricted license to practice professional nursing in the country where the alien obtained
nursing education or has received nursing education in the United States;
(B) has passed an appropriate examination (recognized in regulations promulgated in consultation with the Secretary of
Health and Human Services) or has a full and unrestricted license under State law to practice professional nursing in the
State of intended employment; and
(C) is fully qualified and eligible under the laws (including such temporary or interim licensing requirements which
authorize the nurse to be employed) governing the place of intended employment to engage in the practice of professional
nursing as a registered nurse immediately upon admission to the United States and is authorized under such laws to be
employed by the facility.
(2)(A) The attestation referred to in section 1101(a)(15)(H)(i)(c) of this title, with respect to a facility for which an alien
will perform services, is an attestation as to the following:
(i) The facility meets all the requirements of paragraph (6).
(ii) The employment of the alien will not adversely affect the wages and working conditions of registered nurses
similarly employed.
(iii) The alien employed by the facility will be paid the wage rate for registered nurses similarly employed by the facility.
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(iv) The facility has taken and is taking timely and significant steps designed to recruit and retain sufficient registered
nurses who are United States citizens or immigrants who are authorized to perform nursing services, in order to remove as
quickly as reasonably possible the dependence of the facility on nonimmigrant registered nurses.
(v) There is not a strike or lockout in the course of a labor dispute, the facility did not lay off and will not lay off a
registered nurse employed by the facility within the period beginning 90 days before and ending 90 days after the date of
filing of any visa petition, and the employment of such an alien is not intended or designed to influence an election for a
bargaining representative for registered nurses of the facility.
(vi) At the time of the filing of the petition for registered nurses under section 1101(a)(15)(H)(i)(c) of this title, notice of
the filing has been provided by the facility to the bargaining representative of the registered nurses at the facility or, where
there is no such bargaining representative, notice of the filing has been provided to the registered nurses employed at the
facility through posting in conspicuous locations.
(vii) The facility will not, at any time, employ a number of aliens issued visas or otherwise provided nonimmigrant status
under section 1101(a)(15)(H)(i)(c) of this title that exceeds 33 percent of the total number of registered nurses employed by
the facility.
(viii) The facility will not, with respect to any alien issued a visa or otherwise provided nonimmigrant status under
section 1101(a)(15)(H)(i)(c) of this title-(I) authorize the alien to perform nursing services at any worksite other than a worksite controlled by the facility; or
(II) transfer the place of employment of the alien from one worksite to another. Nothing in clause (iv) shall be
construed as requiring a facility to have taken significant steps described in such clause before the date of the enactment
of the Nursing Relief for Disadvantaged Areas Act of 1999. A copy of the attestation shall be provided, within 30 days
of the date of filing, to registered nurses employed at the facility on the date of filing.
(B) For purposes of subparagraph (A)(iv), each of the following shall be considered a significant step reasonably designed
to recruit and retain registered nurses:
(i) Operating a training program for registered nurses at the facility or financing (or providing participation in) a training
program for registered nurses elsewhere.
(ii) Providing career development programs and other methods of facilitating health care workers to become registered
nurses.
(iii) Paying registered nurses wages at a rate higher than currently being paid to registered nurses similarly employed in
the geographic area.
(iv) Providing reasonable opportunities for meaningful salary advancement by registered nurses.
The steps described in this subparagraph shall not be considered to be an exclusive list of the significant steps that may be
taken to meet the conditions of subparagraph (A)(iv). Nothing in this subparagraph shall require a facility to take more than
one step if the facility can demonstrate that taking a second step is not reasonable
(C) Subject to subparagraph (E), an attestation under subparagraph (A)-(i) shall expire on the date that is the later of-(I) the end of the one-year period beginning on the date of its filing with the Secretary of Labor; or
(II) the end of the period of admission under section 1101(a)(15)(H)(i)(c) of this title of the last alien with respect to
whose admission it was applied (in accordance with clause (ii)); and
(ii) shall apply to petitions filed during the one-year period beginning on the date of its filing with the Secretary of Labor
if the facility states in each such petition that it continues to comply with the conditions in the attestation.
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(D) A facility may meet the requirements under this paragraph with respect to more than one registered nurse in a single
petition.
(E)(i) The Secretary of Labor shall compile and make available for public examination in a timely manner in Washington,
D.C., a list identifying facilities which have filed petitions for nonimmigrants under section 1101(a)(15)(H)(i)(c) and, for
each such facility, a copy of the facility's attestation under subparagraph (A) (and accompanying documentation) and each
such petition filed by the facility.
(ii) The Secretary of Labor shall establish a process, including reasonable time limits, for the receipt, investigation, and
disposition of complaints respecting a facility's failure to meet conditions attested to or a facility's misrepresentation of a
material fact in an attestation. Complaints may be filed by any aggrieved person or organization (including bargaining
representatives, associations deemed appropriate by the Secretary, and other aggrieved parties as determined under
regulations of the Secretary). The Secretary shall conduct an investigation under this clause if there is reasonable cause to
believe that a facility fails to meet conditions attested to. Subject to the time limits established under this clause, this
subparagraph shall apply regardless of whether an attestation is expired or unexpired at the time a complaint is filed.
(iii) Under such process, the Secretary shall provide, within 180 days after the date such a complaint is filed, for a
determination as to whether or not a basis exists to make a finding described in clause (iv). If the Secretary determines that
such a basis exists, the Secretary shall provide for notice of such determination to the interested parties and an opportunity for
a hearing on the complaint within 60 days of the date of the determination.
(iv) If the Secretary of Labor finds, after notice and opportunity for a hearing, that a facility (for which an attestation is
made) has failed to meet a condition attested to or that there was a misrepresentation of material fact in the attestation, the
Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies
(including civil monetary penalties in an amount not to exceed $1,000 per nurse per violation, with the total penalty not to
exceed $10,000 per violation) as the Secretary determines to be appropriate. Upon receipt of such notice, the Attorney
General shall not approve petitions filed with respect to a facility during a period of at least one year for nurses to be
(v) In addition to the sanctions provided for under clause (iv), if the Secretary of Labor finds, after notice and an
opportunity for a hearing, that a facility has violated the condition attested to under subparagraph (A)(iii) (relating to payment
of registered nurses at the prevailing wage rate), the Secretary shall order the facility to provide for payment of such amounts
of back pay as may be required to comply with such condition.
(F)(i) The Secretary of Labor shall impose on a facility filing an attestation under subparagraph (A) a filing fee, in an
amount prescribed by the Secretary based on the costs of carrying out the Secretary's duties under this subsection, but not
exceeding $250.
(ii) Fees collected under this subparagraph shall be deposited in a fund established for this purpose in the Treasury of the
United States.
(iii) The collected fees in the fund shall be available to the Secretary of Labor, to the extent and in such amounts as may be
provided in appropriations Acts, to cover the costs described in clause (i), in addition to any other funds that are available to
the Secretary to cover such costs.
(3) The period of admission of an alien under section 1101(a)(15)(H)(i)(c) of this title shall be 3 years.
(4) The total number of nonimmigrant visas issued pursuant to petitions granted under section 1101(a)(15)(H)(i)(c) of this
title in each fiscal year shall not exceed 500. The number of such visas issued for employment in each State in each fiscal
year shall not exceed the following:
(A) For States with populations of less than 9,000,000, based upon the 1990 decennial census of population, 25 visas.
(B) For States with populations of 9,000,000 or more, based upon the 1990 decennial census of population, 50 visas.
(C) If the total number of visas available under this paragraph for a fiscal year quarter exceeds the number of qualified
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nonimmigrants who may be issued such visas during those quarters, the visas made available under this paragraph shall be
issued without regard to the numerical limitation under subparagraph (A) or (B) of this paragraph during the last fiscal year
quarter.
(5) A facility that has filed a petition under section 1101(a)(15)(H)(i)(c) of this title to employ a nonimmigrant to perform
nursing services for the facility
(A) shall provide the nonimmigrant a wage rate and working conditions commensurate with those of nurses similarly
employed by the facility;
(B) shall require the nonimmigrant to work hours commensurate with those of nurses similarly employed by the facility;
and
(C) shall not interfere with the right of the nonimmigrant to join or organize a union.
(6) For purposes of this subsection and section 1101(a)(15)(H)(i)(c) of this title, the term "facility" means a subsection (d)
hospital (as defined in section 1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww (d)(1)(B))) that meets the
following requirements:
(A) As of March 31, 1997, the hospital was located in a health professional shortage area (as defined in section 332 of
the Public Health Service Act (42 U.S.C. 254e)).
(B) Based on its settled cost report filed under title XVIII of the Social Security Act [42 U.S.C.A. 1395 et seq.] for its
cost reporting period beginning during fiscal year 1994-(i) the hospital has not less than 190 licensed acute care beds;
(ii) the number of the hospital's inpatient days for such period which were made up of patients who (for such days)
were entitled to benefits under part A of such title [42 U.S.C.A. 1395c et seq.] is not less than 35 percent of the total
number of such hospital's acute care inpatient days for such period; and
(iii) the number of the hospital's inpatient days for such period which were made up of patients who (for such days)
were eligible for medical assistance under a State plan approved under title XIX of the Social Security Act [42 U.S.C.A.
1396 et seq.], is not less than 28 percent of the total number of such hospital's acute care inpatient days for such period.
(7) For purposes of paragraph (2)(A)(v), the term "lay off", with respect to a worker-(A) means to cause the worker's loss of employment, other than through a discharge for inadequate performance,
violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract; but
(B) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar
employment opportunity with the same employer at equivalent or higher compensation and benefits than the position from
which the employee was discharged, regardless of whether or not the employee accepts the offer.
Nothing in this paragraph is intended to limit an employee's or an employer's rights under a collective bargaining agreement
or other employment contract.
(n) Labor condition application
(1) No alien may be admitted or provided status as an H-1B nonimmigrant in an occupational classification unless the
employer has filed with the Secretary of Labor an application stating the following:
(A) The employer-(i) is offering and will offer during the period of authorized employment to aliens admitted or provided status as a
nonimmigrant described in section 1101(a)(15)(H)(i)(b) of this title wages that are at least--
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(I) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the
specific employment in question, or
(II) the prevailing wage level for the occupational classification in the area of employment,
whichever is greater, based on the best information available as of the time of filing the application, and
(ii) will provide working conditions for such a nonimmigrant that will not adversely affect the working conditions of
workers similarly employed.
(B) There is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of
employment.
(C) The employer, at the time of filing the application-(i) has provided notice of the filing under this paragraph to the bargaining representative (if any) of the employer's
employees in the occupational classification and area for which aliens are sought, or
(ii) if there is no such bargaining representative, has provided notice of filing in the occupational classification through
such methods as physical posting in conspicuous locations at the place of employment or electronic notification to
employees in the occupational classification for which H-1B nonimmigrants are sought.
(D) The application shall contain a specification of the number of workers sought, the occupational classification in
which the workers will be employed, and wage rate and conditions under which they will be employed.
(E)(i) In the case of an application described in clause (ii), the employer did not displace and will not displace a United
States worker (as defined in paragraph (4)) employed by the employer within the period beginning 90 days before and
ending 90 days after the date of filing of any visa petition supported by the application.
(ii) An application described in this clause is an application filed on or after the date final regulations are first
promulgated to carry out this subparagraph, and before October 1, 2003, by an H-1B-dependent employer (as defined in
paragraph (3)) or by an employer that has been found, on or after October 21, 1998, under paragraph (2)(C) or (5) to have
committed a willful failure or misrepresentation during the 5-year period preceding the filing of the application. An
application is not described in this clause if the only H- 1B nonimmigrants sought in the application are exempt H-1B
nonimmigrants.
(F) In the case of an application described insubparagraph (E)(ii), the employer will not place the nonimmigrant with
another employer (regardless of whether or not such other employer is an H-1B-dependent employer) where-(i) the nonimmigrant performs duties in whole or in part at one or more worksites owned, operated, or controlled by
such other employer; and
(ii) there are indicia of an employment relationship between the nonimmigrant and such other employer;
unless the employer has inquired of the other employer as to whether, and has no knowledge that, within the period
beginning 90 days before and ending 90 days after the date of the placement of the nonimmigrant with the other
employer, the other employer has displaced or intends to displace a United States worker employed by the other
employer.
(G)(i) In the case of an application described in subparagraph (E)(ii), subject to clause (ii), the employer, prior to filing
the application-(I) has taken good faith steps to recruit, in the United States using procedures that meet industry wide standards and
offering compensation that is at least as great as that required to be offered to H-1B nonimmigrants under subparagraph
(A), United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought; and
(II) has offered the job to any United States worker who applies and is equally or better qualified for the job for which
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the nonimmigrant or nonimmigrants is or are sought.

(ii) The conditions described in clause (i) shall not apply to an application filed with respect to the employment of an
H-1B nonimmigrant who is described in subparagraph (A), (B), or (C) of section 203(b)(1).
The employer shall make available for public examination, within one working day after the date on which an application
under this paragraph is filed, at the employer's principal place of business or worksite, a copy of each such application (and
such accompanying documents as are necessary). The Secretary shall compile, on a current basis, a list (by employer and by
occupational classification) of the applications filed under this subsection. Such list shall include the wage rate, number of
aliens sought, period of intended employment, and date of need. The Secretary shall make such list available for public
examination in Washington, D.C. The Secretary of Labor shall review such an application only for completeness and obvious
inaccuracies. Unless the Secretary finds that the application is incomplete or obviously inaccurate, the Secretary shall provide
the certification described in section 1101(a)(15)(H)(i)(b) of this title within 7 days of the date of the filing of the application.
The application form shall include a clear statement explaining the liability under subparagraph (F) of a place employer if the
other employer described in such subparagraph displaces a United States worker as described in such subparagraph. Nothing
in subparagraph (G) shall be construed to prohibit an employer from using legitimate selection criteria relevant to the job that
are normal or customary to the type of job involved, so long as such criteria are not applied in a discriminatory manner.
(2)(A) Subject to paragraph (5)(A), the Secretary shall establish a process for the receipt, investigation, and disposition of
complaints respecting a petitioner's failure to meet a condition specified in an application submitted under paragraph (1) or a
petitioner's misrepresentation of material facts in such an application. Complaints may be filed by any aggrieved person or
organization (including bargaining representatives). No investigation or hearing shall be conducted on a complaint
concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the
failure or misrepresentation, respectively. The Secretary shall conduct an investigation under this paragraph if there is
reasonable cause to believe that such a failure or misrepresentation has occurred.
(B) Under such process, the Secretary shall provide, within 30 days after the date such a complaint is filed, for a
determination as to whether or not a reasonable basis exists to make a finding described in subparagraph (C). If the Secretary
determines that such a reasonable basis exists, the Secretary shall provide for notice of such determination to the interested
parties and an opportunity for a hearing on the complaint, in accordance with section 556 of Title 5, within 60 days after the
date of the determination. If such a hearing is requested, the Secretary shall make a finding concerning the matter by not later
than 60 days after the date of the hearing. In the case of similar complaints respecting the same applicant, the Secretary may
consolidate the hearings under this subparagraph on such complaints.
(C)(i) If the Secretary finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1)(b),
(1)(e), or (1)(f), a substantial failure to meet a condition of paragraph (1)(c), (1)(d), or (1)(g)(i)(i), or a misrepresentation of
material fact in an application-(I) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative
remedies (including civil monetary penalties in an amount not to exceed $1,000 per violation) as the Secretary determines
to be appropriate; and
(II) the Attorney General shall not approve petitions filed with respect to that employer under section 1154 or 1184(c) of
this title during a period of at least 1 year for aliens to be employed by the employer.
(ii) If the Secretary finds, after notice and opportunity for a hearing, a willful failure to meet a condition of paragraph (1), a
willful misrepresentation of material fact in an application, or a violation of clause (iv)-(I) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative
this title during a period of at least 2 years for aliens to be employed by the employer.
(iii) If the Secretary finds, after notice and opportunity for a hearing, a willful failure to meet a condition of paragraph (1)
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or a willful misrepresentation of material fact in an application, in the course of which failure or misrepresentation the
employer displaced a United States worker employed by the employer within the period beginning 90 days before and ending
90 days after the date of filing of any visa petition supported by the application-(I) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative
this title during a period of at least 3 years for aliens to be employed by the employer.
(iv) It is a violation of this clause for an employer who has filed an application under this subsection to intimidate, threaten,
restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of
this clause, includes a former employee and an applicant for employment) because the employee has disclosed information to
the employer, or to any other person, that the employee reasonably believes evidences a violation of this subsection, or any
rule or regulation pertaining to this subsection, or because the employee cooperates or seeks to cooperate in an investigation
or other proceeding concerning the employer's compliance with the requirements of this subsection or any rule or regulation
pertaining to this subsection.
(v) The Secretary of Labor and the Attorney General shall devise a process under which an H-1B nonimmigrant who files a
complaint regarding a violation of clause (iv) and is otherwise eligible to remain and work in the United States may be
allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay
authorized for such nonimmigrant classification.
(vi)(I) It is a violation of this clause for an employer who has filed an application under this subsection to require an H-1B
nonimmigrant to pay a penalty for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and
the employer. The Secretary shall determine whether a required payment is a penalty (and not liquidated damages) pursuant
to relevant State law.
(II) It is a violation of this clause for an employer who has filed an application under this subsection to require an alien
who is the subject of a petition filed under section 1184(c)(1), for which a fee is imposed under section 1184(c)(9) of this
title, to reimburse, or otherwise compensate, the employer for part or all of the cost of such fee. It is a violation of this clause
for such an employer otherwise to accept such reimbursement or compensation from such an alien.
(III) If the Secretary finds, after notice and opportunity for a hearing, that an employer has committed a violation of this
clause, the Secretary may impose a civil monetary penalty of $1,000 for each such violation and issue an administrative order
requiring the return to the nonimmigrant of any amount paid in violation of this clause, or, if the nonimmigrant cannot be
located, requiring payment of any such amount to the general fund of the Treasury.
(vii)(I) It is a failure to meet a condition of paragraph (1)(A) for an employer, who has filed an application under this
subsection and who places an H-1B nonimmigrant designated as a full-time employee on the petition filed under section
1184(c)(1) of this title by the employer with respect to the nonimmigrant, after the nonimmigrant has entered into
employment with the employer, in nonproductive status due to a decision by the employer (based on factors such as lack of
work), or due to the nonimmigrant's lack of a permit or license, to fail to pay the nonimmigrant full-time wages in accordance
with paragraph (1)(A) for all such nonproductive time.
(II) It is a failure to meet a condition of paragraph (1)(A) for an employer, who has filed an application under this
subsection and who places an H-1B nonimmigrant designated as a part-time employee on the petition filed under section
1184(c)(1) of this title by the employer with respect to the nonimmigrant, after the nonimmigrant has entered into
employment with the employer, in nonproductive status under circumstances described in subclause (I), to fail to pay such a
nonimmigrant for such hours as are designated on such petition consistent with the rate of pay identified on such petition.
(III) In the case of an H-1B nonimmigrant who has not yet entered into employment with an employer who has had
approved an application under this subsection, and a petition under section 1184(c)(1) of this title, with respect to the
nonimmigrant, the provisions of subclauses (I) and (II) shall apply to the employer beginning 30 days after the date the
nonimmigrant first is admitted into the United States pursuant to the petition, or 60 days after the date the nonimmigrant
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becomes eligible to work for the employer (in the case of a nonimmigrant who is present in the United States on the date of
the approval of the petition).
(IV) This clause does not apply to a failure to pay wages to an H-1B nonimmigrant for nonproductive time due to
non-work-related factors, such as the voluntary request of the nonimmigrant for an absence or circumstances rendering the
nonimmigrant unable to work.
(V) This clause shall not be construed as prohibiting an employer that is a school or other educational institution from
applying to an H-1B nonimmigrant an established salary practice of the employer, under which the employer pays to H-1B
nonimmigrants and United States workers in the same occupational classification an annual salary in disbursements over
fewer than 12 months, if-(aa) the nonimmigrant agrees to the compressed annual salary payments prior to the commencement of the employment;
and
(bb) the application of the salary practice to the nonimmigrant does not otherwise cause the nonimmigrant to violate any
condition of the nonimmigrant's authorization under this Act to remain in the United States.
(VI) This clause shall not be construed as superseding clause (viii).
(viii) It is a failure to meet a condition of paragraph (1)(A) for an employer who has filed an application under this
subsection to fail to offer to an H-1B nonimmigrant, during the nonimmigrant's period of authorized employment, benefits
and eligibility for benefits (including the opportunity to participate in health, life, disability, and other insurance plans; the
opportunity to participate in retirement and savings plans; and cash bonuses and non-cash compensation, such as stock
options (whether or not based on performance)) on the same basis, and in accordance with the same criteria, as the employer
offers to United States workers.
(D) If the Secretary finds, after notice and opportunity for a hearing, that an employer has not paid wages at the wage level
specified under the application and required under paragraph (1), the Secretary shall order the employer to provide for
payment of such amounts of back pay as may be required to comply with the requirements of paragraph (1), whether or not a
penalty under subparagraph (C) has been imposed.
(E) If an H-1B-dependent employer places a nonexempt h-1b nonimmigrant with another employer as provided under
paragraph (1)(f) and the other employer has displaced or displaces a United States worker employed by such other employer
during the period described in such paragraph, such displacement shall be considered for purposes of this paragraph a failure,
by the placing employer, to meet a condition specified in an application submitted under paragraph (1); except that the
attorney general may impose a sanction described in subclause (ii) of subparagraph (C)(i), (C)(ii), or (C)(iii) only if the
Secretary of labor found that such placing employer
(i) knew or had reason to know of such displacement at the time of the placement of the nonimmigrant with the other
employer; or
(ii) has been subject to a sanction under this subparagraph based upon a previous placement of an H-1B nonimmigrant
with the same other employer.
(F) The Secretary may, on a case-by-case basis, subject an employer to random investigations for a period of up to 5 years,
beginning on the date (on or after October 21, 1998) on which the employer is found by the Secretary to have committed a
willful failure to meet a condition of paragraph (1) (or has been found under paragraph (5) to have committed a willful failure
to meet the condition of paragraph (1)(G)(i)(II)) or to have made a willful misrepresentation of material fact in an application.
The preceding sentence shall apply to an employer regardless of whether or not the employer is an H- 1B-dependent
employer. The authority of the Secretary under this subparagraph shall not be construed to be subject to, or limited by, the
requirements of subparagraph (A).
(G)(i) If the Secretary receives specific credible information from a source, who is likely to have knowledge of an
employer's practices or employment conditions, or an employer's compliance with the employer's labor condition application
under paragraph (1), and whose identity is known to the Secretary, and such information provides reasonable cause to believe
8 USCA 1182
8 U.S.C.A. 1182
Page 32
that the employer has committed a willful failure to meet a condition of paragraph (1)(A), (1)(B), (1)(E), (1)(F), or
(1)(G)(i)(I), has engaged in a pattern or practice of failures to meet such a condition, or has committed a substantial failure to
meet such a condition that affects multiple employees, the Secretary may conduct a 30-day investigation into the alleged
failure or failures. The Secretary (or the Acting Secretary in the case of the Secretary's absence or disability) shall personally
certify that the requirements for conducting such an investigation have been met and shall approve commencement of the
investigation. The Secretary may withhold the identity of the source from the employer, and the source's identity shall not be
subject to disclosure under section 552 of Title 5.
(ii) The Secretary shall establish a procedure for any person, desiring to provide to the Secretary information described in
clause (i) that may be used, in whole or in part, as the basis for commencement of an investigation described in such clause,
to provide the information in writing on a form developed and provided by the Secretary and completed by or on behalf of
the person. The person may not be an officer or employee of the Department of Labor, unless the information satisfies the
requirement of clause (iii)(II) (although an officer or employee of the Department of Labor may complete the form on behalf
of the person).
(iii) Any investigation initiated or approved by the Secretary under clause (i) shall be based on information that satisfies the
requirements of such clause and that (I) originates from a source other than an officer or employee of the Department of
Labor, or (II) was lawfully obtained by the Secretary of Labor in the course of lawfully conducting another Department of
Labor investigation under this chapter or any other Act.
(iv) The receipt by the Secretary of information submitted by an employer to the Attorney General or the Secretary for
purposes of securing the employment of an H-1B nonimmigrant shall not be considered a receipt of information for purposes
of clause (i).
(v) No investigation described in clause (i) (or hearing described in clause (vii)) may be conducted with respect to
information about a failure to meet a condition described in clause (i), unless the Secretary receives the information not later
than 12 months after the date of the alleged failure.
(vi) The Secretary shall provide notice to an employer with respect to whom the Secretary has received information
described in clause (i), prior to the commencement of an investigation under such clause, of the receipt of the information and
of the potential for an investigation. The notice shall be provided in such a manner, and shall contain sufficient detail, to
permit the employer to respond to the allegations before an investigation is commenced. The Secretary is not required to
comply with this clause if the Secretary determines that to do so would interfere with an effort by the Secretary to secure
compliance by the employer with the requirements of this subsection. There shall be no judicial review of a determination by
the Secretary under this clause.
(vii) If the Secretary determines under this subparagraph that a reasonable basis exists to make a finding that a failure
described in clause (i) has occurred, the Secretary shall provide for notice of such determination to the interested parties and
an opportunity for a hearing, in accordance with section 556 of Title 5, within 60 days after the date of the determination. If
such a hearing is requested, the Secretary shall make a finding concerning the matter by not later than 60 days after the date
of the hearing.
(H) Nothing in this subsection shall be construed as superseding or preempting any other enforcement-related authority
under this chapter (such as the authorities under section 1324b of this title), or any other Act.
(3)(A) For purposes of this subsection, the term "H-1B-dependent employer" means an employer that
(i)(I) has 25 or fewer full-time equivalent employees who are employed in the United States; and (II) employs more than
7 H-1B nonimmigrants;
(ii)(I) has at least 26 but not more than 50 full-time equivalent employees who are employed in the United States; and
(II) employs more than 12 H-1B nonimmigrants; or
(iii)(I) has at least 51 full-time equivalent employees who are employed in the United States; and (II) employs H-1B
nonimmigrants in a number that is equal to at least 15 percent of the number of such full-time equivalent employees.
8 USCA 1182
8 U.S.C.A. 1182
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(B) For purposes of this subsection

(i) the term "exempt H-1B nonimmigrant" means an H-1B nonimmigrant who-(I) receives wages (including cash bonuses and similar compensation) at an annual rate equal to at least $60,000; or
(II) has attained a master's or higher degree (or its equivalent) in a specialty related to the intended employment; and
(ii) the term "nonexempt H-1B nonimmigrant" means an H-1B nonimmigrant who is not an exempt H-1B nonimmigrant.
(C) For purposes of subparagraph (A)
(i) in computing the number of full-time equivalent employees and the number of H-1B nonimmigrants, exempt H-1B
nonimmigrants shall not be taken into account during the longer of-(I) the 6-month period beginning on October 21, 1998; or
(II) the period beginning on October 21, 1998 and ending on the date final regulations are issued to carry out this
paragraph; and
(ii) any group treated as a single employer under subsection (b), (c), (m), or (o) of section 414 of the Internal Revenue
Code of 1986 shall be treated as a single employer.
(4) For purposes of this subsection:
(A) The term "area of employment" means the area within normal commuting distance of the worksite or physical
location where the work of the H-1B nonimmigrant is or will be performed. If such worksite or location is within a
Metropolitan Statistical Area, any place within such area is deemed to be within the area of employment.
(B) In the case of an application with respect to one or more H-1B nonimmigrants by an employer, the employer is
considered to "displace" a United States worker from a job if the employer lays off the worker from a job that is essentially
the equivalent of the job for which the nonimmigrant or nonimmigrants is or are sought. A job shall not be considered to be
essentially equivalent of another job unless it involves essentially the same responsibilities, was held by a United States
worker with substantially equivalent qualifications and experience, and is located in the same area of employment as the
other job.
(C) The term "H-1B nonimmigrant" means an alien admitted or provided status as a nonimmigrant described in section
1101(a)(15)(H)(i)(b) of this title.
(D)(i) The term "lays off", with respect to a worker-(I) means to cause the worker's loss of employment, other than through a discharge for inadequate performance,
violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract
(other than a temporary employment contract entered into in order to evade a condition described in subparagraph (E) or
(F) of paragraph (1)); but
(II) does not include any situation in which the worker is offered, as an alternative to such loss of employment, a
similar employment opportunity with the same employer (or, in the case of a placement of a worker with another
employer under paragraph (1)(F), with either employer described in such paragraph) at equivalent or higher
compensation and benefits than the position from which the employee was discharged, regardless of whether or not the
employee accepts the offer.
(ii) Nothing in this subparagraph is intended to limit an employee's rights under a collective bargaining agreement or
other employment contract.
(E) The term "United States worker" means an employee who--
8 USCA 1182
8 U.S.C.A. 1182
Page 34
(i) is a citizen or national of the United States; or

(ii) is an alien who is lawfully admitted for permanent residence, is admitted as a refugee under section 1157 of this
title, is granted asylum under section 1158 of this title, or is an immigrant otherwise authorized, by this chapter or by the
Attorney General, to be employed.
(5)(A) This paragraph shall apply instead of subparagraphs (A) through (E) of paragraph (2) in the case of a violation
described in subparagraph (B), but shall not be construed to limit or affect the authority of the Secretary or the Attorney
General with respect to any other violation.
(B) The Attorney General shall establish a process for the receipt, initial review, and disposition in accordance with this
paragraph of complaints respecting an employer's failure to meet the condition of paragraph (1)(G)(i)(II) or a petitioner's
misrepresentation of material facts with respect to such condition. Complaints may be filed by an aggrieved individual who
has submitted a resume or otherwise applied in a reasonable manner for the job that is the subject of the condition. No
proceeding shall be conducted under this paragraph on a complaint concerning such a failure or misrepresentation unless the
Attorney General determines that the complaint was filed not later than 12 months after the date of the failure or
misrepresentation, respectively.
(C) If the Attorney General finds that a complaint has been filed in accordance with subparagraph (B) and there is
reasonable cause to believe that such a failure or misrepresentation described in such complaint has occurred, the Attorney
General shall initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint
an arbitrator from the roster of arbitrators maintained by such Service. The procedure and rules of such Service shall be
applicable to the selection of such arbitrator and to such arbitration proceedings. The Attorney General shall pay the fee and
expenses of the arbitrator.
(D)(i) The arbitrator shall make findings respecting whether a failure or misrepresentation described in subparagraph (B)
occurred. If the arbitrator concludes that failure or misrepresentation was willful, the arbitrator shall make a finding to that
effect. The arbitrator may not find such a failure or misrepresentation (or that such a failure or misrepresentation was willful)
unless the complainant demonstrates such a failure or misrepresentation (or its willful character) by clear and convincing
evidence. The arbitrator shall transmit the findings in the form of a written opinion to the parties to the arbitration and the
Attorney General. Such findings shall be final and conclusive, and, except as provided in this subparagraph, no official or
court of the United States shall have power or jurisdiction to review any such findings.
(ii) The Attorney General may review and reverse or modify the findings of an arbitrator only on the same bases as an
award of an arbitrator may be vacated or modified under section 10 or 11 of Title 9.
(iii) With respect to the findings of an arbitrator, a court may review only the actions of the Attorney General under clause
(ii) and may set aside such actions only on the grounds described in subparagraph (A), (B), or (C) of section 706(a)(2) of
Title 5. Notwithstanding any other provision of law, such judicial review may only be brought in an appropriate United States
court of appeals.
(E) If the attorney general receives a finding of an arbitrator under this paragraph that an employer has failed to meet the
condition of paragraph (1)(g)(i)(ii) or has misrepresented a material fact with respect to such condition, unless the attorney
general reverses or modifies the finding under subparagraph (d)(ii)
(i) the Attorney General may impose administrative remedies (including civil monetary penalties in an amount not to
exceed $1,000 per violation or $5,000 per violation in the case of a willful failure or misrepresentation) as the Attorney
General determines to be appropriate; and
(ii) the Attorney General is authorized to not approve petitions filed, with respect to that employer and for aliens to be
employed by the employer, under section 1154 or 1184(c) of this title-(I) during a period of not more than 1 year; or
(II) in the case of a willful failure or willful misrepresentation, during a period of not more than 2 years.
8 USCA 1182
8 U.S.C.A. 1182
Page 35
(F) The Attorney General shall not delegate, to any other employee or official of the Department of Justice, any function of
the Attorney General under this paragraph, until 60 days after the Attorney General has submitted a plan for such delegation
to the Committees on the Judiciary of the United States House of Representatives and the Senate.
(o) Omitted
(p) [FN8] Computation of prevailing wage level
(1) In computing the prevailing wage level for an occupational classification in an area of employment for purposes of
subsections (n)(1)(a)(i)(ii) and (a)(5)(a) in the case of an employee of
(A) an institution of higher education (as defined in section 1001(a) of Title 20), or a related or affiliated nonprofit entity;
or
(B) a nonprofit research organization or a Governmental research organization,
the prevailing wage level shall only take into account employees at such institutions and organizations in the area of
employment
(2) With respect to a professional athlete (as defined in subsection (a)(5)(A)(iii)(II)) when the job opportunity is covered by
professional sports league rules or regulations, the wage set forth in those rules or regulations shall be considered as not
adversely affecting the wages of United States workers similarly employed and be considered the prevailing wage.
(p) [FN8] Public charges
In determining whether an alien described in subsection (a)(4)(C)( i) is inadmissible under subsection (a)(4) or ineligible to
receive an immigrant visa or otherwise to adjust to the status of permanent resident by reason of subsection (a)(4), the
consular officer or the Attorney General shall not consider any benefits the alien may have received that were authorized
under section 1641(c) of this title.
(q) Any alien admitted under section 1101(a)(15)(B) of this title may accept an honorarium payment and associated
incidental expenses for a usual academic activity or activities (lasting not longer than 9 days at any single institution), as
defined by the Attorney General in consultation with the Secretary of Education, if such payment is offered by an institution
or organization described in subsection (p)(1) and is made for services conducted for the benefit of that institution or entity
and if the alien has not accepted such payment or expenses from more than 5 institutions or organizations in the previous
6-month period.
(r) Certification for certain alien nurses
Subsection (a)(5)(C) shall not apply to an alien who seeks to enter the United States for the purpose of performing labor as
a nurse who presents to the consular officer (or in the case of an adjustment of status, the Attorney General) a certified
Statement from the Commission on Graduates of Foreign Nursing Schools (or an equivalent independent credentialing
organization approved for the certification of nurses under subsection (a)(5)(C) by the Attorney General in consultation with
the Secretary of Health and Human Services) that-(1) the alien has a valid and unrestricted license as a nurse in a State where the alien intends to be employed and such
State verifies that the foreign licenses of alien nurses are authentic and unencumbered;
(2) the alien has passed the National Council Licensure Examination (NCLEX);
(3) the alien is a graduate of a nursing program-(A) in which the language of instruction was English;
(B) located in a country--
8 USCA 1182
8 U.S.C.A. 1182
Page 36
(i) designated by such commission not later than 30 days after November 12, 1999, based on such commission's
assessment that the quality of nursing education in that country, and the English language proficiency of those who
complete such programs in that country, justify the country's designation; or
(ii) designated on the basis of such an assessment by unanimous agreement of such commission and any equivalent
credentialing organizations which have been approved under subsection (a)(5)(C) for the certification of nurses under
this subsection; and
(C)(i) which was in operation on or before November 12, 1999; or
(ii) has been approved by unanimous agreement of such commission and any equivalent credentialing organizations
which have been approved under subsection (a)(5)(C) for the certification of nurses under this subsection.
CREDIT(S)
1999 Main Volume
(June 27, 1952, c. 477, Title II, ch. 2, 212, 66 Stat. 182; July 18, 1956, c. 629, Title III, 301(a), 70 Stat. 575; July 7, 1958,
Pub.L. 85- 508, 23, 72 Stat. 351; Mar. 18, 1959, Pub.L. 86-3, 20(b), 73 Stat. 13; July 14, 1960, Pub.L. 86-648, 8, 74
Stat. 505; Sept. 21, 1961, Pub.L. 87-256, 109(c), 75 Stat. 535; Sept. 26, 1961, Pub.L. 87-301, 11-15, 75 Stat. 654, 655;
Oct. 3, 1965, Pub.L. 89-236, 10, 15, 79 Stat. 917, 919; Apr. 7, 1970, Pub.L. 91-225, 2, 84 Stat. 116; Oct. 12, 1976,
Pub.L. 94-484, Title VI, 601(a), (c), (d), 90 Stat. 2300, 2301; Oct. 20, 1976, Pub.L. 94-571, 5, 7(d), 90 Stat. 2705, 2706;
1966 Reorg. Plan No. 3, 1, 3, 31 F.R. 8855, 80 Stat. 1610; Aug. 1, 1977, Pub.L. 95-83, Title III, 307(q)(1), (2), 91 Stat.
394; 1977 Reorg. Plan No. 2, 7(a)(8), 42 F.R. 62461, 91 Stat. 1637; Oct. 30, 1978, Pub.L. 95-549, Title I, 101, 102, 92
Stat. 2065; Sept. 27, 1979, Pub.L. 96-70, Title III, 3201(b), 93 Stat. 497; Oct. 17, 1979, Pub.L. 96-88, Title III, 301(a)(1),
Title I, 503, 509(b), 93 Stat. 677, 690, 695; Mar. 17, 1980, Pub.L. 96-212, Title II, 203(d), (f), 94 Stat. 107; Dec. 17,
1980, Pub.L. 96-538, Title IV, 404, 94 Stat. 3192; Dec. 29, 1981, Pub.L. 97-116, 4, 5(a)(1), (2), (b), 18(e), 95 Stat.
1611, 1612, 1620; Oct. 5, 1984, Pub.L. 98-454, Title VI, 602(a), 98 Stat. 1737; Oct. 12, 1984, Pub.L. 98-473, Title II,
220(a), 98 Stat. 2028; Aug. 27, 1986, Pub.L. 99-396, 14(a), 100 Stat. 842; Oct. 27, 1986, Pub.L. 99-570, Title I, 1751(a),
100 Stat. 3207-47; Nov. 10, 1986, Pub.L. 99-639, 6(a), 100 Stat. 3543; Oct. 24, 1988, Pub.L. 100- 525, 7(c)(1), 102 Stat.
2616; Nov. 10, 1986, Pub.L. 99-639, 6(b), as added Oct. 24, 1988, Pub.L. 100-525, 7(c)(3), 102 Stat. 2617; Nov. 14,
1986, Pub.L. 99-653, 7(a), 100 Stat. 3657; Nov. 14, 1986, Pub. L. 99- 653, 7(d)(2), as added Oct. 24, 1988, Pub.L.
100-525, 8(f), 102 Stat. 2617; Dec. 22, 1987, Pub.L. 100-204, Title VIII, 806(c), 101 Stat. 1399; Oct. 24, 1988, Pub.L.
100-525, 3(1)(A), 7(c)(1), (3), 8(f), 9(i), 102 Stat. 2614, 2616, 2617, 2620; Nov. 18, 1988, Pub.L. 100-690, Title VII,
7349(a), 102 Stat. 4473; Dec. 18, 1989, Pub.L. 101-238, 3(b), 103 Stat. 2100; Feb. 16, 1990, Pub.L. 101-246, Title I,
131(a), (c), 104 Stat. 31; Nov. 29, 1990, Pub.L. 101-649, Title I, 162(e)(1), (f)(2)(B), Title II, 202(b), 205(c)(3), Title V,
511(a), 514(a), Title VI, 601(a), (b), (d), 104 Stat. 5011, 5012, 5014, 5020, 5052, 5053, 5067, 5075 to 5077; Dec. 12,
1991, Pub.L. 102-232, Title III, 302(e)(6), (9), 303(a)(5)(B), (6), (7)(B), 306(a)(10), (12), 307(a) to (g), 309(b)(7), 105
Stat. 1746 to 1748, 1751, 1753 to 1755, 1759; June 10, 1993, Pub.L. 103-43, Title XX, 2007(a), 107 Stat. 210; Aug. 26,
1994, Pub.L. 103-317, Title V, 506(a), (c), 108 Stat. 1765, 1766; Sept. 13, 1994, Pub.L. 103-322, Title XIII,
130003(b)(1), 108 Stat. 2024; Oct. 25, 1994, Pub.L. 103-416, Title II, 203(a), 219(e), (z)(1), (5), 220(a), 108 Stat. 4311,
4316, 4318, 4319; Apr. 24, 1996, Pub.L. 104-132, Title IV, 411, 412, 440(d), 110 Stat. 1268, 1269, 1277; Sept. 30, 1996,
Pub.L. 104-208, Div. C, Title I, 124(b)(1), Title III, 301(b)(1), (c)(1), 304(b), 305(c), 306(d), 308(c)(2)(B), (d)(1),
(e)(1)(B), (C), (2)(A), (6), (f)(1)(C) to (F), (3)(A), (g)(1), (4)(B), (10)(A), (H), 322(a)(2)(B), 341(a), (b), 342(a), 343, 344(a),
345(a), 346(a), 347(a), 348(a), 349, 351(a), 352(a), 355, Title V, 531(a), Title VI, 602(a), 622(b), 624(a), 671(e)(3), 110
Stat. 3009-562, 3009-576, 3009-578, 3009-597, 3009-607, 3009-612, 3009-616, 3009-619, 3009-620, 3009-621, 3009-622,
3009-625, 3009-629, 3009-635, 6009-636, 3009-637, 3009-638, 3009-639, 3009-640, 3009-641, 3009-644, 3009-674,
3009-689, 3009-695, 3009-698, 3009-723; Nov. 12, 1997, Pub.L. 105-73, 111 Stat. 1459; Oct. 21, 1998, Pub.L. 105- 277,
Div. C, Title IV, 412, 413, 415(a), 431(a), Div. G, Title XXII, 2226, 112 Stat. 2681-642, 2681-643, 2681-645,
2681-648, 2681-649, 2681-650, 2681-651, 2681-654, 2681-658, 2681-820; Oct. 27, 1998, Pub.L. 105-292, Title VI, 604(a),
112 Stat. 2814.)
2003 Electronic Update
(As amended Nov. 12, 1999, Pub.L. 106-95, 2(b), 4(a), 113 Stat. 1312, 1317; Dec. 3, 1999, Pub.L. 106-120, Title VIII,
809, 113 Stat. 1632; Oct. 17, 2000, Pub.L. 106-313, Title I, 106(c)(2), 107(a), 114 Stat. 1254, 1255; Oct. 28, 2000, Pub.L.
8 USCA 1182
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Page 37
106-386, Div. A, 107(e)(3), 111(d), Div. B, Title V, 1505(a), (c)(1), (d), (e), (f), 1513(e), 114 Stat. 1478, 1485, 1525,
1526, 1536; Oct. 30, 2000, Pub.L. 106-395, Title II, 201(b)(1), (2), 114 Stat. 1633, 1634; Oct. 30, 2000, Pub.L. 106-396,
Title I, 101(b)(1), 114 Stat. 1638; Oct. 26, 2001, Pub.L. 107-56, Title IV, 411(a), Title X, 1006(a), 115 Stat. 345, 394;
Mar. 13, 2002, Pub.L. 107- 150, 2(a)(2), 116 Stat. 74; Nov. 2, 2002, Pub.L. 107-273, Div. C, Title I, 11018(c), 116 Stat.
1825.)
[FN1] So in original. Probably should be followed by a comma.
[FN2] So in original. Probably should follow subclause (V).
[FN3] So in original. Probably should be a reference to section 1229c of this title.
[FN4] So in original. Probably should be preceded by "ineligible for".
[FN5] So in original.
[FN6] So in original. Two subpars. (13) have been enacted.
[FN7] So in original. Probably should be "(10)(E))".
[FN8] So in original. Two subsecs. (p) have been enacted.
<General Materials (GM) - References, Annotations, or Tables>
TERMINATION OF AMENDMENT OF SUBSEC. (H)(2)(G)
For termination of amendment by section 413(e)(2) of Pub.L. 105-277, amending subsec. (h)(2)(G) of this section, on
September 30, 2003, see Effective and Applicability Provisions notes under this section.
HISTORICAL AND STATUTORY NOTES
Revision Notes and Legislative Reports
1952 Acts. House Report No. 1365 and Conference Report No. 2096, see 1952 U.S. Code Cong. and Adm. News, p. 1653.
1958 Acts. House Report No. 624, see 1958 U.S. Code Cong. and Adm. News, p. 2933.
1959 Acts. Senate Report No. 80, see 1959 U.S. Code Cong. and Adm. News, p. 1346.
1960 Acts. Senate Report No. 1651, see 1960 U.S. Code Cong. and Adm. News, p. 3124.
House Report No. 1086 and Conference Report No. 1172, see 1961 U.S. Code Cong. and Adm. News, p. 2950.
1965 Acts. Senate Report No. 748 and Conference Report No. 1101, see 1965 U.S. Code Cong. and Adm. News, p. 3328.
8 USCA 1182
8 U.S.C.A. 1182
Page 38
1970 Acts. House Report No. 91-851, see 1970 U.S. Code Cong. and Adm. News, p. 2750.
1976 Acts. House Report No. 94-266 and House Conference Report No. 94- 1612, see 1976 U.S. Code Cong. and Adm.
News, p. 4947.
House Report No. 94-1553, see 1976 U.S. Code Cong. and Adm. News, p. 6073.
1979 Acts. House Report No. 96-98(Parts I and II) and House Conference Report No. 96-473, see 1979 U.S. Code Cong.
and Adm. News, p. 1034.
1980 Acts. Senate Report No. 96-256 and House Conference Report No. 96- 781, see 1980 U.S. Code Cong. and Adm.
News, p. 141.
News, p. 6678.
1986 Acts. Senate Report No. 99-236 and Statement by President, see 1986 U.S. Code Cong. and Adm. News, p. 1843.
Statement by President, see 1986 U.S. Code Cong. and Adm. News, p. 5393.
House Report No. 99-916, see1986 U.S. Code Cong. and Adm. News, p. 6182.
1988 Acts. For Related Reports, see 1988 U.S. Code Cong. and Adm. News, p. 5937.
1990 Acts. House Report No. 101-17, House Conference Report No. 101-343, and Statement by President, see 1990 U.S.
Code Cong. and Adm. News, p. 3.
House Report No. 101-723(Parts I and II), House Conference Report No. 101-955, and Statement by President, see 1990
U.S. Code Cong. and Adm. News, p. 6710.
1991 Acts. House Report Nos. 102-287, 102-380, and 102-383, see 1991 U.S. Code Cong. and Adm. News, p. 1362.
News, p. 196.
1994 Acts. House Report Nos. 103-324 and 103-489, and House Conference Report No. 103-711, see 1994 U.S. Code
Cong. and Adm. News, p. 1801.
News, p. 924.
1998 Acts. Statement by President, see 1998 U.S. Code Cong. and Adm. News, p. 582.
House Report No. 105-480(Parts I to III), see 1998 U.S. Code Cong. and Adm. News, p. 608.
8 USCA 1182
8 U.S.C.A. 1182
Page 39
1999 Acts. House Conference Report No. 106-457 and Statement by President, see 1999 U.S. Code Cong. and Adm. News,
p. 304.
2000 Acts. Senate Report No. 106-260, see 2000 U.S. Code Cong. and Adm. News, p. 933.
House Conference Report No. 107-685 and Statement by President, see 2002 U.S. Code Cong. and Adm. News, p. 1120.
References in Text
Section 301 of the Immigration Act of 1990, referred to in subsecs. (a)(6)(E)(ii), (9)(B)(iii)(III), (o)(2)(C), is section 301 of
Pub.L. 101- 649, Title III, Nov. 29, 1990, 101 Stat. 5029, as amended, which is classified as a note under section 1255a of
this title.
Section 112 of the Immigration Act of 1990, referred to in subsec. (a)(6)(E)(ii), is section 112 of Pub.L. 101-649, Title I,
Nov. 29, 1990, 101 Stat. 4987, which is classified as a note under section 1153 of this title.
Section 1184(l) of this title, referred to in subsec. (a)(6)(G), probably means the subsec. (l) of section 1184 which relates to
nonimmigrant elementary and secondary school students and was added by Pub.L. 104-208, Div. C, Title VI, 625(a)(1),
Sept. 30, 1996, 110 Stat. 3009-699, and redesignated 7 U.S.C.A. 1184(m) by Pub.L. 106-386, Div. A, 107(e)(2)(A), Oct.
28, 2000, 114 Stat. 1478.
Section 1184(k) of this title, referred to in subsec. (e), was redesignated section 1184(l) and former section 1184(j) was
redesignated section 1184(k) of this title by Pub.L. 104-208, div. C, title VI, 671(a)(3)(A), Sept. 30, 1996, 110 Stat.
3009-721.
Section 202 of the Immigration Reform and Control Act of 1986, referred to in subsec. (o)(2), is section 202 of Pub.L.
99-603, as amended, which is set out as a note under section 1255a of this title.
This chapter, referred to in text, was in the original, "this Act", meaning Act June 27, 1952, c. 477, 66 Stat. 163, as
amended, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete
classification of this Act to the Code, see Tables.
The Internal Revenue Code of 1986, referred to in text, is classified generally to Title 26.
Codifications
Amendment by section 305(c) of Div. C of Pub.L. 104-208, which directed the amendment of subsec. (a)(4) of this section,
as amended by section 621(a) of Div. C of Pub.L. 104-208, by striking references to section 1251(a)(5)(B) of this title
wherever appearing and inserting in lieu thereof references to section 1227(a)(5)(B) of this title, could not be executed
because neither subsec. (a)(4) of this section nor the amendment by section 621 of Div. C of Pub.L. 104-208 (which was not
divided into subsections) contained any such references.
Amendment by section 308(d)(1)(F) of Div. C of Pub.L. 104-208, which directed that subsec. (b)(2) of this section be
amended by striking out "or ineligible for entry", was executed to subsec. (b)(1)(B) as the probable intent of Congress, since
subsec. (b)(2) does not contain such language.
Pub.L. 104-208, 308(f)(3)(A), incorrectly identifies statute as 8 U.S.C. 1154(e), which does not contain the language to
be amended. The proper citation is 8 U.S.C. 1182, to which the amendment is executed in accordance with the probable
intent of Congress.
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Directory language of section 308(g)(10)(A) of Div. C of Pub.L. 104-208, calling for the substitution of "paragraphs (1)
and (2) of section 1231(a) of this title" for "subsection (c) of this section" in subsec. (h), as amended by section 301(h) of
Pub.L. 104-208, could not be executed, as neither subsec. (h) of this section nor section 301 of Div. C. of Pub.L. 104-208
(which contains no subsection (h)) includes the language referred to.
Directory language of section 308(g)(10)(H) of Pub.L. 104-208, calling for the substitution in subsec. (c) of this section of
"1227(a)(2)(A)(ii)" for "1251(a)(2)(A)(ii)" and "1227(a)(2)(A)(i)" for "1251(a)(2)(A)(i)", respectively, could not be executed
because of simultaneous repeal of subsec. (c) by section 304(b) of Pub.L. 104-208.
Pub.L. 104-208, 355, refers to subclause (VI), which does not exist. Amendment has been executed to subclause (V) to
reflect probable intent of Congress.
Amendment by section 514(a) of Pub.L. 101-649, directing in subsec. (a)(17) that "20 years" be substituted for "10 years",
was executed by substituting for "ten years", as the probable intent of Congress, and thus, a subsequent amendment by
section 306(a)(12) of Pub.L. 102-232, which substituted "ten years" for "10 years", required no change in text.
Amendment by section 6(a) of Pub.L. 99-639 has been executed to section 1182 of this title as the probable intent of
Congress, notwithstanding directory language of such section 6(a) providing for amendment to "8 U.S.C. 1152(a)".
Subsec. (d)(9) of this section, which provided that subsec. (a)(7) of this section was not applicable to any alien who was
seeking to enter the United States as a special immigrant under section 1101(a)(27)(E), (F), or (G) of this title, was omitted
pursuant to section 3201(d)(2) of Pub.L. 96-70 which provided that subsec. (d)(9) would cease to be effective at the end of
the transition period [midnight Mar. 31, 1982].
Amendments
2002 Amendments. Subsec. (a)(4)(C)(ii). Pub.L. 107-150, 2(a)(2) struck "(including any additional sponsor required
under section 213A(f))" and inserted "(and any additional sponsor required under section 213A(f) or any alternative sponsor
permitted under paragraph (5)(B) of such section)".
Subsec. (e). Pub.L. 107-273, 11018(c), substituted "section 1184(l) of this title" for "section 1184(k) of this title".
2001 Amendments. Subsec. (a)(2)(I). Pub.L. 107-56, 1006(a), added subpar. (I).
Subsec. (a)(3)(B). Pub.L. 107--56, 411(a)(1), rewrote subpar. (a)(3)(B) which formerly read:
"(B) Terrorist activities
"(i) In general
"Any alien who-"(I) has engaged in a terrorist activity,
"(II) a consular officer or the Attorney General knows, or has reasonable ground to believe, is engaged in or is likely
to engage after entry in any terrorist activity (as defined in clause (iii)),
"(III) has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity,
"(IV) is a representative (as defined in clause (iv)) of a foreign terrorist organization, as designated by the Secretary
under section 1189 of this title, or
"(V) is a member of a foreign terrorist organization, as designated by the Secretary under section 1189 of this title,
which the alien knows or should have known is a terrorist organization
"is inadmissible. An alien who is an officer, official, representative, or spokesman of the Palestine Liberation
Organization is considered, for purposes of this chapter, to be engaged in a terrorist activity.
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"(ii) 'Terrorist activity' defined

"As used in this chapter, the term 'terrorist activity' means any activity which is unlawful under the laws of the place
where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States
or any State) and which involves any of the following:
"(I) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).
"(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to
compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or
implicit condition for the release of the individual seized or detained.
"(III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of Title 18) or upon
the liberty of such a person.
"(IV) An assassination.
"(V) The use of any-"(a) biological agent, chemical agent, or nuclear weapon or device, or
"(b) explosive or firearm (other than for mere personal monetary gain),
"with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to
property.
"(VI) A threat, attempt, or conspiracy to do any of the foregoing.
"(iii) Engage in terrorist activity defined
"As used in this chapter, the term 'engage in terrorist activity' means to commit, in an individual capacity or as a member
of an organization, an act of terrorist activity or an act which the actor knows, or reasonably should know, affords material
support to any individual, organization, or government in conducting a terrorist activity at any time, including any of the
following acts:
"(I) The preparation or planning of a terrorist activity.
"(II) The gathering of information on potential targets for terrorist activity.
"(III) The providing of any type of material support, including a safe house, transportation, communications, funds,
false documentation or identification, weapons, explosives, or training, to any individual the actor knows or has reason to
believe has committed or plans to commit a terrorist activity.
"(IV) The soliciting of funds or other things of value for terrorist activity or for any terrorist organization.
"(V) The solicitation of any individual for membership in a terrorist organization, terrorist government, or to engage in
a terrorist activity.
"(iv) 'Representative' defined
"As used in this paragraph, the term 'representative' includes an officer, official, or spokesman of an organization, and
any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity."
Subsec. (a)(3)(F). Pub.L. 107-56, 411(a)(2), added subpar. (F).
2000 Amendments. Subsec. (a)(2)(H). Pub.L. 106-386, 111(d), added subpar. (H).
8 USCA 1182
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Subsec. (a)(5)(A)(iv). Pub.L. 106-313, 106(c)(2), added cl. (iv).

Subsec. (a)(6)(C)(ii). Pub.L. 106-395, 201(b)(2), rewrote cl. (ii) which formerly read:
"(ii) Falsely claiming citizenship
"Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for
any purpose or benefit under this Act (including section 1324a of this title) or any other Federal or State law is
inadmissible."
Subsec. (a)(7)(B)(iv). Pub.L. 106-396, 101(b)(1), struck out "pilot" preceding "program" in the cl. heading and in the
matter that follows.
Subsec. (a)(9)(C)(ii). Pub.L. 106-386, 1505(a), added provision that the Attorney General in the Attorney General's
discretion may waive the provisions of subsec. (a)(9)(C)(i) of this section in the case of an alien to whom the Attorney
General has granted classification under clause (iii), (iv), or (v) of section 1154(a)(1)(A) of this title, or classification under
clause (ii), (iii), or (iv) of section 1154(a)(1)(B) of this title, in any case in which there is a connection between-(1) the alien's having been battered or subjected to extreme cruelty; and
(2) the alien's-(A) removal;
(B) departure from the United States;
(C) reentry or reentries into the United States; or
(D) attempted reentry into the United States.
Subsec. (a)(10)(D). Pub.L. 106-395, 201(b)(1), rewrote subpar. (D) which formerly read:
"(D) Unlawful voters
"Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or
regulation is inadmissible."
Subsec. (d)(13). Pub.L. 106-386, 107(e)(3), added par. (13), relating to waiver of grounds for ineligibility for admission
under section 1101(a)(15)(T) of this title.
Pub.L. 106-386, 1513(e), added par. (13), relating to waiver of grounds for ineligibility for admission under section
1101(a)(15)(U) of this title.
Subsec. (g)(1). Pub.L. 106-386, 1505(d), in subpar. (A), struck "or" at the end, in subpar. (B), added "or" at the end, and
added subpar. (C).
Subsec. (h)(1)(B). Pub.L. 106-386, 1505(e)(1), struck "and" and inserted "or".
Subsec. (h)(1)(C). Pub.L. 106-386, 1505(e)(2), added subpar. (C).
Subsec. (i)(1). Pub.L. 106-386, 1505(c)(1), inserted the following before the period at the end of par. (1): "or, in the case
of an alien granted classification under clause (iii) or (iv) of section 1154(a)(1)(A) of this title or clause (ii) or (iii) of section
1154(a)(1)(B) of this title, the alien demonstrates extreme hardship to the alien or the alien's United States citizen, lawful
permanent resident, or qualified alien parent or child".
Subsec. (n)(1)(E)(ii). Pub.L. 106-313, 107(a), struck "October 1, 2001" and inserted "October 1, 2003".
8 USCA 1182
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Page 43
Subsec. (p). Pub.L. 106-386, 1505(f), added subsec. (p) regarding determining whether an alien described in subsection
(a)(4)(C)(i) is inadmissible under subsection (a)(4) or ineligible to receive an immigrant visa.
1999 Amendments. Subsec. (a)(2)(C). Pub.L. 106-120, 809, rewrote subpar. (C) which formerly read:
"(C) Controlled substance traffickers
"Any alien who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in
any such controlled substance or is or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit
trafficking in any such controlled substance, is inadmissible."
Subsec. (a)(5)(C). Pub.L. 106-95, 4(a)(2), struck "Any alien who seeks" and inserted "Subject to subsection (r), any alien
who seeks".
Subsec. (m). Pub.L. 106-95, 2(b), rewrote subsec. (m) which read:
"(m) Requirements for admission of nonimmigrant nurses during five-year period
"(1) The qualifications referred to in section 1101(a)(15)(H)(i)(a) of this title, with respect to an alien who is coming to the
United States to perform nursing services for a facility, are that the alien-"(A) has obtained a full and unrestricted license to practice professional nursing in the country where the alien obtained
nursing education or has received nursing education in the United States or Canada;
"(B) has passed an appropriate examination (recognized in regulations promulgated in consultation with the Secretary of
Health and Human Services) or has a full and unrestricted license under State law to practice professional nursing in the
State of intended employment; and
"(C) is fully qualified and eligible under the laws (including such temporary or interim licensing requirements which
authorize the nurse to be employed) governing the place of intended employment to engage in the practice of professional
nursing as a registered nurse immediately upon admission to the United States and is authorized under such laws to be
"(2)(A) The attestation referred to in section 1101(a)(15)(H)(i)(a) of this title is an attestation as to the following:
"(i) There would be a substantial disruption through no fault of the facility in the delivery of health care services of the
facility without the services of such an alien or aliens.
"(ii) The employment of the alien will not adversely affect the wages and working conditions of registered nurses
similarly employed.
"(iii) The alien employed by the facility will be paid the wage rate for registered nurses similarly employed by the
facility.
"(iv) Either (I) the facility has taken and is taking timely and significant steps designed to recruit and retain sufficient
registered nurses who are United States citizens or immigrants who are authorized to perform nursing services, in order to
remove as quickly as reasonably possible the dependence of the facility on nonimmigrant registered nurses, or (II) the
facility is subject to an approved State plan for the recruitment and retention of nurses (described in paragraph (3)).
"(v) There is not a strike or lockout in the course of a labor dispute, and the employment of such an alien is not intended
or designed to influence an election for a bargaining representative for registered nurses of the facility.
"(vi) At the time of the filing of the petition for registered nurses under section 1101(a)(15)(H)(i)(a) of this title, notice
of the filing has been provided by the facility to the bargaining representative of the registered nurses at the facility or,
where there is no such bargaining representative, notice of the filing has been provided to registered nurses employed at the
facility through posting in conspicuous locations.
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8 U.S.C.A. 1182
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"A facility is considered not to meet clause (i) (relating to an attestation of a substantial disruption in delivery of health care
services) if the facility, within the previous year, laid off registered nurses. Notwithstanding the previous sentence, a facility
that lays off a registered nurse other than a staff nurse still meets clause (i) if, in its attestation under this subparagraph, the
facility has attested that it will not replace the nurse with a nonimmigrant described in section 1101(a)(15)(H)(i)(a) of this
title (either through promotion or otherwise) for a period of 1 year after the date of the lay off. Nothing in clause (iv) shall be
construed as requiring a facility to have taken significant steps described in such clause before December 18, 1989. In the
case of an alien for whom an employer has filed an attestation under this subparagraph and who is performing services at a
worksite other than the employer's or other than a worksite controlled by the employer, the Secretary may waive such
requirements for the attestation for the worksite as may be appropriate in order to avoid duplicative attestations, in cases of
temporary, emergency circumstances, with respect to information not within the knowledge of the attestor, or for other good
cause.
"(B) For purposes of subparagraph (A)(iv)(I), each of the following shall be considered a significant step reasonably
designed to recruit and retain registered nurses:
"(i) Operating a training program for registered nurses at the facility or financing (or providing participation in) a
training program for registered nurses elsewhere.
"(ii) Providing career development programs and other methods of facilitating health care workers to become registered
nurses.
"(iii) Paying registered nurses wages at a rate higher than currently being paid to registered nurses similarly employed in
the geographic area.
"(iv) Providing adequate support services to free registered nurses from administrative and other nonnursing duties.
"(v) Providing reasonable opportunities for meaningful salary advancement by registered nurses.
"The steps described in this subparagraph shall not be considered to be an exclusive list of the significant steps that may be
taken to meet the conditions of subparagraph (A)(iv)(I). Nothing herein shall require a facility to take more than one step, if
the facility can demonstrate that taking a second step is not reasonable.
"(C) Subject to subparagraph (E), an attestation under subparagraph (A) shall-"(i) expire at the end of the 1-year period beginning on the date of its filing with the Secretary of Labor, and
"(ii) apply to petitions filed during such 1-year period if the facility states in each such petition that it continues to
comply with the conditions in the attestation.
"(D) A facility may meet the requirements under this paragraph with respect to more than one registered nurse in a single
petition.
"(E)(i) The Secretary of Labor shall compile and make available for public examination in a timely manner in Washington,
D.C., a list identifying facilities which have filed petitions for nonimmigrants under section 1101(a)(15)(H)(i)(a) of this title
and, for each such facility, a copy of the facility's attestation under subparagraph (A) (and accompanying documentation) and
each such petition filed by the facility.
"(ii) The Secretary of Labor shall establish a process for the receipt, investigation, and disposition of complaints respecting
a facility's failure to meet conditions attested to or a facility's misrepresentation of a material fact in an attestation.
Complaints may be filed by any aggrieved person or organization (including bargaining representatives, associations deemed
appropriate by the Secretary, and other aggrieved parties as determined under regulations of the Secretary). The Secretary
shall conduct an investigation under this clause if there is reasonable cause to believe that a facility fails to meet conditions
attested to.
"(iii) Under such process, the Secretary shall provide, within 180 days after the date such a complaint is filed, for a
determination as to whether or not a basis exists to make a finding described in clause (iv). If the Secretary determines that
8 USCA 1182
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such a basis exists, the Secretary shall provide for notice of such determination to the interested parties and an opportunity for
a hearing on the complaint within 60 days of the date of the determination.
"(iv) If the Secretary of Labor finds, after notice and opportunity for a hearing, that a facility (for which an attestation is
made) has failed to meet a condition attested to or that there was a misrepresentation of material fact in the attestation, the
Secretary shall notify the Attorney General of such finding and may, in addition, impose such other administrative remedies
(including civil monetary penalties in an amount not to exceed $1,000 per violation) as the Secretary determines to be
appropriate. Upon receipt of such notice, the Attorney General shall not approve petitions filed with respect to a facility
during a period of at least 1 year for nurses to be employed by the facility.
"(v) In addition to the sanctions provided under clause (iv), if the Secretary of Labor finds, after notice and an opportunity
for a hearing, that a facility has violated the condition attested to under subparagraph (A)(iii) (relating to payment of
registered nurses at the prevailing wage rate), the Secretary shall order the facility to provide for payment of such amounts of
back pay as may be required to comply with such condition.
"(3) The Secretary of Labor shall provide for a process under which a State may submit to the Secretary a plan for the
recruitment and retention of United States citizens and immigrants who are authorized to perform nursing services as
registered nurses in facilities in the State. Such a plan may include counseling and educating health workers and other
individuals concerning the employment opportunities available to registered nurses. The Secretary shall provide, on an
annual basis in consultation with the Secretary of Health and Human Services, for the approval or disapproval of such a plan,
for purposes of paragraph (2)(A)(iv)(II). Such a plan may not be considered to be approved with respect to the facility unless
the plan provides for the taking of significant steps described in paragraph (2)(A)(iv)(I) with respect to registered nurses in
the facility.
"(4) The period of admission of an alien under section 1101(a)(15)(H)(i)(a) of this title shall be for an initial period of not
to exceed 3 years, subject to an extension for a period or periods, not to exceed atotal period of admission of 5 years (or a
total period of admission of 6 years in the case of extraordinary circumstances, as determined by the Attorney General).
"(5) For purposes of this subsection and section 1101(a)(15)(H)(i)(a) of this title, the term 'facility' includes an employer
who employs registered nurses in a home setting."
Subsec. (r). Pub.L. 106-95, 4(a)(1), added subsec. (r).
1998 Amendments. Subsec. (a)(2)(G). Pub.L. 105-292, 604(a), added subpar. (G).
Subsec. (a)(10)(C)(ii). Pub.L. 105-277, 2226(a), rewrote cl. (ii) which prior thereto read:
"(ii) Exception
"Clause (i) shall not apply so long as the child is located in a foreign state that is a party to the Hague Convention on the
Civil Aspects of International Child Abduction."
Subsec. (a)(10)(C)(iii). Pub.L. 105-277, 2226(a), added cl. (iii).
Subsec. (n)(1). Pub.L. 105-277, 412(b)(2), substituted "an H-1B nonimmigrant" for "a nonimmigrant described in section
1101(a)(15)(H)(i)(b) of this title" each place it appeared.
Subsec. (n)(1)(C)(ii). Pub.L. 105-277, 412(c), rewrote clause (ii), which formerly read: "if there is no such bargaining
representative, has posted notice of filing in conspicuous locations at the place of employment."
Subsec. (n)(1)(E) to (G). Pub.L. 105-277, 412(a)(1), added subpars. (E) to (G).
Subsec. (n)(1). Pub.L. 105-277, 412(a)(2), (3), added the following two sentences at the end of par. (1): "The application
form shall include a clear statement explaining the liability under subparagraph (F) of a placing employer if the other
employer described in such subparagraph displaces a United States worker as described in such subparagraph. Nothing in
subparagraph (G) shall be construed to prohibit an employer from using legitimate selection criteria relevant to the job that
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are normal or customary to the type of job involved, so long as such criteria are not applied in a discriminatory manner."
Subsec. (n)(2)(A). Pub.L. 105-277, 413(b)(2), substituted "Subject to paragraph (5)(A), the Secretary" for "The
Secretary" in the first sentence of subpar. (A).
Subsec. (n)(2)(C). Pub.L. 105-277, 413(a), amended subpar. (C), which formerly read
"(C) If the Secretary finds, after notice and opportunity for a hearing, a failure to meet a condition of paragraph (1)(B), a
substantial failure to meet a condition of paragraphs (1)(C) or (1)(D), a willful failure to meet a condition of paragraph
(1)(A), or a misrepresentation of material fact in an application-"(i) the Secretary shall notify the Attorney General of such finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per violation) as the
Secretary determines to be appropriate, and
"(ii) the Attorney General shall not approve petitions filed with respect to that employer under section 1154 or 1184(c)
of this title during a period of at least 1 year for aliens to be employed by the employer."
Subsec. (n)(2)(E). Pub.L. 105-277, 413(c), added subpar. (E).
Subsec. (n)(2)(F). Pub.L. 105-277, 413(d), added subpar. (F).
Subsec. (n)(2)(G). Pub.L. 105-277, 413(e)(1), added subpar. (G).
Subsec. (n)(2)(H). Pub.L. 105-277, 413(f), added subpar. (H).
Subsec. (n)(3), (4). Pub.L. 105-277, 412(b)(1), added pars. (3) and (4).
Subsec. (n)(5). Pub.L. 105-277, 413(b)(1), added par. (5).
Subsec. (p). Pub.L. 105-277, 415(a), added subsec. (p).
Subsec. (q). Pub.L. 105-277, 431(a), added subsec. (q).
1997 Amendments. Subsec. (a)(1)(A)(ii). Pub.L. 105-73, 1(1), inserted "except as provided in subparagraph (C),"
following "(ii)".
Subsec. (a)(1)(A)(C). Pub.L. 105-73, 1(2), added subpar. (C).
1996 Amendments. Subsec. (a). Pub.L. 104-208, 308(d)(1)(B), (C), substituted "is inadmissible" for "is excludable"
wherever appearing, and substituted provisions relating to ineligibility for visa or admission of inadmissible aliens for
provisions relating to excludable aliens being ineligible for visas to be excluded from admission.
Subsec. (a)(1)(A)(ii) to (iv). Pub.L. 104-208, 341(a), added cl. (ii). Former cls. (ii) and (iii) were redesignated (iii) and
(iv), respectively.
Subsec. (a)(2)(B). Pub.L. 104-208, 322(a)(2)(B), struck out "actually imposed" following "sentences to confinement".
Subsec. (a)(2)(D). Pub.L. 104-208, 308(f)(1)(C), substituted "admission" for "entry".
Subsec. (a)(3)(B)(i). Pub.L. 104-132, 411(1), added subcls. (III) and (IV), in subcl. (II), inserted "is engaged in or"
following "ground to believe,", and in subcl. (I), struck out "or" following "terrorist activity".
Subsec. (a)(3)(B)(i)(III) to (V). Pub.L. 104-208, 342(a)(1), (2), added subcl. (III). Former subcls. (III) and (IV) were
redesignated (IV) and (V), respectively.
Subsec. (a)(3)(B)(i)(V). Pub.L. 104-208, 355, inserted "which the alien knows or should have known is a terrorist
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organization" following "1189 of this title". See Codification note set out under this section.
Subsec. (a)(3)(B)(iii)(III). Pub.L. 104-208, 342(a)(3), substituted "false documentation or identification" for "false
identification".
Subsec. (a)(3)(B)(iv). Pub.L. 104-132, 411(2), added cl. (iv).
Subsec. (a)(4). Pub.L. 104-208, 305(c), purported to substitute "1227(a)(5)(B)" for "1251(a)(5)(B)" wherever appearing.
See Codification note set out under this section.
Pub.L. 104-208, 531(a), substituted provisions set out in pars. (A) to (D) relating to alien as likely public charge in
general, factors to be taken into account, family-sponsored immigrants, and certain employment-based immigrants, for
provisions set out as undesignated par. relating to alien as likely public charge.
Subsec. (a)(5)(A)(iii). Pub.L. 104-208, 624(a), added cl. (iii).
Subsec. (a)(5)(C), (D). Pub.L. 104-208, 343, added subpar. (C). Former subpar. (C) was redesignated (D).
Subsec. (a)(5)(D). Pub.L. 104-208, 308(d)(1)(D), substituted "inadmissibility" for "exclusion".
Subsec. (a)(6)(A). Pub.L. 104-208, 301(c)(1), substituted provisions relating to aliens present without admission or
parole for provisions relating to aliens previously deported.
Subsec. (a)(6)(B). Pub.L. 104-208, 301(c)(1), substituted provisions relating to failure to attend removal proceeding for
provisions relating to certain aliens previously removed.
Subsec. (a)(6)(C)(i). Pub.L. 104-208, 308(f)(1)(D), substituted "admission" for "entry".
Subsec. (a)(6)(C)(ii), (iii). Pub.L. 104-208, 344(a), added cl. (ii). Former cl. (ii) was redesignated (iii).
Subsec. (a)(6)(F). Pub.L. 104-208, 345(a)(1), designated existing provisions as cl. (i) and added cl. (ii).
Subsec. (a)(6)(G). Pub.L. 104-208, 346(a), added subpar. (G).
Subsec. (a)(9), (10). Pub.L. 104-208, 301(b)(1), added par. (9). Former par. (9) was redesignated (10).
Subsec. (a)(10)(B). Pub.L. 104-208, 308(c)(2)(B), substituted provisions relating to inadmissibility of guardian required
by helpless, inadmissible alien for provisions relating to excludability of guardian of helpless alien ordered excluded and
deported.
Subsec. (a)(10)(D). Pub.L. 104-208, 347(a), added subpar. (D).
Subsec. (a)(10)(E). Pub.L. 104-208, 352(a), added subpar. (E).
Subsec. (b). Pub.L. 104-208, 308(d)(1)(E), substituted "inadmissible" for "excludable" wherever appearing.
Subsec. (b)(1). Pub.L. 104-132, 412(1), (2), designated existing text as par. (1), redesignated pars. (1) and (2) as subpars.
(A) and (B) of par. (1), respectively, and in par. (1) as so redesignated, made provisions subject to pars. (2) and (3).
Subsec. (b)(1)(B). Pub.L. 104-208, 308(d)(1)(F), struck "or ineligible for entry" preceding "or adjustment". See
Codification note.
Subsec. (b)(2), (3). Pub.L. 104-132, 412(3), added pars. (2) and (3).
Subsec. (c). Pub.L. 104-208, 304(b), struck out subsec. (c) relating to nonapplicability of subsec. (a).
Pub.L. 104-208, 306(d), as amending Pub.L. 104-132, 440(d), inserted ", without regard to the date of their
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commission, otherwise" following "predicate offenses are".

Pub.L. 104-208, 308(g)(10)(H), as amending Pub.L. 104-132, 440(d), and Pub.L. 104-208, 306(d), substituted
"1227(a)(2)(A)(ii)" for "1251(a)(2)(A)(ii)" and "1227(a)(2)(A)(i)" for "1251(a)(2)(A)(i)", respectively.
Pub.L. 104-132, 440(d), substituted "This subsection shall not apply to an alien who is deportable by reason of having
committed any criminal offense covered in section 1251(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by
section 1251(a)(2)(A)(ii) of this title for which both predicate offenses are covered by section 1251(a)(2)(A)(i) of this title."
for "The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated
felonies and has served for such felony or felonies a term of imprisonment of at least 5 years."
Subsec. (d)(1). Pub.L. 104-208, 308(d)(1)(D), substituted "inadmissibility" for "exclusion".
Pub.L. 104-208, 308(e)(1)(B), substituted "removal" for "deportation".
Subsec. (d)(3). Pub.L. 104-208, 308(d)(1)(E), substituted "return of inadmissible aliens" for "return of excludable aliens".
Subsec. (d)(4). Pub.L. 104-208, 308(g)(1), substituted "1223(c)" for "1228(c)".
Subsec. (d)(5)(A). Pub.L. 104-208, 602(a), substituted "only on a case- by-case basis for urgent humanitarian reasons or
significant public benefit" for "for emergent reasons or for reasons deemed strictly in the public interest".
Subsec. (d)(7). Pub.L. 104-208, 308(d)(1)(G), substituted "denied" for "excluded from".
Pub.L. 104-208, 308(e)(2)(A), substituted "removed" for "deported".
Pub.L. 104-208, 308(g)(4)(B), substituted "1231(c)" for "1227(a)".
Subsec. (d)(11). Pub.L. 104-208, 308(e)(1)(C), substituted "removal" for "deportation".
Pub.L. 104-208, 671(e)(3), made technical correction.
Pub.L. 104-208, 351(a), inserted "an individual who at the time of such action was" following "aided only".
Subsec. (d)(12). Pub.L. 104-208, 345(a)(2), added par. (12).
Subsec. (e). Pub.L. 104-208, 622(b), inserted ", or in the case of a waiver requested by an interested United States
Government agency on behalf of an alien described in clause (iii)," following "requested by a State Department of Public
Health, or its equivalent".
Subsec. (f). Pub.L. 104-208, 124(b)(1), added provision relating to suspension of entry in cases of noncompliance by
commercial airline with requirements for detection of fraudulent documents.
Subsec. (g). Pub.L. 104-208, 341(b), redesignated former closing provision of subsec. relating to terms, conditions, and
controls, including bond, Attorney General prescribes after consulting Secretary of Health and Human Services as closing
provision of par. (1) and added par. (2), subpars. (A) to (C) and par. (3).
Subsec. (h). Pub.L. 104-208, 308(g)(10)(A), substituted "paragraphs (1) and (2) of section 1229b(a) of this title" for
"subsection (c) of this section".
Pub.L. 104-208, 348(a), added provisions relating to waivers for aliens previously admitted for permanent residence and
judicial review of denial of waiver.
Subsec. (h)(1)(A)(i). Pub.L. 104-208, 308(d)(1)(E), substituted "inadmissible" for "excludable".
Pub.L. 104-208, 308(f)(1)(E), substituted "admission" for "entry".
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Subsec. (h)(1)(B). Pub.L. 104-208, 308(d)(1)(H), substituted "denial of admission" for "exclusion".
Subsec. (i). Pub.L. 104-208, 349, substituted provisions set out as pars. (1) and (2) relating to Attorney General's
discretion to waive application in case of spouse or child of citizen or lawful permanent resident in case of extreme hardship,
and to judicial review of denial, for provisions set out as undesignated introductory clause and pars. (1) and (2) relating to
Attorney General's discretion to waive application in case of spouse, child, or parent of citizen or lawful permanent resident,
or if fraud or misrepresentation at least 10 years earlier and admission not against national welfare, safety or security.
Subsec. (j)(1)(D). Pub.L. 104-208, 308(f)(1)(F), substituted "admission" for "entry".
Subsec. (j)(1)(D)(ii). Pub.L. 104-208, 308(f)(3)(A), substituted "is admitted to" for "enters". See Codification note set out
under this section.
Subsec. (k). Pub.L. 104-208, 308(d)(1)(D), (E), substituted "inadmissibility" for "exclusion" and "inadmissible" for
"excludable".
Subsec. (l)(2)(B). Pub.L. 104-208, 308(e)(6), substituted "removal of" for "deportation against".
1994 Amendments. Subsec. (a)(2)(A)(i)(I). Pub.L. 103-416, 203(a)(1), inserted "or an attempt or conspiracy to commit
such a crime" following "offense)".
Subsec. (a)(2)(A)(i)(II). Pub.L. 103-416, 203(a)(2), inserted "orattempt" following "conspiracy".
Subsec. (a)(5)(C). Pub.L. 103-416, 219(z)(5), amended section 307(a)(6) of Pub.L. 102-232, by substituting "preference
immigrant aliens" for "preference immigrants", which required no change in text.
Subsec. (d)(1). Pub.L. 103-322, 130003(b)(1), added par. (1). Prior par. (1) was repealed in 1990 by Pub.L. 101-649.
Subsec. (d)(11). Pub.L. 103-416, 219(e), substituted "voluntarily" for "voluntary".
Subsec. (e). Pub.L. 103-416, 220(a), inserted parenthetical reference to residency waiver requests by a State public health
department regarding an international medical graduate and provisions directing that such waiver be subject to the
requirements of section 1184(k) of this title.
Subsec. (h). Pub.L. 103-416, 203(a)(3), inserted ", or an attempt or conspiracy to commit murder or a criminal act
involving torture" following "torture".
Subsec. (n)(1)(A)(i). Pub.L. 103-416, 219(z)(1), amended directory language of section 303(a)(7)(B)(i) of Pub.L.
102-232 to clarify that such amendment was to be executed to subsec. (n)(1)(A)(i) of this section. As such amendment had
already been executed to subsec. (n)(1)(A)(i) of this section, no further change is text was required.
Subsec. (o). Pub.L. 103-317, 506(a), (c), temporarily added subsec. (o), which read as follows:
"(o) Requirements for receipt of immigrant visa within ninety days following departure
"An alien who has been physically present in the United States shall not be eligible to receive an immigrant visa within
ninety days following departure therefrom unless-"(1) the alien was maintaining a lawful nonimmigrant status at the time of such departure, or
"(2) the alien is the spouse or unmarried child of an individual who obtained temporary or permanent resident status
under section 1160 or 1255a of this title or section 202 of the Immigration Reform and Control Act of 1986 at any date,
who-"(A) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent
resident status under section 1160 or 1255a of this title or section 202 of the Immigration Reform and Control Act of
1986;
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"(B) entered the United States before May 5, 1988, resided in the United States on May 5, 1988, and is not a lawful
permanent resident; and
"(C) applied for benefits under section 301(a) of the Immigration Act of 1990." See section 506(c) of Pub.L. 103-317,
as amended, set out as an Effective and Termination Dates of 1994 Acts note under this section.
1993 Amendments. Subsec. (a)(1)(A)(i). Pub.L. 103-43, 2007(a), included infection with the etiologic agent for AIDS as
a disease of public health significance.
1991 Amendments. Subsec. (a)(1)(A)(ii)(II). Pub.L. 102-232, 307(a)(1), inserted"or" following "other harmful
behavior,".
Subsec. (a)(3)(A)(i). Pub.L. 102-232, 307(a)(2), inserted "(I)" after "any activity" and "(II)" after "sabotage or".
Subsec. (a)(3)(B)(iii)(III). Pub.L. 102-232, 307(a)(3), substituted "a terrorist activity" for "an act of terrorist activity".
Subsec. (a)(3)(C)(iv). Pub.L. 102-232, 307(a)(5), substituted "identity" for "identities".
Subsec. (a)(3)(D)(iv). Pub.L. 102-232, 307(a)(4), substituted "if the immigrant" for "if the alien".
Subsec. (a)(5)(C). Pub.L. 102-232, 307(a)(6), as amended by section 219(z)(5) of Pub.L. 103-416, substituted
"immigrants seeking admission or adjustment of status under paragraph (2) or (3) of section 1153(b) of this title" for
"preference immigrant aliens described in paragraph (3) or (6) of section 1153(a) of this title and to nonpreference immigrant
aliens described in section 1153(a)(7) of this title".
Subsec. (a)(6)(B). Pub.L. 102-232, 307(a)(7)(A), substituted "(a) who seeks" for "who seeks" in the provisions following
cl. (iv).
Pub.L. 102-232, 307(a)(7)(B), (C), substituted "removal, or (b) who seeks admission within 20 years in the case of an
alien convicted of an aggravated felony," for "removal (or within 20 years in the case of an alien convicted of an aggravated
felony)" in the provisions following cl. (iv).
Subsec. (a)(6)(E)(ii). Pub.L. 102-232, 307(a)(8)(B), added cl. (ii). Former cl. (ii) was redesignated (iii).
Subsec. (a)(6)(E)(iii). Pub.L. 102-232, 307(a)(8)(A), redesignated former cl. (ii) as (iii).
Subsec. (a)(8)(B). Pub.L. 102-232, 307(a)(9), substituted "Any person" for "Any alien".
Subsec. (a)(9)(C)(i). Pub.L. 102-232, 307(a)(10)(A), substituted "an order by a court in the United States granting
custody to a person of a United States citizen child who detains or retains the child, or withholds custody of the child, outside
the United States from the person granted custody by that order, is excludable until the child is surrendered to the person
granted custody by that order" for "a court order granting custody to a citizen of the United States of a child having a lawful
claim to United States citizenship, detains, retains, or withholds custody of the child outside of the United States from the
United States citizen granted custody, is excludable until the child is surrendered to such United States citizen".
Subsec. (a)(9)(C)(ii). Pub.L. 102-232, 307(a)(10)(B), substituted "so long as the child is located in a foreign state that is a
party" for "to an alien who is a national of a foreign state that is a signatory".
Subsec. (c). Pub.L. 102-232, 307(b), substituted "paragraphs (3) and (9)(C)" for "subparagraphs (A), (B), (C), or (E) of
paragraph (3)".
Pub.L. 102-232, 306(a)(10), substituted "one or more aggravated felonies and has served for such felony or felonies" for
"an aggravated felony and has served".
Subsec. (d)(3). Pub.L. 102-232, 307(c)(1), substituted "(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii)," for "(3)(A)," wherever
appearing.
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Pub.L. 102-232, 307(c)(2), substituted "(3)(E)" for "(3)(D)" wherever appearing.

Subsec. (d)(11). Pub.L. 102-232, 307(d), inserted "and in the case of an alien seeking admission or adjustment of status
as an immediate relative or immigrant under section 1153(a) of this title (other than paragraph (4) thereof)".
Subsec. (g)(1). Pub.L. 102-232, 307(e), substituted "subsection (a)(1)(A)(i) of this section" for "section (a)(1)(A)(i) of
this section".
Subsec. (h). Pub.L. 102-232, 307(f)(1), struck out "in the case of an immigrant who is the spouse, parent, son, or
daughter of a citizen of the United States or alien lawfully admitted for permanent residence" after "30 grams or less of
marijuana" in the matter preceding par. (1).
Subsec. (h)(1). Pub.L. 102-232, 307(f)(2), designated existing provisions of par. (1) as subpar. (A) thereof, in subpar. (A)
as so designated inserted "in the case of any immigrant" after "(A)", redesignated former subpars. (A), (B), and (C) of former
par. (1) as clauses (i), (ii), and (iii) of the redesignated subpar. (A), and added new subpar. (B).
Subsec. (i). Pub.L. 102-232, 307(g), substituted "immigrant" and "immigrant's" for "alien" and "alien's", respectively,
wherever appearing.
Subsec. (j)(1)(D). Pub.L. 102-232, 309(b)(7), substituted "United States Information Agency" for "International
Communication Agency".
Subsec. (j)(2). Pub.L. 102-232, 303(a)(5)(B), substituted provisions setting forth conditions under which alien graduates
of medical schools may be admitted as nonimmigrants, for provisions relating to inapplicability of par. (1)(A) and (B)(ii)(I)
requirements between effective date of subsec. and Dec. 31, 1983.
Subsec. (j)(3). Pub.L. 102-232, 309(b)(7), substituted "United States Information Agency" for "International
Communication Agency".
Subsec. (m)(2)(A). Pub.L. 102-232, 302(e)(9), added provision relating to attestation that facility will not replace nurse
with nonimmigrant for period of one year after layoff.
Subsec. (n)(1)(A)(i). Pub.L. 102-232, 303(a)(7)(B)(i), as amended by section 219(z)(1) of Pub.L. 103-416, in opening
subcl. substituted "admitted or provided status as a nonimmigrant described in section 1101(a)(15)(H)(i)(b) of this title" for
"and to other individuals employed in the occupational classification and in the area of employment", in subcl. I substituted
"paid by the employer to all other individuals with similar experience and qualifications for the specific employment in
question, or" for "for the occupational classification at the place of employment, or" and in closing subcl. substituted "based
on the best information available" for "determined".
Subsec. (n)(1)(A)(ii).Pub.L. 102-232, 303(a)(6), substituted "for such a nonimmigrant" for "for such aliens".
Subsec. (n)(1)(D). Pub.L. 102-232, 303(a)(7)(B)(ii), substituted "(and such accompanying documents as are necessary"
for "(and accompanying documentation)".
Pub.L. 102-232, 303(a)(7)(B)(iii), redesignated portion of existing subpar. (D) as closing subpar.
Subsec. (n)(1), closing subpar. Pub.L. 102-232, 303(a)(7)(B)(iii), redesignated portion of existing subpar. (D) as closing
subpar. and, as so redesignated, added provisions relating to review for completeness and inaccuracies and provision of
certification in such circumstances.
Subsec. (n)(2)(C). Pub.L. 102-232, 303(a)(7)(B), substituted reference to condition of par. (1)(B), substantial failure to
meet condition of pars. (1)(C) or (1)(D), willful failure to meet condition of par. (1)(A), or misrepresentation of material fact,
for reference to condition or substantial failure in the case of condition described in pars. (1)(C) or (1)(D) or
misrepresentation of material fact.
Subsec. (n)(2)(D). Pub.L. 102-232, 303(a)(7)(B)(v), (vi), made provisions applicable whether or not subpar. (C) penalty
has been imposed rather than in addition to imposition of such penalty.
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1990 Amendments. Subsec. (a). Pub.L. 101-649, 601(a), amended subsec. generally, decreasing number of classes of
excludable aliens from 34 to 9 by broadening descriptions of such classes.
Subsec. (a)(5)(A). Pub.L. 101-649, 162(e)(1)(A), substituted provisions making aliens seeking admission under section
1153(b)(2) or (3) of this title excludable, for provisions making aliens seeking admission for purpose of performing skilled or
unskilled labor excludable.
Subsec. (a)(5)(B). Pub.L. 101-649, 162(e)(1)(B), added provision requiring that alien be seeking admission as an
immigrant under par. (2) or (3) of section 1153(b) of this title.
Subsec. (a)(5)(C). Pub.L. 101-649, 162(e)(1)(C), struck out subpar. (C), which related to applicability of grounds for
exclusion to aliens described in section 1153(a)(3), (6), or (7) of this title.
Subsec. (a)(17). Pub.L. 101-649, 514(a), substituted "20 years" for "10 years".
Subsec. (a)(34). Pub.L. 101-246 131(a), added par. (34).
Subsec. (b). Pub.L. 101-649, 601(b), substituted provisions relating to notice of denials for provisions relating to
applicability of former subsec. (a)(25).
Subsec. (c). Pub.L. 101-649, 511(a), added provision relating to applicability of first sentence to certain aliens convicted
of felonies.
Pub.L. 101-649, 601(d)(1), substituted "subsection (a) of this section (other than subparagraphs (A), (B), (C), or (E) of
paragraph (3))" for "paragraph (1) through (25) and paragraphs (30) and (31) of subsection (a) of this section".
Subsec. (d)(1), (2). Pub.L. 101-649, 601(d)(2)(A), struck out pars. (1) and (2), which related to applicability of former
subsec. (a)(11), (25), and (28).
Subsec. (d)(3). Pub.L. 101-649, 601(d)(2)(B), added provisions relating to control and regulation of aliens applying for
temporary admission, and substituted references to pars. (3)(A), (C) and (D) of subsec. (a) for reference to pars. (27), (29)
and (33) of subsec. (a).
Subsec. (d)(4). Pub.L. 101-649, 601(d)(2)(C), substituted "(7)(B)(i)" for "(26)".
Subsec. (d)(5)(A). Pub.L. 101-649, 202(b), added reference to exception as provided in section 1184(f) of this title.
Subsec. (d)(6). Pub.L. 101-649, 601(d)(2)(A), struck out par. (6), which directed prescription of conditions to control
excludable aliens applying for temporary admission.
Subsec. (d)(7). Pub.L. 101-649, 601(d)(2)(D), substituted "(other than paragraph (7))" for "of this section, except
paragraphs (20), (21), and (26),".
Subsec. (d)(8). Pub.L. 101-649, 601(d)(2)(E), substituted "(3)(A), (3)(B), (3)(C), and (7)(B)" for "(26), (27), and (29)".
Subsec. (d)(9), (10). Pub.L. 101-649, 601(d)(2)(A), struck out pars. (9) and (10), which related to applicability of former
subsec. (a), pars. (7) and (15), respectively.
Subsec. (d)(11). Pub.L. 101-649, 601(d)(2)(F), added par. (11).
Subsec. (g). Pub.L. 101-649, 601(d)(3), substituted provisions relating to waiver of application for provisions relating to
admission of mentally retarded, tubercular, and mentally ill aliens.
Subsec. (h). Pub.L. 101-649, 601(d)(4), substituted provisions relating to waiver of certain subsec. (a)(2) provisions for
provisions relating to nonapplicability of subsec. (a)(9), (10), (12), and (23).
Pub.L. 101-246, 131(c), substituted "(12), or (34)" for "or (12)".
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Subsec. (i). Pub.L. 101-649, 601(d)(5), substituted provisions relating to waiver of subsec. (a)(6)(C)(i) of this section for
provisions relating to admission of spouse, parent or child of alien excludable for fraud.
Subsec. (k). Pub.L. 101-649, 601(d)(6), substituted "paragraph (5)(A) or (7)(A)(i)" for "paragraph (14), (20), or (21)".
Subsec. (l). Pub.L. 101-649, 601(d)(7), substituted "paragraph (7)(B)(i)" for "paragraph (26)(B)".
Subsec. (m)(2)(A). Pub.L. 101-649, 162(f)(2)(B) in opening cl. struck out provision describing attestation as being with
respect to a facility for which alien will perform services, in cl. (iii), substituted reference to alien employed by the facility for
reference to alien, and in closing par. added provisions authorizing waiver of attestation requirements in certain
circumstances.
Subsec. (n). Pub.L. 101-649, 205(c)(3), added subsec. (n).
1989 Amendments. Subsec. (m). Pub.L. 101-238, 3(b), added subsec. (m).
1988 Amendments. Subsec. (a)(17). Pub.L. 100-690 inserted "(or within ten years in the case of an alien convicted of an
aggravated felony)" after "within five years".
Subsec. (a)(32). Pub.L. 100-525, 9(i)(1), substituted "Secretary of Education" for "Commissioner of Education" and
"Secretary of Health and Human Services" for "Secretary of Health, Education, and Welfare", respectively.
Subsec. (d)(4). Pub.L. 100-525, 8(f), amended section 7 of Pub.L. 99- 653 to provide for an amendment to subsec. (d)(4).
See 1986 Amendment note set out below.
Subsec. (e). Pub.L. 100-525, 9(i)(2), substituted "Director of the United States Information Agency" for "Secretary of
State" the first place appearing, and "Director" for "Secretary of State" each subsequent place appearing.
Subsec. (g). Pub.L. 100-525, 9(i)(3), substituted "Secretary of Health and Human Services" for "Surgeon General of the
United States Public Health Service" wherever appearing.
Subsec. (h). Pub.L. 100-525, 9(i)(4), substituted "paragraphs" for "paragraph" preceding "(9), (10)".
Subsec. (i). Pub.L. 100-525, 7(c), inserted "or other benefit under this chapter" after "United States". See 1986
Amendment note set out below.
1987 Amendments. Subsec. (a)(23). Pub.L. 100-204 designated provisions which related to conviction of violation of, or
conspiracy to violate, any law or regulation of State, United States or foreign country relating to controlled substance as
subpar. (A), designated provisions which related to consular officer or immigration officers knowing or having reason to
believe alien is or has been illicit trafficker in any such controlled substance as subpar. (B) and, as so designated, struck out
"any alien who", substituted "consular officers" for "consular officer", and added "or is or has been a knowing assistor,
abettor, conspirator, or colluder with others in the illicit trafficking in any such controlled substance" following "such
controlled substance".
1986 Amendments. Subsec. (a)(19). Pub.L. 99-639, 6(a), added "by fraud or willfully misrepresenting a material fact"
and substituted "other documentation, or entry into the United States or other benefit provided under this chapter" for "or
other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact".
Subsec. (a)(23). Pub.L. 99-570, 1751(a)(1), substituted "any law or regulation of a State, the United States, or a foreign
country relating to a controlled substance (as defined in section 802 of Title 21)" for "any law or regulation relating to the
illicit possession of or traffic in narcotic drugs or marihuana, or who has been convicted of a violation of, or a conspiracy to
violate, any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation,
sale, exchange, dispensing, giving away, importation, exportation, or the possession for the purpose of the manufacture,
production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium,
coca leaves, heroin, marihuana, or any salt derivative or preparation of opium or coca leaves, or isonipecaine or any
addiction-forming or addiction-sustaining opiate".
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Pub.L. 99-570, 1751(a)(2), substituted "any such controlled substance" for "any of the aforementioned drugs".
Subsec. (a)(24). Pub.L. 99-653 struck out par. (24), which related to aliens seeking admission from foreign contiguous
territory or adjacent islands who arrived there on vessel or aircraft of nonsignatory line or noncomplying transportation line
and have not resided there at least two years subsequent to such arrival, except for aliens described in section 1101(a)(27)(A)
of this title and aliens born in Western Hemisphere, and further provided that no paragraph following par. (24) shall be
redesignated as result of this amendment.
Subsec. (d)(4). Pub.L. 99-653, 7(d)(2), as added Pub.L. 100-525, 8(f), substituted "section 1228(c) of this title" for
"section 1228(d) of this title".
Subsec. (i). Pub.L. 99-639, 6(b), as added Pub.L. 100-525, 7(c), inserted "or other benefit under this chapter" after
"United States".
Subsec. (l). Pub.L. 99-396, 14(a), as amended Pub.L. 100-525, 3(1)(A), designated the provisions of existing subsec. (l)
as par. (1) thereof and the provisions of existing pars. (1) and (2) as subpars. (A) and (B), respectively; in the provisions of
redesignated par. (1) preceding subpar. (A) inserted reference to consultation with the Governor of Guam; in subpar. (B)
inserted reference to the welfare, safety, and security of the territories and commonwealths of the United States, and added
pars. (2) and (3).
1984 Amendments. Subsec. (a)(9). Pub.L. 98-473, 220(a), substituted "An alien who would be excludable because of the
conviction of an offense for which the sentence actually imposed did not exceed a term of imprisonment in excess of six
months, or who would be excludable as one who admits the commission of an offense for which a sentence not to exceed one
year's imprisonment might have been imposed on him, may be granted a visa and admitted to the United States if otherwise
admissible: Provided, That the alien has committed only one such offense, or admits the commission of acts which constitute
the essential elements of only one such offense." for "Any alien who would be excludable because of the conviction of a
misdemeanor classifiable as a petty offense under the provisions of section 1(3) of Title 18, by reason of the punishment
actually imposed, or who would be excludable as one who admits the commission of an offense that is classifiable as a
misdemeanor under the provisions of section 1(2) of Title 18, by reason of the punishment which might have been imposed
upon him, may be granted a visa and admitted to the United States if otherwise admissible: Provided, That the alien has
committed only one such offense, or admits the commission of acts which constitute the essential elements of only one such
offense".
Subsec. (l). Pub.L. 98-454 added subsec. (1).
1981 Amendments. Subsec. (a)(17). Pub.L. 97-116, 4(1), inserted "and who seek admission within five years of the date
of such deportation or removal," following "section 1252(b) of this title,".
Subsec. (a)(32). Pub.L. 97-116, 5(a)(1), 18(e)(1), inserted ")" after "in the United States" and inserted provision that for
purposes of this paragraph an alien who is a graduate of a medical school be considered to have passed parts I and II of the
National Board of Medical Examiners examination if the alien was fully and permanently licensed to practice medicine in a
State on Jan. 9, 1978, and was practicing medicine in a State on that date.
Subsec. (d)(6). Pub.L. 97-116, 4(2), struck out provision that the Attorney General make a detailed report to Congress in
any case in which he exercises his authority under par. (3) of this subsection on behalf on any alien excludable under subsec.
(a)(9), (10), and (28) of this section.
Subsec. (h). Pub.L. 97-116, 4(3), substituted "paragraphs (9), (10), or (12) or subsection (a) of this section or paragraph
(23) of such subsection as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana"
for "paragraphs (9), (10), or (12) of subsection (a) of this section".
Subsec. (j)(1). Pub.L. 97-116, 5(b)(1), inserted "as follows" following "training are".
Subsec. (j)(1)(A). Pub.L. 97-116, 5(b)(3), (4), substituted "Secretary of Education" for "Commissioner of Education" and
"agreement," for "agreement;".
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Subsec. (j)(1)(B). Pub.L. 97-116, 5(a)(2), (b)(3), (7)(A), (B), substituted "Secretary of Education" for "Commissioner of
Education", "or (ii)(I)" for "or (i)", "Secretary of Health and Human Services" for "Secretary of Health, Education, and
Welfare", "(II) has competency" for "has competency", "(III) will be able to adapt" for "will be able to adapt", and "(IV) has
adequate prior education" for "has adequate prior education" and inserted provision that for purposes of this subparagraph an
alien who is a graduate of a medical school be considered to have passed parts I and II of the National Board of Medical
Examiners examination if the alien was fully and permanently licensed to practice medicine in a State on Jan. 9, 1978, and
was practicing medicine in a State on that date.
Subsec. (j)(1)(C). Pub.L. 97-116, 5(b)(2) to (4), struck out "(including any extension of the duration thereof under
subparagraph (D) )" following "to the United States" and substituted "Secretary of Health and Human Services" for
"Secretary of Health, Education, and Welfare" and "training," for "training; and".
Subsec. (j)(1)(D). Pub.L. 97-116, 5(b)(5), substituted provision permitting aliens coming to the United States to study in
medical residency training programs to remain until the typical completion date of the program, as determined by the
Director of the International Communication Agency at the time of the alien's entry, based on criteria established in
coordination with the Secretary of Health and Human Services, except that such duration be limited to seven years unless the
alien demonstrate to the satisfaction of the Director that the country to which the alien will return after such specialty
education has exceptional need for an individual trained in such specialty, and that the alien may change enrollment in
programs once within two years after coming to the United States if the Director approves and further commitments are
obtained from the alien to assure that, upon completion of the program, the alien will return to his country for provision
limiting the duration of the alien's participation in the program for which he is coming to the United States to not more than 2
years, with a possible one year extension.
Subsec. (j)(1)(E). Pub.L. 97-116, 5(b)(6), added subpar. (E).
Subsec. (j)(2)(A). Pub.L. 97-116, 5(b)(7)(C) to (F), substituted "and (B)(ii)(I) of paragraph (1)" for "and (B) of paragraph
(1)", "December 31, 1983" for "December 31, 1981", and "if (i) the Secretary of Health and Human Services determines, on a
case-by-case basis, that there would be" for "if there would be" and added cl. (ii).
Subsec. (j)(2)(B). Pub.L. 97-116, 5(b)(7)(G), inserted provision directing the Secretary of Health and Human Services, in
coordination with Attorney General and the Director of the International Communication Agency, to monitor the issuance of
waivers under subpar. (A) and the needs of the communities, with respect to which such waivers are issued, to assure that
quality medical care is provided and to review each program with such a waiver to assure that the plan described in subpar.
(A)(ii) is being carried out and that the participants in such program are being provided appropriate supervision in their
medical education and training.
Subsec. (j)(2)(C). Pub.L. 97-116, 5(b)(7)(G), added subpar. (C).
Subsec. (j)(3). Pub.L. 97-116, 5(b)(8), added par. (3).
Subsec. (k). Pub.L. 97-116, 18(e)(2), added subsec. (k).
1980 Amendments. Subsec. (a). Pub.L. 96-212, 203(d), in pars. (14) and (32) substituted "(7)" for "(8)" wherever
appearing therein.
Subsec. (d)(5). Pub.L. 96-212, 203(f), redesignated existing provisions as subpar. (A) and, as so redesignated, added
provision excepting subpar. (B), and added subpar. (B).
Subsec. (j)(2)(A). Pub.L. 96-538 substituted "December 30, 1981" for "December 30, 1980".
1979 Amendments. Subsec. (d). Pub.L. 96-70 added pars. (9) and (10).
1978 Amendments. Subsec. (a)(33). Pub.L. 95-549, 101, added par. (33).
Subsec. (d)(3). Pub.L. 95-549, 102, included reference to par. (29) in parenthetical text.
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1977 Amendments. Subsec. (a)(32). Pub.L. 95-83, 307(q)(1), inserted in first sentence after "graduates of a medical
school" text reading "not accredited by a body or bodies approved for the purpose by the Commissioner of Education
(regardless of whether such school of medicine is in the United States)" and struck out second sentence exclusion of aliens
provision with respect to application to special immigrants defined in section 1101(a)(27)(A) of this title (other than the
parents, spouses, or children of the United States citizens or of aliens lawfully admitted for permanent residence).
Subsec. (j)(1)(B). Pub.L. 95-83, 307(q)(2)(A), inserted cl. (i) and designated existing provisions as cl. (ii).
Subsec. (j)(1)(C). Pub.L. 95-83, 307(q)(2)(B), substituted "that there is a need in that country for persons with the skills
the alien will acquire in such education or training" for "that upon such completion and return, he will be appointed to a
position in which he will fully utilize the skills acquired in such education or training in the government of that country or in
an educational or other appropriate institution or agency in that country".
Subsec. (j)(1)(D). Pub.L. 95-83, 307(q)(2)(C), substituted "at the written request" for "at the request", struck out cl. "(i)
such government provides a written assurance, satisfactory to the Secretary of Health, Education, and Welfare, that the alien
will, at the end of such extension, be appointed to a position in which he will fully utilize the skills acquired in such
education or training in the government of that country or in an educational or other appropriate institution or agency in that
country,", and redesignated as cls. (i) and (ii) former cls. (ii) and (iii).
Subsec. (j)(2)(A). Pub.L. 95-83, 307(q)(2)(D), substituted "(A) and (B)" for "(A) through (D)".
1976 Amendments. Subsec. (a)(14). Pub.L. 94-571, 5, in revising par. (14) inserted in cl. (A) "(or equally qualified in the
case of aliens who are members of the teaching profession or who have exceptional ability in the sciences or the arts)" and
deleted from cl. (A) "in the United States" following "sufficient workers" and "destined" preceding "to perform" and
introductory provision of last sentence making exclusion of aliens under par. (14) applicable to special immigrants defined in
former provision of section 1101(a)(27)(A) of this title (other than the parents, spouses, or children of United States citizens
or of aliens lawfully admitted to the United States for permanent residence).
Subsec. (a)(24). Pub.L. 94-571, 7(d), substituted in the parenthetical text "section 1101(a)(27)(A) of this title and aliens
born in the Western Hemisphere" for "section 1101(a)(27)(A) and (B) of this title".
Subsec. (a)(32). Pub.L. 94-484, 601(a), added subsec. (a)(32).
Subsec. (e). Pub.L. 94-484, 601(c), substituted "(i) whose" for "whose (i)", and "residence, (ii)" for "residence, or (ii)",
added "or (iii) who came to the United States or acquired such status in order to receive graduate medical education or
training," before "shall be eligible", and added ", except in the case of an alien described in clause (iii)," in the second
proviso.
Subsec. (j). Pub.L. 94-484, 601(d), added subsec. (j).
1970 Amendments. Subsec. (e). Pub.L. 91-225 inserted cls. (i) and (ii) and reference to eligibility for nonimmigrant visa
under 1101(a)(15)(L) of this title, provided for waiver of requirement of two-year foreign residence abroad where alien
cannot return to the country of his nationality or last residence because he would be subject to persecution on account of race,
religion, or political opinion or where the foreign country of alien's nationality or last residence has furnished a written
statement that it has no objection to such waiver for such alien and deleted alternative provision for residence and physical
presence in another foreign country and former first and final provisos reading "Provided, That such residence in another
foreign country shall be considered to have satisfied the requirements of this subsection if the Secretary of State determines
that it has served the purpose and the intent of the Mutual Educational and Cultural Exchange Act of 1961" and "And
provided further, That the provisions of this subsection shall apply also to those persons who acquired exchange visitor status
under the United States Information and Educational Exchange Act of 1948, as amended."
1965 Amendments. Subsec. (a)(1). Pub.L. 89-236, 15(a), substituted "mentally retarded" for "feebleminded".
Subsec. (a)(4). Pub.L. 89-236, 15(b), substituted "or sexual deviation" for "epilepsy".
Subsec. (a)(14). Pub.L. 89-236, 10(a), added the requirement that the Secretary of Labor make an affirmative finding that
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any alien seeking to enter the United States as a worker, skilled or otherwise, will not replace a worker in the United States
nor will the employment of such alien adversely affect the wages and working conditions of individuals in the United States
similarly employed and made the requirement applicable to special immigrants (other than the parents, spouses, and minor
children of U.S. citizens or permanent resident aliens), preference immigrants described in 1153(a)(3) and 1153(a)(6) of
this title, and nonpreference immigrants.
Subsec. (a)(20). Pub.L. 89-236, 10(b), substituted "1181(a)" for "1181(e)".
Subsec. (a)(21). Pub.L. 89-236, 10(c), struck out "quota" preceding "immigrant".
Subsec. (a)(24). Pub.L. 89-236, 10(d), substituted "other than aliens described in section 1101(a)(27)(A) and (B)" for
"other than those aliens who are native-born citizens of countries enumerated in section 1101(a)(27)(C) of this title and aliens
described in section 1101(a)(27)(B) of this title" as the material contained within the parentheses following "Aliens".
Subsec. (g). Pub.L. 89-236, 15(c), redesignated subsec. (f) of 212 of the Immigration and Nationality Act as subsec. (g)
thereof, which for purposes of codification had already been designated as subsec. (g) of this section and granted the
Attorney General authority to admit any alien who is the spouse, unmarried son or daughter, minor adopted child, or parent
of a citizen or lawful permanent resident and who is mentally retarded or has a past history of mental illness under the same
conditions as authorized in the case of such close relatives afflicted with tuberculosis.
Subsecs. (h), (i). Pub.L. 89-236, 15(c), redesignated subsecs. (g) and (h) of 212 of the Immigration and Nationality Act
as subsecs. (h) and (i) respectively thereof, which for purposes of codification had already been designated as subsecs. (h)
and (i) of this section.
1961 Amendments. Subsec. (a)(6). Pub.L. 87-301, 11, eliminated references to tuberculosis and leprosy.
Subsec. (a)(9). Pub.L. 87-301, 13, authorized admission of aliens who would be excluded because of conviction of a
violation classifiable as an offense under 1(3) of Title 18, by reason of punishment actually imposed, or who admit
commission of an offense classifiable as a misdemeanor under 1(2) of Title 18, by reason of punishment which might have
been imposed, if otherwise admissible and provided the alien has committed, or admits to commission of, only one such
offense.
Subsec. (e). Pub.L. 87-256 added subsec. (e) and redesignated former subsec. (e) as (f).
Subsec. (f). Pub.L. 87-256 redesignated former subsec. (e) as (f).
Subsecs. (g) to (i). Pub.L. 87-301, 12, 14, 15, added subsecs. (f) to (h), which for purposes of codification have been
redesignated as (g) to (i).
1960 Amendments. Subsec. (a)(23). Pub.L. 86-648 inserted "or marihuana" following "narcotic drugs".
1959 Amendments. Subsec. (d)(7). Pub.L. 86-3 eliminated provisions which related to aliens who left Hawaii, and to
persons who were admitted to Hawaii under 8(a)(1) of the Act of March 24, 1934 or as nationals of the United States.
1958 Amendments. Subsec. (d)(7). Pub.L. 85-508 eliminated provisions which related to aliens who left Alaska.
1956 Amendments. Subsec. (a)(23). Act July 18, 1956, included conspiracy to violate a narcotic law, and the illicit
possession of narcotics, as additional grounds for exclusion.
Effective and Applicability Provisions
2002 Acts. Pub.L. 107-273, Div. C, Title I, 11018(d), Nov. 2, 2002, 116 Stat. 1825, provided that: "The amendments
made by this section [amending this section and 8 U.S.C.A. 1184 and amending provisions set out as a note under this
section] shall take effect as if this Act [Pub.L. 107-273, Nov. 2, 2002, 116 Stat. 1758; see Tables for classification] were
enacted on May 31, 2002."
Pub.L. 107-150, 2(b), Mar. 13, 2002, 116 Stat. 75, provided that: "The amendments made by subsection (a) [amending
8 USCA 1182
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this section and section 1183a of this title] shall apply with respect to deaths occurring before, on, or after the date of the
enactment of this Act [Mar. 13, 2002], except that, in the case of a death occurring before such date, such amendments shall
apply only if-"(1) The sponsored alien-"(A) requests the Attorney General to reinstate the classification petition that was filed with respect to the alien by the
deceased and approved under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) before such death; and
"(B) demonstrates that he or she is able to satisfy the requirement of section 212(a)(4)(C)(ii) of such Act (8 U.S.C.
1182(a)(4)(C)(ii)) [subsec. (a)(4)(C)(ii) of this section] by reason of such amendments; and
"(2) the Attorney General reinstates such petition after making the determination described in section 213A(f)(5)(B)(ii) of
such Act (as amended by subsection (a)(1) of this Act) [8 U.S.C.A. 1183a(f)(5)(B)(ii)]."
2000 Acts. Pub.L. 106-395, 201(b)(3), Oct. 30, 2000, 114 Stat. 1634, provided that: "The amendment made by paragraph
(1) [amending subsec. (a)(10)(D) of this section] shall be effective as if included in the enactment of section 347 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208; 110 Stat. 3009-638) [Pub.L. 104-208,
Div. C, 347, Sept. 30, 1996, 110 Stat. 3009-638, which amended this section and section 1251 of this title] and shall apply
to voting occurring before, on, or after September 30, 1996. The amendment made by paragraph (2) [amending subsec.
(a)(6)(C)(ii) of this section] shall be effective as if included in the enactment of section 344 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (Public Law 104- 208; 110 Stat. 3009-637) [Pub.L. 104-208, Div. C,
344, Sept. 30, 1996, 110 Stat. 3009-637, which amended this section and section 1251 of this title] and shall apply to
representations made on or after September 30, 1996. Such amendments shall apply to individuals in proceedings under the
Immigration and Nationality Act on or after September 30, 1996."
1999 Acts. Amendment of this section by Pub.L. 106-120 effective Dec. 3, 1999, see section 811 of Pub.L. 106-120, set
out as a note under section 1901 of Title 21.
Pub.L. 106-95, 4(b), Nov. 12, 1999, 113 Stat. 1318, provided that: "The amendments made by subsection (a) [amending
subsec. (r) of this section] shall take effect on the date of the enactment of this Act [Nov. 12, 1999], without regard to
whether or not final regulations to carry out such amendments have been promulgated by such date."
Pub.L. 106-95, 2(e), Nov. 12, 1999, 113 Stat. 1317, provided that: "The amendments made by this section [amending this
section and section 1101 of this title and enacting provisions set out as note under this section] shall apply to classification
petitions filed for nonimmigrant status only during the 4- year period beginning on the date that interim or final regulations
are first promulgated under subsection (d) [set out as a note under this section]."
1998 Acts. Section 604(b) of Pub.L. 105-292 provided that: "The amendment made by subsection (a) [amending this
section] shall apply to aliens seeking to enter the United States on or after the date of the enactment of this Act [Oct. 27,
1998]."
Section 412(d) of Pub.L. 105-277 provided that: "The amendments made by subsection (a) [amending this section] apply to
applications filed under section 212(n)(1) of the Immigration and Nationality Act [subsec. (n)(1) of this section] on or after
the date final regulations are issued to carry out such amendments, and the amendments made by subsections (b) and (c)
[amending this section] take effect on the date of the enactment of this Act [Oct. 21, 1998]."
Section 413(e)(2) of Pub.L. 105-277, as amended Pub.L. 106-313, Title I, 107(b), Oct. 17, 2000, 114 Stat. 1255, provided
that: "The amendment made by paragraph (1) [amending subsec. (h)(2)(G) of this section] shall cease to be effective on
September 30, 2003."
Section 415(b) of Pub.L. 105-277 provided that: "The amendment made by subsection (a) [adding subsec. (p) of this
section] applies to prevailing wage computations made-"(1) for applications filed on or after the date of the enactment of this Act [Oct. 21, 1998]; and
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8 U.S.C.A. 1182
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"(2) for applications filed before such date, but only to the extent that the computation is subject to an administrative or
judicial determination that is not final as of such date."
Section 431(b) of Pub.L. 105-277 provided that: "The amendment made by subsection (a) [adding subsec. (q) of this
section] shall apply to activities occurring on or after the date of the enactment of this Act [Oct. 21, 1998]."
Section 2226(b) of Pub.L. 105-277, provided that: "The amendment made by subsection (a) [amending subsec. (a)(10)(C)
of this section] shall apply to aliens seeking admission to the United States on or after the date of enactment of this Act [Oct.
21, 1998]."
1996 Acts. Amendment by sections 301, 304, 305, 306, and 308 of Div. C of Pub.L. 104-208 effective, with certain
exceptions and subject to certain transitional rules, on the first day of the first month beginning more than 180 days after
Sept. 30, 1996, see section 309 of Div. C of Pub.L. 104-208, set out as a note under section 1101 of this title.
Section 301(b)(3) of Div. C of Pub.L. 104-208 provided that: "In applying section 212(a)(9)(B) of the Immigration and
Nationality Act, as inserted by paragraph (1) [subsec. (a)(9)(B) of this section], no period before the title III-A effective date
[see section 309 of Pub.L. 104-208, set out as a note under section 1101 of this title] shall be included in a period of unlawful
presence in the United States."
Section 301(c)(2) of Div. C of Pub.L. 104-208 provided that: "The requirements of subclauses (II) and (III) of section
212(a)(6)(A)(ii) of the Immigration and Nationality Act, as inserted by paragraph (1) [subsec. (a)(6)(A)(ii) of this section],
shall not apply to an alien who demonstrates that the alien first arrived in the United States before the title III-A effective date
(described in section 309(a) of this division [section 309(a) of Pub.L. 104-208, set out as a note under section 1101 of this
title])."
Section 306(d) of Div. C of Pub.L. 104-208 provided in part that the amendment by that section is effective as if included
in the enactment of Pub.L. 104-132, which was approved Apr. 24, 1996.
Section 341(c) of Div. C of Pub.L. 104-208 provided that: "The amendments made by this section [amending this section]
shall apply with respect to applications for immigrant visas or for adjustment of status filed after September 30, 1996."
Section 342(b) of Div. C of Pub.L. 104-208 provided that: "The amendments made by subsection (a) [amending this
section] shall take effect on the date of the enactment of this Act [Sept. 30, 1996] and shall apply to incitement regardless of
when it occurs."
Section 344(c) of Div. C of Pub.L. 104-208 provided that: "The amendments made by this section [amending this section
and section 1251 of this title] shall apply to representations made on or after the date of the enactment of this Act [Sept. 30,
1996]."
Section 346(b) of Div. C of Pub.L. 104-208 provided that: "The amendment made by subsection (a) [amending this
section] shall apply to aliens who obtain the status of a nonimmigrant under section 101(a)(15)(F) of the Immigration and
Nationality Act [8 U.S.C.A. 1101(a)(15)(F)] after the end of the 60- day period beginning on the date of the enactment of
this Act [Sept. 30, 1996], including aliens whose status as such a nonimmigrant is extended after the end of such period."
and section 1251 of this title] shall apply to voting occurring before, on, or after the date of the enactment of this Act [Sept.
30, 1996]."
section] shall be effective on the date of the enactment of this Act [Sept. 30, 1996] and shall apply in the case of any alien
who is in exclusion or deportation proceedings as of such date unless a final administrative order in such proceedings has
been entered as of such date."
and section 1251 of this title] shall apply to applications for waivers filed before, on, or after the date of the enactment of this
Act [Sept. 30, 1996], but shall not apply to such an application for which a final determination has been made as of the date
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Page 60
of the enactment of this Act [Sept. 30, 1996]."

section] shall apply to individuals who renounce United States citizenship on and after the date of the enactment of this Act
[Sept. 30, 1996]."
Section 358 of Div. C of Pub.L. 104-208 provided that: "The amendments made by this subtitle [Pub.L. 104-208, Div. C,
Title III, Subtitle D, 354 to 358, Sept. 30, 1996, 110 Stat. 3009-641 to 3009-644, amending this section and sections 1189,
1531, 1532, 1534, and 1535 of this title] shall be effective as if included in the enactment of subtitle A of title IV of the
Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132) [Pub.L. 104- 132, Title IV, Subtitle A, 401,
Apr. 24, 1996, 110 Stat. 1258, which enacted subchapter V of this chapter, amended sections 1105a and 1326 of this title, and
enacted provisions set out as a note under section 1105a of this title; for effective date of such Subtitle A, see section 401(f)
of Pub.L. 104-132, set out as a note under section 1105a of this title]."
section] shall apply to applications submitted on or after such date, not earlier than 30 days and not later than 60 days after
the date the Attorney General promulgates under section 551(c)(2) of this division [section 551(c)(2) of Div. C of Pub.L.
104-208, set out as a note under section 1183a of this title] a standard form for an affidavit of support, as the Attorney
General shall specify, but subparagraphs (C) and (D) of section 212(a)(4) of the Immigration and Nationality Act, as so
amended [subsec. (a)(4)(C) and (D) of this section], shall not apply to applications with respect to which an official interview
with an immigration officer was conducted before such effective date."
Title V of Div. C of Pub.L. 104-208 effective on Sept. 30, 1996, see section 591 of Pub.L. 104-208, set out as a note under
section 1101 of this title.
1994 Acts. Section 203(c) of Pub.L. 103-416 provided that: "The amendments made by this section [amending this section
and section 1251 of this title] shall apply to convictions occurring before, on, or after the date of the enactment of this Act
[Oct. 25, 1994]."
Section 219(z) of Pub.L. 103-416 provided in part that the amendment by that section is effective as if included in the
amendment by sections 307(a)(6) and 303 of Pub.L. 102-232. For effective date of Pub.L. 102-232, see Effective Date of
1991 Acts note set out under this section.
Amendment by section 219 of Pub.L. 103-416 effective as if included in the enactment of the Immigration Act of 1990,
Pub.L. 101-649, 104 Stat. 4978, which was approved Nov. 29, 1990, except as otherwise specifically provided, see section
219(dd) of Pub.L. 103-416, set out as a note under section 1101 of this title.
Section 220(c) of Pub.L. 103-416, as amended Pub.L. 104-208, Div. C, Title VI, 622(a), Sept. 30, 1996, 110 Stat.
3009-695; Pub.L. 107-273, Div. C, Title I, 11018(b), Nov. 2, 2002, 116 Stat. 1825, provided that: "The amendments made
by this section [amending this section and section 1184 of this title] shall apply to aliens admitted to the United States under
section 101(a)(15)(J) of the Immigration and Nationality Act [subsec. (a)(15)(J) of this section], or acquiring such status after
admission to the United States, before, on, or after the date of enactment of this Act [Oct. 25, 1994] and before June 1, 2004."
Section 506(c) of Pub.L. 103-317, as amended Pub.L. 105-119, Title I, 111(b), Nov. 26, 1996, 111 Stat. 2458, provided
that: "The amendment made by subsection (a) [adding subsec. (o) of this section] shall take effect on October 1, 1994, and
shall cease to have effect on October 1, 1997. The amendment made by subsection (b) [section 506(b) of Pub.L. 103-317,
adding subsec. (i) of section 1255 of this title] shall take effect on October 1, 1994."
[Pub.L. 105-46, 123, Sept. 30, 1997, 111 Stat. 1158, which provided that section 506(c) of Pub.L. 103-317 [this note] is
amended by striking "September 30, 1997" and inserting "October 23, 1997" was probably intended by Congress to extend
"October 1, 1997" to "October 23, 1997". For further temporary extensions of the October 23, 1997 termination date, see list
of continuing appropriations acts contained in a Continuing Appropriations for Fiscal Year 1998 note set out as a note under
section 635f of Title 12.]
[Pub.L. 105-64, Oct. 23, 1997, 111 Stat. 1343, provided in part that each provision amended by section 123 of Pub.L.
105-46 [amending this note] shall be applied as if "November 7, 1997" was substituted for "October 23, 1997".]
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[Pub.L. 105-68, Nov. 7, 1997, 111 Stat. 1453, provided in part that each provision amended by section 123 of Pub.L.
[Pub.L. 105-71, Nov. 10, 1997, 111 Stat. 1456,provided in part that each provision amended by section 123 of Pub.L.
1993 Acts. Section 2007(b) of Pub.L. 103-43 provided that: "The amendment made by subsection (a) [amending this
section] shall take effect 30 days after the date of the enactment of this Act [June 10, 1993]."
1991 Acts. Amendments by sections 302 through 308 of Pub.L. 102-232, except as otherwise specifically provided,
effective as if included in the enactment of Pub.L. 101-649, see section 310(1) of Pub.L. 102-232, set out as a note under
section 1101 of this title.
Section 302(e)(9) of Pub.L. 102-232, provided in part that the amendment made by such section [amending this section] is
effective as if included in the Immigration Nursing Relief Act of 1989 [Pub.L. 101-238 which was approved Dec. 18, 1989].
Amendment of this section by section 309(b) of Pub.L. 102-232 to take effect Dec. 12, 1991, see section 310(2) of Pub.L.
103-232, as amended, set out as a note under section 1101 of this title.
1990 Acts. Amendment by section 162(e)(1) of Pub.L. 101-649 effective Oct. 1, 1991, and applicable beginning with fiscal
year 1992, with general transition provisions, admissibility standards, and construction provisions, see section 161 of Pub.L.
101-649, set out as a note under section 1101 of this title.
Amendment by Pub.L. 101-649 applicable as though included in the enactment of Pub.L. 101-238, which was approved
Dec. 18, 1989, see section 162(f)(3) of Pub.L. 101-649, set out as a note under section 1101 of this title.
Section 202(c) of Pub.L. 101-649 provided that: "The amendments made by this section [amending this section and section
1184 of this title] shall take effect 60 days after the date of the enactment of this Act [Nov. 29, 1990]."
Amendment by section 205(c)(3) of Pub.L. 101-649 effective Oct. 1, 1991, see section 231 of Pub.L. 101-649, set out as a
note under section 1101 of this title.
Section 511(b) of Pub.L. 101-649 provided that: "The amendment made by subsection (a) [amending this section] shall
apply to admissions occurring after the date of the enactment of this Act [Nov. 29, 1990]."
Section 514(b) of Pub.L. 101-649 provided that: "The amendment made by subsection (a) [amending this section] shall
apply to admissions occurring on or after January 1, 1991."
Amendment by section 601 of Pub.L. 101-649 applicable to individuals entering the United States on or after June 1, 1991,
see section 601(e)(1) of Pub.L. 101-649, set out as a note under section 1101 of this title.
1989 Acts. Section 3(d) of Pub.L. 101-238 provided that: "The amendments made by the previous provisions of this
section [amending this section and section 1101 of this title and enacting provisions set out as a note under this section] shall
apply to classification petitions filed for nonimmigrant status only during the 5-year period beginning on the first day of the
9th month beginning after the date of the enactment of this Act [Dec. 18, 1989.]"
1988 Acts. Section 8(f) of Pub.L. 100-525 effective as if included in the enactment of Pub.L. 99-653, see section
309(b)(15) of Pub.L. 102-232, set out as a note under section 1101 of this title.
Section 7349(b) of Pub. L. 100-690 provided that: "The amendment made by subsection (a) [amending this section] shall
apply to any alien convicted of an aggravated felony who seeks admission to the United States on or after the date of the
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enactment of this Act [Nov. 18, 1988]."

Section 3 of Pub.L. 100-525 provided that the amendment made by that section is effective as if included in the enactment
of Pub.L. 99-396.
Section 7(d) of Pub. L. 100-525 provided that: "The amendments made by this section [amending this section and sections
1186a and 1255 of this title] shall be effective as if they were included in the enactment of the Immigration Marriage Fraud
Amendments of 1986 [Pub. L. 99-639]."
1987 Acts. Amendment by Pub.L. 100-204, effective Dec. 22, 1987, except as otherwise provided, see section 1301 of
Pub.L. 100-204, set out as a note under section 2651 of Title 22, Foreign Relations and Intercourse.
1986 Acts. Section 6(c), formerly 6(b), of Pub.L. 99-639, as renumbered 6(c) and amended Pub. L. 100-525, 7(c)(2),
Oct. 24, 1988, 102 Stat. 2616, provided that: "The amendment made by this section [amending this section] shall apply to
receipt of visas by, and the admission of, aliens occurring after the date of the enactment of this Act [Nov. 10, 1986] based on
fraud or misrepresentation occurring before, on, or after such date."
Amendment by section 7(d)(2) of Pub.L. 99-653 applicable to visas issued, and admissions occurring, on or after Nov. 14,
1986, pursuant to section 23(a) of Pub.L. 99-653, set out as a note under section 1101 of this title.
Section 1751(c) of Pub.L. 99-570 provided that: "The amendment made by subsection (a) [amending this section] shall
apply to the receipt of visas by, and the admission of, aliens occurring after the date of the enactment of this Act [Oct. 27,
1986] based on fraud or misrepresentations occurring before, on, or after such date."
1984 Acts. Amendment by Pub.L. 98-473 effective on the first day of first calendar month beginning thirty six months
after Oct. 12, 1984, applicable only to offenses committed after taking effect of sections 211 to 239 of Pub.L. 98-473, and
except as otherwise provided for therein, see section 235 of Pub.L. 98-473, as amended, set out as a note under section 3551
of Title 18, Crimes and Criminal Procedure.
1981 Acts. Section 5(c) of Pub.L. 97-116 provided that: "The amendments made by paragraphs (2), (5), and (6) of
subsection (b) [amending this section] shall apply to aliens entering the United States as exchange visitors (or otherwise
acquiring exchange visitor status) on or after January 10, 1978."
Amendment by Pub.L. 97-116, except by section 5(c) of Pub.L. 97-116, effective on Dec. 29, 1981, see section 21(a) of
Pub.L. 97-116, set out as a note under section 1101 of this title.
1980 Acts. Amendment by Pub.L. 96-212, except as provided and specifically made applicable therein, effective April 1,
1980, see section 204 of Pub.L. 96-212, set out as a note under section 1101 of this title.
Amendment by Pub.L. 96-212, except as provided and specifically made applicable therein, applicable to aliens paroled
into the United States on or after the sixtieth day after March 17, 1980, see section 204 of Pub.L. 96- 212, set out as a note
under section 1101 of this title.
1979 Acts. Amendment by Pub.L. 96-70 effective Sept. 27, 1979, see section 3201(d)(1) of Pub.L. 96-70, set out as a note
under section 1101 of this title.
Section 3201(d)(2) of Pub.L. 96-70 provided that: "Paragraph (9) of section 212(d) of the Immigration and Nationality Act
[subsec. (d)(9) of this section], as added by subsection (b) of this section, shall cease to be effective at the end of the
transition period [midnight Mar. 31, 1982, see section 3831 of Title 22, Foreign Relations and Intercourse]."
1976 Acts. Enactment by section 601(d) of Pub.L. 94-484 to be applicable only on and after Jan. 10, 1978, notwithstanding
section 601(f) of Pub.L. 94-484, see section 602(d) of Pub.L. 94-484, as added by section 307(q)(3) of Pub.L. 95-83, set out
as a note under section 1101 of this title.
Amendment by Pub.L. 94-571 effective on first day of first month which begins more than sixty days after Oct. 20, 1976
see section 10 of Pub.L. 94- 571, set out as a note under section 1101 of this title.
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Section 601(f) of Pub.L. 94-484 provided that: "The amendments made by this section [amending this section and section
1101 of this title] shall take effect ninety days after the date of enactment of this section [Oct. 12, 1976]."
1965 Acts. Amendment of section by Pub.L. 89-236 effective, except as otherwise provided, on the first day of the first
month after the expiration of thirty days following the date of enactment of Pub.L. 89-236, which was approved on Oct. 3,
1965, see section 20 of Pub.L. 89-236, set out as a note under section 1151 of this title.
1956 Acts. Amendment by Act July 18, 1956, effective on July 19, 1956, see note set out under section 1401 of Title 18,
Crimes and Criminal Procedure.
Repeals
Section 162(e)(1) of Pub.L. 101-649, cited in the credit to this section, was repealed by Pub.L. 102-232, Title III,
302(e)(6), Dec. 12, 1991, 105 Stat. 1746, and the provisions of law amended by such paragraph [subsec. (a)(5) of this
section] were restored as though such paragraph had not been enacted.
Section 14(a) of Pub.L. 99-396, cited in the credit of this section, was repealed by Pub.L. 101-649, Title VI, 603(a)(19),
Nov. 29, 1990, 104 Stat. 5084.
Severability of Provisions
If any provision of Title I of Pub.L. 106-313, Oct. 17, 2000, 114 Stat. 1251 [among other changes, amending this section
and provisions set out as a note under this section], or any amendment made thereby or the application thereof to any person
or circumstance is held invalid, the remainder of the title (and the amendments made thereby) and the application of such
provision to any other person or circumstance shall not be affected thereby, see section 116 of Pub.L. 106-313, set out as a
If any provision of Division C of Pub.L. 104-208 or the application of such provision to any person or circumstances is
held to be unconstitutional, the remainder of Division C of Pub.L. 104-208 and the application of the provisions of Division
C of Pub.L. 104-208 to any person or circumstance not to be affected thereby, see section 1(e) of Pub.L. 104-208, set out as a
Transfer of Functions
"Secretary of Health and Human Services" was substituted for "Surgeon General of the United States Public Health
Service" in subsec. (g). Reorg. Plan No. 3 of 1966, 1, 3, 31 F.R. 8855, 80 Stat. 1610, set out in the Appendix to Title 5,
Government Organization and Employees, effective June 25, 1966, abolished the Office of the Surgeon General and
transferred all the functions thereof to the Secretary of Health, Education, and Welfare. The Secretary of Health, Education,
and Welfare was redesignated the Secretary of Health and Human Services by section 509(b) of Pub.L. 96-88, which is
classified to section 3508(b) of Title 20, Education.
"Director of the International Communication Agency" was substituted for "Secretary of State" in subsec. (e) pursuant to
Reorg. Plan No. 2 of 1977, 7(a)(8), 42 F.R. 62461, 91 Stat. 1637, set out in the Appendix to Title 5, Government
Organization and Employees, effective on or before July 1, 1978, at such time as specified by the President, which
transferred all functions vested in the Secretary of State in subsec. (e) of this section to the Director of the International
Communication Agency.
"Secretary of Education" was substituted for "Commissioner of Education" in subsec. (a)(22), pursuant to sections
301(a)(1) and 503 of Pub.L. 96-88, which are classified to sections 3441(a)(1) and 3503 of Title 20, Education.
Retroactive Application of Amendments
Pub.L. 107-56, Title IV, 411(c), Oct. 26, 2001, 115 Stat. 348, provided that:
"(1) In general.--Except as otherwise provided in this subsection [this note], the amendments made by this section
[amending this section and 8 U.S.C.A. 1158 and 1227] shall take effect on the date of the enactment of this Act [Oct. 26,
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2001] and shall apply to-"(A) actions taken by an alien before, on, or after such date; and
"(B) All aliens, without regard to the date of entry or attempted entry into the United States-"(i) in removal proceedings on or after such date (except for proceedings in which there has been a final administrative
decision before such date); or
"(ii) seeking admission to the United States on or after such date.
"(2) Special rule for aliens in exclusion or deportation proceedings.-- Notwithstanding any other provision of law,
sections 212(a)(3)(B) and 237(a)(4)(B) of the Immigration and Nationality Act, as amended by this Act [subsec. (a)(3)(B) of
this section and 8 U.S.C.A. 1227(a)(4)(B)], shall apply to all aliens in exclusion or deportation proceedings on or after the
date of the enactment of this Act [Oct. 26, 2001] (except for proceedings in which there has been a final administrative
decision before such date) as if such proceedings were removal proceedings.
"(3) Special rule for section 219 organizations and organizations designated under section 212(a)(3)(b)(vi)(II)-"(A) In general.--Notwithstanding paragraphs (1) and (2), no alien shall be considered inadmissible under section
212(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)) [subsec. (a)(3) of this section], or deportable under
section 237(a)(4)(B) of such Act (8 U.S.C. 1227(a)(4)(B)), by reason of the amendments made by subsection (a)
[amending this section], on the ground that the alien engaged in a terrorist activity described in subclause (IV)(bb),
(V)(bb), or (VI)(cc) of section 212(a)(3)(B)(iv) of such Act (as so amended) [subclause (IV)(bb), (V)(bb), or (VI)(cc) of
subsection (a)(3)(B)(iv) of this section] with respect to a group at any time when the group was not a terrorist organization
designated by the Secretary of State under section 219 of such Act (8 U.S.C. 1189) or otherwise designated under section
212(a)(3)(B)(vi)(II) of such Act (as so amended) [subsec. (a)(3)(B)(vi)(II) of this section].
"(B) Statutory construction.--Subparagraph (A) shall not be construed to prevent an alien from being considered
inadmissible or deportable for having engaged in a terrorist activity-"(i) described in subclause (IV)(bb), (V)(bb), or (VI)(cc) of section 212 ( a)(3)(B)(iv) of such Act (as so amended)
[subclause (IV)bb), (V)(bb), or (VI)(cc) of subsection (a)(3)(B)(iv) of this section] with respect to a terrorist organization
at any time when such organization was designated by the Secretary of State under section 219 of such Act [8 U.S.C.A.
1189] or otherwise designated under section 212(a)(3)(B)(vi)(II) of such Act (as so amended) [subsec. (a)(3)(B)(vi)(II)
of this section]; or
"(ii) described in subclause (IV)(cc), (V)(cc), or (VI)(dd) of section 212(a)(3)(B)(iv) of such Act (as so amended)
[subclause (IV)(cc), (V)(cc), or (VI)(dd) of subsec. (a)(3)(B)(iv) of this section] with respect to a terrorist organization
described in section 212(a)(3)(B)(vi)(III) of such Act (as so amended) [subsec. (a)(3)(B)(vi)(III) of this section].
"(4) Exception.--The Secretary of State, in consultation with the Attorney General, may determine that the amendments
made by this section [amending this section and 8 U.S.C.A. 1158 and 1227] shall not apply with respect to actions by an
alien taken outside the United States before the date of the enactment of this Act [Oct. 26, 2001] upon the recommendation
of a consular officer who has concluded that there is not reasonable ground to believe that the alien knew or reasonably
should have known that the actions would further a terrorist activity."
Money Laundering Watchlist
Pub.L. 107-56, Title X, 1006(b), Oct. 26, 2001, 115 Stat. 394, provided that: "Not later than 90 days after the date of the
enactment of this Act [Oct. 26, 2001], the Secretary of State shall develop, implement, and certify to the Congress that there
has been established a money laundering watchlist, which identifies individuals worldwide who are known or suspected of
money laundering, which is readily accessible to, and shall be checked by, a consular or other Federal official prior to the
issuance of a visa or admission to the United States. The Secretary of State shall develop and continually update the watchlist
in cooperation with the Attorney General, the Secretary of the Treasury, and the Director of Central Intelligence."
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Issuance of Certified Statements

Pub.L. 106-95, 4(c), Nov. 12, 1999, 113 Stat. 1318, provided that: "The Commission on Graduates of Foreign Nursing
Schools, or any approved equivalent independent credentialing organization, shall issue certified statements pursuant to the
amendment under subsection (a) [amending subsec. (r) of this section] not more than 35 days after the receipt of a complete
application for such a statement."
Recommendations for Alternative Remedy for Nursing Shortage
Pub.L. 106-95, 3, Nov. 12, 1999, 113 Stat. 1317, provided that: "Not later than the last day of the 4-year period described
in section 2(e) [section 2(e) of Pub.L. 106-95,set out as a note under this section], the Secretary of Health and Human
Services and the Secretary of Labor shall jointly submit to the Congress recommendations (including legislative
specifications) with respect to the following:
"(1) A program to eliminate the dependence of facilities described in section 212(m)(6) of the Immigration and
Nationality Act [subsec. (m) of this section] (as amended by section 2(b)) on nonimmigrant registered nurses by providing
for a permanent solution to the shortage of registered nurses who are United States citizens or aliens lawfully admitted for
permanent residence.
"(2) A method of enforcing the requirements imposed on facilities under sections 101(a)(15)(H)(i)(c) [8 U.S.C.A.
1101(a)(15)H)(i)(c)] and 212(m) [subsec. (m) of this section] of the Immigration and Nationality Act (as amended by
section 2) that would be more effective than the process described in section 212(m)(2)(E) of such Act [subsec. (m)(2)(E)
of this section] (as so amended)."
Promulgation of Regulations to Implement Subsection (m)
Pub.L. 106-95, 2(d), Nov. 12, 1999, 113 Stat. 1316, provided that: "Not later than 90 days after the date of the enactment
of this Act [Nov. 12, 1999], the Secretary of Labor (in consultation, to the extent required, with the Secretary of Health and
Human Services) and the Attorney General shall promulgate final or interim final regulations to carry out section 212(m) of
the Immigration and Nationality Act [subsec. (m) of this section] (as amended by subsection (b))."
Reduction of Period for Public Comment
Pub.L. 105-277, Div. C, Title IV, 412(e), Oct. 21, 1998, 112 Stat. 2681- 645, provided that: "In first promulgating
regulations to implement the amendments made by this section [amending this section] in a timely manner, the Secretary of
Labor and the Attorney General may reduce to not less than 30 days the period of public comment on proposed regulations."
Extension of Authorized Period of Stay for Certain Nurses
Pub.L. 104-302, 1, Oct. 11, 1996, 110 Stat. 3656, provided that:
"(a) Aliens who previously entered the United States pursuant to an H-1A visa.-"(1) In general.--Notwithstanding any other provision of law, the authorized period of stay in the United States of any
nonimmigrant described in paragraph (2) is hereby extended through September 30, 1997.
"(2) Nonimmigrant described.--A nonimmigrant described in this paragraph is a nonimmigrant-"(A) who entered the United States as a nonimmigrant described in section 101(a)(15)(H)(i)(a) of the Immigration and
Nationality Act [section 1101(a)(15)(H)(i)(a) of this title];
"(B) who was within the United States on or after September 1, 1995, and who is within the United States on the date
of the enactment of this Act [Oct. 11, 1996]; and
"(C) whose period of authorized stay has expired or would expire before September 30, 1997 but for the provisions of
this section.
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"(3) Limitations.--Nothing in this section may be construed to extend the validity of any visa issued to a nonimmigrant
described in section 101(a)(15)(H)(i)(a) of the Immigration and Nationality Act [section 1101(a)(15)(H)(i)(a) of this title]
or to authorize the re-entry of any person outside the United States on the date of the enactment of this Act [Oct. 11,1996].
"(b) Change of employment.--A nonimmigrant whose authorized period of stay is extended by operation of this section
shall not be eligible to change employers in accordance with section 214.2(h)(2)(i)(D) of title 8, Code of Federal Regulations
(as in effect on the day before the date of the enactment of this Act [Oct. 11, 1996]).
"(c) Regulations.--Not later than 30 days after the date of the enactment of this Act [Oct. 11, 1996], the Attorney General
shall issue regulations to carry out the provisions of this section.
"(d) Interim treatment.--A nonimmigrant whose authorized period of stay is extended by operation of this section, and
the spouse and child of such nonimmigrant, shall be considered as having continued to maintain lawful status as a
nonimmigrant through September 30, 1997."
Issuance of Regulations
Section 124(b)(2) of Div. C of Pub.L. 104-208 provided that: "The Attorney General shall first issue, in proposed form,
regulations referred to in the second sentence of section 212(f) of the Immigration and Nationality Act, as added by the
amendment made by paragraph (1) [amending this section], not later than 90 days after the date of the enactment of this Act
[Sept. 30, 1996]."
Report on Number of Aliens Paroled into United States
Section 602(b) of Div. C of Pub.L. 104-208 provided that: "Not later than 90 days after the end of each fiscal year, the
Attorney General shall submit a report to the Committee on the Judiciary of the House of Representatives and the Committee
on the Judiciary of the Senate describing the number and categories of aliens paroled into the United States under section
212(d)(5) of the Immigration and Nationality Act [subsec. (d)(5) of this section]. Each such report shall provide the total
number of aliens paroled into and residing in the United States and shall contain information and data for each country of
origin concerning the number and categories of aliens paroled, the duration of parole, the current status of aliens paroled, and
the number and categories of aliens returned to the custody from which they were paroled during the preceding fiscal year."
Assistance to Drug Traffickers
Pub.L. 103-447, Title I, 107, Nov. 2, 1994, 108 Stat. 4695, provided that: "The President shall take all reasonable steps
provided by law to ensure that the immediate relatives of any individual described in section 487(a) of the Foreign Assistance
Act of 1961 (22 U.S.C. 2291f(a)), and the business partners of any such individual or of any entity described in such section,
are not permitted entry into the United States, consistent with the provisions of the Immigration and Nationality Act (8
U.S.C. 1101 et seq.) [this chapter]."
Upgrade of Overseas Visa Lookout Systems
Pub.L. 103-236, Title I, 140(b), Apr. 30, 1994, 108 Stat. 399, provided that: "Not later than 18 months after the date of
the enactment of this Act [Apr. 30, 1994], the Secretary of State shall implement an upgrade of all overseas visa lookout
operations to computerized systems with automated multiple-name search capabilities."
Processing of Visas for Admission to the United States
Pub.L. 103-236, Title I, 140(c), Apr. 30, 1994, 108 Stat. 399, as amended Pub.L. 103-415, 1(d), Oct. 25, 1994, 108
Stat. 4299, provided that:
"(1)(A) Beginning 24 months after the date of the enactment of this Act [Apr. 30, 1994], whenever a United States
consular officer issues a visa for admission to the United States, that official shall certify, in writing, that a check of the
Automated Visa Lookout System, or any other system or list which maintains information about the excludability of aliens
under the Immigration and Nationality Act [this chapter], has been made and that there is no basis under such system for the
exclusion of such alien.
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"(B) If, at the time an alien applies for an immigrant or nonimmigrant visa, the alien's name is included in the Department
of State's visa lookout system and the consular officer to whom the application is made fails to follow the procedures in
processing the application required by the inclusion of the alien's name in such system, the consular officer's failure shall be
made a matter of record and shall be considered as a serious negative factor in the officer's annual performance evaluation.
"(2) If an alien to whom a visa was issued as a result of a failure described in paragraph (1)(B) is admitted to the United
States and there is thereafter probable cause to believe that the alien was a participant in a terrorist act causing serious injury,
loss of life, or significant destruction of property in the United States, the Secretary of State shall convene an Accountability
Review Board under the authority of title III of the Omnibus Diplomatic Security and Antiterrorism Act of 1986 [22
U.S.C.A. 4831 et seq.]."
Access to Interstate Identification Index of the National Crime Information Center
Pub.L. 103-236, Title I, 140(d), Apr. 30, 1994, 108 Stat. 400, as amended Pub.L. 103-317, Title V, 505(2), Aug. 26,
1994, 108 Stat. 1765, provided that:
"(1) Subject to paragraphs (2) and (3), the Department of State Consolidated Immigrant Visa Processing Center shall have
on-line access, without payment of any fee or charge, to the Interstate Identification Index of the National Crime Information
Center solely for the purpose of determining whether a visa applicant has a criminal history record indexed in such Index.
Such access does not entitle the Department of State to obtain the full content of automated records through the Interstate
Identification Index. To obtain the full content of a criminal history record, the Department shall submit a separate request to
the Identification Records Section of the Federal Bureau of Investigation, and shall pay the appropriate fee as provided for in
the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1990 (Public Law
101-162).
"(2) The Department of State shall be responsible for all one-time start-up and recurring incremental non-personnel costs
of establishing and maintaining the access authorized in paragraph (1).
"(3) The individual primarily responsible for the day-to-day implementation of paragraph (1) shall be an employee of the
Federal Bureau of Investigation selected by the Department of State, and detailed to the Department on a fully reimbursable
basis."
Fingerprint Checks
Pub.L. 103-236, Title I, 140(e), as added Pub.L. 103-317, Title V, 505(1), Aug. 26, 1994, 108 Stat. 1765, provided that:
"(1) Effective not later than March 31, 1995, the Secretary of State shall in the ten countries with the highest volume of
immigrant visa issuance for the most recent fiscal year for which data are available require the fingerprinting of applicants
over sixteen years of age for immigrant visas. The Department of State shall submit records of such fingerprints to the
Federal Bureau of Investigation in order to ascertain whether such applicants previously have been convicted of a felony
under State or Federal law in the United States, and shall pay all appropriate fees.
"(2) The Secretary shall prescribe and publish such regulations as may be necessary to implement the requirements of this
subsection, and to avoid undue processing costs and delays for eligible immigrants and the United States Government."
Reports to Congress on Effectiveness of Programs of Access to Interstate Identification Index and Fingerprint Checks
Pub.L. 103-236, Title I, 140(f), formerly 140(d)(4), Apr. 30, 1994, 108 Stat. 400, as renumbered and amended Pub.L.
103-317, Title V, 505(2), Aug. 26, 1994, 108 Stat. 1765; Pub.L. 104-208, Div. C, Title VI, 671(g)(2)(A), Sept. 30, 1996,
110 Stat. 3009-724, provided that: "Not later than December 31, 1996, the Secretary of State and the Director of the Federal
Bureau of Investigation shall jointly submit to the Committee on Foreign Affairs and the Committee on the Judiciary of the
House of Representatives, and the Committee on Foreign Relations and the Committee on the Judiciary of the Senate, a
report on the effectiveness of the procedures authorized in subsections (d) and (e) [set out as notes under this section]."
[Any reference in any provision of law enacted before Jan. 4, 1995, to the Committee on Foreign Affairs of the House of
Representatives treated as referring to the Committee on International Relations of the House of Representatives, see section
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1(a)(5) of Pub.L. 104-14, set out as a note preceding section 21 of Title 2, The Congress.]
Programs of Access to Interstate Identification Index and Fingerprint Checks to Cease to Have Effect After May 1, 1998
Pub.L. 103-236, Title I, 140(g), formerly 140(d)(5), Apr. 30, 1994, 108 Stat. 401, as renumbered and amended Pub.L.
103-317, Title V, 505(2), Aug. 26, 1994, 108 Stat. 1765; Pub.L. 104-208, Div. C, Title VI, 671(g)(2), Sept. 30, 1996, 110
Stat. 3009-724; Pub.L. 105-119, Title I, 126, Nov. 26, 1997, 111 Stat. 2471, provided that: "Subsections (d) and (e) [section
140(d) and (e) of Pub.L. 103-236, set out as notes under this section] shall cease to have effect after May 1, 1998."
Visa Lookout Systems
Pub.L. 102-138, Title I, 128, Oct. 28, 1991, 105 Stat. 660, as amended Pub.L. 104-208, Div. C, Title III, 308(d)(3)(C),
Sept. 30, 1996, 110 Stat. 3009-617, provided that:
"(a) Visas.--The Secretary of State may not include in the Automated Visa Lookout System, or in any other system or list
which maintains information about the inadmissibility of aliens under the Immigration and Nationality Act [this chapter], the
name of any alien who is not inadmissible from the United States under the Immigration and Nationality Act [this chapter],
subject to the provisions of this section.
"(b) Correction of lists.--Not later than 3 years after the date of enactment of this Act [Oct. 28, 1991], the Secretary of
State shall-"(1) correct the Automated Visa Lookout System, or any other system or list which maintains information about the
inadmissibility of aliens under the Immigration and Nationality Act [this chapter], by deleting the name of any alien not
inadmissible under the Immigration and Nationality Act [this chapter]; and
"(2) report to the Congress concerning the completion of such correction process.
"(c) Report on correction process.-"(1) Not later than 90 days after the date of enactment of this Act [Oct. 28, 1991], the Secretary of State, in coordination
with the heads of other appropriate Government agencies, shall prepare and submit to the appropriate congressional
committees, a plan which sets forth the manner in which the Department of State will correct the Automated Visa Lookout
System, and any other system or list as set forth in subsection (b).
"(2) Not later than 1 year after the date of enactment of this Act [Oct. 28, 1991], the Secretary of State shall report to the
appropriate congressional committees on the progress made toward completing the correction of lists as set forth in
subsection (b).
"(d) Application.--This section refers to the Immigration and Nationality Act [this chapter] as in effect on and after June
1, 1991.
"(e) Limitation.-"(1) The Secretary may add or retain in such system or list the names of aliens who are not inadmissible only if they are
included for otherwise authorized law enforcement purposes or other lawful purposes of the Department of State. A name
included for other lawful purposes under this paragraph shall include a notation which clearly and distinctly indicates that
such person is not presently inadmissible. The Secretary of State shall adopt procedures to ensure that visas are not denied
to such individuals for any reason not set forth in the Immigration and Nationality Act [this chapter].
"(2) The Secretary shall publish in the Federal Register regulations and standards concerning maintenance and use by
the Department of State of systems and lists for purposes described in paragraph (1).
"(3) Nothing in this section may be construed as creating new authority or expanding any existing authority for any
activity not otherwise authorized by law.
"(f) Definition.--As used in this section the term 'appropriate congressional committees' means the Committee on the
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Judiciary and the Committee on Foreign Affairs of the House of Representatives and the Committee on the Judiciary and the
Committee on Foreign Relations of the Senate."
[Any reference in any provision of law enacted before Jan. 4, 1995, to the Committee on Foreign Affairs of the House of
Representatives treated as referring to the Committee on International Relations of the House of Representatives, see section
1(a)(5) of Pub.L. 104-14, set out as a note preceding section 21 of Title 2, The Congress.]
[Amendment by section 308(d)(3)(C) of Pub.L. 104-208 to take effect on the first day of the first month beginning more
than 180 days after the date of the enactment of Pub.L. 104-208, which was approved Sept. 30, 1996, subject to transitional
provisions and supplemented by authority of the Attorney General to promulgate regulations, see section 309 of Div. C of
Pub.L. 104-208, set out as a note under section 1101 of this title.]
Changes in Labor Certification Process
Section 122 of Pub.L. 101-649, as amended Pub.L. 103-416, Title II, 219(ff), Oct. 25, 1994, 108 Stat. 4319, provided
that:
"(a) Repealed. Pub.L. 103-416, Title II, 219(ff), Oct. 25, 1994, 108 Stat. 4319
"(b) Notice in labor certifications.--The Secretary of Labor shall provide, in the labor certification process under section
212(a)(5)(A) of the Immigration and Nationality Act [subsec. (a)(5)(A) of this section], that-"(1) no certification may be made unless the applicant for certification has, at the time of filing the application, provided
notice of the filing (A) to the bargaining representative (if any) of the employer's employees in the occupational
classification and area for which aliens are sought, or (B) if there is no such bargaining representative, to employees
employed at the facility through posting in conspicuous locations; and
"(2) any person may submit documentary evidence bearing on the application for certification (such as information on
available workers, information on wages and working conditions, and information on the employer's failure to meet terms
and conditions with respect to the employment of alien workers and coworkers)."
[Amendment to this note by section 219 of Pub.L. 103-416 to be effective as if included in the enactment of the
Immigration Act of 1990, Pub.L. 101- 649, 104 Stat. 4978, which was approved Nov. 29, 1990, except as otherwise
specifically provided, see section 219(dd) of Pub.L. 103-416, set out as a note under section 1101 of this title].
Review of Inadmissibility Lists
Section 601(c) of Pub.L. 101-649, as amended Pub.L. 104-208, Div. C, Title III, 308(d)(3)(B), (f)(1)(Q), Sept. 30, 1996,
110 Stat. 3009-617, 3009- 621, provided that: "The Attorney General and the Secretary of State shall develop protocols and
guidelines for updating lookout books and the automated visa lookout system and similar mechanisms for the screening of
aliens applying for visas for admission, or for admission, to the United States. Such protocols and guidelines shall be
developed in a manner that ensures that in the case of an alien-"(1) whose name is in such system, and
"(2) who either (A) applies for admission after the effective date of the amendments made by this section, or (B) requests
(in writing to a local consular office after such date) a review, without seeking admission, of the alien's continued
inadmissibility under the Immigration and Nationality Act [this chapter],
if the alien is no longer inadmissible because of an amendment made by this section the alien's name shall be removed from
such books and system and the alien shall be informed of such removal and if the alien continues to be inadmissible the alien
shall be informed of such determination."
[Amendment by section 308(d)(3)(B), (f)(1)(Q) of Pub.L. 104-208 to take effect on the first day of the first month
beginning more than 180 days after the date of the enactmentof Pub.L. 104-208, which was approved Sept. 30, 1996, subject
to transitional provisions and supplemented by authority of the Attorney General to promulgate regulations, see section 309
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of Div. C of Pub.L. 104-208, set out as a note under section 1101 of this title.]
Implementation of Requirements for Admission of Nonimmigrant Nurses During Five-Year Period
Section 3(c) of Pub.L. 101-238 provided that: "The Secretary of Labor (in consultation with the Secretary of Health and
Human Services) shall-"(1) first publish final regulations to carry out section 212(m) of the Immigration and Nationality Act (as added by this
section) [subsec. (m) of this section] not later than the first day of the 8th month beginning after the date of the enactment of
this Act [Dec. 18, 1989]; and
"(2) provide for the appointment (by January 1, 1991) of an advisory group, including representatives of the Secretary, the
Secretary of Health and Human Services, the Attorney General, hospitals, and labor organizations representing registered
nurses, to advise the secretary-"(A) concerning the impact of this section on the nursing shortage,
"(B) on programs that medical institutions may implement to recruit and retain registered nurses who are United States
citizens or immigrants who are authorized to perform nursing services,
"(C) on the formulation of State recruitment and retention plans under section 212(m)(3) of the Immigration and
Nationality Act [subsec. (m)(3) of this section], and
"(D) on the advisability of extending the amendments made by this section beyond the 5-year period described in
subsection (d)."
Temporary Prohibition on Exclusion or Deportation of Aliens For Certain Beliefs, Statements, or Associations
Pub.L. 100-204, Title IX, 901, Dec. 22, 1987, 101 Stat. 1399, as amended Pub.L. 100-461, Title V, 555, Oct. 1, 1988,
102 Stat. 2268-36; Pub.L. 101-246, Title I, 128, Feb. 16, 1990, 104 Stat. 30, which provided that, notwithstanding any other
provision of law but with specified aliens excluded, no alien may be denied a visa or excluded from admission into the
United States, subject to restrictions or conditions on entry into the United States, or subject to deportation because of any
past, current, or expected beliefs, statements, or associations which, if engaged in by a United States citizen in the United
States, would be protected under the Constitution of the United States, applicable to applications for visas submitted during
1988, admissions sought after Dec. 31, 1987, and before Mar. 1, 1989, and deportations based on activities occurring during
1988 or for which deportation proceedings, including judicial review with respect to such proceedings, are pending at any
time during 1988, was repealed by Pub.L. 101-649, Title VI, 603(a)(21), Nov. 29, 1990, 104 Stat. 5084.
[Repeal of section 901 of Pub.L. 100-204 by section 603(a)(21) of Pub.L. 101-649 applicable to individuals entering the
United States on or after June 1, 1991, see section 601(e)(1) of Pub.L. 101-649, set out as a note under section 1101 of this
title.]
Regulations Governing Admission, Detention, and Travel of Nonimmigrant Aliens in Guam Pursuant to Visa Waivers
Section 14(b) of Pub.L. 99-396, as amended Pub.L. 100-525, Oct. 24, 1988, 3(1)(B), 102 Stat. 2614, which provided that
after consultation with the Secretary of State, the Secretary of the Interior, and the Governor of Guam and within ninety days
after Aug. 27, 1986, the Attorney General issue regulations governing the admission, detention, and travel of nonimmigrant
aliens pursuant to the visa waiver authorized by the amendment made by subsection (a) [which amended this section] was
repealed by Pub.L. 101-649, Title VI, 603(a)(19), Nov. 29, 1990, 104 Stat. 5084.
[Repeal of section 14(b) of Pub.L. 99-369 by section 603(a)(19) of Pub.L. 101-649 applicable to individuals entering the
title.]
Annual Report to Congress on Implementation of Provisions Authorizing Waiver of Certain Requirements for Nonimmigrant
Visitors to Guam
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Section 14(c) of Pub.L. 99-396, as amended Pub.L. 100-525, Oct. 24, 1988, 3(1)(C), 102 Stat. 2614, which provided that
each year the Attorney General shall submit a report on the implementation of subsec. (l) of this section to the Committee on
the Judiciary and the Committee on Interior and Insular Affairs [now Committee on Resources] of the House of
Representatives and the Committees on the Judiciary and Energy and Natural Resources of the Senate, was repealed by
Pub.L. 101-649, Title VI, 603(a)(19), Nov. 29, 1990, 104 Stat. 5084.
[Repeal of section 14(c) of Pub.L. 99-369 by section 603(a)(19) of Pub.L. 101-649 applicable to individuals entering the
title.]
Sharing of Information Concerning Drug Traffickers
Pub.L. 99-93, Title I, 132, Aug. 16, 1985, 99 Stat. 420, provided that:
"(a) Reporting systems.--In order to ensure that foreign narcotics traffickers are denied visas to enter the United States, as
required by section 212(a)(23) of the Immigration and Naturalization Act (22 [probably should read "8"] U.S.C. 1182(a)(23))
[subsec. (a)(23) of this section]-"(1) the Department of State shall cooperate with United States law enforcement agencies, including the Drug
Enforcement Administration and the United States Customs Service, in establishing a comprehensive information system
on all drug arrests of foreign nationals in the United States, so that that information may be communicated to the
appropriate United States embassies; and
"(2) the National Drug Enforcement Policy Board shall agree on uniform guidelines which would permit the sharing of
information on foreign drug traffickers.
"(b) Report.--Not later than six months after the date of the enactment of this Act [Aug. 16, 1985], the Chairman of the
National Drug Enforcement Policy Board shall submit a report to the Committee on Foreign Affairs of the House of
Representatives and the Committee on Foreign Relations of the Senate on the steps taken to implement this section."
Refugees from Democratic Kampuchea (Cambodia); Temporary Parole into United States for Fiscal Years 1979 and 1980
Pub.L. 95-431, Title VI, 605, Oct. 10, 1978, 92 Stat. 1045, provided that: "It is the sense of the Congress that-"(1) the Government of the United States should give special consideration to the plight of refugees from Democratic
Kampuchea (Cambodia) in view of the magnitude and severity of the violations of human rights committed by the
Government of Democratic Kampuchea (Cambodia); and
"(2) the Attorney General should exercise his authority under section 212(d)(5) of the Immigration and Nationality Act
[subsec. (d)(5) of this section] to parole into the United States-"(A) for the fiscal year 1979, 7,500 aliens who are nationals or citizens of Democratic Kampuchea (Cambodia) and who
are applying for admission to the United States; and
"(B) for the fiscal year 1980, 7,500 such aliens."
Retroactive Adjustment of Refugee Status
Pub.L. 95-412, 5, Oct. 5, 1978, 92 Stat. 909, as amended Pub.L. 96-212, Title II, 203(g), Mar. 17, 1980, 94 Stat. 108,
provided that: "Notwithstanding any other provision of law, any refugee, not otherwise eligible for retroactive adjustment of
status, who was or is paroled into the United States by the Attorney General pursuant to section 212(d)(5) of the Immigration
and Nationality Act [subsec. (d)(5) of this section] before April 1, 1980, shall have his status adjusted pursuant to the
provisions of section 203(g) and (h) of that Act [section 1153(g) and (h) of this title]."
Report by Attorney General to Congressional Committees on Admission of Certain Excludable Aliens
Pub.L. 95-370, Title IV, 401, Sept. 17, 1978, 92 Stat. 627, which required the Attorney General, by October 30, 1979, to
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report to specific congressional committees on certain cases of the admission to the United States of aliens that may have
been excludable under section 1182(a)(27) to (29) of this title, was omitted from the Code as obsolete.
National Board of Medical Examiners Examination
Pub.L. 94-484, Title VI, 602(a), (b), as added Pub.L. 95-83, Title III, 307(q)(3), Aug. 1, 1977, 91 Stat. 395, eff. Jan. 10,
1977, which was formerly set out as a note under this section and which provided that an alien who was a graduate of a
medical school would be considered to have passed parts I and II of the National Board of Medical Examiners Examination if
the alien was on January 9, 1977, a doctor of medicine fully and permanently licensed to practice medicine in a State, held on
that date a valid specialty certificate issued by a constituent board of the American Board of Medical Specialties, and was on
that date practicing medicine in a State, was repealed by Pub.L. 97- 116, 5(a)(3), Dec. 29, 1981, 95 Stat. 1612. See
subsection (a)(32) and (j)(1)(B) of the section.
Labor Certification For Graduates of Foreign Medical Schools; Development of Data by Secretary of Health, Education, and
Welfare Not Later Than Oct. 12, 1977
Section 906 of Pub.L. 94-484 provided that:
"(a) The Secretary of Health, Education, and Welfare shall (not later than one year after the date of the enactment of this
Act [Oct. 12, 1976]) develop sufficient data to enable the Secretary of Labor to make equitable determinations with regard to
applications for labor certification by graduates of foreign medical schools.
"(b) The data required under subsection (a) shall include the number of physicians (by specialty and by percent of
population) in a geographic area necessary to provide adequate medical care, including such care in hospitals, nursing homes,
and other health are institutions, in such area.
"(c) The Secretary of Health, Education, and Welfare shall develop such data after consultation with such medical or other
associations as may be necessary."
Abolition of Office of Surgeon General
The Office of the Surgeon General was abolished by section 3 of 1966 Reorg. Plan No. 3 eff. June 25, 1966, 31 F.R. 8855,
80 Stat. 1610, and all functions thereof were transferred to the Secretary of Health, Education, and Welfare by section 1 of
1966 Reorg. Plan No. 3, set out in the Appendix to Title 5, Government Organization and Employees.
Refugee-Escapees; Resettlement; Reports; Formula; Termination Date; Persons Difficult to Resettle; Creation of Record of
Admission for Permanent Residence
Pub.L. 86-648, 1-4, 11, July 14, 1960, 74 Stat. 504, 505, as amended Pub.L. 87-510, 6, June 28, 1962, 76 Stat. 124;
Pub.L. 89-236, 16, Oct. 3, 1965, 79 Stat. 919, provided:
"Section 1. [Repealed. Pub.L. 89-236, 16, Oct. 3, 1965, 79 Stat. 919].
"Sec. 2. [Repealed. Pub.L. 89-236, 16, Oct. 3, 1965, 79 Stat. 919].
"Sec. 3. Any alien who was paroled into the United States as a refugee- escapee, pursuant to section 1 of this Act, whose
parole has not theretofore been terminated by the Attorney General pursuant to such regulations as he may prescribe under
the authority of section 212(d)(5) of the Immigration and Nationality Act [subsec. (d)(5) of this section]; and who has been in
the United States for at least two years, and who has not acquired permanent residence, shall forthwith return or be returned
to the custody of the Immigration and Naturalization Service and shall thereupon be inspected and examined for admission
into the United States, and his case dealt with in accordance with the provisions of sections 235, 236, and 237 of the
Immigration and Nationality Act [sections 1225, 1226 and 1227 of this title].
"Sec. 4. Any alien who, pursuant to section 3 of this Act, is found, upon inspection by the immigration officer or after
hearing before a special inquiry officer, to be admissible as an immigrant under the Immigration and Nationality Act [this
chapter] at the time of his inspection and examination, except for the fact that he was not and is not in possession of the
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documents required by section 212(a)(20) of the said Act [subsec. (a)(20) of this section], shall be regarded as lawfully
admitted to the United States for permanent residence as of the date of his arrival.
"Sec. 11. [Repealed. Pub.L. 89-236, 16, Oct. 3, 1965, 79 Stat. 919]."
Creation of Record of Admission for Hungarian Refugees; Permanent Residence
Pub.L. 85-559, July 25, 1958, 72 Stat. 419, provided: "That any alien who was paroled into the United States as a refugee
from the Hungarian revolution under section 212(d)(5) of the Immigration and Nationality Act [subsec. (d)(5) of this section]
subsequent to October 23, 1956, who has been in the United States for at least two years, and who has not acquired
permanent residence, shall forthwith return or be returned to the custody of the Immigration and Naturalization Service, and
shall thereupon be inspected and examined for admission into the United States, and his case dealt with, in accordance with
the provisions of sections 235, 236 and 237 of that Act [sections 1225, 1226 and 1227 of this title].
"Sec. 2. Any such alien who, pursuant to section 1 of this Act, is found, upon inspection by an immigration officer or after
hearing before a special inquiry officer, to have been and to be admissible as an immigrant at the time of his arrival in the
United States and at the time of his inspection and examination, except for the fact that he was not and is not in possession of
the documents required by section 212(a)(20) of the Immigration and Nationality Act [subsec. (a)(20) of this section] shall be
regarded as lawfully admitted to the United States for permanent residence as of the date of his arrival.
"Sec. 3. Nothing contained in this Act shall be held to repeal, amend, alter, modify, affect, or restrict the powers, duties,
functions, or authority of the Attorney General in the administration and enforcement of the Immigration and Nationality Act
[this chapter] or any other law relating to immigration, nationality, or naturalization."
EXECUTIVE ORDERS
EXECUTIVE ORDER NO. 12324
Ex. Ord. No. 12324, Sept. 29, 1981, 46 F.R. 48109, relating to high seas interdiction of illegal aliens, was revoked by Ex.
Ord. No. 12807, May 24, 1992, 57 F.R. 23133, set out as a note under this section.
EXECUTIVE ORDER NO. 12807
<May 24, 1992, 57 F.R. 23133>
INTERDICTION OF ILLEGAL ALIENS
By the authority vested in me as President by the Constitution and the laws of the United States of America, including
sections 212(f) and 215(a)(1) of the Immigration and Nationality Act, as amended (8 U.S.C. 1182(f) and 1185(a)(1)) [subsec.
(f) of this section and section 1185(a)(1) of this title] and whereas:
(1) The President has authority to suspend the entry of aliens coming by sea to the United States without necessary
documentation, to establish reasonable rules and regulations regarding, and other limitations on, the entry or attempted entry
of aliens into the United States, and to repatriate aliens interdicted beyond the territorial sea of the United States;
(2) The international legal obligations of the United States under the United Nations Protocol Relating to the Status of
Refugees (U.S. T.I.A.S. 6577; 19 U.S.T. 6223) to apply Article 33 of the United Nations Convention Relating to the Status of
Refugees do not extend to persons located outside the territory of the United States;
(3)Proclamation No. 4865 [set out as a note under this section] suspends the entry of all undocumented aliens into the
United States by the high seas; and
(4) There continues to be a serious problem of persons attempting to come to the United States by sea without necessary
documentation and otherwise illegally;
I, GEORGE BUSH, President of the United States of America, hereby order as follows:
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Section 1. The Secretary of State shall undertake to enter into, on behalf of the United States, cooperative arrangements
with appropriate foreign governments for the purpose of preventing illegal migration to the United States by sea.
Sec. 2. (a) The Secretary of the Department in which the Coast Guard is operating, in consultation, where appropriate, with
the Secretary of Defense, the Attorney General, and the Secretary of State, shall issue appropriate instructions to the Coast
Guard in order to enforce the suspension of the entry of undocumented aliens by sea and the interdiction of any defined
vessel carrying such aliens.
(b) Those instructions shall apply to any of the following defined vessels:
(1) Vessels of the United States, meaning any vessel documented or numbered pursuant to the laws of the United States, or
owned in whole or in part by the United States, a citizen of the United States, or a corporation incorporated under the laws of
the United States or any State, Territory, District, Commonwealth, or possession thereof, unless the vessel has been granted
nationality by a foreign nation in accord with Article 5 of the Convention on the High Seas of 1958 (U.S. T.I.A.S. 5200; 13
U.S.T. 2312).
(2) Vessels without nationality or vessels assimilated to vessels without nationality in accordance with paragraph (2) of
Article 6 of the Convention on the High Seas of 1958 (U.S. T.I.A.S. 5200; 13 U.S.T. 2312).
(3) Vessels of foreign nations with whom we have arrangements authorizing the United States to stop and board such
vessels.
(c) Those instructions to the Coast Guard shall include appropriate directives providing for the Coast Guard:
(1) To stop and board defined vessels, when there is reason to believe that such vessels are engaged in the irregular
transportation of persons or violations of United States law or the law of a country with which the United States has an
arrangement authorizing such action.
(2) To make inquiries of those on board, examine documents and take such actions as are necessary to carry out this order.
(3) To return the vessel and its passengers to the country from which it came, or to another country, when there is reason to
believe that an offense is being committed against the United States immigration laws, or appropriate laws of a foreign
country with which we have an arrangement to assist; provided, however, that the Attorney General, in his unreviewable
discretion, may decide that a person who is a refugee will not be returned without his consent.
(d) These actions, pursuant to this section, are authorized to be undertaken only beyond the territorial sea of the United
States.
Sec. 3. This order is intended only to improve the internal management of the Executive Branch. Neither this order nor any
agency guidelines, procedures, instructions, directives, rules or regulations implementing this order shall create, or shall be
construed to create, any right or benefit, substantive or procedural (including without limitation any right or benefit under the
Administrative Procedure Act [section 551 et seq. of Title 5, Government Organization and Employees]), legally enforceable
by any party against the United States, its agencies or instrumentalities, officers, employees, or any other person. Nor shall
this order be construed to require any procedures to determine whether a person is a refugee.
Sec. 4. Executive Order No. 12324 [formerly set out as a note under this section] is hereby revoked and replaced by this
order.
Sec. 5. This order shall be effective immediately.
GEORGE BUSH
PROCLAMATIONS
PROCLAMATION NO. 4865
<Sept. 29, 1981, 46 F.R. 48107>
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HIGH SEAS INTERDICTION OF ILLEGAL ALIENS

The ongoing migration of persons to the United States in violation of our laws is a serious national problem detrimental to
the interests of the United States. A particularly difficult aspect of the problem is the continuing illegal migration by sea of
large numbers of undocumented aliens into the southeastern United States. These arrivals have severely strained the law
enforcement resources of the Immigration and Naturalization Service and have threatened the welfare and safety of
communities in that region.
As a result of our discussions with the Governments of affected foreign countries and with agencies of the Executive
Branch of our Government, I have determined that new and effective measures to curtail these unlawful arrivals are
necessary. In this regard, I have determined that international cooperation to intercept vessels trafficking in illegal migrants is
a necessary and proper means of insuring the effective enforcement of our laws.
NOW, THEREFORE, I, RONALD REAGAN, President of the United States of America, by the authority vested in me by
the Constitution and the statutes of the United States, including Sections 212(f) and 215(a)(1) of the Immigration and
Nationality Act, as amended (8 U.S.C. 1182(f) and 1185(a)(1)) [subsec. (f) of this section and section 1185(a)(1) of this title],
in order to protect the sovereignty of the United States, and in accordance with cooperative arrangements with certain foreign
governments, and having found that the entry of undocumented aliens, arriving at the borders of the United States from the
high seas, is detrimental to the interests of the United States, do proclaim that:
The entry of undocumented aliens from the high seas is hereby suspended and shall be prevented by the interdiction of
certain vessels carrying such aliens.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-ninth day of September, in the year of our Lord
nineteen hundred and eighty-one, and of the Independence of the United States of America the two hundred and sixth.
RONALD REAGAN
PROCLAMATION NO. 7359
<Oct. 10, 2000, 65 F.R. 60831>
SUSPENSION OF ENTRY AS IMMIGRANTS AND NONIMMIGRANTS OF PERSONS IMPEDING THE
PEACE PROCESS IN SIERRA LEONE
By the President of the United States of America
A Proclamation
In light of the longstanding political and humanitarian crisis in Sierra Leone, I have determined that it is in the interests of
the United States to restrict the entry into the United States as immigrants and nonimmigrants of certain foreign nationals
who plan, engage in, or benefit from activities that support the Revolutionary United Front or that otherwise impede the
peace process in Sierra Leone, and the spouses, children of anyage, and parents of such persons.
NOW, THEREFORE, I, WILLIAM J. CLINTON, by the power vested in me as President by the Constitution and the laws
of the United States of America, including section 212(f) of the Immigration and Nationality Act of 1952, as amended (8
U.S.C. 1182(f)), and section 301 of title 3, United States Code, hereby find that the unrestricted immigrant and nonimmigrant
entry into the United States of persons described in section 1 of this proclamation would, except as provided for in section 2
or 3 of this proclamation, be detrimental to the interests of the United States. I therefore hereby proclaim that:
Section 1. The entry into the United States as immigrants and nonimmigrants of persons who plan, engage in, or benefit
from activities that support the Revolutionary United Front or that otherwise impede the peace process in Sierra Leone, and
the spouses, children of any age, and parents of such persons, is hereby suspended.
Sec. 2. Section 1 shall not apply with respect to any person otherwise covered by section 1 where the entry of such person
would not be contrary to the interests of the United States.
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Sec. 3. Persons covered by sections 1 and 2 shall be identified pursuant to such procedures as the Secretary may establish
under section 5 of this proclamation.
Sec. 4. Nothing in this proclamation shall be construed to derogate from United States obligations under applicable
international agreements.
Sec. 5. The Secretary of State shall have responsibility to implement this proclamation pursuant to such procedures as the
Secretary may establish.
Sec. 6. This proclamation is effective immediately and shall remain in effect, in whole or in part, until such time as the
Secretary of State determines that it is no longer necessary and should be terminated, in whole or in part. The Secretary of
State's determination shall be effective upon publication of such determination in the Federal Register.
IN WITNESS WHEREOF, I have hereunto set my hand this tenth day of October, in the year of our Lord two thousand,
and of the Independence of the United States of America the two hundred and twenty-fifth.
WILLIAM J. CLINTON
MEMORANDA OF PRESIDENT
<Sept. 24, 1999, 64 F.R. 55809>
DELEGATION OF AUTHORITY UNDER SECTIONS 212(f) AND 215(a)(1) OF THE IMMIGRATION
AND NATIONALITY ACT
Memorandum for the Attorney General
By the authority vested in me as President by the Constitution and the laws of the United States of America, including
sections 212(f) and 215(a)(1) of the Immigration and Nationality Act, as amended (8 U.S.C. 1182(f) and 1185(a)(1)), and in
light of Proclamation 4865 of September 29, 1981 [set out as a note under this section], I hereby delegate to the Attorney
General the authority to:
(a) Maintain custody, at any location she deems appropriate, and conduct any screening she deems appropriate in her
unreviewable discretion, of any undocumented person she has reason to believe is seeking to enter the United States and who
is encountered in a vessel interdicted on the high seas through December 31, 2000; and
(b) Undertake any other appropriate actions with respect to such aliens permitted by law.
With respect to the functions delegated by this order, all actions taken after April 16, 1999, for or on behalf ofthe President
that would have been valid if taken pursuant to this memorandum are ratified.
This memorandum is not intended to create, and should not be construed to create, any right or benefit, substantive or
procedural, legally enforceable by any party against the United States, its agencies or instrumentalities, officers, employees,
or any other person, or to require any procedures to determine whether a person is a refugee.
You are authorized and directed to publish this memorandum in the Federal Register.
WILLIAM J. CLINTON
CROSS REFERENCES
Alien removal proceedings and charges, see 8 USCA 1229a.
Alien women, prevention of transportation in foreign commerce under international agreement, see 8 USCA 1557.
Aliens and cancellation of removal and adjustment of status, see 8 USCA 1229b.
Aliens who are not qualified aliens or nonimmigrants ineligible for State and local public benefits, see 8 USCA 1621.
8 USCA 1182
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Page 77
Atomic weapons information, waiver of admission requirements, see 50 USCA 47c.

Bonds-Bond as prerequisite to admission of aliens likely to become public charge, see 8 USCA 1183.
Bond from nonimmigrant alien as prerequisite to admission to the United States, see 8 USCA 1184(a).
Bond or undertaking as prerequisite to issuance of visas to aliens likely to become public charges, or as students or
visitors, see 8 USCA 1201(g).
Forms to be prescribed by Attorney General, see 8 USCA 1103.
Definition of the term-Alien, see 8 USCA 1101(a)(1).
Adjacent islands, as used in this subchapter, see 8 USCA 1101(b)(5).
Advocating a doctrine, see 8 USCA 1101(e)(1).
Advocating the doctrines of world communism, see 8 USCA 1101(e)(3).
Affiliation, see 8 USCA 1101(e)(2).
Application for admission, see 8 USCA 1101(a)(4).
Attorney General, see 8 USCA 1101(a)(5).
Border crossing identification card, see 8 USCA 1101(a)(6).
Child, as used in subchapter III of this chapter, see 8 USCA 1101(c)(1).
Child, as used in this subchapter and subchapter I of this chapter, see 8 USCA 1101(b)(1).
Consular officer, see 8 USCA 1101(a)(9).
Doctrine, see 8 USCA 1101(a)(12).
Entry, see 8 USCA 1101(a)(13).
Foreign state, see 8 USCA 1101(a)(14).
Immigrant, see 8 USCA 1101(a)(15).
Immigrant visa, see 8 USCA 1101(a)(16).
Immigration officer, see 8 USCA 1101(a)(18).
Ineligible to citizenship, see 8 USCA 1101(a)(19).
Lawfully admitted for permanent residence, see 8 USCA 1101(a)(20).
National, see 8 USCA 1101(a)(21).
Nonimmigrant alien, see 8 USCA 1101(a)(15).
Nonimmigrant visa, see 8 USCA 1101(a)(26).
Organization, see 8 USCA 1101(a)(28).
Parent, as used in subchapter III of this chapter, see 8 USCA 1101(c)(2).
Parent, as used in this subchapter and subchapter I of this chapter, see 8 USCA 1101(b)(2).
Passport, see 8 USCA 1101(a)(30).
Permanent, see 8 USCA 1101(a)(31).
Person of good moral character, see 8 USCA 1101(f).
Profession, see 8 USCA 1101(a)(32).
Qualified alien, see 8 USCA 1641.
Residence, see 8 USCA 1101(a)(33).
Special immigrant, see 8 USCA 1101(a)(27).
Spouse, see 8 USCA 1101(a)(35).
Totalitarian party and totalitarian dictatorship, see 8 USCA 1101(a)(37).
United States, see 8 USCA 1101(a)(38).
World communism, see 8 USCA 1101(a)(40).
Certification of certain helpless aliens, see 8 USCA 1222.
Deportation for offenses committed after entry into United States, see 8 USCA 1227.
Detention and removal of aliens ordered removed, see 8 USCA 1231.
Detention of aliens for observation and examination upon arrival, see 8 USCA 1222.
Diplomatic and semidiplomatic immunities, see 8 USCA 1102.
8 USCA 1182
8 U.S.C.A. 1182
Page 78
Passports and visas, see 18 USCA 1541 et seq.

Principals, see 18 USCA 2.
Reentry permit, see 8 USCA 1203.
Sabotage, see 18 USCA 2151 et seq.
Stowaways on vessels or aircraft, see 18 USCA 2199.
Submission of alien seeking-Immigrant visa to physical and mental examination required, see 8 USCA 1201(d).
Nonimmigrant visa to physical or mental examination, or both, required when necessary to ascertain eligibility for visa,
see 8 USCA 1201(d).
Treason, sedition and subversive activities, see 18 USCA 2381 et seq.
Voluntary departure and certain aliens not eligible, see 8 USCA 1229c.
White slave traffic, see 18 USCA 2424.
AMERICAN LAW REPORTS
Constitutionality of enactment or regulation forbidding or restricting employment of aliens in public employment or on
public works. 38 ALR3d 1213.
What absence from United States constitutes interruption of permanent residence so as to subject alien to exclusion or
deportation on re-entry. 22 ALR3d 749.
Admission of excludable alien as estopping government from asserting such excludability as basis for deportation. 31 ALR
Fed 900.
Validity and construction of Federal Statute (18 USCA 1546) making fraud and misuse of visas, permits, and other entry
documents a criminal offense. 3 ALR Fed 623.
Construction and application of 245 of the Immigration and Nationality Act of 1952 (8 USCA 1255) authorizing
adjustment of status of alien to that of permanent resident. 4 ALR Fed 557.
Comment Note.--Hearsay evidence in proceedings before Federal administrative agencies. 6 ALR Fed 76.
Who qualifies to act as counsel within 242(b)(2), 292 of Immigration and Nationality Act of 1952 (8 USCA
1252(b)(2), 1362) entitling alien to be represented in exclusion or deportation proceedings by counsel of his own
choosing "authorized to practice in such proceedings." 9 ALR Fed 924.
Construction and application of 203(a)(7) of Immigration and Nationality Act (8 USCA 1153(a)(7)) authorizing allotment
of visas to aliens who are refugees, and conditional entry of refugees. 15 ALR Fed 288.
Construction and application of 203(a)(3) of Immigration and Nationality Act of 1952(8 USCA 1153(a)(3)) as amended
giving preference visas to professionals or persons having ability in arts and sciences. 18 ALR Fed 287.
Validity, construction, and application of 274(a) of Immigration and Nationality Act of 1952 (8 USCA 1324(a)) making it
unlawful to bring to United States any alien not duly admitted or entitled to enter or reside therein, or to conceal,
harbor, or shield such alien or encourage or induce his entry. 21 ALR Fed 254.
What constitutes "crime involving moral turpitude" within meaning of 212(a)(9) and 241(a)(4) of Immigration and
Nationality Act (8 USCA 1182(a)(9), 1251(a)(4)), and similar predecessor statutes providing for exclusion or
deportation of aliens convicted of such crime. 23 ALR Fed 480.
8 USCA 1182
8 U.S.C.A. 1182
Page 79
Construction and application of 319(a) of Immigration and Nationality Act (8 USCA 1430(a)), making special
provisions for naturalization of aliens married to United States citizens. 24 ALR Fed 339.
What constitutes "convicted" within meaning of 241(a)(4, 11, 14-16, 18) of Immigration and Nationality Act (8 USCA
1251(a)(4, 11, 14-16, 18) providing that alien shall be deported who has been convicted of certain offenses. 26 ALR
Fed 709.
Alien's entitlement to sixth-preference classification under 203(a)(6) of Immigration and Nationality Act of 1952 (8 USCA
1153(a)(6)), where labor certification has been granted. 80 ALR Fed 676.
Construction and application of 212(a)(23) of Immigration and Nationality Act (8 USCA 1182(a)(23)), excluding aliens
who are drug "traffickers" or who have been convicted of violating narcotics or marijuana laws. 32 ALR Fed 538.
Validity, construction, and application of provisions of Immigration and Nationality Act of 1952 (8 USCA 1101 et seq.),
evincing congressional intent to prefer domestic laborers, in cases involving alien agricultural farmworkers. 36 ALR
Fed 300.
Validity, construction, and application of 8 USCA 1401(a)(7), (b), and (c) and predecessor statutes, granting citizenship,
under certain conditions, to child born outside United States, one of whose parents was United States citizen. 40 ALR
Fed 763.
Labor certifications prerequisite to admission of aliens under 8 USCA 1182(a)(4). 41 ALR Fed 608.
Infant citizen as entitled to stay of alien parents' deportation order. 42 ALR Fed 924.
What constitutes "otherwise disciplined" under 101(a)(5) of Labor- Management Reporting and Disclosure Act (29 USCA
411(a)(5)), requiring certain procedures before union member may be fined, suspended, expelled, or otherwise
disciplined. 43 ALR Fed 9.
Right of alien who is under deportation proceedings to depart voluntarily from United States, under 244(e) of Immigration
and Nationality Act (8 USCA 1254(e)). 44 ALR Fed 574.
Suspension of deportation and adjustment of status for permanent residence of alien under 244(a)(1) of Immigration and
Nationality Act (8 USCA 1254(a)(1)). 45 ALR Fed 185.
Eligibility of aliens to vote in NLRB election. 47 ALR Fed 911.
Waiver of deportation based on family relationships, under 241(f) of Immigration and Nationality Act (8 USCA 1251(f)).
48 ALR Fed 281.
Foreign residence requirement for educational (exchange) visitors under 212(e) of Immigration and Nationality Act (8
USCA 1182(e)). 48 ALR Fed 509.
What constitutes "substantial violation" of alien's maintenance of status and departure bond, warranting forfeiture thereof
under 8 CFR 103.6(e). 54 ALR Fed 932.
What constitutes conviction under 304(a)(2) of the Controlled Substances Act (21 USCA 824(a)(2)) which provides for
revocation of registration to manufacture, distribute, or dispense controlled substances upon finding that registrant has
been "convicted." 56 ALR Fed 909.
Illegal re-entry, under 276 of Immigration and Nationality Act of 1952 (8 USCA 1326), of alien previously arrested and
deported, or excluded and deported. 59 ALR Fed 190.
Who may conduct border search pursuant to 19 USCA 482, 1401(i), 1581(a, b) and 1582. 61 ALR Fed 290.
Alien's taking of employment other than type specified in labor certification as warranting deportation under immigration
law. 62 ALR Fed 402.
8 USCA 1182
8 U.S.C.A. 1182
Page 80
What constitutes "final deportation order" appealable to United States Court of Appeals under 106 of Immigration
and Nationality Act (8 USCA 1105a). 65 ALR Fed 742.
Compensation of expert witness as costs recoverable in Federal civil action by prevailing party against party other than
United States. 71 ALR Fed 875.
Availability of defense of duress or coercion in prosecution for violation of Federal narcotics laws. 75 ALR Fed 722.
When is aiding of alien's illegal entry into United States "for gain," so as to be ground for exclusion under 212(a)(31) of
Immigration and Nationality Act (8 USCA 1182(a)(31)) or for deportation under 241(a)(13) of Immigration and
What constitutes concealment of material facts or willful misrepresentation warranting revocation of naturalization under
340. 77 ALR Fed 379.
Excludability of alien under 212(a)(1-7) of Immigration and Nationality Act of 1952 (8 USCA 1182(a)(1-7), excluding
aliens for mental or physical defect, disease, or disability. 77 ALR Fed 828.
Eligibility, for discretionary admission under 212(c) of Immigration and Nationality Act of 1952 (8 USCA 1182(c)), of
alien returning to unrelinquished domicile after trip abroad. 80 ALR Fed 8.
Aliens: who qualifies for discretionary withdrawal of admission application, so as to avoid 1-year entry bar of 212(a)(16) of
Immigration and Nationality Act of 1952 (8 USCA 1182(a)(16)), pertaining to excludible aliens. 97 ALR Fed 350.
Eligibility for discretionary parole status under 212(d)(5) of Immigration and Nationality Act of 1952 (8 USCA
1182(d)(5)), providing for temporary admission of aliens. 82 ALR Fed 624.
When is aiding of alien's illegal entry into United States "knowingly" so as to be ground for exclusion under 212(a)(31) of
Immigration and Nationality Act (8 USCA 1182(a)(31)) or for deportation under 241(a)(13) of Immigration and
Who is "alien crewman" working in "capacity required for normal operation and service" of vessel, under 8 USCA
1101(a)(15)(D), entitled to work without special certification required in 8 USCA 1182(a)(5). 109 ALR Fed 816.
LIBRARY REFERENCES
Administrative Law
Admission for permanent residence, adjustment of status to, see 8 CFR 245.1 et seq.
Arrival and departure, manifests and lists, see 8 CFR 231.1 et seq., 251.1 et seq.
Certification process for permanent employment of aliens, see 20 CFR 656.1 et seq.
Classification of alien as immediate relative of citizen or as preference immigrant, see 8 CFR 204.1 et seq.
Exchange Visitors-General provisions, see 22 CFR 514.1 et seq.
Waiver of residence requirement, request for, see 45 CFR 50.1 et seq.
Exclusion proceedings, see 8 CFR 236.1 et seq.
Parole of alien crewmen, see 8 CFR 253.1 et seq.
Petitions, revocation of approval, see 8 CFR 205.1 et seq.
Physical and mental examination and inspection of arriving aliens, see 8 CFR 232.1, 233.1 et seq., 234.1 et seq., 235.1 et
8 USCA 1182
8 U.S.C.A. 1182
Page 81
seq.; 42 CFR 34.1 et seq.

Powers and duties of officers of Immigration and Naturalization Service, see 8 CFR 103.1 et seq.
Procedures for asylum, see 8 CFR 208.1 et seq.
Records of lawful admission for permanent residence, creation, see 8 CFR 249.1 et seq.
Reduction of reliance on alien physicians, criteria for evaluation of, see 45 CFR 51.1 et seq.
Refugees-Admission, see 8 CFR 207.1 et seq.
Visas, passports, and other documentation-Immigrants, see 8 CFR 211.1 et seq.; 22 CFR 42.1 et seq.
American Digest System
Aliens
46-51.
Encyclopedias
C.J.S. Aliens 84 et seq., 87, 88, 91-93.
2 Am Jur 2d, Administrative Law (1994) 446.
3A Am Jur 2d, Aliens and Citizens 13, 19, 114, 119, 158, 164, 166, 169, 219, 221, 259, 274, 322, 323, 331- 333, 347,
362, 387, 388, 414, 416, 417, 495, 504, 518, 567, 604, 606, 610, 611, 631-633, 639, 652, 665, 666, 670, 679, 682, 701,
705, 706, 713, 720, 726, 729, 730, 737, 745 749, 750, 752, 759, 760, 770, 772, 773, 776, 777, 781, 786, 788, 795-797,
799-810, 812, 822, 823, 826-830, 832-854, 856-858, 860-873, 877-879, 883, 884, 886, 890, 891, 893-920, 923, 924, 928,
930-945, 947, 949, 951, 954, 955, 959, 970, 972, 981, 989, 996-999, 1005, 1013, 1014, 1020, 1021, 1024, 1025, 1027,
1028, 1058, 1065, 1072, 1088, 1127, 1140, 1166, 1176, 1178, 1207, 1306, 1312, 1321, 1322, 1325, 1334, 1337, 1339,
1340, 1341.4, 1341.6, 1344, 1353, 1356, 1360, 1363, 1366.7, 1366.13, 1770, 1784, 1806, 1838, 1995, 2032, 2054, 2088.
Representation of an Alien in Exclusion, Rescission and Deportation Proceedings, 26 Am Jur Trials, p. 327.
Forms
10C Fed Procedural Forms L Ed, Immigration, Naturalization, and Nationality 40:2-3, 40:8, 40:71, 40:134-135, 40:149,
40:153, 40:162, 40:169, 40:177, 40:184, 40:190, 40:192, 40:195, 40:198, 40:202, 40:212-214, 40:218-219, 40:221,
40:225-226, 40:232, 40:286, 40:287, 40:295-296, 40:313, 40:315-316, 40:318, 40:321-322, 40:325, 40:328-330, 40:338,
40:343, 40:354, 40:357, 40:359, 40:365, 40:371, 40:382-383, 40:385-386, 40:400, 40:406, 40:410, 40:420, 40:426-427,
40:429, 40:431, 40:440, 40:442-444, 40:452-453, 40:456-473, 40:475-483, 40:505, 40:510, 40:539-545, 40:575, 40:578,
40:594, 40:597, 40:600, 40:614, 40:626, 40:629, 40:633.
1A Am Jur Legal Forms 2d, Aliens and Citizens 16:2, 16.5.
1B Am Jur Pl & Pr Forms (Rev), Aliens and Citizens, Forms 2, 21.
Law Review and Journal Commentaries
A "hard look" at the executive branch's asylum decisions. Kevin R. Johnson, 1991 Utah L.Rev. 320(2).
A lion in the path? The influence of international law on the immigration policy of the United States. Joan Fitzpatrick and
William McKay Bennett, 70 Wash.L.Rev. 589 (1995).
Acquiring a better global vision: An argument against the United States' current exclusion of HIV-infected immigrants. Lia
8 USCA 1182
8 U.S.C.A. 1182
Page 82
Macko, 9 Geo.Immigr.L.J. 545 (1995).

Adjustment of status. Stanley Mailman, 212 N.Y.L.J. 3 (Oct. 24, 1994).
Antiterrorism Act, Immigration Reform Act, and ideological regulation in the immigration laws. Kevin R. Johnson, 28 St.
Mary's L.J. 833 (1997).
Consequences of nonappearance: Interpreting new Section 242B of the Immigration and Nationality Act. Iris Gomez, 30 San
Diego L.Rev. 75 (1993).
Criminal and other grounds for deportation. Jeffrey N. Brauwerman, 61 Fla.B.J. 39 (June 1987).
Criminalization of employer fraud against alien employees? A national priority. Roshani M. Gunewardene, 25 New
Eng.L.Rev. 795 (1991).
Detention of aliens. Paul Wickham Schmidt, 24 San Diego L.Rev. 305 (1987).
Discrimination in asylum law: The implications of Jean v. Nelson. Note, 62 Ind.L.J. 127 (1986-1987).
Domicile under Immigration and Nationality Act Section 212(c): Escaping the Chevron "Trap" of agency deference. 82
Cal.L.Rev. 1595 (1994).
Early parole for deportation and the right to a lawyer. Stanley Mailman, 214 N.Y.L.J. 3 (Oct. 23, 1995).
Enemy Aliens. David Cole, 54 Stan.L.Rev. 953 (2002).
Exclusion and detention of aliens: Lessons from the lives of Ellen Knauff and Ignatz Mezei. Charles D. Weisselberg, 143
U.Pa.L.Rev. 933 (1995).
Exercise of discretion under Section 212(C): Should the Board of Immigration Appeals adopt an "abuse of discretion"
standard? Jeffrey L. Romig, 9 Geo.Immigr.L.J. 63 (1995).
Expanded rules under NAFTA. Michael D. Patrick, 211 N.Y.L.J. 3 (Jan. 24, 1994).
Fixing the wheel: A critical analysis of the immigrant investor visa. Ronald R. Rose, 29 San Diego L.Rev. 615 (1992).
Foreign nurses no longer welcome. Stanley Mailman, 215 N.Y.L.J. 3 (Feb. 26, 1996).
Fraud and materiality: Has the Supreme Court redefined immigration and naturalization fraud? Michael Wolf, 62
Temp.L.Rev. 481 (1989).
Gay rights: Can the courts light the way? Michael H. Morris (July/August 1980) 3 L.A.Law. 18.
Hiring foreign talent--Nonimmigrant business visas after the 1990 act. Steven J. Klearman, 38 Fed.B.News & J. 430 (1991).
HUD shuts the door: Restrictions on housing assistance to noncitizens. 9 Geo.Immigr.L.J. 801 (1995).
IMMACT90 revisions regarding immigration consequences of criminal activity. Jeffrey N. Brauwerman and Stephen E.
Mander, 66 Fla.B.J. 28 (May 1992).
Immigration and nationality law. Robert Charles Hill and Donald Kerwin, 36 Int'l Law. 527 (2002).
Immigration consequences of criminal activity. Ira S. Rubinstein and Ester Greenfield, 43 Wash.St.B.News 11 (July 1989).
Immigration: Executive use of the exclusion power--D.C.Circuit Review. Mark H. Graven, 55 Geo.Wash.L.Rev. 981 (May &
August 1987).
8 USCA 1182
8 U.S.C.A. 1182
Page 83
Immigration marriage fraud amendments of 1986: Till Congress do us part. Comment, 41 U.Miami L.Rev. 1087
(1987).
Inadmissibility and unlawful reeentry after deportation - still confused after all these years. Eric H. Singer, 29 Sw. U.L. Rev.
(2000).
Individual responsibility for assisting the Nazis in persecuting civilians. Stephen J. Massey, 71 Minn.L.Rev. 97 (1986).
Labor certification: Six different ways and reasons for establishing dissimilarity between two employment positions. Lorna
Rogers Burgess, 29 San Diego L.Rev. 643 (1992).
Labor-condition application process. Michael D. Patrick, 211 N.Y.L.J. 3 (May 23, 1994).
Making of United States refugee policy: Separation of powers in the post-cold war era. Stephen H. Legomsky, 70
Wash.L.Rev. 675 (1995).
Matter of A-A-: Board of immigration appeals statutory misinterpretation denies discretionary relief to aggravated felons. 34
Santa Clara L.Rev. 247 (1993).
New era: The Immigration Act of 1990. Howard S. "Sam" Myers and Elizabeth A. Thompson, 48 Bench & B.Minn. 13 (Jan.
1991).
New look at actual minimum job requirements and experience in similar occupations and with the same employer: BALCA's
20 C.F.R. Section 656.21(b)(6). Lorna Rogers Burgess, 27 San Diego L.Rev. 769 (1990).
1996 Immigration Act: Its impact on U.S. legal residents and undocumented aliens. Charles C. Foster, 34 Hous.Law. 28
(Jan./Feb. 1997).
O and P visas for nonimmigrants and the impact of organized labor on foreign artists and entertainers and American
audiences. Tibby Blum, Fordham Intell.Prop.Media & Ent.L.J. 533 (1993).
Partial membership: Aliens and the constitutional community. Michael Scaperlanda, 81 Iowa L.Rev. 707 (1996).
Petitioning on behalf of an alien spouse: Due process under the immigration laws. Comment, 74 Cal.L.Rev. 1747 (1986).
Political asylum under the 1980 Refugee Act: An unfulfilled promise. Arthur C. Helton, 17 U.Mich.J.L.Ref. 243 (1984).
Protection and custody of children in United States immigration court proceedings. Judges J. Daniel Dowell, Philip J.
Montante, Jr., Ira Sandron, Jose Simonet, 16 Nova L.Rev. 1285 (1992).
Reforming the Immigration and Nationality Act: Labor certification, adjustment of status, the reach of deportation, and entry
by fraud. Elwin Griffith, 17 U.Mich.J.L.Ref. 265 (1984).
Religion and the Immigration and Nationality Act: Using old saws on new bones. Enid Trucios-Haynes, 9 Geo.Immigr.L.J. 1
(1995).
Representing aliens in criminal cases--Recent amendments to the Immigration and Naturalization Act. Mary L. Sfasciotti, 79
Ill.B.J. 78 (1991).
Representing the institutionalized Mariel Cubans--The Wisconsin experience. William M. Audet, 1987 Wis.L.Rev. 455
(1987).
Response to "Nannygate": Untangling U.S. immigration law to enable American parents to hire foreign child care providers.
70 Ind.L.J. 305 (1994).
Rethinking the role of politics in United States immigration law: The Helsinki Accords and ideological exclusion of aliens.
Carlos Ortiz Miranda, 25 San Diego L.Rev. 306 (1988).
8 USCA 1182
8 U.S.C.A. 1182
Page 84
Stranger and afraid: Undocumented workers and federal employment law. Peter Margulies, 38 DePaul L.Rev. 553
(1989).
Strategies for ameliorating the immigration consequences of criminal convictions: A guide for defense attorneys. Maryellen
Fullerton and Noah Kinigstein, 23 Am.Crim.L.Rev. 425 (1986).
Taming the asylum adjudication process: An agenda for the twenty-first century. Katherine L. Vaughns, 30 San Diego L.Rev.
1 (1993).
Terrorism: Problem and solution--The Comprehensive Terrorism Prevention Act of 1995. 22 J.Legis. 103 (1995).
The alien and the guilty plea: caveat to the defense. Mark E. Roseman (1984) 12 W.St.U.L.Rev. 155.
The balance of interest between national security controls and first amendment interest in academic freedom. M. Christina
Ramirez, 13 J.C. & U.L. 179 (1986).
The Immigration Reform and Control Act: Immigration policy and the national interest. Alan K. Simpson, 17
U.Mich.J.L.Ref. 147 (1984).
The Immigration Reform and Control Act--'86. Howard S. Myers, III and Elizabeth A. Thompson, 44 Bench & B.Minn. 15
(Jan. 1987).
Theories of loss of citizenship. T. Alexander Aleinikoff, 84 Mich.L.Rev. 1471 (1986).
The propriety of denying entry to homosexual aliens: Examining the Public Health Service's authority over medical
exclusions. Note, 17 U.Mich.J.L.Ref. 331 (1984).
Treaty status: Immigration loss's over look benefit. Ralph Ehrenpreis (December 1980) 3 L.A.Law. 34.
United States exclusion of HIV-positive aliens: Realities and illusions. 18 Suffolk Transnat'l L.Rev. 269 (1995).
Upcoming visa lottery. Stanley Mailman, 211 N.Y.L.J. 3 (Feb. 28, 1994).
Update on adjustment of status. Michael D. Patrick, 214 N.Y.L.J. 3 (Sept. 1, 1995).
U.S. immigration law update: hiring foreign nationals in the United States-- making immigration law user friendly. Charles
C. Foster and Gary Endelman, 9 Corp.Couns.Rev. 153 (Nov. 1990).
Using a firearm during and in relation to a drug trafficking crime: Defining the elements of the mandatory sentencing
provision of 18 USC 924(c)(1). Michael J. Riordan, 30 Duq.L.Rev. 39 (1991).
Walking a gray line: The "color of law" test governing noncitizen eligibility for public benefits. Robert Rubin, 24 San Diego
L.Rev. 411 (1987).
Well-founded fear of persecution--The standard of proof in political asylum resolved, or is it?: I.N.S. v. Cardoza-Fonseca.
Note, 22 U.S.F.L.Rev. 385 (1988).
Texts and Treatises
2 Fed Proc L Ed, Administrative Procedure (1994) 2:264.
13 Fed Proc L Ed, Foreign Relations, 36:341, 36:343-344, 36:346-352.
18, 18A Fed Proc L Ed, Immigration, Naturalization, and Nationality, 45:2, 36, 37, 42, 129, 134, 157, 159, 160, 164,
175, 191, 196, 277, 278, 279, 293, 314, 341, 342, 370, 437, 475, 477, 481, 482, 485, 486, 487, 507, 519, 532, 533, 593,
597, 598, 617, 621, 622, 629, 636, 645, 653, 664, 674, 686, 687, 689, 698, 709, 711, 712, 715-723, 727, 738, 742,
749-759, 764-769, 771, 773, 776, 777, 779, 781-795, 797, 798, 799, 801, 802, 807, 812, 815, 816, 820, 833, 843, 852,
8 USCA 1182
8 U.S.C.A. 1182
Page 85
859, 860, 861, 868, 875, 954, 964, 1018, 1095, 1103, 1114, 1117, 1127, 1128, 1140, 1142, 1155, 1158, 1165 1206.
2 Immigration Law Service, Deportation 17:1.
NOTES OF DECISIONS
I. GENERALLY 1-60
II. ADMINISTRATION AND ENFORCEMENT 61-130
III. CLASSES SUBJECT TO EXCLUSION 131-270
I. GENERALLY
<Subdivision Index>
Administrative regulations 14
Admission, naturalization 31
Border entries 27
Cause of action 32
Children 24
Citizens 16
Constitutionality 2-5
Constitutionality - Generally 2
Constitutionality - Executive power 5
Constitutionality - Legislative power 4
Constitutionality - Sovereign power 3
Construction 6
Crime and punishment 20
Exclusiveness of section 11
Executive orders 13
Executive power, constitutionality 5
Guam 19
Law governing 10
Legislative power, constitutionality 4
Native Americans 17
Naturalization 30, 31
Naturalization - Generally 30
Naturalization - Admission 31
Notice of eligibility for relief 23
Other laws 7
Possessions and territories 18
Prior law 1
Protection of alien immigrants 21
Purpose 9
Retroactive effect of section 8
Rights and privileges 22
Seamen 25
Sovereign power, constitutionality 3
State laws 15
Status of alien 28
Transit-without-visa 26
Treaties 12
Waiver of exclusion 29
1. Prior law
Former Acts were cited. Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiana,
U.S.La.1902, 22 S.Ct. 811, 186 U.S. 380, 46 L.Ed. 1209. See, also, U.S. v. Woo Jan, Iowa 1918, 38 S.Ct. 207, 245 U.S. 552,
62 L.Ed. 466; U.S. v. Ness, Ky.1917, 38 S.Ct. 118, 245 U.S. 319, 62 L.Ed. 321; Grant Bros. Construction Co. v. U.S.,
8 USCA 1182
8 U.S.C.A. 1182
Page 86
Ariz.1914, 34 S.Ct. 452, 232 U.S. 647, 58 L.Ed. 776; Kaoru Yamataya v. Fisher, Wash. 1903, 23 S.Ct. 611, 189 U.S. 86, 47
L.Ed. 721; U.S. v. River Spinning Co., R.I.1918, 250 F. 586, 162 C.C.A. 602; Mok Nuey Tau v. White, Cal.1917, 244 F.
742, 157 C.C.A. 190; Ex parte Lalime, D.C.Mass.1917, 244 F. 279; Tomkins v. Paterson, D.C.Wash.1917, 239 F. 402; U.S.
v. International Mercantile Marine Co., Pa.1912, 194 F. 408, 114 C.C.A. 370; U.S. v. Fielding, D.C.N.Y.1909, 175 F. 290;
U.S. v. Capella, D.C.Cal.1909, 169 F. 890; In re Rustigian, C.C.R.I.1908, 165 F. 980; ex parte Durand, D.C.Or.1908, 160 F.
558; Taylor v. U.S., N.Y.1907, 152 F. 1, 81 C.C.A. 197, reversed 28 S.Ct. 53, 207 U.S. 120, 52 L.Ed. 130; Warren v. U.S.,
Mass.1893, 58 F. 559, 7 C.C.A. 368.
Under former version of Immigration and Nationality Act (INA), which required Attorney General to take into custody any
alien convicted of an aggravated felony upon release of the alien from incarceration, pending a determination that he was
excludable, Attorney General had authority to detain alien following issuance of final order of exclusion. Chi Thon Ngo v.
I.N.S., C.A.3 (Pa.) 1999, 192 F.3d 390, rehearing denied, amended.
Act of Feb. 20, 1907, 2, was re-enactment and extension of prior legislation on subject of exclusion of aliens enacted in
light of construction placed on prior acts by courts. Looe Shee v. North, C.C.A.9 (Cal.) 1909, 170 F. 566, 95 C.C.A. 646.
2. Constitutionality--Generally
That this section under which deportation order issued provided for no warning to alien who was a homosexual at time of
first entry into United States that he was then subject to exclusion did not render this section void for vagueness. Boutilier v.
Immigration and Naturalization Service, U.S.N.Y.1967, 87 S.Ct. 1563, 387 U.S. 118, 18 L.Ed.2d 661.
United States Supreme Court granted certiorari to consider constitutionality of provision of subsection (a)(4) of this section
that aliens afflicted with psychopathic personality shall be deported as applied to alien who was allegedly a homosexual.
Rosenberg v. Fleuti, U.S.Cal.1963, 83 S.Ct. 1804, 374 U.S. 449, 10 L.Ed.2d 1000.
Federal power in the general field of foreign affairs, including power over immigration, naturalization, and deportation, is
supreme. Hines v. Davidowitz, U.S.Pa.1941, 61 S.Ct. 399, 312 U.S. 52, 85 L.Ed. 581.
Provisions of Act Mar. 3, 1903, for exclusion and deportation of alien anarchists were not unconstitutional either as in
contravention of U.S.C.A.Const., Art. III, 1, or Amends. 1, 5, and 6, whether such aliens were "anarchists" in philosophical
sense or in popular sense as defined by that Act. U.S. ex rel. Turner v. Williams, U.S.N.Y.1904, 24 S.Ct. 719, 194 U.S. 279,
48 L.Ed. 979.
Act of 1891 was constitutional. Nishimura Ekiu v. U.S., U.S.Cal.1892, 12 S.Ct. 336, 142 U.S. 651, 35 L.Ed. 1146. See,
also, Japanese Immigrant Case, Wash.1903, 23 S.Ct. 611, 189 U.S. 86, 47 L.Ed. 721; U.S. v. Rogers, C.C.Pa.1895, 65 F. 787.
The ex post facto clause, which applies only to the retroactive application of criminal statutes, did not apply to deportation
statutes, which were civil in nature, even where an alien qualified for removal because of a past criminal act. Perez v.
Elwood, C.A.3 (Pa.) 2002, 294 F.3d 552.
Statute authorizing waiver of an alien's inadmissibility for a crime of moral turpitude, which created a distinction between
aliens who had not previously been lawfully admitted to the United States (non-LPRs) and those who had been previously
admitted to the United States but had not resided in the United States for seven consecutive years before removal proceedings
were initiated (LPRs), did not violate the equal protection component of the Fifth Amendment's Due Process clause;
distinction survived rational basis scrutiny since Congress could have concluded that LPRs who commit crimes of moral
turpitude, despite rights and privileges based on their status that illegal aliens do not share, were uniquely poor candidates for
waiver, that LPRs with employment and family ties to the United States, who are still willing to commit serious crimes, were
a higher risk for recidivism than non-LPRs who commit serious crimes but lacked ties to the United States, and that non-LPR
waiver eligibility was more theoretical than real. De Leon-Reynoso v. Ashcroft, C.A.3 (Pa.) 2002, 293 F.3d 633.
Application of section of Antiterrorism and Effective Death Penalty Act (AEDPA) that precluded discretionary waiver of
deportation for aliens convicted of drug-related crimes to alien who pleaded not guilty and elected a jury trial prior to
AEDPA's enactment did not violate his equal protection rights; the section applied equally to exclusion and deportation
proceedings. Armendariz-Montoya v. Sonchik, C.A.9 (Ariz.) 2002, 291 F.3d 1116.
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Lawful permanent residents (LPRs) and non-LPRs are treated differently throughout the Immigration and Nationality Act
(INA) and therefore are not "similarly situated," and thus, different treatment of them by Congress under INA provision
making an LPR categorically ineligible for discretionary waiver of removal while not treating non-LPRs in the same fashion
did not violate the equal protection component of the Due Process Clause. Jankowski-Burczyk v. I.N.S., C.A.2 (Conn.) 2002,
291 F.3d 172.
The Board of Immigration Appeals' (BIA) denial of eligibility for cancellation of removal due to undocumented alien's
expunged state court drug conviction did not violate the alien's equal protection rights; the state court's sentence of ten years
of probation for the alien's first-time drug offense, of which the alien served two years before the conviction was expunged,
was significantly longer than the one-year-or-less sentence of probation required for defendants to be eligible for cancellation
of removal proceedings under the Federal First Offender Act (FFOA), and thus provided a rational basis for the BIA to treat
such an undocumented alien differently than an alien who received FFOA relief. Vasquez-Velezmoro v. U.S. I.N.S., C.A.8
2002, 281 F.3d 693.
Statutory scheme which precluded lawful permanent resident aliens convicted of aggravated felonies from obtaining
discretionary relief from order of removal, while theoretically permitting other aliens convicted of aggravated felonies to
obtain such relief, did not violate equal protection guarantees; scheme was rational first step toward goal of quickly removing
aliens who committed serious crimes. Oguejiofor v. Attorney General of U.S., C.A.11 2002, 277 F.3d 1305.
Provision of Immigration and Nationality Act (INA) which renders inadmissible any alien who seeks to enter United States
to violate any law relating to espionage or sabotage, or any law prohibiting the export of goods, technology, or sensitive
information, is not unconstitutionally vague. Beslic v. I.N.S., C.A.7 2001, 265 F.3d 568.
Statutory scheme precluding lawful permanent resident convicted of aggravated felony from obtaining discretionary relief
based on family hardship, while providing that alien who entered United States illegally and then committed aggravated
felony was at least theoretically eligible for such relief, did not violate equal protection guarantees, inasmuch as such scheme
was rational first step toward goal of quickly removing aliens who commit serious crimes, and it was arguably proper to hold
lawful permanent resident aliens to higher standard given rights and privileges they enjoy. Moore v. Ashcroft, C.A.11 2001,
251 F.3d 919.
Distinction created by provision of Antiterrorism and Effective Death Penalty Act (AEDPA) which makes aliens who are
subject to deportation based on commission of certain specified crimes ineligible for discretionary relief, while aliens who are
prevented from reentering the United States after acquiescing to removal may still seek discretionary relief, is supported by a
rational basis, and thus does not violate equal protection clause. Domond v. U.S. I.N.S., C.A.2 (Conn.) 2001, 244 F.3d 81.
Provision of Immigration and Nationality Act (INA) under which lawful permanent resident aliens (LPRs) who have been
convicted of aggravated felonies are ineligible for a waiver of inadmissibility, but aliens who have never been lawfully
admitted and who have committed such felonies are eligible for such waivers, is supported by a rational basis, and does not
violate equal protection or due process rights of LPRs; provision was a first step toward legitimate goal of quickly removing
aliens who commit certain serious crimes, and Congress could have found that LPRs, who generally have greater rights and
privileges than other aliens, are less deserving of a second chance. Lara- Ruiz v. I.N.S., C.A.7 2001, 241 F.3d 934.
Deportable alien was not denied due process by fact that he might have been eligible for discretionary relief from
deportation if his case had proceeded more expeditiously; statutory provision governing discretionary relief, which was
amended while case was pending so as to preclude relief, and under which alien alleged that he might have obtained relief
had deportation proceedings been commenced sooner, was couched in conditional and permissive terms, and thus gave alien
no enforceable rights. Alfarache v. Cravener, C.A.5 (Tex.) 2000, 203 F.3d 381, certiorari denied 121 S.Ct. 46, 531 U.S. 813,
148 L.Ed.2d 16.
Alien's equal protection rights were not violated by section of Antiterrorism and Effective Death Penalty Act (AEDPA)
that added certain drug offenses to list of deportable offenses which made criminal aliens ineligible for discretionary waivers
of deportation, as interpreted by Board of Immigration Appeals (BIA) to prevent deportable aliens but not excludable aliens
from applying for discretionary waivers. Musto v. Perryman, C.A.7 (Ill.) 1999, 193 F.3d 888, rehearing and rehearing en
banc denied.
Former version of statute, making discretionary relief unavailable to legal permanent residents "who [are] deportable by
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reason of having committed" a specified criminal offense applied both to aliens who had never left the United States and to
aliens who had left for only a short period of time, and eliminated discretionary relief for both excludable and deportable
legal permanent residents, and thus did not violate equal protection on its face; nor did it deny equal protection to legal
permanent resident whose deportation hearing was held before date of decision of Board of Immigration Appeals (BIA) that
the statute applied only in deportation, and not exclusion, proceedings. U.S. v. Estrada-Torres, C.A.9 (Cal.) 1999, 179 F.3d
776, certiorari denied 121 S.Ct. 156, 531 U.S. 864, 148 L.Ed.2d 104.
Equal protection clause was not violated by section of Antiterrorism and Effective Death Penalty Act (AEDPA) barring
waivers of deportation for aliens convicted of certain drug-related offenses, even though section did not bar waivers for aliens
excludable on basis of same offenses; rational reason for the distinction existed, in that it created incentive for deportable
aliens to leave the country without their having to be ordered to leave at government's expense. LaGuerre v. Reno, C.A.7
(Ill.) 1998, 164 F.3d 1035, rehearing and suggestion for rehearing en banc denied, certiorari denied 120 S.Ct. 1157, 528 U.S.
1153, 145 L.Ed.2d 1069.
Equal protection is not violated by immigration statute stating that relief from deportation of permanent resident alien in
discretion of Attorney General shall not apply to alien convicted of one or more aggravated felonies who has served prison
term of at least five years for those felonies; selection of five years' imprisonment as line of demarcation for such "serious"
crimes was consistent with Congress' selection of five years as mandatory minimum prison term for certain serious crimes.
Giusto v. I.N.S., C.A.2 1993, 9 F.3d 8.
A detained inadmissible alien, a Mariel boat lift Cuban who was ordered excluded and deported but who was then paroled
into the United States and had his parole revoked following string of criminal offenses, did not have same due process rights
as removable aliens, and thus was not entitled to presumption, under statute governing post-removal period, that six months
was reasonable amount of time in which to effect removal, and was not entitled to release even though he had been detained
for over three years, absent showing that repatriation was likely within the foreseeable future. Herrero-Rodriguez v. Bailey,
D.N.J.2002, 237 F.Supp.2d 543.
Retroactive application of statute eliminating eligibility for discretionary waiver of deportation for those aliens who were
found guilty by jury of aggravated felony but not for those aliens who pleaded guilty to aggravated felony did not violate
equal protection; rational basis existed for the distinction due to fact that only those aliens who pleaded guilty could have had
detrimental reliance on such eligibility. Martinez v. Ashcroft, S.D.N.Y.2002, 236 F.Supp.2d 360.
Immigration and Naturalization Service (INS) Departure Control checkpoint at Virgin Islands airport, at which passengers
bound for continental United States were temporarily detained for proof of citizenship, constituted unreasonable seizure of
passenger who allegedly provided inadequate documentation, since passenger's interest in individual liberty and expectation
of privacy clearly outweighed public interest in discovering and detaining illegal aliens at airport; there was no similar law
enforcement problem in policing Virgin Islands' international border, checkpoint was ineffective in its avowed purpose of
catching illegal aliens, and there would be nothing impractical about requiring reasonable suspicion based on particularized
study of individual passengers walking through airport before accosting any passenger. U.S. v. Pollard, D.Virgin Islands
2002, 209 F.Supp.2d 525.
For purposes of equal protection analysis, there was no rational basis for disparity of treatment in section of the
Immigration and Nationality Act that barred discretionary cancellations of deportation to legal permanent residents convicted
of aggravated felonies while permitting discretionary waivers for illegal aliens convicted of same aggravated felony, and thus
section was unconstitutional, where distinction rewarded those guilty of illegal entry and aggravated felony by treating them
better than individuals guilty only of aggravated felony, and disparity created incentive to be an illegal alien. Roman v.
Ashcroft, N.D.Ohio 2002, 181 F.Supp.2d 808.
Elimination of discretionary waivers of deportation in Antiterrorism and Effective Death Penalty Act (AEDPA) and Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) did not violate alien's due process rights, where alien had
been incarcerated for five years before discretionary waivers were eliminated, and alien had never been admitted to United
States as legal permanent resident. Tulloch v. I.N.S., S.D.N.Y.2001, 175 F.Supp.2d 644.
Statute governing the parole of detained unadmitted aliens, pending final determination of their applications for admission
to the United States, was not unconstitutional restraint on liberty as applied to permanent resident who had been convicted of
first degree sexual abuse, left the country, and had been detained upon his attempted return, where detainee presented
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information regarding his application for parole, information was considered, and Immigration and Naturalization Service
(INS) District Director had determined that detainee's release was not in the public interest. Ferreras v. Ashcroft,
S.D.N.Y.2001, 160 F.Supp.2d 617.
Provision of Immigration and Nationality Act (INA) precluding discretionary waiver of removal specifically for lawful
permanent resident (LPR) aliens who have been convicted of an aggravated felony but not for non-LPRs who have been
convicted of the same aggravated felony violated Equal Protection Clause; such distinction was not rationally related to the
legitimate government purpose of expediting the removal of criminal aliens from the United States or even of removing as
quickly as possible certain classes of criminal aliens, i.e., those convicted of aggravated felonies. Jankowski v. I.N.S.,
D.Conn.2001, 138 F.Supp.2d 269, reversed 291 F.3d 172.
Provision of Immigration and Naturalization Act (INA) rendering a legal alien convicted of an aggravated felony ineligible
for discretionary relief from deportation while permitting an illegal alien convicted of an aggravated felony to apply for such
relief violated Equal Protection Clause; distinction was not rational, as it created incentive to become an illegal immigrant
and punished those immigrants with closer ties to the United States. Song v. I.N.S., C.D.Cal.2000, 82 F.Supp.2d 1121.
Distinction between aliens in deportation proceedings and those in exclusion proceedings in eliminating eligibility for
discretionary waiver of deportation was rationally related to a legitimate governmental purpose and therefore did not violate
Equal Protection Clause; convicted aliens who have not yet entered the country do not pose the same public safety risk as
those who are already here. Asad v. Reno, M.D.Tenn.1999, 67 F.Supp.2d 886, affirmed 242 F.3d 702.
Anti-Terrorism and Effective Death Penalty Act's (AEDPA) elimination of discretionary relief for deportable aliens, while
permitting such review for excludable aliens, was not a denial of equal protection; two classes of aliens were not similarly
situated, and, even if they were, there was a rational basis for dissimilar treatment. Berlanga v. Reno, S.D.Tex.1999, 56
F.Supp.2d 751.
Application of Antiterrorism and Effective Death Penalty Act (AEDPA) section, which expanded range of crimes
rendering aliens ineligible for discretionary waiver of deportation, to aliens in deportation proceedings, but not to those in
exclusion proceedings, violated equal protection; there was no rational basis for allowing aliens who leave country after their
convictions an opportunity to apply for discretionary relief while denying same opportunity to aliens who remain in country
and become deportable for same convictions. Mercado-Amador v. Reno, D.Or.1999, 47 F.Supp.2d 1219.
Provision of Anti-Terrorism and Effective Death Penalty Act (AEDPA) rendering permanent resident aliens, but not
excludable aliens, convicted of certain crimes ineligible for waiver of deportation did not arbitrarily distinguish between
types of aliens, in violation of permanent resident alien's equal protection rights; Congress could have determined that
deportable criminal aliens posed more acute problem than excludable aliens, and directed its legislative efforts accordingly.
Mattis v. Reno, D.Mass.1999, 44 F.Supp.2d 379, affirmed 212 F.3d 31.
Construing Immigration and Naturalization Act to bar discretionary relief to aliens in deportation proceedings, but not
those in exclusion proceedings, violated the Equal Protection Clause guaranteed by the Fifth Amendment. Wallace v. Reno,
D.Mass.1999, 39 F.Supp.2d 101.
Section of Antiterrorism and Effective Death Penalty Act (AEDPA) barring waivers of deportation for aliens convicted of
certain drug-related offenses did not violate Equal Protection Clause, even though section did not bar waivers for aliens
excludable on basis of same offenses; rational reason for the distinction existed, in that it created incentive for deportable
aliens to leave the country without their having to be ordered to leave at government's expense. Cedillo-Gonzalez v. Garcia,
W.D.Tex.1999, 38 F.Supp.2d 479, amended in part, vacated in part 55 F.Supp.2d 653.
Provision of Antiterrorism and Effective Death Penalty Act (AEDPA) which rendered deportable aliens, but not excludable
aliens, convicted of certain offenses ineligible for discretionary relief from deportation violated Equal Protection clause.
Gutierrez-Perez v. Fasano, S.D.Cal.1999, 37 F.Supp.2d 1166.
Distinction made by Board of Immigration Appeals between excludable and deportable aliens, as to eligibility for
discretionary hearing on relief from deportation for having been convicted of specified crimes, violated equal protection
rights of deportable aliens; there was no rational basis for affording legal permanent residents who leave the country after
their conviction an opportunity to apply for discretionary relief, while denying that same opportunity to other legal permanent
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residents who are deportable for the same offenses merely because they failed to travel abroad but remained in the country.
Almon v. Reno, D.Mass.1998, 13 F.Supp.2d 143, reversed 192 F.3d 28, supplemented 214 F.3d 45, certiorari denied 121
S.Ct. 83, 531 U.S. 830, 148 L.Ed.2d 44.
Classifications under the immigration laws need only be supported by some rational basis to fulfill equal protection
guarantees. Alvarez v. District Director of U. S. Immigration and Naturalization Service, C.A.9 (Cal.) 1976, 539 F.2d 1220,
certiorari denied 97 S.Ct. 1334, 430 U.S. 918, 51 L.Ed.2d 597.
Where contention that term "crime involving moral turpitude" as used in this section was unconstitutionally vague has been
rejected by the Supreme Court, such decision foreclosed the court of appeals from reconsidering such constitutional issue.
Soetarto v. Immigration and Naturalization Service, C.A.7 1975, 516 F.2d 778.
This section providing that classes of aliens who were ineligible to receive visas and who should be excluded from entering
the United States included aliens afflicted with a psychopathic personality, epilepsy, or a mental defect, was not defective
under void-for-vagueness doctrine. Boutilier v. Immigration and Naturalization Service, C.A.2 (N.Y.) 1966, 363 F.2d 488,
certiorari granted 87 S.Ct. 285, 385 U.S. 927, 17 L.Ed.2d 209, affirmed 87 S.Ct. 1563, 387 U.S. 118, 18 L.Ed.2d 661.
Former 137 of this title excluding from admission to United States aliens who are members of or affiliated with
Communist Party of United States and authorizing deportation of any alien who at time of entering United States or at any
time thereafter is a member of Communist Party, did not violate U.S.C.A.Const. Amend. 5. Sigurdson v. Landon, C.A.9
(Cal.) 1954, 215 F.2d 791, certiorari denied 75 S.Ct. 298, 348 U.S. 916, 99 L.Ed. 718, rehearing denied 75 S.Ct. 437, 348
U.S. 956, 99 L.Ed. 747.
Deportation of alien for being a member of the Communist Party during period when it advocated overthrow of the
government by force and violence, though Congress did not impose, as a condition of alien's continuance of permanent
residence in the United States at time permanent residence was established, a condition that alien not belong to such party,
was not a denial of substantive due process, and was not in violation of U.S.C.A.Const. Amend. 5 or the ex post facto
provisions of U.S.C.A.Const. Art. 1, 9, cl. 3. Wolf v. Boyd, C.A.9 (Wash.) 1954, 215 F.2d 377, certiorari denied 75 S.Ct.
438, 348 U.S. 951, 99 L.Ed. 743.
Former 137 of this title was constitutional. Ex parte Pettine, D.C.Mass.1919, 259 F. 733.
Distinction made by Immigration and Naturalization Service (INS) between excludable and deportable aliens, under which
criminal resident alien was allowed to apply for waiver if he had left United States and was placed in exclusion proceedings
upon re-entry but criminal resident alien in deportation proceedings was not eligible for waiver, was not rationally related to
any legitimate purpose and violated equal protection. Musto v. Perryman, N.D.Ill.1998, 6 F.Supp.2d 758, reversed 193 F.3d
888, rehearing and rehearing en banc denied.
Statute reserving larger number of visas for skilled workers and allocating remainder to unskilled workers was rationally
related to Congress' objectives in making it easier for managers, professionals and other skilled workers to immigrate to
United States, so as not to violate substantive due process rights of housekeepers and child-care workers seeking permanent
resident visas, even if there was labor shortage in their occupations. Aliens for Better Immigration Laws v. U.S.,
S.D.N.Y.1994, 871 F.Supp. 182.
Statute permitting exclusion of aliens on basis of activities Immigration and Naturalization Service (INS) believes would
be prejudicial to public interest or endanger welfare, safety or security of United States was unconstitutionally vague, in
violation of First Amendment. Rafeedie v. I.N.S., D.D.C.1992, 795 F.Supp. 13.
Service policy of excluding homosexual aliens from entering into United States pursuant to this section solely on grounds
of homosexuality and not because of any medically recognized and certified mental disorder or sexual deviation, was
unconstitutional, because it was not based upon a facially legitimate and bona fide reason, since medical authorities no longer
recognize homosexuality per se to be a mental disorder or sexual deviation, and because interests of plaintiffs under U.S.C.A.
Const. Amend. 1 seeking to engage in discussion and exchange with homosexual aliens outweighed any interest Immigration
and Naturalization Service had in their per se exclusion. Lesbian/Gay Freedom Day Committee, Inc. v. U. S. I. N. S.,
N.D.Cal.1982, 541 F.Supp. 569, affirmed 714 F.2d 1470.
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There was no equal protection violation in amendment to this section repealing privilege of Western Hemisphere parents of
citizen children to obtain priority status on consular waiting lists to become permanent legal residents, on ground that
amendment created two classes of children born during its effective period, i.e., those who complied with terms of such
provision by filing appropriate form and those who did not, since prior to effective date of amendment all eligible parents had
an equal opportunity to obtain priority status and there was no showing that some of those parents were informed by the
government of the filing requirement while others were not. Martinez v. Bell, S.D.N.Y.1979, 468 F.Supp. 719.
Constitutional rights of exchange alien's son who was born in United States would not be violated if exchange alien was
required to return to native country for two years prior to applying for permanent residence in United States. Nayak v. Vance,
D.C.S.C.1978, 463 F.Supp. 244.
Where congressional purpose of any law regarding aliens is not to regulate immigration but to invidiously discriminate
against American citizens, permanent residents, or already admitted aliens, the law cannot withstand constitutional scrutiny.
Fiallo v. Levi, E.D.N.Y.1975, 406 F.Supp. 162, probable jurisdiction noted 96 S.Ct. 2622, 426 U.S. 919, 49 L.Ed.2d 371,
affirmed 97 S.Ct. 1473, 430 U.S. 787, 52 L.Ed.2d 50.
Deportation is not a criminal proceeding within prohibition of ex post facto provisions of Constitution, and therefore this
chapter is not unconstitutional as being an ex post facto law. Barrios-Macias v. Minton, W.D.Tex.1953, 114 F.Supp. 470.
Former provision of subsec. (d)(7) of this section declaring provisions thereof for exclusion of certain classes of aliens
applicable to any alien leaving Alaska and seeking to enter continental United States, interpreted by court as applying to
lawfully admitted aliens, permanently residing in continental United States, when returning thereto from Alaska, was not
unconstitutional, though inapplicable to other such aliens permanently residing in or travelling within or between states or
seeking reentry to United States from foreign land. International Longshoremen's & Warehousemen's Union, Local 37 v.
Boyd, W.D.Wash.1953, 111 F.Supp. 802, vacated on other grounds 74 S.Ct. 447, 347 U.S. 222, 98 L.Ed. 650.
Former 137 of this title was not invalid as containing no reasonably ascertainable standard as to what acts or conduct
were therein proscribed. Ex parte Bridges, N.D.Cal.1943, 49 F.Supp. 292, affirmed 144 F.2d 927, certiorari granted 65 S.Ct.
564, 323 U.S. 708, 89 L.Ed. 570, reversed on other grounds 65 S.Ct. 1443, 326 U.S. 135, 89 L.Ed. 2103.
Former 137 of this title denying admission to the United States of alien anarchist did not violate Constitutional guaranties
of free worship and free expression, since such guaranties applied to residents, either citizens or aliens who were lawfully in
the United States. U.S. v. Parson, S.D.Cal.1938, 22 F.Supp. 149.
3. ---- Sovereign power, constitutionality
Power and authority of United States, as attribute of its sovereignty, to either prohibit or regulate immigration of aliens, are
plenary; and Congress may choose such agencies as it pleases to carry out whatever policy or rule of exclusion it may adopt,
and, so long as such agencies do not transcend limits of authority or abuse discretion reposed in them, their judgment is not
open to challenge or review by courts. Kaoru Yamataya v. Fisher, U.S.Wash.1903, 23 S.Ct. 611, 189 U.S. 86, 47 L.Ed. 721.
See, also, Choy Gum v. Backus, Cal.1915, 223 F. 487, 139 C.C.A. 35, certiorari denied 36 S.Ct. 284, 239 U.S. 649, 60 L.Ed.
485; U.S. v. Rodgers, Pa.1911, 191 F. 970, 112 C.C.A. 382; Looe Shee v. North, Cal.1909, 170 F. 566, 95 C.C.A. 646; U.S.
v. Ngum Lun May, D.C.Or.1907, 153 F. 209; U.S. v. Hung Chang, Ohio 1904, 134 F. 19, 67 C.C.A. 93.
Every sovereign nation has power, as inherent in sovereignty and essential to self-preservation, to forbid entrance of
foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.
Fong Yue Ting v. U.S., U.S.N.Y.1893, 13 S.Ct. 1016, 149 U.S. 698, 37 L.Ed. 905. See, also, Nishimura Ekiu v. U.S.,
Cal.1892, 12 S.Ct. 336, 142 U.S. 651, 35 L.Ed. 1146; Chae Chan Ping v. U.S., Cal.1889, 9 S.Ct. 623, 130 U.S. 581, 32 L.Ed.
1068; Navigazione Libera Triestina v. U.S., C.C.A.Wash.1929, 36 F.2d 631; Brownlow v. Miers, C.C.A.Ala.1928, 28 F.2d
653; U.S. ex rel. Medich v. Burmaster, C.C.A.Minn.1928, 24 F.2d 57; The Limon, C.C.A.N.Y.1927, 22 F.2d 270; U.S. v.
National Surety Co., D.C.Ala.1927, 20 F.2d 972.
Parole to alien is act of extraordinary sovereign generosity, granting temporary admission into our society to alien who has
no legal right to enter and would probably be turned away at border if he sought to enter by land, rather than coming by sea
or air. Jean v. Nelson, C.A.11 (Fla.) 1984, 727 F.2d 957, rehearing denied 733 F.2d 908, certiorari granted 105 S.Ct. 563, 469
U.S. 1071, 83 L.Ed.2d 504, affirmed 105 S.Ct. 2992, 472 U.S. 846, 86 L.Ed.2d 664.
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Admission of alien is not right but privilege which is granted only upon such terms as United States prescribes.
Montgomery v. Ffrench, C.A.8 (Mo.) 1962, 299 F.2d 730.
Exclusion of aliens is fundamental act of sovereignty; right to do so stems not alone from legislative power but is inherent
in executive power to control foreign affairs of nation, and courts have no power not expressly granted by Congress in
exclusion cases. Ahrens v. Rojas, C.A.5 (Fla.) 1961, 292 F.2d 406.
The exclusion of aliens is an inherent attribute of sovereignty exercisable on conditions and terms agreeable to the
sovereign's will only. U.S. ex rel. Frisch v. Miller, C.A.5 (Fla.) 1950, 181 F.2d 360.
"It has been repeatedly held that 'the right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain
conditions, in war or in peace,' is 'an inherent and inalienable right of every sovereign and independent nation, essential to its
safety, its independence and its welfare;' that this 'power to exclude and to expel aliens, being a power affecting international
relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress, and
to be executed by the executive authority according to the regulations so established, except so far as the judicial department
has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene.' " Colyer v.
Skeffington, D.C.Mass.1920, 265 F. 17, 18 Ohio Law Rep. 241, reversed on other grounds 277 F. 129.
Authority to control immigration and to admit or exclude aliens is vested solely in federal government. Gannet Corp. v.
Stevens, D.C.Virgin Islands 1968, 282 F.Supp. 437.
Every sovereign nation has power, inherent in its sovereignty and essential to its self-preservation, to forbid entrance of
foreigners within its dominions or admit them only in such cases and upon such conditions as it may see fit to prescribe.
Williams v. Kennedy, D.C.N.J.1962, 209 F.Supp. 282.
Power of United States to exclude aliens is a fundamental element of sovereignty, emanating not only from legislative
power but also from inherent power of executive to control foreign affairs. Savelis v. Vlachos, E.D.Va.1955, 137 F.Supp.
389, affirmed 248 F.2d 729.
Subsec. (a)(28)(C) of this section making membership in any section, subsidiary, branch, affiliate or subdivision of the
Communist Party by an alien after entry a ground for deportation is not unconstitutional, even as applied to alien whose
membership in such organization had terminated before enactment of section, since resident aliens remain subject to plenary
power of Congress to expel them under sovereign right to determine what non-citizens shall be permitted to remain within
the country. Corona v. Landon, S.D.Cal.1953, 111 F.Supp. 191.
The powers of the United States to exclude aliens, to regulate their admission, to prescribe the terms and conditions on
which they may remain and to provide for their deportation are plenary powers inherent in the sovereignty and essential to
the self-preservation of the United States as an independent nation. Zacharias v. McGrath, D.C.D.C.1952, 105 F.Supp. 421.
United States in its sovereign capacity has right to determine who shall be admitted to its borders or remain therein and
who shall be refused admission. Ex parte Kurth, S.D.Cal.1939, 28 F.Supp. 258, appeal dismissed 106 F.2d 1003.
United States may exclude any alien for any reason whatsoever: because government does not like alien's political or social
ideas, or because he belongs to groups which are likely to become public charge, or for other similar reasons. U.S. v. Parson,
S.D.Cal.1938, 22 F.Supp. 149.
United States had right to define conditions under which aliens could remain within its territory and to deport those who
did not care to comply with such conditions. In re Saderquist, D.C.Me.1935, 11 F.Supp. 525, affirmed 83 F.2d 890.
4. ---- Legislative power, constitutionality
Where to draw the line in providing relief from various immigration restrictions which would otherwise hinder
reunification of families is a policy question within Congress' exclusive province; however, this is not to say that the
government's power in the area is never subject to judicial review. Fiallo v. Bell, U.S.N.Y.1977, 97 S.Ct. 1473, 430 U.S. 787,
52 L.Ed.2d 50.
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Congress has exceptionally broad power to determine which classes of aliens may lawfully enter the country. Fiallo v. Bell,
U.S.N.Y.1977, 97 S.Ct. 1473, 430 U.S. 787, 52 L.Ed.2d 50.
Congress has plenary power to make rules for admission of aliens and to exclude those who possess characteristics which
Congress has forbidden. Boutilier v. Immigration and Naturalization Service, U.S.N.Y.1967, 87 S.Ct. 1563, 387 U.S. 118, 18
L.Ed.2d 661.
Congress may exclude aliens altogether or prescribe terms and conditions upon which they may come into or remain in this
country. Fok Young Yo v. U.S., U.S.Cal.1902, 22 S.Ct. 686, 185 U.S. 296, 46 L.Ed. 917. See, also, Lapina v. Williams,
N.Y.1914, 34 S.Ct. 196, 232 U.S. 78, 58 L.Ed. 515; Keller v. U.S., Ill.1909, 29 S.Ct. 470, 213 U.S. 138, 53 L.Ed. 737, 16
Ann.Cas. 1066; U.S. ex rel. Turner v. Williams, N.Y.1904, 24 S.Ct. 719, 194 U.S. 279, 48 L.Ed. 979; U.S. ex rel. Ciccerelli
v. Curran, C.C.A.N.Y.1926, 12 F.2d 394; The Nanking, C.C.A.Hawaii 1923, 290 F. 769; Lauria v. U.S., C.C.A.N.Y.1921,
271 F. 261, certiorari denied 42 S.Ct. 48, 257 U.S. 635, 66 L.Ed. 408; Ex parte Gin Kato, D.C.Wash.1920, 270 F. 243; Akira
Ono v. U.S., C.C.A.Cal.1920, 267 F. 359; Ex parte Pouliot, D.C.Wash.1912, 196 F. 437; Prentis v. Cosmas, Ill.1912, 196 F.
372, 116 C.C.A. 419; U.S. v. Krsteff, D.C.Ill.1911, 185 F. 201; Ex parte Gouyet, D.C.Mont.1909, 175 F. 230; U.S. v. Chew
Cheong, D.C.Cal.1894, 61 F. 200;1907, 26 Op.Atty.Gen. 411; 1907, 26 Op.Atty.Gen. 180; 1899, 22 Op.Atty.Gen. 353.
Right of permanent resident alien to remain in this country is not a "fundamental right," and thus the Service has not
violated such an alien's equal protection rights if it has a rational basis for its action in connection with deportation.
Castillo-Felix v. Immigration & Naturalization Service, C.A.9 1979, 601 F.2d 459.
Congress has power to determine conditions under which aliens may enter and remain in United States, even though
conditions may impose certain amount of hardship on them and their children. Mendez v. Major, C.A.8 (Mo.) 1965, 340 F.2d
128.
The Congress of the United States could, on the basis of the findings in this section with reference to the nature and
objectives of the Communist Party of the United States, constitutionally designate the Communist Party as an organization
which advocates the overthrow of the government by force and violence, thereby making an alien who affiliates with such
party subject to deportation. Quattrone v. Nicolls, C.A.1 (Mass.) 1954, 210 F.2d 513, certiorari denied 74 S.Ct. 786, 347 U.S.
976, 98 L.Ed. 1116.
The power of Congress to deny admission to aliens is absolute, and therefore there need be no limitations on terms of
delegation of legislative power concerning aliens. U.S. ex rel. Knauff v. Watkins, C.A.2 (N.Y.) 1949, 173 F.2d 599, certiorari
granted 69 S.Ct. 941, 336 U.S. 966, 93 L.Ed. 1117, affirmed 70 S.Ct. 309, 338 U.S. 537, 94 L.Ed. 317.
Congress has power, through legislation on matters exclusively within its control, to impose appropriate obligations, and to
authorize their enforcement by reasonable money penalties, and to give administrative officers power to enforce such
penalties, without necessity of invoking judicial power. Navigazione Libera Triestina v. U.S., C.C.A.9 (Wash.) 1929, 36 F.2d
631.
Power of Congress to exclude alien relatives of citizen is not open to doubt. White v. Kwock Sue Lum, C.C.A.9 (Cal.)
1923, 291 F. 732, certiorari denied 44 S.Ct. 136, 263 U.S. 715, 68 L.Ed. 521.
"It has been settled by repeated decisions that Congress has power to exclude any and all aliens from the United States; to
prescribe the terms and conditions on which they may come in or on which they may remain after having been admitted; to
establish the regulations for deporting such aliens as have entered in violation of law, or who are here in violation of law; and
to commit the enforcing of such laws and regulations to executive officers." In re Kosopud, N.D.Ohio 1920, 272 F. 330.
Power of Congress to prohibit second or later entrance of aliens and power originally to exclude them are derived from
same source and are but parts of one and same power. Frick v. Lewis, C.C.A.6 (Mich.) 1912, 195 F. 693, 115 C.C.A. 493,
affirmed 34 S.Ct. 488, 233 U.S. 291, 58 L.Ed. 967.
Granting of control over aliens for prescribed period in executive department to enforce national policy as to immigration
was within power of Congress. Prentis v. Stathakos, C.C.A.7 (Ill.) 1911, 192 F. 469, 112 C.C.A. 607.
Act Feb. 26, 1885, prohibiting importation of aliens under contract to perform labor within United States, was within
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power of Congress to regulate commerce with foreign nations, and constitutional. U.S. v. Craig, C.C.E.D.Mich.1886, 28 F.
795. See, also, In re Florio, C.C.N.Y.1890, 43 F. 114.
Equal protection clause was violated by statute making excludable criminal aliens eligible for admission but prohibiting
deportable aliens from remaining. De Sousa v. Reno, E.D.Pa.1998, 30 F.Supp.2d 844.
Congress can establish classifications which result in the granting of benefits to one group of individuals and their denial to
another; unless the immigration laws in question are wholly devoid of any conceivable rational purpose or are fundamentally
aimed at achieving a goal unrelated to the regulation of immigration, they are not unconstitutional encroachments on the right
to equal protection of the laws. Fiallo v. Levi, E.D.N.Y.1975, 406 F.Supp. 162, probable jurisdiction noted 96 S.Ct. 2622,
426 U.S. 919, 49 L.Ed.2d 371, affirmed 97 S.Ct. 1473, 430 U.S. 787, 52 L.Ed.2d 50.
Regulating the admission of aliens who are the spouses, parents and children of American citizens and permanent residents
is a perfectly proper exercise of the Congressional responsibility for admitting into the country those individuals who will be
desirable additions to the populace. Fiallo v. Levi, E.D.N.Y.1975, 406 F.Supp. 162, probable jurisdiction noted 96 S.Ct.
2622, 426 U.S. 919, 49 L.Ed.2d 371, affirmed 97 S.Ct. 1473, 430 U.S. 787, 52 L.Ed.2d 50.
Congress' power to make rules for the admission and expulsion of aliens is exceptionally broad. Fiallo v. Levi,
E.D.N.Y.1975, 406 F.Supp. 162, probable jurisdiction noted 96 S.Ct. 2622, 426 U.S. 919, 49 L.Ed.2d 371, affirmed 97 S.Ct.
1473, 430 U.S. 787, 52 L.Ed.2d 50.
Congress may in exercise of power in connection with immigration and naturalization of aliens exclude aliens from United
States, impose conditions of entry or reentry, and regulate their conduct and fix their rights while in United States.
Cermeno-Cerna v. Farrell, C.D.Cal.1968, 291 F.Supp. 521.
Congress has constitutional legislative power to deny aliens admission to this country, to allow them to enter and remain,
and to prescribe terms and conditions upon which they may enter or be required to depart. Lechich v. Rinaldi, D.C.N.J.1965,
246 F.Supp. 675.
Power to legislate in area of admission of aliens to the United States, including power to deport aliens, derives from the
constitutional power of Congress to regulate foreign commerce. Williams v. Kennedy, D.C.N.J.1962, 209 F.Supp. 282.
Alien who has been granted temporary parole under subsection (d)(5) of this section has no rights derived from
Constitution, but solely those rights and privileges which Congress ought to confer. Application of Paktorovics,
S.D.N.Y.1957, 156 F.Supp. 813, reversed on other grounds 260 F.2d 610.
It is within power of Congress to prescribe conditions on which aliens may be permitted to enter the United States. U.S. ex
rel. Mavrokefalus v. Murff, D.C.Md.1950, 94 F.Supp. 643.
Congress may exclude aliens from the United States, prescribe the conditions under which they may enter, provide for their
supervision, regulate their conduct, and fix their rights while in the United States. U.S. v. Frederick, S.D.Tex.1943, 50
F.Supp. 769, affirmed 146 F.2d 488, certiorari denied 65 S.Ct. 866, 324 U.S. 861, 89 L.Ed. 1418.
5. ---- Executive power, constitutionality
Statute under which Attorney General could not waive certain deportation orders with respect to lawful permanent
residents (LPRs), but could do so with respect to non-LPRs, did not violate equal protection principles, inasmuch as such
distinction had rational basis; Congress could have reasoned that aggravated felon LPRs posed higher risk of recidivism than
illegal aliens, and eliminating availability of relief for LPRs would prevent LPR from applying to adjust status while still
within United States, which would subvert Congress' intent to make such aliens immediately removable. Taniguchi v.
Schultz, C.A.9 2002, 303 F.3d 950, as amended.
Section of Antiterrorism and Effective Death Penalty Act (AEDPA), as interpreted by Board of Immigration Appeals
(BIA) to deny discretionary waivers of inadmissibility to deportable but not to excludable aliens, did not violate equal
protection rights of deportable alien; Congress could have rationally decided to encourage criminal aliens to leave the country
by offering incentive of potential waiver of removal upon seeking reentry. DeSousa v. Reno, C.A.3 (Pa.) 1999, 190 F.3d 175.
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President of the United States has considerable responsibility over foreign affairs, treaty negotiations, and over admissibility
of aliens, and if he decides it would be in interest of United States to do so, President may impose any conditions on entry of
aliens that he may deem appropriate. Mow Sun Wong v. Campbell, C.A.9 (Cal.) 1980, 626 F.2d 739, certiorari denied 101
S.Ct. 1419, 450 U.S. 959, 67 L.Ed.2d 384.
Encouragement of naturalization was governmental interest unique to federal government and was capable of supporting
degree of federal legislation beyond that permissible to states in discriminating against noncitizens, and such federal interest
was properly concern of President, as well as Congress. Mow Sun Wong v. Campbell, C.A.9 (Cal.) 1980, 626 F.2d 739,
Authority of Congress and executive branch to regulate admission and retention of aliens is virtually unrestricted. Francis
v. Immigration and Naturalization Service, C.A.2 1976, 532 F.2d 268.
Amendment to statute authorizing waiver of alien's inadmissibility for crime of moral turpitude, denying eligibility to
permanent resident aliens who had been convicted of aggravated felonies or who had not resided in United States for seven
consecutive years, did not violate equal protection component of Fifth Amendment's Due Process clause; distinction was
rational. Ponnapula v. Ashcroft, M.D.Pa.2002, 235 F.Supp.2d 397.
Indefinite detention of alien admitted subject to immigration parole did not violate Constitution. Gato-Herrera v. I.N.S.,
D.Nev.2001, 130 F.Supp.2d 1213.
The exclusion of alien is a fundamental act of sovereignty that inheres in the executive no less than in the legislative power,
and when Congress prescribes procedure for the admission of aliens it merely implements such inherent executive power. U
S ex rel Kwong Hai Chew v. Colding, E.D.N.Y.1951, 97 F.Supp. 592, affirmed 192 F.2d 1009, certiorari granted 72 S.Ct.
6. Construction
Cypriot national, who in 1976 applied for determination of his qualification under investor exemption from labor
certification requirement and whose application was denied in March of 1978, should have been accorded the law most
favorable to him, be it precedent or regulation, when the Immigration and Naturalization Service examined his application for
change of status from nonimmigrant student; request for exemption should be decided under either current or previous
precepts, whichever was the more favorable to the alien. Pistentis v. Immigration and Naturalization Service, C.A.3 1979,
611 F.2d 483.
Determination of Board of Immigration Appeals that it would observe in the Second Circuit interpretation given by the
court of appeals in that circuit to provision of this section with respect to discretionary relief from deportation, while
continuing to adhere to its own interpretation outside the Second Circuit, did not violate equal protection rights of alien
subjected to less favorable interpretation outside the Second Circuit, inasmuch as the discriminatory effect arising from such
decision resulted entirely from independence of the federal appellate court. Castillo-Felix v. Immigration & Naturalization
Service, C.A.9 1979, 601 F.2d 459.
Construction of subsection (a)(14) of this section providing for certification by Secretary of Labor as admissions
qualification for immigrant does not give the Secretary of Labor power to control the admission of an immigrant laborer;
however, alien who has registered certificate which has not been invalidated by the Secretary of Labor may not be deported
as an alien excludable for failure to have such a certificate, but, Attorney General is not prohibited from deporting such an
alien because he was excludable for other enumerated reasons, including an alien who obtained a labor certificate on the basis
of a material and willful misrepresentation. Castaneda-Gonzalez v. Immigration and Naturalization Service, C.A.D.C.1977,
564 F.2d 417, 183 U.S.App.D.C. 396.
In respect to this section providing "Aliens lawfully admitted for permanent residence who temporarily proceeded abroad
voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven
consecutive years, may be admitted in the discretion of the Attorney General . . .," the terms "lawfully admitted for
permanent residence" and "lawful unrelinquished domicile" do not bear the same meaning. Lok v. Immigration and
Naturalization Service, C.A.2 1977, 548 F.2d 37.
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Deportation statutes must be construed in favor of the alien. Lennon v. Immigration and Naturalization Service, C.A.2
1975, 527 F.2d 187.
In view of ambiguity in this section legislative history would be examined in construing it. Silverman v. Rogers, C.A.1
(Mass.) 1970, 437 F.2d 102, certiorari denied 91 S.Ct. 1667, 402 U.S. 983, 29 L.Ed.2d 149.
In resolving ambiguity as to whether Secretary of State has veto power over hardship applications for waiver of
requirement that alien return to his country for two years after completing education before being permitted to return to
United States, weight must be given to regulations which had consistently given Secretary a decisive voice in all waivers.
Silverman v. Rogers, C.A.1 (Mass.) 1970, 437 F.2d 102, certiorari denied 91 S.Ct. 1667, 402 U.S. 983, 29 L.Ed.2d 149.
Congress may adopt federal standard of bona fides of marriage for limited purpose of denying immigration priorities to
persons whose marriages do not meet that standard, and that standard embodied in congressional understanding of terms
"marriage" or "spouse" as they appear in immigration statutes is relevant standard to apply in exclusion or deportation
proceedings. U. S. v. Diogo, C.A.2 (N.Y.) 1963, 320 F.2d 898.
The Court of Appeals was bound to construe former 136 of this title in the light of things as they existed when said
former 136 was passed. Bermann v. Reimer, C.C.A.2 (N.Y.) 1941, 123 F.2d 331.
Statutory restrictions on immigration, like all other statutes, are if possible to be construed in accordance with spirit as well
as within letter of Constitution, including its declaration for freedom of speech, press, and assemblage. Colyer v. Skeffington,
D.C.Mass.1920, 265 F. 17, 18 Ohio Law Rep. 241, reversed on other grounds 277 F. 129.
Immigration statutes should be strictly construed. Redfern v. Halpert, C.C.A.5 (La.) 1911, 186 F. 150, 108 C.C.A. 262.
Act of 1907 must be construed with reference to objects which Congress had in view and evils sought to be remedied. Haw
Moy v. North, C.C.A.9 (Cal.) 1910, 183 F. 89, 105 C.C.A. 381, certiorari denied 32 S.Ct. 522, 223 U.S. 717, 56 L.Ed. 628.
Immigration laws, like all others, must be given sensible construction having reference to their purpose, and, as so
construed, they apply only to such aliens as enter or are brought to this country with intention that they shall become
residents thereof. U.S. v. Burke, C.C.S.D.Ala.1899, 99 F. 895.
Subsection (d)(5) of this section under which Hungarian refugees were granted permanent parole should be construed in
light of policy of providing permanent resettlement for victims of Communist aggression, not as making them mere
temporary transients. Application of Paktorovics, S.D.N.Y.1957, 156 F.Supp. 813, reversed on other grounds 260 F.2d 610.
Courts are inclined to construe statutes against contract alien laborers strictly, and seek to enforce spirit rather than letter of
such Acts. 1909, 27 Op.Atty.Gen. 479.
7. Other laws
Former 136 of this title and Quota Law Act May 19, 1921, 2(d), were both operative and should be construed as Acts in
pari materia. Commissioner of Immigration of Port of New York v. Gottlieb, U.S.N.Y.1924, 44 S.Ct. 528, 265 U.S. 310, 68
L.Ed. 1031.
Once alien applied for amnesty under Immigration Reform and Control Act, his status was adjusted to that of "lawful
temporary resident" and his presence in the United States constituted lawful unrelinquished domicile for purposes of
provision governing eligibility for discretionary relief from deportation. Castellon-Contreras v. I.N.S., C.A.7 1995, 45 F.3d
149.
Immigration and Nationality Act section which provides for discretionary relief from exclusion does not apply to
deportation under another Act section providing for deportation of an alien convicted of possessing or carrying an automatic
or semiautomatic weapon. Cabasug v. I.N.S., C.A.9 1988, 847 F.2d 1321.
Since chartered vessel to be used in installing platform on outer continental shelf was owned by foreign citizens,
foreign-ownership exception contained in section 1356 of Title 43 was applicable and thus vessel's crew was exempt from
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alien-certification requirements of this section. Piledrivers' Local Union No. 2375 v. Smith, C.A.9 (Cal.) 1982, 695 F.2d 390.
Alien was not deprived of benefit of forgiveness provision, subsec. (f) of section 1251 of this title, by fact that, because he
was excludable for having procured visa or other documentation by fraud, he was also excludable for not being in possession
of valid documentation, which was ordinarily a separate, independent ground for deportation, to which forgiveness provision
did not apply. Persaud v. Immigration and Naturalization Service, C.A.3 1976, 537 F.2d 776.
Alien was not excludable under this section rendering excludable a person who has been convicted of violation of law or
regulation relating to illicit possession of or traffic in narcotic drugs or marijuana where alien's conviction for possession of
cannabis resin was under British law which, in effect, made guilty knowledge irrelevant. Lennon v. Immigration and
Rights created by the United Nations Convention and Protocol relating to status of refugees are unaffected by limitations of
this section and section 1153 of this title relating to certification and quota systems for aliens seeking to enter United States
for purpose of performing labor. Pierre v. U. S., C.A.5 (Fla.) 1976, 525 F.2d 933.
Exchange program established by Mutual Educational and Cultural Exchange Act of 1961, 2451 et seq. of Title 22,
should not be used to circumvent the operation of the immigration laws. Glorioso v. Immigration and Naturalization Service,
C.A.7 (Ill.) 1967, 386 F.2d 664, certiorari denied 89 S.Ct. 153, 393 U.S. 868, 21 L.Ed.2d 136.
Mutual Educational and Cultural Exchange program was not an immigration program and should not be used to
circumvent operation of immigration laws. Velasco v. Immigration and Naturalization Service, C.A.7 (Ill.) 1967, 386 F.2d
Section 1105a of this title, providing for review by Court of Appeals of final orders of deportation, does not provide for
review of denial under this section of relief from two year foreign residence requirement for immigration visa. Samala v.
Immigration and Naturalization Service, C.A.5 (Fla.) 1964, 336 F.2d 7.
Preface of subsection (a) of this section that "Except as otherwise provided in this chapter," does not reach over to the
Savings Clause of the chapter, set out as a note under 1101 of this title, and override any provision of retroactivity as
related to an alien debarred from becoming a citizen of the United States by reason of having requested and received relief
from service in the armed forces of the United States, such general preface having no effect upon express provision therein
providing for exclusion of aliens because of their ineligibility to citizenship. Barber v. Rietmann, C.A.9 (Cal.) 1957, 248 F.2d
Former 223 of this title, providing that an alien although admissible under the provisions of the immigration laws other
than such section should not be admitted to the United States if he was excluded by any other provision of former chapter 6
of this title, repealed so far as aliens ineligible to citizenship were concerned, former 136 of this title, providing that aliens
returning after a temporary absence to an unrelinquished United States domicile of 7 consecutive years might be admitted in
the discretion of the Secretary of Labor. Sumio Madokoro v. Del Guercio, C.C.A.9 (Cal.) 1947, 160 F.2d 164, certiorari
denied 68 S.Ct. 68, 332 U.S. 764, 92 L.Ed. 349.
Former 136 of this title did not operate as repeal of R.S. 2169, formerly 359 of this title, in so far as it embraced
words "white persons." Court said: "Repeals by implication are not favored, and, unless there is manifest repugnancy
between the later and the former act, the former must remain operative. The argument is that, as Congress eliminated the
words 'white persons' from the Immigration Act, the act in question, it must be inferred that it intended to eliminate these
words also from section 2169 and thus to amend that section accordingly. This does not necessarily follow. Congress was
dealing with the subject of immigration, and not of naturalization, and it may well be that Congress designed thenceforth to
exclude Hindus from entry into the United States, and still permit such as were domiciled here the privilege of being
naturalized. In this light, I see no repugnancy between the act and section 2169 and other naturalization regulations." In re
Bhagat Singh Thind, D.C.Or.1920, 268 F. 683.
Act Hawaii April 17, 1911, authorizing Secretary of that Territory, when satisfied that person was born in Hawaiian
Islands, to issue to such person certificate showing that fact, which should be prima facie evidence thereof, could not affect
laws of United States in regard to immigration of aliens. Lee Leong v. U.S., C.C.A.9 (Hawai'i) 1914, 217 F. 48, 133 C.C.A.
34.
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Statute providing for excludability of alien who was excluded from admission, deported, and who again sought admission
within one year of the deportation, unless in certain circumstances the Attorney General consented to the alien's reapplying
for admission, did not entitle alien, who was excluded from admission and deported, to reenter the United States with
impunity after the expiration of the one-year period, and thus, exception under statute governing the offense of reentry by a
deported alien, for an alien who was not required to obtain advance consent for reentry, did not apply to such alien in
prosecution under the latter statute. U.S. v. Morales-Puga, S.D.Tex.2002, 187 F.Supp.2d 685.
In reviewing district director's letters denying excludable alien's request for parole, court must consider whether district
director made bona fide decision that continued detention would serve public interest. Li v. Greene, D.Colo.1991, 767
F.Supp. 1087.
Subsec. (a)(14) of this section governing labor certification of aliens did not provide clear and convincing evidence of
legislative intent to foreclose alien's right to judicial review under section 702 of Title 5 of labor certification denial. Gladysz
v. Donovan, N.D.Ill.1984, 595 F.Supp. 50.
This section prohibiting granting of labor certification if there are available American workers and employment of aliens
will adversely affect working conditions of American workers and regulation providing that prospective employment
adversely affects American workers' working conditions if it involves any discrimination are applicable regardless of the
number of persons employed by employer seeking the alien employment certification, unlike the Civil Rights Act, section
2000e of Title 42, which applies only to employers who have fifteen or more employees. Witt v. Secretary of Labor,
D.C.Me.1975, 397 F.Supp. 673.
Section 1101 of this title describing nonimmigrant alien as one temporarily coming to United States to perform temporary
services of labor, if unemployed persons capable of performing such service or labor cannot be found within United States,
and this section making such class of aliens ineligible to receive visas and excluding them from admission into United States
did not authorize, impliedly or otherwise, private cause of action against persons employing such aliens by domestic farm
workers and workers employed in agriculturally-related industries who complained that they were being deprived of
employment by defendants' employment of "illegal entrants" into United States. Chavez v. Freshpict Foods, Inc.,
D.C.Colo.1971, 322 F.Supp. 146, affirmed 456 F.2d 890, certiorari denied 93 S.Ct. 535, 409 U.S. 1042, 34 L.Ed.2d 492.
Aliens who sought admission for permanent residence as displaced persons were not outside scope of former 136 of this
title governing "otherwise inadmissible aliens" applying for temporary admission on theory that they were not within classes
described in former 203 of this title defining nonimmigrants or within excludable classes set forth in said former 136. U
S ex rel Hadrosek v. Shaughnessy, S.D.N.Y.1951, 101 F.Supp. 432.
Former 137, 155, 156a and 451 to 460 of this title and former 9 to 13 of Title 18 had to be liberally construed so as to
accomplish the legislative purpose of safeguarding the security of the United States. U. S. v. Gancy, D.C.Minn.1944, 54
F.Supp. 755, affirmed 149 F.2d 788, certiorari denied 66 S.Ct. 166, 326 U.S. 767, 90 L.Ed. 463, rehearing denied 66 S.Ct.
229, 326 U.S. 810, 90 L.Ed. 495.
Illiterate aliens who would otherwise be eligible for admission to this country on visas allocated under sections 1152 and
1153 of this title, may not avoid the literacy requirement of subsec. (a)(25) of this section simply by their being accompanied
by a child who is under the age of 16, if that child's own eligibility for admission depends upon that of his or her parents.
1981 (Counsel-Inf.Op.) 5 Op.O.L.C. 367.
8. Retroactive effect of section
Provisions of Antiterrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) precluding alien who was removable because of conviction for aggravated felony from applying
for discretionary relief from deportation did not apply retroactively to alien who pled guilty to sale of controlled substance
prior to statutes' enactment. I.N.S. v. St. Cyr, U.S.2001, 121 S.Ct. 2271, 533 U.S. 289, 150 L.Ed.2d 347.
Provision of Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) repealing discretionary waivers of
deportation, which had been available to aliens who had not committed aggravated felonies for which they had served terms
of five years, did not have impermissible retroactive effect on aliens who had been convicted for aggravated felonies at trial
prior to such repeal; aliens could not show that they altered their conduct in reliance on availability of discretionary relief.
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Rankine v. Reno, C.A.2 (N.Y.) 2003, 319 F.3d 93.

Provision of Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), repealing statute providing for
discretionary waiver of deportation, could be retroactively applied to alien convicted at trial of aggravated felony prior to
enactment of IIRIRA; repeal had no retroactive effect on alien in that he did not go to trial in reliance upon availability of
such relief, he made no decision that adversely affected his immigration status, and fact that his conviction was not
deportable offense at time of sentencing, but later became so after IIRIRA was enacted, did not cause repeal to operate
retroactively. Chambers v. Reno, C.A.4 (Md.) 2002, 307 F.3d 284.
For the purposes of the Immigration and Nationality Act (INA) as amended by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), alien's "conviction" occurred not when he was tried and found guilty by a
jury in federal district court before IIRIRA's effective date, but rather, when the district court imposed sentence, after
IIRIRA's effective date, and thus, IIRIRA's repeal of waiver of deportation provision applied to alien and barred him from
eligibility for such relief. Perez v. Elwood, C.A.3 (Pa.) 2002, 294 F.3d 552.
Section of Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) that required alien applying for
discretionary waiver of inadmissibility to show extreme hardship and that introduced jurisdictional bar to review of Attorney
General's discretionary decisions applied to case of alien who was inadmissible due to his attempt to use fraudulently
obtained documents to obtain passport, which was pending when IIRIRA was enacted; amendment did not have
impermissible retroactive effect. Cervantes-Gonzales v. I.N.S., C.A.9 2001, 244 F.3d 1001.
Provision of Antiterrorism and Effective Death Penalty Act (AEDPA) which makes aliens convicted of certain specified
crimes ineligible for discretionary relief through waiver of deportation applied to lawful resident alien who had been
convicted after AEDPA of crime within scope of provision, based on acts occurring prior to AEDPA's effective date;
application of provision was not an impermissible retroactive application, as loss of a discretionary relief hearing, while a
hardship, did not impose new legal consequences on alien. Domond v. U.S. I.N.S., C.A.2 (Conn.) 2001, 244 F.3d 81.
Anti-Terrorism and Effective Death Penalty Act (AEDPA) section, providing that alien who is deportable by reason of
having committed aggravated felony is ineligible to seek waiver of deportation, applied to alien who had been convicted of
aggravated felony prior to AEDPA's effective date, where alien had not been placed in deportation proceedings until after
AEDPA's effective date, and he had pled not guilty and had exercised his right to jury trial. U.S. v. Herrera-Blanco, C.A.9
(Alaska) 2000, 232 F.3d 715.
Alien's due process rights were violated by retroactive application of provision of Antiterrorism and Effective Death
Penalty Act (AEDPA) precluding eligibility for discretionary waivers of deportation to individuals convicted of aggravated
felonies, in light of significant evidence that availability of waiver influenced his decision, prior to AEDPA's enactment, to
plead guilty to aggravated felony, including fact that he received virtually the longest sentence he could have received while
retaining eligibility for discretionary waiver, fact that sentence was considerable downward departure, and fact that there
were lengthy negotiations between alien and government. Jideonwo v. I.N.S., C.A.7 2000, 224 F.3d 692.
Antiterrorism and Effective Death Penalty Act (AEDPA) section expanding category of criminal convictions rendering
aliens ineligible for discretionary relief from deportation should not be applied retroactively to deportation cases pending on
date of AEDPA's enactment. Innab v. Reno, C.A.11 (Ga.) 2000, 204 F.3d 1318.
As a general rule, the Antiterrorism and Effective Death Penalty Act (AEDPA) section that eliminates discretionary relief
from deportation for aliens convicted of most drug-related crimes does not apply to pre-enactment guilty or nolo contendere
pleas to otherwise qualifying offenses; however, it is possible that, under a specific factual showing that a plea was entered in
reliance on the availability of discretionary waiver, an alien may be able to establish that the AEDPA section has an
impermissible retroactive application as to him or her. Magana-Pizano v. I.N.S., C.A.9 1999, 200 F.3d 603.
Section of Antiterrorism and Effective Death Penalty Act (AEDPA) barring certain aliens from seeking waiver of
deportation did not apply retroactively to preclude review of pending application to Attorney General for discretionary relief
from deportation. Haio v. I.N.S., C.A.6 (Mich.) 1999, 199 F.3d 302.
Section of Antiterrorism and Effective Death Penalty Act (AEDPA) rendering aliens convicted of certain crimes ineligible
for discretionary waivers did not apply to case pending on date AEDPA was enacted; such section contained no statement
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regarding retroactivity, in contrast to other provisions of AEDPA in which Congress explicitly stated its intention that
application be retroactive. Pak v. Reno, C.A.6 (Ohio) 1999, 196 F.3d 666.
Alien's due process rights were not violated by retroactive application of section of Antiterrorism and Effective Death
Penalty Act (AEDPA) that added certain drug offenses to list of deportable offenses which made criminal aliens ineligible for
discretionary waivers of deportation, where alien contested deportability before immigration judge (IJ), and alien did not
have colorable defense to charges of deportability, in that he admitted he was an alien and government presented certified
copies showing he had been convicted of covered criminal offenses. Musto v. Perryman, C.A.7 (Ill.) 1999, 193 F.3d 888,
rehearing and rehearing en banc denied.
Section of Anti-terrorism and Effective Death Penalty Act (AEDPA), eliminating any discretion that Attorney General
previously had with respect to deportable aliens, did not apply retroactively to alien against whom deportation proceedings
had already been commenced on date of IIRIRA's enactment. Shah v. Reno, C.A.8 (Mo.) 1999, 184 F.3d 719, rehearing
denied.
Provision of Antiterrorism and Effective Death Penalty Act (AEDPA) that expanded category of criminal convictions that
would render an alien ineligible for waiver of deportation did not apply retroactively to cases pending on date of enactment,
since it was silent on question of retroactivity but several of AEDPA's other immigration provisions contained explicit
retroactivity language. Mayers v. U.S. Dept. of I.N.S., C.A.11 (Fla.) 1999, 175 F.3d 1289.
Section of Antiterrorism and Effective Death Penalty Act (AEDPA), adding drug offenses to list of deportable offenses that
made aliens ineligible for discretionary relief from Attorney General, did not apply to pending cases. Sandoval v. Reno,
C.A.3 (Pa.) 1999, 166 F.3d 225.
Application of aggravated felony statutory bar to discretionary relief from deportation to alien who had been convicted of
aggravated felony before effective date of statutory bar did not have retroactive effect; change merely withdrew previously
available form of discretionary relief from deportation without attaching additional consequences to his past criminal activity.
Scheidemann v. I.N.S., C.A.3 1996, 83 F.3d 1517.
Application of the aggravated felony bar to discretionary relief from deportation to pre-enactment convictions was not
retroactive; Congressional repeal of discretionary power to relieve alien from deportation did not attach any new legal
consequence to pre-enactment events. Samaniego-Meraz v. I.N.S., C.A.9 1995, 53 F.3d 254.
Immigration statute, stating that relief from deportation of permanent resident alien in discretion of Attorney General shall
not apply to alien convicted of one or more aggravated felonies who has served prison term of at least five years for those
felonies, applies retroactively. Giusto v. I.N.S., C.A.2 1993, 9 F.3d 8.
Provision of Antiterrorism and Effective Death Penalty Act (AEDPA) which made aliens convicted of certain specified
crimes ineligible for discretionary relief through waiver of deportation applied to alien who had pled guilty after enactment of
AEDPA to crime he committed before enactment of AEDPA; alien failed to allege that government intentionally delayed his
plea for purpose of eliminating his access to discretionary relief. Kang v. Reno, E.D.N.Y.2003, 2003 WL 272165.
Lawful permanent resident failed to show that he committed crime of attempted criminal sale of a controlled substance
before the Immigration and Nationality Act classified that offense as an "aggravated felony," and thus he was not entitled to
humanitarian relief from removal under international law purportedly requiring "compassionate" hearings prior to deporting
lawful permanent residents with family ties in the United States. Alvarez-Garcia v. U.S. I.N.S., S.D.N.Y.2002, 2002 WL
31798837.
Mere fact that alien, who is convicted of aggravated felony before enactment of Antiterrorism and Effective Death Penalty
Act (AEDPA) provision denying aggravated felon eligibility to apply for discretionary relief from deportation, is sentenced
to more than five years imprisonment does not bar her from applying for discretionary relief because the judge cannot rely on
how much time she will serve in prison, but consider only how much time she has served; moreover, the five-year clock does
not stop running once a prisoner first applies for discretionary relief, rather it continues to run until an Immigration Judge
issues a decision. Falconi v. I.N.S., E.D.N.Y.2002, 2002 WL 31961403.
Provision of Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) precluding alien who was removable
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because of conviction for aggravated felony from applying for discretionary relief from deportation did not apply
retroactively to alien who was convicted at trial prior to statute's effective date; alien had relied on settled expectations of
immigration laws in place at time he turned down plea bargain and decided to go to trial. Ponnapula v. Ashcroft,
M.D.Pa.2002, 235 F.Supp.2d 397.
Permanent resident alien who was subject of previously commenced deportation proceedings at time of repeal of section of
Immigration and Nationality Act (INA) entitling deportees to apply for discretionary waiver of deportation was entitled to
benefit of that section, as repealing legislation, Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), expressly barred such relief only to those whose deportation proceedings began after its enactment, even though
some of crimes forming basis for his deportation were retroactively reclassified by IIRIRA to aggravated felonies for which
discretionary waiver was not available. Small v. Ashcroft, S.D.N.Y.2002, 209 F.Supp.2d 294.
Alien who committed aggravated felony while law then in effect allowed discretionary waiver of deportation for aliens
deportable by reason of having committed an aggravated felony, but who was convicted of the aggravated felony in a jury
trial only after the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) eliminated such discretionary waivers,
was not eligible for discretionary waiver of deportation. Mohammed v. Reno, E.D.N.Y.2002, 205 F.Supp.2d 39, stay vacated
309 F.3d 95.
Ex post facto clause of Constitution did not bar the retroactive application of Immigration and Nationality Act (INA)
section under which deportation of alien, who had been convicted of manslaughter and related charges, was ordered. Reid v.
I.N.S., D.Mass.2002, 203 F.Supp.2d 47.
Since alien pleaded not guilty and went to trial and thus did not rely on the then-existing state of the law concerning
discretionary relief from deportation, retroactive application of section of Antiterrorism and Effective Death Penalty Act
(AEDPA) eliminating eligibility for discretionary relief for those aliens convicted of "aggravated felony" was not
constitutionally impermissible. Janvier v. I.N.S., E.D.Va.2001, 174 F.Supp.2d 430.
Retroactive application of statutory amendments eliminating discretionary waivers of exclusion or deportation for those
who had committed specified crimes did not act as additional consequence to criminal conduct, and thus applied to alien who
was convicted prior to enactment of amendments but did not become subject to deportation proceedings until after
amendments became effective. Vasquez v. Reno, D.Mass.2000, 97 F.Supp.2d 142, vacated 233 F.3d 688, certiorari denied
122 S.Ct. 43, 151 L.Ed.2d 15.
Retroactive application of Antiterrorism and Effective Death Penalty Act (AEDPA) to make alien, who pled guilty to a
crime before AEDPA's enactment date, ineligible for a discretionary waiver of deportation violated alien's due process rights;
AEDPA's elimination of alien's eligibility for discretionary waiver attached a new disability, in respect to transactions or
considerations already past, and offended principles of fair notice and respect for reasonable reliance and settled expectations.
Reverdes v. Reno, D.Mass.2000, 95 F.Supp.2d 22.
Alien whose criminal conduct pre-dated the enactment of Antiterrorism and Effective Death Penalty Act (AEDPA) and the
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was eligible for discretionary relief from
deportation; provisions eliminating discretionary relief from deportation could not be applied retroactively. Zgombic v.
Farquharson, D.Conn.2000, 89 F.Supp.2d 220.
Aliens whose criminal conduct took place prior to enactment of Antiterrorism and Effective Death Penalty Act (AEDPA)
and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) were not subject to provisions in AEDPA and
IIRIRA which enlarged ban on waivers of deportation; application of AEDPA and IIRIRA to aliens whose criminal conduct
predated those statutes' enactment would result in retroactive effect and AEDPA and IIRIRA did not clearly express
congressional intent to give statutes retroactive effect. Pena-Rosario v. Reno, E.D.N.Y.2000, 83 F.Supp.2d 349,
reconsideration denied 2000 WL 620207.
Retroactive application of Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) definition of
"aggravated felony" to alien's forgery and theft convictions, rendering him ineligible for discretionary relief from deportation
under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), was not unconstitutional; alien stated that
he never considered possible immigration consequences when pleading guilty to such offenses, indicating that he did not rely
on discretionary relief when pleading. Song v. I.N.S., C.D.Cal.2000, 82 F.Supp.2d 1121.
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Antiterrorism and Effective Death Penalty Act's (AEDPA) exclusion of aliens convicted of "aggravated felonies" from
eligibility for discretionary relief from deportation could not be applied retroactively to alien convicted prior to AEDPA;
retroactive application would implicate due process and ex post facto considerations, and would not only be contrary to
nation's obligations under the International Covenant on Civil and Political Rights (ICCPR), which it ratified, it would be a
violation of customary international human rights law, to which the United States was bound as a member of the community
of nations. Maria v. McElroy, E.D.N.Y.1999, 68 F.Supp.2d 206.
Antiterrorism and Effective Death Penalty Act's (AEDPA) elimination of eligibility for discretionary relief from
deportation for lawful permanent residents convicted of an enumerated offense did not apply retroactively to alien who pled
guilty after AEDPA's enactment. Pottinger v. Reno, E.D.N.Y.1999, 51 F.Supp.2d 349, affirmed 242 F.3d 367.
certain offenses did not apply retroactively to alien whose application for deportation of waiver was already pending when
AEDPA was enacted. Homayun v. Cravener, S.D.Tex.1999, 39 F.Supp.2d 837.
certain drug-related offenses applied retroactively to alien's application for deportation waiver, though alien's conviction on
which deportation was based occurred before enactment of AEDPA, where waiver application was filed after effective date
of AEDPA. Cedillo-Gonzalez v. Garcia, W.D.Tex.1999, 38 F.Supp.2d 479, amended in part, vacated in part 55 F.Supp.2d
653.
Provision of Antiterrorism and Effective Death Penalty Act (AEDPA) which rendered deportable aliens convicted of
certain offenses ineligible for discretionary relief from deportation did not apply retroactively to aliens whose applications for
relief were pending at the time AEDPA was enacted. Gutierrez-Perez v. Fasano, S.D.Cal.1999, 37 F.Supp.2d 1166.
Retroactive application of Antiterrorism and Effective Death Penalty Act (AEDPA) to preclude alien convicted of
controlled substance offense from applying for waiver of deportation did not violate alien's rights under due process clause;
deportation proceedings were initiated well after enactment of AEDPA, and alien could not claim expectation in granting of
waiver, as such relief was discretionary. Then v. I.N.S., D.N.J.1998, 37 F.Supp.2d 346.
Antiterrorism and Effective Death Penalty Act's (AEDPA) restriction on the availability of discretionary relief from
deportation could not be retroactively applied to resident alien whose deportation case was commenced before enactment of
AEDPA. Machado v. I.N.S., D.Mass.1999, 33 F.Supp.2d 88.
Anti-Terrorism and Effective Death Penalty Act (AEDPA) did not apply retroactively to criminal alien who filed
application for waiver of deportation before statute was enacted. Farquharson v. I.N.S., D.N.J.1999, 31 F.Supp.2d 403.
Attorney General permissibly construed statute in determining that section of Antiterrorism and Effective Death Penalty
Act (AEDPA) eliminating discretionary relief from deportation for criminal aliens bars relief to criminal aliens whose
convictions pre-date enactment of that section. De Sousa v. Reno, E.D.Pa.1998, 30 F.Supp.2d 844.
Provision of Anti-Terrorism and Effective Death Penalty Act (AEDPA) rendering aliens convicted of certain crimes
ineligible for waiver of deportation did not apply retroactively to permanent resident alien convicted of controlled substance
crime who was in deportation proceedings at time of AEDPA's enactment. Ranglin v. Reno, D.Mass.1998, 27 F.Supp.2d 262.
Any doubts regarding whether Congress plainly expressed its decision not to make Antiterrorism and Effective Death
Penalty Act (AEDPA) provision barring legal permanent residents convicted of certain crimes from seeking discretionary
waiver of deportation applicable to pre-Act conduct or events doubt must be resolved in favor of aliens, who are now on
brink of deportation based on government's misreading of applicability of that statutory provision. Mojica v. Reno,
E.D.N.Y.1997, 970 F.Supp. 130, affirmed in part, dismissed in part 157 F.3d 106, certiorari denied 119 S.Ct. 1141, 526 U.S.
1004, 143 L.Ed.2d 209, question certified 172 F.3d 39, certified question denied 705 N.E.2d 655, 682 N.Y.S.2d 663, 92
N.Y.2d 455, opinion after certified question declined 175 F.3d 287.
Application of Antiterrorism and Effective Death Penalty Act (AEDPA) to a defendant who had not been convicted of an
aggravated felony at the time AEDPA was passed, but subsequently became an aggravated felon, was not a prohibited
retroactive application of the statute, but was a straightforward prospective application of a statute. U.S. v.
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Villasenor-Martinez, C.A.9 (Cal.) 2001, 25 Fed.Appx. 557, 2001 WL 1646704, Unreported, certiorari denied 123 S.Ct. 323.
9. Purpose
Immigration and Nationality Act was promulgated to protect United States workers from foreign competition and to allow
United States employers to hire foreign workers when qualified United States workers are not available, but Act was not
intended to protect interests of foreign, self-employed entrepreneurs. Bulk Farms, Inc. v. Martin, C.A.9 (Cal.) 1992, 963 F.2d
1286.
Labor certification requirement was incorporated in Immigration and Nationality Act to prevent an influx of aliens entering
the United States for purpose of performing skilled or unskilled labor where the economy of individual localities is not
capable of absorbing them at the time they desire to enter the country. Kwan v. Donovan, C.A.9 (Cal.) 1985, 777 F.2d 479.
This chapter is designed to permit aliens capable of performing jobs for which American workers are not available to come
to this country, while protecting American workers from competition of aliens entering the United States to take jobs
American workers could fill. Yui Sing Tse v. Immigration and Naturalization Service, C.A.9 1979, 596 F.2d 831.
This section pertaining to discretionary waiver by the Attorney General of a ground for exclusion of an alien was enacted
by Congress to provide the Attorney General the flexibility and discretion to permit worthy aliens to continue their
relationships with family members in the United States despite a ground for exclusion. Lok v. Immigration and
General purpose of this section enumerating excludable aliens is to bar undesirable aliens from our shores. Lennon v.
Immigration and Naturalization Service, C.A.2 1975, 527 F.2d 187.
Subsection (a)(14) of this section relating to certification of alien to enter to perform skilled or unskilled labor has major
purpose of protecting American workers. Silva v. Secretary of Labor, C.A.1 (Mass.) 1975, 518 F.2d 301.
In enacting this section and section 1426 of this title making aliens who have lawfully obtained relief from military service
ineligible for citizenship and making aliens who have departed United States to avoid or evade service in armed forces
inadmissible, intention of Congress was to see that once alien faced induction into armed services he would have to choose
between either maintaining permanently his status as alien or serving in armed forces and securing right to become citizen
and permanent resident. Riva v. Mitchell, C.A.3 (N.J.) 1972, 460 F.2d 1121, certiorari denied 93 S.Ct. 1898, 411 U.S. 932,
36 L.Ed.2d 391.
Only purpose of subsection (a) of this section defining excludable classes of aliens, which said subsection relates to
applicability of said section to alien who leaves any of certain possessions of United States and who seeks to enter United
States, was to prevent excludable aliens from using entry into and residence in territorial possession as means of entry into
United States, U.S. ex rel. Alcantra v. Boyd, C.A.9 (Wash.) 1955, 222 F.2d 445.
General object of immigration laws was not only to prevent admission of undesirable and forbidden classes of aliens, but to
remove from this country all such aliens who might have succeeded in effecting entry. Haw Moy v. North, C.C.A.9 (Cal.)
1910, 183 F. 89, 105 C.C.A. 381, certiorari denied 32 S.Ct. 522, 223 U.S. 717, 56 L.Ed. 628.
Provision in Immigration and Nationality Act allowing certain aliens to apply for discretionary relief from deportation
provides second chance for aliens who have significant ties to United States; it takes into consideration family ties, duration
in United States, hardship to alien and family, service in United States Armed Forces, history of employment, existence of
property or business ties to United States, and evidence of rehabilitation. U.S. v. Vieira-Candelario, D.R.I.1992, 797 F.Supp.
117, affirmed 6 F.3d 12.
Purpose of this section providing that persons convicted of crimes involving moral turpitude were excludable aliens was to
keep persons who were likely to be undesirable residents or sojourners from being in United States. Knoetze v. U. S.,
S.D.Fla.1979, 472 F.Supp. 201, affirmed 634 F.2d 207, certiorari denied 102 S.Ct. 109, 454 U.S. 823, 70 L.Ed.2d 95.
Purpose of amendment to this section repealing privilege of Western Hemisphere parents of citizen children to obtain
priority status on consular waiting lists to become permanent legal residents was to remove, as quickly as possible, the
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disparities that existed in the immigration laws regarding admission of Western and Eastern Hemisphere immigrants and,
accordingly, sought to eliminate the benefits which a Western Hemisphere parent of a citizen child received; hence,
amendment does not apply prospectively only to parents of children born after its effective date. Martinez v. Bell,
S.D.N.Y.1979, 468 F.Supp. 719.
This section exempting the alien spouses of resident Americans from the labor certification requirement arguably seeks to
prevent the breakup of the nuclear family and to preclude the emotional and financial hardship which would otherwise befall
both marital partners. Pena v. Kissinger, S.D.N.Y.1976, 409 F.Supp. 1182.
One of Congress' primary goals in enacting this section prohibiting aliens from entering for purpose of performing labor
unless Secretary of Labor determines that there are not sufficient available American workers to perform such labor and that
employment of aliens will not adversely affect wages and working conditions of American workers similarly employed was
to protect American labor market and wages and working conditions of American workers. Witt v. Secretary of Labor,
D.C.Me.1975, 397 F.Supp. 673.
Congressional intent that alien studying in this country shall fulfill obligation to homeland to return there and use skills
learned to contribute to that country's development, before being admitted to permanent residence in the United States, was
not applicable to alien whose education was financed entirely by private sources. Yu v. Marshall, S.D.Tex.1970, 312 F.Supp.
229.
10. Law governing
Congress in making excludable an alien convicted of violation of any law or regulation relating to the illicit possession of
marijuana did not tend to impose excludable alien classification on person convicted under foreign law that makes guilty
knowledge irrelevant. Lennon v. Immigration and Naturalization Service, C.A.2 1975, 527 F.2d 187.
Standards to be applied in determining whether offense of which alien has been convicted was a misdemeanor or a felony,
for purposes of applying petty offense exception of this section, are those of United States law. Soetarto v. Immigration and
Where alien was eligible for status as permanent resident at time he first applied for such status but became ineligible by
virtue of change in law, new law would apply to proceeding on alien's application for status as permanent resident. Talanoa v.
Immigration and Naturalization Service, C.A.9 (Cal.) 1968, 397 F.2d 196.
United States law is applicable in determining whether a crime committed by an alien in another country is a misdemeanor
of the class which will preclude his admission. Giammario v. Hurney, C.A.3 (Pa.) 1962, 311 F.2d 285.
Section 31(c) of the Immigration Act of 1924 clearly implied that the right to admission of an alien arriving after July 1,
1924 was to be determined by the provisions of that Act. Flora v. Rustad, C.C.A.8 (Minn.) 1925, 8 F.2d 335.
International law did not apply to continued detention of excludable aliens by Attorney General, where executive
determined that domestic needs required continued detention of aliens. Tartabull v. Thornburgh, E.D.La.1990, 755 F.Supp.
145.
11. Exclusiveness of section
Former 136 of this title, by enumerating conditions upon which allowance to land could be denied, prohibited denial in
other cases. Gegiow v. Uhl, U.S.N.Y.1915, 36 S.Ct. 2, 239 U.S. 3, 60 L.Ed. 114. See, also, 1907, 26 Op.Atty.Gen. 180.
Court's power to admit alien was dependent wholly on statute. Stoma v. Commissioner of Immigration at New Orleans,
C.C.A.5 (La.) 1927, 18 F.2d 576.
Act Aug. 3, 1882 did not authorize detention of immigrant for purpose of being returned, unless, after examination, he
were found by commissioners to be "convict, lunatic, idiot, or person unable to take care of himself without becoming a
public charge." There was no authority to forbid final landing, except upon finding by commissioners of some one of those
four facts, and a report thereof to collector. Payment of passage money by foreign government was only evidence of inability
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and not necessarily conclusive, and upon traverse to return on habeas corpus, it being proved that commissioners had not
found or reported either of above statutory facts, and voted that person "be not allowed to land," was insufficient. In re
O'Sullivan, C.C.S.D.N.Y.1887, 31 F. 447.
12. Treaties
Provision of Jay Treaty 1794, Art. 3, 8 Stat. 117, relating to passing and repassing of citizens or subjects of Great Britain
and United States across Canadian border into respective territories and countries of two parties, being wholly promissory
and prospective, was brought to end by War of 1812, leaving contracting powers discharged from all obligations in respect
thereto. Karnuth v. U.S., on Petition of Albro, for Cook, U.S.N.Y.1929, 49 S.Ct. 274, 279 U.S. 231, 73 L.Ed. 677.
Under Act of 1891, treaty entered into with another country, providing that citizens of each country should have full liberty
to enter, travel, or reside in any part of territories of other contracting party, did not give citizens of other country within
prohibited classes designated by that Act full liberty to enter or reside, when treaty excepted from its operation any ordinance
or regulation relating to "police and public security." Kaoru Yamataya v. Fisher, U.S.Wash.1903, 23 S.Ct. 611, 189 U.S. 86,
47 L.Ed. 721.
Provisions of Immigration Act 1924, applicable to Chinese aliens, abrogated provisions of treaty with China only as to
provisions thereof inconsistent with the Act. Haff v. Yung Poy, C.C.A.9 (Cal.) 1933, 68 F.2d 203.
Alien's right to admission to United States was governed by Immigration Act and not by prior treaty. Tatsumi Masuda v.
Nagle, C.C.A.9 (Cal.) 1932, 55 F.2d 623.
Former 201 et seq. of this title prevailed over treaty of 1871 with Italy as far as there was conflict. In re Pezzi,
S.D.Cal.1928, 29 F.2d 999.
Prussian Treaty of May 1, 1828, and immigration laws regulated right of German citizen of Prussia to enter and sojourn in
United States. Hempel v. Weedin, D.C.Wash.1928, 23 F.2d 949, reversed on other grounds 28 F.2d 603.
Immigration Act and Prussian Treaty of May 1, 1828, should, if possible, be construed to give effect to both. Hempel v.
Weedin, D.C.Wash.1928, 23 F.2d 949, reversed on other grounds 28 F.2d 603.
Provision in Article 23 of treaty of commerce and navigation between Italy and United States of April 29, 1871, 17 Stat.
856, giving citizens of either party free access to courts of justice of other with right to employ counsel in all trials at law, had
no application to examination by board of immigration inspectors of incoming Italian aliens with respect to their
qualifications. U.S. ex rel. Buccino v. Williams, C.C.S.D.N.Y.1911, 190 F. 897.
13. Executive orders
Executive Order authorizing the Coast Guard to interdict aliens on the high seas, and to return them to their country of
origin as long as they did not qualify for refugee status, contemplated procedure that would quickly screen aliens on board
interdicted boats and did not create private cause of action in favor of aliens improperly returned. Haitian Refugee Center,
Inc. v. Baker, C.A.11 (Fla.) 1992, 953 F.2d 1498, certiorari denied 112 S.Ct. 1245, 502 U.S. 1122, 117 L.Ed.2d 477.
14. Administrative regulations
Neither Department of Defense regulations nor Interagency Agreement require the Department of Defense, as an
"interested agency" making application for continued presence of an exchange visitor, to respect the position of the
sponsoring agency which originally brought in the exchange visitor, and the Department may proceed without its
concurrence. Secretary of Defense v. Bong, C.A.D.C.1969, 410 F.2d 252, 133 U.S.App.D.C. 264.
15. State laws
California Labor Code provision, West's Ann.Cal. Labor Code, 2805, 2805(a), prohibiting employer from knowingly
employing alien who was not entitled to lawful residence in United States if such employment would have adverse effect on
lawful resident workers was not unconstitutional as regulation of immigration or as being preempted under supremacy clause
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Page 106
by this subchapter. DeCanas v. Bica, U.S.Cal.1976, 96 S.Ct. 933, 424 U.S. 351, 47 L.Ed.2d 43.
Fact that aliens are subject of state statute does not render it a prohibited regulation of immigration and, even if such local
regulation has some purely speculative and indirect impact in immigration, it does not thereby become constitutionally
proscribed regulation of immigration that Congress itself would be powerless to authorize or approve. DeCanas v. Bica,
U.S.Cal.1976, 96 S.Ct. 933, 424 U.S. 351, 47 L.Ed.2d 43.
State laws restricting eligibility of aliens for welfare benefits merely because of alienage conflict with overriding national
policies in area constitutionally entrusted to federal government. Graham v. Richardson, U.S.Ariz.1971, 91 S.Ct. 1848, 403
U.S. 365, 29 L.Ed.2d 534.
Under laws of states encompassed by circuit, larceny is the intentional and nonconsensual taking of property from its
owner, this last term being broadly defined as any entity with a superior possessory interest. Chiaramonte v. Immigration and
Whatever vicissitudes of state laws of larceny, it is clear that for immigration purposes, a crime of moral turpitude is
involved when one carries away property knowing it to belong to another. Chiaramonte v. Immigration and Naturalization
Service, C.A.2 1980, 626 F.2d 1093.
In area of immigration, the national government has to a great extent preempted the field of legislation, and to extent that
state laws and regulations are inconsistent therewith the latter cannot stand. Younus v. Shabat, N.D.Ill.1971, 336 F.Supp.
1137, affirmed.
State could not impose conditions on Chinese immigrants not imposed on other immigrants. In re Ah Fong, C.C.Cal.1874,
1 F.Cas. 213, 3 Sawy. 144, 3 Am. Law Rec. 403, 7 Chi.Leg.N. 17, No. 102.
If discharged employees were, as asserted by employer, nonimmigrant aliens who had come into the country under visas
which did not permit employment, order of Labor Relations Board which directed their reinstatement contravened federal
policy. New York State Labor Relations Bd. v. Le Crepe--Number 3 Ltd., N.Y.Sup.1973, 355 N.Y.S.2d 515, 78 Misc.2d 171.
Laws N.Y.1882, c. 145, providing for raising by commissioners of emigration of fund for expenses of inspection and care
of alien passengers, by contract with carriers of emigrants by vessel to city of New York, was not enforceable, as subject was
solely within jurisdiction of Congress; and commissioners were not liable to city of New York for care and maintenance by
city of immigrants arriving at that port, where it was not shown that there was any existing fund out of which payment
therefor could be made by commissioners. Mayor, Etc., of the City of New York v. Commissioners of Emigration,
N.Y.Sup.1891, 13 N.Y.S. 751, 59 Hun 624, 36 N.Y.St.Rep. 721.
State could exclude from its limits, paupers, vagabonds, and criminals, or sick, diseased, infirm, and disabled persons who
were likely to become public charge, or could admit them only on such terms as would prevent state from being burdened
with their support. State v. The S. S. Constitution, Cal.1872, 42 Cal. 578, 10 Am.Rep. 303.
State could not, even in absence of legislation of Congress upon subject, exclude from its limits or admit within its limits
upon terms, persons in full possession of their faculties, sound in body, and neither paupers, vagabonds, nor criminals, and in
all respects competent to earn livelihood. State v. The S. S. Constitution, Cal.1872, 42 Cal. 578, 10 Am.Rep. 303.
Immigration, either temporary or permanent, is essential ingredient of intercourse and traffic, and power to regulate
commerce lodged by Constitution in Federal government implied power to regulate both as to persons and as to goods, and
its exercise could not be interfered with by any state. Lin Sing v. Washburn, Cal.1862, 20 Cal. 534.
Louisiana immigration law of Mar. 1869, 2, re-enacted in Rev.St.La.1870, 1722, requiring master to report list of
passengers landed to commissioners of immigration, was not in conflict with U.S.C.A. Constitution which gave to Congress
exclusive right to regulate commerce with foreign nations and among several states and with Indian tribes, but was said to be
simply police regulation adopted by state for protection of its own citizens. Immigration Com'rs v. Brandt, 1874, 26 La.Ann.
29.
No action by any state or by any officer thereof could operate to impair or nullify effect of law of Congress duly enacted
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8 U.S.C.A. 1182
Page 107
upon subject of immigration. 1907, 26 Op.Atty.Gen. 180.

16. Citizens
Native born citizen could not be excluded. U.S. ex rel. Baglivo v. Day, D.C.N.Y.1928, 28 F.2d 44.
The immigration laws refer to persons, owing allegiance to foreign government, and do not apply to citizens owing
permanent allegiance to this country. U.S. v. Tod, C.C.A.2 (N.Y.) 1922, 285 F. 523.
Where plaintiff establishes without dispute his birth and citizenship in the United States on a prima facie basis and he
refused to answer questions concerning the reasons for his departure to Mexico and his avoidance of services in the Armed
Forces such refusal could not be made the basis of excluding the plaintiff as an alien on return from Mexico and the plaintiff
was entitled to remain in the United States absent legal steps to deport him. Bean v. Barber, N.D.Cal.1958, 163 F.Supp. 111.
Where petitioner, who did not have any evidence as to his birth, was and had been a United States resident for over forty
years, presumption was that petitioner was a citizen. U.S. ex rel. Leong v. O'Rourke, W.D.Mo.1954, 125 F.Supp. 769.
17. Native Americans
American Indians were not excluded by immigration laws. U S ex rel Diabo v. McCandless, D.C.Pa.1927, 18 F.2d 282.
18. Possessions and territories
Though Filipinos were not excludable under any general statute relating to exclusion of "aliens," Congress had power to
legislate their exclusion in the same manner as that of foreigners. Rabang v. Boyd, U.S.Wash.1957, 77 S.Ct. 985, 353 U.S.
427, 1 L.Ed.2d 956, rehearing denied 77 S.Ct. 1421, 354 U.S. 944, 1 L.Ed.2d 1542.
Filipinonational of United States lost his status as such national in 1946, when the Philippines achieved independence, and
thereafter his status became that of an alien, notwithstanding he had permanently resided in United States since 1928. U.S. ex
rel. Alcantra v. Boyd, C.A.9 (Wash.) 1955, 222 F.2d 445.
Subsection (a) of this section defining excludable classes of aliens, which subsection relates to applicability of this section
to alien who leaves any of certain possessions of United States and who seeks to enter United States, was not applicable to
alien who, as permanent resident of continental United States, went to Alaska for purpose of temporary seasonal employment
and sought to return, and such alien could not be excluded though it appeared he had been convicted of crime involving
moral turpitude. U.S. ex rel. Alcantra v. Boyd, C.A.9 (Wash.) 1955, 222 F.2d 445.
Subsection (d)(7) of this section is not applicable to an alien resident of the continental United States returning from a visit
to an American possession, although it purports to subject to the excluding provisions of this chapter aliens coming from
possessions of this country to our shores. Savoretti v. Voiler, C.A.5 (Fla.) 1954, 214 F.2d 425. See, also, Haymes v.
Brownell, D.C.D.C.1955, 131 F.Supp. 784.
Departure Control checkpoint at Virgin Islands airport, at which passengers bound for continental United States were
temporarily detained by Immigration and Naturalization Service (INS) for proof of citizenship, violated equal protection
rights of passenger who allegedly provided inadequate documentation, since there was no rational basis for distinguishing
between United States territories and non-contiguous states, which were not subject to detention requirement. U.S. v. Pollard,
D.Virgin Islands 2002, 209 F.Supp.2d 525.
This chapter does not apply to the outer continental shelf. Piledrivers' Local Union No. 2375 v. Smith, C.D.Cal.1982, 541
F.Supp. 460, affirmed 695 F.2d 390.
Where national of the Philippines was admitted to Hawaii on January 30, 1946, under the Philippine Independence Act, he
was lawfully admitted for permanent residence in Hawaii and became eligible for naturalization there. Petition of Rabanal,
D.C.Md.1959, 169 F.Supp. 918.
Lawful admission of national of the Philippines for permanent residence in Hawaii on January 30, 1946, under the
Philippine Independence Act did not entitle him to admission for permanent residence in the continental United States, and
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therefore he was not entitled to file petition for naturalization in the continental United States while residing in the
continental United States as a nonimmigrant. Petition of Rabanal, D.C.Md.1959, 169 F.Supp. 918.
Where alien, who had resided continuously in Hawaii since 1924, in 1951 went to Kwajalein, which was Trust Territory
administered by United States under Trusteeship Council of United Nations, to work on construction project, he left the
"United States", so that his return and admission to Hawaii in 1951 was a reentry, and he was deportable because of
counterfeiting conviction in 1934. Aradanas v. Hogan, D.C.Hawai'i 1957, 155 F.Supp. 546.
19. Guam
Former 136 of this title relating to exclusion from United States of certain classes of aliens was applicable to Guam. Ex
parte Rogers, D.C.Guam 1952, 104 F.Supp. 393.
The governor of Guam had a residual authority to enforce former 136 of this title in default of performance of that
function by the Immigration and Naturalization Service of the United States. Ex parte Rogers, D.C.Guam 1952, 104 F.Supp.
393.
20. Crime and punishment
Deportation under 1251 of this title, providing for deportation of aliens who at time of entry are excludable aliens, and
under this section, providing for exclusion of aliens entering in violation of alien documentation requirements, is not penalty
for wrongdoing and can be based on post-entry determination of alienage. U. S. ex rel. Marks v. Esperdy, C.A.2 (N.Y.) 1963,
315 F.2d 673, certiorari granted 84 S.Ct. 66, 375 U.S. 810, 11 L.Ed.2d 47, affirmed 84 S.Ct. 1224, 377 U.S. 214, 12 L.Ed.2d
292, rehearing denied 84 S.Ct. 1904, 377 U.S. 1010, 12 L.Ed.2d 1059.
Deportation or exclusion proceedings are not punishment for crime. Petition of Brooks, D.C.Mass.1925, 5 F.2d 238.
21. Protection of alien immigrants
Alien cited in deportation proceeding has benefit of more protective procedural and substantive rights and stricter standard
of judicial review than alien who was placed on parole after physically entering United States. Delgado- Carrera v. U.S.
I.N.S., C.A.5 1985, 773 F.2d 629.
Since alien immigrants were permitted to enter United States, large majority of whom were uneducated laborers, it was
duty of government to afford them equal protection under our laws, including right to combine to improve their condition.
Mitchell v. Hitchman Coal & Coke Co., C.C.A.4 (W.Va.) 1914, 214 F. 685, 131 C.C.A. 425, appeal allowed 221 F. 1022,
136 C.C.A. 665, certiorari granted 36 S.Ct. 450, 241 U.S. 644, 60 L.Ed. 1218, reversed on other grounds 38 S.Ct. 65, 245
U.S. 229, 62 L.Ed. 260, Am.AnnCas. 1918B,461, mandate stayed 38 S.Ct. 190.
Immigrant who had not entered United States, though not entitled to enjoy constitutional guaranties of citizens, had rights
under immigration laws which immigration authorities were bound to respect. U.S. v. Williams, S.D.N.Y.1913, 203 F. 155.
22. Rights and privileges
An unadmitted nonresident alien has no constitutional right of entry into the United States as a nonimmigrant or otherwise.
Kleindienst v. Mandel, U.S.N.Y.1972, 92 S.Ct. 2576, 408 U.S. 753, 33 L.Ed.2d 683.
Statute, permitting exclusion of alien who has been convicted of violation of, or conspiracy to violate, any statute or
regulation of state, United States, or foreign country relating to controlled substance did not unconstitutionally deprive alien,
who had previously been granted resident alien status, of right to equal protection, although it subjected her as a resident
alien, normally entitled to deportation proceedings, to exclusion proceedings based merely upon her having temporarily
traveled abroad; statute was a rational and necessary step to stem flow of drugs into United States, to prevent drug traffickers
from entering United States and to ensure effective administration of immigration laws at border. Correa v. Thornburgh,
C.A.2 (N.Y.) 1990, 901 F.2d 1166.
Even if Criminal Justice Act required appointment of counsel for excludable aliens seeking habeas review of Attorney
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General's refusal to parole them from federal penitentiary, the district court lacked jurisdiction due to failure to exhaust
administrative remedies. Perez-Perez v. Hanberry, C.A.11 (Ga.) 1986, 781 F.2d 1477.
Excludable aliens have no constitutional rights with regard to their applications and must be content to accept whatever
statutory rights and privileges they are granted by Congress; furthermore, contours of those rights that they do have are to be
largely left to discretion of the political branches. Garcia-Mir v. Smith, C.A.11 (Ga.) 1985, 766 F.2d 1478, certiorari denied
106 S.Ct. 1213, 475 U.S. 1022, 89 L.Ed.2d 325.
Aliens may be denied admission on grounds that would be constitutionally impermissible or suspect in context of domestic
legislation. Jean v. Nelson, C.A.11 (Fla.) 1984, 727 F.2d 957, rehearing denied 733 F.2d 908, certiorari granted 105 S.Ct.
563, 469 U.S. 1071, 83 L.Ed.2d 504, affirmed 105 S.Ct. 2992, 472 U.S. 846, 86 L.Ed.2d 664.
Alien who has been granted permanent resident status has interest in opportunity to earn a living, to improve his economic
circumstances, and to engage in common occupations, without unreasonable limitations or invidious discrimination. Yui Sing
Tse v. Immigration and Naturalization Service, C.A.9 1979, 596 F.2d 831.
Alien denied entry does not enjoy panoply of rights granted by Constitution. Petition of Cahill, C.A.2 (N.Y.) 1971, 447
F.2d 1343.
Where Mexican nationals, who were husband and wife, were admitted into United States as exchange visitors, and, while
they were residing in the United States, a son was born to them, enforcement against Mexican nationals of two- year foreign
residence requirement did not violate constitutional rights of their son who was a United States citizen. Mendez v. Major,
C.A.8 (Mo.) 1965, 340 F.2d 128.
Where defendants allegedly conspired with divers aliens to illegally enter the United States as contract laborers and
supplant the plaintiffs as professional jai alai players for defendants, there was no right or privilege under former 136 of this
title which could be redressed at instance of plaintiffs in action for conspiracy to interfere with civil rights, since said former
136 did not confer any special rights on an individual to have any particular alien or class of aliens excluded. Ferrer v.
Fronton Exhibition Co., C.A.5 (Fla.) 1951, 188 F.2d 954.
While citizens of the United States were entitled to the benefits of former 136 of this title generally said former 136
conferred no specific rights which were individual or personal to citizens to have any particular alien or class of aliens
excluded. Ferrer v. Fronton Exhibition Co., C.A.5 (Fla.) 1951, 188 F.2d 954.
There was no substantial likelihood that judicially enforceable right arose from Executive Order 12324 providing that no
person who is a political refugee will be returned without his or her consent and that the Attorney General will take steps
necessary to ensure strict observance of international obligations to political refugees, or from accompanying Immigration
Naturalization Service Guidelines. Haitian Refugee Center, Inc. v. Baker, S.D.Fla.1991, 789 F.Supp. 1552, remanded on
other grounds 949 F.2d 1109, rehearing denied 954 F.2d 731, certiorari denied 112 S.Ct. 1245, 502 U.S. 1122, 117 L.Ed.2d
477.
Excludable aliens, who had not gained entry to United States, had no constitutional liberty right under Fifth Amendment,
and thus, aliens had no claim for violation of due process due to Attorney General's indefinite detention of aliens. Tartabull v.
Thornburgh, E.D.La.1990, 755 F.Supp. 145.
Status review plan issued by the Attorney General, which contained mandatory procedural requirements and placed
substantive limitations on discretion of decision maker to continuously detain aliens in the United States, did not create a
liberty interest for aliens who had been continuously detained as incompetents or serious criminals since their arrival, as the
dispensation by the Attorney General of statutory benefit of paroling unadmitted aliens into the United States under 8
U.S.C.A. 1182(d)(5) was at the discretion of an agency. Fernandez-Roque v. Smith, N.D.Ga.1985, 622 F.Supp. 887, stay
granted 781 F.2d 1450.
Fact that citizen children of Western Hemisphere alien parents may at one time have had a statutory privilege whereby they
could obtain priority status for their parents to become permanent legal residents did not vest in them a constitutional right
embodying the terms of such statutory grant so as to thereby render unconstitutional repeal of privilege whereby their parents
could obtain priority status on consular waiting lists. Martinez v. Bell, S.D.N.Y.1979, 468 F.Supp. 719.
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Alien has no constitutional right to enter or main in the United States and he may be denied entrance on grounds which
would be constitutionally suspect or impermissible in the context of domestic policy such as reasons of race, physical
condition, political beliefs, sexual proclivities, age, and national origin. Fiallo v. Levi, E.D.N.Y.1975, 406 F.Supp. 162,
probable jurisdiction noted 96 S.Ct. 2622, 426 U.S. 919, 49 L.Ed.2d 371, affirmed 97 S.Ct. 1473, 430 U.S. 787, 52 L.Ed.2d
50.
Possibility of joining one's closest family in the United States is a privilege granted by statute, not a right given by the
constitution. Fiallo v. Levi, E.D.N.Y.1975, 406 F.Supp. 162, probable jurisdiction noted 96 S.Ct. 2622, 426 U.S. 919, 49
L.Ed.2d 371, affirmed 97 S.Ct. 1473, 430 U.S. 787, 52 L.Ed.2d 50.
Alien outside the country seeking admission does not do so under claim of right, but as a privilege granted by the sovereign
only upon such terms as Congress prescribes. Application of Paktorovics, S.D.N.Y.1957, 156 F.Supp. 813, reversed on other
grounds 260 F.2d 610.
Where Canadian went to work in Alaska under contract whereby his wages were to be deposited in trust for him until he
obtained visa as landed alien or permanent resident, and Canadian ultimately became permanent resident, contract could be
enforced by Canadian so as to permit him to recover for services performed. Gates v. Rivers Const. Co., Inc., Alaska 1973,
515 P.2d 1020.
23. Notice of eligibility for relief
Where immigration law judge repeatedly gave alien the opportunity to notify the immigration law judge of his claim to
permanent resident status, and where the opportunity to do so was dependent upon information which was unequivocally
within the knowledge of the alien, immigration law judge did not fail in his duty to inform alien of his apparent eligibility for
relief and the failure to do so did not preclude subsequent conviction for illegal reentry. U.S. v. Mendoza-Lopez, C.A.10
(N.M.) 1993, 7 F.3d 1483, certiorari denied 114 S.Ct. 1552, 511 U.S. 1036, 128 L.Ed.2d 201.
Alien's initial lawful entry into United States was sufficient to put immigration judge on notice that he might satisfy
threshold requirement for relief under statute providing for waiver of excludability if alien is relative of United States citizen,
triggering immigration judge's obligation to advise alien of apparent eligibility for relief from deportation; alien's entry
indicated good chance that he had immediate relative who was United States citizen. Moran-Enriquez v. I.N.S., C.A.9 1989,
884 F.2d 420.
24. Children
Parent's knowledge may be imputed to children in considering whether children had knowledge of their ineligibility for
admission to United States for purpose of determining eligibility for waiver from deportation on grounds that they could not
have asserted by reasonable diligence that they were excludable at time they entered country. Senica v. I.N.S., C.A.9 1994,
16 F.3d 1013.
This section providing that excludable alien who is child of alien admitted for permanent residence shall be admitted for
permanent residence if Attorney General, in his discretion, has consented to alien's applying for admission does not apply to
deportation and Attorney General did not have discretionary power to terminate deportation proceeding against infant alien
who had been convicted of crime involving moral turpitude and whose parents were aliens lawfully admitted for permanent
residence. Puig Y Garcia v. Murff, S.D.N.Y.1958, 168 F.Supp. 890.
25. Seamen
Where there was included in warrant of deportation of alien seaman provision of Act Feb. 5, 1917, 3, that if alien returns
to United States from time to time and on inspection is found to be bona fide seaman and entitled to shore leave, except for
prior deportation, admission is authorized for such time as alien may be admitted as seaman, seaman was relieved of
combined effect of provisions making arrest and deportation basis for exclusion and depriving alien seaman subject to
exclusion of landing privileges. Mrvica v. Esperdy, U.S.N.Y.1964, 84 S.Ct. 833, 376 U.S. 560, 11 L.Ed.2d 911.
For purposes of this chapter, alien seamen paroled temporarily into United States never made entries into United States and
were subject to exclusion rather than expulsion provisions. Wong Hing Fun v. Esperdy, C.A.2 (N.Y.) 1964, 335 F.2d 656,
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Page 111

Alien seaman upon return from foreign round trip voyage on American vessel was not subject to provision excluding
criminal aliens. Nagle v. Lim Foon, C.C.A.9 (Cal.) 1931, 48 F.2d 51.
Alien member of crew on American ship returning from foreign waters was not subject to immigration laws. Ex parte Kogi
Saito, D.C.Wash.1927, 18 F.2d 116.
Under Act of 1907 seaman (not Chinese), though ineligible for admission to United States as alien immigrant, was still
entitled to land on shore leave and remain within physical boundaries of United States until his vessel sailed, without being
sent to observation quarters of Bureau of Immigration for inspection as immigrant. U.S. v. Crouch, C.C.E.D.N.Y.1911, 185
F. 907.
Act of 1891 did not contemplate exclusion of crews of vessels which lawfully traded to ports of United States, who came
with no purpose to reside therein but with intention to leaving again on that or some other vessel for port of shipment, or
some other foreign port in course of her trade. U.S. v. Burke, C.C.S.D.Ala.1899, 99 F. 895. See, also, 1901, 23 Op.Atty.Gen.
522.
When stowaway became duly enrolled seaman, and signed articles for voyage, master of vessel was not rendered liable
under that Act for his desertion while in port, it being declared that seaman's legal status was not that of immigrant but of
deserter. U.S. v. Sandrey, C.C.E.D.La.1891, 48 F. 550.
Bona fide seamen have always been excepted from operation of our immigration laws although not excepted therefrom by
express language, and their inclusion in class of alien immigrants could fairly be regarded as beyond intention of Congress.
1901, 23 Op.Atty.Gen. 521.
Under prior Act Secretary of Treasury ruled that returning cattlemen, being resident aliens and not "alien immigrants" or
"aliens immigrating," should be admitted if not excludable for any other reason, and that master of vessel was not liable to
fine imposed by that Act if he had not entered such aliens' return on immigrant list as provided by such Act. 1900, 23
Op.Atty.Gen. 278.
26. Transit-without-visa
If an alien adopts the transit-without-visa device solely for the purpose of reaching the border of the United States, without
any intention of pursuing his journey, this constitutes a circumvention of the transit-without-visa program and a fraud on the
United States; however, even if this renders the arrival of the alien illegal, such alien is nonetheless lawfully entitled both to
seek asylum and to reside in the United States if successful in obtaining parole. U. S. v. Kavazanjian, C.A.1 (Mass.) 1980,
623 F.2d 730.
Natives and citizens of Iraq who had status of de facto transits without visa, a nonimmigrant status which allows
nonimmigrant aliens to enter the United States without visa if they are in continuous and immediate transit through the
United States, were precluded from obtaining an adjustment of status. Putrus v. Montgomery, E.D.Mich.1982, 555 F.Supp.
452.
Where derrick ship utilized in the installation of drilling and production platform on outer continental shelf was crewed by
seamen who traveled under seamen's transit visas, no violation of this chapter occurred. Piledrivers' Local Union No. 2375 v.
Smith, C.D.Cal.1982, 541 F.Supp. 460, affirmed 695 F.2d 390.
Waiver by Secretary of State and Attorney General of requirements of a passport and a visa as a condition of admission to
United States by aliens known as "transits without visas" is discretionary. U. S. ex rel. Lam Fo Sang v. Esperdy,
S.D.N.Y.1962, 210 F.Supp. 786.
"Transit without visa" (TWOV) alien who violates transit without visa requirements is excludable. Aerolineas Argentinas
v. U.S., Fed.Cl.1994, 31 Fed.Cl. 25, vacated 77 F.3d 1564, rehearing denied, in banc suggestion declined.
27. Border entries
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Conditional entrant never "entered" country and, thus, was subject to exclusion rather than deportation proceedings, even
though he had lived, worked, and traveled freely about country for more than ten years; "conditional entry" was analogous to
"parole" in that both permitted alien access into country but allowed summary termination of access upon adverse
determination of alien's admissibility. Dhine v. Slattery, C.A.2 (N.Y.) 1993, 3 F.3d 613.
"Excludable aliens" are those who seek admission but have not been granted entry into the United States; even if physically
present in the country, they are legally considered detained at the border. Garcia-Mir v. Smith, C.A.11 (Ga.) 1985, 766 F.2d
Alien whose permanent resident status has been conditionally extended was not subject to exclusion proceedings by mere
fact that she obtained advance parole, such that her departure was not innocent, casual and brief for purpose of determining
whether trip effected "entry" into United States upon return. Flores-Salgado v. Caplinger, E.D.La.1995, 872 F.Supp. 1521.
Alien's brief departure from and return to United States did not constitute an "entry" under United States immigration laws
so as to subject her to exclusion proceedings. Siverts v. Craig, D.C.Hawai'i 1985, 602 F.Supp. 50.
Though an important distinction is to be made between aliens seeking admission who are stopped at our borders and aliens
who have entered this country but whose deportation is sought, immigration authorities are not completely free to deal as
they will with former group, and arbitrary use of administrative authority may still be invalid. U S ex rel Hadrosek v.
Shaughnessy, S.D.N.Y.1951, 101 F.Supp. 432.
Immigration authorities may not proceed in disregard of requirements defined or authorized by Congress, in dealing with
aliens who are stopped at borders. U S ex rel Hadrosek v. Shaughnessy, S.D.N.Y.1951, 101 F.Supp. 432.
28. Status of alien
Alien's status as "lawful permanent resident" of United States eligible to seek discretionary relief from deportation
terminates when deportation order is affirmed by Board of Immigration Appeals or otherwise becomes administratively final.
Rivera v. I.N.S., C.A.5 1987, 810 F.2d 540, rehearing denied 816 F.2d 677.
Alien, whose deportation was sought on basis that alien had concealed a prior drug conviction in obtaining permanent
resident status, was not entitled to retain permanent resident status until formal adjudication of unlawful procurement was
made. Monet v. I.N.S., C.A.9 1986, 791 F.2d 752.
Mariel Cubans were properly characterized as excludable aliens and neither parole nor detention had any effect on their
status. Garcia-Mir v. Smith, C.A.11 (Ga.) 1985, 766 F.2d 1478, certiorari denied 106 S.Ct. 1213, 475 U.S. 1022, 89 L.Ed.2d
325.
Denial of an alien's application to change his status from that of visitor to that of a student was not arbitrary, an abuse of
discretion or contrary to the law. Bitar v. U.S. Dept. of Justice, D.C.Colo.1983, 582 F.Supp. 417.
The return of aliens who seek and are denied admission into the United States is governed by 1181-1230 of this title,
whereas deportation of aliens who have already gained admission, whether legally or illegally, is governed by 1251 to
1260 of this title; and more fact that alien had been at large on bond under administrative order, and that for 11 years he had
enjoyed a "temporary haven" within United States while he litigated his claim for admission did not alter his status as an
excluded alien. U S ex rel Tom We Shung v. Murff, S.D.N.Y.1959, 176 F.Supp. 253, affirmed 274 F.2d 667.
29. Waiver of exclusion
Immigration judge's decision to grant waiver of condition (alien's alleged prior marriage in the Philippines) that supposedly
rendered her ineligible for admission to United States as unmarried daughter of a lawful permanent resident was not abuse of
discretion, given evidence that alien believed that marriage ceremony, which was allegedly conducted before a marriage
license was obtained, was invalid. Mayo v. Ashcroft, C.A.8 2003, 317 F.3d 867.
Alien was not entitled to a waiver of excludability for alien smuggling, where he had aided his cousin, as well as his wife
and children, in attempting to enter the United States using false documentation. Selimi v. I.N.S., C.A.7 2002, 312 F.3d 854.
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Finding of Board of Immigration Appeals (BIA), that government did not grant alien waiver for crime of moral turpitude
upon admitting him to United States as lawful permanent resident, and that alien's conviction for crime committed prior to
admission thus rendered him removable for having committed listed criminal offense, was supported by substantial evidence;
only evidence of waiver was fact that alien's visa application was granted, but consulate could have granted application
without waiver if consulate was not aware of prior conviction or if consulate erred. Zavaleta-Gallegos v. I.N.S., C.A.9 2001,
261 F.3d 951.
Exclusion proceedings against alien did not commence when Immigration and Naturalization Service (INS) served him
with its "Notice of Exclusion Proceedings" before effective date of Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA), as INS did not file charging document with immigration court until after IIRIRA's effective date; thus, because
exclusion proceedings were not pending on IIRIRA's effective date, alien had no protected liberty or property interest in
retaining ability to apply for discretionary waiver of exclusion, which was eliminated by IIRIRA, and immigration court did
not violate alien's due process rights by denying his motion to terminate removal proceedings and commence exclusion
proceedings. Morales-Ramirez v. Reno, C.A.7 (Ill.) 2000, 209 F.3d 977.
State Department's one-time delay in acting on alien's request for waiver of inadmissibility did not indicate cognizable
danger of recurrent violation, and alien thus would not be granted injunction compelling State Department to respond in
timely fashion to requests for waivers of inadmissibility that he was likely to file in future. Saavedra Bruno v. Albright,
C.A.D.C.1999, 197 F.3d 1153, 339 U.S.App.D.C. 78.
Even if waiver of inadmissibility statute applied to alien who was deportable but not excludable for various firearms
offenses, Board of Immigration Appeals (BIA) gave adequate consideration to equities supporting favorable exercise of
discretion, discharging its duties under waiver of inadmissibility statute, where it explicitly noted alien's length of residence,
his family ties, his tentative steps toward rehabilitation, and conceivable hardships. Henry v. I.N.S., C.A.1 1996, 74 F.3d 1.
Board of Immigration Appeals (BIA) did not abuse its discretion by denying alien who was convicted of armed robbery a
waiver of excludability; BIA noted factors in favor of granting waiver including length of alien's stay in United States, close
family ties, lack of relatives in country of origin, chemical dependency programs followed while in prison, achievement of
high school equivalency diploma and completion of mathematics course, but balanced those against severity of crime as well
as alien's three prison disciplinary infractions and evidence of lack of rehabilitation. Liu v. Waters, C.A.9 (Cal.) 1995, 55
F.3d 421.
Final order of deportation of alien was ordered after effective date of Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) amendments to Immigration and Nationality Act (INA), which restricted Attorney General from
granting relief from deportation to aliens convicted of aggravated felonies, and thus alien who had been convicted of an
aggravated felony was not eligible for relief from deportation under Immigration and Nationality Act (INA) section allowing
Attorney General to waive subsections of the Act which classified certain aliens as ineligible for admittance. Reid v. I.N.S.,
D.Mass.2002, 203 F.Supp.2d 47.
Discretionary authority granted Attorney General by statute, to waive exclusionary effect of limited number of specified
felonies with respect to illegal aliens, did not result in disparate treatment in violation of equal protection between lawful
permanent resident convicted of drug trafficking and illegal aliens convicted of similar crimes, where neither party might
apply for waiver for drug crimes involving more than simple possession of 30 grams of marijuana. Taveras-Lopez v. Reno,
M.D.Pa.2000, 127 F.Supp.2d 598.
30. Naturalization--Generally
That alien had applied for naturalization did not enlarge his right to enter or remain in United States. U.S. ex rel. Fanutti v.
Flynn, D.C.N.Y.1927, 17 F.2d 432.
31. ---- Admission, naturalization
It was the general policy that if a person was admissible to the United States for permanent admission under former chapter
6 of this title, he was susceptible of naturalization. Ex parte Mohriez, D.C.Mass.1944, 54 F.Supp. 941.
32. Cause of action
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No substantial federal question was raised by alien's constitutional challenge to this section and sections 1101 and 1151 of
this title; thus, district court would deny request for convening of a three-judge court for purposes of enjoining enforcement
of those provisions. Papakonstantinou v. Civiletti, E.D.N.Y.1980, 496 F.Supp. 105.
II. ADMINISTRATION AND ENFORCEMENT
<Subdivision Index>
Generally 61
Administrative discretion, parole of aliens 72
Approval of Attorney General 69
Attorney General 68
Bonds for admission and return of inadmissible aliens 82
Burden of proof 91
Clemency 79
Collateral estoppel 102
Conviction of parolee, parole of aliens 75
Counsel 87
Deferred action status 70
Discretion of immigration officers 65
Evidence 92
Exhaustion of administrative remedies 85
Findings 94
Findings, parole of aliens 73
Habeas corpus 99
Hearing 89
Hearing, parole of aliens 74
Immigration officers 64-66
Immigration officers - Generally 64
Immigration officers - Discretion of immigration officers 65
Immigration officers - Position of immigration officers 66
Jurisdiction 103
Parole of aliens 71-76
Parole of aliens - Generally 71
Parole of aliens - Administrative discretion 72
Parole of aliens - Conviction of parolee 75
Parole of aliens - Findings 73
Parole of aliens - Hearing 74
Parole of aliens - Revocation 76
Parties 83
Pending appeal 100
Political asylum 80
Position of immigration officers 66
Presumptions 90
Proclamations 62
Reapplication for visa 78
Record of admission 93
Remand 97
Res judicata 95
Reversal 98
Review 96
Revocation of visa 77
Revocation, parole of aliens 76
Rules and regulations 63
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Secretary of Labor 67
Standing 104
Suits by aliens 84
Summary judgment 86
Temporary admission 81
Time proceeding commences 101a
Timeliness of challenge 101
Waiver 88
61. Generally
Immigration laws of United States were by Act of Congress carried to Philippine Island and authorized to be there put into
effect under appropriate legislation by Insular Government. Chieng Ah Sui v. McCoy, U.S.Phil.Islands 1915, 36 S.Ct. 95,
239 U.S. 139, 60 L.Ed. 183.
Although adherence to predetermined standards minimizes possibility that exercise of administration discretion in
deportation hearing will be arbitrary and capricious, the mere recitation of certain predetermined considerations is not
determinative of whether the factual basis for the exercise of discretion has been established in a full and fair hearing
comporting with accepted principles of due process. Vissian v. Immigration and Naturalization Service, C.A.10 1977, 548
F.2d 325.
Injunction requiring defendant farm operators to make some reasonable inquiry into citizenship or immigration status of
employment applicants as a preliminary to hiring would not issue in class action wherein plaintiffs, on behalf of themselves
and other migratory workers, alleged, inter alia, that defendants had knowingly employed illegal Mexican entrants, as it was
more orderly, more effectual, and less burdensome to affected interests that national government, supplied with an apparatus
of offices, staff and computerized equipment, redeem its commitment implied by national immigration policy. Diaz v.
Kay-Dix Ranch, Cal.App. 3 Dist.1970, 88 Cal.Rptr. 443, 9 Cal.App.3d 588.
Comprehensive controls over admission of foreign workers as immigrants established by this chapter reflect a
congressional intent to protect American labor market from an influx of foreign labor, and plaintiff migratory workers, who
sought to enjoin defendant farm operators from wilfully employing illegal Mexican entrants, were at least theoretical
beneficiaries of such congressional policy. Diaz v. Kay-Dix Ranch, Cal.App. 3 Dist.1970, 88 Cal.Rptr. 443, 9 Cal.App.3d
588.
62. Proclamations, administration and enforcement
Presidential Proclamation suspending entry of Cuban nationals considered by Secretary of State to be officers or employees
of government of Cuba or the Communist Party of Cuba rendered moot action challenging denial of nonimmigrant visa
application under Immigration and Nationality Act after State Department determined that applicant was a member of the
Communist Party of Cuba. City of New York v. Baker, C.A.D.C.1989, 878 F.2d 507, 278 U.S.App.D.C. 405, rehearing
denied 888 F.2d 134, 281 U.S.App.D.C. 121.
Under former Act Feb. 20, 1907, providing that, when President should be satisfied that passports issued by any foreign
government to its citizens to go to other countries were being used for purpose of enabling holders to come into continental
territory of United States, President could refuse to permit such citizens to enter continental territory of United States, as well
as proclamation of President T. Roosevelt superseded by so-called "gentlemen's agreement" between United States and Japan
and proclamation of President Taft, Japanese laborer was not entitled to enter continental United States even though he left
Japan without passport. Akira Ono v. U.S., C.C.A.9 (Cal.) 1920, 267 F. 359.
In view of proclamations of Presidents T. Roosevelt and Taft pursuant to provisions of former 136 of this title directing
exclusion of Japanese laborers from this country, such laborer could be excluded even if he arrived at port of this country
with passport. Akira Ono v. U.S., C.C.A.9 (Cal.) 1920, 267 F. 359.
Presidential proclamation prohibiting entry of aliens into United States if detrimental to national interests was not
invalidated by statutory provision precluding exclusions if based on associations, which, if engaged in by United States
citizen in United States, would be protected by United States Constitution; employment by Cuban government as basis for
exclusion was not association which would be protected by First Amendment if engaged in by United States citizen in United
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States, since association with foreign government must be regulated to effectuate United States foreign policy. Encuentro Del
Canto Popular v. Christopher, N.D.Cal.1996, 930 F.Supp. 1360.
63. Rules and regulations, administration and enforcement
Labor Department failed to comply with notice and comment provisions of Administrative Procedure Act (APA) in
connection with its promulgation of interim final rule limiting validity of labor certifications to alien named on prospective
employer's application and eliminating employer's freedom to substitute new alien when alien named in application became
unable or unwilling to accept job; Department's notice of proposed rule making did not contain terms of no-substitution rule
it later promulgated, did not propose abolishing substitution, and substitution rule adopted was not a logical outgrowth of
originally proposed rule. Kooritzky v. Reich, C.A.D.C.1994, 17 F.3d 1509, 305 U.S.App.D.C. 156, on remand 1996 WL
422500.
Board of Immigration Appeals' (BIA) interpretation of regulation authorizing relief from final administrative order of
deportation based on newly discovered evidence to empower BIA to deny motion to reopen application solely on ground that
regulation was negatively framed and BIA was not required to reopen unless certain showings were made, amounted to
amendment of regulation, made without benefit of notice and opportunity for public comment. Henry v. I.N.S., C.A.7 1993, 8
F.3d 426.
Labor certification regulations, which effectively banned self-employment and required bona fide job search, were valid
since good faith search process for American workers, as required under Immigration and Nationality Act, became
self-enforcing. Bulk Farms, Inc. v. Martin, C.A.9 (Cal.) 1992, 963 F.2d 1286.
Regulation requiring immigration judges to inform aliens of apparent eligibility for relief from deportation is mandatory;
failure to advise alien of potential relief requires remand where there is some information in record that makes eligibility
apparent. Moran-Enriquez v. I.N.S., C.A.9 1989, 884 F.2d 420.
Regulation promulgated under Immigration and Nationality Act, providing that alien who has been deported and is
applying for visa, admission to United States, or adjustment of status must present proof that alien has remained outside
United States for more than five successive years following last deportation or removal, is not inconsistent with congressional
intent removing requirement of obtaining Attorney General's permission to reenter only for aliens who have spent at least five
years outside United States, but merely implements that intent. Valdez-Gaona v. I.N.S., C.A.5 (Tex.) 1987, 817 F.2d 1164.
Decision of Board of Immigration Appeals, modifying "alien investor" regulation to require that in order to be eligible for a
visa an alien must invest "an amount adequate to insure, with sufficient certainty, that the alien's primary function with
respect to the investment, and with respect to the economy will not be as a skilled or unskilled laborer," did not give applicant
for status as a permanent alien adequate notice that the decision was also applicable to the regulation after it had been
amended to require a $10,000 investment and one year's experience, and, therefore, denial of permanent alien status to
applicant, who invested $10,000 in an agricultural enterprise and had a least one year's experience, was an abuse of
discretion. Bahat v. Sureck, C.A.9 (Cal.) 1981, 637 F.2d 1315.
Regulations of Attorney General did not give Board of Immigration Appeals jurisdiction over appeal by alien, and not over
appeal by Immigration and Naturalization Service from immigration judge's disposition of application for relief under this
section governing discretionary relief for alien facing exclusion on certain grounds. Byus-Narvaez v. Immigration and
Where letter from alien's attorney to local Immigration and Naturalization Service office requesting copies of exhibits used
in deportation hearing could have been considered information request by any reasonable person, Service should have treated
it as such, pursuant to regulation, though there was failure to properly mark envelope "Freedom of Information Request," and
where Service failed to accord such treatment to request, Service was in violation of regulation. Nicholas v. Immigration and
Interpretation by Board of Immigration Appeals of regulation governing investor exemption from labor certification
requirement to require that investment create job opportunities for domestic worker was proper as carrying out legislative
purpose of excluding aliens whose employment would likely displace a qualified American worker. Mehta v. Immigration
and Naturalization Service, C.A.2 1978, 574 F.2d 701.
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Even if Department of Labor's regulation in force during 1974 when the immigration judge and the Board of Immigration
Appeals declared alien's labor certificate invalid was to be read as a delegation by Labor Department of power to invalidate
labor certificate to the Board, Board's decision that labor certificate was invalid would not be affirmed as it would exceed the
scope of the authority delegated. Castaneda-Gonzalez v. Immigration and Naturalization Service, C.A.D.C.1977, 564 F.2d
417, 183 U.S.App.D.C. 396.
Where third-preference visa classifications as immigrant teachers had expired and, following petition for revalidation, the
Department of Labor regulations were amended to require that a job offer be submitted with applications for labor
certification of immigrant teachers the amended regulations were controlling, notwithstanding that petitions would have been
determined under unamended regulations had they been promptly processed. Carino v. Immigration and Naturalization
Service, C.A.7 1972, 460 F.2d 1341.
Under regulation of the Attorney General providing that cases of all aliens of excludable classes who are brought to
seaports of the United States and who apply for temporary admission with certain exceptions shall be submitted to the
"department" for special ruling, quoted word means the Board of Immigration Appeals. U.S. ex rel. Picicci v. District
Director of Immigration and Naturalization at Port of N.Y., C.A.2 (N.Y.) 1950, 181 F.2d 304.
Although rule made by Secretary of Labor under former Act was apparently just, yet if it was so administered as to deprive
alien of his fundamental rights, it was void. Whitfield v. Hanges, C.C.A.8 (Iowa) 1915, 222 F. 745, 138 C.C.A. 199.
Pursuant to Act of 1907, President, on Mar. 14, 1907, issued order that such "citizens of Japan or Korea, to wit, Japanese or
Korean laborers, skilled and unskilled, who have received passports to go to Mexico, Canada or Hawaii and come therefrom
be refused permission to enter the continental territory of the United States," and directing Secretary of Commerce and Labor
to take such measures and to make and enforce such rules and regulations as might be necessary to carry order into effect.
Neither such Act nor order applied to aliens who had no passports from their governments, nor did order authorize exclusion
of Japanese or Korean laborers other than those having passports to go to Mexico, Canada, or Hawaii; that rule, adopted by
commissioner, that if Japanese or Korean laborer applied for admission and presented no passport it should be presumed that
he possessed a passport limited to Mexico, Canada, or Hawaii, was beyond any power conferred on him by either said Act or
President's order, and afforded no authority for excluding Japanese or Korean laborer who presented no passport, natural
presumption in such case being that he had none, and there being no basis for presumption stated in rule. U.S. v. Hemet,
D.C.Or.1907, 156 F. 285.
Detention and parole regulations promulgated by Immigration and Naturalization Service were not contrary to
congressional intent as evidenced in Refugee Act [Refugee Act of 1980, 101 et seq., 8 U.S.C.A. 1255 note], which was
not intended to alter, but was in fact intended to reaffirm, Attorney General's parole authority with respect to aliens. Ishtyaq
v. Nelson, E.D.N.Y.1983, 627 F.Supp. 13.
Regulations of Immigration and Naturalization Service preclude Service from applying release criteria such as lack of
travel documents, alien's likelihood of success on his application for admission, his prior immigration history, financial
ability to support himself while on parole, sponsorship by family or organization, and ability to post security bond, in cases of
undocumented excludable aliens. Singh v. Nelson, S.D.N.Y.1985, 623 F.Supp. 545.
Regulations requiring employer to follow specific recruitment process were reasonably related to purpose of protecting
American worker in that they served to provide Secretary of Labor with adequate factual record on which to make
determination required by statute requiring that alien seeking to enter United States for purpose of performing skilled or
unskilled labor be excluded unless specified conditions are satisfied. Trimble House Corp. v. Marshall, N.D.Ga.1980, 497
F.Supp. 546.
Regulations promulgated under "adverse effect" clause of this section relating to employment certification of alien do not
implement statutory purpose and misconstrue meaning of adverse effect insofar as regulation failed to take into
consideration, in comparing wages offered applicant and "prevailing wage" in area, forms of compensation other than money.
Ozbirman v. Regional Manpower Adm'r, U. S. Dept. of Labor, S.D.N.Y.1971, 335 F.Supp. 467.
It was formerly within power of Secretary of Treasury to make such examination and take such precaution as might be
reasonably necessary to prevent alien immigrant, whether he was sailor or not, from entering this country in sense that all
immigrants entered it. 1901, 23 Op.Atty.Gen. 521.
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Fact that steamship company, which shipped in this country horsemen who intend to return, failed to obtain certificate
required by 1899 Treasury Circular No. 135, did not preclude admission of such returned horsemen, of whose fundamental
right to enter this country under such circumstances, as resident aliens, Secretary of Treasury was assured. 1900, 23
Op.Atty.Gen. 278.
Formerly Secretary of Treasury was vested with power to make and apply such rules relative to question of immigration as
might be shown from time to time to be necessary and convenient. 1899, 22 Op.Atty.Gen. 460.
Former Act Aug. 3, 1882, 3, invested Secretary of Treasury with power to make all necessary regulations for carrying out
its provisions, and under this power he might by regulation forbid landing by master of any passenger from his vessel until
examination of all passengers thereon was had, whether cabin or steerage. 1890, 19 Op.Atty.Gen. 706.
64. Immigration officers, administration and enforcement--Generally
If immigration officer suspects alien of having excludable mental or physical affliction, officer is empowered to detain
alien and order examination and inspection, but officer is not empowered to take admissions or conduct inquiries concerning
the affliction; medical examination is to be made by at least one qualified medical officer. Hill v. U.S.I.N.S., C.A.9 (Cal.)
1983, 714 F.2d 1470.
Federal immigration authorities lack authority to determine custody of child or to enforce custodial rights of others. Johns
v. Department of Justice of U. S., C.A.5 (Fla.) 1981, 653 F.2d 884.
Decision of consular officer that an alien is not within one of excludable classes of this section is not binding on the
Immigration and Nationality Service which may make port-of-entry inspection of alien's qualifications. Castaneda-Gonzalez
v. Immigration and Naturalization Service, C.A.D.C.1977, 564 F.2d 417, 183 U.S.App.D.C. 396.
In determining whether to grant certification for alien to enter United States as alien seeking to perform skilled or unskilled
labor, Secretary of Labor could ignore employer's specifications which he deemed, in accordance with his labor market
expertise, to be irrelevant to basic job which employer desired to be performed, and Secretary could survey an available labor
market for class of workers who, while possibly not meeting prospective employer's personalized job description, provided
employer with potential for getting his job accomplished. Pesikoff v. Secretary of Labor, C.A.D.C.1974, 501 F.2d 757, 163
U.S.App.D.C. 197, certiorari denied 95 S.Ct. 525, 419 U.S. 1038, 42 L.Ed.2d 315.
It is within congressional discretion to place conditions on alien's right of entry or continued residence in United States.
Silverman v. Rogers, C.A.1 (Mass.) 1970, 437 F.2d 102, certiorari denied 91 S.Ct. 1667, 402 U.S. 983, 29 L.Ed.2d 149.
Refusal of United States government to waive two-year foreign residence requirement as to alien who entered United
States for training for service in her country would not deprive alien and her United States citizen husband of any
constitutional rights. Silverman v. Rogers, C.A.1 (Mass.) 1970, 437 F.2d 102, certiorari denied 91 S.Ct. 1667, 402 U.S. 983,
29 L.Ed.2d 149.
Fact that special inquiry officer at hearing on charges classifying petitioner as excludable alien acknowledged "despicable"
acts of witnesses in arranging sham marriages did not require rejection of officer's characterization of their testimony as
"credible." Espinoza Ojeda v. U. S. Immigration and Naturalization Service, C.A.9 (Cal.) 1969, 419 F.2d 183.
Immigration officials could not ignore essential parts of statutes they were administering, and it was as much their duty to
admit aliens exempted from general policy of exclusion as it was to exclude those falling within excluded classes. Johnson v.
Tertzag, C.C.A.1 (Mass.) 1924, 2 F.2d 40.
Where regulation of Secretary of Treasury declared that superintendent of immigration at port of New York should
examine into condition of passengers arriving at that port and report to collector whether any person was within prohibition
of Act Feb. 26, 1885, c. 164 and amendment of that Act by Act Feb. 23, 1887, c. 220, provided that if, on such examination
by superintendent, any person should be found within prohibition and same was reported to collector, such person should not
be permitted to land, such power of determination was vested in superintendent of immigration, and not in collector. In re
Bucciarello, C.C.S.D.N.Y.1891, 45 F. 463.
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Neither prior decisions of the State Department nor decisions of immigration inspectors are binding on the Attorney
General and his delegates in subsequent proceedings; thus, issuance of visas and admission of aliens into the country does not
preclude a challenge to validity of those visas in subsequent proceedings. Lun Kwai Tsui v. Attorney General of U. S.,
D.C.D.C.1978, 445 F.Supp. 832.
Determination of existence of facts justifying exclusion of immigrants in first instance, was formerly vested in Secretary of
Commerce and Labor. 1907, 26 Op.Atty.Gen. 180.
65. ---- Discretion of immigration officers, administration and enforcement
Agency abuses discretion if it fails to state reasons and show proper consideration of all factors when weighing equities
and denying discretionary relief from deportation. Yepes-Prado v. U.S. I.N.S., C.A.9 1993, 10 F.3d 1363, as amended,
dissenting opinion 36 F.3d 83.
Alien found deportable for entry without inspection was not eligible for equitable relief from deportation under statute
giving Attorney General discretion to admit permanent resident aliens who temporarily proceeded abroad voluntarily, and
who are returning to a domicile of seven consecutive years, since such relief may not be extended to aliens whose
deportability was based on a ground not waivable in context of exclusion. Leal-Rodriguez v. I.N.S., C.A.7 1993, 990 F.2d
939.
Statute providing that aliens lawfully admitted for permanent residence who temporarily proceed abroad voluntarily and
return to lawful unrelinquished domicile of seven consecutive years may be admitted in discretion of Attorney General
without regard to specified grounds, including conviction of drug offense, does not provide indiscriminate waiver for all who
demonstrate statutory eligibility for such relief, but rather, Attorney General or his delegate is required to determine as matter
of discretion whether applicant warrants the relief sought. Blackwood v. I.N.S., C.A.11 1986, 803 F.2d 1165.
Refusal to grant alien, who had pled guilty to charge of passing a bad check in Florida and had been given 18 months
probation, a continuance in his deportation proceedings to permit him to file application for adjustment of status to lawful
permanent resident based upon his marriage of over one year to a United States citizen was an abuse of discretion, where
alien's wife had already filed, and was merely awaiting government approval of, petition for immediate relative visa which
would be prerequisite to an adjustment of alien's status. Bull v. I.N.S., C.A.11 (Fla.) 1986, 790 F.2d 869.
In light of serious nature of resident alien's criminal record, including convictions for conspiracy to distribute and
distribution of cocaine, it was not abuse of discretion for Board of Immigration Appeals to reject alien's application for relief
under this section governing discretionary relief for alien facing exclusion on certain grounds. Byus-Narvaez v. Immigration
Where alien was employed as welder and cutter of scrap metal at wage established by negotiated collective bargaining
agreement between employer and union, Secretary of Labor acted improperly in denying the alien labor certification,
notwithstanding fact that wage at which alien was employed was less than wage prevailing for United States workers
similarly employed in the area of employment. Naporano Metal & Iron Co. v. Secretary of Labor of U. S., C.A.3 (N.J.) 1976,
529 F.2d 537.
Once having determined that alien is subject to negotiated collective bargaining agreement and receives no less than his
nonalien coworkers, Secretary of Labor has legal duty under this section to certify the alien, and such certification is not
matter of discretion. Naporano Metal & Iron Co. v. Secretary of Labor of U. S., C.A.3 (N.J.) 1976, 529 F.2d 537.
Court must accord some deference to an administrative agency's interpretation of its governing statutes. Lennon v.
Refusal of district director of the immigration and naturalization service to extend the date for alien's voluntary departure
from the United States was not an abuse of discretion, where the alien failed to claim, much less prove, that the refusal to
grant a further extension was in reprisal for his suing New York City police commissioner, and where, on the contrary, the
refusal rested on entirely sufficient grounds, including the alien's unexplained violation of the initial deportation order which
granted him the privilege of voluntary departure through a specified date. Bolanos v. Kiley, C.A.2 (N.Y.) 1975, 509 F.2d
1023.
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Mere fact that prerequisites for employment included lengthy and extensive training period did not automatically give
Secretary of Labor power to disregard them as unreasonable, in determining whether to grant labor certification for aliens.
Ratnayake v. Mack, C.A.8 (Minn.) 1974, 499 F.2d 1207.
Although Secretary of Labor's discretion as regards certificates for alien employment is not lightly to be disregarded, such
discretion is not to be exercised on mere conclusory and possibly irrelevant statements. Digilab, Inc. v. Secretary of Labor,
C.A.1 (Mass.) 1974, 495 F.2d 323, certiorari denied 95 S.Ct. 70, 419 U.S. 840, 42 L.Ed.2d 67.
United States consular officer is given broad discretionary authority in ruling on visa application. Reid v. Immigration and
Naturalization Service, C.A.2 1974, 492 F.2d 251, certiorari granted 95 S.Ct. 39, 419 U.S. 823, 42 L.Ed.2d 46, affirmed 95
S.Ct. 1164, 420 U.S. 619, 43 L.Ed.2d 501.
Record disclosed no abuse of administrative discretion in failure of Immigration and Naturalization Service to grant, nunc
pro tunc, permission to native and citizen of Mexico to reapply for admission after deportation. de Vargas v. Immigration and
Naturalization Service, C.A.5 (Tex.) 1968, 409 F.2d 335, certiorari denied 90 S.Ct. 192, 396 U.S. 895, 24 L.Ed.2d 172.
Where it did not affirmatively appear that executive officers abused their discretion, their finding upon question of
citizenship was conclusive. Wong Gook Chun v. Proctor, C.C.A.9 (Wash.) 1936, 84 F.2d 763.
Except when exempt from reading test, alien, who came to United States to reside either permanently or temporarily, was
admissible only in discretion of Secretary of Labor. Transatlantica Italiana v. Elting, C.C.A.2 (N.Y.) 1935, 75 F.2d 970.
Congress could invest Secretary of Labor with wide discretion in matter of admitting aliens who otherwise would be
excluded. Compagnie Generale Trans- Atlantique v. U.S., S.D.N.Y.1929, 39 F.2d 654.
In construing former 136 of this title in connection with Act Feb. 20, 1907, 2 and 10, executive officers of
government, subject only to review by courts, had no discretion to admit to United States person duly found to be imbecile by
board of special inquiry on certificate of medical examiner. U.S. v. Tod, C.C.A.2 (N.Y.) 1924, 297 F. 385, certiorari granted
44 S.Ct. 454, 264 U.S. 580, 68 L.Ed. 859, petition dismissed 45 S.Ct. 229, 267 U.S. 607, 69 L.Ed. 811.
Treatment of juvenile aliens following their arrival in the United States was unduly harsh and their detention in facilities
was not suited to juvenile custody or rehabilitation, and there was thereby an abuse of discretion by federal officials
responsible for their custody; status of the juveniles as aliens subject to exclusion did not warrant deprivation of the
protections and benefits offered to other juveniles in the United States. Diaz v. Haig, D.C.Wyo.1981, 594 F.Supp. 1.
Acting district director of Immigration and Naturalization Service did not abuse his discretion in denying applications of
alien, who had been ordered deported, to reapply for admission after deportation, for waiver of grounds of excludability, and
for stay of deportation, based on alien's callous attitude toward violating immigration laws, his conviction for obtaining
money by false pretenses, affidavit from his former attorney stating that alien had failed to pay his fees, and investigation
indicating that alien was not registered to live with his wife, who was permanent resident, and her children. Emmanuel v.
U.S.I.N.S., D.C.Virgin Islands 1984, 579 F.Supp. 1541.
Absent showing that there were qualified American employees available for teaching job offered by Montessori school to
alien who met school's hiring requirements, Secretary of Labor abused his discretion in denying alien employment
certification. Montessori Children's House and School, Inc. v. Secretary of Labor of U. S., N.D.Tex.1977, 443 F.Supp. 599.
Subsection (d)(6) of this section providing that the Attorney General shall prescribe conditions to control and regulate the
admission and return of excludable aliens applying for temporary admission is a grant of authority to the Attorney General to
insure that the alien does not put himself beyond the reach of immigration authorities, and is not a grant of authority to
adjudicate or enforce custodial or constitutional rights and claims. Huynh Thi Anh v. Levi, E.D.Mich.1977, 427 F.Supp.
1281, affirmed 586 F.2d 625.
Although generalized survey of labor market in region demonstrated that there was an oversupply of applications for
employment positions as a "Faculty Member," a category which seemingly included all of the numerous and diverse teaching
positions in higher education, where there was no indication whether there was an oversupply of applicants in alien's field of
political science/foreign affairs, question whether denial of application for alien certification was an abuse of discretion was
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not answerable and case was remanded for further administrative development concerning availability of domestic workers to
perform jobs in alien's area of expertise. Yusuf v. Regional Manpower Administration of U. S. Dept. of Labor, W.D.Va.1975,
390 F.Supp. 292.
Casual consideration given to application by alien seeking an alien employment certification constituted a clear abuse of
discretion where, after being advised by the Colorado Division of Employment that no qualified applicants were available,
someone in the regional Manpower Administrator's office took it upon himself to conclude that corporation which supported
issuance of certification to alien employee had acted in bad faith and had intentionally written into its application unnecessary
qualifications to benefit the alien. Xytex Corp. v. Schliemann, D.C.Colo.1974, 382 F.Supp. 50.
The provisions of former 213(b) of this title were an addition to and not a substitution for the provisions of former 1 et
seq. of this title and were enforced as a part of such former sections, and therefore the discretion given the Attorney General
in former 136(p) of this title was not terminated by such former 213(b). Zacharias v. McGrath, D.C.D.C.1952, 105
F.Supp. 421.
Discretionary refusal of Secretary of Labor, acting by board of review, to exercise her former statutory power to admit
inadmissible alien for temporary stay in country under bond, was not subject to control by courts. U.S. ex rel. Frumcair v.
Reimer, S.D.N.Y.1938, 25 F.Supp. 552.
66. ---- Position of immigration officers, administration and enforcement
Where Immigration Officer had determined that aliens, who sought admission for permanent residence as displaced
persons, were not otherwise admissible, and such conclusion was reached in all the proceedings, such officer could not shift
his position in subsequent habeas corpus proceeding so as to prevent relators from obtaining temporary admission as
"otherwise admissible aliens." U S ex rel Hadrosek v. Shaughnessy, S.D.N.Y.1951, 101 F.Supp. 432.
67. Secretary of Labor, administration and enforcement
Immigration and Naturalization Service had authority to determine that alien who had obtained labor certification from
Department of Labor was unqualified for job certified, in that Department of Labor was responsible only for determining
availability of suitable American workers for job and impact of alien employment upon domestic labor market. K.R.K.
Irvine, Inc. v. Landon, C.A.9 (Cal.) 1983, 699 F.2d 1006.
Labor certification determinations of Department of Labor, pursuant to authority granted by this chapter, are not subject to
review by Immigration and Naturalization Service absent fraud or willful misrepresentation, but all matters relating to
preference classification eligibility not expressly delegated to Department of Labor remain within Service's authority.
Madany v. Smith, C.A.D.C.1983, 696 F.2d 1008, 225 U.S.App.D.C. 53.
Information from state employment agency to effect that there are American workers to fill positions for which an alien
labor certificate is sought can be rebutted where in interviewing or testing the workers who are sent in response to job bank
order the employer concludes that they do not meet all qualifications reasonably necessary for performance of the job;
however, what constitutes reasonably necessary qualifications, as opposed to personal preferences of the employer, is in the
first instance for the Regional Director for Manpower of Department of Labor. Stenographic Machines, Inc. v. Regional
Administrator for Employment and Training, C.A.7 (Ill.) 1978, 577 F.2d 521.
Where job offer on which alien immigrant's labor certificate was based described the duties of his prospective position as
"preparation of Spanish dishes, such as paella, arroz con pollo" and required "three years experience as a cook." and where,
although alien's statement of qualifications on alien form represented that his job as a cook involved the preparation of all
Spanish type food, in fact his previous job had required preparation of steaks, hamburgers, and other sandwiches, Secretary
of Labor could issue a labor certificate without abusing his discretion. Castaneda-Gonzalez v. Immigration and Naturalization
Service, C.A.D.C.1977, 564 F.2d 417, 183 U.S.App.D.C. 396.
Secretary of Labor's certification of immigrant alien would be an abuse of discretion where facts clearly demonstrated, on
their face, that there was no need or that employment would adversely affect conditions of workers in United States similarly
employed. Castaneda-Gonzalez v. Immigration and Naturalization Service, C.A.D.C.1977, 564 F.2d 417, 183 U.S.App.D.C.
396.
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It is well within Secretary's discretion to ignore employer's specifications which he deems, in accordance with his labor
market expertise, to be irrelevant to basic job which employer desires performed; his obligation rather is simply to locate
class of workers who, while possibly not meeting prospective employer's personalized job description, do provide employer
with potential for getting the job accomplished. Doraiswamy v. Secretary of Labor, C.A.D.C.1976, 555 F.2d 832, 180
U.S.App.D.C. 360.
Under this section, primary authority over labor qualifications vests in Secretary of Labor, but Attorney General retains
authority to overrule Secretary, after consultation with him, for any possible abuse of discretion. Singh v. Attorney General,
D.C.D.C.1980, 510 F.Supp. 351, affirmed 672 F.2d 894, 217 U.S.App.D.C. 360.
Decision of Regional Manpower Administrator effectively establishing consultation with and use of the state employment
service as a condition precedent for labor certification to alien, exceeded the statutory powers granted to Secretary of Labor
and his delegate. Sherwin-Williams Co. v. Regional Manpower Adm'r of U. S. Dept. of Labor, N.D.Ill.1976, 439 F.Supp.
272.
Where Secretary of Labor has failed to collect evidence on availability of nonalien workers at time and place pertinent to
application for labor certification to alien, and whether such nonaliens are able, willing and qualified, denial of labor
certification to alien is a reversible abuse of discretion. Sherwin-Williams Co. v. Regional Manpower Adm'r of U. S. Dept. of
Labor, N.D.Ill.1976, 439 F.Supp. 272.
Where it was Secretary of Labor's failure to have published a directive suspending schedule of employment for which alien
could obtain labor certificate by merely demonstrating his qualifications that created uncertainty in ascertaining what status
of 21 aliens would have been on date, five years earlier, when aliens, who had been precertified and had reached priority
position, would be deemed to have satisfied labor certification requirement, it would be appropriate to resolve any
uncertainty against government, in action in which aliens sought to obtain benefits of order entered in previous class
litigation determining the directive to be invalid and setting such date. Veras-Mejia v. Brennan, S.D.N.Y.1976, 418 F.Supp.
680.
Under this section empowering Secretary of Labor to deny alien employment certification where employment of alien will
adversely affect wages and working conditions of American workers similarly employed, Secretary had authority to
promulgate regulation which provided that prospective employment is deemed to adversely affect wages or working
conditions of American workers if employment involves any discrimination with regard to race, creed, color, national origin,
age or sex; thus, regulation was valid. Witt v. Secretary of Labor, D.C.Me.1975, 397 F.Supp. 673.
Secretary of Labor had right to conclude that prospective employer's preference for male cosmetologist, based on desire of
some of customers of her beauty salon, was not legitimate consideration which Secretary was required to recognize in
determining whether available cosmetologists in area were "qualified" for purposes of determining whether to grant or refuse
application for employment certification for male alien to work as cosmetologist. Witt v. Secretary of Labor, D.C.Me.1975,
397 F.Supp. 673.
68. Attorney General, administration and enforcement
Attorney General has authority, implicit in the Immigration and Naturalization Act, to detain excludable aliens indefinitely.
Guzman v. Tippy, C.A.2 (N.Y.) 1997, 130 F.3d 64.
Because statute governing waiver of inadmissibility did not expressly provide for how discretion of Board of Immigration
Appeals (BIA) should be exercised, Attorney General had unusually broad discretion in granting or denying waivers. Opie v.
I.N.S., C.A.5 1995, 66 F.3d 737.
There is no express limitation on United States Attorneys' power to bind Immigration and Naturalization Service (INS) to
cooperation agreement between United States Attorney and alien under which government promises not to oppose motions
for relief from deportation made to INS. Thomas v. I.N.S., C.A.9 1994, 35 F.3d 1332, amended on denial of rehearing.
In temporarily suspending releases of Mariel Cubans under status review plan, Attorney General was acting pursuant to
authority delegated to him under Immigration and Nationality Act, 212(d)(5), as amended, 8 U.S.C.A. 1182(d)(5) which
delegates authority to Attorney General to grant parole, and therefore, the facially legitimate and bona fide reasons standard
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of the statute was applicable to Attorney General's parole decisions, whether made under the status review plan or otherwise.
Garcia-Mir v. Smith, C.A.11 (Ga.) 1985, 766 F.2d 1478, certiorari denied 106 S.Ct. 1213, 475 U.S. 1022, 89 L.Ed.2d 325.
In determining whether an alien is within excludable class due to failure to obtain or hold certificate of labor, the Attorney
General's inquiry is limited to whether the Secretary of Labor has determined that the substantive requirements for issuance
of such a certificate are satisfied, and once alien demonstrates that the Secretary of Labor has made such a determination in
his favor, statutorily delegated enforcement power of the Attorney General is exhausted. Castaneda-Gonzalez v. Immigration
and Naturalization Service, C.A.D.C.1977, 564 F.2d 417, 183 U.S.App.D.C. 396.
In considering whether Secretary of Labor has determined that alien should be issued a certificate of labor so as not to be
excludable, the Attorney General is of course free to consider not only the labor certificate submitted by alien but also the
regulations of the Secretary in effect at time of entry and their application to the facts as they exist at the time of entry.
Castaneda- Gonzalez v. Immigration and Naturalization Service, C.A.D.C.1977, 564 F.2d 417, 183 U.S.App.D.C. 396.
Attorney General had authority to detain without parole Cuban national found to be excludable and deportable until his
deportation could be effected. Alvarez-Mendez v. Stock, C.D.Cal.1990, 746 F.Supp. 1006, affirmed 941 F.2d 956, certiorari
denied 113 S.Ct. 127, 506 U.S. 842, 121 L.Ed.2d 82.
69. Approval of Attorney General, administration and enforcement
Voluntary departure for an alien who would otherwise be deported means that he will not be subject to this section which
requires aliens who have once been deported to seek prior approval of the Attorney General before reentering; there is no
comparable requirement of prior approval for aliens who have been excluded and later seek again to enter. Landon v.
Plasencia, U.S.Cal.1982, 103 S.Ct. 321, 459 U.S. 21, 74 L.Ed.2d 21, on remand 719 F.2d 1425.
70. Deferred action status, administration and enforcement
Deferred action status is granted as matter of prosecutorial discretion; authority has not been delegated to immigration
judges or to Board of Immigration Appeals. Johnson v. I.N.S., C.A.7 1992, 962 F.2d 574.
71. Parole of aliens, administration and enforcement--Generally
Temporary parole in United States while alien's admissibility was being determined did not entitle alien to exercise of
Attorney General's authority to withhold deportation of any alien "within the United States" if alien would thereby be
subjected to physical persecution. Leng May Ma v. Barber, U.S.Cal.1958, 78 S.Ct. 1072, 357 U.S. 185, 2 L.Ed.2d 1246.
The parole of aliens seeking admission is simply a device through which needless confinement is avoided while
administrative proceedings are conducted and was never intended to affect an alien's status. Leng May Ma v. Barber,
U.S.Cal.1958, 78 S.Ct. 1072, 357 U.S. 185, 2 L.Ed.2d 1246.
"Advance parole" is administrative procedure which provides Attorney General with discretion to grant aliens temporary
entry to United States for emergent reasons or for reasons deemed strictly in the public interest and may be used to permit
aliens to leave the country and reenter lawfully without jeopardizing pending applications for discretionary relief.
Navarro-Aispura v. I.N.S., C.A.9 (Cal.) 1995, 53 F.3d 233.
Aliens may be excluded or denied parole on grounds that might be suspect in the context of domestic legislation, as there
are apparently no limitations to power of federal government to determine what classes of aliens will be permitted to enter the
United States and what procedures will be used to determine their admissibility. Cuban American Bar Ass'n, Inc. v.
Christopher, C.A.11 (Fla.) 1995, 43 F.3d 1412, certiorari denied 115 S.Ct. 2578, 515 U.S. 1142, 132 L.Ed.2d 828, certiorari
Alien who has been paroled into United States is treated the same as one who has only just arrived, as any other applicant
for admission to the United States. Alvarez-Mendez v. Stock, C.A.9 (Cal.) 1991, 941 F.2d 956, certiorari denied 113 S.Ct.
127, 506 U.S. 842, 121 L.Ed.2d 82.
Refugee Act was intended to provide procedure which would minimize Attorney General's need to utilize parole power as
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informal vehicle to assure admission of refugees. Amanullah v. Nelson, C.A.1 (Mass.) 1987, 811 F.2d 1.
Likelihood that excludable alien would abscond if released on parole was facially legitimate and bona fide reason for
Immigration and Naturalization Services' decision not to release him. Sidney v. Howerton, C.A.11 (Fla.) 1985, 777 F.2d
1490.
Alien who was placed on parole after physically entering United States is in same position as one who seeks admission at
border. Delgado-Carrera v. U.S. I.N.S., C.A.5 1985, 773 F.2d 629.
Excluded alien's disciplinary infractions while in custody, together with his convictions for crimes of moral turpitude in
Cuba, warranted denial of parole when he was detained because he could not be returned. Palma v. Verdeyen, C.A.4 (Va.)
1982, 676 F.2d 100.
The parole of aliens seeking admission is simply a device through which needless confinement is avoided while
administrative proceedings are conducted; it was never intended to affect an alien's status. U. S. v. Kavazanjian, C.A.1
(Mass.) 1980, 623 F.2d 730.
By admitting Vietnamese children, believed to be orphans, as aliens under a parole from the Attorney General, the
Immigration and Naturalization Service did not acquire a further duty to require the removal of the children from Michigan
where they were residing with their foster parents or to insure reunification of the children with their relatives. Huynh Thi
Anh v. Levi, C.A.6 (Mich.) 1978, 586 F.2d 625.
Placing of alien in custody of airline, with instruction to report to Immigration Office the following morning, constituted
parole, rather than admittance, of the alien, for purpose of determining whether he was entitled to deportation hearing as
distinguished from exclusion hearing, notwithstanding that alien failed to appear the following morning and did not
voluntarily appear until seven days later. Vitale v. Immigration and Naturalization Service, C.A.7 (Ill.) 1972, 463 F.2d 579.
Parole of an arriving alien into the United States for the purpose of prosecuting him for smuggling, was a proper exercise
of authority by the Attorney General under subsection (d)(5) of this section. Klapholz v. Esperdy, C.A.2 (N.Y.) 1962, 302
F.2d 928, certiorari denied 83 S.Ct. 183, 371 U.S. 891, 9 L.Ed.2d 124.
Continued detention of excludable alien while Immigration and Naturalization Service (INS) attempted to secure his
deportation to the People's Republic of China did not deny him any statutory or constitutional right; since alien was never
admitted to the United States, and was never in the country legally, he had neither a statutory nor constitutional right to
immigration parole. Zheng v. I.N.S., E.D.La.2002, 207 F.Supp.2d 550.
Immigration and Naturalization Service (INS) officers charged with detaining Haitian boat refugees implemented detention
policy as established by high-level INS officials, and thus refugees were properly denied parole; officers continued to review
Haitians' parole requests on individual, case-by-case basis, and approximately fifteen Haitians with cases of unusual hardship
were approved for parole. Jeanty v. Bulger, S.D.Fla.2002, 204 F.Supp.2d 1366.
Alien's apparent excludability was properly considered as factor in determining whether he presented risk of absconding as
basis for denying parole. Schoenmetz v. Ingham, W.D.N.Y.1996, 949 F.Supp. 152.
Government did not violate parole provision of Immigration and Nationality Act (INA) when it brought alien to United
States to testify in heroin conspiracy trial without alien's consent, since alien applied for admission pursuant to statute;
"applying for admission" was term of art referring to alien's presence at border of United States, not to his subjective wish to
come here. Xiao v. Reno, N.D.Cal.1993, 837 F.Supp. 1506, affirmed 81 F.3d 808.
There is no mandatory human immunodeficiency virus (HIV) exclusion for either parole (the means by which interdicted
aliens who are screened in are brought to the United States to pursue their asylum claims) or the grant of asylum in the
United States. Haitian Centers Council, Inc. v. Sale, E.D.N.Y.1993, 823 F.Supp. 1028.
An Immigration and Naturalization Service (INS) policy, under which applicants who met certain criteria and were not
threat to abscond or to public safety would be released on parole, was applicable to parole decisions regarding aliens
throughout entire adjudication of their claims, including judicial review of INS administrative decisions, and, thus, District
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Director of INS would be required to review request for parole in light of policy even if petitioner had advanced through
some degree of administrative process, and to state reasons for denial of requests that were legitimate and bona fide. Noorani
v. Smith, W.D.Wash.1993, 810 F.Supp. 280.
Denial of unadmitted alien's second parole request was not abuse of discretion given that request was made after alien was
refused admission by another country and returned to United States, alien was still subject to final order of exclusion, and
alien was not given any travel documents by country from which travel originated. Bruce v. Slattery, S.D.N.Y.1991, 781
F.Supp. 963.
Denial of excludable alien's request for parole should be based on affirmative determination that public interest warrants
continued detention; decision must be made on individualized basis. Li v. Greene, D.Colo.1991, 767 F.Supp. 1087.
Issuance of notice of releaseability to excludable alien did not entitle alien to immigration parole; the alien's record of
institutional violence justified Attorney General's failure to release alien and imposition of transition program as condition to
actual release. de la Cruz v. Kindt, S.D.Ind.1991, 764 F.Supp. 126.
Past criminal convictions constitute facially legitimate and bona fide reason for refusing to parole excludable alien. Ramos
v. Thornburgh, W.D.La.1991, 761 F.Supp. 1258, affirmed 988 F.2d 1437, amended on other grounds 997 F.2d 1122.
Attorney General had statutory authority to detain excludable aliens indefinitely, where only option in event that immediate
deportation was not practicable was parole into United States temporarily, which Congress intended Attorney General use
only sparingly in emergency-type situations. Tartabull v. Thornburgh, E.D.La.1990, 755 F.Supp. 145.
Legislative history of Immigration and Naturalization Act demonstrates that parole of unadmitted alien was meant to be the
exception rather than the rule. Barrios v. Thornburgh, W.D.Okla.1990, 754 F.Supp. 1536.
Denial of undocumented alien's request for parole was not supported by evidence, though alien had used counterfeit
immigration papers when trying to reenter country after three-week departure, where alien was likely to be found eligible for
legalization, under amnesty program, and he presented no security or flight risk. Gutierrez v. Ilchert, N.D.Cal.1988, 702
F.Supp. 787.
Parole of alien by Immigration and Naturalization Service did not change alien's legal status as excludable alien.
Ordaz-Machado v. Rivkind, S.D.Fla.1987, 669 F.Supp. 1068.
8 U.S.C.A. 1182(d)(5)(B) was added to parole statute to make it clear that refugees potentially eligible for admission
should not be paroled unless compelling reasons in public interest with respect to that particular alien require that alien be
paroled into United States, and was added to restrict Attorney General's parole power with respect to admitting groups of
refugees. Singh v. Nelson, S.D.N.Y.1985, 623 F.Supp. 545.
Alien's conjugal and paternal ties to his wife and child in United States did not overcome risk of future flight by alien if he
were to be released from detention pending adjudication by United States Immigration and Naturalization Service on his
application for political asylum and for visa based upon his marriage to United States citizen, where alien had left two other
children and their mother in Haiti where he had first sought to enter United States by way of presentation of fraudulent
passport. St. Fleur v. Sava, S.D.N.Y.1985, 617 F.Supp. 403.
Although Haitian nationals who had escaped from detention prior to entry of court's final judgment providing for parole
were members of class, they were subject to rule that individual in custody under process issued pursuant to the laws of the
United States cannot test the underlying validity or propriety of confinement by escaping from it even if it is later shown that
the detention was unlawful at the time of escape, and thus were not entitled to parole pursuant to court's determination as to
the class members still in detention that there was nothing in the record to indicate that they were likely to abscond or
represent a security risk. Louis v. Nelson, S.D.Fla.1983, 560 F.Supp. 899.
A decision of thedistrict director of the Service in exercise of his parole power is very broad. Gilroy v. Ferro,
S.D.N.Y.1982, 534 F.Supp. 321.
Presumably, denial of "asylum" was a carelessly expressed denial of parole under this section authorizing Attorney General
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to parole alien. Conceiro v. Marks, S.D.N.Y.1973, 360 F.Supp. 454.

That an excluded alien is paroled into the country does not change his status or enlarge his rights, but he is still subject to
the provisions of this chapter governing exclusion and has no greater claim to due process than if he was held at border.
Licea-Gomez v. Pilliod, N.D.Ill.1960, 193 F.Supp. 577.
Unrest and chaos in Austria resulting from Hungarian insurrection of 1956 warranted temporary parole of deserving bona
fide Hungarian refugees, pursuant to subsection (d)(5) of this section, pending such appropriate legislation as Congress might
enact to clarify their status. Application of Paktorovics, S.D.N.Y.1957, 156 F.Supp. 813, reversed on other grounds 260 F.2d
610.
72. ---- Administrative discretion, parole of aliens, administration and enforcement
Because current statutes and regulations provide undocumented and unadmitted aliens from Haiti with nondiscriminatory
parole consideration, the Court of Appeals, in suit challenging the lawfulness of Immigration and Naturalization Service's
change from policy of general parole for undocumented aliens seeking admission to a policy, based on no statute or
regulation, of detention without parole for aliens who cannot present a prima facie case for admission, should not have
reached and decided parole question on constitutional grounds; however, it properly remanded case to consider whether INS
officials exercised their discretion under statute to make individualized parole determinations, and whether they exercised
such discretion without regard to race or national origin. Jean v. Nelson, U.S.Fla.1985, 105 S.Ct. 2992, 472 U.S. 846, 86
L.Ed.2d 664.
Attorney General has discretion to grant immigration parole only for "emergency reasons" or for reasons deemed strictly in
the public interest, suggesting that for excludable aliens, Congress intended that parole be the exception and not the rule,
particularly when considered with foreign policy implications of immigration policy. Barrera-Echavarria v. Rison, C.A.9
(Cal.) 1995, 44 F.3d 1441, certiorari denied 116 S.Ct. 479, 516 U.S. 976, 133 L.Ed.2d 407.
Statutory claims made by unaccompanied minor Haitian migrants being held in safe haven on leased United States military
base on foreign soil could not justify injunction directing government to parole them into the United States on same grounds
as it permitted parole of unaccompanied minor Cuban migrants; Attorney General had exercised her discretion on legitimate
basis of different political climates in Haiti and Cuba. Cuban American Bar Ass'n, Inc. v. Christopher, C.A.11 (Fla.) 1995, 43
F.3d 1412, certiorari denied 115 S.Ct. 2578, 515 U.S. 1142, 132 L.Ed.2d 828, certiorari denied 116 S.Ct. 299, 516 U.S. 913,
133 L.Ed.2d 205.
Excludable aliens did not have liberty interest in being paroled, denial of which constituted violation of their rights to
procedural due process; statute vested in Attorney General discretion as to whether to award parole. Gisbert v. U.S. Atty.
Gen., C.A.5 (La.) 1993, 988 F.2d 1437, amended on other grounds 997 F.2d 1122.
Attorney General's decision to deny alien parole to enter United States to file application for naturalization is not reviewed
under traditional abuse of discretion standard; instead, rejection of parole will be upheld if facially legitimate and bona fide
reason for denial has been advanced. Mason v. Brooks, C.A.9 (Wash.) 1988, 862 F.2d 190.
Even if excludable aliens, seeking habeas review of Attorney General's refusal to parole them from federal penitentiary,
had exhausted administrative remedies, there was no substantive issue warranting appointment of counsel, in that parole was
a discretionary decision for the Attorney General and petitions at issue showed the required facially legitimate and bona fide
reason for denial of parole on their face, in that petitioners themselves noted their past criminal convictions in their petitions.
Perez-Perez v. Hanberry, C.A.11 (Ga.) 1986, 781 F.2d 1477.
Attorney General has broad discretion to grant or deny parole from Immigration and Naturalization Service custody, but
discretion is not unlimited; like other agency actions, parole-related decisions may be reviewed to determine whether action
was arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law. Moret v. Karn, C.A.3 (Pa.) 1984, 746
F.2d 989.
Where Cuban nationals had received exclusion hearings and were found to have been excludable, fact that Attorney
General paroled most of Cuban nationals who participated in "freedom flotilla," did not change their legal status; thus, they
were still excluded aliens and subject to deportation. Fernandez-Roque v. Smith, C.A.11 (Ga.) 1984, 734 F.2d 576, on
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remand 622 F.Supp. 887.

Since immediate implications of parole and legal admission of aliens are identical in number of important respects,
excludable aliens cannot challenge either admission or parole decisions under claim of constitutional rights. Jean v. Nelson,
C.A.11 (Fla.) 1984, 727 F.2d 957, rehearing denied 733 F.2d 908, certiorari granted 105 S.Ct. 563, 469 U.S. 1071, 83
L.Ed.2d 504, affirmed 105 S.Ct. 2992, 472 U.S. 846, 86 L.Ed.2d 664.
Attorney General had facially legitimate and bona fide reason for denying parole to excludable alien after unsuccessful
attempt to return him, based on his serious risk of absconding; because he was subject to final administrative order of
exclusion with no alternative relief in sight, he would have little reason to return to custody of Immigration and
Naturalization Service (INS) if he were paroled. Singh v. U.S. I.N.S., D.Md.1997, 965 F.Supp. 724.
Attorney General, or Immigration and Naturalization Service (INS) district director, as designee, must not abuse his or her
discretion in determining whether to grant parole to alien. Mejia-Ruiz v. I.N.S., E.D.N.Y.1994, 871 F.Supp. 159.
Attorney General's refusal to parole human immunodeficiency virus (HIV) positive Haitian refugees from their detention at
Guantanamo Bay Naval Base in Cuba due to their HIV positive status was an abuse of discretion; Haitians remained in
detention solely because they were Haitian and had tested HIV- positive, refusal to release Haitians from detention was
unjustified deviation from established parole policy, and in invoking HIV ban to deny Haitian detainees parole, Attorney
General had given effect to considerations that Congress could not have intended to make relevant. Haitian Centers Council,
Inc. v. Sale, E.D.N.Y.1993, 823 F.Supp. 1028.
Immigration and Naturalization Service (INS) district director did not abuse his discretion in refusing to parole into United
States for purposes of prosecution temporary resident alien subject to exclusion proceeding in connection with her alleged
attempt to enter country with cocaine, despite magistrate's determination that conditions other than pretrial detention would
reasonably assure her presence at trial and would not endanger safety of others or community; there was no inconsistency.
Pierre v. U.S. I.N.S., E.D.N.Y.1992, 793 F.Supp. 440.
Immigration and Naturalization Service's denial of first request for parole by unadmitted alien was not abuse of discretion
in light of alien's repeated misrepresentations of his identity and nationality; alien's misrepresentations gave rise to reasonable
conclusion that alien might abscond. Bruce v. Slattery, S.D.N.Y.1991, 781 F.Supp. 963.
Subject to provision that such paroles may be denied only for factually legitimate and bona fide reasons, courts may not
review Attorney General's decision to deny parole to excludable alien. Fragedela v. Thornburgh, W.D.La.1991, 761 F.Supp.
1252; Ramos v. Thornburgh, W.D.La.1991, 761 F.Supp. 1258, affirmed 988 F.2d 1437, amended on other grounds 997 F.2d
1122; Gonzalo v. Thornburgh, W.D.La.1991, 761 F.Supp. 1264.
District Director of United States Immigration and Naturalization Service did not exercise his discretion irrationally in
denying parole to Haitian alien who was being detained pending adjudication by Service of his application for political
asylum and for visa, on ground that when alien had first sought admission to United States he had presented Haitian passport
bearing fraudulent endorsement that he was lawful permanent resident of country and on ground that alien had absconded
from detention center while he was being held by Service for further proceedings, thus suggesting risk that he would flee
parole. St. Fleur v. Sava, S.D.N.Y.1985, 617 F.Supp. 403.
Decision of District Director of Immigration and Naturalization Service to deny parole to nonresident alien pending a final
decision on his application for asylum was not an abuse of discretion, since alien lacked family ties in the United States and,
thus, could have absconded if parole were granted, and alien had possessed and used documents with a false name upon his
arrival in the country. Application of Pierre, E.D.Pa.1985, 605 F.Supp. 265.
Acting district director of Service did not abuse his discretion in denying applications for parole of two excludable
Palestinian aliens, pending adjudication of their respective applications for asylum, on basis that they presently posed
legitimate risk of absconding, where they had applied for but were denied immigrant visas, they had attempted to enter
country en route to Mexico but there was little indication that they intended to go there, their father allegedly suffered heart
attack but was released from hospital hours later, and the Service repeatedly requested their appearance and detailed medical
report on their father yet they did not respond. Abu Laban v. Sava, S.D.N.Y.1982, 564 F.Supp. 30.
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District director of the Service could either rely only upon considerations listed in guidelines in determining whether to
grant parole to alien, or he could use criteria in addition to those listed in guidelines. Tobia v. Sava, S.D.N.Y.1982, 556
F.Supp. 325.
United States Attorney General did not abuse his discretion in denying request for advanced parole filed on behalf of
76-year-old immigrant where many prospective immigrants were in same or similar position. Cohen v. Smith, S.D.Tex.1982,
534 F.Supp. 618.
Parole authority over aliens whereby district director of the Service has authority to grant advance parole for aliens to
reenter country following brief absence abroad for various personal or bona fide business reasons in order to pursue their
application for permanent residence, as granted to Attorney General and delegated to district director, is discretionary and not
mandatory and is to be granted in accordance with conditions and limitations established by Attorney General or those
authorized by him. Massoud v. Attorney General of U.S., W.D.Mo.1978, 459 F.Supp. 672.
Where it was entirely possible that alien, upon his return to the country, would not be granted permanent residence status,
rational basis existed for denial by the district director of the Immigration and Naturalization Service of advance parole
sought by alien. Massoud v. Attorney General of U.S., W.D.Mo.1978, 459 F.Supp. 672.
Though Vietnamese children were in the United States through the exercise of the parole power by the Attorney General,
where custody battle was between grandmother and uncle who were present in the United States and American foster parents
and there was no allegation or pretense that the grandmother and uncle were attempting to obtain custody to return the
children to Vietnam, so that, no matter which side was successful, the children would remain in the United States, federal
district court had no power to make an effective custody order under its habeas corpus jurisdiction against the Attorney
General and immigration officials. Huynh Thi Anh v. Levi, E.D.Mich.1977, 427 F.Supp. 1281, affirmed 586 F.2d 625.
Attorney General has no discretion to grant waiver of two-year foreign residence requirement to alien who has educational
visitor status unless the Secretary of State has made a recommendation that the two-year residential requirement be waived,
and unless the Attorney General has made a finding that the admission of the alien is in the public interest. Nwankpa v.
Kissinger, M.D.Ala.1974, 376 F.Supp. 122, affirmed 506 F.2d 1054.
It was not an abuse of discretion to deny parole to Cuban refugee who had Spanish visa and had fraudulently boarded
aircraft bound for New York. Conceiro v. Marks, S.D.N.Y.1973, 360 F.Supp. 454.
Attorney General did not abuse discretion, under subsection (d)(5) of this section permitting him to parole aliens in the
public interest, in paroling arriving alien for purpose of prosecuting him for smuggling. Klapholz v. Esperdy, S.D.N.Y.1961,
201 F.Supp. 294, affirmed 302 F.2d 928, certiorari denied 83 S.Ct. 183, 371 U.S. 891, 9 L.Ed.2d 124.
The Attorney-General has discretion to parole excluded aliens for emergent reasons or reasons deemed in the public
interest but otherwise, there is no provision for release of an excluded alien Chin Ming Mow v. Dulles, S.D.N.Y.1953, 117
F.Supp. 108.
Continued detention of Cuban refugees, who had no history of criminality, who were unlikely to be excluded back to Cuba
anytime in the near future, who were unlikely to abscond, who were not threat to national security or the public interest, who
had not committed crimes in United States, and who were invited to the United States by the president, constituted an abuse
of discretion of the parole authority. Fernandez-Roque v. Smith, N.D.Ga.1981, 91 F.R.D. 239.
Attorney General has discretion to parole excluded aliens for emergent reasons or for reasons that are deemed in public
interest, e.g., in prosecution, but cannot parole excluded alien for limited purpose of allowing him to give deposition in
workmen's compensation case. Sandoval v. United Nuclear Corp., N.M.App.1986, 729 P.2d 503, 105 N.M. 105.
73. ---- Findings, parole of aliens, administration and enforcement
Immigration and Naturalization Service (INS) district director had facially legitimate and bona fide reason for denying
parole to alien in exclusion proceedings, and, thus his decision would be upheld; his finding that alien would not surrender
himself to custody of INS upon expiration of his parole could be construed as determination that alien was likely to abscond
to remain in country. Schoenmetz v. Ingham, W.D.N.Y.1996, 949 F.Supp. 152.
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Mariel Cubans, who were not mental incompetents and who had not committed serious crimes in Cuba, could be detained
only if a finding was made, pursuant to appropriate procedures, that the person was likely to abscond, to pose a risk to
national security, or to pose a serious and significant threat to persons or property within the United States, as such Cubans
came to the United States in response to a presidential invitation which created for them a protected liberty interest in
continued parole. Fernandez-Roque v. Smith, N.D.Ga.1985, 622 F.Supp. 887, stay granted 781 F.2d 1450.
District director of Immigration and Naturalization Service was not required to give aliens detailed explanation as to
reasons for parole denials or factors upon which he relied. Tobia v. Sava, S.D.N.Y.1982, 556 F.Supp. 325.
District director of the Immigration and Naturalization Service is not required to make formal findings in evaluation and
determination of alien's advance parole request. Massoud v. Attorney General of U.S., W.D.Mo.1978, 459 F.Supp. 672.
74. ---- Hearing, parole of aliens, administration and enforcement
Alien's refusal to surrender was violation of his parole into United States, which was matter of Attorney General's
discretion and could be ended without hearings or special forms; notice to alien to surrender was written and clear, it was
reiterated orally and in writing, and it was reviewed by five federal judges. Ofosu v. McElroy, C.A.2 (N.Y.) 1996, 98 F.3d
694.
Procedural due process rights of excludable aliens, whose immigration parole had been revoked, were not violated by their
detention in prison pending deportation, following completion of criminal sentences, on grounds that immigration parole
review procedures were constitutionally insufficient; there were regulations establishing findings that must be made before
recommending parole, and setting forth factors to be considered in determining whether to recommend parole, and there were
procedures for review hearing. Gisbert v. U.S. Atty. Gen., C.A.5 (La.) 1993, 988 F.2d 1437, amended on other grounds 997
F.2d 1122.
District court which chooses to grant evidentiary hearing on denial of immigration parole for allegedly excludable alien has
not overstepped its authority, even though aliens may not demand hearing as matter of right. Marczak v. Greene, C.A.10
(Colo.) 1992, 971 F.2d 510.
Unadmitted aliens, a class of Mariel Cuban refugees who were accorded a special immigration and parole status by the
Refugee Education Assistance Act, did not have a nonconstitutionally based due process liberty interest entitling them to
parole revocation hearings. Garcia-Mir v. Meese, C.A.11 (Ga.) 1986, 788 F.2d 1446, certiorari denied 107 S.Ct. 289, 479
U.S. 889, 93 L.Ed.2d 263.
Even if orally directing alien to present himself for hearing, withholding his passport and placing him in custody of airline
did not constitute "parole," for purpose of determining whether alien was entitled to a deportation rather than an exclusion
hearing, alien, who did not otherwise effect a reentry, was entitled only to an exclusion hearing since prior order of
deportation was deemed reinstated from its original date. Vitale v. Immigration and Naturalization Service, C.A.7 (Ill.) 1972,
463 F.2d 579.
Parole of an alien does not effect entry into the United States, and there is no right to a hearing in connection with
exclusion proceedings. Siu Fung Luk v. Rosenberg, C.A.9 (Cal.) 1969, 409 F.2d 555, certiorari dismissed 89 S.Ct. 2151, 396
U.S. 801, 24 L.Ed.2d 58.
Aliens paroled into the United States are not entitled to deportation hearings. Siu Fung Luk v. Rosenberg, C.A.9 (Cal.)
1969, 409 F.2d 555, certiorari dismissed 89 S.Ct. 2151, 396 U.S. 801, 24 L.Ed.2d 58.
Alien who was paroled into United States under this section, providing that Attorney General in his discretion may
temporarily parole aliens into United States, and that when purposes of parole shall in opinion of Attorney General have been
served, alien shall be forthwith returned to custody from which he was paroled, was not entitled to hearing before parole
could be revoked. Ahrens v. Rojas, C.A.5 (Fla.) 1961, 292 F.2d 406.
Excludable aliens were entitled to new hearing on their request for parole, where, following initial hearing, district director
failed to provide adequate reasons as to any alien to support their continued detention in public interest and failed to
demonstrate that he gave individual attention to their requests. Li v. Greene, D.Colo.1991, 767 F.Supp. 1087.
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Immigration and Nationality Act does not authorize indefinite detention of excludable aliens. Sanchez v. Kindt,
S.D.Ind.1990, 752 F.Supp. 1419.
Paroled alien who alleges threat of political persecution upon deportation is not entitled to hearing before special inquiry
officer but is entitled to administrative hearing before district director. Sui Fung Luk v. Rosenberg, D.C.Cal.1967, 276
F.Supp. 909.
Administrative hearing before district director which was granted to paroled alien met all of the requirements of procedural
due process and was essentially fair.Sui Fung Luk v. Rosenberg, D.C.Cal.1967, 276 F.Supp. 909.
75. ---- Conviction of parolee, parole of aliens, administration and enforcement
Under this section, prior conviction is a relevant factor to consider in deciding whether to permit an alien to remain in the
United States by granting deferred action status. Petition of Guerrero-Morales, D.C.Minn.1981, 512 F.Supp. 1328.
Conviction of alien while he was on parole within country, before admission, was ground for exclusion. Klapholz v.
Esperdy, S.D.N.Y.1961, 201 F.Supp. 294, affirmed 302 F.2d 928, certiorari denied 83 S.Ct. 183, 371 U.S. 891, 9 L.Ed.2d
124.
76. ---- Revocation, parole of aliens, administration and enforcement
Immigration and Naturalization Service (INS) may demand at any time that alien temporarily paroled into United States
return to custody. Ofosu v. McElroy, C.A.2 (N.Y.) 1996, 98 F.3d 694.
Revocation of alien's immigration parole without hearing did not violate alien's right to due process. Alvarez-Mendez v.
Stock, C.A.9 (Cal.) 1991, 941 F.2d 956, certiorari denied 113 S.Ct. 127, 506 U.S. 842, 121 L.Ed.2d 82.
Under regulations, before alien paroled into this country may lawfully be expelled, there must be written notice of parole
termination. U. S. v. Lagarda-Aguilar, C.A.9 (Ariz.) 1980, 617 F.2d 527.
Physical expulsion of alien from this country by Immigration and Naturalization Service agents did not constitute proper
termination of parole of alien who had been permitted to enter this country on parole, nor did such physical expulsion
establish that parole had been properly terminated, written notice being required. U. S. v. Lagarda-Aguilar, C.A.9 (Ariz.)
1980, 617 F.2d 527.
Where alien seaman's conditional landing permit was revoked and he was paroled for medical treatment for 30 days and he
disappeared for nine months, he had overstayed his temporary parole and could be expelled even though the permit may have
been improperly revoked because of no evidence that he was not a bona fide seaman or that he did not intend to depart on
vessel which brought him. U. S. ex rel. Lam Hai Cheung v. Esperdy, C.A.2 (N.Y.) 1965, 345 F.2d 989.
Summary revocation of alien's grant of indefinite voluntary departure was not denial of due process and alien had no right
to a hearing on such matter. Clarke v. U. S., C.A.5 (Fla.) 1963, 316 F.2d 732.
After alien acknowledged in writing receipt of notice that his parole was revoked, his status was same as if he had been
stopped at border. Ahrens v. Rojas, C.A.5 (Fla.) 1961, 292 F.2d 406.
Attorney General did not abuse his discretion in revoking alien's parole where Attorney General had been advised by
Secretary of State that any action taken to revoke such parole, deport alien, or restrict his presence at large would advance
nation's foreign policy objectives. Ahrens v. Rojas, C.A.5 (Fla.) 1961, 292 F.2d 406.
While revocation of parole status of aliens might not ordinarily require a hearing, the case of the Hungarian refugees, who
were invited to the United States, was sui generis, so that Hungarian refugee could not have his parole revoked without a
hearing at which time the basis for the discretionary ruling of revocation might be contested on the merits. U S ex rel.
Paktorovics v. Murff, C.A.2 (N.Y.) 1958, 260 F.2d 610.
Revocation of immigration parole and prolonged administrative detention of excludable alien pending deportation,
following his criminal conviction, did not violate due process clause. Pena v. Thornburgh, E.D.Tex.1991, 770 F.Supp. 1153.
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Attorney General was entitled to revoke alien's parole status for conviction of possession of cannabis. Ordaz-Machado v.
Rivkind, S.D.Fla.1987, 669 F.Supp. 1068.
With respect to program concerning Haitian nationals paroled from detention, it is incumbent upon alien in any secondary
migration to keep voluntary agency apprised of the desire of the alien to migrate and for the necessary arrangement to be
made by the voluntary agencies so that court's final judgment regarding reporting can be fully carried out, and any breakdown
in these procedures must be placed at the feet of the alien and can result in the revocation of parole for failure to comply.
Louis v. Nelson, S.D.Fla.1983, 560 F.Supp. 896.
When parole has been revoked the alien is considered as not being within the country. Yuen Kam Chuen v. Esperdy,
S.D.N.Y.1968, 279 F.Supp. 151, affirmed 393 F.2d 938, certiorari denied 89 S.Ct. 95, 393 U.S. 858, 21 L.Ed.2d 125,
rehearing denied 89 S.Ct. 371, 393 U.S. 956, 21 L.Ed.2d 371.
Alien seaman who arrived in United States as crewman, was inspected and conditionally paroled into the country,
absconded for three years and whose parole was revoked was subject to exclusion provisions of this section and 1282 and
1283 of this title, rather than expulsion provisions of 1284 of this title, and was not entitled to hearing on revocation of his
parole and denial of stay of deportation was not abuse of discretion. Sui Fung Luk v. Rosenberg, C.D.Cal.1967, 271 F.Supp.
485.
Mere fact that an alien had been at large on bond under administrative order as parolee and that for 11 years he had enjoyed
a temporary haven within this country while he litigated his claim for admission did not alter his status as an alien governed
by the exclusion provisions of this chapter covering the return of aliens who seek and are denied admission into the United
States rather than the expulsion provisions covering the deportation of aliens who have already gained admission. U S ex rel
Tom We Shung v. Murff, S.D.N.Y.1959, 176 F.Supp. 253, affirmed 274 F.2d 667.
When the Attorney General determines that the purposes of a parole have been served, parole is revoked and the parolee
faces exclusion proceedings as described in section 1225 and 1226 of this title, as would any alien applying for admission
into the United States. 1978 (Counsel-Inf.Op.) 2 Op.O.L.C. 299.
77. Revocation of visa, administration and enforcement
Physical absence of alien and her children from consular district was not ground for ab initio revocation of their
nonimmigrant visas by consular officer, even though their absence was in contravention of regulation concerning issuance of
the visas. Wong v. Department of State, C.A.9 (Cal.) 1986, 789 F.2d 1380.
78. Reapplication for visa, administration and enforcement
Immigration and Naturalization Service (INS) was not estopped from charging alien with being excludable at entry and
being present without valid visa, based on its instructions to her as to how to acquire valid visa, inasmuch as INS did not
instruct her that if she intended to stay permanently in United States, she should apply for new visa, but instructed her that
she could leave the United States and apply for new six-month visa, and INS did not know she was intending to violate
immigration laws or that she had previously violated immigration laws. Westover v. Reno, C.A.1 2000, 202 F.3d 475,
Denial by special inquiry officer of application of alien against whom deportation proceedings had been initiated for
permission to apply for readmission into United States nunc pro tunc was not an abuse of discretion in view of alien's long
record of immigration violations, his irresponsible if not bigamous marital history and his many false statements and
misrepresentations. Murillo-Aguilera v. Rosenberg, C.A.9 (Cal.) 1965, 351 F.2d 289.
The Immigration and Naturalization Service regulation providing that alien who has not remained outside United States for
five years following deportation needs Attorney General's permission to reapply for admission is consistent with the
Immigration and Nationality Act, 212(a)(17), as amended, 8 U.S.C.A. 1182(a)(17), which provides that aliens who have
been arrested and deported and who seek admission within five years of date of deportation must receive consent from
Attorney General to the reapplying for admission, and thus, regulation is valid. Estrada-Figueroa v. Nelson, S.D.Cal.1985,
611 F.Supp. 576.
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79. Clemency, administration and enforcement

Before a grant of clemency could be granted either through reversal of immigration judge's refusal to grant a waiver of
inadmissibility and adjustment of status or, alternatively, through a remand to enable the immigration judge to pass upon
belated application for a suspension of deportation, alien would be required to demonstrate his eligibility, a question of law
and fact required to be determined in accordance with this section and sections 1254 and 1255 of this title and precedent.
Chiaramonte v. Immigration and Naturalization Service, C.A.2 1980, 626 F.2d 1093.
Relief from burden of status of alien who has committed a crime of moral turpitude which mandates his exclusion can be
attained only through executive clemency. Chiaramonte v. Immigration and Naturalization Service, C.A.2 1980, 626 F.2d
1093.
80. Political asylum, administration and enforcement
Bureau of Immigration Appeals (BIA) had discretion to deny applicant's request for asylum based on applicant's criminal
record, regardless of whether fall of government which gave rise to applicant's well-founded fear of persecution at time he
fled home country supported finding that conditions had so changed that it was no longer more likely that persecution would
occur. Dhine v. Slattery, C.A.2 (N.Y.) 1993, 3 F.3d 613.
Statutory certification and quota system prescribed by this section and section 1153 of this title relating to aliens seeking to
enter United States to perform labor did not apply to those aliens seeking to obtain political asylum in United States. Pierre v.
U. S., C.A.5 (Fla.) 1976, 525 F.2d 933.
81. Temporary admission, administration and enforcement
Parole from Immigration and Naturalization Service custody does not grant alien legal residence in United States, but it
does allow for temporary harborage in this country of otherwise inadmissible alien. Moret v. Karn, C.A.3 (Pa.) 1984, 746
F.2d 989.
Alien, who stayed longer than permitted as visitor for pleasure, was deportable. Ramasauskas v. Flagg, C.A.7 1962, 309
F.2d 290.
Temporary admission of an alien into the United States was not restricted to the type of persons defined by former 203 of
this title as immigrants, but was also available in a proper case to stowaways not otherwise admissible. U.S. ex rel. Picicci v.
District Director of Immigration and Naturalization at Port of N.Y., C.A.2 (N.Y.) 1950, 181 F.2d 304.
Application to Commissioner of Immigration for temporary admission may be made at any time before actual departure of
a deportable alien from the United States. U.S. ex rel. Picicci v. District Director of Immigration and Naturalization at Port of
N.Y., C.A.2 (N.Y.) 1950, 181 F.2d 304.
Government can require aliens arriving by boat to remain on vessel pending determination of admission; permitting aliens
temporary harborage on shore, as act of legislative grace, does not confer additional rights on alien. Tartabull v. Thornburgh,
E.D.La.1990, 755 F.Supp. 145.
Immigration and Naturalization Services' submission of "Cuban Review Plan," providing for annual review of Mariel
Cubans pursuant to Immigration and Nationality Act relating to parole of detainees, established that excludable alien's
detention was temporary. Gallego v. I.N.S., W.D.Wis.1987, 674 F.Supp. 280.
Where aliens, seeking admission for permanent residence as displaced persons, sought release by whatever means were
available, fact that applications for release did not in terms seek temporary admission did not preclude relief under former
136 of this title governing otherwise inadmissible aliens applying for temporary admission. U S ex rel Hadrosek v.
82. Bonds for admission and return of inadmissible aliens, administration and enforcement
Immigration authorities, instead of excluding aliens unable to meet literacy test, were authorized to grant such aliens
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temporary admission under bond in their discretion. Compagnie Generale Trans-Atlantique v. U.S., S.D.N.Y.1929, 39 F.2d
654.
Where one deposited collateral to secure bond entered into by him conditioned that alien would not become public charge
and that he would depart from United Stateswithin six months from date of bond, and alien failed to depart within said six
months and no seasonable application for further extension of time was made, condition of bond was breached, and liability
became fixed. Matta v. Tillinghast, C.C.A.1 (Mass.) 1929, 33 F.2d 64.
Fact that similar provision in Act of 1907 contained no direct provision for bond for admission of alien children under 16,
did not preclude acceptance of bond for such purpose. Such section provided for admission of such children when
accompanied by one or both parents at discretion of Secretary of Labor, and in exercise of that discretion he clearly would
have authority to condition their admission upon giving bond conditioned on their attendance at public school until 16, that
none of them during said period should perform any work interfering with such school attendance, that quarterly report
should be made to commissioner of immigration and that none of children should become public charge. Illinois Surety Co.
v. U.S., C.C.A.2 (N.Y.) 1916, 229 F. 527, 143 C.C.A. 595. See, also, Illinois Surety Co. v. U.S., N.Y.1916, 229 F. 533, 143
C.C.A. 601.
Under Act of 1907, Federal government being corporate entity could receive bond given by persons desiring temporary
custody of feeble-minded immigrant who would subsequently be deported. U S v. Rubin, E.D.Pa.1915, 227 F. 938.
Where inadmissible alien did not leave United States without expense thereto within six months after date of joint and
several bond, executed by two sureties, to insure that he would not become public charge, and neither surety informed
commissioner of immigration at port of New York at least five days before alien's departure as to date of sailing and name of
vessel on which he left, as required by bond, conditions thereof were broken by surety against whom United States brought
action on bond and such surety was liable to United States in full sum of bond. U.S. v. Andreano, D.C.R.I.1941, 36 F.Supp.
821.
Fact of deportation did not, by itself, show that the defendant was "detained" by any civil or military authority from
appearing in trial court and, hence, issuer of bail bond was not entitled to have forfeiture set aside and bond exonerated;
absent any attempt to have United States Attorney General exercise his power to permit defendant's temporary return for
court appearance; it could not be said that any government agency had "detained" defendant within meaning of exoneration
statute. People v. Argonaut Ins. Co., Cal.App. 2 Dist.1976, 134 Cal.Rptr. 614, 64 Cal.App.3d 665.
83. Parties, administration and enforcement
Employment agency which located employment for entering aliens lacked standing to contest Secretary's temporary
suspension of precertification list permitting admission of aliens only as Secretary determined that there was specific labor
shortage of given skill at place to which alien was destined and that alien's employment would not adversely affect wages and
working conditions of United States' workers similarly employed. Intercontinental Placement Service, Inc. v. Shultz, C.A.3
(Pa.) 1972, 461 F.2d 222.
Putative employer had standing to challenge denial of labor certification of alien employee. Sherwin-Williams Co. v.
Regional Manpower Adm'r of U. S. Dept. of Labor, N.D.Ill.1976, 439 F.Supp. 272.
Where National Labor Relations Board designated union as collective bargaining representative for employees of packing
company in El Paso, Texas, and a strike occurred and Secretary of Labor, at request of union, certified that admission of
aliens to United States for employment at packing company during strike would adversely affect wages and working
conditions of workers in United States similarly employed, and immigration officials instructed ports of entry in El Paso
district to admit no aliens applying for admission as immigrants, except returning lawfully domiciled resident aliens, destined
to employment with packing company, union had standing to bring suit to require Attorney General and Commissioner of
Immigration to enforce provision of subsection (a)(14) of this section excluding aliens where Secretary of Labor has so
certified, and justiciable case was presented and all indispensable parties were before the court. Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL- CIO v. Rogers, D.C.D.C.1960, 186 F.Supp. 114.
84. Suits by aliens, administration and enforcement
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Mere fact that alien resided outside United States did not preclude alien from seeking review of decision of regional
director of Immigration and Naturalization Service denying alien's application for permission to reapply for admission to the
United States following deportation or removal. Jaimez-Revolla v. Bell, C.A.D.C.1979, 598 F.2d 243, 194 U.S.App.D.C.
324.
Alien whose job was affected by denial of alien labor certificate had standing to maintain action seeking to set aside the
denial. Stenographic Machines, Inc. v. Regional Administrator for Employment and Training, C.A.7 (Ill.) 1978, 577 F.2d
521.
A valid exclusion order based upon a final judgment is not disturbed by a postconviction attack upon that judgment.
Hernandez-Almanza v. U. S. Dept. of Justice, Immigration and Naturalization Service, C.A.9 1976, 547 F.2d 100.
Prospective domestic employee had standing to challenge alien laborer (H-2) certification of competitor. Garrison v. OCK
Const. Ltd., D.Guam 1993, 864 F.Supp. 134.
Subsec. (a)(14) of this section providing for certification of alien if there are not already sufficient workers in United States
able, willing, qualified and available to perform work of alien and that his employment would not have adverse effect on
wages and working conditions of similarly employed workers in United States placed burden on alien but is part of statutory
scheme to extend to aliens who are professionals the right to seek permanent residence in United States and by which
Congress intended to confer directly on aliens right to seek permanent residence without intercession of employer, and alien
thus had standing to seek review of denial of certification. Mukadam v. U. S. Dept. of Labor, Employment and Training
Administration, Region II, S.D.N.Y.1978, 458 F.Supp. 164.
Doctrine of sovereign immunity did not serve as a complete bar to suit brought by alien against Secretary of Labor to
challenge denial of employment certification. Hsing v. Usery, W.D.Pa.1976, 419 F.Supp. 1066.
Suit wherein alien challenged denial of his application for alien certification by assistant regional director for manpower of
Department of Labor was not barred by doctrine of sovereign immunity. Yusuf v. Regional Manpower Administration of U.
S. Dept. of Labor, W.D.Va.1975, 390 F.Supp. 292.
Alien had standing to challenge administrative denial of his application for alien certification when action was taken
pursuant to this chapter. Yusuf v. Regional Manpower Administration of U. S. Dept. of Labor, W.D.Va.1975, 390 F.Supp.
292.
85. Exhaustion of administrative remedies, administration and enforcement
Health care facility challenging Department of Labor (DOL) regulation under the Immigration Nursing Relief Act (INRA),
which regulation required employers who retained alien nurses to pay all nurses higher of prevailing local wage or facility
wage, was not required to seek review by administrative law judge (ALJ) before bringing action under the Administrative
Procedure Act (APA). Beverly Enterprises, Inc. v. Herman, D.D.C.1999, 50 F.Supp.2d 7.
Citizen children of Western Hemisphere parents were not required to exhaust administrative remedies before they could
maintain action challenging constitutionality of amendment to this section repealing privilege of Western Hemisphere parents
to obtain priority status on consular waiting lists to become permanent legal residents; however, administrative remedies
were required to be pursued with regard to factual issue with respect to claims that appropriate forms were filed prior to
effective date of amendment. Martinez v. Bell, S.D.N.Y.1979, 468 F.Supp. 719.
Failure of employer and alien employees to pursue administrative review procedure set out by applicable regulation
precluded district court, under doctrine of exhaustion of administrative remedies, from having jurisdiction over action to
require Secretary of Labor to certify employer's job offers to aliens. Manny Industries v. Secretary of Labor, C.D.Cal.1977,
432 F.Supp. 88, affirmed 596 F.2d 409.
86. Summary judgment, administration and enforcement
District Director of Immigration and Naturalization Service could rely on administrative record in support of his motion for
summary judgment in action by aliens in federal District Court for judicial review of District Director's refusal to submit
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waiver applications of aliens to Secretary of State and to change status of aliens to that of nonquota immigrants. Mendez v.
Major, C.A.8 (Mo.) 1965, 340 F.2d 128.
In action by aliens to obtain benefits of order in previous class litigation holding invalid Secretary of Labor's directive
suspending schedule of categories of employment for which alien might obtain labor certificate merely by demonstrating his
qualifications and holding that aliens who had been precertified and had reached priority position by March 4, 1971, would
be deemed to have satisfied labor certification requirement, genuine issue of material fact concerning priority dates which
would have been reached by March 4, 1971, in absence of directive was presented, precluding summary judgment for either
defendants or plaintiffs. Veras-Mejia v. Brennan, S.D.N.Y.1976, 418 F.Supp. 680.
87. Counsel, administration and enforcement
Alien was entitled to raise ineffective assistance of counsel claim in motion to reopen decision of Board of Immigration
Appeals based on her attorney's failure to make timely application for discretionary waiver of deportation. Green v. I.N.S.,
C.A.3 1995, 46 F.3d 313.
Alien could not show prejudice from counsel's failure to timely apply for relief from deportation, as required to prevail on
claim of ineffective assistance of counsel, absent proof that alien would have been entitled to relief from deportation had
application been timely filed. Miranda-Lores v. I.N.S., C.A.5 1994, 17 F.3d 84.
In class suit by Western Hemisphere visa applicants whose applications had not been processed as result of erroneous
policy of Immigration and Naturalization Service, even though Mexican applicants would benefit from chronological
approach in allocating visa numbers at expense of some other applicants, class would not be subdivided and no attempt
would be made to obtain separate representation for each interest, where plaintiffs adequately represented interests of
Mexican class members, arguments had placed before court position of non-Mexican subclass and, since court was persuaded
to position favorable to non-Mexican class members, absence of separate counsel did not harm them. Silva v. Bell, C.A.7
(Ill.) 1979, 605 F.2d 978.
Alien's counsel's failure to use combination of statutory provisions for adjustment to status of alien lawfully admitted for
permanent resident and discretionary waiver of deportation to waive both firearms and drug convictions was not ineffective
assistance of counsel; Board of Immigration Appeals (BIA) issued decision determining that adjustment of status could be
combined with discretionary relief to seek waiver of two independent grounds of deportability only after petitioner's hearing
before immigration judge. Powell v. Jennifer, E.D.Mich.1996, 937 F.Supp. 1245.
Duties of United States attorneys did not include those of advising or defending boards of immigration; Act of 1882, 1,
empowering Secretary of Treasury to pay out of immigrant fund "the expense of regulating immigration" under that Act gave
him power to employ and pay counsel for purposes mentioned. 1885, 18 Op.Atty.Gen. 108.
88. Waiver, administration and enforcement
Lawful permanent resident alien was not coerced by the Immigration and Naturalization Service (INS) into conceding his
excludability for alien smuggling, where alien and his counsel made calculated decision to concede excludability, so that INS
would not oppose transfer of case closer to alien's place of residence, where prospect of litigating excludability in New York
rather than Chicago was not so onerous as to render involuntary alien's decision not to contest excludability. Selimi v. I.N.S.,
C.A.7 2002, 312 F.3d 854.
Waiver of right to appeal deportation order by alien not represented by counsel was not considered and intelligent, and his
due process rights thus were violated, inasmuch as Immigration Judge (IJ) failed to inform him of his eligibility for waiver
based on extreme hardship or any other possible mechanism to obtain relief from deportation, and IJ should have know that
alien was eligible for waiver since his mother was lawful permanent resident and his daughter was citizen. U.S. v. Arrieta,
C.A.9 (Cal.) 2000, 224 F.3d 1076.
Alien voluntarily and knowingly waived his right to counsel and received fair deportation hearing, where immigration
judge informed alien of his right to counsel at outset of deportation hearing and provided him with list of free legal services,
and alien acknowledged and understood his right to counsel, and waived that right when he elected to proceed with hearing
unrepresented. Cobourne v. I.N.S., C.A.11 1986, 779 F.2d 1564.
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89. Hearing, administration and enforcement

Former 137(c) of this title enabled Secretary of Labor as trier of facts fully to investigate and to find true relation, beliefs,
and activities of alien under investigation. Kessler v. Strecker, U.S.La.1939, 59 S.Ct. 694, 307 U.S. 22, 83 L.Ed. 1082.
Immigration judge's unannounced discontinuance of final hearing on alien's application for adjustment of status based on
marriage did not violate alien's due process rights; alien conceded that he committed crimes of moral turpitude after his visa
expired, rendering him inadmissible, and did not apply for a waiver of excludability. Ruckbi v. I.N.S., C.A.1 (Mass.) 2002,
285 F.3d 120.
Cooperation agreement between alien and United States Attorney plainly and unambiguously spoke to issue of deportation
and expressly bound Immigration and Naturalization Service (INS) to promise made by United States Attorney not to oppose
motion for relief from deportation; thus, alien was entitled to new hearing before Board of Immigration Appeals (BIA) at
which government would not oppose motion for relief. Thomas v. I.N.S., C.A.9 1994, 35 F.3d 1332, amended on denial of
rehearing.
An exclusion order may not be attacked at a subsequent hearing unless there was a gross miscarriage of justice at the prior
proceedings. Hernandez-Almanza v. U. S. Dept. of Justice, Immigration and Naturalization Service, C.A.9 1976, 547 F.2d
100.
On remand of alien employment certification proceedings to Secretary of Labor, acceptable procedure did not need to
include trial type hearing, and it was sufficient if regional manpower administrator made available to plaintiffs all
information before him and gave them reasonable opportunity to respond with affidavits and written arguments, but any
procedure on remand must include opportunity to litigate reliability of information-gathering procedures used by state
employment service where such was an important issue in the case. Secretary of Labor of U. S. v. Farino, C.A.7 (Ill.) 1973,
490 F.2d 885.
Alien at deportation hearing has burden to show that he was in some manner exempted from class of excludable aliens, and
government did not have burden of proving that Secretary of Labor had not issued certificate regarding insufficiency of work
force in area in which petitioner intended to settle and work. Espinoza Ojeda v. U. S. Immigration and Naturalization Service,
C.A.9 (Cal.) 1969, 419 F.2d 183.
Immigration and Naturalization Service was not estopped from applying subsection (a)(14) of this section requiring
employment certification in case of alien seeking status as a permanent resident, even though service had failed to conduct a
hearing at time when a visa became available to alien, where service had not led alien to any course of action which he would
not otherwise have taken or led him to change his situation in any way to his detriment or otherwise. Talanoa v. Immigration
and Naturalization Service, C.A.9 (Cal.) 1968, 397 F.2d 196.
District director's admonition that alien's counsel in hearing on alien's application for a waiver of a ground for denying him
a record of lawful admission for permanent residence would be required to reserve objections until all oral statements had
been received did not serve to deny alien a fair hearing. Silva v. Carter, C.A.9 (Cal.) 1963, 326 F.2d 315, certiorari denied 84
S.Ct. 1181, 377 U.S. 917, 12 L.Ed.2d 186.
No express statutory or regulatory grant of right to a hearing on a request for waiver of a ground for denying alien a record
of lawful admissibility for permanent residence exists and a request therefor is ordinarily determined solely on the basis of
the request, application, and documents submitted in support thereof. Silva v. Carter, C.A.9 (Cal.) 1963, 326 F.2d 315,
Failure to present an alien with a form notice of hearing on his application for admission until he was being detained on
criminal charges of smuggling was immaterial in the absence of any allegation that the hearing was thereby rendered unfair.
Klapholz v. Esperdy, C.A.2 (N.Y.) 1962, 302 F.2d 928, certiorari denied 83 S.Ct. 183, 371 U.S. 891, 9 L.Ed.2d 124.
Equal protection rights of legal alien who had been convicted of narcotics crime were violated by practice of Board of
Immigration Appeals (BIA) of allowing discretionary hearings for excludable but not deportable aliens. Jurado-Gutierrez v.
Greene, D.Colo.1997, 977 F.Supp. 1089, reversed 190 F.3d 1135, amended on denial of rehearing, certiorari denied 120 S.Ct.
1539, 529 U.S. 1041, 146 L.Ed.2d 352.
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In according hearings to Marielito inmates, i.e., those who were Cuban refugees who had been released from prison or mental
institutions in Cuba, who were confined to management control units, prison officials were at liberty to consider such things
as group membership and institutional atmosphere but were also to consider whether particular inmate had outstanding INS
detainer, how much time each inmate had left to serve, what prison each inmate came from, and perceptions of each inmate
regarding certain matters, past criminal record, disciplinary record within prison, institutional adjustment, and intelligence
gathered vis-a-vis each individual. Perez v. Neubert, D.C.N.J.1985, 611 F.Supp. 830.
A temporarily excluded alien was not entitled to a hearing or to know the basis for his exclusion, but before final exclusion
decision on basis that he would prejudice public interest or endanger national welfare or safety or security he was entitled to
submit within a fixed time a written statement accompanied by information, and within such time his final exclusion was
improper, and the impropriety was not cured by reopening proceedings without notice to him. U S ex rel Nicoloff v.
90. Presumptions, administration and enforcement
Because government cannot usually obtain direct evidence of intent to take certified employment of instant an immigrant
crosses the border into the United States, immigration judge and the Board of Immigration Appeals must be permitted to
draw inferences from actions and knowledge of immigrant before and after entry. Spyropoulos v. Immigration and
There is a statutory presumption that aliens should not be permitted to enter the United States for the purpose of performing
labor because of the likely harmful impact of their admission on American workers, and such presumption can be overcome
only if the Secretary of Labor has determined that the two statutory conditions are satisfied. Acupuncture Center of
Washington v. Dunlop, C.A.D.C.1976, 543 F.2d 852, 177 U.S.App.D.C. 367, certiorari denied 97 S.Ct. 62, 429 U.S. 818, 50
L.Ed.2d 78.
Subsection (a)(14) of this section relating to certification of alien to enter as alien to perform skilled or unskilled labor sets
up presumption against entry of alien. Silva v. Secretary of Labor, C.A.1 (Mass.) 1975, 518 F.2d 301.
There is a presumption against entry of aliens into the United States seeking work. Hsing v. Usery, W.D.Pa.1976, 419
F.Supp. 1066.
91. Burden of proof, administration and enforcement
Alien's repeated driving under influence convictions after two convictions for criminal sexual misconduct indicated that he
was a danger to the community; thus immigration judge did not abuse discretion by requiring heightened showing of unusual
or outstanding equities in order to grant discretionary waiver of deportability. Maashio v. I.N.S., C.A.8 1995, 45 F.3d 1235,
rehearing denied.
If alien is being deported for committing serious crime, he may be required to introduce heightened level of favorable
evidence, showing unusual or outstanding equities, in order for Board of Immigration Appeals to exercise its discretion and
waive deportation. Varela-Blanco v. I.N.S., C.A.8 1994, 18 F.3d 584.
Alien bears burden of demonstrating that his application for waiver of deportation warrants favorable consideration; in
presence of serious adverse factors, the Board of Immigration Appeals (BIA) may require a heightened showing of favorable
evidence, which may have to involve unusual or outstanding equities. Akinyemi v. I.N.S., C.A.7 1992, 969 F.2d 285.
Alien bears burden of showing that he merits relief through establishment of outstanding equities that outweigh
countervailing negative factors in order to be entitled to have motion to reopen deportation orders granted. Johnson v. I.N.S.,
C.A.7 1992, 962 F.2d 574.
Alien who had been convicted of aggravated felony was required to demonstrate eligibility for discretionary stay of
deportation before Court of Appeals could review decision of Board of Immigration Appeals that alien was not eligible for
waiver of deportability. Ignacio v. I.N.S., C.A.5 1992, 955 F.2d 295, rehearing denied 958 F.2d 1080.
Employer applying for alien employment certification has burden of producing documentation of its efforts to recruit
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United States workers. Warmtex Enterprises v. Martin, C.A.9 (Cal.) 1992, 953 F.2d 1133.
Alien had burden to point to exceptional procedural infirmities in proceedings leading to in absentia convictions in order to
preclude Board of Immigration Appeals (BIA) from considering the convictions in deciding whether to waive exclusion and
deportation of alien who entered country on basis of fraud or willful misrepresentation of material fact. Esposito v. I.N.S.,
C.A.7 1991, 936 F.2d 911, rehearing denied.
One seeking an exemption from labor certification has burden of proving his or her entitlement to exemption; proof must
be unambiguous and doubts should be resolved against applicant. Wang v. Immigration and Naturalization Service, C.A.9
1979, 602 F.2d 211.
Alien had burden of proving his entitlement to exemption from labor certification requirement. Mehta v. Immigration and
Under provision of this section barring aliens from entering United States to perform labor unless Secretary of Labor
certifies that qualified American workers are not available and that wages and working conditions of similarly employed
American workers will not be adversely affected, burden of demonstration rests not on the Secretary of Labor but on
applicant for certification. Doraiswamy v. Secretary of Labor, C.A.D.C.1976, 555 F.2d 832, 180 U.S.App.D.C. 360.
Burden is on alien seeking to enter to perform skilled or unskilled labor or his prospective employer to prove that it is not
possible for employer to find qualified American worker. Silva v. Secretary of Labor, C.A.1 (Mass.) 1975, 518 F.2d 301.
In view of presumption against admission created by this section relating to certification of alien for admission to United
States as alien seeking to perform skilled or unskilled labor, if consultation by Secretary of Labor of general labor market
data readily available to him suggests that there is pool of potential workers available to perform job which alien seeks,
burden is on alien or his putative employer to prove that it is not possible for employer to find qualified American worker.
Pesikoff v. Secretary of Labor, C.A.D.C.1974, 501 F.2d 757, 163 U.S.App.D.C. 197, certiorari denied 95 S.Ct. 525, 419 U.S.
1038, 42 L.Ed.2d 315.
Since Immigration and Nationality Act presumes that entering aliens do so as immigrants, person seeking nonimmigrant
status--i.e., aliens seeking entry only for limited time and purpose--bears burden of demonstrating that his or her asserted
nonimmigrant status is bona fide. U.S. v. Darsan, W.D.N.Y.1993, 811 F.Supp. 119.
Immigration and Naturalization Service (INS) did not have burden to show why temporary resident alien subject to
exclusion proceeding in connection with her alleged attempt to enter country with cocaine should not be paroled into United
States for purposes of her prosecution but, rather, burden was on alien to demonstrate either that INS district director did not
exercise his discretion or exercised it irrationally or in bad faith in denying parole, and burden had to overcome initial
presumption of validity of parole determination. Pierre v. U.S. I.N.S., E.D.N.Y.1992, 793 F.Supp. 440.
In visa petition proceedings, burden of proof to establish eligibility for the visa rests with the petitioner. Chi-Feng Chang v.
Thornburgh, N.D.Tex.1989, 719 F.Supp. 532.
Under subsec. (e) of this section permitting waiver of foreign residence requirement of this chapter if immigrant cannot
return to country of his nationality or last residence because he would be subject to persecution on account of race, religion or
political opinion, proper burden of proof is well- founded fear standard. Almirol v. I.N.S., N.D.Cal.1982, 550 F.Supp. 253.
Petitioner, a 42-year-old English immigrant who admitted that he was a homosexual and had been since birth, failed to
meet his burden of proving that he had been lawfully admitted to the United States for permanent residence, as he fell not
only into the category of excludable aliens with psychopathic personality but also was excludable because he committed
sodomy in England before his entry, a crime involving moral turpitude. In re Longstaff, N.D.Tex.1982, 538 F.Supp. 589,
affirmed 716 F.2d 1439, rehearing denied 719 F.2d 404, certiorari denied 104 S.Ct. 2668, 467 U.S. 1219, 81 L.Ed.2d 373.
Provision of this section requiring Secretary of Labor to make determination and certification that there are not sufficient
United States workers who are able, willing, qualified and available to fill job and that employment of aliens will not
adversely affect United States workers places burden of obtaining such certification on aliens and employers who seek entry
of the aliens for purpose of permanent employment. Trimble House Corp. v. Marshall, N.D.Ga.1980, 497 F.Supp. 546.
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Mere listing of potential sources from which an employer might hire qualified employee he is seeking does not fulfill
burden Secretary of Labor must sustain in denying an alien employment certification application on ground of availability of
qualified American workers. Montessori Children's House and School, Inc. v. Secretary of Labor of U. S., N.D.Tex.1977,
443 F.Supp. 599.
Secretary of Labor must make initial showing of potential American workers who are qualified to perform job alien seeks
and who are available to work at locality where alien is destined to perform required skilled labor; once that is done it is
incumbent upon alien to rebut such a showing before alien employment certification can be granted. Montessori Children's
House and School, Inc. v. Secretary of Labor of U. S., N.D.Tex.1977, 443 F.Supp. 599.
Burden of Secretary of Labor to sustain denial of employment certification to alien is borne if a generalized survey of the
labor market in applicant's area of expertise demonstrates the availability of domestic workers who are apparently qualified to
perform available jobs; once that burden has been met, burden shifts to the applicant to demonstrate that there are not
sufficient domestic workers who are "able, willing, qualified and available" to perform the work he seeks and that his
employment will not adversely affect wages and working conditions of domestic workers. Hsing v. Usery, W.D.Pa.1976, 419
F.Supp. 1066.
Burden of rebutting presumption under this statute that alien should not be permitted to enter the United States with
purpose of performing labor is on alien or his prospective employer to prove that there is no qualified and available domestic
workers able and willing to work for employer. Witt v. Secretary of Labor, D.C.Me.1975, 397 F.Supp. 673.
Under this section the burden of the Secretary of Labor is borne if a generalized survey of labor market in applicant's area
of expertise demonstrates availability of domestic workers who are apparently qualified to perform available jobs, and burden
then shifts to applicant to demonstrate in fact that there are not sufficient domestic workers who are able, willing, qualified
and available to perform work he seeks and that his employment will not adversely affect wages and working conditions of
domestic workers. Yusuf v. Regional Manpower Administration of U. S. Dept. of Labor, W.D.Va.1975, 390 F.Supp. 292.
92. Evidence, administration and enforcement
Conclusion of the Board of Immigration Appeals (BIA), that alien had entered into valid marriage in the Philippines so as
not to be eligible for admission to the United States as the unmarried daughter of a lawful permanent resident, had to be set
aside, where BIA's conclusion was based on testimony of witness that immigration judge, given witness' previous
inconsistent statements and evidence of alleged forgery on document that he provided, had determined not to be credible, and
where BIA failed to set forth any convincing reason for rejecting immigration judge's credibility determination. Mayo v.
Ashcroft, C.A.8 2003, 317 F.3d 867.
In proceeding to determine whether alien was excludable for having admitted to conduct which would constitute narcotics
offense under Philippine law, alien's statements during psychiatric examination conducted as part of visa issuing process, that
he had smoked marijuana in the Philippines, did not have to be suppressed based on doctor's failure to provide alien with
certain information concerning Philippine drug law before he made these statements; doctor had no reason to suspect that
alien would admit to having used marijuana and her examination was not conducted for purposes of obtaining any such
admission. Pazcoguin v. Radcliffe, C.A.9 2002, 292 F.3d 1209, amended on denial of rehearing 308 F.3d 934.
Error in accepting, as "false testimony" sufficient to pretermit any finding of alien's good moral character and to prevent
immigration judge from granting alien's application for registry as lawful permanent resident, his false statement in writing
regarding his status as United States citizen was mere harmless error, where alien failed to challenge documentation which
the Immigration and Naturalization Service (INS) introduced into evidence regarding his prior criminal convictions, which
was itself sufficient to render him ineligible for registry. Beltran-Resendez v. I.N.S., C.A.5 2000, 207 F.3d 284.
Board of Immigration Appeals (BIA) did not abuse its discretion in denying waiver of inadmissibility after concluding that
alien's two prior convictions for serious crimes involving use of force and violence, with second occurring during
probationary period of first, outweighed outstanding equities, which did not include rehabilitation; as long as BIA indicated
that it considered applicant's evidence of rehabilitation, it was not required to discuss that evidence at length. Guillen-Garcia
v. I.N.S., C.A.7 1995, 60 F.3d 340, rehearing and suggestion for rehearing en banc denied, certiorari denied 116 S.Ct. 775,
516 U.S. 1073, 133 L.Ed.2d 727.
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Movant's fraud on immigration court in denying that she applied for nonimmigrant visa under false name and furnishing
false birth certificate was properly considered by Board of Immigration Appeals in denying her discretionary waiver of
excludability; her misrepresentations did not arise from her initial fraudulent entry, since she persisted even after immigration
judge specifically inquired whether she fully understood ramifications of continued denial of her true identity. Delmundo v.
I.N.S., C.A.9 1994, 43 F.3d 436.
Failure of Board of Immigration Appeals to comment on all of alien's rehabilitation evidence in denying motion to reopen
deportation order did not invalidate denial in light of showing that Board focused on strongest evidence of rehabilitation and
found it insufficient to offset seriousness of alien's criminal record. Groza v. I.N.S., C.A.7 1994, 30 F.3d 814.
Scant evidence of alien's daughters' financial dependence did not warrant explicit consideration by Board of Immigration
Appeals (BIA) as a positive equity in considering alien's application for waiver of deportability where alien's only evidence
of any financial support of his children was his statement that he had tried to do his best to purchase things for them that they
needed, "like shoes," and alien had not seen daughters for two years and could not remember one of his daughter's last name.
Douglas v. I.N.S., C.A.2 1994, 28 F.3d 241.
Board of Immigration Appeals (BIA) was not required to admit additional evidence of deported alien's rehabilitation or
remand case to immigration judge for further hearing concerning alien's petition for discretionary waiver of deportation
where evidence which repeated testimony given at hearing was cumulative, additional evidence covered only five months
which elapsed since alien's release from prison, and alien had once before completed drug treatment program but had
subsequently continued to use and sell drugs. Martinez v. I.N.S., C.A.1 1992, 970 F.2d 973.
Information that would not be admissible in trial as it would constitute hearsay or might be less than fully complete or
reliable could provide basis for reasonable ground to believe that alien who sought nonimmigrant visa was engaged in
terrorist activities, so as to support upholding denial of visa; rules of civil procedure and evidence were not applicable to
consular processing of visa applications, and reasonable belief that alien engaged in terrorist activities could be formed if
evidence linking alien to terrorist violence were sufficient to justify reasonable person in belief that alien fell within
proscribed category. Adams v. Baker, C.A.1 (Mass.) 1990, 909 F.2d 643.
Alien's admission that he transported marijuana for use of others could form basis for reasonable belief that alien was illicit
trafficker within meaning of exclusion provision, even though alien's admission was not "conviction" under Texas law.
Nunez-Payan v. I.N.S., C.A.5 1987, 815 F.2d 384.
Evidence of date that alien lawfully entered the United States as a permanent resident was not newly discovered evidence
warranting reopening of his petition for discretionary relief where his date of entry was proved in the original proceeding by
introduction of his passport, even though his status had not yet been entered into the Immigration and Naturalization Service
central index system. Torres-Hernandez v. I.N.S., C.A.9 1987, 812 F.2d 1262.
Evidence was insufficient to sustain finding of Board of Immigration Appeals that alien, a Latvian who had served in the
Latvian political police, an organization formed during Nazi occupation of Latvia to investigate and arrest individuals who
had participated in the atrocities committed during the Soviet occupation of Latvia in early World War II, had engaged in the
persecution of individuals because of their Communist political opinion so as to warrant deportation. Laipenieks v. I.N.S.,
C.A.9 1985, 750 F.2d 1427.
Evidence of nonimmigrant student's unauthorized employment elicited from student on stand after he was improperly
denied privilege against self- incrimination was inadmissible in deportation proceeding. Tashnizi v. I.N.S., C.A.5 1978, 585
F.2d 781.
Uncontradicted hearsay evidence is admissible in deportation proceedings if it is probative and its use is not fundamentally
unfair so as to deprive alien of due process. Tashnizi v. I.N.S., C.A.5 1978, 585 F.2d 781.
Substantial evidence supported determination of immigration judge and board of immigration appeals that alien intended to
reside in Mexico indefinitely when he returned to Mexico in 1970 to live with his wife, a native and citizen of Mexico, and
commuted daily to work in El Paso, Texas for three of the four years preceding his 1974 arrest and incarceration for narcotics
offense, thereby relinquishing his United States domicile and losing any eligibility for relief he might have had under this
section authorizing Attorney General to allow certain deportable aliens advance permission to remain in the United States.
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Carrasco-Favela v. Immigration & Naturalization Service, C.A.5 (Tex.) 1977, 563 F.2d 1220.
Evidence that 21 persons were registered with local state employment office for housework of some variety was
insufficient to prove that there were American workers able, willing, qualified and available to do cooking and cleaning work
required of live-in maid at physician's home and thus justify the refusal to issue labor certification for alien who agreed to
work for physician as live-in maid, where evidence showed that registered persons were not available to live in and these was
no evidence that they possessed cooking or other skills required by putative employer. Silva v. Secretary of Labor, C.A.1
(Mass.) 1975, 518 F.2d 301.
Evidence as to availability of maids in area sustained denial of certification for alien to enter United States as alien seeking
to perform skilled or unskilled labor notwithstanding fact that putative employer wanted live-in maid and available American
employees would not live in. Pesikoff v. Secretary of Labor, C.A.D.C.1974, 501 F.2d 757, 163 U.S.App.D.C. 197, certiorari
In determining if alien's wage offer is below prevailing wage for alien's occupation in proposed area of employment, and
that alien is thus not entitled to labor certification, Secretary of Labor must compare proposed wage offer with prevailing
wage scale of other employees who perform the specific job applied for by the alien. Ratnayake v. Mack, C.A.8 (Minn.)
1974, 499 F.2d 1207.
Issuance of visa by American consul to immigrant represents prima facie evidence of eligibility but does not assure holder
of admission into United States. Reid v. Immigration and Naturalization Service, C.A.2 1974, 492 F.2d 251, certiorari
granted 95 S.Ct. 39, 419 U.S. 823, 42 L.Ed.2d 46, affirmed 95 S.Ct. 1164, 420 U.S. 619, 43 L.Ed.2d 501.
Admissions petitioner made to federal district judge in course of pleading guilty to alien smuggling charge, the separate
depositions of the three Mexicans petitioner had aided in gaining illegal entry, the testimony of officer who took the
depositions, and the testimony of officer who apprehended petitioner were together sufficient to establish that petitioner, who
was ordered deported to Mexico on the charge that at time of his last entry into United States he was excludable as an alien
who had been previously arrested and deported and had not received permission for reentry from the Attorney General, made
an "entry." Solis-Davila v. Immigration and Naturalization Service, C.A.5 (Tex.) 1972, 456 F.2d 424.
Where counsel representing petitioner at hearing before inquiry officer on charges classifying petitioner as excludable alien
subject to deportation made no objection to admission into evidence of statement taken from petitioner by investigator
employed by immigration and naturalization service, and objection to entry of statement into evidence was waived. Espinoza
Ojeda v. U. S. Immigration and Naturalization Service, C.A.9 (Cal.) 1969, 419 F.2d 183.
Evidence that alien before and up to time of entry into United States frequently and regularly engaged in homosexual acts
supported finding that alien was "psychopathic personality" at time of entry within this section authorizing deportation.
Lavoie v. Immigration and Naturalization Service, C.A.9 (Cal.) 1969, 418 F.2d 732, certiorari denied 91 S.Ct. 72, 400 U.S.
854, 27 L.Ed.2d 92.
In hearing to determine whether Cuban alien, who was seeking admission to United States for permanent residence, should
be excluded, where alien admitted that he had executed application for extension of temporary stay under oath and that he
had falsely stated therein that he had not worked during his temporary stay in the United States, it was not necessary that the
application itself be offered in evidence. U.S. ex rel. Alvarez Y Flores v. Savoretti, C.A.5 (Fla.) 1953, 205 F.2d 544.
Employer's explanation for rejecting United States applicants for job for which labor certification of alien was sought on
ground that applicants lacked qualifying experience was not sufficiently specific and, therefore, denial of labor certification
of alien was not arbitrary or capricious. Gladysz v. Donovan, N.D.Ill.1984, 595 F.Supp. 50.
In view of circumstances under which statements were taken from juvenile aliens upon their arrival in the United States,
statements could not be received as admissions against interest to show truth of matter contained therein, in habeas corpus
proceedings, without testimony of parties who took the statement verifying their accuracy and affirming that they were taken
under proper conditions. Diaz v. Haig, D.C.Wyo.1981, 594 F.Supp. 1.
Prior labor certifications to aliens are highly relevant and seriously damaging to the contention of the Regional Manpower
Administrator that there are available qualified nonaliens for requested line of work. Sherwin-Williams Co. v. Regional
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Manpower Adm'r of U. S. Dept. of Labor, N.D.Ill.1976, 439 F.Supp. 272.

Where data used by Regional Manpower Administrator only tends to show that some American workers are available to
fill the position sought by alien, there is still an insufficient evidentiary basis for denial of labor certification to alien.
Sherwin-Williams Co. v. Regional Manpower Adm'r of U. S. Dept. of Labor, N.D.Ill.1976, 439 F.Supp. 272.
Figures which indicated that, as of Mar. 31, 1975, within 41 days after date on which alien filed initial application for
employment certification, there were 165 unemployed and "as qualified" mechanical engineers registered with state
employment agencies in the region and that, following remand, research revealed that there were 372 mechanical engineers
registered with the unemployment agencies in the region were sufficiently timely and reliable to support denial of
employment certification. Hsing v. Usery, W.D.Pa.1976, 419 F.Supp. 1066.
Contention that there were no other candidates, other than alien, available in the relevant market with the equivalent
mechanical engineering background and education and arguments as to the inevitability of a loss of effectiveness in alien's
development group with his employer and the considerable expense involved if another individual were to be similarly
trained were insufficient to entitle alien to labor certification in the face of evidence of the numbers of comparable, qualified
applicants in the relevant job market. Hsing v. Usery, W.D.Pa.1976, 419 F.Supp. 1066.
Conclusory statement of state employment service that there was surplus of persons seeking employment in professions of
aliens who sought immigrant visas for permanent residence was insufficient to justify determination that American workers
in area were able, willing, qualified and available to perform the aliens' professions and denial of immigrant visas for
permanent residence absent showing that state employment service utilized federal standard of "able, willing, qualified and
available" in determining that there was a surplus. Bitang v. Regional Manpower Administrator of U.S. Dept. of Labor,
N.D.Ill.1972, 351 F.Supp. 1342.
Communications from state employment service to Regional Manpower Administrator that there were various numbers of
people listed with service as seeking employment in various occupations of aliens were insufficient to support
Administrator's determination that there were American job seekers in area able, willing, qualified and available to perform
aliens' professions and denial of aliens' applications for immigrant visas for permanent residence where there was no showing
that persons listed with service were able, qualified or were still available and, except with respect to one alien, numbers of
applicants listed by service were small. Bitang v. Regional Manpower Administrator of U.S. Dept. of Labor, N.D.Ill.1972,
351 F.Supp. 1342.
Where Regional Manpower Administrator found that wages paid alien who sought immigrant visa for permanent residence
were not less than prevailing rate even though letter sent to Administrator by state employment service stated that wages paid
alien were below the prevailing rate, letter which also stated that there were numbers of persons listed with it as seeking jobs
within alien's profession was insufficient to provide basis for determination that there were substantial numbers of applicants
for such positions since, if letter was not sufficiently trustworthy to be accepted with respect to its statement concerning
wages, it could not be deemed sufficiently trustworthy to provide basis for determination that there were large numbers of
applicants for positions in alien's occupation. Bitang v. Regional Manpower Administrator of U.S. Dept. of Labor,
N.D.Ill.1972, 351 F.Supp. 1342.
93. Record of admission, administration and enforcement
In acting upon resident alien's application for waiver of a ground for denying him a record of lawful admission for
permanent residence, regional commissioner did not err in denying, on the discretionary ground, the alien's request for waiver
without first making an express ruling as to whether admission would be contrary to the national welfare, safety or security of
the United States. Silva v. Carter, C.A.9 (Cal.) 1963, 326 F.2d 315, certiorari denied 84 S.Ct. 1181, 377 U.S. 917, 12 L.Ed.2d
186.
Consideration by regional commissioner of events which had occurred after the district director's hearing on alien's
application for waiver of ground for denying him a record of lawful admission for permanent residence was not arbitrary or
capricious and did not constitute denial of due process. Silva v. Carter, C.A.9 (Cal.) 1963, 326 F.2d 315, certiorari denied 84
S.Ct. 1181, 377 U.S. 917, 12 L.Ed.2d 186.
Implementation of new procedures to be used in acting upon a resident alien's application for waiver of a ground for
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denying him a record of lawful admission for permanent residence did not constitute a proper ground for reversal of prior
refusal of alien's application especially where amended regulations were not intended to provide a basis for reopening
proceedings already final. Silva v. Carter, C.A.9 (Cal.) 1963, 326 F.2d 315, certiorari denied 84 S.Ct. 1181, 377 U.S. 917, 12
L.Ed.2d 186.
94. Findings, administration and enforcement
Immigration judge's decision that genuine showing of rehabilitation had not been made to support his eligibility for
favorable exercise of discretion in request for waiver of deportation was not arbitrary or capricious, where he considered
evidence relevant to rehabilitation and made reasoned finding that alien's movements toward rehabilitation were relatively
small compared to his failures in that regard. Gandarillas-Zambrana v. Board of Immigration Appeals, C.A.4 1995, 44 F.3d
Substantial evidence supported finding of Board of Immigration Appeal (BIA) that alien was not born in the United States,
as required to support exclusion order; alien had Mexican birth certificate, and no record of her birth was found in California
records. De Brown v. Department of Justice, C.A.9 (Ariz.) 1994, 18 F.3d 774.
Immigration and Naturalization Service (INS) may bring deportation charge that is partially based on conduct that was
subject of earlier waiver of finding of deportability; waiver of deportability finding does not expunge basis of deportability
from alien's record for immigration purposes. Molenda v. I.N.S., C.A.5 1993, 998 F.2d 291.
In waiver of deportation proceedings, Board of Immigration Appeals was free to disregard immigration judge's findings of
rehabilitation and base its decision upon administrative record as whole, even though Immigration and Naturalization Service
(INS) did not challenge immigration judge's determination of rehabilitation. Ghassan v. I.N.S., C.A.5 1992, 972 F.2d 631,
rehearing denied 977 F.2d 576, certiorari denied 113 S.Ct. 1412, 507 U.S. 971, 122 L.Ed.2d 783.
In absence of explicit finding that Mariel Cuban immigrant posed "clear and imminent danger" to society, which was not
indicated by evidence that immigrant failed to abide by conditions of his resettlement program, agency's revocation of
immigrant's parole from Immigration and Naturalization Service custody was abuse of discretion. Moret v. Karn, C.A.3 (Pa.)
1984, 746 F.2d 989.
Evidence that alien not only failed to take certified job and immediately took up other employment but also ignored
indications that there were problems with certified job opening before his entry into the United States and made what the
Board of Immigration Appeals could reasonably conclude were at best half- hearted attempts to find out about job after entry
constituted substantial evidence to support a finding of lack of intent to take certified job, and hence, alien was excludable at
time of entry and therefore deportable. Spyropoulos v. Immigration and Naturalization Service, C.A.1 1978, 590 F.2d 1.
For state agency employment listings to be an adequate factual basis for a finding that there are no "able, willing, qualified,
and available" American workers and that an application for an alien employment certificate should therefore be granted,
such listings must be credible, reliable and pertinent. Seo v. U. S. Dept. of Labor, C.A.9 (Cal.) 1975, 523 F.2d 10.
Finding by Secretary of Labor that putative employer's requirement that maid live on premises was personal preference
which was irrelevant to determination of whether there was pool of potential workers willing to work as maid was proper.
1038, 42 L.Ed.2d 315.
In addition to the fact that the record failed to show evidence that petitioner's arrest violated constitutional standards, the
record included other evidence, substantial and untainted, to support the Immigration and Naturalization Service's findings
and final order of deportation; not only was there petitioner's testimony at deportation hearing admitting that he had entered
the country illegally in March of 1970, but the documents in evidence established that petitioner had previously been
deported and had not obtained permission to reenter as required by this chapter. Huerta-Cabrera v. Immigration and
Evidence that alien was absent from United States and from his wife and child for period of more than seventeen years was
sufficient to support determination that alien's absence was not merely temporary. Gamero v. Immigration and Naturalization
Service, Los Angeles Dist., C.A.9 (Cal.) 1966, 367 F.2d 123.
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Finding of special inquiry officer that alien was deportable alien because he had left United States to avoid training or service
in Armed Forces during national emergency was conclusive where supported by reasonable, substantial, and probative
evidence on record considered as a whole. Ramasauskas v. Flagg, C.A.7 1962, 309 F.2d 290.
A determination of fraud is not necessary in order to find that a nonimmigrant visa is invalid. Lun Kwai Tsui v. Attorney
General of U. S., D.C.D.C.1978, 445 F.Supp. 832.
Unless a finding appears in the administrative record that there are sufficient workers in the United States who are able,
willing, qualified and available at time of application, alien's labor certification should not be denied. Digilab, Inc. v.
Secretary of Labor, D.C.Mass.1973, 357 F.Supp. 941, remanded on other grounds 495 F.2d 323, certiorari denied 95 S.Ct.
70, 419 U.S. 840, 42 L.Ed.2d 67.
Though certain amount of reliance upon state agency findings is necessary, subsec. (a)(14) of this section conferring upon
Secretary of Labor responsibility for determining whether there are American job seekers in area able, willing, qualified and
available to perform professions of aliens who seek immigrant visas for permanent residence requires more than blind and
unquestioning acquiescence in a state agency's ultimate conclusions. Bitang v. Regional Manpower Administrator of U.S.
Dept. of Labor, N.D.Ill.1972, 351 F.Supp. 1342.
95. Res judicata, administration and enforcement
Since petitioner, a Mexican national, was competently represented by counsel at his trial for possession of marijuana and
since he pled guilty to that charge, the exclusion order based upon his conviction in that case was not a miscarriage of justice
and therefore, the validity of the order could not now be attacked. Hernandez-Almanza v. U. S. Dept. of Justice, Immigration
Though previous decisions of Service as to existence of exceptional hardship sufficient to justify waiver of foreign
residency requirement in other cases are not res judicata, they are entitled to precedential weight. Yu v. Marshall,
S.D.Tex.1970, 312 F.Supp. 229.
96. Review, administration and enforcement
Where Attorney General denied waiver of statutory exclusion of alien advocating or publishing the economic, international
and governmental doctrines of world communism because alien had engaged in activities beyond stated purposes on prior
entry into the United States, Attorney General had validly exercised plenary power delegated to the Executive and the courts
would not look behind his decision or weigh it against the U.S.C.A. Const. Amend 1 interests of those seeking entry of alien
to personally communicate with him or engage in academic exchange. Kleindienst v. Mandel, U.S.N.Y.1972, 92 S.Ct. 2576,
408 U.S. 753, 33 L.Ed.2d 683.
Finding that alien was a homosexual at time of entry had substantial support in record and would not be disturbed on
review of deportation order especially where alien admitted being a homosexual at time of entry. Boutilier v. Immigration
and Naturalization Service, U.S.N.Y.1967, 87 S.Ct. 1563, 387 U.S. 118, 18 L.Ed.2d 661.
On review of immigration judge's findings at de novo evidentiary hearing, following an earlier remand from the Court of
Appeals, Board of Immigration Appeals (BIA) should not have relied on findings of another immigration judge at prior,
defective hearing as basis for rejecting the credibility determinations of judge whose decision was under review, but should
have evaluated judge's findings independently without regard to other judge's previous findings, where Court of Appeals, in
remanding for new hearing de novo, had found that prior hearing was infected by procedural defects, including lack of
attorney or translator for alien, which affected other judge's findings. Mayo v. Ashcroft, C.A.8 2003, 317 F.3d 867.
Alien presented cognizable claim under due process clause, such that his appeal of discretionary denial of deportation was
not precluded by provision of Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) barring appeals by
aliens who were deportable by reason of having committed aggravated felonies, when he asserted that retroactive application
of provision of Antiterrorism and Effective Death Penalty Act (AEDPA) that precluded eligibility for discretionary waivers
of deportation to individuals who had been convicted of aggravated felonies violated his due process rights by taking away
procedure to which he previously had right granted by statute. Jideonwo v. I.N.S., C.A.7 2000, 224 F.3d 692.
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Appeal by allegedly deportable alien from district court order dismissing his habeas corpus petition was not rendered moot,
though alien had since been deported and was no longer in custody of the Immigration and Naturalization Service (INS); fact
that alien could not be admitted into the United States within ten years of date of his removal was concrete collateral
consequence of his deportation, that was sufficient to preclude any finding of mootness. Max-George v. Reno, C.A.5 (Tex.)
2000, 205 F.3d 194, vacated 121 S.Ct. 2585, 533 U.S. 945, 150 L.Ed.2d 746, on remand 277 F.3d 1373.
Under transitional rules of Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Court of Appeals
lacked jurisdiction over alien's petition for review of decision of Board of Immigration Appeals (BIA) denying him
discretionary relief from deportation, where alien did not dispute that he was deportable by reason of having committed an
offense enumerated in IIRIRA, but rather argued that BIA impermissibly retroactively applied Antiterrorism and Effective
Death Penalty Act (AEDPA) section eliminating discretionary relief. Magana-Pizano v. I.N.S., C.A.9 1999, 200 F.3d 603.
Even assuming that Heck rule, precluding 1983 claims for actions that would "necessarily imply" the invalidity of an
underlying conviction or sentence that had not been properly invalidated on appeal or through habeas, applied in context of
immigration orders, the rule did not bar alien's claims for involuntary servitude and mistreatment while in Immigration and
Naturalization Service (INS) detention, since any judgment for damages on these claims would not imply the invalidity of
alien's detention or exclusion. Humphries v. Various Federal USINS Employees, C.A.5 (Tex.) 1999, 164 F.3d 936.
Court of Appeals was precluded under plain language of transitional rules of Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) from reviewing final order of deportation, even though alien raised constitutional issues, where
alien had admitted commission of essential elements of crimes set forth in Immigration and Nationality Act (INA) as bases
for exclusion. Ruckbi v. I.N.S., C.A.1 1998, 159 F.3d 18.
Alien who conceded deportability despite having colorable defense to deportation on ground that concealing gun in family
garage differed from possessing firearm was precluded under Antiterrorism and Effective Death Penalty Act (AEDPA) from
seeking judicial review of Board of Immigration Appeals' (BIA's) denial of his request for discretionary relief from
deportation, where his concession foreclosed discretionary relief; thus, he did not drop objection in order to set up claim for
relief. Yang v. I.N.S., C.A.7 1997, 109 F.3d 1185, rehearing and suggestion for rehearing en banc denied, certiorari denied
118 S.Ct. 624, 522 U.S. 1027, 139 L.Ed.2d 605.
Court of Appeals reviews Board of Immigration Appeal's (BIA) application of law de novo and its balancing of equities
underlying determination of request for discretionary relief from deportation for abuse of discretion. Elramly v. I.N.S., C.A.9
1995, 73 F.3d 220, certiorari granted 116 S.Ct. 1260, 516 U.S. 1170, 134 L.Ed.2d 209, vacated 117 S.Ct. 31, 518 U.S. 1051,
135 L.Ed.2d 1123, on remand 116 F.3d 435, on remand 131 F.3d 1284, amended on denial of rehearing.
Board of Immigration Appeals (BIA) had independent authority to conduct de novo review of record and proceedings
seeking relief from deportation and, thus, to decide alien was statutorily ineligible for relief due to his status as alien
convicted of aggravated felony who had served term of imprisonment of at least five years. Leon-Davila v. I.N.S., C.A.11
1994, 19 F.3d 1370.
Review of decision to deny application for waiver of deportation is limited to examining whether Board of Immigration
Appeals' discretion was actually exercised and whether it was exercised in arbitrary or capricious manner. Varela-Blanco v.
I.N.S., C.A.8 1994, 18 F.3d 584.
Board of Immigration Appeals' (BIA) error in considering drug and firearm charges which were "filed" by Massachusetts
court as if they were final "convictions" was harmless for purposes of waiver of deportation determination, particularly as
alien had pleaded guilty to filed drug charge and was found guilty by jury on one of filed firearm charges, and given number,
seriousness and recency of her unquestionably final drug convictions. White v. I.N.S., C.A.1 1994, 17 F.3d 475.
Denial of waiver of deportability will only be reversed as abuse of discretion where decision was made without rational
explanation, inexplicably departed from established policies, or rested on impermissible basis such as invidious
discrimination against particular race or group. Arango-Aradondo v. I.N.S., C.A.2 1994, 13 F.3d 610.
Board of Immigration Appeals (BIA) has power for de novo review of factual and legal basis of immigration judge's
decision regarding discretionary relief from deportation. Yepes-Prado v. U.S. I.N.S., C.A.9 1993, 10 F.3d 1363, as amended,
dissenting opinion 36 F.3d 83.
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Court of Appeals applies abuse of discretion standard in review of denial by Board of Immigration Appeals (BIA) of
motion to reopen application for discretionary waiver of deportation based upon failure to establish prima facie case of
underlying relief sought or failure to introduce, new, material evidence previously unavailable which was not considered in
initial review; such abuse of discretion would occur only if denial is made without rational explanation, inexplicably departs
from established policies, or rests on impermissible basis such as invidious discrimination against particular race or group.
Henry v. I.N.S., C.A.7 1993, 8 F.3d 426.
Board of Immigration Appeal's failure to discuss alien's employment history, his home ownership or letters written on his
behalf in denying alien's application for discretionary waiver of deportation did not constitute reversible error, where BIA
sufficiently explained its decision to show that it had "heard and thought and not merely reacted" in denying application for
waiver. Casalena v. U.S. I.N.S., C.A.4 1993, 984 F.2d 105.
To extent that Court of Appeals reviews Board of Immigration Appeals' (BIA) fact-finding, it does so under substantial
evidence standard; if facts found by Board are supported by such relevant evidence as reasonable mind might accept to
support such conclusion, they will be upheld upon review. Martinez v. I.N.S., C.A.1 1992, 970 F.2d 973.
Board of Immigration Appeals' denial of discretionary relief from deportation may be reversed as abuse of discretion when
it is made without rational explanation or inexplicably departs from established policies. Diaz- Resendez v. I.N.S., C.A.5
1992, 960 F.2d 493.
Review of Bureau of Immigration Appeals' (BIA) denial of motion to reopen denial of waiver of deportation is limited, and
Court of Appeals seeks only to determine whether decision was arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law, considering statement of reasons justifying decision to determine whether path which BIA followed
can be discerned, and whether decision was reached for impermissible reason or for no reason at all. Vargas v. I.N.S., C.A.2
1991, 938 F.2d 358.
Court of Appeals would review Board of Immigration Appeals' decision to deny an alien's motion to reopen deportation
proceedings following immigration judge's deportation order becoming final de novo, where denial was based on
determination of law. Gonzales v. I.N.S., C.A.9 1990, 921 F.2d 236.
Claim that Board of Immigration Appeals' denial of resident alien's application for remand to immigration judge for
consideration of waiver of excludability was error was not reviewable on appeal where issue was not presented to district
court in habeas corpus petition. Correa v. Thornburgh, C.A.2 (N.Y.) 1990, 901 F.2d 1166.
Scope of review of recommendation by Director ofUnited States Information Agency on request for waiver of requirement
that nonimmigrant exchange visitor reside abroad for two years before becoming eligible for immigrant visa or permanent
residence is limited to whether USIA followed its own guidelines. Chong v. Director, U.S. Information Agency, C.A.3 (Pa.)
1987, 821 F.2d 171.
Review of denial of parole to aliens being detained incident to attempted entry without proper documents is not under the
abuse of discretion standard but, rather, review is to determine whether there is a facially legitimate and bona fide reason.
Amanullah v. Nelson, C.A.1 (Mass.) 1987, 811 F.2d 1.
It was proper for Attorney General to temporarily halt releases of Mariel Cubans under status review plan on basis of his
concern that Cuba's agreement to take back 2,746 Mariel Cubans increased the likelihood that an alien would abscond if
released on parole; thus, district court erred in overriding Attorney General by ordering the immediate release of 34
detainees. Garcia- Mir v. Smith, C.A.11 (Ga.) 1985, 766 F.2d 1478, certiorari denied 106 S.Ct. 1213, 475 U.S. 1022, 89
L.Ed.2d 325.
Fact that potential employer of alien reapplied for labor certification and that the application was pending did not moot
potential employer's action to review denial of his initial application since, if potential employer and alien were to abandon
the appeal and simply go with the new application, they would have been put in a substantially less favorable position in light
of fact that visas that are issued to aliens upon granting of labor certifications are allotted on a first-come, first-served basis,
according to date of application for certification. Ross v. Marshall, C.A.2 (Conn.) 1981, 651 F.2d 846.
Administrative and judicial review of prior criminal conviction obtained under laws of foreign country which serves to
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exclude alien from United States must be confined to official records of original proceedings, most particularly, the court's
ultimate judgment. Chiaramonte v. Immigration and Naturalization Service, C.A.2 1980, 626 F.2d 1093.
Where discretionary relief for alien facing exclusion on certain grounds was sought in connection with deportation
proceeding, ten days was allowed for filing of appeal by Immigration and Naturalization Service from decision of
immigration judge. Byus-Narvaez v. Immigration and Naturalization Service, C.A.5 1979, 601 F.2d 879.
Although immigration judge acted improperly in considering police reports implicating alien in criminal activity as
"adverse factors" bearing on discretionary relief from deportation, reversal was not required in view of other evidence of
record. Sierra-Reyes v. Immigration and Naturalization Service, C.A.5 1978, 585 F.2d 762.
Visa decisions are nonreviewable. Castaneda-Gonzalez v. Immigration and Naturalization Service, C.A.D.C.1977, 564
F.2d 417, 183 U.S.App.D.C. 396.
On review of denial of certifications under provision of this section barring aliens from entering the United States to
perform labor unless the Secretary of Labor certifies that qualified American workers are not available therefor and that
wages and working conditions of similarly employed American workers will not be adversely affected, district court
correctly restricted its review to the record as made before the Secretary. Doraiswamy v. Secretary of Labor, C.A.D.C.1976,
555 F.2d 832, 180 U.S.App.D.C. 360.
Reviewing officer who upheld ruling denying requested certification that qualified American workers were not available
was not disqualified under administrative regulation providing that official who did not participate in initial determination
should carry out review by virtue of fact that he had initially passed on alien's first two applications for certification where
each application inaugurated independent proceeding and central question as to sufficiency of prospective employer's
showing of unavailability of American workers for post that alien wished to permanently fill varied factually on each
application. Doraiswamy v. Secretary of Labor, C.A.D.C.1976, 555 F.2d 832, 180 U.S.App.D.C. 360.
Where orders did not suggest that court of appeals was asking for discussion of evidence not presented to Secretary of
Labor in connection with aliens' requests for certification or that Court of Appeals would undertake to consider any aspect of
Secretary's decisions de novo but on the contrary, orders stated in plainest way that questions were to be answered within
confines of record on appeal, and since it seemed apparent that only administrative records could furnish predicates for the
answers, Secretary's motions to vacate on ground that orders were soliciting new evidence, were accordingly denied.
Doraiswamy v. Secretary of Labor, C.A.D.C.1976, 555 F.2d 832, 180 U.S.App.D.C. 360.
Judicial review of decision of the Secretary of Labor with respect to labor certification of an alien is confined to
examination of the administrative record, and thus district court should not have admitted over Secretary's timely objection
affidavit supplying information about employer's operations, and factual assertions contained therein would be given no
weight on appeal. Acupuncture Center of Washington v. Dunlop, C.A.D.C.1976, 543 F.2d 852, 177 U.S.App.D.C. 367,
Since decision of immigration judge was fully supported by reasonable, substantial and probative evidence, administrative
judge's decision was binding on reviewing court, and district court was not called upon to substitute its fact-findings for those
of the administrative agency but to insure that administration decision was not arbitrary, capricious, or contrary to law and
was reached with proper regard for procedural requirements. Alvarez v. District Director of U. S. Immigration and
Naturalization Service, C.A.9 (Cal.) 1976, 539 F.2d 1220, certiorari denied 97 S.Ct. 1334, 430 U.S. 918, 51 L.Ed.2d 597.
Wage established under negotiated collective bargaining agreement and paid to aliens and nonalien workers alike could
not, absent evidence impugning the agreement, be deemed to "adversely affect" the wages and working conditions of
Americans similarly employed within meaning of this section. Naporano Metal & Iron Co. v. Secretary of Labor of U. S.,
C.A.3 (N.J.) 1976, 529 F.2d 537.
Secretary of Labor abused his discretion in denying plaintiff's application for an alien employment certificate, where
plaintiff's hospital employer, before applying for an alien employment certificate for plaintiff, placed a job order with the
California Department of Human Resources Development for a radiologic technologist, where the Department referred only
two persons to the hospital, one of whom failed to appear for an interview and the other of whom was deemed unqualified
because he was an alcoholic, and where, despite such impeaching circumstances, the Secretary simply denied the application
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on the basis of state agency listing which indicated that eight to ten persons were registered for the job of radiologic
technologist. Seo v. U. S. Dept. of Labor, C.A.9 (Cal.) 1975, 523 F.2d 10.
Where reviewing court found that Secretary of Labor abused his discretion in denying plaintiff's application for alien
employment certificate, it had authority to either order the Secretary to issue the certificate or to remand to the Secretary for
further proceedings. Seo v. U. S. Dept. of Labor, C.A.9 (Cal.) 1975, 523 F.2d 10.
Where Secretary of Labor abused his discretion in denying plaintiff's application for alien employment certificate, record
showed Secretary should have issued certificate, and it would be unfair to exclude the alien based on changed job market,
reviewing court would order Secretary to issue certificate. Seo v. U. S. Dept. of Labor, C.A.9 (Cal.) 1975, 523 F.2d 10.
Remand to Secretary of Labor for further consideration of request for labor certification for alien who agreed to work as
live-in maid was appropriate, where Secretary's refusal of request, based on availability of American workers, was not
supported by the record. Silva v. Secretary of Labor, C.A.1 (Mass.) 1975, 518 F.2d 301.
In determining that aliens' wage offer was below prevailing wage for occupation of proposed area of employment, and that
alien was thus not entitled to labor certification, it was inappropriate for Secretary of Labor to compare wage offer of alien, a
Montessori teacher of preschool age children, with starting salary of BA-degreed school teachers in public school system and
comparison should have been made with wages paid other Montessori teachers conducting classes for preschool age children.
Ratnayake v. Mack, C.A.8 (Minn.) 1974, 499 F.2d 1207.
Determination denying alien employment certification of British secretaries was subject to review for abuse of discretion,
which was properly determined by standard whether record revealed no evidence to support decision that there was no
shortage of applicants for work. First Girl, Inc. v. Regional Manpower Adm'r of U. S. Dept. of Labor, C.A.7 (Ill.) 1974, 499
F.2d 122.
On appeal from denial of habeas corpus, court of appeals could not review Attorney General's discretion with respect to
application for temporary parole into United States of an alien detained at port of arrival by immigration officers as long as
Attorney General exercised discretion under this section to deny parole. Petition of Cahill, C.A.2 (N.Y.) 1971, 447 F.2d
1343.
If special inquiry officer's evaluation of credibility of witnesses at deportation hearing rests upon reasonable, substantial
and probative evidence, reviewing court must not disturb it. Espinoza Ojeda v. U. S. Immigration and Naturalization Service,
C.A.9 (Cal.) 1969, 419 F.2d 183.
Section 1105a of this title, providing for initial review in Court of Appeals of all "final orders of deportation" made against
aliens pursuant to administrative proceedings did not deprive federal District Court of jurisdiction to review denial by District
Director of Immigration and Naturalization Service of relief sought by aliens under this section providing for waiver by
Attorney General of two-year residence abroad requirement for admission. Mendez v. Major, C.A.8 (Mo.) 1965, 340 F.2d
128.
Refusal of alien in deportation proceeding to answer question as to whether he had been previously deported supported an
inference against him, and weight to be given his silence was for trial tribunal, as regards issue whether alien could be
deported under this section making excludable aliens who had been arrested and deported. Quilodran-Brau v. Holland, C.A.3
(Pa.) 1956, 232 F.2d 183.
The transcript of hearing before Board of Special Inquiry showed that Cuban citizen who was seeking admission to United
States for permanent residence and who was charged with having previously committed a crime involving moral turpitude
had been fully advised of his right to be represented by counsel, had been granted a fair hearing, and had understood the
nature of the crime of perjury, which he had admitted having committed when he swore in application for extension of
temporary stay that he had not been working. U.S. ex rel. Alvarez Y Flores v. Savoretti, C.A.5 (Fla.) 1953, 205 F.2d 544.
Provisions of Immigration and Nationality Act (INA) requiring employers to satisfy requirements of labor condition
application and protecting United States citizens from discrimination in hiring or discharge on basis of their citizenship did
not provide private causes of action in federal court, and implicated judicial review only after administrative procedures had
been exhausted. Shah v. Wilco Systems, Inc., S.D.N.Y.2000, 126 F.Supp.2d 641, motion to amend denied 2000 WL
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.
Review of either the legitimacy or the factual basis of reasons for Immigration and Naturalization Service's (INS) decision
to incarcerate alien indefinitely and deny release on any conditions could not be undertaken since record was not clear as to
the agency's reasons for detention. Haddam v. Reno, E.D.Va.1999, 54 F.Supp.2d 588.
Alien could not use writ of audita querela or writ of error coram nobis to seek relief from his drug possession conviction
one and a half years after learning of existence of deportation order based on such conviction; alien could have petitioned for
postconviction relief while he was still in custody for such conviction, sought to reopen deportation proceedings and claimed
a violation of his due process rights, or requested a waiver of excludability under the Immigration and Nationality Act. Tran
v. U.S., D.Puerto Rico 1999, 45 F.Supp.2d 157.
District court had jurisdiction to review claim that Immigration and Naturalization Service (INS) district director
wrongfully denied parole to alien. Mersereau v. Ingham, W.D.N.Y.1995, 875 F.Supp. 148.
Scope of judicial review of decision of District Director of United States Immigration and Naturalization Service denying
alien parole pending adjudication by Service of his application for political asylum and for visa based upon his marriage to
United States citizen was narrow: alien had to prove that District Director either failed to exercise any discretion at all in
denying parole, or that he exercised his discretion irrationally or in bad faith. St. Fleur v. Sava, S.D.N.Y.1985, 617 F.Supp.
403.
Decision of the Immigration and Naturalization Service Commissioner should not be reversed unless there is clear abuse of
discretion, unless decision is arbitrary and capricious, or if there is improper understanding of law. Almirol v. I.N.S.,
N.D.Cal.1982, 550 F.Supp. 253.
In immigration and naturalization cases, there is a general tendency to favor judicial review of administrative action. Hsing
v. Usery, W.D.Pa.1976, 419 F.Supp. 1066.
Decision of American consul in Santo Domingo denying immigrant visa to a Dominican Republic citizen, the husband of
plaintiff, a permanent resident of the United States, was not subject to judicial review with respect to consul's determination
that plaintiff's marriage was a sham and undertaken to facilitate foreign citizen's immigration to the United States. Pena v.
Kissinger, S.D.N.Y.1976, 409 F.Supp. 1182.
It would not be consistent with immigration statutes to substitute judgment of court for that of agency given the authority to
act under the immigration laws, in relation to application by aliens for an alien employment certification. Xytex Corp. v.
Schliemann, D.C.Colo.1974, 382 F.Supp. 50.
Jurisdiction to hear challenge brought by alien who had been ordered deported to constitutionality of this section making
aliens who depart United States for purpose of avoiding military service ineligible to receive visas was solely with the court
of appeals and not with a three-judge district court. Riva v. Attorney General of U. S., D.C.D.C.1974, 377 F.Supp. 1286.
If Board of Immigration Appeals had discretion to deny parole status to alien, its failure to exercise it would be reviewable
in habeas corpus proceeding. Conceiro v. Marks, S.D.N.Y.1973, 360 F.Supp. 454.
Where denial of request for waiver of two-year foreign residency requirement for securing visa as permanent resident was
separate from collateral deportation proceedings, court of appeals was without jurisdiction to review such denial. Yu v.
Marshall, S.D.Tex.1970, 312 F.Supp. 229.
District court's review of Attorney General's decision not to free aliens on parole was not limited to ascertaining whether
the Attorney General exercised his discretionary authority; rather, the district court would review the Attorney General's
decision for abuse of discretion. Fernandez-Roque v. Smith, N.D.Ga.1981, 91 F.R.D. 239.
District court's review of Attorney General's decision not to free Cuban refugees on parole was not required to be
conducted on a case-by-case basis. Fernandez-Roque v. Smith, N.D.Ga.1981, 91 F.R.D. 239.
97. Remand, administration and enforcement
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Because current statutes and regulations provide undocumented and unadmitted aliens from Haiti with nondiscriminatory
parole consideration, the Court of Appeals, in suit challenging the lawfulness of Immigration and Naturalization Service's
change from policy of general parole for undocumented aliens seeking admission to a policy, based on no statute or
regulation, of detention without parole for aliens who cannot present a prima facie case for admission, should not have
reached and decided parole question on constitutional grounds; however, it properly remanded case to consider whether INS
officials exercised their discretion under statute to make individualized parole determinations, and whether they exercised
such discretion without regard to race or national origin. Jean v. Nelson, U.S.Fla.1985, 105 S.Ct. 2992, 472 U.S. 846, 86
L.Ed.2d 664.
Upon vacation of order of the Board of Immigration Appeals (BIA) reversing immigration judge's decision to admit alien
to United States as unmarried daughter of lawful permanent resident, Court of Appeals would not remand for further
proceedings before the BIA, but with instructions to affirm immigration judge's decision, where BIA's nine-year delay in
entering order reversing immigration judge's decision, with result that alien had to deal withnine years of uncertainty as to
whether she could remain with her relatives in United States, made any further delay unfair. Mayo v. Ashcroft, C.A.8 2003,
317 F.3d 867.
Board of Immigration Appeals (BIA) failed to adequately consider Iraqi's motion to reopen removal proceedings under
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment based on his
ethnic/religious affiliation as Assyrian Christian, and remand thus was warranted; BIA made potentially critical mistake of
referring to him as "Syrian Christian," and BIA's adverse credibility determination with respect to his asylum claim
overshadowed its analysis of torture claim, which differed in nature from asylum claim. Mansour v. I.N.S., C.A.7 2000, 230
F.3d 902.
Alternative exercise of discretion by Board of Immigration Appeals (BIA) in denying alien registry was impermissibly
infected by its erroneous conclusion that alien's offenses of making false attestation on employment verification form and
using false Social Security number were crimes of "moral turpitude," and, thus, remand to BIA for redetermination as to
whether discretion should be exercised in her favor was warranted; although BIA did not expressly mention "moral
turpitude," it referred to alien's "convictions" and conduct underlying those convictions. Beltran-Tirado v. I.N.S., C.A.9 2000,
213 F.3d 1179.
District court order permanently enjoining Immigration and Naturalization Service (INS) district director from removing
petitioner from United States under immigration judge's (IJ) order in exclusion proceedings and remanding to IJ to determine
whether there was entry by petitioner was immediately appealable by INS district director; remand order effectively decided
important legal issue regarding INS exclusion jurisdiction and directed IJ to follow that decision in remand proceedings from
which INS would have no appeal. Baca- Prieto v. Guigni, C.A.10 (N.M.) 1996, 95 F.3d 1006.
Board of Immigration Appeals' (BIA) failure to properly consider important factors in deportee's favor, in denying him
special equitable relief from deportation due to his conviction on narcotics charges, required remand for further proceedings;
BIA's opinion failed adequately to explain its discrediting of three factors in deportee's favor (i.e., hardship deportation would
impose on deportee's sick brother and his brother's family, deportee's minor role in single crime ten years previous to BIA
opinion, and deportee's rehabilitation), and BIA did not consider deportee's property and business ties to United States in
form of his ownership of taxicab. Tipu v. I.N.S., C.A.3 1994, 20 F.3d 580.
Failure of the Board of Immigration Appeals (BIA) to consider factor of rehabilitation in reviewing application for waiver
of deportation by alien who had a criminal record required remand for Board to reevaluate case and consider specifically
alien's evidence with respect to rehabilitation. Akinyemi v. I.N.S., C.A.7 1992, 969 F.2d 285.
Remand was required of passenger's claim against Immigration Service agents for allegedly preventing passenger from
boarding airplane in violation of Fourth Amendment, as district court made no findings as to whether agents had reasonable
suspicion concerning passenger's immigration status at time that they prevented him from boarding his flight; agents'
subjective belief concerning whether their inspection of passenger was complete would not justify preventing passenger from
boarding flight. Lopez Lopez v. Aran, C.A.1 (Puerto Rico) 1988, 844 F.2d 898, rehearing denied, onremand 699 F.Supp. 365.
An alien's application for permanent resident status could not be denied because of his membership in the Workers
Communist Party; however, remand of proceeding was necessary to determine whether denial of application was required on
other, unrelated grounds. Firestone v. Howerton, C.A.9 (Cal.) 1982, 671 F.2d 317.
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Decision of Board of Immigration Appeals denying alien's Mar. 1975 request for status of permanent resident alien under
the investor exception to 1973 version of labor certification requirement was vacated and cause remanded for further
consideration of whether an artist, such as petitioner, who invested in art gallery for sale of his own works, could claim
benefit of the 1973 version of the exemption and, if Board concluded that petitioner could not, it was to consider whether
petitioner had notice of contrary policy and whether the policy was adopted through a procedure permissible under governing
decisions. Konishi v. Immigration and Naturalization Service, C.A.9 1981, 661 F.2d 818.
Evidence, in deportation proceeding, was not sufficient to support finding that alien's misrepresentations in obtaining
certificate of labor were willful and, thus, case would be remanded to Board of Immigration Appeals for further proceedings
wherein government could introduce whatever additional evidence it desired. Castaneda-Gonzalez v. Immigration and
Naturalization Service, C.A.D.C.1977, 564 F.2d 417, 183 U.S.App.D.C. 396.
Remand to Secretary of Labor and regional manpower administrator for a more specific factual basis for denial of a
certification was appropriate since employer's detailed enumeration of job requirements and Uruguayan native's
qualifications to meet them were not adequately answered by conclusory statement that some 200 electrical engineers were
listed in registry maintained in Sacramento, California, especially, in view of failure of government officials, after learning of
employer's highly specific requirements and alien's qualifications, to submit further proof of availability of engineers in such
a restricted category. Digilab, Inc. v. Secretary of Labor, C.A.1 (Mass.) 1974, 495 F.2d 323, certiorari denied 95 S.Ct. 70,
419 U.S. 840, 42 L.Ed.2d 67.
In alien employment certification proceedings, remand to agency is better practice than trial de novo in reviewing court.
Secretary of Labor of U. S. v. Farino, C.A.7 (Ill.) 1973, 490 F.2d 885.
Having found that construing Immigration and Naturalization Act to bar discretionary relief to aliens in deportation
proceedings, but not those in exclusion proceedings, violated alien's Equal Protection rights, appropriate remedy was to
remand to Board of Immigration Appeals (BIA) for a discretionary hearing on the merits of alien's application for relief under
former statute. Wallace v. Reno, D.Mass.1999, 39 F.Supp.2d 101.
Although better practice, when Secretary of Labor has abused his discretion in denying alien employment certification, is
to remand case back to Secretary for further proceedings, where record in instant case showed that Secretary should have
issued certification long ago and it would be inequitable to force applicants to await another administrative decision, case
would be remanded to Secretary with instructions to grant certification without delay. Montessori Children's House and
School, Inc. v. Secretary of Labor of U. S., N.D.Tex.1977, 443 F.Supp. 599.
98. Reversal, administration and enforcement
District court erred in reversing hearing officer's discretionary determination that application for labor certification for alien
did not, possess "extraordinary" features such as would warrant hearing officer's consideration of evidence submitted with
request for review. Ross v. Marshall, C.A.2 (Conn.) 1981, 651 F.2d 846.
99. Habeas corpus, administration and enforcement
Jurisdiction-stripping provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) did not
deprive district court of habeas jurisdiction to decide whether illegal reentry defendant's due process rights were violated in
connection with prior deportation proceeding, because he was not given judicial review of decision of Board of Immigration
Appeals (BIA) that he was not entitled to discretionary relief from deportation. Smith v. Ashcroft, C.A.4 (Md.) 2002, 295
F.3d 425.
In deportation case governed by transition rules of Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRAD), district court had subject matter jurisdiction over alien's habeas petition, where alien exhausted his administrative
remedies and was subject to final deportation order prior to filing his petition, alien's direct appeal, if timely filed, would have
been filed prior to issuance of Lettman I decision and, thus, would have likely been dismissed, and alien challenged
retroactive application of Anti-terrorism and Effective Death Penalty Act (AEDPA) provision expanding category of criminal
convictions rendering aliens ineligible for discretionary relief from deportation. Okongwu v. Reno, C.A.11 (Ga.) 2000, 229
F.3d 1327.
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Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) did not divest district court of habeas jurisdiction
to review challenge to decision of Board of Immigration Appeals (BIA) that alien was removable by reason of his drug
conviction and that he was ineligible to apply for discretionary relief from deportation, where no other avenue for judicial
review was available. St. Cyr v. I.N.S., C.A.2 (Conn.) 2000, 229 F.3d 406, certiorari granted 121 S.Ct. 848, 531 U.S. 1107,
148 L.Ed.2d 733, affirmed 121 S.Ct. 2271, 533 U.S. 289, 150 L.Ed.2d 347.
Habeas corpus jurisdiction under the general habeas statute for criminal aliens whose petitions fall within the purview of
the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) survives the enactment
of the Antiterrorism and Effective Death Penalty Act (AEDPA) as modified by the IIRIRA's transitional rules. Haio v. I.N.S.,
C.A.6 (Mich.) 1999, 199 F.3d 302.
Section of Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) precluding court jurisdiction over
aliens' claims arising from Attorney General's decisions to commence proceedings, adjudicate cases, or execute removal
orders did not bar alien's habeas petition alleging that Antiterrorism and Effective Death Penalty Act (AEDPA), as interpreted
by Board of Immigration Appeals (BIA) to deny discretionary waivers of inadmissibility to deportable but not to excludable
aliens, violated his equal protection rights, inasmuch as petition did not challenge government's selective enforcement of
immigration laws. DeSousa v. Reno, C.A.3 (Pa.) 1999, 190 F.3d 175.
Anti-terrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA) did not preclude habeas review of pure question of law raised by lawful permanent resident subject to
transitional rules of IIRIRA, i.e., whether AEDPA section eliminating any discretion that Attorney General previously had
with respect to deportable aliens applied retroactively to aliens against whom deportation proceedings had already been
commenced on date of IIRIRA's enactment. Shah v. Reno, C.A.8 (Mo.) 1999, 184 F.3d 719, rehearing denied.
District court had jurisdiction, in habeas claim of alien who have been ordered deported based on commission of drug
crime, to consider alien's statutory claim that Attorney General could apply statute providing for discretionary relief to
pending cases. Sandoval v. Reno, C.A.3 (Pa.) 1999, 166 F.3d 225.
There was no requirement for evidentiary hearing on requests of detained aliens for habeas corpus following denial of
parole pending resolution of asylum applications. Amanullah v. Nelson, C.A.1 (Mass.) 1987, 811 F.2d 1.
Parole status obtained by one Cuban national and placement of another Cuban national under the governance of the
Attorney General's review plan for "Freedom Flotilla" Cubans detained in Bureau of Prison facility, as well as mental health
examinations and determinations both received, mooted their petitions for habeas corpus seeking release from hospital.
Alonso-Martinez v. Meissner, C.A.D.C.1983, 697 F.2d 1160, 225 U.S.App.D.C. 270.
Under subsec. (a)(14) of this section excluding nonquota immigrant from admission into United States upon determination
of Secretary of Labor that sufficient workers in United States are available to perform the services required, aliens seeking
entry are given no access to courts when Secretary's determination is made prior to granting of visa by American consul and
only judicial relief available is habeas corpus petition following exclusion order. Cobb v. Murrell, C.A.5 (Tex.) 1967, 386
F.2d 947.
A writ of habeas corpus to enlarge relator pending decision of Commissioner of Naturalization as to whether he should be
excluded as an alien was premature so far as it sought a definitive release of the relator from custody. United States v.
Thompson, C.A.2 (N.Y.) 1951, 188 F.2d 244, certiorari denied 71 S.Ct. 1005, 341 U.S. 954, 95 L.Ed. 1376.
Where Italian stowaways entered the United States without passports or visas and were not otherwise admissible, and they
applied to Commissioner of Immigration for temporary admission pending action on private Senate Bill granting permanent
right of admission, and Commissioner denied applications without submitting matter to Board of Immigration Appeals,
administrative remedies were exhausted, and aliens were entitled to release in habeas corpus proceedings unless within
reasonable time to be fixed by District Court Commissioner submitted applications and Board acted upon them. U.S. ex rel.
Picicci v. District Director of Immigration and Naturalization at Port of N.Y., C.A.2 (N.Y.) 1950, 181 F.2d 304.
Under the Act of 1907, immigration laws applied only to aliens applying for landing within United States as their
destination; hence alien listed on ship's manifest and ticketed for Halifax, on being refused admission to enter Canada, not
having disavowed any intention to land there, and not having questioned jurisdiction of Dominton government in directing
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his deportation, was not entitled to his release on habeas corpus from custody of officers of steamship while temporarily in
port in United States pending his deportation to place from whence he came in accordance with direction of Dominion. U.S.
v. Fielding, E.D.N.Y.1909, 175 F. 290.
Southern District of New York was a proper situs for habeas corpus proceeding brought by alien detainee who was being
held in Philadelphia pending execution of deportation order, where all the proceedings affecting alien's deportation were
conducted in the Southern District of New York, the district of his residence, and respondent, the United States Attorney
General, was his custodian and was also represented in district; alien had been detained in several locations pending
deportation. Small v. Ashcroft, S.D.N.Y.2002, 209 F.Supp.2d 294.
Length of criminal alien's detention pending removal was not a valid basis for habeas relief since primary obstacle to
alien's removal to Zimbabwe was his own refusal to cooperate with Immigration and Naturalization Service (INS) officials in
securing the documentation necessary to permit his deportation and his own pursuit of litigation in federal and state courts.
Sango-Dema v. District Director, I.N.S., D.Mass.2000, 122 F.Supp.2d 213.
Alien properly sought writ of habeas corpus on ground that decision of District Director of United States Immigration and
Naturalization Service, denying him parole pending adjudication by Service of his application for political asylum and for
visa based upon his marriage to United States citizen, was arbitrary, capricious, and abuse of discretion. St. Fleur v. Sava,
S.D.N.Y.1985, 617 F.Supp. 403.
Even if nonresident alien were entitled to protection under the Fifth and Eighth Amendments, his petition for writ of habeas
corpus based on delays experienced in receiving a final decision on his application for asylum was denied with leave to
renew petition if claim to asylum was not resolved expeditiously, where delays alien experienced in receiving review of
initial decision denying asylum were largely result of faulty transcription of proceedings below and inability of parties to
reconstruct transcript omissions, alien failed to show how delays in resolving his application prejudiced his chances for
success in that proceeding, and alien would remain incarcerated only until final determination of his application. Application
of Pierre, E.D.Pa.1985, 605 F.Supp. 265.
That Attorney General had developed plan to deal with Cuban refugees still in custody in expeditious manner was
commendable but insufficient to warrant court's denial of habeas corpus relief, in view of fact that processing had been
delayed for so long, requiring detention under unsuitable conditions and by reason of likelihood of further unlawful
detention. Diaz v. Haig, D.C.Wyo.1981, 594 F.Supp. 1.
Immigration and Naturalization Service's administrative determination that petitioner had illegally entered the United
States would be final and conclusive upon the district court in habeas corpus proceeding to obtain petitioner's release from
custody under warrant for deportation if petitioner was, in fact, an alien, but, upon making substantial claim to United States
citizenship, petitioner was entitled to trial de novo on question of his citizenship. U.S. ex rel. Leong v. O'Rourke,
W.D.Mo.1954, 125 F.Supp. 769.
Under former 136 of this title which in effect authorized "special rulings" on applications of otherwise inadmissible
aliens for temporary admission, where the only record showing as to "special ruling" on such application was statement of
counsel that applications were denied for erroneous reasons stated by counsel, that application was inadequate or applicants
were not eligible for the relief, administrative action was improper and aliens were entitled to release on habeas corpus. U S
ex rel Hadrosek v. Shaughnessy, S.D.N.Y.1951, 101 F.Supp. 432.
District court's habeas jurisdiction did not extend to review of discretionary decision of Immigration and Naturalization
Service (INS) to deny alien's application for waiver of deportation. Solis v. Ashcroft, E.D.N.Y.2002, 2002 WL 31528624,
Unreported.
100. Pending appeal, administration and enforcement
Pendency of alien's untimely appeal from deportation order did not preclude Immigration and Naturalization Service from
deporting him. U.S., ex rel., Pupo-Tordecilla v. Sava, S.D.N.Y.1989, 704 F.Supp. 55.
District director of Immigration and Naturalization Service did not abuse his discretion in denying alien's application to
stay his deportation pending decision on alien's motion to reopen his deportation hearing in that alien had illegally overstayed
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his permission to remain in the United States by nearly six years, and attempted to defraud the INS into granting him
permanent residence in the United States by contracting a fraudulent marriage, and who sought stay on basis of another
marriage, contracted six days before scheduled date of his departure. Kayani v. Sava, S.D.N.Y.1986, 634 F.Supp. 948.
101. Timeliness of challenge, administration and enforcement
Alien's argument that, at time of her entry into the United States, she was validly married to a United States citizen and
thus was exempt from labor certification requirement of this section was untimely where alien did not appeal from original
deportation order nor raise the issue in her motion to reopen the deportation proceedings, but attempted to assert invalidity of
her deportation charge for first time on appeal of denial of her motion seeking to reopen the proceedings. Skelly v.
Health care facility's pre-enforcement claims under the Administrative Procedure Act (APA) challenging as beyond
statutory authority regulations promulgated by the Department of Labor (DOL) under the Immigration Nursing Relief Act
(INRA), which regulations permitted DOL to investigate facilities pursuant to complaint and to impose penalties for
violations, were not ripe for decision; regulations were discretionary, and any harm to facility was not immediate. Beverly
Enterprises, Inc. v. Herman, D.D.C.1999, 50 F.Supp.2d 7.
101A. Time proceeding commences, administration and enforcement
Deportation proceedings commence, whether for purposes of the Antiterrorism and Effective Death Penalty Act (AEDPA)
or the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), with the filing of an order to show cause
(OSC) with the Immigration Court, rather than with the service of an OSC upon the alien, even if the Immigration and
Naturalization Service (INS) contemporaneously lodges a detainer against the alien. Armendariz-Montoya v. Sonchik, C.A.9
(Ariz.) 2002, 291 F.3d 1116.
102. Collateral estoppel, administration and enforcement
Neither collateral estoppel nor res judicata barred class of screened-in human immunodeficiency virus (HIV) positive
Haitians in United States custody at Guantanamo Naval Base in Cuba from challenging government's treatment of detained
Haitians; prior litigation involved different parties, i.e., screened-out Haitians, different claims, and circumstances
substantially different from those presented in instant case. Haitian Centers Council, Inc. v. Sale, E.D.N.Y.1993, 823 F.Supp.
1028.
Respondent was not collaterally estopped by the Louis decision from litigating the legality of the Nicaraguan petitioner's
detention, since there was nothing before the court to indicate that the same change in immigration policy that substantially
impacted the plaintiffs in Louis had similarly affected petitioner, since the challenged detention herein was thus not identical
to that made in Louis, and since, furthermore, the issue was not fully litigated during the pendency of the appeal in that case,
and it remained unclear that the determination of the issue was necessary and essential to the resulting judgment. Roa v.
Howerton, S.D.Fla.1982, 549 F.Supp. 187.
103. Jurisdiction, administration and enforcement
The Court of Appeals lacked jurisdiction to remand or terminate alien's removal proceedings based on his alleged
eligibility for discretionary waiver of removal on the basis that the crime for which he was being removed occurred more
than 15 years earlier, where the claim was not raised before the Board of Immigration Appeals (BIA), even though the
15-year anniversary of the crime occurred after the BIA's entry of the order of removal. Bayudan v. Ashcroft, C.A.9 2002,
287 F.3d 761, review granted, set aside 298 F.3d 799.
Claim by alien, who had been found inadmissible based on his convictions for conspiring to export military weapons
without a license, that statute making aliens inadmissible if they are attempting to enter the United States to evade any law
prohibiting the export of goods, technology, or sensitive information was unconstitutionally vague, did not raise a substantial
constitutional claim, as would give Court of Appeals jurisdiction to consider petition for review after Board of Immigration
Appeals (BIA) denied his request for adjustment of status under "safety valve" exception to general rule that no appeal may
be taken from a discretionary decision involving status adjustment. Beslic v. I.N.S., C.A.7 2001, 265 F.3d 568.
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Immigration and Nationality Act (INA) stripped Court of Appeals of jurisdiction to review final order of removal, after
petitioner admitted at his hearing before immigration judge that he was a Columbian citizen who pleaded guilty to conspiracy
to import methaqualone. Galindo-Del Valle v. Attorney General, C.A.11 2000, 213 F.3d 594, certiorari denied 121 S.Ct.
2590, 533 U.S. 949, 150 L.Ed.2d 749.
Fact that Immigration and Naturalization Service (INS) served deportable alien with notice to appear more than 30 days
before evidentiary hearing was insufficient to effect an election by the INS to apply new permanent provisions of the Illegal
Immigrant Removal and Immigrant Responsibility Act (IIRIRA), which precluded habeas review, to alien's proceeding
instead of transitional rules under such Act, which allowed habeas review; notice to appear did not explicitly indicate that
INS had elected to apply new rules to alien's proceeding. Alanis-Bustamante v. Reno, C.A.11 (Fla.) 2000, 201 F.3d 1303.
That alien facing deportation had incorrectly sought habeas relief in district court rather than asserting his constitutional
claim in Seventh Circuit Court of Appeals did not preclude Court of Appeals from hearing his claim pursuant to safety valve
allowing for direct review of substantial constitutional claims despite curtailment of judicial review of deportation orders by
Antiterrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA); seeking habeas relief was not unreasonable in that Seventh Circuit had not at that time ruled out district court
jurisdiction. Singh v. Reno, C.A.7 (Wis.) 1999, 182 F.3d 504, amended on denial of rehearing.
Court of Appeals was without jurisdiction to review administrative order denying waiver of Immigration and Nationality
Act requirement that exchange students and others admitted to study in the United States on government- financed program
return to their country and reside there for at least two years before applying for immigrant or nonresidence visas. Ibrahim v.
U.S. I.N.S., C.A.11 1987, 821 F.2d 1547.
District court had subject matter jurisdiction over nonimmigrant exchange visitor's complaint alleging that INS district
director abused his discretion by failing to state reasons for denying visitor's application for waiver of requirement that he
reside for two years abroad before becoming eligible for immigrant visa or permanent residence since essence of claim was
that INS failed to comply with its own regulations. Abdelhamid v. Ilchert, C.A.9 (Cal.) 1985, 774 F.2d 1447.
District court had jurisdiction to consider the "pure issue of law" presented by petitions of aliens subject to deportation
orders seeking writs of habeas corpus on the ground that Congress did not intend Antiterrorism and Effective Death Penalty
Act's (AEDPA) restrictions on discretionary relief from deportation to apply retroactively to aliens in pending deportation
proceedings at the time of enactment. Mathews v. Reno, D.Mass.1999, 52 F.Supp.2d 195.
Federal district court did not have subject matter jurisdiction to review United States Information Agency's exercise of
discretion in refusing to recommend waiver of two-year foreign residence requirement for educational visitor status. Singh v.
Moyer, N.D.Ill.1987, 674 F.Supp. 20, affirmed 867 F.2d 1035.
District court lacked subject-matter jurisdiction over alien's claim that director of United States Information Agency abused
his discretion in declining to make favorable recommendation of waiver as requirement that alien, as J-1 exchange student,
return to and reside in his native country for at least two years before applying for immigrant visa or permanent residence.
El-Omrani v. Director, U.S. Information Agency, W.D.Pa.1986, 638 F.Supp. 430.
District court had jurisdiction over action raising question whether refusal by Department of State to grant nonimmigrant
visa to widow of former Chilean president impermissibly impinged on First Amendment rights of American scholars,
politicians and religious leaders who had invited her to United States to speak and exchange views with them on topics of
common concern, despite contention that Constitution and historical principles of sovereignty bestowed responsibility for
regulating relationship between United States and alien visitors on political branches of federal government. Allende v.
Shultz, D.C.Mass.1985, 605 F.Supp. 1220.
104. Standing, administration and enforcement
Petitioner lacked standing to challenge constitutionality of Antiterrorism and Effective Death Penalty Act's (AEDPA)
amendment to now-repealed Immigration and Nationality Act (INA) provision, which eliminated the possibility of INA
discretionary relief for aliens convicted of drug offenses, since amended INA provision had since been repealed in its
entirety, and he thus could not show injury from application of AEDPA. Galindo-Del Valle v. Attorney General, C.A.11
2000, 213 F.3d 594, certiorari denied 121 S.Ct. 2590, 533 U.S. 949, 150 L.Ed.2d 749.
8 USCA 1182
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Claim by immigrant assistance organizations that their members might someday be subject to summary removal was too
speculative to establish organizations' associational standing to challenge summary removal procedures of Illegal
Immigration Reform and Immigrant Responsibility Act of (IIRIRA). American Immigration Lawyers Ass'n v. Reno,
C.A.D.C.2000, 199 F.3d 1352, 339 U.S.App.D.C. 341.
Individuals living in immigration-impacted areas were not within zone of interests of immigration statutes, so that they
were neither beneficiaries nor otherwise suitable challengers of scheme for parole and adjustment of Cuban nationals
required to claim standing under provision of Administrative Procedures Act (APA) as persons aggrieved by challenged
statute. Federation for American Immigration Reform, Inc. v. Reno, C.A.D.C.1996, 93 F.3d 897, 320 U.S.App.D.C. 234,
American labor union had standing to challenge decision of Immigration and Naturalization Service that Canadian
operators of on-board cranes were "alien crewmen" entitled to enter United States and operate cranes to load logs onto
logging vessels; because of foreign competition, union members lost opportunity to compete for what they contended were
traditional longshore jobs, which injury was caused by the INS action. International Longshoremen's and Warehousemen's
Union v. Meese, C.A.9 (Wash.) 1989, 891 F.2d 1374, 109 A.L.R. Fed. 795.
Alleged injuries to nonprofit membership corporation and two members as result of program, which sought to interdict
undocumented aliens on high seas, but which did not purposefully interfere with relationship of corporation and members to
refugees, could not be fairly traced to interdiction program and were not likely to be redressed by favorable decision, and,
thus, corporation and members did not establish Article III standing by prediction that some refugees would contact
corporation absent interdiction program, in that separation of powers concerns limited spread of judicial authority. (Per Bork,
Circuit Judge, with one Circuit Judge concurring in result.) Haitian Refugee Center v. Gracey, C.A.D.C.1987, 809 F.2d 794,
257 U.S.App.D.C. 367.
Immigration and Nationality Act [Immigration and Nationality Act, 101 et seq., 8 U.S.C.A. 1101 et seq.] did not itself
endow groups, which wished to have certain aliens enter country to speak to them, with right to participate in administrative
process regarding denial of visa requests under 1182(a)(27) of Act, directing exclusion of alien if Attorney General has
reason to believe that alien seeks to enter country to engage in activities prejudicial to public welfare. Abourezk v. Reagan,
C.A.D.C.1986, 785 F.2d 1043, 251 U.S.App.D.C. 355, certiorari granted 107 S.Ct. 666, 479 U.S. 1016, 93 L.Ed.2d 718,
affirmed 108 S.Ct. 252, 484 U.S. 1, 98 L.Ed.2d 1, on remand.
Despite fact that alien resided outside of United States, alien had standing to seek judicial review of decision of regional
director of Immigration and Naturalization Service denying alien's application for permission to reapply for admission to the
United States following deportation or removal, where alien had been in the United States and voluntarily left to pursue his
request for readmission. Jaimez-Revolla v. Bell, C.A.D.C.1979, 598 F.2d 243, 194 U.S.App.D.C. 324.
No domicile within former 136(p) of this title could be acquired by one whose original entry was unlawful. Gabriel v.
Johnson, C.C.A.1 (Mass.) 1928, 29 F.2d 347.
American citizens had standing to challenge, on First Amendment grounds, refusal by Department of State to grant
nonimmigrant visa to widow of former Chilean president. Allende v. Shultz, D.C.Mass.1985, 605 F.Supp. 1220.
Permanent resident of the United States had standing to seek judicial review of the allegedly capricious decision of the
American consul in Santo Domingo denying an immigrant visa to her husband on ground that foreign citizen's marriage to
plaintiff was a sham and undertaken to facilitate his immigration to the United States. Pena v. Kissinger, S.D.N.Y.1976, 409
F.Supp. 1182.
Where plaintiff alien was not a resident of the United States and had no definite offer of employment in geographic area to
which he allegedly sought to relocate, plaintiff's claim for labor certification was hypothetical and it was not an actual case or
controversy over which the federal district court had jurisdiction; plaintiff had no standing to bring the action. Rumahorbo v.
Secretary of Labor, D.C.D.C.1975, 390 F.Supp. 208.
III. CLASSES SUBJECT TO EXCLUSION
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<Subdivision Index>
Accountants, laborers 171
Administrative discretion, return to unrelinquished domicile 223
Administrative discretion, moral turpitude 187
Anarchists, security 236
Assault with deadly weapon, moral turpitude 195
Assistance from others, public charges 212
Bail or bond, return to unrelinquished domicile 224
Bigamy, moral turpitude 196
Certification, laborers 158
Change of status, laborers 179
Children, public charges 214
Children, return to unrelinquished domicile 225
Collateral attack, moral turpitude 188
Commencement and termination of period, return to unrelinquished domicile
226
Communist Party members, security 237
Commuters 132
Competition with domestic workers, laborers 169
Concealment, misrepresentation of material fact 185
Conviction, moral turpitude 189
Cosmetologists, laborers 173
Crewmen, public charges 215
Criminal convictions 133
Criminal convictions, deportation 135
Denial of certification, laborers 159
Deportation 134-147
Deportation - Generally 134
Deportation - Criminal convictions 135
Deportation - Discretionary relief 136
Deportation - Drug offenses 137
Deportation - Family relationship 138
Deportation - Hardship relief 139
Deportation - Labor certification 140
Deportation - Lawful residence 141
Deportation - Loss of resident status 142
Deportation - Rehabilitation 143
Deportation - Reopening deportation proceedings 144
Deportation - Statutory bar of waiver 145
Deportation - Validity of waiver 146
Deportation - Waiver 147
Discretionary relief, deportation 136
Documentation requirements 148
Domestics, laborers 172
Drug offenses 149
Drug offenses, deportation 137
Exceptional hardship, foreign residence requirement 152
Executives, superintendents, etc., laborers 174
Exemption from certification, laborers 160
False representations, moral turpitude 197
Family relationship, deportation 138
Foreign residence requirement 150-152
Foreign residence requirement - Generally 150
Foreign residence requirement - Exceptional hardship 152
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Page 158
Foreign residence requirement - Waiver of foreign residence requirement 151

Forgery, moral turpitude 198
Gamblers, public charges 216
Hardship relief, deportation 139
Health grounds 153, 154
Health grounds - Generally 153
Health grounds - Mental condition 154
Imprisonment, public charges 217
Ineligibility for citizenship 155, 156
Ineligibility for citizenship - Generally 155
Ineligibility for citizenship - Military service 156
Intent of alien, return to unrelinquished domicile 227
Investor exemption, laborers 161
Job qualifications, laborers 162
Labor certification, deportation 140
Laborers 157-182
Laborers - Generally 157
Laborers - Accountants 171
Laborers - Certification 158
Laborers - Change of status 179
Laborers - Competition with domestic workers 169
Laborers - Cosmetologists 173
Laborers - Denial of certification 159
Laborers - Domestics 172
Laborers - Executives, superintendents, etc. 174
Laborers - Exemption from certification 160
Laborers - Investor exemption 161
Laborers - Job qualifications 162
Laborers - Limited employment 167
Laborers - Merchants 175
Laborers - Position certified 165
Laborers - Power of Secretary 164
Laborers - Prerequisites for certification 168
Laborers - Professional persons 176
Laborers - Professors, teachers, etc. 177
Laborers - Reasonableness of job qualifications 163
Laborers - Review 182
Laborers - Self-employment 180
Laborers - Shortage of local labor 170
Laborers - Skilled laborers 166
Laborers - Standing 181
Laborers - Wages 178
Larceny, moral turpitude 199
Lawful residence, deportation 141
Libel, moral turpitude 200
Limitation to aliens, public charges 213
Limited employment, laborers 167
Loss of resident status, deportation 142
Marriage to effect evasion 183
Members of proscribed organizations, security 238
Mental condition, health grounds 154
Mental defectives, public charges 218
Merchants, laborers 175
Military service, ineligibility for citizenship 156
Miscellaneous offenses, moral turpitude 205
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Page 159
Miscellaneous persons, public charges 220

Misrepresentation of material fact 184, 185
Misrepresentation of material fact - Generally 184
Misrepresentation of material fact - Concealment 185
Moral turpitude 186-205
Moral turpitude - Generally 186
Moral turpitude - Administrative discretion 187
Moral turpitude - Assault with deadly weapon 195
Moral turpitude - Bigamy 196
Moral turpitude - Collateral attack 188
Moral turpitude - Conviction 189
Moral turpitude - False representations 197
Moral turpitude - Forgery 198
Moral turpitude - Larceny 199
Moral turpitude - Libel 200
Moral turpitude - Miscellaneous offenses 205
Moral turpitude - Murder 200a
Moral turpitude - Pardon of criminal 193
Moral turpitude - Perjury 201
Moral turpitude - Petty offense exception 190
Moral turpitude - Political offenses 194
Moral turpitude - Proof of crime 191
Moral turpitude - Rape 202
Moral turpitude - Reentry by criminal 192
Moral turpitude - Revenue offenses 203
Moral turpitude - Theft 204
Murder, moral turpitude, classes subject to exclusion 200a
Nazi persecution, security 239
Officials of foreign governments, security 240
Overthrow of government by force, security 241
Pacifists 206
Pardon of criminal, moral turpitude 193
Period of absence, return to unrelinquished domicile 228
Perjury, moral turpitude 201
Permit, return to unrelinquished domicile 229
Petty offense exception, moral turpitude 190
Physical defectives, public charges 219
Political offenses, moral turpitude 194
Position certified, laborers 165
Power of Secretary, laborers 164
Prerequisites for certification, laborers 168
Previous removal 207
Prior law 131
Procurers 208
Professional persons, laborers 176
Professors, teachers, etc., laborers 177
Proof of crime, moral turpitude 191
Prostitutes 209
Public charges 210-221
Public charges - Generally 210
Public charges - Assistance from others 212
Public charges - Children 214
Public charges - Crewmen 215
Public charges - Gamblers 216
Public charges - Imprisonment 217
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Public charges - Limitation to aliens 213

Public charges - Mental defectives 218
Public charges - Miscellaneous persons 220
Public charges - Physical defectives 219
Public charges - Reentry 221
Public charges - Treaties 211
Rape, moral turpitude 202
Reasonableness of job qualifications, laborers 163
Reentry by criminal, moral turpitude 192
Reentry,public charges 221
Rehabilitation, deportation 143
Release on bond, security, classes subject to exclusion 235a
Reopening deportation proceedings 144
Return to unrelinquished domicile 222-232
Return to unrelinquished domicile - Generally 222
Return to unrelinquished domicile - Administrative discretion 223
Return to unrelinquished domicile - Bail or bond 224
Return to unrelinquished domicile - Children 225
Return to unrelinquished domicile - Commencement and termination of period 226
Return to unrelinquished domicile - Intent of alien 227
Return to unrelinquished domicile - Period of absence 228
Return to unrelinquished domicile - Permit 229
Return to unrelinquished domicile - Rules and regulations 230
Return to unrelinquished domicile - Status 231
Return to unrelinquished domicile - Tacking periods of residence 232
Revenue offenses, moral turpitude 203
Review, laborers 182
Rules and regulations, return to unrelinquished domicile 230
Security 235-242
Security - Generally 235
Security - Anarchists 236
Security - Communist Party members 237
Security - Members of proscribed organizations 238
Security - Nazi persecution 239
Security - Officials of foreign governments 240
Security - Overthrow of government by force 241
Security - Release on bond 235a
Security - Waiver of condition 242
Self-employment, laborers 180
Shortage of local labor, laborers 170
Skilled laborers 166
Smugglers 233
Standing, laborers 181
Status, return to unrelinquished domicile 231
Statutory bar of waiver, deportation 145
Stowaways 234
Tacking periods of residence, return to unrelinquished domicile 232
Theft, moral turpitude 204
Treaties, public charges 211
Validity of waiver, deportation 146
Violations of law 243
Wages, laborers 178
Waiver, deportation 147
Waiver of condition, security 242
Waiver of foreign residence requirement 151
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131. Prior law, classes subject to exclusion

"Section 3 of the Act of 1917 defines and enumerates the classes of aliens who are to be excluded,--idiots, imbeciles,
feeble-minded persons, paupers, professional beggars, diseased persons, criminals, polygamists, anarchists, prostitutes, and
numerous others, the last in the enumeration being natives of islands not possessed by the United States, adjacent to the
continent of Asia, and of the continent within certain described limits of latitude and longitude. The clause relied upon
immediately follows: 'The provision next foregoing, however, shall not apply to persons of the following status or
occupations: Government officers, ministers or religious teachers, missionaries, lawyers, physicians, chemists, civil
engineers, teachers, students, authors, artists, merchants and travelers for curiosity or pleasure, nor to their legal wives or
their children under sixteen years of age who shall accompany them or who subsequently may apply for admission to the
United States. * * *' The limited scope of this exception is apparent, and no amount of discussion could make it plainer. It
applies to 'the provision next foregoing,'--namely, to that dealing with aliens coming from the barred Asiatic zone, and to that
only." Commissioner of Immigration of Port of New York v. Gottlieb, U.S.N.Y.1924, 44 S.Ct. 528, 265 U.S. 310, 68 L.Ed.
1031.
Act Mar. 3, 1891, 1, providing for exclusion of certain classes of aliens "in accordance with existing acts regulating
immigration other than those concerning Chinese laborers," did not place Chinese laborers outside excluded classes. Ex parte
Woo Jan, E.D.Ky.1916, 228 F. 927, question certified 250 F. 595, 162 C.C.A. 611, certified question answered 38 S.Ct. 207,
245 U.S. 552, 62 L.Ed. 466.
Chinese exclusion Acts were to be read in pari materia with early immigration Act so far as they applied to Chinese aliens
seeking to enter United States; immigration Act being equally applicable to Chinese aliens as to other aliens. Ex parte Wong
You, N.D.N.Y.1910, 176 F. 933, reversed 181 F. 313, 104 C.C.A. 535, reversed 32 S.Ct. 195, 223 U.S. 67, 56 L.Ed. 354.
See, also, Hee Fuk Yuen v. White, C.C.A.Cal.1921, 273 F. 10, certiorari denied 42 S.Ct. 51, 257 U.S. 639, 66 L.Ed. 411; Ex
parte Chin Him, D.C.N.Y.1915, 227 F. 131, modified on other grounds 242 F. 496; Ex parte Li Dick, D.C.N.Y.1909, 174 F.
674.
132. Commuters, classes subject to exclusion
Philippine native, who did not come to United States to work, who did not commute daily or seasonally, whose yearly trips
to United States were not avowed purpose of keeping her alien registration card current and whose home was not in a country
contiguous to the United States, was not entitled to the special alien commuter status granted workers from Canada and
Mexico by Immigration and Naturalization Service pursuant to long standing policy. Alvarez v. District Director of U. S.
Immigration and Naturalization Service, C.A.9 (Cal.) 1976, 539 F.2d 1220, certiorari denied 97 S.Ct. 1334, 430 U.S. 918, 51
L.Ed.2d 597.
This section which provides that alien workers may not enter the United States unless the Secretary of Labor has certified
that their presence will not adversely affect the United States labor market is not applicable to immigrants, lawfully admitted
for permanent residence, who are returning from a temporary visit abroad; it applies only to initial entry and not to reentry
and does not support continuing regulation of alien laborers by the Secretary of Labor or by the Attorney General. Sam
Andrews' Sons v. Mitchell, C.A.9 (Cal.) 1972, 457 F.2d 745.
Once an alien commuter has been lawfully admitted for permanent residence, he may make regular entrances into the
United States as an immigrant who is returning from a temporary visit abroad. Sam Andrews' Sons v. Mitchell, C.A.9 (Cal.)
1972, 457 F.2d 745.
This section requiring exclusion of certain enumerated classes of aliens seeking to enter the United States for purposes of
performing skilled or unskilled labor unless the Secretary of Labor certifies that admission would not adversely affect wages
and working conditions of United States residents available to undertake such labor does not bar admission of alien
commuters who have been admitted into the United States for permanent residence, but who choose to keep a home in
Canada or Mexico and to cross daily or seasonally into the United States to work. Gooch v. Clark, C.A.9 (Cal.) 1970, 433
F.2d 74, certiorari denied 91 S.Ct. 2170, 402 U.S. 995, 29 L.Ed.2d 160.
133. Criminal convictions, classes subject to exclusion
There had to be comparable ground of exclusion for alien in deportation proceedings to be eligible for relief under statute
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making aliens convicted of aggravated felony who had not served five or more years in prison eligible for discretionary
waiver of deportation. Gjonaj v. I.N.S., C.A.6 1995, 47 F.3d 824.
Amendment to Immigration and Naturalization Act making discretionary relief unavailable to certain aliens has effect of
declaring that aliens convicted of aggravated felonies who have served term of imprisonment of five or more years are per se
undesirable as permanent residents. De Osorio v. U.S. I.N.S., C.A.4 1993, 10 F.3d 1034.
Resident alien who was convicted for possession of sawed-off shotgun, which was felony offense, was ineligible to apply
for deportation relief because conviction for possession of shotgun, which was ground for deportation, was not also waivable
ground for exclusion. Rodriguez v. I.N.S., C.A.5 1993, 9 F.3d 408.
Deportable alien was not excludable under provision of Immigration and Nationality Act which excluded aliens who had
been convicted of two or more offenses for which aggregate sentences to confinement actually imposed were five years or
more, even though the alien had been convicted on two offenses, one of which resulted in written sentencing order purporting
to impose ten years incarceration; phrase "actually imposed," as applied to alien's case, meant term of confinement actually
authorized by the sentencing court under later sentencing order which revoked ten-year sentence. Da Conceicao Rodrigues v.
I.N.S., C.A.1 1993, 994 F.2d 32.
Alien who served just over two years on two consecutive three-year periods of confinement was ineligible for admission as
alien convicted of two or more offenses for which aggregate sentences to confinement actually imposed were five years or
more; actual time spent in confinement and suspension of second sentence were irrelevant. Fonseca-Leite v. I.N.S., C.A.5
1992, 961 F.2d 60.
Board of Immigration Appeals (BIA) did not abuse discretion by declining to waive excludability of lawful permanent
resident who had been convicted on three state drug charges and federal cocaine distribution charge, even though resident
had outstanding equities, including extended residence and family ties in United States, children who were United States
citizens, successful completion of special parole term, and worthy employment history. Hazzard v. I.N.S., C.A.1 1991, 951
F.2d 435.
Italian in absentia convictions of alien could be considered by Board of Immigration Appeals (BIA) in deciding not to
waive exclusion and deportation for entering country on basis of fraud or willful misrepresentation of material fact, even
though alien claimed that witnesses against him lacked credibility and that evidence was insufficient; alien was represented
by counsel during trial and on appeals, and Italian trial counsel was able to present witnesses, cross-examine government's
witnesses, and make arguments before court. Esposito v. I.N.S., C.A.7 1991, 936 F.2d 911, rehearing denied.
Exception allowing Immigration and Naturalization Service to overlook prior offenses applies only as to findings of
excludability in contrast to denial of voluntary departure, is discretionary only, and applies where there is only one such
conviction. Kabongo v. I.N.S., C.A.6 1988, 837 F.2d 753, certiorari denied 109 S.Ct. 533, 488 U.S. 982, 102 L.Ed.2d 564.
Discretionary function exemption to Federal Tort Claims Act, sections 1346(b) and 2671 et seq. of Title 28 extended to
specific operational decision to allow Cuban refugee known to be a felon convicted of a violent crime to enter United States
as well as to broad policy decisions concerning admission or release of Cuban refugees in general. Flammia v. U.S., C.A.5
(Tex.) 1984, 739 F.2d 202.
Lawful permanent resident was not eligible for waiver of inadmissibility, where he had been convicted of attempted
criminal sale of a controlled substance in the third degree. Alvarez-Garcia v. U.S. I.N.S., S.D.N.Y.2002, 2002 WL 31798837.
Grant of parole does not affect the alien's status as excludable. Fernandez Luiz v. Luttrell, W.D.Tenn.1999, 46 F.Supp.2d
754.
Attorney General had authority to exclude alien previously convicted for terrorist activities as a security risk, even though
regional commissioner and commissioner of Immigration and Naturalization Service had determined that alien was not such
a risk. Avila v. Rivkind, S.D.Fla.1989, 724 F.Supp. 945.
Evidence of alien's conviction for the shooting death of his wife was sufficiently established, even though no court record
was introduced into evidence, where immigration judge reviewed numerous communications between officials for United
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States and Yugoslavian governments and examined the provisions of the penal code under which alien was convicted and
concluded that offenses under that section were crimes of moral turpitude; thus, decision of Board of Immigration Appeals
(BIA) finding alien deportable and ineligible for a waiver of inadmissibility based on his crime of moral turpitude would be
upheld. Gjidoda v. Ashcroft, C.A.6 2002, 48 Fed.Appx. 982, 2002 WL 31388782, Unreported.
134. Deportation, classes subject to exclusion--Generally
Even if alien was arriving alien entitled to medical examination rather than deportable alien within excludable class who
was permitted entry through error, he could not complain after issuance of deportation order that he did not receive medical
examination to which he was entitled as arriving alien where he was twice offered examination and refused to submit
himself. Boutilier v. Immigration and Naturalization Service, U.S.N.Y.1967, 87 S.Ct. 1563, 387 U.S. 118, 18 L.Ed.2d 661.
Use of term "admissions" in amendment to Immigration and Naturalization Act denying discretionary relief to aliens who
have been convicted of aggravated felonies and who have served terms of imprisonment of at least five years does not mean
that amendment is only applicable to aliens seeking physical entry into United States and not aliens seeking relief from
deportation; although statute being amended on its face only dealt with admission of aliens with permanent residency who
had temporarily travelled abroad, courts and Immigration and Naturalization Service (INS) had consistently found that statute
was also available to aliens with permanent residency facing deportation. De Osorio v. U.S. I.N.S., C.A.4 1993, 10 F.3d
1034.
Although if prior to time defendant was found illegally in this country, defendant had applied to immigration service for
visa, and had met all other requirements, he would have been eligible to receive visa without special permission of Attorney
General since his deportation occurred more than five years before his visa application; where defendant had neither obtained
visa nor received permission from Attorney General, defendant was properly convicted of illegal reentry into United States.
U.S. v. Bernal-Gallegos, C.A.5 (Tex.) 1984, 726 F.2d 187.
There was no rule that deportability of person is to be determined solely by what is in person's best interests, whether that
person be an adult or a child. Johns v. Department of Justice of U. S., C.A.5 (Fla.) 1981, 653 F.2d 884.
Since deportation is a drastic measure that may inflict the equivalent of banishment or exile, and result in the loss of all that
makes life worth living, immigration officials must be held to the highest standards in the diligent performance of their
duties. Sun Il Yoo v. Immigration and Naturalization Service, C.A.9 1976, 534 F.2d 1325.
Fact that aliens had pending before the Department of Health, Education and Welfare applications for waiver of two-year
foreign residence requirement imposed on exchange visitors before they can immigrate to the United States did not preclude
commencement of deportation proceedings. Manantan v. Immigration and Naturalization Service, C.A.7 (Ill.) 1970, 425 F.2d
693.
Deportation order of alien, who had been excluded from admission and deported, and who sought admission within one
year from date of deportation without securing consent of Attorney General to reapply for admission, was supported by clear,
convincing and unequivocal evidence. Favela v. U. S. Immigration and Naturalization Service, C.A.9 1969, 420 F.2d 575,
Section 1253(h) of this title giving Attorney General discretionary power to suspend deportation of any alien within the
United States to any country in which, in his opinion, alien would be subject to physical persecution, did not apply to
plaintiffs, who were within the country only on parole, which by this section is not regarded as an admission of an alien and
when terminated leaves such alien's case to be dealt with in the same manner as any other application for admission to the
United States. Dong Wing Ott v. Shaughnessy, C.A.2 (N.Y.) 1957, 247 F.2d 769.
Former 213(c) of this title which Act October 29, 1945, 59 Stat. 551, amended, specifically made admission to United
States, rather than voluntary departure, the thing barred to those ineligible to citizenship; and even though allien had been
authorized to make voluntary departure in 1944, 1945 amendment would have to be applied to his re-entry, and he would be
subject to deportation for illegal entry if ineligible for citizenship. Brownell v. Rasmussen, C.A.D.C.1956, 235 F.2d 527, 98
U.S.App.D.C. 300, certiorari granted 77 S.Ct. 660, 353 U.S. 907, 1 L.Ed.2d 661, certiorari dismissed 78 S.Ct. 114, 355 U.S.
859, 2 L.Ed.2d 66.
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Corresponding section in Act of 1907 in terms applied only to excluding one who was attempting to get into this country,
but was to be construed to be effective by relation in deporting those who had entered. Lewis v. Frick, C.C.E.D.Mich.1911,
189 F. 146, reversed on other grounds 195 F. 693, 115 C.C.A. 493, affirmed 34 S.Ct. 488, 233 U.S. 291, 58 L.Ed. 967.
Citizen of foreign country seeking to enter United States without valid entry documents generally must be deported to
country from which he arrived, unless he is eligible for asylum or temporary withholding of deportation. Dong v. Slattery,
S.D.N.Y.1994, 870 F.Supp. 53, motion to amend denied 1995 WL 758569, affirmed 84 F.3d 82.
Distinction between "exclusion" and "deportation" of alien to be removed from country turns on whether alien has entered
country; deportation applies to alien who has entered and affords more due process protection than that afforded in
proceeding to exclude alien who has not entered country. Dhine v. District Director, S.D.N.Y.1993, 818 F.Supp. 671,
reversed on other grounds 3 F.3d 613.
Policy of the Service which denied to Western Hemisphere aliens married to permanent resident aliens and illegally within
country awaiting issuance of visas the discretionary relief of extended departure date except on showing of compelling
factors and which distinguished between aliens present in country and married as of Apr. 10, 1973, and those who arrive or
marry after that date did not constitute a gross abuse of discretion and did not deprive such aliens of equal protection. Noel v.
Green, S.D.N.Y.1974, 376 F.Supp. 1095, affirmed 508 F.2d 1023, certiorari denied 96 S.Ct. 37, 423 U.S. 824, 46 L.Ed.2d 40.
Executive officer charged with enforcing immigration laws has jurisdiction of deportation case even though initial
determination is required as to whether party is alien. Application of Marks, S.D.N.Y.1961, 198 F.Supp. 40.
Under this chapter, alien who was ineligible for citizenship at time he reentered country in 1953 and who was therefore
not entitled to re-enter notwithstanding his re-entry permit, was, after his re-entry, deportable, and savings clause set out as a
note under 1101 of this title, was not applicable, though, prior to passage of this chapter, alien had right to leave and
re-enter without regard to eligibility for citizenship. Paris v. Shaughnessy, S.D.N.Y.1956, 138 F.Supp. 36, affirmed 247 F.2d
135. ---- Criminal convictions, deportation, classes subject to exclusion
Alien's conviction for first-time simple possession of cocaine, which was expunged under California law, could, consistent
with equal protection, serve as a basis for removal under Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA) where the sentence he received would have made him ineligible for expungement under Federal First Offender Act
(FFOA). Fernandez-Bernal v. Attorney General of U.S., C.A.11 2001, 257 F.3d 1304.
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) did not deprive Court of Appeals of jurisdiction
over appeal from denial of asylum by applicant based on his alleged admission that he was convicted of prostitution in United
States and his alleged refusal to answer questions about his involvement in juvenile court system, inasmuch as order to show
cause (OSC) alleged only that applicant was subject to deportation because he entered United States without inspection, and
did not charge applicant with any crime of moral turpitude. Hernandez-Montiel v. I.N.S., C.A.9 2000, 225 F.3d 1084.
Alien was inadmissible under INA based on his guilty plea to charge of making false claim of United States citizenship and
his admission to using false birth certificate when trying to enter United States. Pichardo v. I.N.S., C.A.9 2000, 216 F.3d
1198.
Neither Anti-Drug Abuse Act of 1988 nor Immigration Act of 1990 extended discretionary relief for aliens ordered
deported on ground of weapons conviction; if Congress had intended to confer upon weapons offenders privilege of
discretionary waiver from deportation, it could have done so expressly, or it could have added weapons offense as waivable
ground of exclusion. Cato v. I.N.S., C.A.2 1996, 84 F.3d 597.
Board of Immigration Appeals (BIA) did not abuse its discretion in deciding that factors favoring relief for alien seeking
waiver of deportation did not outweigh seriousness of his multiple criminal convictions; sexual offenses perpetrated on
children were exceptionally serious crimes, and equities petitioner put forth in support of discretionary relief were
insufficient to outweigh crimes to which he pleaded guilty. Pablo v. I.N.S., C.A.9 1995, 72 F.3d 110.
Board of Immigration Appeals (BIA) did not abuse its discretion in denying alien discretionary relief from deportation,
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where, after balancing circumstances favorable to alien against those which were adverse, BIA found no evidence of any
unusual or outstanding equities to offset serious nature of six robberies, including three armed robberies, to which alien pled
guilty; BIA's findings were supported by substantial evidence, there was rational explanation for its decision, and it did not
consider any inappropriate factors. Dashto v. I.N.S., C.A.7 1995, 59 F.3d 697.
Board of Immigration Appeals (BIA) did not abuse its discretion in denying alien's application for discretionary waiver of
deportation; BIA held that alien's repeated criminal violations were serious adverse discretionary factor and that although
equities including lengthy residence, hardship to himself and his family, and employment ties to the United States, were
outstanding and unusual, they were insufficient to outweigh seriousness of his criminal activity. Zaluski v. I.N.S., C.A.2
1994, 37 F.3d 72.
Board of Immigration Appeals (BIA) did not abuse its discretion in denying alien's petition for waiver of deportation,
considering his serious and lengthy criminal record, including conviction for sexually assaulting two children under age of 14
and conviction for possession of marijuana, absence of record of child support or of community service, absence of
significant property or business ties to the United States and absence of evidence of rehabilitation. Hajiani-Niroumand v.
I.N.S., C.A.8 1994, 26 F.3d 832.
Immigration Act of 1990 which precludes alien who hasbeen convicted of aggravated felony and has served term of
imprisonment of at least five years from seeking discretionary waiver of deportability applies retroactively. Buitrago-Cuesta
v. I.N.S., C.A.2 1993, 7 F.3d 291.
Board of Immigration Appeals (BIA) did not abuse its discretion in denying waiver of deportability finding for alien who
solicited crime of murder after prior finding of deportability based on other crimes had been waived, even if alien's
willingness to donate kidney to his father was unusual equity, and despite alien's rehabilitative efforts. Molenda v. I.N.S.,
C.A.5 1993, 998 F.2d 291.
Showing of outstanding equities does not compel relief in a waiver of deportation case; in exercising its discretion, the
Board of Immigration Appeals (BIA) may determine that seriousness of offense and other negative factors outweigh even
unusual or outstanding equities. Akinyemi v. I.N.S., C.A.7 1992, 969 F.2d 285.
Alien, who held permanent immigrant visa and who had American citizen child and permanent resident spouse, was not
eligible for deportation relief under statute granting deportation relief to aliens with permanent resident or citizen spouse or
child, after alien was convicted of conspiracy in connection with the acceptance and receipt of immigration entry documents
by means of false statements; alien had originally obtained permanent residence by engaging in sham marriage, and thus, was
not "otherwise admissible," within meaning of the statute. Melhi v. U.S.I.N.S., C.A.4 1989, 884 F.2d 759.
In determining whether foreign crime constitutes misdemeanor for purposes of this section, it is not enough to rely solely
on label attached to particular crime by particular foreign nation; because deportation involves such serious consequences,
potential deportee is entitled at least to have his previous conviction viewed in light of all circumstances. Squires v.
Immigration and Naturalization Service, C.A.6 1982, 689 F.2d 1276, certiorari denied 103 S.Ct. 1874, 461 U.S. 905, 76
L.Ed.2d 806.
The provision of subsection (a)(9) of this section, that an alien who has committed only one crime while under 18 years old
may be permitted to enter country under certain conditions, is inapplicable to alien held for deportation because of his
conviction of crime when only 18 years old before his entry into country and convictions of two other crimes committed after
such entry and furnishes no reason for not deporting him, in absence of provision in this chapter for treatment of aliens
committing crimes when minors differently from other aliens as to deportation. U. S. ex rel. Circella v. Sahli, C.A.7 (Ill.)
1954, 216 F.2d 33, certiorari denied 75 S.Ct. 525, 348 U.S. 964, 99 L.Ed. 752.
Statute in effect at time of alien's conviction of aggravated felony, for which he could be removed, providing the
Immigration and Naturalization Service (INS) with discretion to waive removal for humanitarian reasons was available to
alien after it was subsequently amended and repealed, and thus alien's claim for waiver would have been timely but for
judge's erroneous determination that he was not eligible for waiver in light of subsequent amendments; alien sought waiver
before he had served five years of sentence. Greenidge v. I.N.S., S.D.N.Y.2001, 204 F.Supp.2d 594.
In order to bring Immigration and Naturalization Act (INA) into compliance with international law requirements, section
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establishing eligibility for discretionary relief from deportation for aliens who have established seven years of residence in
the United States, and who have family members in the United States who would suffer "extreme hardship" if the alien is
removed would be construed to confer eligility for relief upon those aliens who met stringent requirements of seven years
residence and "extreme hardship" to family and had been convicted of an "aggravated felony" as defined after they
committed their crime, but was not so categorized when they committed their crime; summary deportation of such aliens
would violate International Covenant on Civil and Political Rights' (ICCPR) guarantee against arbitrary interference with
one's family, and the provision that an alien be allowed to submit the reasons against his expulsion and customary
international law tenet that the best interests of the child be considered where possible. Beharry v. Reno, E.D.N.Y.2002, 183
F.Supp.2d 584.
Resident alien was ineligible, under statutes in effect prior to enactment of Antiterrorism and Effective Death Penalty Act
(AEDPA), for discretionary relief from final order of deportation, where alien had been convicted of alien smuggling and
drug trafficking offenses, both of which were aggravated felonies, and had served five years in prison for those convictions.
Calderon v. Reno, N.D.Ill.1998, 39 F.Supp.2d 943, reconsideration denied 56 F.Supp.2d 997.
Alien who committed firearm offense was ineligible for discretionary waiver of deportation; combination of adjustment of
status provision and discretionary relief could not be used to waive two independent grounds for deportation. Powell v.
Jennifer, E.D.Mich.1996, 937 F.Supp. 1245.
Permanent resident alien was entitled to discretionary waiver of deportation hearing, under the due process clause, even
though he was convicted of aggravated felony, where that aggravated felony was not charged by the Immigration and
Naturalization (INS) service in the order to show cause as a basis for alien's deportation. Kasperek v. Ashcroft,
S.D.N.Y.2002, 2002 WL 31869383, Unreported.
136. ---- Discretionary relief, deportation, classes subject to exclusion
Immigration judge's (IJ) decision to deny alien's petition for discretionary relief from deportation, which was essentially
adopted as its own by Board of Immigration Appeals (BIA), reflected reasoned consideration of evidence, which could not be
disturbed by reviewing court; IJ considered claims of hardship presented by alien and evidence of his rehabilitation, but
concluded that serious, recent, and repeated character of his criminal violations outweighed equities in favor of allowing him
to remain in United States. Reyes- Hernandez v. I.N.S., C.A.7 1996, 89 F.3d 490, rehearing denied.
Discretionary relief from deportation under 212(c) for individuals maintaining seven years of lawful unrelinquished
domicile in United States did not require 7 years of permanent residence; statute established two separate and independent
conditions, lawful admission as permanent resident and lawful unrelinquished domicile of seven consecutive years. White v.
I.N.S., C.A.5 1996, 75 F.3d 213.
Board of Immigration Appeals (BIA) clearly erred on request for discretionary relief from deportation by automatically
treating alien's conviction as "very serious drug offense" without considering particular nature of offense and its reflection on
his undesireability as permanent resident; if BIA had taken into account actual nature of alien's drug offense in delivering
$100 worth of hashish, it may have reached different result based on substantial equities in alien's favor, considering his
family ties, length of his residence, his employment record, and his community service. Elramly v. I.N.S., C.A.9 1995, 73
F.3d 220, certiorari granted 116 S.Ct. 1260, 516 U.S. 1170, 134 L.Ed.2d 209, vacated 117 S.Ct. 31, 518 U.S. 1051, 135
L.Ed.2d 1123, on remand 116 F.3d 435, on remand 131 F.3d 1284, amended on denial of rehearing.
Alien satisfied seven-year residency requirement to be eligible for discretionary relief from deportation based on seven
years of unrelinquished domicile within country, though he conceded his deportability less than seven years before his lawful
permanent residence commenced, where he requested discretionary relief, he pursued administrative appeal upon denial of
his request. Foroughi v. I.N.S., C.A.9 1995, 60 F.3d 570.
An alien's eligibility for discretionary relief from deportation ended when immigration judge's deportation order became
administratively final; once final, alien's permanent resident status was lost, and she no longer had lawful domicile in United
States. Gonzales v. I.N.S., C.A.9 1990, 921 F.2d 236.
That Immigration and Nationality Act section providing for discretionary relief from exclusion does not apply to
deportation under another Act section for conviction of possessing or carrying an automatic or semiautomatic weapon does
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not violate due process. Cabasug v. I.N.S., C.A.9 1988, 847 F.2d 1321.
Time served in prison after an initial erroneous Board of Immigration Appeals (BIA) decision retroactively applying
Antiterrorism and Effective Death Penalty Act (AEDPA) to deny aggravated felon eligibility to apply for discretionary relief
from deportation was reversed did not count toward the five year bar where the initial erroneous decision was reached before
alien had served the five years. Falconi v. I.N.S., E.D.N.Y.2002, 2002 WL 31961403.
137. ---- Drug offenses, deportation, classes subject to exclusion
Decision of Board of Immigration Appeals (BIA) that immigration officer knew or had reason to believe that alien was
illicit trafficker in controlled substances, and thus was excludable, was supported by substantial evidence, including evidence
that alien attempted to drive across United States-Mexico border in automobile carrying 86 pounds of marijuana in concealed
compartment, given to him by man whom he knew to be drug smuggler and whom he had met only four days earlier.
Alarcon-Serrano v. I.N.S., C.A.9 2000, 220 F.3d 1116.
In determining whether alien convicted of serious drug offense is entitled to waiver of deportation, immigration judge must
balance social and humane considerations presented on alien's behalf against adverse factors including alien's undesirability
as permanent resident; among factors to be weighed in alien's favor is existence of family ties within United States. Kahn v.
I.N.S., C.A.9 1994, 36 F.3d 1412.
Immigration judge was required to examine facts surrounding narcotics offense leading to imprisonment for less than five
years, evaluate those circumstances before determining weight to be afforded the drug conviction, and consider relative
seriousness of the conduct before denying petition for discretionary waiver of deportation. Yepes-Prado v. U.S. I.N.S., C.A.9
1993, 10 F.3d 1363, as amended, dissenting opinion 36 F.3d 83.
Board of Immigration Appeals (BIA) did not abuse its discretion in requiring alien who applied for discretionary waiver of
deportation order based on serious drug offense to show unusual or outstanding equities, or in finding that he failed to do so.
Henry v. I.N.S., C.A.7 1993, 8 F.3d 426.
Decision of Board of Immigration Appeals (BIA) that alien did not merit waiver of deportation order based on serious drug
offense was not abuse of discretion and its decision did not rest on impermissible basis, where BIA offered rational
explanation for its decision, i.e., that alien's residence in United States had not been long, there was no evidence of any close
relationship between alien and his two children who were citizens of the United States, alien's parents and two other siblings
still resided in Antigua, and alien had not exhibited any evidence of rehabilitation. Henry v. I.N.S., C.A.7 1993, 8 F.3d 426.
Denial of waiver from deportation was not abuse of discretion, though 30-year- old alien had been in country since she was
three years old and had two young children, given her three drug convictions, her extensive narcotics addiction, her own
neglect of her children, and fact that, since she was 15 years old, she had made bad choices as to her companions and
contributed little or nothing to society. Craddock v. I.N.S., C.A.6 1993, 997 F.2d 1176.
Alien's persistence that guilt relating to drug transaction was codefendants' alone supported determination of Board of
Immigration Appeals (BIA), in denying alien's application for discretionary waiver from deportation, that alien was not
rehabilitated, though alien claimed her criminal history was limited to single drug conviction, she was model prisoner, and
she planned to be productive member of society after her release from prison. Gonzalez v. I.N.S., C.A.6 1993, 996 F.2d 804.
Board of Immigration Appeals (BIA) could refuse to grant alien waiver of deportation; alien pled guilty to possession of
cocaine and admitted to selling drugs on weekly basis for at least five months prior to his arrest, BIA thoughtfully considered
alien's appeal from deportation, and alien did not show that BIA failed to consider his remorsefulness and participation in
drug rehabilitation program. Rodriguez-Rivera v. I.N.S., C.A.8 1993, 993 F.2d 169.
Nothing required incarcerated alien to enroll in drug rehabilitation program first to exclusion of all other programs in order
that he might demonstrate his rehabilitation for purposes of deportation waiver. Espinoza v. I.N.S., C.A.7 1993, 991 F.2d
1294.
Time alien spent in United States illegally could not be counted toward seven- year period necessary for alien convicted of
controlled substances offense to be eligible for waiver of deportation. Prichard-Ciriza v. I.N.S., C.A.5 1992, 978 F.2d 219.
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Board of Immigration Appeals did not abuse its discretion in finding that permanent resident alien had not carried her
burden of showing "outstanding equities" to warrant waiver of deportation or reopening of deportation proceeding, where
alien had committed serious controlled substance offense, even though alien had married United States citizen, alien and her
husband had child and had opened business, and probation for alien's crime was terminated early. Johnson v. I.N.S., C.A.9
1992, 971 F.2d 340.
Board of Immigration Appeals (BIA) did not err in failing to find that deported alien's employment history was favorable
factor with respect to his petition for discretionary waiver of deportation where precise dates of alien's employment prior to
his prison term were either unverified by employers or unknown, alien was engaged in lawful work for only five months, and
alien spent several years engaged in illicit selling of drugs. Martinez v. I.N.S., C.A.1 1992, 970 F.2d 973.
Board of Immigration Appeals did not abuse its discretion in denying a prospective deportee discretionary waiver of
deportation, in that Board adequately supported its decision with reasoned explanation based upon legitimate concerns,
notwithstanding deportee's community service, good character, rehabilitation, and his contention that he had an offer of
employment upon his release from prison; deportee was convicted in state court of promoting a dangerous drug and
possession of a drug, deportee had no family ties in the United States, deportee's wife was employed and accustomed to
living on her own, deportee had not served in the United States Armed Forces, and was not employed at time of Board's
decision. Charlesworth v. U.S. I.N.S., C.A.9 1992, 966 F.2d 1323.
Bureau of Immigration Appeals did not abuse its discretion in denying permanent resident's request for waiver of
deportability following conviction for delivery of cocaine; though resident had spent more than half his life in United States,
was married to United States citizen and was father of three children born in this country, he had not accepted responsibility
for his criminal conduct. Akrap v. I.N.S., C.A.7 1992, 966 F.2d 267.
Board of Immigration Appeals (BIA) did not abuse its discretion in denying resident alien's request for waiver of
deportation after alien had been convicted of narcotics offenses; alien's long residence in United States, family ties in United
States, record of steady employment and progress toward rehabilitation were offset by involvement of his family in drug
activity, illegal presence of his mother and sister in United States, and presence of family in Mexico. Nunez-Pena v. I.N.S.,
C.A.10 1992, 956 F.2d 223.
Board of Immigration Appeals (BIA) did not abuse its discretion in finding that equities in favor of alien seeking waiver of
deportation were not outstanding; alien had been convicted in state court for possession of cocaine and had been declared
habitual traffic offender, and fact that he had legally resided in United States for 18 years, that most of his family legally
resided there, and that he supported his minor daughter did not preclude deportation. Ayala- Chavez v. U.S. I.N.S., C.A.9
1991, 944 F.2d 638.
Statute allowing Attorney General to waive exclusion from United States based upon convictions for narcotics offenses
was also applicable in deportation proceeding. Montilla v. I.N.S., C.A.2 1991, 926 F.2d 162.
Where alien was deportable on ground that he had been convicted of criminal laws dealing with drug offenses, he was not
entitled in any case to waiver of deportability and any errors committed in procedures by which he was denied such waiver
were therefore harmless. Bowe v. Immigration and Naturalization Service, C.A.9 1979, 597 F.2d 1158.
Alien's case was constructively pending as of date he received Order to Show Cause (OSC) asserting that he was subject to
deportation, and since that date was prior to amendment to Immigration and Nationality Act making discretionary relief from
deportation unavailable for most aliens who had been convicted of drug offenses, discretionary relief was available to alien,
even though OSC was not filed with immigration judge until after amendment. Canela v. U.S. Dept. of Justice, E.D.Pa.1999,
64 F.Supp.2d 456.
Application of Antiterrorism and Effective Death Penalty Act (AEDPA) amendment prohibiting discretionary relief from
deportation to aliens convicted of drug offenses did not violate due process rights of alien, whose drug conviction pre-dated
the amendment, where deportation proceedings and his discretionary relief application post-dated the enactment of the
amendment; AEDPA operated only prospectively towards alien. Then v. I.N.S., D.N.J.1999, 58 F.Supp.2d 422, affirmed 208
F.3d 206.
138. ---- Family relationship, deportation, classes subject to exclusion
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If failure of an alien to present himself for inspection at time of entry is established as ground for deportation, nothing in
waiver provision, which by its terms grants relief against deportation of aliens, who have particular familial tie with United
States citizen, on ground that they were excludable at time of entry, has any bearing on case, and thus birth of children after
aliens' entry could not preclude deportation for failure of inspection. Reid v. Immigration and Naturalization Service,
U.S.1975, 95 S.Ct. 1164, 420 U.S. 619, 43 L.Ed.2d 501.
In waiver of deportation proceeding, Board of Immigration Appeals was free to consider wife's knowledge, prior to
marriage, that permanent resident alien was subject to deportation in determining equities surrounding application for waiver.
Ghassan v. I.N.S., C.A.5 1992, 972 F.2d 631, rehearing denied 977 F.2d 576, certiorari denied 113 S.Ct. 1412, 507 U.S. 971,
122 L.Ed.2d 783.
Resident alien's marriage to American citizen and impending birth of their child did not entitle alien to reopening of
deportation proceedings. Vlassis v. I.N.S., C.A.2 1992, 963 F.2d 547.
139. ---- Hardship relief, deportation, classes subject to exclusion
Even if inadequacies in his removal proceeding amounted to fundamental procedural errors, alien, who was convicted of an
aggravated felony, could not show that those errors prejudiced him because he could not make even a plausible showing that
he might have been granted discretionary relief; because alien's removal would not cause uncommon or extraordinary
familial difficulty, he would not be able to make the required showing of "extreme hardship" necessary for a waiver. U.S. v.
Fernandez-Antonia, C.A.2 (N.Y.) 2002, 278 F.3d 150.
District court did not commit plain error in finding that alien's allegation that his wife suffered from poor health and would
have difficulty working in Mexico did not constitute plausible case that Attorney General would exercise her discretion to
waive excludability based on extreme hardship, and he thus was not prejudiced when immigration judge (IJ) failed to tell him
at deportation hearing that he could apply for such waiver. U.S. v. Arce- Hernandez, C.A.9 (Cal.) 1998, 163 F.3d 559,
amended on denial of rehearing.
Board of Immigration Appeals did not adequately consider hardship that applicant's deportation would cause to her family
in denying her application for discretionary relief, where its entire discussion of hardships was limited to statement that she
had daughter and that it considered psychologist's report attesting to hardships her family would undergo if she were
deported; this treatment fell short of required consideration of specific circumstances of citizen children and conclusions on
effect of circumstances upon children. Delmundo v. I.N.S., C.A.9 1994, 43 F.3d 436.
Board of Immigration Appeals did not abuse its discretion in concluding that applicant from Iran failed to meet burden of
proving that his deportation to Great Britain would cause extreme hardship to his permanent resident wife and children to
support his request for the waiver of an eligibility requirement for adjustment of status, where he offered no evidence why his
family could not join him in Great Britain, no evidence why he believed he could not gain employment in Great Britain, no
evidence of his wife's inability to gain employment in Great Britain, and no evidence that his case was treated differently
because of his Iranian descent. Shooshtary v. I.N.S., C.A.9 1994, 39 F.3d 1049.
Board of Immigration Appeals (BIA) did not abuse its discretion in denying waiver of deportation on hardship grounds,
though alien was employed, he was husband and father, and he would suffer some hardship in returning to Nigeria, where his
wife did not depend on him for financial support, he was relatively young, in good health, and had family there, and
frequency of his criminal activities demonstrated that he had not been rehabilitated. Izedonmwen v. I.N.S., C.A.8 1994, 37
F.3d 416, rehearing denied.
Board of Immigration Appeals (BIA) did not abuse discretion in denying application for waiver of deportation of resident
alien who had been convicted of delivery of heroin, despite alien's family ties in United States and hardship likely to be
endured by his wife and child; alien had made recent journeys to native country, where two siblings resided, his employment
record was spotty, charitable contributions that allegedly evidenced good character came only after threats of deportation, and
character reference letters failed to acknowledge drug conviction. Hazime v. I.N.S., C.A.6 1994, 17 F.3d 136, rehearing and
suggestion for rehearing en banc denied, certiorari denied 115 S.Ct. 331, 513 U.S. 934, 130 L.Ed.2d 289.
In deciding claim for waiver of deportation, Board of Immigration Appeals (BIA) adequately considered alien's
postconviction behavior and hardship to him and his family, even though BIA found degree of hardship to be less extreme
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than had immigration judge (IJ); BIA found employment history, support of family, and religious practices to be outstanding
equities in alien's favor. Guillen-Garcia v. I.N.S., C.A.7 1993, 999 F.2d 199.
Alien who was spouse and parent of United States citizens failed to show "extreme hardship" as basis for waiver of
grounds of excludability despite claims of emotional hardship to spouse and children and financial strain deportation would
cause, in case in which alien was never authorized to work while in the United States and his wife had supported the family
in the past. Hassan v. I.N.S., C.A.9 1991, 927 F.2d 465.
Board of Immigration Appeals' failure to address the evidence presented or to articulate reasons for its conclusion that alien
did not present sufficient evidence to establish a prima facie case of hardship to his United States citizen wife, qualifying him
for a waiver of excludability was an abuse of discretion requiring reversal and remand. Mattis v. U.S. I.N.S., C.A.9 1985, 774
F.2d 965.
Resident alien who was found to be deportable on grounds that he had been convicted of a crime involving moral turpitude
and had been sentenced to a term of confinement of one year or more sufficiently apprised Board of Immigration Appeals of
his claims for hardship relief where he argued to Board that his deportation would result in de facto deportation of his wife
and daughter, American citizens, and thus on remand the Board had to review and evaluate alien's hardship claims. Okoroha
v. I.N.S., C.A.8 1983, 715 F.2d 380.
Twenty-six-year-old married son did not qualify as a "child" nor could his father be deemed a "parent" under this section
which permits discretionary relief from deportation upon a demonstration that petitioner's expulsion will result in extreme
hardship to certain immediate family relations, spouse, parent or child who are citizens or resident aliens, and any hardship
visited upon son by virtue of his father's expulsion from the United States was not cognizable for this purpose. Chiaramonte
In proceeding when alien sought review of decision of the Bureau of Immigration Appeals denying him a waiver of
inadmissibility and adjustment of status under this section and section 1255 of this title, testimony of petitioner's son, without
more, to effect that he would be sad when his father departed was insufficient to constitute a showing of extreme hardship so
as to permit relief from deportation. Chiaramonte v. Immigration and Naturalization Service, C.A.2 1980, 626 F.2d 1093.
140. ---- Labor certification, deportation, classes subject to exclusion
Alien could not lawfully possess intent to be domiciled in United States while he was here on student visa, and thus alien
was ineligible for discretionary relief from order of deportation because he could not use his student visa time to satisfy
seven-year domicile requirement of statute. Brown v. U.S. I.N.S., C.A.5 1988, 856 F.2d 728.
As to alien who came to United States simply as visitor to her aunts and cousins and reentered as wife of United States
citizen and who never worked at all until after her divorce which was more than two years after her first entry into the United
States and apparently only then because it became necessary to support herself, Board erred in basing its deportation order in
part upon alleged but unsupported charge that alien had entered the United States to perform skilled or unskilled labor.
Wright v. Immigration and Naturalization Service, C.A.6 1982, 673 F.2d 153.
Provision of section 1251 of this title which provides that deportation provisions applicable to aliens on ground that they
were excludable at time of entry as aliens who sought to procure visas or other documentation by fraud or misrepresentation
would not apply to an alien, otherwise admissible at time of entry who was spouse, parent, or child of a United States citizen,
did not preclude deportation of alien by forgiving a violation of labor certification requirements of this section, and alien's
failure to get a labor certificate was not a species of fraud which would have rendered the exclusion provision applicable.
Skelly v. Immigration and Naturalization Service, C.A.10 1980, 630 F.2d 1375.
141. ---- Lawful residence, deportation, classes subject to exclusion
Alien failed to show he maintained lawful domicile in United States for seven years preceding his deportation as required
to be eligible to apply for waiver of deportability; earliest date alien's lawful temporary residence status could have become
effective was date designated as beginning date for amnesty applications, and alien's deportation became final less than seven
years later. Hussein v. I.N.S., C.A.5 1995, 61 F.3d 377.
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To be eligible to apply for discretionary waiver of inadmissibility or deportation, alien must have completed seven
consecutive years of lawful unrelinquished domicile prior to application and alien must be lawfully admitted for permanent
residence; these two requirements are independent of each other. Nwolise v. U.S. I.N.S., C.A.4 1993, 4 F.3d 306, certiorari
In motion to reopen deportation proceedings, Board of Immigration Appeals uses prima facie test that requires showing
that statutory requirements are met and that relief would be warranted if proceedings were reopened; merely showing seven
consecutive years of residency does not provide indiscriminate waiver of deportation. Johnson v. I.N.S., C.A.7 1992, 962
F.2d 574.
Board of Immigration Appeals did not abuse its discretion in determining that alien was not eligible for waiver of
deportation under statute permitting permanent resident aliens domiciled in the United States for seven consecutive years to
continue residing in the United States despite deportability; Board found that alien's 27-year lawful residence and the fact that
his family and friends lived there did not outweigh his criminal history, since his crimes were committed over a six-year
period and involved the use of force and weapons, he had been incarcerated for eight of the last ten years, and his family
members did not depend on him for financial support. Ashby v. I.N.S., C.A.5 1992, 961 F.2d 555.
Board of Immigration Appeals (BIA) abused its discretion in failing to grant petitioner stay of deportation pending
disposition of motion to reopen deportation proceedings; petitioner had achieved seven continuous years as a lawful
permanent resident while his appeal to BIA was pending which may have entitled him to waiver of deportability but BIA
summarily denied request by Immigration and Naturalization Service (INS) that BIA remand case for hearing concerning
petitioner's eligibility for relief from deportation without giving ample consideration to request of INS. Anderson v. McElroy,
C.A.2 (N.Y.) 1992, 953 F.2d 803.
Permanent resident's claim for discretionary relief in form of waiver of inadmissibility was barred in deportation
proceedings where alien failed to show that he had maintained lawful unrelinquished domicile in United States for seven
years prior to issuance of order to show cause. Ballbe v. I.N.S., C.A.11 1989, 886 F.2d 306, certiorari denied 110 S.Ct. 2166,
495 U.S. 929, 109 L.Ed.2d 496.
Alien, who had concealed his prior conviction on drug charge in obtaining permanent resident status, had not been
"lawfully" accorded that status, and thus was not entitled to seek discretionary waiver of deportation. Monet v. I.N.S., C.A.9
1986, 791 F.2d 752.
Alien became eligible for discretionary relief from deportation when he attained seven years of lawful domicile even
though the Board of Immigration Appeals had affirmed immigration judge's finding of deportability prior to that time since
alien's continued presence in the United States pending challenge of deportability decision on petition to Court of Appeals for
review was a matter of law, not grace. Wall v. I.N.S., C.A.9 1984, 722 F.2d 1442.
Where alien's petition to reopen and reconsider order of deportation was denied on ground that alien had forfeited any
possible eligibility for discretionary relief by absenting himself from United States for period exceeding that which might be
reasonably characterized as temporary, document proving that alien was lawfully admitted for permanent residence when he
originally entered United States would not, if hearing were reopened, have qualified alien for discretionary relief. Gamero v.
Immigration and Naturalization Service, Los Angeles Dist., C.A.9 (Cal.) 1966, 367 F.2d 123.
142. ---- Loss of resident status, deportation, classes subject to exclusion
Alien loses his lawful permanent resident status, for purposes of establishing his eligibility for discretionary relief based on
seven years of unrelinquished domicile within country, when he places himself in legal posture where Immigration and
Naturalization Service (INS) is no longer precluded by law from deporting him. Foroughi v. I.N.S., C.A.9 1995, 60 F.3d 570.
143. ---- Rehabilitation, deportation, classes subject to exclusion
Alien failed to show that Board of Immigration Appeals (BIA) departed from its policy of case-by-case evaluations by
automatically denying waiver of excludability when it was not convinced that alien had been rehabilitated; BIA clearly
considered individual facts of alien's case, listed and discussed positive and negative factors at length, and explained reasons
for its lack of confidence in alien's rehabilitation and said that, combined with gravity of offense for which he was convicted
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in Canada, unfavorable factors outweighed favorable ones. Liu v. Waters, C.A.9 (Cal.) 1995, 55 F.3d 421.
Immigration judge's determination that change in behavior by alien with criminal record was too recent to determine that
he was rehabilitated was not arbitrary or capricious, particularly as most of alien's convictions and misconduct occurred after
deportation proceedings were initiated, at time when it was important for alien to show he had reformed his character.
Maashio v. I.N.S., C.A.8 1995, 45 F.3d 1235, rehearing denied.
Board of Immigration Appeals (BIA) may give great weight to acknowledgment of guilt in assessing rehabilitation of alien
seeking discretionary waiver of deportation; however, BIA may not consider this factor as exclusive. Guillen-Garcia v.
I.N.S., C.A.7 1993, 999 F.2d 199.
Inadequate review of evidence and balancing of the equities involved in alien's application for relief from deportation
constituted an abuse of discretion by Board of Immigration Appeals (BIA); operating under mistaken premise that alien, an
aggravated felon, was statutorily ineligible for relief, Board summarily dismissed equities of case and did not provide reasons
for its conclusion; Board's decision, issued more than five years after hearing before immigration judge (IJ) was particularly
deficient in not addressing issue of rehabilitation, concerning which alien had presented new information. Cortes-Castillo v.
I.N.S., C.A.7 1993, 997 F.2d 1199.
It is obligation of Board of Immigration Appeals (BIA), when ruling on request for waiver from deportation, to weigh
equities against adverse factors shown by record; when deportation proceedings are triggered by felony conviction, it is also
incumbent upon BIA to consider matter of alien's rehabilitation. Craddock v. I.N.S., C.A.6 1993, 997 F.2d 1176.
Neither the passage nor nonpassage of time should be the sole determinative factor in considering whether alien, who seeks
a discretionary waiver of excludability, has been reformed since his conviction. Vissian v. Immigration and Naturalization
Service, C.A.10 1977, 548 F.2d 325.
144. ---- Reopening deportation proceedings, classes subject to exclusion
Any failure on part of Immigration and Naturalization Service (INS) to establish requisite good cause to justify making
regulation governing timeliness of petitions to reopen deportation proceedings to allow aliens to seek relief under United
Nations Convention Against Torture effective prior to completion of notice and comment period did not adversely affect
alien whose petition to reopen was dismissed as untimely, where alien's petition would still have been late even had effective
period not been accelerated by 30 days. Foroglou v. Reno, C.A.1 (Me.) 2001, 241 F.3d 111.
Antiterrorism and Effective Death Penalty Act (AEDPA) section eliminating availability of discretionary relief from
deportation precluded alien from filing motion to reopen Board of Immigration Appeals (BIA) decision denying discretionary
relief, after AEDPA's effective date. Wright v. Ouellette, C.A.1 (Mass.) 1999, 171 F.3d 8.
Alien was entitled to have his new evidence of dramatically changed family responsibilities considered on his motion to
reopen his deportation proceeding to reconsider his application for discretionary relief from deportation after Board of
Immigration Appeals (BIA) had dismissed his appeal of earlier application for discretionary relief; having established
requisite seven years of lawful unrelinquished domicile, alien remained eligible to pursue application for discretionary relief.
Acosta-Montero v. I.N.S., C.A.11 1995, 62 F.3d 1347.
Failure by Board of Immigration Appeals (BIA) to give adequate consideration to merits of alien's request for waiver of
deportation following conviction of aggravated felony before denying motion to reopen an application for discretionary stay
was abuse of discretion in denying stay. Michael v. I.N.S., C.A.2 (N.Y.) 1995, 48 F.3d 657.
Interpretation by Board of Immigration Appeals (BIA) of Immigration and Nationality Act (INA) that aliens' status as
lawful permanent resident ended with entry of deportation orders, and that aliens were thus ineligible for discretionary waiver
of deportation orders at that time and denying motions to reopen applications for discretionary waiver based upon statutory
ineligibility was unreasonable; aliens remained statutorily eligible to pursue discretionary waiver after entry of deportation
orders, where both were seeking only to reopen timely applications after establishing seven years of lawful unrelinquished
domicile upon initial application. Henry v. I.N.S., C.A.7 1993, 8 F.3d 426.
Board of Immigration Appeals failed to adequately justify its rule barring motions to reopen deportation proceedings once
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the Board has denied a seven- year resident alien's initial "discretionary relief" application, and thus rule would be set aside
as arbitrary. Goncalves v. I.N.S., C.A.1 1993, 6 F.3d 830.
Alien's filing of motion to reopen his deportation proceeding did not render Board of Immigration Appeals' decision
nonfinal so as to delay termination of his lawful permanent resident status and, thereby, preserve his eligibility for
discretionary relief. Nwolise v. U.S. I.N.S., C.A.4 1993, 4 F.3d 306, certiorari denied 114 S.Ct. 888, 510 U.S. 1075, 127
L.Ed.2d 82.
As long as Board of Immigration Appeals may consider or reopen case, status of lawful resident alien has not been "finally
determined" for purposes of discretionary relief from deportation; overruling Gonzales, 921 F.2d 236. Butros v. U.S. I.N.S.,
C.A.9 1993, 990 F.2d 1142.
Alien was no longer eligible for waiver of deportation, and thus could not move to reopen to present new evidence in
support of petition, once his deportability had been determined by Board of Immigration Appeals; on determination of
deportability, alien was no longer permanent legal resident and thus was not eligible for waiver. Ghassan v. I.N.S., C.A.5
1992, 972 F.2d 631, rehearing denied 977 F.2d 576, certiorari denied 113 S.Ct. 1412, 507 U.S. 971, 122 L.Ed.2d 783.
Board of Immigration Appeals did not abuse its discretion in refusing to reopen alien's deportation proceeding in light of
showing that Board considered new factors presented by alien in combination with those presented at original hearing and
found that alien failed to show prima facie eligibility for relief from deportation; new information was that alien's wife had
become United States citizen and younger son, who was living in India, had begun visa processing. Johnson v. I.N.S., C.A.7
1992, 962 F.2d 574.
Although eligibility for waiver of deportation is not permanent in that it may in some circumstances be waived by alien
who does not request discretionary relief until after issuance of final order of deportation, final order of deportation does not
bar alien from requesting reopening of a properly filed request for waiver of deportation, as such motion requests no new
relief, but simply asks the Bureau of Immigration Appeals (BIA) to reevaluate prior action. Vargas v. I.N.S., C.A.2 1991, 938
F.2d 358.
Alien was not entitled to reopening of deportation order based on evidence which was available to him at time of initial
deportation hearing. Gando- Coello v. I.N.S., C.A.1 1989, 888 F.2d 197.
Board of Immigration Appeals' denial of alien's motion to reopen deportation proceeding, which gave full consideration to
alien's military service, constituted finding on merits of his requests for waiver of excludability and for termination of
deportation proceedings, and thus, failure of Immigration and Naturalization Service to inform judge at deportation
proceeding that alien's military service should be weighted in his favor, and to inform alien of his right to apply for
naturalization and terminate deportation proceedings, did not prejudice alien's rights. Mantell v. U.S. Dept. of Justice, I.N.S.,
C.A.5 1986, 798 F.2d 124.
Alien against whom final administrative deportation order had been entered was nonetheless entitled to claim his lawful
permanent residence status for purpose of filing his motion to reopen deportation proceedings and apply for discretionary
relief from deportation. Rivera v. I.N.S., C.A.5 1986, 791 F.2d 1202, on reconsideration 810 F.2d 540, rehearing denied 816
F.2d 677.
Decision of Board of Immigration Appeals not to reopen deportation proceedings to adjust deportable alien's status was not
abuse of discretion in light of findings that alien had not departed voluntarily pursuant to her request in her first deportation
proceeding and that she married only one day before hearing at which outstanding order of deportation was entered.
Achacoso-Sanchez v. I.N.S., C.A.7 1985, 779 F.2d 1260.
Where alien did not have seven years domicile at time Board of Immigration Appeals entered final deportation hearing,
Board of Immigration Appeals did not err in failing to grant alien's motion to reopen exclusion proceedings. Dabone v. Karn,
C.A.3 (Pa.) 1985, 763 F.2d 593.
Motion to reopen deportation proceedings is not available upon bare showing of statutory eligibility; rather, the alien must
first make a prima facie showing that there is a reasonable likelihood that the relief sought would be granted at the reopened
hearing, and such prima facie showing includes not only that there is a reasonable likelihood that the statutory requirements
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for the relief sought are satisfied, but also a reasonable likelihood that the grant of relief may be warranted as a matter of
discretion. Marcello v. I.N.S., C.A.5 (La.) 1983, 694 F.2d 1033, certiorari denied 103 S.Ct. 3112, 462 U.S. 1132, 77 L.Ed.2d
1367.
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) barred jurisdiction over petition to review decision
denying reopening of deportation proceedings, where alien had been convicted of drug-related offenses, and had not entered
into plea agreement, precluding waiver of deportation. Asad v. Ashcroft, C.A.6 2002, 47 Fed.Appx. 303, 2002 WL
31085178, Unreported.
145. ---- Statutory bar of waiver, deportation, classes subject to exclusion
Statutory bar to waiver of inadmissibility applies to deportation proceedings. Asencio v. I.N.S., C.A.11 1994, 37 F.3d 614.
Amendment to provision of Immigration and Nationality Act which barred discretionary waiver of deportation in case of
alien who has been convicted of one or more aggravated felonies and has served term of imprisonment of at least five years
applied to alien who was convicted of aggravated felony five years before amendment was adopted; in barring discretionary
waiver for aggravated felon who has served five years, and in making that bar effective right after enactment, Congress
contemplated that some aliens would be subject to bar immediately. Campos v. I.N.S., C.A.6 1994, 16 F.3d 118.
Negative implication of Antiterrorism and Effective Death Penalty Act's (AEDPA's) new alien terrorist removal
procedures, which expressly applied to prior conduct and events, as well as from other sections, was that AEDPA's provision
that removed waiver of deportation for aliens convicted of certain crimes did not apply to pending cases; if Congress
intended that provision to apply to pending applications, Congress would have expressly provided. Yesil v. Reno,
S.D.N.Y.1997, 973 F.Supp. 372.
146. ---- Validity of waiver, deportation, classes subject to exclusion
Construction of Immigration and Nationality Act section, affording discretionary relief from exclusion, as applying to
deportability only when ground for deportability is expressly made waivable in related context of exclusion does not violate
equal protection component of Fifth Amendment due process clause, even though such construction could bar waiver for
firearm violations while permitting waiver for more serious offenses. Rodriguez- Padron v. I.N.S., C.A.11 1994, 13 F.3d
1455.
147. ---- Waiver, deportation, classes subject to exclusion
Immigration Judge's failure to advise alien of his right to appeal bail amount, before he waived appeal of denial of
application for waiver of deportation, did not violate due process; alien understood his right of appeal and freely chose to
waive it rather than remain in custody, knowing that he would forever lose his permanent residence status. U.S. v.
Corrales-Beltran, C.A.9 (Cal.) 1999, 192 F.3d 1311, certiorari denied 121 S.Ct. 82, 531 U.S. 830, 148 L.Ed.2d 44.
Section of Antiterrorism and Effective Death Penalty Act (AEDPA), barring waivers of deportation for aliens convicted of
certain drug-related offenses, applied to deportation proceedings that were pending when such section was enacted. LaGuerre
v. Reno, C.A.7 (Ill.) 1998, 164 F.3d 1035, rehearing and suggestion for rehearing en banc denied, certiorari denied 120 S.Ct.
1157, 528 U.S. 1153, 145 L.Ed.2d 1069.
Immigration judge erred in failing to inform alien in deportation hearing of his apparent eligibility for waiver of
excludability, where record disclosed that alien entered United States at 16 years of age under lawful permanent resident
status, raising inference that he had relatives in United States and possibility of relief. Bui v. I.N.S., C.A.9 1996, 76 F.3d 268.
Waivers of inadmissibility are not available to aliens in deportation proceedings when ground for deportation is not also
stated ground for exclusion. Henry v. I.N.S., C.A.1 1996, 74 F.3d 1.
Immigration judge examines merits of each individual case to determine alien with criminal record is entitled to waiver of
deportability; immigration judge balances favorable factors alien presents against adverse factors evidencing alien's
undesirability as permanent resident. Maashio v. I.N.S., C.A.8 1995, 45 F.3d 1235, rehearing denied.
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Immigration judge considered positive equities in weighing whether to grant discretionary waiver of deportation, where he
solicited information on alien's family ties in United States, length of residence, evidence of hardship to alien and his family
if deported, service in United States Armed Forces, employment history, property or business ties, rehabilitation, and other
evidence attesting to his good character, he found that most of factors did exist, and he treated them as positive equities
weighing in favor of relief from deportation. Gandarillas-Zambrana v. Board of Immigration Appeals, C.A.4 1995, 44 F.3d
Movant's fraudulent acts in applying for permanent resident status and obtaining driver's license, social security card, and
voter's identification card were extension of her initial fraudulent entry that Board of Immigration Appeals improperly
considered in denying her discretionary waiver of excludability. Delmundo v. I.N.S., C.A.9 1994, 43 F.3d 436.
Alien was not entitled to have Board of Immigration Appeals consider years of undocumented residence in determining
whether he was entitled to waiver of deportation. Varela-Blanco v. I.N.S., C.A.8 1994, 18 F.3d 584.
Decision of Board of Immigration Appeals (BIA) denying discretionary waiver of deportation must demonstrate that Board
sufficiently balanced both favorable and unfavorable Marin factors, evidencing alien's undesirability as permanent resident as
well as social and humane considerations presented on alien's behalf; BIA is not required, however, to mention each Marin
factor relied upon by applicant for relief, and it is enough that BIA discuss evidence in such way as to demonstrate that it
considered all probative evidence and did in fact balance the factors. Hazime v. I.N.S., C.A.6 1994, 17 F.3d 136, rehearing
and suggestion for rehearing en banc denied, certiorari denied 115 S.Ct. 331, 513 U.S. 934, 130 L.Ed.2d 289.
In determining whether alien has served term of imprisonment of at least five years under Immigration Act of 1990
provision which precludes alien who has been convicted of aggravated felony and served term of imprisonment of at least
five years from seeking discretionary waiver of deportability, time served in prison includes time alien spent in prison during
course of hearing for purposes of rendering him ineligible for discretionary waiver of deportability. Buitrago-Cuesta v. I.N.S.,
C.A.2 1993, 7 F.3d 291.
Permanent resident alien was eligible for discretionary waiver of deportation, even though one ground for deportation,
unlawful entry without inspection, was not analogous to any statutory ground for exclusion; although discretionary relief
statute did not by its terms apply to deportation proceedings and prior case law had limited availability of such relief in
deportation proceedings to those grounds which were analogous to grounds for exclusion, there was no basis in statutory text
or legislative purpose which precluded modest extension of earlier rule. Bedoya-Valencia v. I.N.S., C.A.2 1993, 6 F.3d 891.
Board of Immigration Appeals (BIA) adequately considered all necessary factors in refusing to grant discretionary waiver
of deportation, even though it did not specifically discuss rehabilitation, employment, or service to community in its
concluding paragraph; Board discussed deportee's close family ties and potential family hardship, the strongest factors
against deportation, and adequately considered rehabilitation when it discussed deportee's steady employment and his work
as drug counselor. Vergara-Molina v. I.N.S., C.A.7 1992, 956 F.2d 682.
Permanent resident alien was not entitled to waiver of deportability on ground of reentry without inspection. Sotelo
Mondragon v. Ilchert, C.A.9 (Cal.) 1980, 653 F.2d 1254.
Alien, a 41-year-old who had been denied a visa based upon misrepresentations contained in his application and whose
brother and mother were lawfully admitted into the country, was properly denied a waiver of excludability under this section
providing that any alien who is spouse, parent, or child of citizen or permanent resident and who was excluded because of
misrepresentations in visa application may be granted visa within Attorney General's discretion. Wong v. Bell, C.A.9 (Cal.)
1981, 642 F.2d 359.
Provision of section 1251 of this title that, in some circumstances, fraud or misrepresentation by an entering alien who has
close family ties with a citizen or lawfully admitted permanent resident may be waived as a ground for deportation does not
apply to the deportation of a temporary visitor on the ground that the visitor has overstayed the period authorized.
Cabuco-Flores v. Immigration and Naturalization Service, C.A.9 1973, 477 F.2d 108, certiorari denied 94 S.Ct. 98, 414 U.S.
841, 38 L.Ed.2d 78.
Charge of remaining after the expiration of the period permitted by each petitioner-alien's visitor's visa was not waived by
section 1251 of this title, providing that in some circumstances fraud or misrepresentation by an entering alien who has close
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family ties with a citizen or lawfully admitted permanent resident may be waived as a ground for deportation, since the
charge did not depend directly or indirectly upon the asserted misrepresentation, namely, a concealed intention to remain in
the United States permanently, in obtaining the visa. Cabuco-Flores v. Immigration and Naturalization Service, C.A.9 1973,
477 F.2d 108, certiorari denied 94 S.Ct. 98, 414 U.S. 841, 38 L.Ed.2d 78.
In deportation proceedings, aliens, who had been admitted as nonimmigrant exchange visitors to pursue medical studies,
and who had completed such studies, made out no case of exceptional hardship sufficient to overcome strong congressional
policy underlying requirements that aliens so admitted return to home countries for two years before being eligible for
immigrant visas or permanent residency in United States, and were not entitled to waiver of such requirement. Wei-Mung
Chang v. U. S. Immigration and Naturalization Service, C.A.9 (Cal.) 1969, 418 F.2d 1334.
Alien who, after entering as non-immigrant visitor, overstayed leave and subsequently made misrepresentations as to her
citizenship and that of her brother, was not eligible for discretionary waiver of deportation on grounds of hardship to citizen
spouse whom she married while illegally remaining in United States. Rutledge v. Esperdy, C.A.2 (N.Y.) 1961, 297 F.2d 532,
Lawful permanent resident was not eligible for waiver of deportation under former section of the Immigration and
Nationality Act, where he was convicted of attempted sale of a controlled substance in the third degree after the Illegal
Immigration Reform and Responsibility Act (IIRIRA) barred discretionary relief from deportation for criminal aliens.
Alvarez-Garcia v. U.S. I.N.S., S.D.N.Y.2002, 2002 WL 31798837.
Legislation passed subsequent to alien's 1989 aggravated felony conviction precluded eligibility for discretionary waiver of
deportation where the removal proceedings against him were not commenced before 1996 and where removal proceeding
was commenced within seven years after the effective date of the Immigration Act of 1990. Martinez v. Ashcroft,
S.D.N.Y.2002, 236 F.Supp.2d 360.
Alien found deportable due to conviction for possession of a weapon was not eligible for waiver of deportation under
former provision of the Immigration and Nationality Act (INA), in effect at the time of his conviction, that allowed
immigrants found deportable an opportunity for a discretionary hearing where they could urge waiver of deportation on
compassionate grounds. Worrell v. Ashcroft, W.D.N.Y.2002, 207 F.Supp.2d 61.
Alien who pleaded guilty to crimes prior to the passage of Antiterrorism and Effective Death Penalty Act (ADEPA) would
be eligible to apply for discretionary waiver as it existed under pre-ADEPA law if he actually and reasonably relied upon
existence of the waiver provision in making the decision to enter a guilty plea. Sango-Dema v. District Director, I.N.S.,
D.Mass.2000, 122 F.Supp.2d 213.
Alien who was convicted of conspiracy to import heroin into the United States and to distribute it and who was not a
permanent resident was not eligible for waiver of deportation. Hypolite v. Blackman, M.D.Pa.1999, 57 F.Supp.2d 128.
Section of Immigration and Nationality Act (INA) providing that no deportation waiver shall be granted in case of alien
who, after being lawfully admitted for permanent residence, has been convicted of aggravated felony did not violate alien's
equal protection rights, despite claim that only legal permanent resident aggravated felons were precluded from obtaining
waiver; illegal aliens would lack status to seek waiver in first place, and there was no showing that illegal aliens who had
committed aggravated felonies would be entitled to seek such waiver. U.S. ex rel. Morgan v. McElroy, S.D.N.Y.1997, 981
F.Supp. 873.
Decision of Immigration and Naturalization Service (INS) that alien was not entitled to waiver of excludability because he
did not file form to request one was supported by substantial evidence, though he had filed request two years earlier, where
that request was denied and unsuccessfully appealed, and he did not file another request. Sharma v. Reno, N.D.Cal.1995, 902
F.Supp. 1130.
Waiver of visa fraud extends to any alien, even without family relationship to citizen and lawful resident, if fraud occurred
at least ten years before application for entry, and admission sought was not contrary to national welfare, safety, or security
of United States. Abascal-Montalvo v. I.N.S., D.Kan.1995, 901 F.Supp. 309.
Waiver of excludability was not available under the Immigration and Nationality Act (INA) to alien who was inadmissible
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for lacking valid entry documents, even though he appeared to meet requirement of being spouse and parent of United States
citizens who might suffer extreme hardship without him. Qureshi v. Ashcroft, C.A.3 2002, 47 Fed.Appx. 162, 2002 WL
31160101, Unreported.
148. Documentation requirements, classes subject to exclusion
Aliens who have had their status adjusted to permanent resident cannot later be deported for preconceived intent to remain
in United States at time of initial entry; adjusted aliens should not remain constantly at risk of deportation because of
preconceived intent, which is discretionary factor considered during adjustment proceeding itself. Choe v. I.N.S., C.A.9
1993, 11 F.3d 925.
Immigration judge and Board of Immigration Appeals lacked authority to grant alien retroactive permission to enter the
United States, where granting application would not have completely disposed of the case, because alien was deportable not
only on ground that he entered the United States after prior deportation without the Attorney General's consent, but also
because he entered the United States without valid entry documents. Perez-Rodriguez v. I.N.S., C.A.7 1993, 3 F.3d 1074.
Rule that alien who has been certified by Secretary of Labor is not excludable under provision of this section for exclusion
of aliens who did not obtain such certificates is also applicable to visa decisions. Castaneda-Gonzalez v. Immigration and
Naturalization Service, C.A.D.C.1977, 564 F.2d 417, 183 U.S.App.D.C. 396.
Alien who reentered the United States with alien registration card following trip to Cuba was subject to deportation.
Bilbao-Bastida v. Immigration and Naturalization Service, C.A.9 (Cal.) 1969, 409 F.2d 820, certiorari dismissed 90 S.Ct. 21,
396 U.S. 802, 24 L.Ed.2d 59.
A native-born citizen who lost his American citizenship by virtue of his service in Cuban armed forces after successful
conclusion of Castro revolution became an alien at time of such service and not at the time his alienage was judicially
determined, and his entry into United States after such service but before determination of alienage without documentation
required of alien immigrants subjected him to deportation. U. S. ex rel. Marks v. Esperdy, C.A.2 (N.Y.) 1963, 315 F.2d 673,
certiorari granted 84 S.Ct. 66, 375 U.S. 810, 11 L.Ed.2d 47, affirmed 84 S.Ct. 1224, 377 U.S. 214, 12 L.Ed.2d 292, rehearing
Alien returning from abroad must present immigration visa or return permit and show that he ought to be admitted under
the law. Taranto v. Haff, C.C.A.9 (Cal.) 1937, 88 F.2d 85.
Immigrants coming to country without immigration visas, though intending to work here only temporarily and leave
thereafter, were absolutely barred. Lamport & Holt v. Elting, S.D.N.Y.1931, 51 F.2d 1057, reversed on other grounds 64 F.2d
93.
Alien, a citizen of Afghanistan, who arrived in the United States from Pakistan with a passport which he had fraudulently
purchased in order to obtain a visa as a nonimmigrant visitor for business, could be deported to Pakistan without the prior
consent of the government of Pakistan. Walai v. U.S. I.N.S., S.D.N.Y.1982, 552 F.Supp. 998.
Passport issued by the "World Service Authority" of which the holder was president was not a proper entry document.
Davis v. District Director, Immigration & Naturalization Service, D.C.D.C.1979, 481 F.Supp. 1178.
Alien who did not have proper entry document was excludable. Davis v. District Director, Immigration & Naturalization
Service, D.C.D.C.1979, 481 F.Supp. 1178.
Former 451 of this title providing for the exclusion of an alien seeking to enter United States who did not present a visa,
"except in emergency cases defined by the Secretary of State", imposed on the Secretary of State a duty to define for the
public generally and the immigration service what circumstances constituted a case an emergency case within the meaning of
such exception. U S ex rel Brandt v. District Director of Immigration and Naturazation, Ellis Island, New York Harbor,
S.D.N.Y.1941, 40 F.Supp. 371.
Alien's failure to produce immigration visa on return from temporary visit to Canada was sufficient grounds for exclusion.
Conti v. Tillinghast, D.C.Mass.1932, 1 F.Supp. 981.
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149. Drug offenses, classes subject to exclusion

Alien's admission, in psychiatric examination conducted as part of process of issuing visa, that he had smoked marijuana in
the Philippines was admission to having engaged in acts that would constitute controlled substance offense under Philippine
law, and thus rendered alien excludable, though he did not admit, in accordance with language of Philippine Dangerous Drug
Act, that this prior marijuana use was unauthorized by law; "unless authorized by law" language in Philippine drug statute did
not establish additional element of narcotics offense, to which alien did not admit, but constituted affirmative defense.
Pazcoguin v. Radcliffe, C.A.9 2002, 292 F.3d 1209, amended on denial of rehearing 308 F.3d 934.
Alien failed to establish any prejudice from immigration judge's abuse of discretion in not considering his motion for
change of venue to raise claim for discretionary relief from deportation, where second immigration judge and Board of
Immigration Appeals gave full credit to favorable factors of family ties and employment history: even considering his family
ties to be outstanding equity, he still did not warrant relief from deportation due to his drug convictions. Lovell v. I.N.S.,
C.A.2 1995, 52 F.3d 458.
Alien's positive equities that alien was long-time United States resident, that alien had family ties in United States, and that
alien's mother faced emotional and economic hardship if he was deported were not unusual or outstanding and, thus, did not
merit weight in consideration of whether to grant waiver of deportation in light of fact that alien was convicted narcotics
offender and his years in United States were marked by participation in criminal activity. Douglas v. I.N.S., C.A.2 1994, 28
F.3d 241.
Denial of discretionary relief from deportation was not abuse of discretion, despite Board of Immigration Appeals' finding
that alien's family ties and property in United States constituted requisite unusual and outstanding equities, where Board
determined that alien's several drug-related offenses and his lack of rehabilitation outweighed such equities. Palacios-Torres
v. I.N.S., C.A.7 1993, 995 F.2d 96.
Board of Immigration Appeals (BIA) did not abuse its discretion nor depart from established policy in denying application
for discretionary relief from deportation of permanent resident alien who had been convicted of drug offenses, although alien
had demonstrated good promise for rehabilitation within prison environment; promise of rehabilitation did not have
significant weight in light of alien's repeated drug use and drug-related convictions and during time alien had resided in
country, he had engaged in criminal activity for six years and fled justice for five. Bellido-Torres v. I.N.S., C.A.7 1993, 992
F.2d 127.
Board of Immigration Appeals acted within its discretion in declining to waive deportation of alien for his conviction of
intent to distribute marijuana, despite family hardships caused by deportation, where offense involved nearly 100 pounds of
marijuana, alien's family was willing to move to Mexico, alien would likely acquire good employment in Mexico, alien had
falsified child's school entry records and asserted without substantiation that he was not required to file United States income
tax returns, and alien's rehabilitation was questionable. Villarreal-San Miguel v. I.N.S., C.A.5 1992, 975 F.2d 248.
Permanent resident alien who was convicted of participation in well organized, international scheme to smuggle heroin into
United States failed to show entitlement to waiver from deportation; alien failed to show rehabilitation, where nothing in
record showed that his brother, who participated in scheme, was no longer involved in criminal activity or that alien had
broken off contact with him; equities involved in his potential separation from wife were lessened where his wife married
alien knowing that he might be deported. Ghassan v. I.N.S., C.A.5 1992, 972 F.2d 631, rehearing denied 977 F.2d 576,
Provision of the Immigration and Nationality Act excluding alien known or believed to have trafficked in drugs is satisfied
if credible evidence is presented to show knowledge or reasonable belief that alien has trafficked in drugs; if sufficient
evidence shows such facts, adjustment may be denied. Castano v. I.N.S., C.A.11 1992, 956 F.2d 236.
Board of Immigration Appeals (BIA) properly exercised its discretion in denying an alien relief from deportation following
his conviction for possession of marijuana, even though the alien was married to a citizen, and notwithstanding alien's
children, his productive employment, his years of lawful residence, and hardship he and his family would face if he was
deported to Mexico; BIA considered the factors but found them outweighed by crimes the alien committed and fact that his
transition back into Mexico could be eased by his mother and five siblings living in Mexico. Chavez-Arreaga v. I.N.S., C.A.7
1991, 952 F.2d 952.
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Upon resident alien's confession that he had been convicted of narcotics violation, immigration judge properly found that
deportability had been established, even though alien had sought to vacate his conviction. Montilla v. I.N.S., C.A.2 1991, 926
F.2d 162.
Alien's undisputed possession of one kilogram of cocaine, which was an amount too large for personal use and too valuable
to have been entrusted to a person unaware of its existence, constituted "trafficking" which rendered alien, who had
previously been granted resident alien status, excludable. Correa v. Thornburgh, C.A.2 (N.Y.) 1990, 901 F.2d 1166.
Evidence supported finding alien, who had been admitted for lawful permanent residence, deportable based on his
conviction for possession of and trafficking in marijuana and Board of Immigration Appeals' notation of Congress' particular
concern with drug offenders, notwithstanding fact that alien contributed approximately $25 per week as support for his child
by his former wife who was United States citizen; Board properly balanced all relevant factors in deciding that equities
presented by alien did not sufficiently outweigh drug crime and conviction. Blackwood v. I.N.S., C.A.11 1986, 803 F.2d
1165.
Board of Immigration Appeals was within its discretion in finding petitioner, an excludable alien who was convicted on
two counts of possession of cocaine for sale, ineligible for asylum. Crespo-Gomez v. Richard, C.A.11 (Ga.) 1986, 780 F.2d
932.
Although defendants, all of whom were citizens of either Jamaica or Colombia, had all completed jail terms imposed upon
conviction of conspiring to import marijuana, of conspiring to possess marijuana in excess of 1,000 pounds with intent to
distribute, and of possessing with intent to distribute in excess of 1,000 pounds of marijuana and had been deported, record of
conviction constituted continuing harm, which might prevent their entry into United States in future, so that appeals were not
moot. U.S. v. Marsh, C.A.1 (Mass.) 1984, 747 F.2d 7.
This section rendering ineligible for visa and excludable from admission any alien who has been convicted of a violation of
any law or regulation relating to the illicit possession of marijuana includes within its ambit violations of foreign as well as
domestic marijuana laws. Pasquini v. U. S. Immigration and Naturalization Service, C.A.5 (Fla.) 1977, 557 F.2d 536.
Bahamian statute which prohibited possession of marijuana but provided that a defendant was entitled to attempt to prove
defense that his possession was unknowing and innocent was a "law relating to the illicit possession of marijuana" within
contemplation of this section rendering ineligible for a visa and excludable from admission any alien convicted of violation
of any "law relating to the illicit possession of marijuana." Pasquini v. U. S. Immigration and Naturalization Service, C.A.5
(Fla.) 1977, 557 F.2d 536.
Under this section providing that any alien who has been convicted of any law or regulation relating to the illicit possession
of marijuana is thereby rendered ineligible for a visa and excludable from admission, convictions under foreign law need not
comport with our notions of proper conduct of criminal trials; this section generally does not contemplate examination of
foreign convictions to determine whether they conform to domestic constitutional standards. Pasquini v. U. S. Immigration
and Naturalization Service, C.A.5 (Fla.) 1977, 557 F.2d 536.
In context of this section providing for exclusion of any alien who is or has been an illicit trafficker in marijuana, marijuana
is sufficiently general in scope to include "hashish." Hamid v. U. S. Immigration and Naturalization Service, C.A.9 1976, 538
F.2d 1389.
Alien's conduct in asking employee of American Embassy in Karachi to carry hashish to the United States provided some
basis for believing alien was excludable as a "trafficker," even if the mere supplying of hashish for transportation did not
constitute trafficking. Hamid v. U. S. Immigration and Naturalization Service, C.A.9 1976, 538 F.2d 1389.
Immigration officer need not know that an individual is or has been a trafficker in order to exclude that person; the officer
is justified in acting if he has reason to believe that an individual is so engaged. Hamid v. U. S. Immigration and
Alien convicted of violating narcotics law was subject to exclusion. Padilla-Partida v. Immigration and Naturalization
Service, C.A.9 1972, 462 F.2d 619, certiorari denied 93 S.Ct. 340, 409 U.S. 987, 34 L.Ed.2d 252.
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150. Foreign residence requirement--Generally

Statement by American vice-consul to alien that alien would not be subject to two-year rule providing that individual who
comes to United States to receive graduate medical training is not eligible to apply for visa or permanent residence until he
has resided in country of his nationality or last residence for at least two years following departure from United States was
negligent, but did not constitute level of misconduct necessary to estop the Immigration and Naturalization Service from
subjecting alien to two-year foreign residence requirement. Mukherjee v. I.N.S., C.A.9 (Or.) 1986, 793 F.2d 1006.
Congress' exclusion of exchange visitors in general, and particularly those admitted for graduate medical education and
training, from eligibility for suspension of deportation did not rest on "irrelevant and fortuitous factors" but, rather, took into
account purposes of exchange visits, in including bringing benefits of our learning back home to their countrymen, and thus it
was reasonable measure for Congress, in seeking to encourage compliance with its terms of exchange visitors' admission, to
foreclose any means by which those visitors could remain without having to return home and put into practice the knowledge
gained through the program. Newton v. I.N.S., C.A.61984, 736 F.2d 336.
Where presumably alien wife and United States citizen husband were well aware before their marriage that wife had agreed
to return to Turkey after completing training in United States, there was nothing unfair in permitting government to carry out
its policies by requiring wife to return to her country for two years after completing education before being permitted to
return to United States. Silverman v. Rogers, C.A.1 (Mass.) 1970, 437 F.2d 102, certiorari denied 91 S.Ct. 1667, 402 U.S.
983, 29 L.Ed.2d 149.
Status of petitioner admitted as an exchange visitor was not changed by reason of alleged failure of hospitals where she
worked while in United States to give her proper training since, if a fraud occurred, petitioner was a party to it by her signing
of forms which specified that certain training was being given, which forms were also signed by the hospitals. Alonzo v.
Immigration and Naturalization Service, C.A.7 (Ill.) 1969, 408 F.2d 667.
Filipinos who had entered the United States as exchange visitors for purpose of training in the medical professions and who
had not complied with provision of this section requiring that aliens so admitted return to own country or to another country
acceptable to the United States for at least two years before being granted adjustment of status were not entitled to adjustment
of status to permanent residents regardless of their country's willingness that they not return. Abinoja v. Immigration and
Naturalization Service, C.A.7 (Ill.) 1968, 402 F.2d 788, certiorari denied 89 S.Ct. 93, 393 U.S. 828, 21 L.Ed.2d 99.
Provision of this section that no alien within its provisions should be eligible for permanent residence unless he had been
physically present in country of his nationality or last residence or in another foreign country for an aggregate of at least two
years following departure from United States barred application for adjustment of Filipino alien's status so as to permit her to
remain in United States, where she had entered United States as an exchange visitor and had not, since her departure, been
physically present in the Philippines or in another foreign country under specified circumstances for an aggregate of two
years. Carriaga v. Immigration and Naturalization Service, C.A.7 (Ill.) 1966, 368 F.2d 337, certiorari denied 87 S.Ct. 975,
386 U.S. 942, 17 L.Ed.2d 873.
Mexican nationals, who were admitted to United States as exchange visitors, were not entitled to equitable relief of
cancellation of their exchange visitor visas so as in effect to change their status to that of nonquota immigrants merely
because of fact that when they entered United States as exchange visitors they could have entered as immigrants. Mendez v.
Major, C.A.8 (Mo.) 1965, 340 F.2d 128.
Alien who is denied a waiver of requirement that she remain abroad two years before returning to United States was not
denied due process for lack of clear standards or criteria in this section, since if this section were void and unenforceable,
there would be no statutory authority left providing for waiver. Talavera v. Pederson, C.A.6 (Ohio) 1964, 334 F.2d 52.
Department of State did not act unreasonably in applying statutory two-year foreign residence requirement, under which
alien who had previously been issued a nonimmigrant visa must reside and be physically present in country of nationality or
last residence for at least two years before applying for an immigrant visa, to special visas issued to allow an alien to enter
United States in order to get married, even though such visas are not mentioned in statute establishing two-year foreign
residence requirement, in view of likelihood that entry under such a visa would lead to permanent residence in United States,
as contemplated by immigrant visas that are explicitly subject to statute. Friedberger v. Schultz, E.D.Pa.1985, 616 F.Supp.
1315.
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Although wife and son of alien, who was himself subject to a two-year foreign residence requirement because he entered
United States under an exchange program, did not themselves enter the United States until after alien had stopped
participating in exchange program, status of alien would be imputed to them and they were subject to two-year foreign
residence requirement. Sheku-Kamara v. Karn, E.D.Pa.1984, 581 F.Supp. 582.
All persons in the general practice of medicine and recognized medical specializations from India were included in skills
list published by Secretary of State which was in full force and effect at time of exchange alien's entry into United States, and
thus alien was subject to two-year home residence requirement before applying for permanent residence in United States.
Nayak v. Vance, D.C.S.C.1978, 463 F.Supp. 244.
Attorney General had no duty to find that admission of alien who had educational visitor status and who sought to avoid
two-year foreign residence requirement was in public interest, and Secretary of State had no duty to favorably recommend a
waiver of the foreign residency requirement, so that federal district court had no jurisdiction over alien's suit seeking an
injunction, declaratory judgment, mandamus and judicial review. Nwankpa v. Kissinger, M.D.Ala.1974, 376 F.Supp. 122,
affirmed 506 F.2d 1054.
151. ---- Waiver of foreign residence requirement
Failure of district director of Immigration and Naturalization Service to forward to United States Information Agency
exchange visa medical student's motions for reconsideration of Agency's refusal to waive two-year foreign residency
requirement in order to become eligible for immigrant visa, permanent residency, or nonimmigrant visa, did not constitute
abuse of director's discretion. Singh v. Moyer, C.A.7 (Ill.) 1989, 867 F.2d 1035.
United States Information Agency's explanation of its denial of nonimmigrant exchange visitor's request for
recommendation of waiver of requirement that visitor reside abroad for two years before becoming eligible for immigrant
visa or permanent residence, that visitor did not conclusively prove that he would not be able to practice medicine abroad,
was sufficiently particularized, in light of foreign policy concerns raised by cases involving exchange visitor program. Chong
v. Director, U.S. Information Agency, C.A.3 (Pa.) 1987, 821 F.2d 171.
Statement of INS district director that nonimmigrant exchange visitor's application for waiver of requirement that he reside
abroad for two years before becoming eligible for immigrant visa or permanent residence was being denied because INS had
received recommendation from United States Information Agency that waiver not be granted was sufficient notification of
reasons for decision. Abdelhamid v. Ilchert, C.A.9 (Cal.) 1985, 774 F.2d 1447.
For nonimmigrant exchange visitor to obtain waiver of requirement of two-year foreign residence before becoming eligible
to apply for immigrant visa or permanent residence, there must be hardship determination by INS, favorable recommendation
byUnited States Information Agency, and determination by INS, acting for Attorney General, that admission would be in
public interest. Abdelhamid v. Ilchert, C.A.9 (Cal.) 1985, 774 F.2d 1447.
Secretary of state had power to veto waiver of statutory two-year foreign residence requirement as to alien who was
admitted to United States for education and who asserted hardship upon citizen spouse as ground for waiver. Silverman v.
Rogers, C.A.1 (Mass.) 1970, 437 F.2d 102, certiorari denied 91 S.Ct. 1667, 402 U.S. 983, 29 L.Ed.2d 149.
Where application for recommendation of waiver of the two-year foreign service residence condition was not made to the
Waiver Board of the Department of Health, Education and Welfare until after the deportation proceedings had been
completed and denial of waiver occurred after petition for review of deportation proceeding had been filed in Court of
Appeals, denial of waiver was not within jurisdiction of court to pass upon. Dibadj v. Immigration and Naturalization
Service, C.A.3 1969, 411 F.2d 983.
Alien, who was granted several extensions for completion of medical training after his five-year limit as an exchange
visitor had expired but was denied a further extension of time and had not obtained a waiver of a two-year foreign residence
requirement of exchange visitors for status as aliens for permanent residence, was properly deported under the applicable
law. Dibadj v. Immigration and Naturalization Service, C.A.3 1969, 411 F.2d 983.
The Department of Defense, as an "interested agency" desiring the continued presence of Vietnamese exchange visitor,
could informally consult or take into account the views of other concerned departments in deciding whether or not to submit
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a formal waiver request to the Department of State. Secretary of Defense v. Bong, C.A.D.C.1969, 410 F.2d 252, 133
U.S.App.D.C. 264.
Although standards for waiver of foreign residence requirement for reentry by alien who had been admitted under Mutual
Educational and Cultural Exchange Act of 1961, 2451 et seq. of Title 22, are very high, such standards are not impossible.
Glorioso v. Immigration and Naturalization Service, C.A.7 (Ill.) 1967, 386 F.2d 664, certiorari denied 89 S.Ct. 153, 393 U.S.
868, 21 L.Ed.2d 136.
Where aliens who had been admitted under Mutual Educational and Cultural Exchange Act of 1961, 2451 et seq. of Title
22, had completed their nurse's training and each was aware of the two-year foreign residence requirements for reentry,
Exchange Visitor Waiver Review Board did not abuse its discretion by refusing to make request to Department of State for
waiver of foreign residence requirement. Glorioso v. Immigration and Naturalization Service, C.A.7 (Ill.) 1967, 386 F.2d
Immigration and Naturalization Service could not grant waiver of two-year foreign residence requirement for educational
visitor status unless United States Information Agency recommended waiver. Singh v. Moyer, N.D.Ill.1987, 674 F.Supp. 20,
Immigration and Naturalization Service, acting in strict compliance with law, was powerless to grant waiver of requirement
that J-1 exchange student return to and reside in his native country for at least two years before applying for immigrant visa
or permanent residence, where United States Information Agency did not favorably recommend waiver. El-Omrani v.
Director, U.S. Information Agency, W.D.Pa.1986, 638 F.Supp. 430.
Under subsec. (e) of this section permitting waiver of foreign residence requirement of this chapter if immigrant cannot
return to country of his nationality or last residence because he would be subject to persecution on account of race, religion,
or political opinion, citizen of Philippines was entitled to waiver if he established objective evidence of well-founded fear of
persecution. Almirol v. I.N.S., N.D.Cal.1982, 550 F.Supp. 253.
Lenient waiver policy was not intended under subsec. (e) of this section requiring exchange alien's departure from United
States for period of two years prior to applying for permanent residence. Nayak v. Vance, D.C.S.C.1978, 463 F.Supp. 244.
Decision not to waive two-year foreign residency requirement as to alien exchange visitor seeking permanent resident
status was abuse of discretion and plain error, where alien's husband was permanent resident, where, if husband left United
States for two years with alien wife, it would disrupt his career in structural engineering, reduce income of the couple to bare
subsistence level, and hamper efforts of husband to become American citizen, and where, if husband remained in United
States while alien wife went abroad, his mental health would be in jeopardy. Yu v. Marshall, S.D.Tex.1970, 312 F.Supp. 229.
In assessing weight to be given alien's evidence in support of waiver of condition on which he entered United States as an
exchange visitor, administrative body could consider policies Congress sought to have implemented. Gras v. Beechie,
S.D.Tex.1963, 221 F.Supp. 422.
152. ---- Exceptional hardship, foreign residence requirement
It was not improper for District Director of Immigration and Naturalization Service to resort to legislative history of this
section, providing for waiver by Attorney General of two-year residence abroad requirement on favorable recommendation of
the Secretary of State pursuant to request of Commissioner of Immigration and Naturalization after he has determined that
departure from United States will not impose "exceptional hardship" in construing phrase "exceptional hardship," in view of
fact that phrase is not so clear as to be susceptible to only one meaning. Mendez v. Major, C.A.8 (Mo.) 1965, 340 F.2d 128.
"Exceptional hardship" within this section permitting waiver of requirement that exchange visitor remain abroad for two
years before returning to United States if requirement would impose exceptional hardships upon spouse or child,
contemplates more than normal personal hardships. Talavera v. Pederson, C.A.6 (Ohio) 1964, 334 F.2d 52.
Denial of waiver of requirement that exchange visitor remain abroad two years before returning to United States, sought on
ground that alien's spouse, whom she married day she applied for waiver, required her presence, was not capricious, arbitrary
or abuse of discretion. Talavera v. Pederson, C.A.6 (Ohio) 1964, 334 F.2d 52.
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Immigration and Naturalization Service abused discretion by decisions to require Korean, nonimmigrant exchange visitor
to return to Korea for two years after marriage to American citizen before visitor could receive permanent residence status
and not to waive two-year requirement due to exceptional hardship suffered by citizen; Service officials assured visitor and
citizen that marriage would nullify two-year requirement imposed on visitor financed by United States government funds;
citizen would suffer exceptional economic and cultural hardship if forced to relocate in Korea; citizen's medical and
emotional problems would be exacerbated by prolonged period of family separation; and there was no evidence of sham
marriage consummated to avoid immigration laws. Younghee Na Huck v. Attorney General of U.S., D.D.C.1987, 676
F.Supp. 10.
Immigration and Naturalization Service properly considered teaching status of alien, who entered country as exchange
visitor, as ameliorative factor in determining not to waive requirement that alien return to Saudi Arabia for two years before
being permitted to apply for permanent residence or for change in alien status on ground of exceptional hardship to spouse.
Al-Khayyal v. U.S. I.N.S., N.D.Ga.1986, 630 F.Supp. 1162, affirmed 818 F.2d 827.
Decision of Immigration and Naturalization Service not to waive requirement, on basis of "exceptional hardship" to alien's
spouse, that alien, temporarily in United States as exchange visitor, return to Saudi Arabia for two years before being
permitted to apply for permanent residence or for change of status, did not vary so significantly from earlier decisions by
Agency as to constitute abuse of discretion. Al-Khayyal v. U.S. I.N.S., N.D.Ga.1986, 630 F.Supp. 1162, affirmed 818 F.2d
827.
United States Information Agency did not abuse its discretion in finding that foreign policy consideration underlying
foreign student exchange program outweighed potential hardship to family of Nigerian citizen, who had entered United
States as nonimmigrant exchange visitor to pursue education which he had never completed and had subsequently married
United States citizen with whom he had a child; thus, decision to deny Nigerian citizen hardship waiver of requirement that
he return to his native country and reside there for two years before applying for permanent residency in United States was
not arbitrary and capricious. Dina v. Attorney General of U.S., N.D.N.Y.1985, 616 F.Supp. 718, affirmed 793 F.2d 473.
Non-immigrant exchange visitor who was in this country to receive graduate medical education established the
"exceptional hardship" on his spouse which justified waiving requirement that an exchange visitor return to his native land
for two years before he is eligible to apply for permanent residence in this country, in that spouse's departure to
nonimmigrant visitor's home would disrupt her professional career, move to nonimmigrant visitor's home would have serious
economic consequences for visitor and his spouse, and American vice- consul in Toronto, Canada had assured exchange
visitor that he would not have to depart from the United States for two years. Slyper v. Attorney General, D.C.D.C.1983, 576
F.Supp. 559.
Determination by regional commissioner of Service that alien exchange visitor's citizen spouse and citizen child would not
experience "exceptional hardship" were they to accompany the alien abroad while he satisfied statutory two-year foreign
residence requirement did not obviate need also to examine with requisite care whether they would experience "exceptional
hardship" upon separation, and thus the commissioner's failure to demonstrate explicit consideration of evidence in record
relative to citizen child's "exceptional hardship" claim was arbitrary, capricious, and abuse of discretion. Keh Tong Chen v.
Attorney Gen. of U. S., D.C.D.C.1982, 546 F.Supp. 1060.
Exchange alien who was completing residency in general surgery was not entitled to waiver of two-year foreign residence
requirement before being eligible to apply for permanent residence on basis that requiring alien to return to his native land for
two years would impose compelling hardship on alien's spouse and child. Nayak v. Vance, D.C.S.C.1978, 463 F.Supp. 244.
Voluntary act of alien in marrying American resident did not preclude finding of exceptional hardship, within this section's
provision for waiver of foreign residency requirement as prerequisite to exchange visitor's application for permanent
residence. Yu v. Marshall, S.D.Tex.1970, 312 F.Supp. 229.
Under this section whereby District Immigration Director could request Secretary of State to recommend waiver of
two-year foreign residence requirement on ground of exceptional hardship to United States citizen who is spouse or child of
exchange visitor, "exceptional hardship" requires more than fact of spouse or parent relationship to United States citizen.
Mendez v. Major, E.D.Mo.1963, 226 F.Supp. 364, affirmed 340 F.2d 128.
Refusal of District Immigration Director to find "exceptional hardship", as bearing on waiver of two-year foreign residence
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requirement, to United States- born son of exchange visitor on ground that son had learned only English and would be
emotionally disturbed by beginning elementary school in foreign land or by being left with foster parents in United States
was not arbitrary, or capricious or abuse of discretion. Mendez v. Major, E.D.Mo.1963, 226 F.Supp. 364, affirmed 340 F.2d
128.
Province of District Immigration Director with respect to recommending waiver of two-year foreign residence requirement
on ground of exceptional hardship to United States citizen who is spouse or child of exchange visitor extends only to
preliminary determination of exceptional hardship. Mendez v. Major, E.D.Mo.1963, 226 F.Supp. 364, affirmed 340 F.2d 128.
Under subsection (e) of this section allowing waiver of condition that an alien, who has entered country as exchange
visitor, return for a period of two years to his home country or another country participating in exchange program if alien's
departure would impose exceptional hardship on his family, enforced separation of alien from his family was not the type of
hardship which would furnish basis for a waiver of the condition. Gras v. Beechie, S.D.Tex.1963, 221 F.Supp. 422.
Determination of immigration officials that deportation of alien, whose entry as exchange visitor was conditioned on his
return, for a period of two years, to his home country or another country participating in exchange program unless his
departure would impose exceptional hardship on his spouse or children if they were American citizens or resident aliens,
would not impose exceptional hardship on his family was not arbitrary when wife could readily find employment and when
period of post operative care for the more seriously ill of alien's two children had about elapsed. Gras v. Beechie,
S.D.Tex.1963, 221 F.Supp. 422.
153. Health grounds, classes subject to exclusion--Generally
Alien minor child who had never dwelt in United States, when coming to join naturalized parent was not exempt from
corresponding provision in Act of 1903, excluding persons afflicted with contagious diseases, on theory that she was invested
with citizenship by virtue of former 7 of this title. Zartarian v. Billings, U.S.Mass.1907, 27 S.Ct. 182, 204 U.S. 170, 51
L.Ed. 428.
In this section excluding aliens afflicted with named diseases from admission into United States, and 1224 of this title
providing for medical examination of arriving aliens by medical officers of United States Public Health Service, and stating
that, if decision of special inquiry officer excluding alien is based solely on medical certificate that alien has such a disease,
no alien shall have right to appeal from such decision, "solely" means "exclusively" and the "only one", and such medical
certificate is conclusive, and the fact that alien cannot rebut certificate is not denial of due process of law. U.S. ex rel. Wulf v.
Esperdy, C.A.2 (N.Y.) 1960, 277 F.2d 537.
Similar provision in Act Feb. 20, 1907, excluding alien immigrants afflicted with certain diseases, was applicable to
Chinese immigrants otherwise entitled to admission. Ex parte Lee Sher Wing, N.D.Cal.1908, 164 F. 506. See, also, Ex parte
Li Dick, D.C.N.Y.1909, 174 F. 674; Loose Shee v. North, Cal.1909, 170 F. 566, 95 C.C.A. 646; 1903, 24 Op.Atty.Gen. 706.
Admissibility of evidence was discussed in habeas corpus proceeding to inquire into right to deport alien on ground that
she had trachoma, which was "a loathsome or a dangerous contagious disease", where alien claimed rights of citizenship on
ground that her father and mother were residents of United States and her father before sending for her had taken out his first
citizenship papers. In re Di Simone, E.D.La.1901, 108 F. 942.
Under former Act, Chinese person suffering from dangerous contagious disease belonged to one of classes of aliens which
should be excluded from United States. 1903, 24 Op.Atty.Gen. 706.
Alien immigrants, pronounced by competent authority under Act Mar. 3, 1891, to be suffering from loathsome or
dangerous contagious disease, were not entitled to enter United States. 1891, 22 Op.Atty.Gen. 122.
154. ---- Mental condition, health grounds, classes subject to exclusion
Affliction of an alien with a psychopathic personality at time of his entry into the United States would authorize his
deportation. Boutilier v. Immigration and Naturalization Service, C.A.2 (N.Y.) 1966, 363 F.2d 488, certiorari granted 87
S.Ct. 285, 385 U.S. 927, 17 L.Ed.2d 209, affirmed 87 S.Ct. 1563, 387 U.S. 118, 18 L.Ed.2d 661.
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Where medical certificate lawfully issued under former 153 of this title showed that alien was suffering from mental
affliction of mongolism, alien and her mother were properly excluded from the country. U.S. ex rel. Saclarides v.
Shaughnessy, C.A.2 (N.Y.) 1950, 180 F.2d 687.
Under similar provision of Act of 1907, subject only to review by courts, executive officers of government had no
discretion to admit to United States person duly found to be imbecile by former board of special inquiry on certificate of
medical examiner. U.S. v. Tod, C.C.A.2 (N.Y.) 1924, 297 F. 385, certiorari granted 44 S.Ct. 454, 264 U.S. 580, 68 L.Ed.
859, petition dismissed 45 S.Ct. 229, 267 U.S. 607, 69 L.Ed. 811.
Board of Immigration Appeals waived disability of alien who was excludable at time of entry, in 1947, as one who had had
previous attack of insanity, and who was insane at time of entry, where board, under 7th Proviso to 3, Immigration Act of
1917, granted voluntary departure and readmission conditioned only on posting of bond, and, therefore, insanity at time of
entry did not make alien ineligible for naturalization. In re Hollinger, E.D.Mich.1962, 211 F.Supp. 203.
Even if alien suffered attack of insanity prior to her re-entry into United States in 1960, orders by which Board of
Immigration Appeals, under 7th Proviso to 3. Immigration Act of 1917, granted voluntary departure and readmission only
on posting of bond to assure that alien would not become public charge in event of recurrence of her mental illness were
sufficiently broad to include a recurrence of alien's mental illness. In re Hollinger, E.D.Mich.1962, 211 F.Supp. 203.
Persons of constitutional psychopathic inferiority and persons likely to become public charges were persons which under
former 136(a, i) of this title had to be excluded from admission to the United States. U.S. v. Schwarz, S.D.N.Y.1949, 82
F.Supp. 933.
155. Ineligibility for citizenship, classes subject to exclusion--Generally
This section, excluding aliens ineligible from citizenship, by definition, excludes an individual who is, or was at any time
permanently debarred from becoming a citizen of the United States, and such exclusionary provision is retroactive. Barber v.
Rietmann, C.A.9 (Cal.) 1957, 248 F.2d 118, certiorari denied 78 S.Ct. 365, 355 U.S. 923, 2 L.Ed.2d 353.
Under this chapter, one who is not eligible for citizenship is not admissible into United States as an immigrant for
permanent residence. Paris v. Shaughnessy, S.D.N.Y.1956, 138 F.Supp. 36, affirmed 247 F.2d 1, certiorari denied 78 S.Ct.
384, 355 U.S. 926, 2 L.Ed.2d 357.
Former 213(c) of this title, concerning exclusion of aliens ineligible to citizenship, did not apply to disabilities that were
removable and not necessarily permanent. 1940, 39 Op.Atty.Gen. 509.
156. ---- Military service, ineligibility for citizenship, classes subject to exclusion
Alien who obtained permanent resident status and thereafter left country to return in nonimmigrant status which would
enable him to gain draft exemption was alien who departed from United States to evade military service in armed forces of
United States and was inadmissible. Riva v. Mitchell, C.A.3 (N.J.) 1972, 460 F.2d 1121, certiorari denied 93 S.Ct. 1898, 411
U.S. 932, 36 L.Ed.2d 391.
Even when alien returns to United States and serves in armed forces, he may still be excludable if he left country to avoid
military service. Riva v. Mitchell, C.A.3 (N.J.) 1972, 460 F.2d 1121, certiorari denied 93 S.Ct. 1898, 411 U.S. 932, 36
L.Ed.2d 391.
Return of permanent resident alien to the United States after his proposed trip to Israel would not constitute an "entry"
within this chapter so as to subject him to possible exclusion, even though he had waived his eligibility for citizenship by
exercising his right as Argentine national to claim exemption from United States Military Service, where purpose of the trip
was to attend special three-week training course conducted by his employer. Itzcovitz v. Selective Service Local Bd. No. 6,
New York, N. Y., C.A.2 (N.Y.) 1971, 447 F.2d 888.
Inasmuch as presidential proclamation issued on Dec. 16, 1950 declaring that state of national emergency existed had not
been revoked, state of national emergency existed in 1967 within statute making subject to deportation persons who have
departed from or remained outside of United States to avoid or evade training or service in armed forces in time of war or
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period declared by President to be national emergency. Jolley v. Immigration and Naturalization Service, C.A.5 (Ga.) 1971,
441 F.2d 1245, certiorari denied 92 S.Ct. 302, 404 U.S. 946, 30 L.Ed.2d 262.
Evidence sustained finding of special hearing officer that alien was a deportable alien because he had left United States to
avoid training or service in Armed Forces during national emergency. Ramasauskas v. Flagg, C.A.7 1962, 309 F.2d 290.
Fact that alien, who was a deportable alien because he had left United States to avoid training or service in Armed Forces
during national emergency, served in Army after his return to United States had no legal effect on his status as deportable
alien. Ramasauskas v. Flagg, C.A.7 1962, 309 F.2d 290.
Where citizen of Argentina entered the United States in 1942 as a temporary visitor, and an extension was granted, and in
1943, acting on advice of Consul of Argentina, he filed application as an alien for relief from military service on form stating
that by making such application he was debarred from becoming a United States citizen, and subsequently Argentina became
an ally of the United States, and citizen of Argentina was no longer exempt from military service, and he was classified 1-A
in 1945, but was never called for service as he became 30 years of age and the war soon ended, he was subject to deportation
as being ineligible for citizenship. Savoretti v. Small, C.A.5 (Fla.) 1957, 244 F.2d 292.
Alien who left country allegedly out of fear of having to undergo military service or arrest for refusal to serve, despite
treaty right exempting him from service, failed to sustain burden of proving probability of success upon merits of claim for
relief against Immigration and Naturalization Service and preliminary injunction restraining Service from impeding alien's
return to United States and requiring Service to permit alien to resume his permanent residence in country would be denied.
Itzcovitz v. Selective Service Local Bd. No. 6, New York, S.D.N.Y.1969, 301 F.Supp. 168, appeal dismissed 422 F.2d 828.
Alien who had left country allegedly out of fear of having to undergo military service or be arrested for refusing to serve,
despite treaty exempting him from military service, and who sought to be readmitted into country would be required to
exhaust administrative remedies. Itzcovitz v. Selective Service Local Bd. No. 6, New York, S.D.N.Y.1969, 301 F.Supp. 168,
appeal dismissed 422 F.2d 828.
Where permanent resident alien from Argentina, entitled to exemption from military service under treaty, left United States
to avoid induction or arrest for refusing to serve and was subsequently classified IV-C, motion to enjoin Selective Service
System pendente lite to reclassify alien as exempt was not premature even though United States attorney had expressed no
"present intention" of prosecuting alien and in view of fact that alien might be excluded from United States on basis of
induction notice still outstanding. Itzcovitz v. Selective Service Local Bd. No. 6, New York, S.D.N.Y.1969, 301 F.Supp. 168,
appeal dismissed 422 F.2d 828.
One who secured exemption from military service by executing "Application by Alien for Relief from Training and
Service in the Armed Forces" as provided by 454 of Appendix to Title 50 is permanently debarred from becoming citizen
of the United States. Paris v. Shaughnessy, S.D.N.Y.1956, 138 F.Supp. 36, affirmed 247 F.2d 1, certiorari denied 78 S.Ct.
384, 355 U.S. 926, 2 L.Ed.2d 357.
If any exception should be made by court, in deportation proceeding, to 1426 of this title providing that records of
selective service system should be conclusive as to whether alien was, as such, relieved from liability for training or service,
none was warranted, under circumstances of case, on ground that registrant, if he had been examined, might have been found
unfit and classified 4-F in accordance with Executive Order for registrant to be classified in lowest class for which
determined to be eligible. Paris v. Shaughnessy, S.D.N.Y.1956, 138 F.Supp. 36, affirmed 247 F.2d 1, certiorari denied 78
S.Ct. 384, 355 U.S. 926, 2 L.Ed.2d 357.
157. Laborers, classes subject to exclusion--Generally
Although Department of Labor had determined that precertification of alien for status as a "Third Preference" immigrant
could not be granted, in that alien's qualifications did not support classification as a member of a profession or as one having
exceptional ability in sciences and arts, it did not follow that alien was statutorily ineligible for preference certification, where
no determination was made as to sufficiency of workers to perform work alien desired to perform or whether employment of
alien would adversely affect wages and working conditions of workers in United States similarly employed. Orcales v.
District Director of U. S. Immigration and Naturalization Service, C.A.9 (Cal.) 1970, 431 F.2d 817.
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"It must now be regarded as settled that the purpose of Congress in enacting this so-called 'contract labor' legislation was to
prevent the importation into this country of an ignorant, servile class of foreign laborers, to work at a low rate of wages, and
thus reduce other laborers engaged in like occupations to the level of the assisted immigrants, and this provision of the statute
does not refer nor apply to persons whose work requires mental, rather than merely manual, effort as its dominant element.
Church of Holy Trinity v. United States, N.Y.1892, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226; United States v. Laws, Ohio
1896, 163 U.S. 258, 16 S.Ct. 998, 41 L.Ed. 151; Scharrenberg v. Dollar Steamship Co., Cal.1917, 245 U.S. 122, 38 S.Ct. 28,
62 L.Ed. 189; Gay v. Hudson River Electric Power Co., C.C.N.Y.1910, 178 F. 499; Tatsukichi Kuwabara v. United States,
Hawaii, 1919, 260 F. 104, 171 C.C.A. 140; United States v. Union Bank of Canada, C.C.A.N.Y.1919, 262 F. 91, 8 A.L.R.
1438; Ex parte Aird, D.C.Pa.1921, 276 F. 954." Ex parte Gouthro, E.D.Mich.1924, 296 F. 506.
Word "labor" as used in provision of former 136(h) of this title, excluding from admission to United States persons
assisted or solicited to migrate to this country "to perform labor * * * of any kind, skilled or unskilled," referred to manual
labor. Aird, ex parte, E.D.Pa.1921, 276 F. 954. See, also, 1909, 27 Op.Atty.Gen. 383; 1901, 23 Op.Atty.Gen. 381; Ex parte
Toguchi, D.C.Wash.1916, 238 F. 632.
This section which makes ineligible for visas aliens seeking to enter United States for purpose of performing skilled or
unskilled labor unless there is a determination that such employment will not adversely affect wages and working conditions
of American workers similarly employed and that there are not sufficient American workers able, willing, qualified and
available to perform such work does not prohibit all work contracts entered into by undocumented aliens. Nizamuddowlah v.
Bengal Cabaret, Inc., N.Y.Sup.1977, 399 N.Y.S.2d 854, 92 Misc.2d 220, affirmed 415 N.Y.S.2d 685, 69 A.D.2d 875, appeal
dismissed 400 N.E.2d 372, 424 N.Y.S.2d 1026, 48 N.Y.2d 609.
158. ---- Certification, laborers, classes subject to exclusion
Alien who first sought admission after effective date of 1965 amendment to subsection (a)(14) of this section making more
strict the certification by Secretary of Labor of the need for foreign labor would need a certificate from the Secretary of
Labor, but if he was already an alien lawfully admitted to the United States for permanent residence and returning from
temporary visit abroad the 1965 amendment would not affect him; purpose of Congress was to limit new admission of alien
laborers. Saxbe v. Bustos, U.S.Dist.Col.1974, 95 S.Ct. 272, 419 U.S. 65, 42 L.Ed.2d 231.
Aliens had prudential standing to challenge denials of labor certifications by Department of Labor; neither the text,
structure, nor legislative history of Immigration and Nationality Act indicated that Congress intended to preclude such suits.
De Jesus Ramirez v. Reich, C.A.D.C.1998, 156 F.3d 1273, 332 U.S.App.D.C. 245.
Alien who conceded that he entered United States for purpose of performing work without valid labor certification was not
"otherwise admissible" under statute providing relief from deportation to certain aliens who were spouse, parent, or child of
citizen or lawful alien; thus, immigration judge was not required to inform alien of his right to apply for relief from
deportation under that statute. Bu Roe v. I.N.S., C.A.9 1985, 771 F.2d 1328.
When alien enters United States with labor certificate but fails to take job for which he is certified, Attorney General may
deport him only upon proof sufficient to support finding that he obtained certificate by fraud, i.e., material misrepresentation,
or that he did not intend to take certified employment upon entry. Jang Man Cho v. Immigration and Naturalization Service,
C.A.4 1982, 669 F.2d 936.
Purpose of labor certification under this chapter is to exclude aliens competing for jobs American workers could fill and
protect American labor market from inflexible skilled and unskilled foreign labor. Wang v. Immigration and Naturalization
Service, C.A.9 1979, 602 F.2d 211.
Officials of Immigration and Naturalization Service may not, by affirmative action, deprive an alien of his absolute right to
a labor certification without justification. Sun Il Yoo v. Immigration and Naturalization Service, C.A.9 1976, 534 F.2d 1325.
Regulation providing that any request for a certification for temporary foreign workers should be filed in sufficient time to
allow manpower administration 30 days to determine the availability of domestic workers applies to the employer rather than
the Secretary of Labor, and Secretary was not required to wait 30 days to allow interstate recruitment of domestic laborers
prior to acting upon request for certification of need for foreign laborers. Williams v. Usery, C.A.5 (Fla.) 1976, 531 F.2d 305,
rehearing denied 533 F.2d 1135, certiorari denied 97 S.Ct. 527, 429 U.S. 1000, 50 L.Ed.2d 610.
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Alien seeking admission to country as professional person or person having exceptional ability in sciences or arts is subject
to requirement of certification that there are not sufficient workers in United States able, etc., and that employment of alien
would not adversely affect wages and working conditions of employees in United States similarly employed. Reddy, Inc. v.
U. S. Dept. of Labor, C.A.5 (Tex.) 1974, 492 F.2d 538, rehearing denied 495 F.2d 1372.
Where reviewing officers, in Department of Labor, in denying certification that there are not sufficient workers in United
States able, etc., and that employment of aliens would not adversely affect wages and working conditions characterized labor
to be done by alien applicant as that of mechanical engineer they improperly examined wages of civil engineers in
determining effect upon wages and working conditions of workers in United States "similarly employed". Reddy, Inc. v. U.
S. Dept. of Labor, C.A.5 (Tex.) 1974, 492 F.2d 538, rehearing denied 495 F.2d 1372.
On remand for redetermination of decision on alien's application for certification that there are not sufficient workers in
United States able, etc., and that employment of aliens will not adversely affect wages and working conditions of workers
similarly employed, Labor Department's reconsideration would necessarily be in light of facts existing at time of
reconsideration, though statutory inquiry into sufficiency of workers is "at the time of application." Reddy, Inc. v. U. S. Dept.
of Labor, C.A.5 (Tex.) 1974, 492 F.2d 538, rehearing denied 495 F.2d 1372.
For purpose of judging whether certification should issue that there was lack of American workers in Miami, Florida, to fill
position sought by alien as labor lawyer, employer's requirement that position be filled by attorney with specialized
knowledge in labor law was reasonable and tended to contribute to or enhance efficiency and quality of employer's practice.
Ramani v. Secretary of Labor, S.D.Fla.1976, 430 F.Supp. 298.
Labor certificate obtained by alien by demonstrating his qualifications for one of occupations listed in schedule setting
forth categories of employment as to which determination of state of American labor market has been made, a process called
"precertification," may be affected by changes in American labor market occurring subsequent to alien's certification but
priorto issuance of his visa; thus an amendment of schedule may be applied retroactively to deprive alien of certification
already obtained. Veras-Mejia v. Brennan, S.D.N.Y.1976, 418 F.Supp. 680.
Aliens' entitlement to labor certificates was terminated by amendment deleting aliens' occupations from published schedule
of categories of employment for which an alien may obtain labor certificate by merely demonstrating his qualifications,
without submitting proof of a specific job offer. Veras- Mejia v. Brennan, S.D.N.Y.1976, 418 F.Supp. 680.
Alien visitor who is physically present in United States, having entered on temporary visa, and who is trying to change
status, is treated as one seeking admittance, for purposes of alien employment certification. Jadeszko v. Brennan,
E.D.Pa.1976, 418 F.Supp. 92.
Alien was not entitled to employment certification for work at business situs of specific employer, where there were
available workers in area and qualified workers had been referred to employer, although employer deemed referred workers
unsatisfactory. Ozbirman v. Regional Manpower Adm'r, U. S. Dept. of Labor, S.D.N.Y.1971, 335 F.Supp. 467.
Alien applying for preference classification who had not received his bachelor's degree in electronic engineering from an
accredited school and hence did not come under blanket certification, failed to discharge his burden of submitting an
individual certification from Secretary of Labor pursuant to this section when alien did not submit such a certificate. Yau v.
District Director of U. S. Immigration and Naturalization Service, C.D.Cal.1968, 293 F.Supp. 717.
Under subsection (a)(14) of this section, aliens lawfully admitted for permanent residence are not excluded from admission
as aliens seeking entry for purpose of performing skilled or unskilled labor if Secretary of Labor has certified that sufficient
workers in United States are available to perform such labor or that employment of such aliens will adversely affect wages
and working conditions of workers in United States similarly employed. Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO v. Rogers, D.C.D.C.1960, 186 F.Supp. 114.
Where strike occurred at packing company in El Paso, Texas, and Secretary of Labor certified that admission of aliens to
United States for employment at packing company during strike would adversely affect wages and working conditions of
workers in United States similarly employed, subsection (a)(14) of this section permitted "returning lawfully domiciled
resident aliens" to enter United States to work at packing company, but commuters were not within that class and should be
excluded. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO v. Rogers, D.C.D.C.1960, 186
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F.Supp. 114.
159. ---- Denial of certification, laborers, classes subject to exclusion
Labor certification for foreign president and sole shareholder of cheese company doing business in California was properly
denied on basis that no genuine employment relationship existed between company and independent employer. Bulk Farms,
Inc. v. Martin, C.A.9 (Cal.) 1992, 963 F.2d 1286.
Department of Labor operating instruction pursuant to which labor certification was revoked, because substitution of one
alien for another alien did not occur within six months of original date of certification, conflicted with Immigration and
Nationality Act and regulation promulgated thereunder; operating instruction effectively allowed Secretary of Labor to
decide eligibility status of particular aliens, while such authority in fact resided in Immigration and Naturalization Service,
and had nothing to do with labor market conditions, and regulation promulgated to administer Act provided that labor
certification was valid indefinitely. Medellin v. Bustos, C.A.5 (Tex.) 1988, 854 F.2d 795.
Immigration and Naturalization Service may make a de novo determination of whether alien is qualified to fill certified job
offer and thus entitled to sixth preference status; the Service is bound by Department of Labor's certification and may
invalidate it only upon determining that it was procured through fraud or willful misrepresentation of a material fact or that
the Secretary of Labor abused its discretion in issuing the certification. Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, C.A.9
(Hawai'i) 1984, 736 F.2d 1305.
Given absence of evidence tending to support alien's assertion of present ability to pass nursing license exam as required to
perform certified job, Service did not abuse its discretion by denying alien's third preference visa classification petition.
Madany v. Smith, C.A.D.C.1983, 696 F.2d 1008, 225 U.S.App.D.C. 53.
Absence of express delegation of legislative power to Secretary of Labor to issue regulations to apply in granting or
denying applications for permanent alien labor certification did not itself render Secretary's regulation, requiring employer to
have unsuccessfully advertised job opportunity in order for application to be granted, void. Production Tool Corp. v.
Employment and Training Admin., U.S. Dept. of Labor, C.A.7 (Ill.) 1982, 688 F.2d 1161.
Secretary of Labor, who refused to issue an alien employment certification for a person to work on a commission basis
selling real estate and other business opportunities to foreign investors after finding that employer had not complied with
regulations in that wage employer was offering was $600 per month below prevailing wage paid to similarly situated
employees in the market and that employer had not advertised position in a professional publication at a place where
potential employees would most likely be found, i.e., eastern edition of Wall Street Journal, did not err in interpreting
Department's own regulations. Morrison and Morrison, Inc. v. Secretary of Labor of U. S., C.A.10 (Colo.) 1980, 626 F.2d
771.
Under Board of Immigration Appeals decisions, dependence on support of others militates against exemption from labor
certification. Wang v. Immigration and Naturalization Service, C.A.9 1979, 602 F.2d 211.
Availability of one worker to fill subject position is sufficient to support denial of alien labor certificate. Stenographic
Machines, Inc. v. Regional Administrator for Employment and Training, C.A.7 (Ill.) 1978, 577 F.2d 521.
Where employer, seeking alien labor certificate, did not question adequacy of procedures used by state employment agency
in determining that there were American workers available to fill subject position, as distinguished from accuracy of
information developed by those procedures, and employer refused to place a job bank order with the agency, such facts were
sufficient to support denial of a certificate. Stenographic Machines, Inc. v. Regional Administrator for Employment and
Training, C.A.7 (Ill.) 1978, 577 F.2d 521.
Order of Regional Director for Manpower of the Department of Labor denying alien labor certificate was required to be
sustained unless arbitrary, capricious, abuse of discretion or otherwise not in accordance with law. Stenographic Machines,
Inc. v. Regional Administrator for Employment and Training, C.A.7 (Ill.) 1978, 577 F.2d 521.
Where Secretary of Labor fully discharged his responsibility to locate class of workers who, while possibly not meeting
prospective employers' personalized job description did provide employers with potential for getting job accomplished, and
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aliens and prospective employers failed to demonstrate that it was not possible for employers to find qualified American
workers, Secretary of Labor did not abuse his discretion in denying requests for certification that qualified American workers
were not available for positions in question. Doraiswamy v. Secretary of Labor, C.A.D.C.1976, 555 F.2d 832, 180
U.S.App.D.C. 360.
Reasoning of the Secretary of Labor in denying labor certification of an alien to act as interpreter at acupuncture center that
employer's requirement of familiarity with acupuncture terminology and technique was too restrictive since acquisition of
specific technical jargon is a normal part of on-the-job training received on any job was not irrational. Acupuncture Center of
Washington v. Dunlop, C.A.D.C.1976, 543 F.2d 852, 177 U.S.App.D.C. 367, certiorari denied 97 S.Ct. 62, 429 U.S. 818, 50
L.Ed.2d 78.
Denial of labor certification for alien to work as senior interpreter, bookkeeper, and administrator at acupuncture center
was not an abuse of discretion despite contentions that specific alien's ability to speak three Chinese dialects was necessary
for translation between patients and various practitioners. Acupuncture Center of Washington v. Dunlop, C.A.D.C.1976, 543
F.2d 852, 177 U.S.App.D.C. 367, certiorari denied 97 S.Ct. 62, 429 U.S. 818, 50 L.Ed.2d 78.
To reverse Labor Secretary's denial of a labor certification to an alien, it is necessary that the denial be arbitrary,
capricious, an abuse of discretion or otherwise not in accordance with the law. Shuk Yee Chan v. Regional Manpower Adm'r
of U. S. Dept. of Labor, C.A.7 (Ill.) 1975, 521 F.2d 592.
Regional Manpower Administrator abused his discretion in denying alien's application for labor certification when he
based his decision on information from the Illinois State Employment Service to effect that there were people available for
social worker occupation for which alien sought certification without any showing that the persons listed as available for the
occupation of social worker were actually able, willing, or qualified and available to perform the labor which formed basis of
alien's application for certification. Shuk Yee Chan v. Regional Manpower Adm'r of U. S. Dept. of Labor, C.A.7 (Ill.) 1975,
521 F.2d 592.
Labor Secretary's denial of labor certification to an alien is an abuse of discretion when it is denied on basis of evidence
which is not sufficient or reliable enough to support such a finding. Shuk Yee Chan v. Regional Manpower Adm'r of U. S.
Dept. of Labor, C.A.7 (Ill.) 1975, 521 F.2d 592.
Immigration and Naturalization Service may deny immigrant visa if it determines that applicant does not meet the
substantive qualifications for the preference qualification desired, even if the Department of Labor has issued a labor
certification. Chi-Feng Chang v. Thornburgh, N.D.Tex.1989, 719 F.Supp. 532.
Employer, who did not conduct systematic recruitmentof available domestic workers, failed to establish that there were no
United States workers able, willing, and qualified to act as president of employer and that employer had right to labor
certification for alien to act as president of employer. Imperial Textiles, Inc. v. Secretary of Labor, N.D.Ill.1986, 642 F.Supp.
1041.
Failure of employer to join with alien in seeking administrative review alone was sufficient to uphold the refusal by the
Secretary of Labor to certify employer's request that alien be permitted to hold a permanent position as a precision machine
tool operator. Sieminski v. Donovan, N.D.Ill.1984, 589 F.Supp. 790.
Denial of certification to alien who was professional food chemist was not supported by finding that there were nine food
chemists in nation as whole, without justification for conclusion that employment in New York State was uncalled for or
would necessarily affect conditions of employment of others. Mukadam v. U. S. Dept. of Labor, Employment and Training
Administration, Region II, S.D.N.Y.1978, 458 F.Supp. 164.
Under government guidelines, procedures for appeal were to be distinctly different from those governing reconsideration
by reviewing officer in Department of Labor, and where alien denied certification did not seek reconsideration but rather
appealed, errors in decision of certifying officer were not remedied by acts of reviewing officer who conducted telephone
inquiries in particular area and concluded that there were sufficient workers in field in that area to preclude certification of
alien. Mukadam v. U. S. Dept. of Labor, Employment and Training Administration, Region II, S.D.N.Y.1978, 458 F.Supp.
164.
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Absent showing that American stenographers listed by state employment service were in fact qualified, were still available
for employment, and were willing to work for employer engaged in placing secretaries in various business offices on
temporary basis, denial of employment certification to certain alien stenographers who sought entry into the United States
could not be sustained. First Girl, Inc. v. Regional Manpower Adm'r of U. S. Dept. of Labor, N.D.Ill.1973, 361 F.Supp. 1339,
Secretaries employed by corporation engaged in placing secretaries in various business offices on temporary basis and
secretaries employed by class of ordinary employers of secretaries were not "similarly employed"; accordingly, failure of
former employer to provide fringe benefits comparable to those afforded by latter class of employers would not adversely
affect working conditions of the United States workers "similarly employed" and such failure could not justify denial of
employment certification to alien stenographers. First Girl, Inc. v. Regional Manpower Adm'r of U. S. Dept. of Labor,
N.D.Ill.1973, 361 F.Supp. 1339, affirmed 499 F.2d 122.
Denial of employment certification to alien applicant on ground that wages offered him as automobile mechanic were less
than "prevailing wage" in area as established by labor department was abuse of discretion where wage offered applicant was
union-negotiated and equivalent to his coworkers' salaries. Ozbirman v. Regional Manpower Adm'r, U. S. Dept. of Labor,
S.D.N.Y.1971, 335 F.Supp. 467.
160. ---- Exemption from certification, laborers, classes subject to exclusion
Alien seeking an exemption from labor certification has the burden of proving his or her entitlement to the exemption;
alien's proof must be unambiguous and any doubts should be resolved against the applicant. Rao v. Immigration &
Although alien was validly married under Oklahoma law to a United States citizen at time of her entry into the United
States, her marriage was to be deemed invalid at time of her entry into the United States under section 1251 of this title, and
thus alien was not exempt from requirement that she either secure a labor certificate or refrain from working in the United
States. Skelly v. Immigration and Naturalization Service, C.A.10 1980, 630 F.2d 1375.
Grant of exemption from labor certification should not impair or sacrifice objective of protecting American job market
from alien competition. Wang v. Immigration and Naturalization Service, C.A.9 1979, 602 F.2d 211.
Factors bearing on possibility or likelihood of alien's entry into labor market are a proper subject of inquiry in granting a
labor certificate exemption; such factors include extent of applicant's financial resources, whether resources are sufficient for
applicant's reasonable needs, how secure or assured resources are, and applicant's employment contentions and skills. Wang
Action by precertified aliens challenging Secretary of Labor's directive suspending "Precertification List" exempting aliens
engaged in listed occupations and destined for listed geographic areas for showing a specific job offer at time of application
for visa, on ground that directive did not comply with publication requirements of Administrative Procedure Act, section 552
of Title 5, was not rendered moot on ground that certification on admission is still required and that since issuing directive
Secretary had determined that admission of plaintiff-aliens would affect the American labor market where there was no
showing that had prior notice been given there would have been no adverse comment or information causing Secretary to
recall directive and plaintiffs' priority position on visa application approval list would have been reached between date of
expiration of their precertifications under savings clause of directive and 30 days after actual publication. Lewis-Mota v.
Secretary of Labor, C.A.2 (N.Y.) 1972, 469 F.2d 478.
Since directive of Secretary of Labor suspending "Precertification List" exempting aliens engaged in listed occupations and
destined for listed geographic areas from showing of specific job offer at time of application for visa changed existing rights
and obligations by requiring certified aliens to submit proof of specific job offers as well as a statement of their
qualifications, and thereby made it more difficult for employers to fill vacancies in occupations previously precertified, notice
and opportunity for public comment should have been first provided in accordance with rule-making requirement of
Administrative Procedure Act, section 553 of Title 5; adoption of directive without first publishing in Federal Register
violated section 551 et seq. of Title 5, notwithstanding Secretary's labeling his action as announcement of a general
statement, within meaning of exception to publication requirement. Lewis-Mota v. Secretary of Labor, C.A.2 (N.Y.) 1972,
469 F.2d 478.
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Alien who had come to United States as student was not eligible for adjustment of status or exempt from requirement of
labor certificate by virtue of his intention to engage in business of sweeping parking lots and his making of down payment of
$250 on the purchase price of $1,000 industrial sweeper, where purchase agreement was to become final only if adjustment
of status was granted and alien had no business, no customers, and no prospects. Talanoa v. Immigration and Naturalization
Service, C.A.9 (Cal.) 1970, 427 F.2d 1143.
Regulation exempting from requirements of labor certificate an alien who will engage in commercial or agricultural
enterprise in which he has invested or is actively in process of investing substantial amount of capital did not exceed
permissible scope of regulation based on this section. Talanoa v. Immigration and Naturalization Service, C.A.9 (Cal.) 1970,
427 F.2d 1143.
161. ---- Investor exemption, laborers, classes subject to exclusion
Board of Immigration Appeals did not abuse its discretion in finding that aliens were not entitled to an investor exemption.
Perwolf v. I.N.S., C.A.8 1984, 741 F.2d 1109.
Where alien who was applying for investor status sold restaurant in which he had invested and, about one month after sale,
reinvested proceeds, if alien was required to file new application for investor status, his investment was facially inadequate
when it did not meet the investor regulations in effect at time of second filing. Mawji v. Immigration and Naturalization
Service, C.A.9 1982, 671 F.2d 342.
Board of Immigration Appeals must determine whether alien has reinvested or is in process of reinvesting in enterprise in
which he intends to engage and for which he has requisite experience or training, but regulation should not be read to lock
alien into his original investment or to foreclose alien from improving or changing his original investment and conducting his
affairs in reasonable manner to effect reinvestment, but in so doing he must continue to evince by his conduct an intent to
comply with purposes of statute and regulation. Mawji v. Immigration and Naturalization Service, C.A.9 1982, 671 F.2d 342.
Evidence that partnership agreement which called for alien to invest $10,500 did not set a deadline as to when he was to
invest his capital, that the alien could get out of his commitment at any time that he so chose, and that he only paid the
balance of the amount into the partnership after his original request for permanent status was denied sustained determination
that alien did not meet the investor exemption from the labor certification. Rao v. Immigration & Naturalization Service,
C.A.5 1982, 671 F.2d 116.
Where alien had made substantial investments in business for advertising and solicitation of sales agents, had purchased
inventory and obtained licenses to operate in several cities, and had employed secretary and part-time bookkeeper, there was
indication of continuing investment pattern and Board was required to consider postapplication investments in determining
whether alien had invested requisite sum for investor status. Gill v. Immigration and Naturalization Service, C.A.9 1982, 666
F.2d 390.
Alien was not entitled to be exempt from labor certification requirement by virtue of her investment in commercial
enterprise where she had not made required $10,000 investment. Chudshevid v. Immigration & Naturalization Service, C.A.9
1981, 641 F.2d 780.
Court must accept Immigration and Naturalization Service determination that alien's investment is less than the $10,000
minimum for exemption from the labor certification if the determination is supported by substantial evidence. Hirunpidok v.
Professional optometrist intending to practice his profession in United States was not entitled to qualify as business
investor and thereby avoid labor certification requirement. Yiu Tsang Cheung v. District Director, Immigration and
Naturalization Service, C.A.9 (Cal.) 1980, 641 F.2d 666.
Since implicit assumption of Immigration and Naturalization Service is that case law interpretation of an administrative
regulation is as valid as administrative rule making even when the interpretation effects a substantial change in applicable
standards, such logically requires that the Ko precept that a request for investor exemption from labor certification
requirement filed prior to change in governing regulation may be decided under either current or previous regulation,
whichever is more favorable to the alien, apply to case law precedent as well as to the investor regulation itself. Pistentis v.
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Since Board of Immigration Appeals' Ruangswang decision, which purported to restate the Heitland test for investor status,
was read to be a substantial change in immigration board case law, Board's application of Ruangswang's standards to an
application for investor status filed almost six months prior to that decision was improper. Pistentis v. Immigration and
Whether alien had established the requisite $10,000 investment should have been made at threshold of proceeding seeking
change in status from nonimmigrant student to investor. Pistentis v. Immigration and Naturalization Service, C.A.3 1979, 611
F.2d 483.
Alien who purchased on-going one-man retail operation which barely supported him above poverty line and which
employed none of existing domestic work force was not entitled to investor exemption from labor certification requirement.
Mehta v. Immigration and Naturalization Service, C.A.2 1978, 574 F.2d 701.
Alien by investing in delivery business did not qualify for the "investor" exemption from requirement that alien obtain
labor certification where alien's cash outlay for vehicles used in his delivery service totaled $953.97, plus bank loans
amounting to $4,772.70, and most of alien's business was obtained not from new sources but from company which was
engaged in the delivery business. Heitland v. Immigration and Naturalization Service, C.A.2 1977, 551 F.2d 495, certiorari
162. ---- Job qualifications, laborers, classes subject to exclusion
Employer filing application for alien employment certification on behalf of current alien employee cannot define job so
narrowly that only current alien employee can meet stated job requirements; hence, it is within discretion of Secretary of
Labor to determine that certain listed job requirements or duties are unduly restrictive or irrelevant to basic job which
employer desires to be performed. Ashbrook-Simon-Hartley v. McLaughlin, C.A.5 (Tex.) 1989, 863 F.2d 410.
Employer has right to set reasonable job qualifications for prospective employees. Montessori Children's House and
School, Inc. v. Secretary of Labor of U. S., N.D.Tex.1977, 443 F.Supp. 599.
To successfully challenge employment qualification on the ground that it is too restrictiveand unduly eliminates American
workers, Secretary of Labor must demonstrate that prospective employer is attempting to tailor his requirements to exclude
all but alien seeking employment certification or that employer's specific requirements are irrelevant to performance of job or
that there is unreasonableness on employer's part in establishing particular requirements set up for job. Montessori Children's
House and School, Inc. v. Secretary of Labor of U. S., N.D.Tex.1977, 443 F.Supp. 599.
Experience gained by alien, who sought an alien employment certification, during his part-time work with corporation,
should be considered in determining his qualifications for the experience required for the subject position. Xytex Corp. v.
Schliemann, D.C.Colo.1974, 382 F.Supp. 50.
163. ---- Reasonableness of job qualifications, laborers, classes subject to exclusion
Plaintiff, an importer and vendor of quality oriental rugs who was seeking an experienced buyer, failed to carry its burden
of proving that the particular position which it was seeking to fill had necessary business requirements which were greater
than those set forth in Dictionary of Occupational Titles and therefore a decision of Department of Labor denying plaintiff an
alien labor certification was not arbitrary or capricious. Oriental Rug Importers, Ltd. v. Employment and Training Admin.,
C.A.6 (Ohio) 1982, 696 F.2d 47.
Montessori school's hiring requirement that teacher have two years of Montessori training and two years of teaching
experience in Montessori method was reasonable and thus could not be disregarded in determining whether to grant
employment certification for alien teacher. Montessori Children's House and School, Inc. v. Secretary of Labor of U. S.,
N.D.Tex.1977, 443 F.Supp. 599.
164. ---- Power of Secretary, laborers, classes subject to exclusion
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Regulation requiring employer to have unsuccessfully advertised job opportunity in order for application for permanent
alien labor certification to be granted constituted valid exercise of Secretary of Labor's inherent authority to promulgate rules
governing administration of this section excluding aliens from admission to United States for purpose of performing skilled
or unskilled labor unless Secretary has determined unavailability of sufficient qualified workers and that employment of such
aliens would not adversely affect wages and working conditions of similarly employed workers in United States. Production
Tool Corp. v. Employment and Training Admin., U.S. Dept. of Labor, C.A.7 (Ill.) 1982, 688 F.2d 1161.
It is within the discretion of the Secretary of Labor, in determining whether to grant an alien labor certification, to ignore
employer specifications which he deems, in accordance with his labor market expertise, to be irrelevant to the basic job
which the employer desires performed. Acupuncture Center of Washington v. Dunlop, C.A.D.C.1976, 543 F.2d 852, 177
165. ---- Position certified, laborers, classes subject to exclusion
Nonimmigrant alien required to comply with labor certification requirements will be denied opportunity to renew previous
application if labor certification issued in conjunction with original application is no longer valid, because of complete
termination of employment at time application is acted on at deportation proceedings; however, labor certification remains
valid provided that at deportation hearing the certified employer and the alien intend that the latter will be employed in the
job upon which the labor certification is based. Pei-Chi Tien v. Immigration and Naturalization Service, C.A.5 1981, 638
F.2d 1324.
Although alien may have had a valid certificate for a job in Washington, D.C., where evidence in deportation proceedings
showed that he did not intend to take that job, he therefore entered to do uncertified labor, and a decision that he was
deportable in no way impugned Secretary of Labor's decision to certify him for work in Washington; accordingly,
Immigration and Naturalization Service was not required to prove that fraud or willful misrepresentation was used to procure
certificate because validity of certificate was not at issue. Spyropoulos v. Immigration and Naturalization Service, C.A.1
1978, 590 F.2d 1.
An alien who enters the United States with a good-faith intent to accept his certified employment is not deportable simply
because it turns out that the particular job is no longer available, or his employer suggests he look elsewhere, or even if he
leaves the certified job after only a short time because of dissatisfaction with working conditions or wages. CastanedaGonzalez v. Immigration and Naturalization Service, C.A.D.C.1977, 564 F.2d 417, 183 U.S.App.D.C. 396.
Alien immigrant's labor certificate was not automatically invalidated because he did not in fact take up the specific job for
which it had been issued. Castaneda-Gonzalez v. Immigration and Naturalization Service, C.A.D.C.1977, 564 F.2d 417, 183
U.S.App.D.C. 396.
166. ---- Skilled laborers, classes subject to exclusion
District court had subject-matter jurisdiction over suit challenging certain internal guidelines promulgated by Immigration
and Naturalization Service for determining when aliens may enter United States to perform work and seeking injunctive
relief prohibiting continued application of those guidelines by the Department of Justice and State Department. International
Union of Bricklayers and Allied Craftsmen v. Meese, C.A.D.C.1985, 761 F.2d 798, 245 U.S.App.D.C. 395.
Decision of Department of Labor reviewing officer refusing to certify lack of sufficient American workers available to fill
position of labor lawyer, sought by alien, would be remanded for reconsideration in view of failure on part of reviewing
officer to respond to statutory requisite that there not be available American workers in geographic area where alien sought
employment and in view of failure of record to contain evidence that attorneys with specialized knowledge of labor law were
available in such area. Ramani v. Secretary of Labor, S.D.Fla.1976, 430 F.Supp. 298.
Ordinary laborers, commonly employed in railroad track construction and maintenance, were not "skilled" laborers within
meaning of similar section of earlier Act and could not be imported into this country under contract in any event. 1906, 26
Op.Atty.Gen. 42.
167. ---- Limited employment, laborers, classes subject to exclusion
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Clerk of foreign steamship company, temporarily transferred to its New York branch office, later to be sent by company to
its branch office in Dutch Guiana, was not contract laborer within meaning of former 136 of this title. U.S. v. Royal Dutch
West India Mail, S.D.N.Y.1918, 250 F. 913.
168. ---- Prerequisites for certification, laborers, classes subject to exclusion
Decisions and regulations of Board of Alien Labor Certification Appeals requiring employer applying for alien
employment certification to show that good faith effort has been made to recruit United States workers for the position and
that no United States worker has been rejected for reasons unrelated to the job are consistent with Immigration and
Nationality Act and reasonably related to its enforcement. Warmtex Enterprises v. Martin, C.A.9 (Cal.) 1992, 953 F.2d 1133.
Where regulatory requirement for grant of permanent alien labor certification that employer have unsuccessfully advertised
job opportunity was valid rule, Secretary of Labor had to be permitted to give effect to that rule by making substantial
compliance prerequisite to approval of application. Production Tool Corp. v. Employment and Training Admin., U.S. Dept.
of Labor, C.A.7 (Ill.) 1982, 688 F.2d 1161.
On application for permanent alien labor certification, certifying officer did not abuse his discretion in ruling that
neighborhood weekly with circulation of 92,000 in limited area of city was not "newspaper of general circulation" within
meaning of regulation requiring, for grant of certification, that employer have unsuccessfully advertised job opportunity "in
such media as newspaper of general circulation," where job opportunity was centrally located in city, it was thus entirely
reasonable for Secretary of Labor to require advertisement for such job to be run in one of two major newspapers circulating
in entire metropolitan area, and question of what constituted relevant labor market fell squarely within Secretary's realm of
expertise. Production Tool Corp. v. Employment and Training Admin., U.S. Dept. of Labor, C.A.7 (Ill.) 1982, 688 F.2d
1161.
169. ---- Competition with domestic workers, laborers, classes subject to exclusion
This section relating to certification of aliens to enter United States as aliens seeking to perform skilled or unskilled labor
sets up presumption that aliens should not be permitted to enter for purpose of performing labor because of likely harmful
impact of their admission on American workers. Pesikoff v. Secretary of Labor, C.A.D.C.1974, 501 F.2d 757, 163
Even if court could assume that there were qualified American teachers available to teach in Montessori schools, there was
no basis to conclude that any of them would be willing to teach in the particular school systems which had offered jobs to
aliens so that assumption would provide no basis for denial of labor certification to two alien Montessori teachers. Ratnayake
v. Mack, C.A.8 (Minn.) 1974, 499 F.2d 1207.
Two lithographic artists, who came to United States in pursuance of contract of employment entered into with American
Lithographic Company of New York, their passage being prepaid by that company, and who had been excluded upon ground
that their admission would be in violation of Acts Feb. 26, 1885, 23 Stat. 332, and Mar. 3, 1903, 32 Stat. 1213, relating to
contract labor, should have been admitted, it being shown beyond reasonable doubt that there was not sufficient number of
lithographic artists in country to meet demands of business. 1907, 26 Op.Atty.Gen. 284.
As claim of natives of Philippine Islands for admission appeared meritorious, and no possible competition with American
labor would be involved, and as they would be returned to their country in due time, there was no conclusive objection to
exercise by Secretary of Treasury of his administrative discretion favorably in admitting them. 1899, 22 Op.Atty.Gen. 495.
170. ---- Shortage of local labor, laborers, classes subject to exclusion
This section providing that aliens seeking to enter United States, for the purpose of performing skilled or unskilled labor,
shall be excluded from admission unless Secretary of Labor has determined unavailability of sufficient qualified workers and
that employment of aliens will not adversely affect wages and working conditions of similarly employed workers in United
States vests Secretary of Labor with substantial discretion to receive and grant or deny applications for labor certification.
Production Tool Corp. v. Employment and Training Admin., U.S. Dept. of Labor, C.A.7 (Ill.) 1982, 688 F.2d 1161.
Where this section excluding aliens from admission to United States for purpose of performing skilled or unskilled labor
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unless Secretary of Labor has determined unavailability of sufficient qualified workers and that employment of aliens will
not adversely affect wages and working conditions of similarly employed workers in United States did not specify procedures
to be followed or standards to be applied, it could reasonably be assumed that Congress contemplated that Secretary would
issue regulations filling in essential details. Production Tool Corp. v. Employment and Training Admin., U.S. Dept. of Labor,
C.A.7 (Ill.) 1982, 688 F.2d 1161.
Although record did not show reliability of state employment service's information that qualified American workers were
available for position for which alien labor certificate was sought, order denying certificate would not be set aside where
employer did not question reliability of procedures used by the agency, as distinguished from statement that such workers
were available, information from local union corroborated agency's data and on being notified of available American workers
the employer did not submit a job bank order. Stenographic Machines, Inc. v. Regional Administrator for Employment and
Training, C.A.7 (Ill.) 1978, 577 F.2d 521.
Regional Director of Manpower of the Department of Labor was not required to identify American workers available for
job for which alien worker certificate was sought, at least where no issue was made as to procedures used by state
employment agency in gathering and maintaining its data and where employer refused to submit a job bank application.
Stenographic Machines, Inc. v. Regional Administrator for Employment and Training, C.A.7 (Ill.) 1978, 577 F.2d 521.
Refusal to issue labor certification in favor of alien who agreed to work as live-in main at physician's home, based on
availability of American day workers, was arbitrary, where job specifications for position required more than daytime
employment and required domestic to live-in to fulfill physician's wife need to have adult present during physician's evening
and early morning absence and where kind of domestic help desired was not available from local labor sources. Silva v.
Secretary of Labor, C.A.1 (Mass.) 1975, 518 F.2d 301.
In determining whether to grant labor certification to aliens on ground that there are no American workers willing and able
to be employed, job requirements of the employer are not to be set aside if there is shown to be a reasonable intent to
contribute to or enhance the efficiency and quality of the business. Ratnayake v. Mack, C.A.8 (Minn.) 1974, 499 F.2d 1207.
In alien employment certification proceedings, names of unemployed persons presently claimed bySecretary of Labor to be
available were not irrelevant; plaintiff employers should be permitted to show that, whatever situation was earlier, no workers
were presently available. Secretary of Labor of U. S. v. Farino, C.A.7 (Ill.) 1973, 490 F.2d 885.
Under Act of 1885, exempting skilled workmen engaged upon new industry, manufacture of fine lace curtains not begun
before McKinley Tariff Law of 1890, and according to testimony not firmly established at time of trial of one indicted on
charge of importing contract labor contrary to law, was new industry. U S v. Bromiley, E.D.Pa.1893, 58 F. 554.
Where defendants contracted with resident of France to come to this country and work for them in manufacture of "French
silk stockings" which were shown to be articles materially different from ordinary silk stocking, and it was shown that there
had been manufactured here stockings with feet same as those of "French silk stockings" but with different legs and made by
different machines, manufacture of complete "French silk stockings" was new industry, within exemption of Act of 1885, c.
164, imposing penalty on importation of contract labor. U.S. v. McCallum, C.C.Mass.1891, 44 F. 745.
Where machines for manufacture of "French silk stockings" were already in use in this country for knitting feet of
stockings and evidence indicated that skillful workman might learn to run them in few weeks, and where defendants showed
that their machines stood idle until they imported Frenchman in question, and that they had advertised for men to run them
but had failed to find any that were competent, evidence did not disclose such efforts on defendants' part as to show necessity
to resort to foreign workmen, and they were liable for penalty. U.S. v. McCallum, C.C.Mass.1891, 44 F. 745.
Evidence that there was a surplus of unemployed American teachers in locality of Montessori school did not establish that
there were American workers who had similar qualifications as alien teacher and who were potentially available for job with
school or that available American workers were as qualified as alien so as to preclude issuance of employment certification
for alien teacher. Montessori Children's House and School, Inc. v. Secretary of Labor of U. S., N.D.Tex.1977, 443 F.Supp.
599.
Any showing of available qualified domestic workers able to perform designated job must be made from personnel in area
in which alien applicant intends to reside if alien employment certification is to be denied on ground of availability of
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domestic workers. Montessori Children's House and School, Inc. v. Secretary of Labor of U. S., N.D.Tex.1977, 443 F.Supp.
599.
In an alien employment certification case, it is a prerequisite before reaching question of whether domestic workers are
qualified for job alien seeks to determine what job is at issue and what qualifications are necessary for job. Montessori
Children's House and School, Inc. v. Secretary of Labor of U. S., N.D.Tex.1977, 443 F.Supp. 599.
Regional Manpower Administrator did not err, in visa certification case, in considering information about American
workers outside of city in which aliens wished to work. Parikh v. Regional Manpower Administrator of U. S. Dept. of Labor,
N.D.Ill.1976, 431 F.Supp. 38.
Refusal to certify male alien for immigration for purpose of being employed as cosmetologist in beauty salon owned by
prospective employer who admitted that she could hire female operator to perform job but who sought to hire alien because
many beauty salon customers preferred male cosmetologist was not an abuse of discretion. Witt v. Secretary of Labor,
D.C.Me.1975, 397 F.Supp. 673.
171. ---- Accountants, laborers, classes subject to exclusion
Assistant accountant brought into this country by foreign bank for purpose of employment in branch bank here was not
"laborer" within meaning of former 136 of this title. U.S. v. Union Bank of Canada, C.C.A.2 (N.Y.) 1919, 262 F. 91.
Under earlier Acts, aliens imported under contract, who were expert accountants, were not members of recognized learned
profession within terms of exception and were therefore not entitled to entry. In re Ellis, C.C.S.D.N.Y.1903, 124 F. 637,
appeal dismissed 25 S.Ct. 795, 196 U.S. 643, 49 L.Ed. 632, appeal dismissed 26 S.Ct. 753, 200 U.S. 623, 50 L.Ed. 625. See,
also, In re Charalambis, C.C.N.Y.1903, 124 F. 637, appeal dismissed 25 S.Ct. 795, 196 U.S. 643, 49 L.Ed. 632.
172. ---- Domestics, laborers, classes subject to exclusion
Worker who is not able and willing to enter into contract of employment upon United States conditions is not "available"
domestic worker for purpose of determining number of alien workers needed for certain migrant agricultural work; Puerto
Rican workers were thus not "available" domestic workers in view of special conditions imposed on their employment in
United States by Puerto Rican law. Hernandez Flecha v. Quiros, C.A.1 (Puerto Rico) 1977, 567 F.2d 1154, certiorari denied
98 S.Ct. 2846, 436 U.S. 945, 56 L.Ed.2d 786.
Fact that prospective employer informed Secretary of Labor that it had been unsuccessful in efforts to locate a suitable
domestic employee for the job in question was insufficient to establish that Secretary's denial of alien labor certification to
perform the job was an abuse of discretion. Acupuncture Center of Washington v. Dunlop, C.A.D.C.1976, 543 F.2d 852, 177
Even though employment contract set forth specific daytime employment hours and allowed domestic to leave premises at
will, where contract required domestic to live on premises and required more than daytime employment, live-in domestic
could not be considered the same as day worker for purposes of determining if labor certification in favor of alien who agreed
to work as live-in domestic could be refused on ground of availability of American Workers. Silva v. Secretary of Labor,
C.A.1 (Mass.) 1975, 518 F.2d 301.
If report of State Employment Service that maids were available stood unimpeached, court could not conclude that refusal
to certify alien worker for admission as alien seeking to perform skilled or unskilled labor was arbitrary, capricious and abuse
of discretion or otherwise not in accordance with law. Pesikoff v. Secretary of Labor, C.A.D.C.1974, 501 F.2d 757, 163
173. ---- Cosmetologists, laborers, classes subject to exclusion
Prospective employer's admission that she was only interested in hiring a male cosmetologist and that if it were only a
question of employing another hairdresser she could hire one from pool of unemployed female operators immediately was
sufficient to establish that the three female cosmetologists who were available in the area were "able" and "willing" to work
for employer, for purposes of determining whether refusal to certify male alien to be employed as cosmetologist was an abuse
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of discretion. Witt v. Secretary of Labor, D.C.Me.1975, 397 F.Supp. 673.

174. ---- Executives, superintendents, etc., laborers, classes subject to exclusion
Skilled machinist serving as assistant superintendent of large factory was not laborer. McCandless v. U S ex rel Rocker,
C.C.A.3 (Pa.) 1929, 30 F.2d 652.
Alien induced to come to United States by promise of employment as superintendent of lumbering company, conditioned
that he must be competent woodsman, logger, and mill man, and must be first-class mechanic, did not come within
provisions of Immigration Act of 1907, provided agreement did not require him to perform manual labor. 1909, 27
Op.Atty.Gen. 383.
175. ---- Merchants, laborers, classes subject to exclusion
In order to be admissible as merchant, alien must be actually merchant--owner of business--not merely salesman, manager,
or other employee; and his status as merchant must exist at time of his application for admission. "The confounding of
occupations--that of salesman or manager with that of merchant-- cannot be accepted. A merchant is the owner of the
business; a salesman or manager, a servant of it; and especially so under the Immigration Law. The policy of the law must be
kept in mind. It is careful to distinguish between the status of a merchant and those below that status. A merchant is fixed in it
and made constant to it by his financial interest; a salesman or manager is but an employee, however else he may be
denominated, and may withdraw from his employment at any moment of time and become a competitor in the ranks of labor,
using the word in the sense the law implies. So particular is the law in regard to its distinctions and policy that if a merchant
descends from his status, he shall be 'deemed to be within the United States contrary to law, and shall be subject to
deportation.' " Tulsidas v. Insular Collector of Customs, U.S.Phil.Islands 1923, 43 S.Ct. 586, 262 U.S. 258, 67 L.Ed. 969.
176. ---- Professional persons, laborers, classes subject to exclusion
Foreigner under contract to come to United States to work as chemist on sugar plantation was person belonging to
recognized profession within meaning of Act March 3, 1891, excepting such persons from operation of Act Feb. 26, 1885,
prohibiting importation of aliens under contract to perform labor. U.S. v. Laws, U.S.Ohio 1896, 16 S.Ct. 998, 163 U.S. 258,
41 L.Ed. 151.
Alien educated in technical school as marine engineer, and trained and experienced in designing of marine steam turbines,
who was induced to come to United States to enter employment of shipbuilding company, where he was made "class A
draftsman," whose duty it was to design machinery for vessels to conform to general plans and specifications for particular
vessel, and to direct work of draftsmen under him, was person "belonging to a recognized learned profession" within
exception in former 136 of this title and not subject to deportation as contract laborer. Aird, ex parte, E.D.Pa.1921, 276 F.
954.
177. ---- Professors, teachers, etc., laborers, classes subject to exclusion
Fact that there is a surplusage of unemployed and underemployed American teachers in the United States and that there
were 22 elementary school teachers available for work in area in which Montessori schools were located did not justify
denial of labor certification to alien Montessori teachers of preschool age children where evidence established significant
dissimilarities between Montessori approach to education and traditional method of education and where American teachers
did not have Montessori certification. Ratnayake v. Mack, C.A.8 (Minn.) 1974, 499 F.2d 1207.
Requirement of Montessori school that teachers have undergone extensive and lengthy program and have received
certification was not so unreasonable as to allow Secretary of Labor to disregard the requirement in determining whether to
grant labor certification for alien teachers, even though the training often extended for as long as two years. Ratnayake v.
Mack, C.A.8 (Minn.) 1974, 499 F.2d 1207.
Requirement of Montessori school which sought labor certification for alien teachers, that teachers be certified by one
particular Montessori institute was unreasonable to the extent that the schools disregarded other applicants with comparable
or superior training. Ratnayake v. Mack, C.A.8 (Minn.) 1974, 499 F.2d 1207.
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Alien seeking admission into this country for purpose of teaching Japanese language was not "laborer" within meaning of
former 136 of this title and could not be excluded as such. "We are of the opinion that in view of the purpose of the
legislation here in question as declared by the Supreme Court in the cases that have been cited it cannot be held to apply to an
alien who seeks to enter this country for the purpose of teaching 'the Japanese language, history, geography, and arithmetic,'
first, because the doing so is not to perform labor in this country within the meaning of the Act of February 5, 1917; and,
secondly, because a teacher of the Japanese language, history, geography, and arithmetic may be properly regarded as
belonging to a 'reconized learned profession.' " Tatsukichi Kuwabara v. U.S., C.C.A.9 (Hawai'i) 1919, 260 F. 104, 171
C.C.A. 140.
Evidence that there were no available Montessori kindergarten school teachers with minimum qualifications required by
Montessori school at time it made application for employment certification for alien teacher who met qualifications rebutted
alleged showing of availability of qualified American workers, for purpose of determining if employment certification should
be granted for alien teacher. Montessori Children's House and School, Inc. v. Secretary of Labor of U. S., N.D.Tex.1977, 443
F.Supp. 599.
Denial of employment certification for alien teacher to work in Montessori school on ground that there were Montessori
teachers in the United States who might possibly relocate to city where school was located was an abuse of discretion.
Montessori Children's House and School, Inc. v. Secretary of Labor of U. S., N.D.Tex.1977, 443 F.Supp. 599.
Secretary of Labor's recitation of three sources in area for Montessori instructors from which Montessori school had not
attempted to recruit before offering teaching job to alien failed to show qualified American workers available to perform
teaching job offered by school and to show any American workers available to perform regardless of their qualifications and
thus could not be basis for denial of employment certification for alien teacher. Montessori Children's House and School, Inc.
v. Secretary of Labor of U. S., N.D.Tex.1977, 443 F.Supp. 599.
Fact that there were 14 students who had completed minimum training in Montessori program offered by particular school
did not establish availability of American workers to perform teaching job offered alien by Montessori school so as to
warrant denial of alien labor certification, where such students did not meet school's hiring requirement of two years' teaching
experience in Montessori method and there was no showing of their availability to perform job offered alien. Montessori
Children's House and School, Inc. v. Secretary of Labor of U. S., N.D.Tex.1977, 443 F.Supp. 599.
Denial of labor certification as secondary school teacher to alien on ground that available job market information would not
warrant certification of unavailability of United States workers at prevailing wage in area in which position was located was
improper where, although administrator's investigation revealed that qualified job applicants were available, there was
nothing to indicate that anyone other than petitioner was interested in the vacancy. Golabek v. Regional Manpower
Administration, U. S. Dept. of Labor, E.D.Pa.1971, 329 F.Supp. 892.
Denial of labor certification as parochial secondary school teacher to alien on ground that the $5,800 annual salary she was
to be paid constituted substandard wages which would have adverse effect on United States labor was abuse of discretion,
where such wage was exactly that which other lay teachers employed would receive, lay teachers were paid pursuant to
contract agreed to by archdiocese, and union and difference in salary between public and parochial school teachers at time
suit was instituted was only $900. Golabek v. Regional Manpower Administration, U. S. Dept. of Labor, E.D.Pa.1971, 329
F.Supp. 892.
178. ---- Wages, laborers, classes subject to exclusion
Immigration and Naturalization Service in deciding whether to grant sixth- preference visa improperly insisted on evidence
of employer's ability to pay anything more than prevailing wage at time of application for certification by Department of
Labor; Service's inquiry was to be limited to whether employer had ability to pay wage reasonably determined to have been
prevailing wage at time of application. Masonry Masters, Inc. v. Thornburgh, C.A.D.C.1989, 875 F.2d 898, 277
U.S.App.D.C. 341, on remand 742 F.Supp. 682.
Evidence of actual income of petitioning employer was sufficient to permit Immigration and Nationality Service to
conclude that employees were not being paid the prevailing wage as certified by the employer when it sought sixth
preference status for the employees, warranting revocation of visas. Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, C.A.9
(Hawai'i) 1984, 736 F.2d 1305.
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Calculation of prevailing wage for export managers in Michigan, which was based on a survey of five Michigan employers
and an averaging of the salaries paid their export managers, was not arbitrary, capricious or an abuse of discretion
notwithstanding fact that the employers surveyed were in industries other than business engaged in by employer who sought
labor certification for an alien. Industrial Holographics, Inc. v. Donovan, C.A.7 (Ill.) 1983, 722 F.2d 1362.
In determining petitioner's ability to pay proposed wage for beneficiary of sixth preference visa, court could consider tax
return evidence of the petitioner's net losses in prior years. Chi-Feng Chang v. Thornburgh, N.D.Tex.1989, 719 F.Supp. 532.
Most appropriate standard rate of productivity, at which piece rates would be tied to rate at which Department of Labor
required growers to pay all of their farm workers before Department would allow them to import alien labor, was that in
effect year regulations governing adverse effect rate went into effect. NAACP, Jefferson County Branch v. Donovan,
D.C.D.C.1983, 566 F.Supp. 1202.
In comparing wages to determine if any adverse effect will result to American workers similarly employed by granting
alien employment certification, Secretary of Labor must compare proposed wage offer to alien with prevailing wage scale of
other employees who perform specific job applied for by alien. Montessori Children's House and School, Inc. v. Secretary of
Labor of U. S., N.D.Tex.1977, 443 F.Supp. 599.
Denial of employment certification for alien to work as teacher at Montessori school on ground that salary offered by
school to alien was below prevailing wage of workers performing similar work in area where school was located was an
abuse of discretion; Secretary of Labor should have compared wages offered by Montessori school to alien with wages of
other Montessori preschool teachers in area. Montessori Children's House and School, Inc. v. Secretary of Labor of U. S.,
N.D.Tex.1977, 443 F.Supp. 599.
Denial of employment certification for alien to work as teacher at Montessori school on ground that school was offering
alien salary below prevailing wage was error where record showed that alien would be paid prevailing wage in area where
school was located. Montessori Children's House and School, Inc. v. Secretary of Labor of U. S., N.D.Tex.1977, 443 F.Supp.
599.
179. ---- Change of status, laborers, classes subject to exclusion
Where alien obtained labor certification and applied for adjustment of status to that of permanent resident and, after
termination of certified employment he engaged in unauthorized employment, but labor certification remained in effect at
time of alien's deportation hearing, original adjustment application remained "filed" for purposes of renewal of that
application at deportation proceedings, despite alien's engaging in unauthorized employment. Pei-Chi Tien v. Immigration
When an alien learns that certified job is no longer available prior to entry, he enters without intent to take certified job; on
the other hand, when an alien reports for work and leaves certified job for a legitimate reason shortly thereafter, there is no
lack of requisite intent. Spyropoulos v. Immigration and Naturalization Service, C.A.1 1978, 590 F.2d 1.
180. ---- Self-employment, laborers, classes subject to exclusion
Alien, who was the founder and corporate president of an importing and exporting company, was not entitled to "labor
certification," which would have made him eligible for an immigrant visa authorizing permanent residence; absent genuine
employment relationship, alien fell under regulation prohibiting grant of labor certification to any alien working for himself.
Hall v. McLaughlin, C.A.D.C.1989, 864 F.2d 868, 275 U.S.App.D.C. 46.
181. ---- Standing, laborers, classes subject to exclusion
Aliens outside country have no standing to challenge determination of Secretary of Labor that their entry would adversely
affect wages and working conditions of workers in the United States. Cobb v. Murrell, C.A.5 (Tex.) 1967, 386 F.2d 947.
Employer's personal relationship with Mexican alien which he sought to import by virtue of her sensitive nursing, maid and
housekeeping talents gave employer no right to judicial review of administrative determination denying alien right to enter.
Cobb v. Murrell, C.A.5 (Tex.) 1967, 386 F.2d 947.
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Determination of Regional Administrator of Bureau of Economic Security in rejecting employer's application for permission
to bring Mexican alien into United States to perform nursing and housekeeping services that employment of alien would
adversely affect wages and working conditions of workers in United States and that sufficient workers in United States were
available for employment was final and employer lacked standing to obtain judicial review. Cobb v. Murrell, C.A.5 (Tex.)
1967, 386 F.2d 947.
182. ---- Review, laborers, classes subject to exclusion
Review of refusal of Secretary of Labor to issue alien labor certification for alien who agreed to work as live-in domestic
was limited to ground stated by Secretary, purported availability of American workers. Silva v. Secretary of Labor, C.A.1
(Mass.) 1975, 518 F.2d 301.
Although neither this title nor the regulations promulgated thereunder provided for any formal administrative hearing on
denial of application for an alien employment certification by the Regional Manpower Administration, the regulations, when
read with this section, clearly implied that the applicant was to be given an opportunity to challenge the record upon which
the initial denial was predicated, inasmuch as the applicant could not set forth the particular grounds upon which request was
based unless he knew the foundation of the denial, and the opportunity to respond was meaningless if the reviewing officer
did not have before him the applicant's response, or if he had no obligation to consider it in reaching his decision. Yong v.
Regional Manpower Adm'r, U. S. Dept. of Labor, C.A.9 (Cal.) 1975, 509 F.2d 243.
On denial of an application for an alien employment certification by the Regional Manpower Administration, the
administrative record, in whatever form the agency selects, shall adequately reveal (1) the foundation for the original denial
of certification, (2) the substance of the relevant documentary evidence and oral information, if any, presented by the
applicant in response, (3) the transmittal of that information to the reviewing officer who made the decision, and (4) the
receipt and consideration of that record by the reviewing officer before he decides. Yong v. Regional Manpower Adm'r, U. S.
Dept. of Labor, C.A.9 (Cal.) 1975, 509 F.2d 243.
Prospective employer had standing to maintain action to review decision denying certification for alien to enter United
States. Pesikoff v. Secretary of Labor, C.A.D.C.1974, 501 F.2d 757, 163 U.S.App.D.C. 197, certiorari denied 95 S.Ct. 525,
419 U.S. 1038, 42 L.Ed.2d 315.
In order to reverse denial of certification for alien to enter United States as alien seeking to perform skilled or unskilled
labor court must find that denial was arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law.
1038, 42 L.Ed.2d 315.
Fact that this chapter fails to explicitly provide for judicial review of Secretary of Labor's denial of labor certification does
not indicate that judicial review of that determination was intended to be unavailable. Ratnayake v. Mack, C.A.8 (Minn.)
1974, 499 F.2d 1207.
There is law to apply in reviewing decision of Secretary of Labor not to issue labor certification to alien, so that such
decision is judicially reviewable. Ratnayake v. Mack, C.A.8 (Minn.) 1974, 499 F.2d 1207.
Under subsec. (a)(14) of this section providing for exclusion of alien workers from United States if Secretary of Labor shall
determine and certify that sufficient workers in United States are available and employment of such aliens will adversely
affect wages and working conditions of workers in United States, purpose of certification procedure commits such action to
"agency discretion" and excludes it from coverage of provisions for judicial review under Administrative Procedure Act,
701(a)(2) of Title 5. Cobb v. Murrell, C.A.5 (Tex.) 1967, 386 F.2d 947.
Under subsec. (a)(14) of this section providing for exclusion of alien workers unless their services are determined by
Attorney General to be needed urgently in the United States, employer whose application for permission to import Mexican
alien for housekeeping services was denied forfeited any review by Attorney General when he declined to petition the
Attorney General. Cobb v. Murrell, C.A.5 (Tex.) 1967, 386 F.2d 947.
District court is empowered to make thorough review of Secretary of Labor's findings to determine whether Secretary's
denial of alien employment certification has been clear error of judgment. Montessori Children's House and School, Inc. v.
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Secretary of Labor of U. S., N.D.Tex.1977, 443 F.Supp. 599.

District court may reverse decision to deny labor certification to alien where Secretary of Labor or his delegate abuses
discretion by basing the decision on evidence neither reliable nor sufficient for the finding required by this section.
Sherwin-Williams Co. v. Regional Manpower Adm'r of U. S. Dept. of Labor, N.D.Ill.1976, 439 F.Supp. 272.
Failure of this chapter to provide for judicial review of Secretary of Labor's denial of employment certification to alien
does not bar review under the Administrative Procedure Act, sections 551 et seq. and 701 et seq. of Title 5. Hsing v. Usery,
W.D.Pa.1976, 419 F.Supp. 1066.
District court had jurisdiction to review Secretary of Labor's findings in connection with alien's application for labor
certification as live-in domestic. Jadeszko v. Brennan, E.D.Pa.1976, 418 F.Supp. 92.
Test to be applied in determining whether there had been abuse of discretion in denial of employment certification to
certain alien stenographers who sought entry into United States was whether examination of administrative record revealed
no evidence supporting decision. First Girl, Inc. v. Regional Manpower Adm'r of U. S. Dept. of Labor, N.D.Ill.1973, 361
Matter involved in action by alien to review regional manpower administrator's denial of certification necessary to grant of
immigrant visa would be remanded on administrator's motion for further determination and documentation of record; court
may not order issuance of certificate and must remand even if it finds that administrative record does not support denial.
Wang v. Regional Manpower Administrator of U. S. Dept. of Labor, N.D.Ill.1972, 352 F.Supp. 260.
Court had power to review Secretary of Labor's denial of alien's application for employment certification on applicant's
claims that "prevailing wage" concept of regulations did not correctly implement statutory purpose and that determination
that wages offered applicant would have adverse effect on wages of workers in United States was abuse of discretion.
Ozbirman v. Regional Manpower Adm'r, U. S. Dept. of Labor, S.D.N.Y.1971, 335 F.Supp. 467.
Federal district court has jurisdiction to review denial of labor certification by Secretary of Labor pursuant to this chapter
but review is limited to determining whether Secretary abused his discretion or committed an error of law. Golabek v.
Regional Manpower Administration, U. S. Dept. of Labor, E.D.Pa.1971, 329 F.Supp. 892.
183. Marriage to effect evasion, classes subject to exclusion
It is within the authority of the Immigration and Naturalization Service to make inquiry into a marriage between a United
States citizen and a foreign national to extent necessary to determine if it was entered into for purpose of evading
immigration laws. Garcia-Jaramillo v. Immigration and Naturalization Service, C.A.9 1979, 604 F.2d 1236, certiorari denied
101 S.Ct. 94, 449 U.S. 828, 66 L.Ed.2d 32, rehearing denied 101 S.Ct. 594, 449 U.S. 1026, 66 L.Ed.2d 487; Pena-Urrutia v.
Immigration and Naturalization Service, C.A.9, 1981, 640 F.2d 242.
Conduct and life-style before and after marriage is relevant to the extent that it aids in determining the intent of the parties
at the time they were married, i.e., whether marriage is merely a sham designed to avoid immigration laws. Garcia-Jaramillo
v. Immigration and Naturalization Service, C.A.9 1979, 604 F.2d 1236, certiorari denied 101 S.Ct. 94, 449 U.S. 828, 66
L.Ed.2d 32, rehearing denied 101 S.Ct. 594, 449 U.S. 1026, 66 L.Ed.2d 487; Pena- Urrutia v. Immigration and Naturalization
Service, C.A.9, 1981, 640 F.2d 242.
Finding that marriage between Mexican national and United States citizen was a mere sham designed to avoid immigration
laws was supported by evidence, including testimony of now divorced wife that petitioner approached her three months
before marriage and offered to pay her $200 to marry him and help arrange for a resident passport and told her that they
would not have to live together and that he would later get a divorce and that the wife lived with her roommate both before
and after the marriage. Garcia-Jaramillo v. Immigration and Naturalization Service, C.A.9 1979, 604 F.2d 1236, certiorari
denied 101 S.Ct. 94, 449 U.S. 828, 66 L.Ed.2d 32, rehearing denied 101 S.Ct. 594, 449 U.S. 1026, 66 L.Ed.2d 487;
Pena-Urrutia v. Immigration and Naturalization Service, C.A.9, 1981, 640 F.2d 242.
184. Misrepresentation of material fact, classes subject to exclusion-- Generally
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Materiality of false statement in a visa application must be measured in terms of its effect on applicant's admissibility into
this country, and, at very least, misrepresentation must be considered material if disclosure of true facts would have made
applicant ineligible for visa. Fedorenko v. U. S., U.S.Fla.1981, 101 S.Ct. 737, 449 U.S. 490, 66 L.Ed.2d 686.
Finding by Board of Immigration Appeals (BIA), that alien made willful misrepresentation on application for business
visitor visa by understating his prior stay in United States, as required for finding of fraud, was supported by substantial
evidence, including alien's three distinct and not entirely consistent reasons for understating his stay. Mwongera v. I.N.S.,
C.A.3 1999, 187 F.3d 323.
Substantial evidence that aliens participated in annulment proceeding precluded finding that they held good faith belief
regarding their marriage when they applied for immigrant visas, making them subject to deportation for misrepresenting their
marital status on their visa applications. Witter v. I.N.S., C.A.5 1997, 113 F.3d 549.
Alien's willful failure to provide truthful information concerning alien's immigration status may be grounds for deportation.
Romero v. I.N.S., C.A.9 1994, 39 F.3d 977.
Whether alien was deportable for willfully misrepresenting a material fact when seeking to enter United States depended
on alien's subjective intent. Garcia v. I.N.S., C.A.7 1994, 31 F.3d 441.
Alien was excludable from admission into the United States, that is, ineligible for adjustment of status, where he willfully
misrepresented material fact when applying for passport in 1951 by applying for passport under false identity. Jen Hung Ng
v. I.N.S., C.A.9 1986, 804 F.2d 534.
Where aliens accomplished an entry of the United States by fraudulent means, they were entitled neither to enter nor to
reside in the country, at least until such time as parole was granted. U. S. v. Kavazanjian, C.A.1 (Mass.) 1980, 623 F.2d 730.
If the Immigration and Naturalization Service proved that a labor certificate was based on a misrepresentation of a fact,
which if correctly stated would conclusively demonstrate an adverse impact on wages or working conditions or the
availability of American workers, court would find that Secretary of Labor "could not have granted" a certificate under the
correct facts and hold that any certificate based on that misrepresentation was invalid under the Secretary's regulation.
Castaneda-Gonzalez v. Immigration and Naturalization Service, C.A.D.C.1977, 564 F.2d 417, 183 U.S.App.D.C. 396.
In order for government to deport alien immigrant for misrepresentation on application for labor certificate, government
would be required to prove not only that his misrepresentations were material, but also that they were willful.
Castaneda-Gonzalez v. Immigration and Naturalization Service, C.A.D.C.1977, 564 F.2d 417, 183 U.S.App.D.C. 396.
Immigration and Naturalization Service was not barred from seeking to deport an alien on the basis of inaccuracies in the
factual basis of a labor certificate. Castaneda-Gonzalez v. Immigration and Naturalization Service, C.A.D.C.1977, 564 F.2d
417, 183 U.S.App.D.C. 396.
Congress intended that government prove willfulness when seeking to deport an alien for misrepresenting material facts in
applying for entry documents. Castaneda-Gonzalez v. Immigration and Naturalization Service, C.A.D.C.1977, 564 F.2d 417,
183 U.S.App.D.C. 396.
Although exact meaning of "willful" may vary with context in which it is used in a particular statute, as used in this section
which mandates exclusion of any alien who seeks or has procured visa or other documentation by fraud or by willfully
misrepresenting a material fact, "willful" connotes voluntary and deliberate misstatement. Espinoza-Espinoza v. Immigration
Where order to show cause did not mention alien's falsehood with respect to whether he had any children when he filed for
his visa, that particular misrepresentation could not be basis for finding of deportability; however, in order to determine
whether misrepresentation as to alien's marital status was willful, lie about his children was relevant. Espinoza-Espinoza v.
Requirement in this section of fraud or willful misrepresentation of a material fact is satisfied by finding that
misrepresentation was deliberate and voluntary, and intent to deceive need not be shown. Espinoza-Espinoza v. Immigration
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Where alien on entering United States concealed her intent to go beyond border area, she entered by fraud or willful
misrepresentation and was not entitled to enter or to reside in United States, and defendant could be found guilty of illegally
transporting her to Chicago. U. S. v. Van Drunen, C.A.7 (Ill.) 1974, 501 F.2d 1393, certiorari denied 95 S.Ct. 684, 419 U.S.
1091, 42 L.Ed.2d 684.
Alien was not deportable because her application for a labor certificate overstated the wages she was to receive from her
prospective job, absent evidence showing that the amount she actually received was below the prevailing wage rate for
American workers similarly situated. La Madrid-Peraza v. Immigration and Naturalization Service, C.A.9 1974, 492 F.2d
1297.
Where alien, while in United States, became parent of United States citizen by birth of child in the United States, such alien
was not subject to deportation on ground that he had procured visa by fraudulent misrepresentation of marital status in order
to avoid requirement of this section that alien desiring to enter United States for purpose of performing labor be excluded
unless Secretary of Labor shall have certified need for such labor. Becerra Monje v. U. S. Immigration and Naturalization
Service, C.A.9 (Cal.) 1969, 418 F.2d 108.
Where alien, who had entered United States as student, and who thereafter married lawful resident alien, so that he was
ultimately admitted to permanent residence, thereafter, stated in application for visa in Canada that he was "destined to" his
wife at Detroit address, and he did not disclose that wife had instituted proceeding for annulment, which was subsequently
granted, Special Inquiry Officer of Immigration and Naturalization Service was justified in holding that alien was deportable
because application for visa was procured by fraud and wilful misrepresentation of material fact. Kassab v. Immigration and
It was not necessary to finding of Special Inquiry Officer of Immigration and Naturalization Service that alien was subject
to deportation because he had procured a visa by fraud and wilful misrepresentation of a material fact that it be shown that
alien would not have procured his visa if true facts had been known but it was sufficient if fact of annulment proceeding
against alien by his wife, who was a lawful resident alien, had been revealed, it might have led to further action and discovery
of facts justifying refusal of visa. Kassab v. Immigration and Naturalization Service, C.A.6 1966, 364 F.2d 806.
Misstatement by alien in application to United States Consul for a visa, to be a "willful misrepresentation of material fact"
which will justify deportation of alien, must refer to such fact as would have justified United States Consul in refusing a visa
had the fact been disclosed. Calvillo v. Robinson, C.A.7 (Ill.) 1959, 271 F.2d 249.
A misrepresentation concerning identity by an incoming alien, which results in entry into this country without proper
statutory investigation by immigration authorities, is material, justifying deportation, no matter what outcome of investigation
would have been if it had been made. Landon v. Clarke, C.A.1 (Mass.) 1956, 239 F.2d 631.
Determination of Immigration and Naturalization Service (INS) that petitioner was statutorily excludable on grounds of
misrepresentation was supported by substantial evidence, where he admitted buying and attempting to use counterfeit Alien
Registration Card. Sharma v. Reno, N.D.Cal.1995, 902 F.Supp. 1130.
Guyanan citizen had not sufficiently established his eligibility for nonimmigrant status for application for any waiver of
passport and visa requirements of Immigration and Nationality Act, and probable cause thus existed to believe that defendant
charged with conspiracy to effect alien's illegal entry into the United States from Canada knew or recklessly disregarded fact
that alien had not received prior official authorization to enter the United States; alien was excludable on basis that he
knowingly presented false identification, did not have a Canadian residence to return to, and intended to remain in New York
City on permanent basis. U.S. v. Darsan, W.D.N.Y.1993, 811 F.Supp. 119.
Entry into United States is not "lawful entry into United States" if procured by willful misrepresentation of a material fact.
In re Ferenci, E.D.Pa.1963, 217 F.Supp. 714.
Alien's misrepresentation is a "material misrepresentation" if alien is excludable on true facts or misrepresentation tends to
shut off line of inquiry which is relevant to alien's eligibility and which might result in proper determination that he be
excluded. In re Ferenci, E.D.Pa.1963, 217 F.Supp. 714.
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Alien could not contest deportability on ground that on date of last entry he was admissible as defector from Communism
where he had procured visa by fraud or wilful misrepresentation of material facts. Langhammer v. Hamilton, D.C.Mass.1961,
200 F.Supp. 636.
185. ---- Concealment, misrepresentation of material fact, classes subject to exclusion
Alien who stated that she was unmarried when she sought admission to the United States as unmarried daughter of alien
lawfully admitted for permanent residence, even though she had been married in civil ceremony in the Philippines, was
deportable on charge of willfully misrepresenting material fact in procuring a visa, although civil marriage was annulled by
Philippine court while deportation proceedings were pending; alien's eligibility for admission preference depended on her
being unmarried, and she admitted that she was aware of that fact when she sought admission. Garcia v. I.N.S., C.A.7 1994,
31 F.3d 441.
Evidence supported finding that alien procured visa by fraud or misrepresentation of material fact concerning prior
conviction and, thus, that alien was deportable; alien had admitted to consular officer that he had been arrested and spent time
in county jail, but alien had failed to disclose nature of prior conviction and sentence imposed, which would have rendered
him excludable. Solis-Muela v. I.N.S., C.A.10 1993, 13 F.3d 372, rehearing denied.
A fact suppressed or misstated is not material to an alien's entry, unless it is one which, if known, would have justified a
refusal to issue the visa. U. S. v. Rossi, C.A.9 (Cal.) 1962, 299 F.2d 650.
A misrepresentation in application for visa is material even if alien would not definitely have been excluded on true facts,
and even if membership in Communist Party had been involuntary, determination thereof after admission to United States on
visa would not operate nunc pro tunc to render omission to reveal such fact nonmaterial and would not preclude deportation
for concealing material fact. Langhammer v. Hamilton, C.A.1 (Mass.) 1961, 295 F.2d 642.
Evidence sustained finding that alien, when seeking entrance to United States, concealed information relating to his
Communist Party membership and related organizations and thereby willfully misrepresented a material fact, and alien was
subject to deportation. Langhammer v. Hamilton, C.A.1 (Mass.) 1961, 295 F.2d 642.
Where alien, in his application to United States Consul for a visa, stated that he had resided in United States two months
during period from 1950 to 1951, but he failed to disclose fact that he had previously resided in United States about six
months in 1943 and most of period between September, 1948 and November, 1953, alien was not guilty of a "willful
misrepresentation of a material fact" which would justify his deportation, since disclosure by alien of length of prior
residence in United States would not have precluded grant of a visa. Calvillo v. Robinson, C.A.7 (Ill.) 1959, 271 F.2d 249.
Any concealment of information which tends to frustrate proper official investigations is grounds for excludability under
subsection (a)(19) of this section, particularly if deception is directed primarily against the United States. Duran-Garcia v.
Neelly, C.A.5 (Tex.) 1957, 246 F.2d 287.
Concealment of previous quasi-deportation proceedings which, if known, would have suggested further inquiry into
visitor's actual motives was material. Duran-Garcia v. Neelly, C.A.5 (Tex.) 1957, 246 F.2d 287.
Misrepresentation and concealment are material where, had the alien disclosed the relevant facts, they would have led to a
temporary refusal pending a further inquiry, the result of which might well have prompted a final refusal. Ablett v. Brownell,
C.A.D.C.1957, 240 F.2d 625, 99 U.S.App.D.C. 387. See, also, Viruette Torres v. Hoy, C.A.Cal.1959, 269 F.2d 289.
186. Moral turpitude, classes subject to exclusion--Generally
Alien who was inadmissible into the United States due to his conviction of offenses involving moral turpitude had to seek
waiver of inadmissibility to be eligible for adjustment of status to that of lawful permanent resident. Palmer v. I.N.S., C.A.7
1993, 4 F.3d 482.
Whether crime is one with intent to defraud as an element, thereby making it a crime involving moral turpitude for
deportation purposes, is determined by statutory definition or by nature of crime not by specific conduct which resulted in the
conviction. McNaughton v. Immigration and Naturalization Service, C.A.9 1980, 612 F.2d 457.
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There is an unbroken tradition of criminal law that harsh sanctions should not be imposed where moral culpability is
lacking. Lennon v. Immigration and Naturalization Service, C.A.2 1975, 527 F.2d 187.
Court must decide proper construction of this section making excludable any alien who has been convicted of a violation of
any law or regulation regulating to illicit possession of marijuana in light of the deep-rooted requirement of knowledge and
intent in our legal system. Lennon v. Immigration and Naturalization Service, C.A.2 1975, 527 F.2d 187.
Where United States Supreme Court had previously upheld provision of this section making excludable aliens who had
been convicted of crime involving moral turpitude as against claim of unconstitutional vagueness, challenge to the statutory
standard was foreclosed to Court of Appeals for the District of Columbia. Ramirez v. U. S. Immigration and Naturalization
Service, C.A.D.C.1969, 413 F.2d 405, 134 U.S.App.D.C. 131, certiorari denied 90 S.Ct. 264, 396 U.S. 929, 24 L.Ed.2d 226.
In this section, excluding from admission into United States any alien convicted of a crime involving "moral turpitude",
quoted phrase has a sufficiently definite meaning to afford constitutional standard for deportation Tseung Chu v. Cornell,
C.A.9 (Cal.) 1957, 247 F.2d 929, certiorari denied 78 S.Ct. 265, 355 U.S. 892, 2 L.Ed.2d 190.
In determining whether offense of which alien applying to enter United States had been convicted involved moral
turpitude, immigration authorities were governed by question whether inherent nature of offense included it. U.S. v. Uhl,
S.D.N.Y.1913, 203 F. 152, affirmed 210 F. 860, 127 C.C.A. 422.
If alien has been convicted of or admits to having committed crime involving moral turpitude, he is not admissible unless
ground for exclusion is waived. Reznik v. U.S. Dept. of Justice, I.N.S., E.D.Pa.1995, 901 F.Supp. 188.
Whether exclusion of British subject residing in Canada from admission into United States on ground of his conviction in
Canada for crime involving moral turpitude was proper depends on construction of Canadian statute defining offense for
which he was convicted and ascertainment of whether it proscribes conduct necessarily involving "moral turpitude" within
meaning of such phrase in this section. Forbes v. Brownell, D.C.D.C.1957, 149 F.Supp. 848.
An alien convicted in foreign country of offense which is not mala in se or does not include as essential element a specific
state of mind properly equated with common-law concept of mens rea, as opposed to intent to do proscribed act rendered
malum prohibitum, does not stand convicted of crime involving moral turpitude, as matter of law, for purposes of exclusion
from United States under this section, though facts in given case disclose conduct involving such turpitude. Forbes v.
Brownell, D.C.D.C.1957, 149 F.Supp. 848.
When inquiring into nature of statutory crime, definitive name or label attached to proscribed conduct is not criteria for
determining whether offense involves moral turpitude within this section, but impact on moral turpitude, inherent in
conviction under criminal statute, must be measured by language delineating offense, in which elements of crime are found,
and determination of whether moral turpitude is involved must be made from such elements. Forbes v. Brownell,
D.C.D.C.1957, 149 F.Supp. 848.
Whether a crime committed in a foreign jurisdiction involves moral turpitude under the immigration laws is to be
determined according to its inherent nature by United States standards. 1938, 39 Op.Atty.Gen. 215.
Any crime involving an act intrinsically and morally wrong and malum in se, or an act done contrary to justice, honesty,
principle, or good morals, is a crime involving moral turpitude, 1937, 39 Op.Atty.Gen. 95.
Whether a crime committed abroad involves moral turpitude under the Immigration Laws must be determined by standards
prevailing in this country, but it is not permissible to go behind the record of a foreign court regarding the existence and
nature of the crime or to determine purpose, motive, or knowledge. Id.
187. ---- Administrative discretion, moral turpitude, classes subject to exclusion
Decision of Board of Immigration Appeals (BIA) that alien's prior conviction for conspiring to obtain, possess and use
illegal immigration documents was for crime of moral turpitude, so as to deprive the Attorney General of discretion to
suspend alien's deportation for exceptional and extremely unusual hardship, was not unreasonable; offense involved intent to
defraud the United States. Omagah v. Ashcroft, C.A.5 2002, 288 F.3d 254, rehearing denied.
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Board of Immigration Appeals (BIA) abused its discretion in denying alien's petition for discretionary relief from
deportation, where it failed to mention that his entire family lives in United States when assessing hardship that would result
from his deportation, that he had been steadily employed since his arrival in United States, that he had extensive community
involvement, that he expressed deep remorse for his action; BIA did not address facts and circumstances underlying
particular criminal offense to explain how sole adverse factor outweighed all positive factors considered cumulatively by
simply noting that on account of his criminal conviction, he must demonstrate unusual or outstanding equities. Georgiu v.
I.N.S., C.A.9 1996, 90 F.3d 374.
In exercising discretion to grant relief from deportation to lawful permanent resident over age 21, Board of Immigration
Appeals (BIA) was not required to give effect to California scheme under which alien's narcotic possession charges were
dismissed in accordance with pretrial diversion program and under which arrest was not to be used in any way which could
result in denial of any benefit. Paredes-Urrestarazu v. U.S. I.N.S., C.A.9 1994, 36 F.3d 801.
For purposes of denying relief from deportation order despite eligibility for statutory relief, "single serious crime" may
constitute "serious criminal misconduct" which will require alien to present unusual or outstanding equities to be entitled to
relief. Groza v. I.N.S., C.A.7 1994, 30 F.3d 814.
Attorney General may, in her discretion, adjust status of alien inspected and admitted or paroled into the United States to
that of alien lawfully admitted for permanent residence if: alien applies for such adjustment, he is eligible to receive
immigration visa and is admissible to the United States for permanent residence, and immigration visa is immediately
available to him at time his application is filed. Palmer v. I.N.S., C.A.7 1993, 4 F.3d 482.
There was no abuse of discretion in denying waiver of deportation to alien who had pleaded guilty to rape of children and
related offenses in connection with abuse of his stepdaughters, in light of lack of rehabilitation and gravity of the felonious
acts, despite familial equities, sustained employment history, lengthy period of residency, and numerous positive character
references. Gouveia v. I.N.S., C.A.1 1992, 980 F.2d 814.
Evidence at deportation hearing that alien had lawfully entered country as immigrant was sufficient to trigger immigration
judge's obligation to advise alien that he appeared to be eligible for relief from deportation. Moran- Enriquez v. I.N.S., C.A.9
1989, 884 F.2d 420.
Requirement in sentence that defendant, a noncitizen, not enter United States without permission of Attorney General or
authorized agent thereof was harmless violation of plea agreement, where restriction merely subjected defendant to condition
he was already required to obey pursuant to 8 U.S.C.A. 1182(a)(9) which enables Attorney General to exclude aliens who
have been convicted of crimes of moral turpitude. U.S. v. Kamer, C.A.9 (Cal.) 1986, 781 F.2d 1380, certiorari denied 107
S.Ct. 80, 479 U.S. 819, 93 L.Ed.2d 35.
Provision of this section permitting admission of alien, in discretion of Attorney General, if he has been lawfully admitted
for permanent residence and has temporarily proceeded abroad voluntarily and is not under order of deportation and is
returning to lawfully unrelinquished domicile of seven consecutive years was not available to alien facing deportation for
conviction of drug-related crime. Nicholas v. Immigration and Naturalization Service, C.A.9 1979, 590 F.2d 802.
Alien who was lawfully admitted as permanent resident in 1961 whose conviction of criminal possession of marijuana
rendered him deportable and who had never made temporary departure from country since the time of his conviction was
entitled to apply for discretion of Attorney General to permit him to remain in the country. Francis v. Immigration and
Attorney General is not required to ignore record showing felony conviction of alien and waive such ground for exclusion
in every case of close citizen family ties. U. S. ex rel. Martin-Gardoqui v. Esperdy, C.A.2 (N.Y.) 1966, 367 F.2d 861.
Where alien residing in United States was ordered to be deported following her conviction of a crime involving moral
turpitude and sentence of one year's imprisonment, alien had no standing to apply for relief under former 1182b of this title,
now covered in subsec. (h) of this section, providing that an alien excludable under certain provisions shall if otherwise
admissible be issued a visa and admitted to the United States for permanent residence if Attorney General in his discretion
has consented, since alien had already entered and established residence in the United States and was not an excludable alien
seeking admission. U.S. ex rel. Campos De Jerez v. Esperdy, C.A.2 (N.Y.) 1960, 281 F.2d 182, certiorari denied 81 S.Ct.
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1049, 366 U.S. 905, 6 L.Ed.2d 204.

188. ---- Collateral attack, moral turpitude, classes subject to exclusion
Alien convicted of theft cannot demonstrate that offense was free from moral turpitude by relitigating the merits of the case
before the Immigration and Naturalization Service or reviewing courts. Chiaramonte v. Immigration and Naturalization
Service, C.A.2 1980, 626 F.2d 1093.
An alien adjudged guilty by foreign tribunal of crime of moral turpitude may not attempt to demonstrate through collateral
attack in our forums that his actions were only undertaken in response to exceptional circumstances and that he is morally
blameless and unless records of original proceeding, including judgment, clearly reflect such extenuating circumstances,
neither the Immigration and Naturalization Service nor the courts may consider extrinsic evidence in determining moral
culpability of the offense. Chiaramonte v. Immigration and Naturalization Service, C.A.2 1980, 626 F.2d 1093.
189. ---- Conviction, moral turpitude, classes subject to exclusion
Alabama offenses of illegal possession of credit cards, fraudulent use of credit cards, and forgery were "crimes of moral
turpitude," within meaning of INA, such that alien who committed such offenses was inadmissible. Balogun v. Ashcroft,
C.A.5 2001, 270 F.3d 274.
The term "convicted" has the same meaning under this chapter as applied to an alien whether exclusion or deportation is at
issue. Marino v. Immigration and Naturalization Service, U. S. Dept. of Justice, C.A.2 1976, 537 F.2d 686.
An alien is not deemed to have been "convicted" of a crime under this chapter until his conviction has attained a substantial
degree of finality, and such finality does not occur unless and until direct appellate review of the conviction, as contrasted
with collateral attack, has been exhausted or waived. Marino v. Immigration and Naturalization Service, U. S. Dept. of
Justice, C.A.2 1976, 537 F.2d 686.
Although alien's deportation was originally based on his drug conviction, which was eventually vacated, deportation order
was subsequently and lawfully based on alien's sex-related offense convictions for which he had served over an 11 year term
of imprisonment. Mathews v. I.N.S., D.Mass.2001, 170 F.Supp.2d 99.
190. ---- Petty offense exception, moral turpitude, classes subject to exclusion
Alabama offenses of illegal possession of credit cards, fraudulent use of credit cards, and forgery were "crimes of moral
turpitude," within meaning of INA, such that alien who committed such offenses was inadmissible. Balogun v. Ashcroft,
C.A.5 2001, 270 F.3d 274.
Maximum possible penalty for alien's undesignated offense of theft, which resulted in sentence of probation and which was
designated a misdemeanor following her completion of probation, was six months, which was maximum possible punishment
for misdemeanor under Arizona law, not 18 months, which would have been maximum sentence if offense had been
designated a felony, and alien thus was eligible for petty offense exception to statutory requirement that alien convicted of
crime involving moral turpitude could not be eligible for voluntary departure. Lafarga v. I.N.S., C.A.9 1999, 170 F.3d 1213,
as amended.
"Sentence actually imposed" for prior conviction within meaning of petty offense exception to deportation provision of
Immigration and Nationality Act included entire sentence imposed and, thus, defendant was deportable on basis of prior
conviction of crime involving moral turpitude, even though execution of part of sentence had been suspended, and even
though alien had been released for voluntary deportation before entire sentence had been served. Solis- Muela v. I.N.S.,
C.A.10 1993, 13 F.3d 372, rehearing denied.
Offense of theft involving money and goods worth approximately $235 was a felony involving moral turpitude by United
States standards, and thus could not be classified as a "petty offense," for purposes of petty offense exception in this section,
even though the sentence imposed on the alien in question by the foreign court was a small fine and a suspended 14-day
sentence of imprisonment. Soetarto v. Immigration and Naturalization Service, C.A.7 1975, 516 F.2d 778.
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Simple assault charges are misdemeanors not involving moral turpitude and do not count against visa holder under petty
offense exception to provision of this section providing that persons convicted of crimes involving moral turpitude were
excludable aliens. Knoetze v. U. S., S.D.Fla.1979, 472 F.Supp. 201, affirmed 634 F.2d 207, certiorari denied 102 S.Ct. 109,
454 U.S. 823, 70 L.Ed.2d 95.
191. ---- Proof of crime, moral turpitude, classes subject to exclusion
Alien's own admissions and evidence introduced against him fully established petitioner's deportability for, inter alia, his
departure from the United States in order to avoid the draft and for procuring his visa by fraud. Velasquez Espinosa v.
Immigration and Naturalization Service, C.A.9 (Cal.) 1968, 404 F.2d 544.
English clerk's certificate, stating nature of offense of which alien had been convicted before entry, was part of "record of
conviction" which could be considered in determining whether offense involved moral turpitude. Wadman v. Immigration
and Naturalization Service, C.A.9 (Cal.) 1964, 329 F.2d 812.
In proceeding to determine alien's right to enter country, alien's admissions, made under pressure of an insistent
cross-examination through an interpreter, of legal conclusions that he committed crimes involving moral turpitude, namely,
forgery and impersonation of another, in violation of former 220 of this title would not justify exclusion of alien if facts
testified to showed absence of any crime. U.S. ex rel. Jelic v. District Director of Immigration and Naturalization, Ellis
Island, New York Harbor, C.C.A.2 (N.Y.) 1939, 106 F.2d 14.
"Section 2 of the act expressly covers exclusion because of the commission of a felony or other crime involving moral
turpitude, and conditions the exclusion upon either a conviction of the alien or on an admission by him, neither of which
exists in this case. If an immigrant may be excluded on the theory that because of charges of dishonesty neither proved nor
admitted, this special provision of the act would appear to be useless. Certainly it can be circumvented in any case. It seems
to us evidently intended, by defining the proof required, to prevent just such conjectures as were indulged in by the
immigration inspector in this case. Indeed, with such latitudinarian construction of the provision 'likely to become a public
charge,' most of the other specific grounds of exclusion could have been dispensed with. Idiots, imbeciles, feeble-minded
persons, insane persons, persons affected with tuberculosis, and prostitutes might all be regarded as likely to become a public
charge. The excluded classes with which this provision is associated are significant. It appears between 'paupers' and
'professional beggars.' We are convinced that Congress meant the act to exclude persons who were likely to become
occupants of almshouses for want of means with which to support themselves in the future. If the words covered jails,
hospitals, and insane asylums, several of the other categories of exclusion would seem to be unnecessary. We are referred to
a decision of the District Court for the Southern District of New York in United States ex rel. Freeman v. Williams,
D.C.N.Y.1910, 175 F. 274, in which the deportation of an alien whose career before entering the United States had been one
of habitual delinquency was sustained on the ground that he was likely to become a public charge. We are not persuaded by
this decision, and think Savitsky did not fall within the class under which the order of deportation was made. Gegiow v. Uhl,
N.Y.1915, 239 U.S. 9, 36 S.Ct. 2, 60 L.Ed. 114." Howe v. U.S., C.C.A.2 (N.Y.) 1917, 247 F. 292.
Whether alien seeking to enter United States had been convicted of misdemeanor involving moral turpitude, so as to justify
his exclusion had to be determined by judgment of conviction, and not from testimony adduced at trial. U.S. v. Uhl, C.C.A.2
(N.Y.) 1914, 210 F. 860, 127 C.C.A. 422.
Where alien seeking to enter United States had been convicted of crime which in its essence did not involve moral
turpitude, he could not be excluded on proof outside record that he was depraved person. U.S. v. Uhl, C.C.A.2 (N.Y.) 1914,
210 F. 860, 127 C.C.A. 422.
Under former Act admission of immigrant from Austria that he had misappropriated partnership funds, and had them with
him when he applied to enter did not show commission of crime under American law, which court was required to apply, in
absence of proof of Austrian law. U.S. v. Williams, S.D.N.Y.1913, 204 F. 828.
Similar section of prior Act had no application where alien had not in fact been convicted of alleged offense, for
commission of which it was sought to exclude him. U.S. v. Williams, S.D.N.Y.1913, 203 F. 155.
"The board of special inquiry has held, and its decision has been affirmed upon appeal to the Secretary of Commerce and
Labor, that Gen. Castro shall be excluded because he has admitted the commission of a crime involving moral turpitude, viz.,
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the murder of Gen. Paredes, and therefore falls within the excluded class of 'persons who have been convicted of or admit
having committed a felony or other crime or misdemeanor involving moral turpitude.' It is to be noted that Congress has
required in respect to this particular class of aliens proof of a specified kind and no other, viz., either a conviction in the
country where the crime was committed or an admission by the alien. There is no pretense of any conviction, and I think
ordinary proof is not sufficient. Testimony of unimpeached eyewitnesses that they had seen Gen. Castro kill Gen. Paredes
with his own hand in cold blood would not only be insufficient, but would be wholly incompetent. Therefore telegrams
passing between the state department and its representatives at Caracas upon which the board relied are not evidence
whatever to connect Gen. Castro with the death of Gen. Paredes. When examined before the special board, he had the right to
insist that the proof on this point be restricted to that required by the act, viz., his own admission. This provision must have
been intended as a limitation upon the power of the immigration authorities. It deprives them of the right to try the question
of guilt at all. So it is a privilege to aliens because it insures them against any such trial. This privilege is entirely taken away
if an admission may be rested upon presumptions arising from the alien's refusing to answer questions on the subject when
under examination. I think the act contemplates an explicit and voluntary admission." U.S. v. Williams, S.D.N.Y.1913, 203
F. 155.
Under earlier Act, proof that alien had committed crime involving moral turpitude and was therefore within excluded class
under Immigration Act, could be furnished by admissions made subsequent, as well as prior, to alien's entry into United
States. U.S. ex rel. Rosen v. Williams, C.C.A.2 (N.Y.) 1912, 200 F. 538, 118 C.C.A. 632, certiorari denied 34 S.Ct. 329, 232
U.S. 722, 58 L.Ed. 814.
Certificate from foreign court showing that alien immigrant was there convicted of crime of rape was sufficient to sustain
finding of his conviction of crime involving moral turpitude, excluding him from right to enter into or remain in United
States, under Act Feb. 20, 1907, 2. Siniscalchi v. Thomas, C.C.A.6 (Ohio) 1912, 195 F. 701, 115 C.C.A. 501.
Under similar provision in Act of 1891 court said: "The relators, by their own admission, were found guilty in the country
from which they came of an assault with a deadly weapon. They were sentenced to two and four months' imprisonment,
respectively, and have served their terms. They are clearly convicts, within the meaning of the Act regulating immigration."
In re Aliano, C.C.S.D.N.Y.1890, 43 F. 517.
While a charge, plea, verdict and sentence are the limit of the record which immigration officials or the court may consider
in determining whether they should exclude an alien because of fact of conviction of the crime involving moral turpitude,
they do not constitute the minimum of evidence necessary, and an alien can be excluded if moral turpitude is inherent in
crime for which convicted. U S ex rel Teper v. Miller, S.D.N.Y.1949, 87 F.Supp. 285.
A Consul would have been justified in refusing to issue a visa to an alien for entry into this country only if the suppressed
facts respecting conviction for crime were sufficient to cause the alien to be excluded under former 136 of this title as a
person who had been convicted of a crime involving moral turpitude. U S ex rel Teper v. Miller, S.D.N.Y.1949, 87 F.Supp.
285.
Whether conviction by a German court of a German citizen of Jewish extraction on a charge of making a false affidavit
concerning his property involved moral turpitude required consideration of abnormal conditions in Germany, 1938, 39
Op.Atty.Gen. 215.
192. ---- Reentry by criminal, moral turpitude, classes subject to exclusion
That defendants had been deported subsequent to issuance of mandate by court of appeals vacating their convictions did
not remove controversy involved, since, following reversal of court of appeals, there would be possibility that defendants
could be extradited and imprisoned for their crimes, or if defendants managed to re-enter this country on their own they
would be subject to arrest and imprisonment for these convictions; in addition, as collateral consequence of convictions,
government could bar any attempt by defendants to voluntarily re-enter this country. U.S. v. Villamonte-Marquez,
U.S.La.1983, 103 S.Ct. 2573, 462 U.S. 579, 77 L.Ed.2d 22, on remand 714 F.2d 428.
Alien's waiver of right to appeal conviction of illegal reentry by alien with prior felony convictions, based on immigration
judge's (IJ) erroneous interpretation of impact on alien's right of lawful reentry into United States, was not knowing and
intelligent and violated his right of due process; alien repeatedly stated his desire for "second chance" and expressed
confusion over consequences of deportation and, in response, IJ erroneously advised alien that he could ask special
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permission to return to United States. U.S. v. Ahumada-Aguilar, C.A.9 2002, 295 F.3d 943.
Construing former 136 of this title in connection with former 155 of this title, provisions of said former 136(e) had no
application to reentry by one who had committed crime in United States. Nagle v. Lim Foon, C.C.A.9 (Cal.) 1931, 48 F.2d
51.
Alien returning to United States was subject to deportation for conviction of crime involving moral turpitude committed in
United States before last entry. Bendel v. Nagle, C.C.A.9 (Cal.) 1927, 17 F.2d 719.
Where petitioner had lived in United States for six years without having been naturalized and had then gone to Italy for
visit, and on his return to United States he was prevented from landing because prior to his first arrival in this country he had
been imprisoned in his native country for stabbing man, immigration officers had jurisdiction, notwithstanding petitioner's
prior residence in United States, he being still alien, and petitioner's writ of habeas corpus was dismissed and rule 4 of
regulations of former Bureau of Immigration and Naturalization of Department of Commerce and Labor relating to the
application of Immigration Act of 1907 did not apply to petitioner. U.S. ex rel. Funaro v. Watchorn, C.C.S.D.N.Y.1908, 164
F. 152.
Immigrants who formerly resided temporarily in United States but took no steps to become citizens thereof, and, returning
to Italy, were convicted there of crime and served out sentence, and upon their discharge were given passports to United
States, were not exempted from provisions of former Act Aug. 3, 1882, 2, 4, 22 Stat. 214, and former Act March 3, 1891,
1, 26 Stat. 1084, and should be returned to Italy. 1892, 20 Op.Atty.Gen. 371.
193. ---- Pardon of criminal, moral turpitude, classes subject to exclusion
Board of Immigration Appeals (BIA) did not improperly depart from prior practices when it declined to give effect to
California's pretrial diversion scheme for certain drug offenses when determining whether to grant discretionary relief from
deportation to permanent resident alien, even though it had previously given effect to federal scheme for expungement of
criminal records, as the federal scheme applied only to youthful offenders whereas the California scheme applied to offenders
of all ages, so that the two were not equivalent. Paredes-Urrestarazu v. U.S. I.N.S., C.A.9 1994, 36 F.3d 801.
Despite differences as there may be between a pardon and an amnesty, foreign amnesties, like foreign pardons, do not
obliterate the foreign conviction or remove the disabilities which result from such a conviction for purposes of this chapter.
Marino v. Immigration and Naturalization Service, U. S. Dept. of Justice, C.A.2 1976, 537 F.2d 686.
For purposes of this chapter, a foreign pardon, in itself, does not wipe out an alien's foreign conviction or relieve him from
the disabilities which flow therefrom. Marino v. Immigration and Naturalization Service, U. S. Dept. of Justice, C.A.2 1976,
537 F.2d 686.
Fact that provision of this chapter nullified, in deportation proceeding, effect of a state pardon in a narcotics conviction
case was not an unconstitutional abridgment of power of executive clemency. Kwai Chiu Yuen v. Immigration and
Naturalization Service, C.A.9 (Cal.) 1969, 406 F.2d 499, certiorari denied 89 S.Ct. 1750, 395 U.S. 908, 23 L.Ed.2d 221.
Deportation, while it may be burdensome and severe for alien, is not punishment, and, therefore, even accepting as true the
premise that a full and unconditional federal or state pardon exempts convicted person from punishment, pardon does not
thereby exempt such person from deportation. Kwai Chiu Yuen v. Immigration and Naturalization Service, C.A.9 (Cal.)
Pardon, expungement of criminal record or other act of clemency by foreign authority does not remove criminal conviction
as ground of ineligibility for entry. Reznik v. U.S. Dept. of Justice, I.N.S., E.D.Pa.1995, 901 F.Supp. 188.
Where alien child of sixteen and one-half years was convicted of theft in Norway and was given suspended sentence, such
suspension of sentence under laws of Norway having same purpose as royal pardon, said offense involved moral turpitude
and such alien was excluded by immigration laws from entry into United States. 1933, 37 Op.Atty.Gen. 259.
Provision of Act of 1875 prohibiting immigration of convicts did not forbid entry of one who had been found guilty of
embezzlement and sentenced to imprisonment, had served portion of sentence, and been pardoned and same effect, that it
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blots out offense, must be given to pardon by foreign state of offense within its jurisdiction as would be given to pardon in
this country. 1885, 18 Op.Atty.Gen. 239.
Presidential Proclamation 4483 and Executive Order 11967, granting a pardon to all those who may have committed any
offense between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act evince a clear intent to
remove the exclusion imposed by subsec. (a)(22) of this section upon aliens who departed from or remained outside the
United States to avoid or evade training or service in the Armed Forces. 1977 (Counsel-Inf.Op.) 1 Op.O.L.C. 34.
194. ---- Political offenses, moral turpitude, classes subject to exclusion
Alien "assisted" or "otherwise participated" in persecution under Nazi regime, and thus was deportable under Holtzman
Amendment, notwithstanding government's failure to show he was personally involved in any specific atrocities, where he
served as armed SS guard at Auschwitz and Sachsenhausen and on prisoner transports during World War II. Hammer v.
I.N.S., C.A.6 1999, 195 F.3d 836, certiorari denied 120 S.Ct. 1247, 528 U.S. 1191, 146 L.Ed.2d 105.
Active personal involvement in persecutorial acts needs to be demonstrated before deportability may be established on the
basis of having aided the Nazi government of Germany and its allies in persecution. Laipenieks v. I.N.S., C.A.9 1985, 750
F.2d 1427.
Courts will not condone selective deportation based upon secret political grounds. Lennon v. Immigration and
Ordinarily a foreign record of conviction is conclusive on facts and the quality of an alien's conduct; but in case of offenses
"purely political" motive may be considered. 1938, 39 Op.Atty.Gen. 215.
195. ---- Assault with deadly weapon, moral turpitude, classes subject to exclusion
Immigrant, who had been convicted in country from which he came of assault with deadly weapon and had served term of
imprisonment imposed, was convict, within meaning of prior Act regulating immigration. In re Aliano, C.C.S.D.N.Y.1890,
43 F. 517.
196. ---- Bigamy, moral turpitude, classes subject to exclusion
Alien who claimed to believe first marriage was invalid at time he married second wife could not be found to have
committed bigamy such as would render him statutorily ineligible for waiver of deportation; alien could only be found to be
not "otherwise admissible," on ground he committed crime, if he had been convicted or if he freely and voluntarily admitted
his guilt. Braun v. I.N.S., C.A.9 1993, 992 F.2d 1016.
The crime of bigamy, as defined by Canadian statute, does not require mens rea, and defendant may be convicted
thereunder without proof of evil intent or base and depraved conduct, so that such conviction does not inherently or as a
matter of law reach or involve moral turpitude authorizing exclusion of convicted person from United States under this
section. Forbes v. Brownell, D.C.D.C.1957, 149 F.Supp. 848.
197. ---- False representations, moral turpitude, classes subject to exclusion
An alien making an entry into United States who falsely represents himself to be a citizen is not only excludable, under
subsec. (a)(19) of this section, if he is detected at time of his entry, but he is also deportable as one who has entered the
United States without inspection. Reid v. Immigration and Naturalization Service, U.S.1975, 95 S.Ct. 1164, 420 U.S. 619, 43
L.Ed.2d 501.
Alien's offenses of making false attestation on employment verification form and using false Social Security number were
not crimes of "moral turpitude," the commission of which would preclude alien from being of "good moral character," as
required for eligibility for registry. Beltran-Tirado v. I.N.S., C.A.9 2000, 213 F.3d 1179.
Aliens, by arriving under the transit-without-visa device with no intention of effecting an orderly and expeditious
departure, were guilty of fraud or misrepresentation. U. S. v. Kavazanjian, C.A.1 (Mass.) 1980, 623 F.2d 730.
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Intent to defraud was element of substantive crime underlying crime of conspiracy to affect public market price of stock by
deceit, falsehood or other fraudulent means with intent to defraud, and thus crime was one involving moral turpitude for
purpose of determining whether alien was excludable at time of entry because he had been convicted by a Canadian court of
such crime. McNaughton v. Immigration and Naturalization Service, C.A.9 1980, 612 F.2d 457.
Every instance of fraudulent misrepresentation must invalidate any entry documents presented and render entry one
without possession of valid documentation. Cacho v. Immigration and Naturalization Service, C.A.9 1976, 547 F.2d 1057.
Any entry made by way of fraudulent claims of compliance with quota requirements must result in entry without valid
documentation. Cacho v. Immigration and Naturalization Service, C.A.9 1976, 547 F.2d 1057.
Special immigration visa under which Mexican citizen entered United States for purpose of performing unskilled labor was
invalid where, in his visa application, he made a fraudulent misrepresentation concerning nature of his marriage to United
States citizen and, at time of his entry, he did not possess certification of Secretary of Labor required for entry of alien who is
not a parent, spouse or child of United States citizen or of an alien lawfully admitted for permanent residence. Godoy v.
Rosenberg, C.A.9 (Cal.) 1969, 415 F.2d 1266.
A misrepresentation as to a visitor's purpose in entering, which intention, if known, would have caused her to be
considered and processed as an immigrant, or perhaps rejected altogether, is material. Duran-Garcia v. Neelly, C.A.5 (Tex.)
1957, 246 F.2d 287.
Where woman of Costa Rican origin, who married British subject in Jamaica in 1943 and had four children of this
marriage, falsely represented herself as single and gave her maiden name to obtain Costa Rican passport in 1952, and falsely
represented her name and marital status and last residence in obtaining United States immigration papers in 1953,
misrepresentation was material, and woman was deportable as excludable alien under provision relating to aliens who have
procured visa or other documentation by fraud or by wilfully misrepresenting material fact. Landon v. Clarke, C.A.1 (Mass.)
1956, 239 F.2d 631.
An alien was properly denied entry into United States on ground that he had been convicted of a crime involving "moral
turpitude" within former 136 of this title, where alien had been convicted of fraud in Switzerland in connection with the
purchase of merchandise on false representations that alien was solvent, and alien had received a suspended sentence and had
been placed on probation. Bermann v. Reimer, C.C.A.2 (N.Y.) 1941, 123 F.2d 331.
Under this section and 1251 of this title to effect that alien should not be excludable and deportable for first offense if
offense is a petty offense, a misdemeanor the penalty for which does not exceed imprisonment for a period of six months or a
fine of not more than $500 or both, alien, who had been convicted in New York for loitering for purpose of inducing men to
commit acts against nature or other lewdness and who had been fined $25 or in default of payment was committed to
imprisonment not to exceed 10 days, was not deportable simply on ground of conviction but, in view of fact that he thereafter
obtained a visa upon representation that he had never been arrested or convicted, thereby precluding attempt that almost
certainly would have been made to exclude him as a psychopathic personality, alien was properly ordered deported on
ground that he had procured a visa by fraud or by wilfully misrepresenting a material fact. Ganduxe y Marino v. Murff,
S.D.N.Y.1959, 183 F.Supp. 565, affirmed 278 F.2d 330, certiorari denied 81 S.Ct. 61, 364 U.S. 824, 5 L.Ed.2d 53.
198. ---- Forgery, moral turpitude, classes subject to exclusion
Forgery involves moral turpitude under former 136 of this title, and aliens admitting having committed acts of forgery in
connection with applications for passports or visas, if such acts were prohibited by our passport and immigration laws, were
excluded from admission into United States, 1934, 38 Op.Atty.Gen. 128.
199. ---- Larceny, moral turpitude, classes subject to exclusion
Grand theft under California law is "crime of moral turpitude" for purposes of statute governing excludable aliens.
Rashtabadi v. I.N.S., C.A.9 1994, 23 F.3d 1562.
Fact that alien's theft of olives and wood may have occurred during time of severe deprivation in Italy during World War II
did not demonstrate that his convictions were necessarily free of moral taint so that he would not be permanently excludable
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under this section. Chiaramonte v. Immigration and Naturalization Service, C.A.2 1980, 626 F.2d 1093.
While specificity as to rightful owner may be helpful in establishing that property was in fact stolen, the crime of larceny is
proven when it is demonstrated that the goods were taken with knowledge that they belonged to one other than the thief.
Chiaramonte v. Immigration and Naturalization Service, C.A.2 1980, 626 F.2d 1093.
Where Italian tribunal, while conceding that identity of owner of stolen olives had remained unknown, concluded that
petitioner had violated the decree of ownership, it was clear that olives did in fact have an owner and, thus, prior convictions
were, on their face, tantamount to larceny, and crime of moral turpitude rendered alien permanently excludable under this
section. Chiaramonte v. Immigration and Naturalization Service, C.A.2 1980, 626 F.2d 1093.
Conclusion of Board of Immigration Appeals that alien's convictions for obtaining money under false pretenses rendered
him an excludable alien so as to negate his effort to obtain an adjustment of status was supported by sufficient evidence to
preclude invalidation. Schieber v. Immigration and Naturalization Service, C.A.D.C.1975, 520 F.2d 44, 171 U.S.App.D.C.
312.
Theft necessarily involved "moral turpitude" within this section, regardless of the circumstances, of amount stolen, or of
the sentence imposed. Soetarto v. Immigration and Naturalization Service, C.A.7 1975, 516 F.2d 778.
Alien, who had been convicted in Australia of stealing property which had a value in excess of $100, was guilty of grand
larceny which is a felony under United States law and he was excludable from admission. Giammario v. Hurney, C.A.3 (Pa.)
1962, 311 F.2d 285.
Alien, who pleaded guilty and was convicted of stealing property having a value in excess of $100, could not in deportation
proceeding successfully claim that he had not committed the crime. Giammario v. Hurney, C.A.3 (Pa.) 1962, 311 F.2d 285.
Larceny or theft is a crime malum in se and all crimes mala in se involve moral turpitude. Orlando v. Robinson, C.A.7 (Ill.)
Alien's prior conviction of larceny arising out of stealing packages containing merchandise of $5 value constituted a "crime
involving moral turpitude" within naturalization statutes. Orlando v. Robinson, C.A.7 (Ill.) 1959, 262 F.2d 850, certiorari
Theft involves moral turpitude. U.S. ex rel. Ulrich v. Kellogg, App.D.C.1929, 30 F.2d 984, 58 App.D.C. 360, certiorari
denied 49 S.Ct. 482, 279 U.S. 868, 73 L.Ed. 1005, rehearing denied 50 S.Ct. 79.
The crime of larceny is one involving moral turpitude, within exclusion provisions of this section. Zgodda v. Holland,
E.D.Pa.1960, 184 F.Supp. 847.
Where alien was convicted in England of "stealing a fur" which under the English law was defined as involving a criminal
intent to permanently deprive another of property or something of value, the theft constituted the crime of "larceny" and a
"crime involving moral turpitude" sufficient to justify the exclusion of the alien, the amount of the theft being immaterial. U
S ex rel Teper v. Miller, S.D.N.Y.1949, 87 F.Supp. 285.
Petit larceny was crime involving "moral turpitude," within former 136 and 155 of this title. U.S. ex rel. Fracassi v.
Karnuth, W.D.N.Y.1937, 19 F.Supp. 581.
200. ---- Libel, moral turpitude, classes subject to exclusion
Under former Act conviction of English subject of criminal libel for charging King with bigamy was not conviction of
misdemeanor involving moral turpitude sufficient to exclude him from United States. U.S. v. Uhl, C.C.A.2 (N.Y.) 1914, 210
F. 860, 127 C.C.A. 422.
200A. ---- Murder, moral turpitude, classes subject to exclusion
Board of Immigration Appeals (BIA) was within its bounds in determining that alien committed a serious crime of moral
turpitude that barred his asylum claim; alien's killing of police officer, which occurred after alien returned to the
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demonstration, was not political simply by virtue of the fact that it took place during a political demonstration in which
officers beat peaceful demonstrators. Efe v. Ashcroft, C.A.5 2002, 293 F.3d 899.
201. ---- Perjury, moral turpitude, classes subject to exclusion
In prosecution for perjury, failure of defendant to state in a sworn application for an immigration visa that he had been
convicted of the offense of loitering about a public place soliciting men for the purpose of committing a crime against nature
or other lewdness, was material to the issue of defendant's admissibility into the United States, since that offense constituted a
crime or misdemeanor involving moral turpitude within meaning of this section providing that aliens convicted of a crime or
misdemeanor involving moral turpitude shall be excluded from admission into the United States. United States v.
Flores-Rodriguez, C.A.2 (N.Y.) 1956, 237 F.2d 405.
Where alien, seeking extension of temporary stay in United States, deliberately made false statement that he had not been
working in United States during his temporary stay, in view of fact that such statement was material to obtaining the
extension, alien was guilty of perjury in having made it, and, therefore, would be excluded because he had been guilty of a
crime involving moral turpitude. U.S. ex rel. Alvarez Y Flores v. Savoretti, C.A.5 (Fla.) 1953, 205 F.2d 544.
Where alien seeking entry to United States for permanent residence after full explanation of nature of crime of perjury,
stated that he understood clearly the explanation and that he voluntarily admitted having committed such offense, there was
sufficient ground for excluding alien under former 136(e) of this title, providing for exclusion where alien has been guilty
of a crime involving moral turpitude. U.S. ex rel. Alvarez Y Flores v. Savoretti, C.A.5 (Fla.) 1953, 205 F.2d 544.
Perjury before immigration officials was "felony involving moral turpitude" within former 136 of this title. Masaichi Ono
v. Carr, C.C.A.9 (Cal.) 1932, 56 F.2d 772.
On fourth appearance before immigration authorities, alien's admission of falsity of testimony at first hearing nine days
earlier, was too late to avoid guilt of perjury. Masaichi Ono v. Carr, C.C.A.9 (Cal.) 1932, 56 F.2d 772.
Alien committing perjury before board of special inquiry could be denied entry, and offense was not purged by later
correction of false testimony. Ex parte Chin Chan On, W.D.Wash.1929, 32 F.2d 828.
Excluded alien's false statements under oath in affidavit and on hearing, and discrepancies in his and his witnesses'
testimony was sufficient to cast doubt on his claim of citizenship, where court could not say that such statements were not
made knowingly and willfully or did not constitute perjury and crime involving moral turpitude, justifying exclusion under
former 136 of this title. Ex parte Yoshimasa Nomura, C.C.A.9 (Cal.) 1924, 297 F. 191.
Under former 152 of this title, making it perjury to give false statement under oath relating to right of alien to admission,
statement by alien that he had no relatives within country was crime involving moral turpitude, which justified his exclusion
under former 136 of this title. Kaneda v. U.S., C.C.A.9 (Hawai'i) 1922, 278 F. 694, certiorari denied 42 S.Ct. 586, 259 U.S.
583, 66 L.Ed. 1075.
Mexican citizen, who had perjured himself before Immigration Board of Inquiry, was properly excluded from country and
deported to Mexico, though he was married to American citizen, and had two children born in United States, under this
section providing that an alien shall be excluded who has been convicted or admits committing crime involving moral
turpitude. U. S. ex rel. De La Fuente v. Swing, S.D.Tex.1956, 146 F.Supp. 648, affirmed 239 F.2d 759.
Wilful false swearing to a material matter ordinarily is an offense involving moral turpitude. 1938, 39 Op.Atty.Gen. 215.
Violations of our immigration law or passport law of this or another country, which involve false swearing amounting to
perjury, constitute offenses involving moral turpitude; but violations of such laws which were not accompanied by false
swearing and consisted merely of subterfuge or concealment of fact upon entering country, using foreign passport belonging
to friend or relative as unwise convenience, or using foreign passport issued in name of another with probable purpose to
evade peacetime military service, do not constitute offenses involving moral turpitude. 1933, 37 Op.Atty.Gen. 293.
202. ---- Rape, moral turpitude, classes subject to exclusion
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Alien's singlecriminal episode giving rise to convictions for rape, aggravated battery, and aggravated assault constituted
"serious criminal misconduct" for which alien statutorily eligible for relief could be required to present unusual or
outstanding equities to be entitled to relief from deportation. Groza v. I.N.S., C.A.7 1994, 30 F.3d 814.
For purposes of ruling against petition for waiver of deportation, substantial evidence supported finding against
rehabilitation of petitioner, even though he pleaded guilty to rape of children and thereafter took full "responsibility for his
offenses," where, in ensuing deportation proceedings, he changed his tune and adamantly denied raping the girls. Gouveia v.
I.N.S., C.A.1 1992, 980 F.2d 814.
Carnal knowledge of child under 15 is offense involving "moral turpitude." Bendel v. Nagle, C.C.A.9 (Cal.) 1927, 17 F.2d
719.
Party's conviction for carnal knowledge and abuse was offense involving moral turpitude. Application of Marks,
S.D.N.Y.1961, 198 F.Supp. 40.
203. ---- Revenue offenses, moral turpitude, classes subject to exclusion
Where alien with permanent resident status attempted to smuggle 55 pounds of untaxed marijuana into United States after
stay of two and one-half days in Mexico, interruption of his residence in United States was meaningful, and he made "entry"
into United States which rendered him excludable, even if his departure from United States was for innocent purposes.
Palatian v. Immigration and Naturalization Service, C.A.9 (Cal.) 1974, 502 F.2d 1091.
That alien with status as permanent resident might be deported to Communist Bulgaria did not preclude his being excluded
following his attempt to enter United States from Mexico, after two and one-half day stay in Mexico, with 55 pounds of
untaxed marijuana. Palatian v. Immigration and Naturalization Service, C.A.9 (Cal.) 1974, 502 F.2d 1091.
Conviction of alien of conspiracy to violate internal revenue laws, including intent to defraud United States of taxes due,
involved "moral turpitude" within this section stating as one of grounds for inadmissibility of alien a conviction of crime
involving moral turpitude. Gambino v. Immigration and Naturalization Service, C.A.2 (N.Y.) 1970, 419 F.2d 1355, certiorari
Violation of tax evasion statute, 7201 to 7203 of Title 26, was a material fact which alien was under duty to disclose in
his application for a visa. Tseung Chu v. Cornell, C.A.9 (Cal.) 1957, 247 F.2d 929, certiorari denied 78 S.Ct. 265, 355 U.S.
892, 2 L.Ed.2d 190.
Alien, who had entered plea of nolo contendere to indictment under tax evasion statutes, 7201 to 7203 of Title 26,
misrepresented a material fact in procuring visa when he made negative response to inquiry as to whether he had ever been
"convicted." Tseung Chu v. Cornell, C.A.9 (Cal.) 1957, 247 F.2d 929, certiorari denied 78 S.Ct. 265, 355 U.S. 892, 2 L.Ed.2d
190.
An intent to defraud the government is a prerequisite to conviction under tax evasion statute, 7201 to 7203 of Title 26,
and a conviction thereunder, where such fraud is charged in the indictment, is a conviction of a crime involving "moral
turpitude," for purposes of this section excluding from admission into United States any alien convicted of a crime involving
moral turpitude. Tseung Chu v. Cornell, C.A.9 (Cal.) 1957, 247 F.2d 929, certiorari denied 78 S.Ct. 265, 355 U.S. 892, 2
L.Ed.2d 190.
204. ---- Theft, moral turpitude, classes subject to exclusion
Crimes of theft, however they may be technically translated into domestic penal provisions, are presumed to involve moral
turpitude. Chiaramonte v. Immigration and Naturalization Service, C.A.2 1980, 626 F.2d 1093.
205. ---- Miscellaneous offenses, moral turpitude, classes subject to exclusion
Speculative possibility that alien's children would suffer extreme hardship in having to care for alien who lived in another
country was insufficient to establish extreme hardship, for purposes of alien's request for waiver of inadmissibility and
adjustment of status. Palmer v. I.N.S., C.A.7 1993, 4 F.3d 482.
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Alien who had been convicted of felony sale of marijuana and sentenced to two- year probation was entitled to have Board of
Immigration Appeals determine whether conviction was for "particularly serious crime" precluding withholding of
deportation; Board could not simply leap directly from fact of conviction to determination that deportation could not be
withheld. Beltran-Zavala v. I.N.S., C.A.9 1990, 912 F.2d 1027.
For purpose of determining whether alien is deportable on ground that he was excludable at time of entry because he had
been convicted of crime involving moral turpitude, crime having as an element the intent to defraud is one involving moral
turpitude. McNaughton v. Immigration and Naturalization Service, C.A.9 1980, 612 F.2d 457.
Conviction of alien for smuggling while he was on parole within the country before admission was ground for exclusion.
Klapholz v. Esperdy, C.A.2 (N.Y.) 1962, 302 F.2d 928, certiorari denied 83 S.Ct. 183, 371 U.S. 891, 9 L.Ed.2d 124.
Fact that the word "offense" appears in subsec. (a)(10) of this section providing that aliens who have been convicted of two
or more offenses shall be excluded from admission into United States does not evidence any intent by Congress to limit the
meaning of the word "crime" in subsec. (a)(9) of this section providing that aliens who have been convicted of a crime
involving moral turpitude shall be excluded from admission into United States, and therefore an alien guilty of a single
offense of frequenting or loitering about a public place soliciting men for the purpose of committing a crime against nature or
other lewdness would not be eligible for admission into United States under subsec. (a)(10) of this section dealing with
offenses, since such an alien would be ineligible under subsec. (a)(9) of this section dealing with crimes involving moral
turpitude. Babouris v. Esperdy, C.A.2 (N.Y.) 1959, 269 F.2d 621, certiorari denied 80 S.Ct. 662, 362 U.S. 913, 4 L.Ed.2d
620.
Possession of fraudulent permit and passport is not ground for excluding one entitled to admission. Camardo v. Tillinghast,
C.C.A.1 (Mass.) 1928, 29 F.2d 527.
Conviction for making and having wine for his own use was not for crime "involving moral turpitude." Coykendall v.
Skrmetta, C.C.A.5 (Ga.) 1927, 22 F.2d 120.
Various lapses from virtue, not amounting to prostitution, were not such misdemeanors involving moral turpitude as would
exclude alien woman in absence of proof that any law was violated by her in commission of such acts. Ex parte Isojoki,
N.D.Cal.1915, 222 F. 151.
Where alien was not proper person on whom benefits of American citizenship should be conferred, he was therefore
properly excluded on applying to enter third time under assumed name, it also appearing that he had attempted to shoot his
brother. U.S. v. Williams, C.C.A.2 (N.Y.) 1911, 192 F. 536, 113 C.C.A. 410.
Wilfully shooting and injuring another is a crime involving moral turpitude, requiring denial of an immigration visa. 1937,
39 Op.Atty.Gen. 95.
206. Pacifists, classes subject to exclusion
There is no statutory authority for denying an immigration visa to an alien because he is a member of a sect of extreme
pacifists who refuse for religious and conscientious reasons to support any kind of war measures. 1940, 39 Op.Atty.Gen. 509.
207. Previous removal, classes subject to exclusion
Restriction on immigration of aliens who have previously been deported, unless they have secured permission to reapply
for admission, is intended to be a qualitative restriction on immigration. de Vargas v. Immigration and Naturalization
Service, C.A.5 (Tex.) 1968, 409 F.2d 335, certiorari denied 90 S.Ct. 192, 396 U.S. 895, 24 L.Ed.2d 172.
Immigration inspector had no authority to admit to the United States a seaman who had previously been deported, and
therefore fact that immigrant inspector had admitted such a seaman did not make his entry lawful. Lazarescu v. U.S., C.A.4
(Md.) 1952, 199 F.2d 898.
Alien was properly excluded as previously deported "in pursuance of law," where prior decision sustaining deportation
became final through withdrawal of appeal. U.S. ex rel. Koehler v. Corsi, C.C.A.2 (N.Y.) 1932, 60 F.2d 123.
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Immigration and Naturalization Service did not abuse its discretion in denying deported alien permission to reapply for
admission into the United States, considering that only factor in alien's favor was that he was spouse of a permanent resident;
moreover, mere separation of alien from his spouse, while obviously entailing some hardship, did not in and of itself require
favorable exercise of discretion by the INS. Garay v. I.N.S., N.D.Cal.1985, 620 F.Supp. 11.
Alien, who was arrested and deported prior to 1967; who was convicted of illegal reentry in 1967 and again deported,
receiving probation on condition that he not reenter United States illegally during probation period; who was arrested and
again deported for illegal reentry in Mar., 1968; and who again illegally reentered United States in Mar., 1969, was not
entitled to permission to apply for admission into United States after deportation, even though he had married American
citizen in 1970. Reyes-Cerna v. Immigration and Naturalization Service, N.D.Ill.1972, 345 F.Supp. 1348.
Where Greek citizen subject to deportation was permitted to leave the United States voluntarily on board Greek vessel
whose master had agreed to take him to Greece, his re-entry of the United States the following year was illegal, though
master of vessel in violation of agreement had not taken him to Greece but to other foreign ports. Glikas v. Tomlinson,
N.D.Ohio 1943, 49 F.Supp. 104.
208. Procurers, classes subject to exclusion
"Section 2 [of Immigration Act of 1907] declares that certain classes of aliens shall be excluded from admission into the
United States, and among them 'persons who procure or attempt to bring in prostitutes or women or girls for the purpose of
prostitution or for any other immoral purpose.' This section applies only where an alien brings in a woman or girl for the
purpose indicated. It does not declare that the woman or girl need be an alien." Lewis v. Frick, U.S.Mich.1914, 34 S.Ct. 488,
233 U.S. 291, 58 L.Ed. 967.
Under subsection (a)(12) of this section making deportable aliens who directly or indirectly procure or attempt to procure,
or who had procured or attempted to procure or to import, prostitutes or persons for purpose of prostitution or for any other
immoral purpose, a single act of procuring one woman was insufficient as a matter of law to sustain a finding of alien's
deportability. Mirabal-Balon v. Esperdy, S.D.N.Y.1960, 188 F.Supp. 317.
209. Prostitutes, classes subject to exclusion
Under earlier Act, when alien prostitute once stepped beyond borders of United States for any purpose, however temporary
or transitory, she had no right to return here to resume her illegal calling. Ex parte Pouliot, E.D.Wash.1912, 196 F. 437.
Provision of former Act excluding alien prostitutes applied to Chinese, notwithstanding former 178 of this title declaring
that it should not be construed to repeal, alter, or amend existing laws as to immigration or exclusion of Chinese persons or
persons of Chinese descent. Looe Shee v. North, C.C.A.9 (Cal.) 1909, 170 F. 566, 95 C.C.A. 646.
210. Public charges, classes subject to exclusion--Generally
In order that aliens be excluded on ground that they are likely to become public charges, there must be evidence that they
are likely to be supported at expense of public. In re Keshishian, S.D.N.Y.1924, 299 F. 804.
In order to constitute alien "person likely to become a public charge," and subject to exclusion, it was not necessary that he
be classed as pauper or mentally or physically defective, as affecting his ability to earn livelihood. Ex parte Horn,
W.D.Wash.1923, 292 F. 455. See, also, Guimond v. Howes, D.C.Me.1925, 9 F.2d 412; Lam Fung Yen v. Frick, Mich.1916,
233 F. 393, 147 C.C.A. 329, Ann.Cas.1917C 232, certiorari denied 37 S.Ct. 113, 242 U.S. 642, 61 L.Ed. 542; U.S. v.
Williams, D.C.N.Y.1910, 175 F. 274.
A "person likely to become a public charge" is one who for some cause or reason appears to be about to become charge on
public, one who is to be supported at public expense, by reason of poverty, insanity and poverty, disease and poverty, idiocy
and poverty, or, it might be, by reason of having committed crime which on conviction would be followed by imprisonment;
it would seem there should be something indicating person is liable to become or shows probability of her becoming public
charge. Ex parte Mitchell, N.D.N.Y.1919, 256 F. 229. See, also, Wallis v. U.S., C.C.A.N.Y.1921, 273 F. 509.
To warrant exclusion or deportation of alien under earlier Act as "person likely to become a public charge," some facts or
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conditions had to be shown which made it "likely" that such person would become occupant of almshouse, or otherwise
require support at public expense, for want of means to support himself in future. Ex parte Mitchell, N.D.N.Y.1919, 256 F.
229.
211. ---- Treaties, public charges, classes subject to exclusion
Under earlier Act Japanese subjects, who were "paupers or persons likely to become a public charge" and therefore
forbidden to enter United States, were not given such right of entry by provision of treaty of Mar. 21, 1895, 29 Stat. 848, with
Japan, that citizens or subjects of each country should have "full liberty to enter, travel, or reside in any part of the territories
of the other country," especially since such treaty expressly excepted from its operation any ordinance or regulation relating
to "police and public security." Kaoru Yamataya v. Fisher, U.S.Wash.1903, 23 S.Ct. 611, 189 U.S. 86, 47 L.Ed. 721.
212. ---- Assistance from others, public charges, classes subject to exclusion
Assistance offered by persons under no legal duty did not require finding that alien was not likely to become public charge.
U.S. ex rel. Smith v. Curran, C.C.A.2 (N.Y.) 1926, 12 F.2d 636.
Alien woman and her three year old son were properly excluded as assisted aliens likely to become public charges, there
being affirmative evidence in record to support such finding. U.S. ex rel. Smith v. Curran, C.C.A.2 (N.Y.) 1926, 12 F.2d 636.
Under Act of 1882, words "unable to take care of himself or herself without becoming a public charge," did not have
reference to passenger's personal efforts alone. "The law intends those only who are likely to 'become a public charge,'
because they can neither take care of themselves, nor are under the charge or protection of any other person who, by natural
relation, or by assumed responsibility, furnishes reasonable assurance that they will not become a charge upon the public." In
re Day, C.C.S.D.N.Y.1886, 27 F. 678.
Defendants who executed "affidavit of support" furnished to an American Consul in a foreign country to induce the
issuance of a consular visa by which an alien was enabled to enter the country as an immigrant, did not undertake a legal
obligation but merely a moral one to support the alien and hence were not liable for support furnished to the alien while a
patient in a State hospital. Department of Mental Hygiene of State of Cal. v. Renel, N.Y.City Ct.1957, 167 N.Y.S.2d 22, 8
Misc.2d 615, affirmed 173 N.Y.S.2d 231, 10 Misc.2d 402, affirmed 175 N.Y.S.2d 556, 6 A.D.2d 782, appeal granted,
reargument denied 178 N.Y.S.2d 211, 6 A.D.2d 1005, affirmed 159 N.E.2d 678, 188 N.Y.S.2d 186, 6 N.Y.2d 791.
Defendants' affidavits of support furnished to an American Embassy in foreign country to induce admission of immigrant
into the United States did not create a contract between the defendants and the United States to support the alien, and
defendants were not liable to the state for cost of maintaining such immigrant in state hospital as a mentally ill person on
theory that the state was a third party beneficiary of a contract. State ex rel. Atty. Gen. v. Binder, Mich.1959, 96 N.W.2d 140,
356 Mich. 73.
213. ---- Limitation to aliens, public charges, classes subject to exclusion
Native of Puerto Rico who was inhabitant of that island at time of its cession to United States by treaty with Spain of April
11, 1899, 30 Stat. 1754, was not upon her arrival at port of New York alien immigrant within meaning of Act March 3, 1891,
providing for detention and deportation of alien immigrants likely to become public charges. Gonzales v. Williams,
U.S.N.Y.1904, 24 S.Ct. 177, 192 U.S. 1, 48 L.Ed. 317.
214. ---- Children, public charges, classes subject to exclusion
That agreement of infant alien's uncle to educate him until he reached 16 was unenforceable was no ground for excluding
alien. U.S. ex rel. De Sousa v. Day, C.C.A.2 (N.Y.) 1927, 22 F.2d 472.
Where relatives of immigrant school children, one of whom was citizen of United States, wealthy and owner of valuable
real estate, offered to give bond for their maintenance and education, until they were self supporting, there was no basis for
finding that they were likely to become public charge. U.S. ex rel. Berman v. Curran, C.C.A.3 (N.J.) 1926, 13 F.2d 96.
In order to avoid exclusion of alien child who was assisted immigrant, it had to be affirmatively shown that child was not
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likely to become public charge. U.S. ex rel. Azizian v. Curran, C.C.A.2 (N.Y.) 1926, 12 F.2d 502.
Fact that alien children were very young and that they might become public charges by death of their parents was not
sufficient reason for excluding them. U.S. ex rel. Duner v. Curran, C.C.A.2 (N.Y.) 1925, 10 F.2d 38, certiorari denied 46
S.Ct. 475, 271 U.S. 663, 70 L.Ed. 1139.
Immigration Act of Feb. 20, 1907, excluding persons likely to become public charge, applied to minor son of Chinese
merchant whose father would be liable for his support only during minority, where it appeared that at end of his minority he
would be liable to become such charge. Lam Fung Yen v. Frick, C.C.A.6 (Mich.) 1916, 233 F. 393, 147 C.C.A. 329,
certiorari denied 37 S.Ct. 113, 242 U.S. 642, 61 L.Ed. 542.
Formerly Secretary of Labor could in his discretion order exclusion of alien immigrant who was under 16 years of age,
orphan, and without money. U.S. v. Commissioner of Immigration, S.D.N.Y.1913, 209 F. 137.
Where minor aliens' father was naturalized, family resided in United States for less than five years and became public
charges, and mother repatriated herself and children to Philippines and returned there with children, children were not United
States citizens and were properly denied readmission to United States, as immigrants not in possession of unexpired
immigration visas, and as likely to become public charges. Ex parte Wienke, N.D.Cal.1940, 31 F.Supp. 733.
215. ---- Crewmen, public charges, classes subject to exclusion
Under corresponding provision of Act of 1903, alien seaman injured aboard British vessel and sent ashore to hospital for
treatment through British consul, could not be detained by hospital authorities against his wish on ground that he was not
cured and was liable to become public charge, and that consul directed his detention until he was cured so that he might be
returned to port from which he came; and seaman would be discharged on habeas corpus. In re Carlsen's Petition,
E.D.Pa.1904, 130 F. 379.
216. ---- Gamblers, public charges, classes subject to exclusion
Under this section permitting exclusion of all those aliens who had been arrested and deported unless prior to their
reembarkation the Attorney General has consented to their applying or reapplying for admission, burden was upon petitioner,
who challenged validity of deportation order, to show that he had received the requisite permission, not upon government to
show its absence. Solis-Davila v. Immigration and Naturalization Service, C.A.5 (Tex.) 1972, 456 F.2d 424.
Immigration Act of Feb. 20, 1907, excluding persons likely to become public charge, applied to persons who did not intend
to engage in profitable industry but to make their living by gambling. Lam Fung Yen v. Frick, C.C.A.6 (Mich.) 1916, 233 F.
393, 147 C.C.A. 329, certiorari denied 37 S.Ct. 113, 242 U.S. 642, 61 L.Ed. 542.
217. ---- Imprisonment, public charges, classes subject to exclusion
Pendency of indictment against alien furnished no substantial support for finding that he would be convicted and
imprisoned and thus become public charge. Coykendall v. Skrmetta, C.C.A.5 (Ga.) 1927, 22 F.2d 120.
Provision of former 136 of this title for exclusion of aliens likely to become public charge was not intended to deal with
criminal misconduct or imprisonment therefor, which was specifically provided for elsewhere. Coykendall v. Skrmetta,
C.C.A.5 (Ga.) 1927, 22 F.2d 120.
Aliens likely to be imprisoned for crime were subject to exclusion, as likely to become "public charge." Ex parte Riley,
D.C.Me.1926, 17 F.2d 646, reversed 24 F.2d 686. See, also, Ex parte Horn, D.C.Wash.1923, 292 F. 455.
218. ---- Mental defectives, public charges, classes subject to exclusion
Probability of alien becoming public charge at time of entry was dependent on whether alien was suffering from mental
defect at such time. U.S. ex rel. Mandel v. Day, D.C.N.Y.1927, 19 F.2d 520.
Alien might become public charge because of moral deficiencies and mental abnormalities, as well as because of poverty.
Ex parte Fragoso, D.C.Cal.1926, 11 F.2d 988.
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Former Act of Aug. 3, 1882, c. 376, 2, 22 Stat. 214, providing that if among passengers of vessel arriving at one of our
ports was found "convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public
charge," such person should not be permitted to land, did not apply to case of lunatic whose father would engage
satisfactorily that he would not become public charge. 1886, 18 Op.Atty.Gen. 500. See, also, 1891, 20Op.Atty.Gen. 79.
219. ---- Physical defectives, public charges, classes subject to exclusion
Evidence sustained finding that alien acquired disease before landing making him public charge. Ex parte Wong Nung,
C.C.A.9 (Cal.) 1929, 30 F.2d 766.
Exclusion of alien for physical defects, which would affect her ability to earn her living, was justified by evidence showing
that she was blind in one eye, afflicted with ozena (chronic atrophia rhinitis) and with apparent syphilitic infection. U.S. ex
rel. Markin v. Curran, C.C.A.2 (N.Y.) 1925, 9 F.2d 900, certiorari denied 46 S.Ct. 348, 270 U.S. 647, 70 L.Ed. 779.
Where evidence in exclusion proceedings showed that alien though deaf mute, was able to support himself as journeyman
tailor; and that brother and uncle, who were both prosperous business men, were willing to take care of him and put his 16
year old son through college, finding that he was likely to become a public charge was not warranted. U.S. v. Tod, C.C.A.2
(N.Y.) 1923, 294 F. 820.
Conclusion of board of special inquiry, afterward affirmed by Department of Labor, excluding deaf mute immigrant, as
likely to become public charge and because he failed in literacy test, was sustained by evidence. Tullman v. Tod, C.C.A.2
(N.Y.) 1923, 294 F. 87.
Where alien was required by law to be excluded because of physical defect, which might affect his ability to earn living,
his admission was not authorized by offer to give him employment at remunerative wages. Ex parte Rokiyi Tambara,
W.D.Wash.1923, 292 F. 764, affirmed 299 F. 299.
220. ---- Miscellaneous persons, public charges, classes subject to exclusion
Under Act of 1907 alien could not be declared public charge on ground that labor market in city of his immediate
destination was overstocked. Gegiow v. Uhl, U.S.N.Y.1915, 36 S.Ct. 2, 239 U.S. 3, 60 L.Ed. 114.
Exclusion of one child because quota for country of her birth was exhausted, and exclusion of father as accompanying
alien, did not justify exclusion of mother and other children on ground that they were likely to become public charges, merely
because separated from husband and father. In re Keshishian, S.D.N.Y.1924, 299 F. 804.
Able-bodied Japanese woman with fair education, with no mental or physical disability, with some knowledge of English,
skilled as seamstress and manufacturer of artificial flowers, with disposition to work and support herself, with well-to-do
sister and brother-in-law domiciled in this country ready to assist her, and with husband living here engaged in business, was
wrongly excluded as likely to become public charge. Ex parte Hosaye Sakaguchi, C.C.A.9 (Wash.) 1922, 277 F. 913.
Under Immigration Rule 14, as amended June 16, 1913, fact that certain Hindu aliens had been permitted to land in
Philippines and had been given required certificate on their immigration to United States, did not preclude immigration
officers from refusing to permit them to land on ground that they would likely become public charges. In re Rhagat Singh,
N.D.Cal.1913, 209 F. 700.
Under earlier Act where relator, actress, came to United States with her husband, who was engineer with property valued at
more than $600, and relator had gowns valued at $1,200, finding that relator was not entitled to enter because she was likely
to become public charge was unsustainable. Williams v. U.S., C.C.A.2 (N.Y.) 1913, 206 F. 460, 124 C.C.A. 366.
Where alien, applying to enter United States, was under no disability and had quite a sum of money, he could not be
excluded as likely to become public charge because he owed money to another. U.S. v. Williams, S.D.N.Y.1913, 204 F. 828.
Where petitioner, having immigrated to United States in 1899, returned to Italy in January 1909, was followed about four
months thereafter by his wife and children, remained there until September, 1910, when he returned to United States alone,
was barber by trade and had followed that occupation in New York during his residence there, was 29 years of age, and had
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$25 when he landed, intended to go to his brother, and was not subject to any mental or physical disability, and on
examination was shown to have been twice arrested during his former residence in New York, and on second occasion was
convicted of carrying concealed weapon and sentenced to imprisonment for 15 days, his offense being misdemeanor under
New York law, petitioner was not person likely to become public charge, and was not subject to deportation on such ground.
Ex parte Saraceno, C.C.S.D.N.Y.1910, 182 F. 955.
Where relator was married to her husband in Cuba, and he had already entered United States and was employed, earning
daily wages sufficient to prevent himself and wife becoming public charges, and both were strong, healthy, and intelligent,
relator was also entitled to enter. U.S. v. Redfern, C.C.E.D.La.1910, 180 F. 500.
Where naturalized citizen was married in Russia, but marriage though valid there was illegal in United States, his alleged
wife and their child, who were likely to become public charges, were properly ordered to be deported on arrival at port in
United States. U S ex rel. Devine v. Rodgers, E.D.Pa.1901, 109 F. 886.
221. ---- Reentry, public charges, classes subject to exclusion
Where 70 year old illiterate widow after 21 years' residence in United States obtained re-entry permit before leaving for
foreign visit and on return had only $100 on hand with about $1,000 in postal savings bank in Italy, and no one was obligated
to support her, and her niece declined to do so, inquiry board was justified in finding that alien was likely to become public
charge, and Secretary of Labor was warranted in refusing to exercise discretion to admit alien. U.S. ex rel. Minuto v. Reimer,
C.C.A.2 (N.Y.) 1936, 83 F.2d 166.
Alien re-entering United States after fishing trip in foreign waters on American vessel which he did not leave was not
making original entry and was not subject to deportation as likely to become public charge. Ex parte T. Nagata,
D.C.Cal.1926, 11 F.2d 178.
Re-entry permit did not exempt alien from compliance with immigration law, or from exclusion because likely to become
public charge. U.S. ex rel. Matterazza v. Fogarty, W.D.N.Y.1936, 13 F.Supp. 403.
222. Return to unrelinquished domicile, classes subject to exclusion-- Generally
For purpose of provision governing eligibility for discretionary relief from deportation, alien could form requisite intent to
remain in United States indefinitely required for lawful unrelinquished domicile as of date of his application for amnesty fee
receipt under Immigration Reform and Control Act's general amnesty program. Castellon-Contreras v. I.N.S., C.A.7 1995, 45
F.3d 149.
"Lawful domicile" under Immigration and Nationality Act provision vesting in the Attorney General the discretion to admit
into the United States aliens lawfully admitted for permanent residence who seek to return from abroad, if United States
previously has been their lawful unrelinquished domicile of seven years, means at least the simultaneous existence of lawful
physical presence in the United States and lawful intent to remain there indefinitely. Melian v. I.N.S., C.A.11 1993, 987 F.2d
1521.
As it is assumed that Congress intends words to have their ordinary meaning, it is appropriate to define "domicile" in
reference to generally accepted common- law meaning if to do so does not defeat purposes of statute permitting waiver of
deportation of alien who is lawfully admitted for permanent residence and has lawful unrelinquished domicile of seven
consecutive years. Rosario v. I.N.S., C.A.2 1992, 962 F.2d 220.
Lawfully admitted permanent resident alien, who was convicted of possession of marijuana for sale, could not
constitutionally be denied eligibility for relief afforded to aliens lawfully admitted for permanent residency who temporarily
proceed abroad voluntarily and are not under an order of deportation even though he had not departed from and returned to
the United States after his conviction, which gave rise to his deportability. Tapia-Acuna v. Immigration and Naturalization
Service, C.A.9 1981, 640 F.2d 223.
While this section pertaining to discretionary waiver of exclusion is literally available only to excludable aliens who seek
admission to the United States, this section's beneficial effects have been extended to eligible aliens who have not actually
departed from the United States after their initial entry, and it has also been applied to aliens who have already reentered,
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even if illegally. Lok v. Immigration and Naturalization Service, C.A.2 1977, 548 F.2d 37.
Evidence failed to show that alien at time of entry was returning to lawful unrelinquished domicile of seven consecutive
years. Ungo v. Beechie, C.A.9 (Cal.) 1963, 311 F.2d 905, certiorari denied 83 S.Ct. 1301, 373 U.S. 911, 10 L.Ed.2d 413.
A resident alien who voluntarily goes to a foreign country is subject upon his return to all the excluding provisions of the
immigration laws, the same as if he had had no previous residence or domicile in the United States. United States Ex. Rel.
Kwong Hai Chew v. Colding, C.A.2 (N.Y.) 1951, 192 F.2d 1009, certiorari granted 72 S.Ct. 769, 343 U.S. 933, 96 L.Ed.
1341, reversed on other grounds 73 S.Ct. 472, 344 U.S. 590, 97 L.Ed. 576.
Hardships in exclusion of Japanese, returning from visit to Japan after long residence in California, were for legislature, not
court, to consider. Kaichiro Sugimoto v. Nagle, C.C.A.9 (Cal.) 1930, 38 F.2d 207, certiorari denied 50 S.Ct. 351, 281 U.S.
745, 74 L.Ed. 1158.
Alien, voluntarily leaving country, was subject to all provisions of Immigration Act when he returned. Bendel v. Nagle,
C.C.A.9 (Cal.) 1927, 17 F.2d 719.
Where aliens returning to United States from temporary visit to Italy were entitled to nonquota visa on their passports by
American consul in Italy, they were entitled to admission, under maxim that equity looks on that as done which ought to have
been done, though notation on their visas merely recited that it was in lieu of nonquota visa. In re Spinnella, D.C.N.Y.1924, 3
F.2d 196.
Fact that alien ordered to be deported had once in good faith acquired residence prior to her return after temporary absence
in foreign country did not entitle her to enter on her return and remain in United States. Ex parte Petterson, D.C.Minn.1908,
166 F. 536.
Rule in earlier cases had been that alien who had acquired domicile in United States could not thereafter, and while still
retaining such domicile, legally be treated as immigrant on his return to this country after temporary absence for specific
purpose not involving change of domicile. Rodgers v. U S ex rel. Buchsbaum, C.C.A.3 (Pa.) 1907, 152 F. 346, 81 C.C.A.
454. See, also, U.S. v. Nakashima, Hawaii 1908, 160 F. 842, 87 C.C.A. 646; In re Buchsbaum, D.C.Pa.1905, 141 F. 221; In
re Ota, D.C.Cal.1899, 96 F. 487; In re Maiola, C.C.N.Y.1895, 67 F. 114; In re Martorelli, C.C.N.Y.1894, 63 F. 437; In re
Panzara, D.C.N.Y.1892, 51 F. 275.
Permanent resident alien returns from temporary visit abroad only when his or her visit is for period relatively short, fixed
by some early event, or his or her visit will terminate upon occurrence of event having reasonable probability of occurring
within relatively short period of time. Angeles v. District Director, I.N.S., D.Md.1990, 729 F.Supp. 479.
An alien who voluntarily left this country was subject to all the provisions of former 1 et seq. of this title whenever he
sought to return. Zacharias v. McGrath, D.C.D.C.1952, 105 F.Supp. 421.
Native of Syria, who was naturalized in United States and later returned to his native country where he married Syrian
woman and remained in that country for more than two years, and then came back to United States, bringing his wife with
him, did not thereby cease to be citizen of United States under earlier Act and his wife was also to be deemed citizen and was
not subject to exclusion under immigration laws, providing she might herself be lawfully naturalized. 1910, 28 Op.Atty.Gen.
504.
Prior Act did not apply to citizens who returned to United States, as act of returning rebutted presumption of
noncitizenship. 1910, 28 Op.Atty.Gen. 504.
223. ---- Administrative discretion, return to unrelinquished domicile, classes subject to exclusion
Immigration and Nationality Act section authorizing Attorney General to grant relief from orders of deportation to aliens
lawfully admitted for permanent residence who temporarily proceed abroad voluntarily and not under order of deportation,
and who are returning to lawful unrelinquished domicile of seven consecutive years, is inapplicable in cases in which aliens
have been found deportable under charge of deportability for which there is no comparable ground of excludability. Chow v.
I.N.S., C.A.5 1993, 12 F.3d 34.
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Section of the Immigration and Nationality Act giving Attorney General discretion to admitpermanent resident aliens who
temporarily proceeded abroad voluntarily and who returning to an unrelinquished domicile of seven consecutive years also
applies to lawful permanent residents who have not left the United States but who meet the seven-year domicile requirement
and face deportation. Cortes-Castillo v. I.N.S., C.A.7 1993, 997 F.2d 1199.
Statute giving Attorney General discretion to admit otherwise excludable returning aliens did not authorize relief to alien
facing deportation for firearms violation, in that such ground of deportation was not one of the grounds of exclusion
referenced in statute. Campos v. I.N.S., C.A.1 1992, 961 F.2d 309.
Attorney General or his representative may pretermit a ruling on the alien's eligibility to apply for a discretionary waiver of
excludability in cases where such relief would not be granted in any event. Vissian v. Immigration and Naturalization
Service, C.A.10 1977, 548 F.2d 325.
Even though petitioner had not accumulated seven years of residence in the United States since his admission to permanent
resident alien status, he was nevertheless eligible for the discretionary relief afforded by this section providing that "Aliens
lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of
deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the
discretion of the Attorney General . . .." Lok v. Immigration and Naturalization Service, C.A.2 1977, 548 F.2d 37.
This section providing that a permanent resident alien who temporarily proceeds abroad voluntarily and not under
deportation order and who returns to lawful unrelinquished domicile of seven consecutive years may be admitted in
discretion of Attorney General is applicable not only to resident aliens who temporarily proceed abroad but also to
nondeparting aliens; thus, an interpretation of this section as applying only to departing aliens is unconstitutional. Francis v.
Alien, subject to deportation on account of conviction for possession of marijuana, was not entitled to discretionary relief
under this section permitting discretionary reentry of aliens returning to unrelinquished domicile. Dunn v. Immigration and
Naturalization Service, C.A.9 1974, 499 F.2d 856, certiorari denied 95 S.Ct. 776, 419 U.S. 1106, 42 L.Ed.2d 801.
Where native of China, who entered United States in 1921 and who had not been lawfully admitted for permanent
residence, attempted to return to United States after visiting China under passport obtained by fraudulently representing that
he was a native American, he could not show right to entry, and could not seek admission within discretion of Attorney
General under former 136(p) of this title. Wah v. Shaughnessy, C.A.2 (N.Y.) 1951, 190 F.2d 488.
Period of unrelinquished seven years' domicile, entitling illiterate aliens, absent from country over six months before
residing therein for five years continuously, to re-enter, subject to discretion of Secretary, dated from entry at which
Secretary had to use discretion. Navigazione Generale Italiana v. Elting, C.C.A.2 (N.Y.) 1933, 66 F.2d 537, certiorari denied
54 S.Ct. 126, 290 U.S. 691, 78 L.Ed. 595.
Japanese returning to United States without re-entry permit was not entitled to enter where Secretary of Labor exercised his
former discretion against him under former 136 of this title. Nagle v. Naoichi Misho, C.C.A.9 (Cal.) 1929, 33 F.2d 470.
Refusal to admit aliens returning after temporary absence to unrelinquished domicile of seven years was not abuse of
discretion. Lidonnici v. Davis, App.D.C.1926, 16 F.2d 532, 57 App.D.C. 36, certiorari denied 47 S.Ct. 591, 274 U.S. 744, 71
L.Ed. 1325.
Lawful permanent resident aliens with over seven years unrelinquished domicile within United States are entitled to
discretionary relief from deportation under Immigration and Nationality Act only when charge rendering them deportable
would also render them inadmissible if they were seeking to enter United States. U.S. v. Vieira-Candelario, D.R.I.1992, 797
224. ---- Bail or bond, return to unrelinquished domicile, classes subject to exclusion
Alien's going into Canada and return under bail pending deportation proceedings was new entry. Riley v. Howes,
D.C.Me.1927, 17 F.2d 647, reversed on other grounds 24 F.2d 686.
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Alien's intention in going into Mexico for 27 days when under bond to answer Federal charge did not abandon domicile.
Skrmetta v. Coykendall, D.C.Ga.1926, 16 F.2d 783, affirmed 22 F.2d 120.
225. ---- Children, return to unrelinquished domicile, classes subject to exclusion
Child's "lawful unrelinquished domicile" is that of his parents for purposes of statute providing that deportable aliens who
are permanent residents and who have accrued seven years of "lawful unrelinquished domicile" in the United States are
eligible for discretionary waiver of deportation; child's "lawful unrelinquished domicile" does not begin on day that he
acquires permanent residence. Lepe-Guitron v. I.N.S., C.A.9 1994, 16 F.3d 1021.
Under earlier Act children of aliens born in United States were citizens and not aliens, and hence were not subject to
exclusion, under immigration laws, on their return with their alien parents from temporary visit abroad. In re Giovanna,
S.D.N.Y.1899, 93 F. 659.
226. ---- Commencement and termination of period, return to unrelinquished domicile, classes subject to exclusion
For purposes of provision permitting alien who had seven consecutive years of lawful unrelinquished domicile to seek
discretionary relief from deportation, lawful permanent resident who gained such status under legalization program by first
becoming temporary resident established lawful domicile for purpose of relief statute as of date of amnesty application, if
prima facie application was presented at that time. Ortega de Robles v. I.N.S., C.A.9 1995, 58 F.3d 1355.
Alien was eligible for discretionary relief from deportation, where alien gained lawful domicile on date of his application
for amnesty filed more than seven years before Board of Immigration Appeals affirmed immigration judge's decision to
deport alien. Avelar-Cruz v. I.N.S., C.A.7 1995, 58 F.3d 338.
Point during deportation process at which resident alien's lawful domicile ends for purposes of subsec. (c) of this section
authorizing attorney general to grant otherwise deportable alien with more than seven years lawful unrelinquished domicile
relief from deportation is when deportation order becomes administratively final; that will be date Board of Immigration
Appeals renders its decision on appeal or certification, or date appeal is waived, or date that time for appeal expires with none
taken. Jaramillo v. I.N.S., C.A.11 1993, 1 F.3d 1149.
Amendment of factual allegation regarding alien's last date of entry into United States in order to show cause did not alter
cutoff date for determining whether alien had maintained lawful unrelinquished domicile in United States for seven years, so
as to require calculation of alien's eligibility for waiver of inadmissibility from date of amendment; amendment was
immaterial to charge of deportability where, even if alien's last date of entry into United States had been as originally alleged,
he could have been deported. Ballbe v. I.N.S., C.A.11 1989, 886 F.2d 306, certiorari denied 110 S.Ct. 2166, 495 U.S. 929,
109 L.Ed.2d 496.
With regard to statute allowing discretionary waiver of deportability for aliens lawfully admitted for permanent residence
and having a lawful unrelinquished domicile of seven consecutive years, alien's "lawful domicile" terminated when Board of
Immigration Appeals affirmed immigration judge's order of deportation seven days short of required seven years.
Variamparambil v. I.N.S., C.A.7 1987, 831 F.2d 1362.
Accrual of seven years for purposes of provision of Immigration and Naturalization Act [8 U.S.C.A. 1182(c)] which
states that aliens lawfully admitted for permanent residence who temporarily proceed abroad voluntarily and not under order
of deportation, and who are returning to lawful unrelinquished domicile of seven consecutive years, may be admitted in
discretion of Attorney General without regard to certain grounds for exclusion stops at least when decision to exclude is
administratively final. Dabone v. Karn, C.A.3 (Pa.) 1985, 763 F.2d 593.
Elapsed time during an appeal that did not challenge order of deportation could not be used as part of required seven-year
period of "lawful unrelinquished domicile" for a permanent resident alien to become eligible for discretionary relief from
deportation. Avila-Murrieta v. I.N.S., C.A.9 1985, 762 F.2d 733.
Even assuming, for purpose of discretionary relief from deportation order, that alien's lawful domicile does not terminate
until merits of original deportation decision have been fully resolved by the courts, alien failed to meet threshold requirement
of seven consecutive years of domicile where he became lawful permanent resident in February, 1974, and district court
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denied petition for review of deportation order in December, 1979. Reid v. I.N.S., C.A.3 1985, 756 F.2d 7.
Date upon which Immigration and Naturalization Service commenced deportation proceeding was the proper date for
termination of lawful domicile for purposes of determining eligibility under this section providing discretionary relief from
deportation to aliens who temporarily proceeded abroad voluntarily and who are returning to a lawful unrelinquished
domicile of seven consecutive years; thus, alien was ineligible for relief under this section since he had not established a
lawful unrelinquished domicile of seven consecutive years. Marti-Xiques v. I.N.S., C.A.11 1984, 741 F.2d 350.
To be eligible for discretionary relief from deportation on ground of lawful unrelinquished domicile of seven consecutive
years, aliens must accumulate seven years of lawful unrelinquished domicile after their admission for permanent residence.
Castillo-Felix v. Immigration & Naturalization Service, C.A.9 1979, 601 F.2d 459.
Domicile of alien must go back seven years from date of his last arrival in United States to entitle him to admission as alien
returning to "unrelinquished domicile." Transatlantica Italiana v. Elting, C.C.A.2 (N.Y.) 1935, 74 F.2d 732.
Alien illiterates who came to United States in 1912, returned to Italy for army service in 1915, came back in 1919 and
1920, respectively, and left United States again in years 1923 and 1924, were not entitled to admission within provisos
applicable to aliens having 5-year "residence" or "unrelinquished domicile." Transatlantica Italiana v. Elting, C.C.A.2 (N.Y.)
1935, 74 F.2d 732.
Trachomatous alien who first came to United States in 1913, left in 1918, and returned in 1919, went back again in 1923
and was excluded in 1924, was not entitled to enter as alien returning to unrelinquished domicile, where in 1917 he was
young laborer, single, and not attached to any place. Transatlantica Italiana v. Elting, C.C.A.2 (N.Y.) 1935, 74 F.2d 732.
Alien returning to country after temporary absence abroad must have been domiciled and retained domicile in United
States to be admitted under exceptions from quota. Transatlantica Italiana v. Elting, C.C.A.2 (N.Y.) 1933, 66 F.2d 542,
Two entries for visits last one being under visitor's visa, with considerable absence between them, did not entitle alien on
third entry to benefits of former 136(p) of this title. U.S. ex rel. Thomas v. Day, C.C.A.2 (N.Y.) 1928, 29 F.2d 485.
Relative to the right to admission of an illiterate alien, as a "nonquota immigrant" within the definition thereof in subsec.
(b) of former 204 of this title any domicile he obtained in the United States by presence therein from 1902 to 1910 was not
"unrelinquished" within former 136 of this title, when he then returned to his native land, and there remained nine years. Ex
parte Domenici, D.C.Mass.1925, 8 F.2d 366.
Alien was not eligible for relief from deportation as permanent resident alien with lawful unrelinquished domicile of seven
consecutive years, though he entered United States as alien crewman on 29-day visa in March 1982 and petition for alien
relative was filed on his behalf in March 1987, where he was not admitted as lawful permanent resident until December 1988
and that status ended when he failed to appeal final administrative order of deportation entered against him on February 15,
1994; he did not establish lawful domicile for purposes of satisfying seven year residency requirement during time that he
was in United States illegally after entering as alien crewman before becoming permanent resident. Bryan v. I.N.S.,
D.Conn.1996, 928 F.Supp. 167, affirmed 101 F.3d 683.
227. ---- Intent of alien, return to unrelinquished domicile, classes subject to exclusion
The fact that Immigration Naturalization Service and courts tolerated illegal alien's presence in country because of
possibility that he might obtain discretionary relieffrom the Attorney General did not legalize his intent to remain for
purposes of accumulating seven years of lawful domicile entitling him to relief from deportation. Lok v. I. N. S., C.A.2 1982,
681 F.2d 107.
To establish domicile, aliens must not only be physically present here, but must intend to remain. Castillo-Felix v.
Immigration & Naturalization Service, C.A.9 1979, 601 F.2d 459.
That alien had returned to Mexico to care for his ailing mother was not sufficient for finding that alien's seventeen-year
absence from the United States was "temporary". Gamero v. Immigration and Naturalization Service, Los Angeles Dist.,
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C.A.9 (Cal.) 1966, 367 F.2d 123.

Where alien had left United States for period of seventeen years, special inquiry officer of Immigration and Naturalization
Service properly found that alien had abandoned his intent to return to the United States within relatively short period of
time. Gamero v. Immigration and Naturalization Service, Los Angeles Dist., C.A.9 (Cal.) 1966, 367 F.2d 123.
Every claim of right to re-enter United States as illiterate alien returning from temporary visit abroad must be decided on
its own facts; ultimate question being alien's intent. U.S. ex rel. Illuzzi v. Curran, C.C.A.2 (N.Y.) 1926, 11 F.2d 468.
Former 136(p) of this title applied to alien returning after absence of nine years, where there was no evidence that he
departed with intention of returning, but his own testimony was that he would not have returned but for request of his father
to come to see him before his death. MacKusick v. Johnson, C.C.A.1 (Mass.) 1924, 3 F.2d 398.
Provisions of Immigration Act Feb. 20, 1907, respecting admission and deportation of aliens, applied to alien who again
sought admittance to United States after having remained in this country for more than three years after first entry, and
having gone abroad although for temporary purpose with intention of returning. U.S. v. Tsurukichi Nakao, C.C.A.9 (Hawai'i)
1914, 217 F. 49, 133 C.C.A. 35. See, also, U.S. v. Tsunezo Kusano, Hawaii 1914, 217 F. 50, 133 C.C.A. 36.
Under Act of 1907, whether or not alien who had once been admitted into United States but who without being naturalized
afterward returned to country of his original domicile, upon again coming to this country was "alien immigrant," subject to its
provisions, depended upon circumstances of particular case and if on his first entry he left family in his native country to
which he returned without any definite intention of again coming to United States, and leaving neither business nor property
here, he could not be considered to have acquired domicile here which took him out of operation of statute when he again
applied for admission without his family. U S ex rel Barlin v. Rodgers, C.C.A.3 (Pa.) 1911, 191 F. 970, 112 C.C.A. 382.
228. ---- Period of absence, return to unrelinquished domicile, classes subject to exclusion
Alien was not entitled to invoke provision of this section for discretionary relief from deportation where alien had not
accumulated seven-year statutory period of stay after procurement of his permanent resident status. Chiravacharadhikul v.
Immigration and Naturalization Service, C.A.4 1981, 645 F.2d 248, certiorari denied 102 S.Ct. 389, 454 U.S. 893, 70
L.Ed.2d 207.
Absence of over six months from United States by alien acquiring and retaining domicile therein, was not fatal to privilege
of re-entry under exception from quota, but merely raised presumption of relinquishment of domicile. Transatlantica Italiana
v. Elting, C.C.A.2 (N.Y.) 1933, 66 F.2d 542, certiorari denied 54 S.Ct. 126, 290 U.S. 691, 78 L.Ed. 595.
Illiterate aliens, continuously residing in country for five years before leaving, could be absent for less than six months
without losing privilege of re-entry. Navigazione Generale Italiana v. Elting, C.C.A.2 (N.Y.) 1933, 66 F.2d 537, certiorari
denied 54 S.Ct. 126, 290 U.S. 691, 78 L.Ed. 595.
Absences of aliens from United States for over six months after leaving country raised presumption of relinquishment of
their domiciles therein. Compagnie Francaise de Navigation A Vapeur v. Elting, C.C.A.2 (N.Y.) 1933, 66 F.2d 536, certiorari
denied 54 S.Ct. 128, 290 U.S. 692, 290 U.S. 693, 78 L.Ed. 596, certiorari denied 54 S.Ct. 128, 290 U.S. 693, 78 L.Ed. 597.
229. ---- Permit, return to unrelinquished domicile, classes subject to exclusion
Permit for temporary visit abroad did not give alien, in excluded class because of illiteracy, right to re-enter United States.
Ex parte Di Stephano, D.C.Mass.1928, 25 F.2d 902.
230. ---- Rules and regulations, return to unrelinquished domicile, classes subject to exclusion
Immigration Rule 16(3) of May 1, 1917, providing that "convincing proof of a continuous residence of seven years shall be
exacted" was reasonable, and alien returning after absence of more than six months could not claim benefit of such provision.
U.S. v. Curran, C.C.A.2 (N.Y.) 1924, 299 F. 206.
Rule (2a) under the Quota Act of 1921, providing that "temporary absence [meant] an absence in any foreign country
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(without relinquishment of domicile) not exceeding six months in duration", was reasonable, at least in the absence of any
extraordinary or explanatory circumstances. U.S. v. Tod, C.C.A.2 (N.Y.) 1924, 297 F. 214. See, also, MacKusick v. Johnson,
C.C.A.Mass.1924, 3 F.2d 398; Hee Fuk Yuen v. White, C.C.A.Cal.1921, 273 F. 10, certiorari denied 42 S.Ct. 51, 257 U.S.
639, 66 L.Ed. 411.
Illiterate alien, who returned to his native country and remained there for 21 months, and who gave no convincing proof of
having had any domicile in United States, was not entitled to re-enter, under Quota Act of 1921, entitling "aliens returning
from a temporary visit abroad" to enter, in view of Rule 2a of Secretary of Labor, construing "temporary absence" to mean
absence not exceeding six months in duration, and former 136 of this title, providing that aliens returning from temporary
absence might be admitted in discretion of Secretary of Labor, under such conditions as he might prescribe, and Immigration
Rule No. 16, adopted thereunder, requiring returning aliens to give convincing proof of domicile in United States for seven
consecutive years and of departure therefrom with intention of returning, since Quota Act was in addition to Immigration Act
of 1917 and not substitution therefor, and returning alien was therefore required to comply with both Acts. U.S. v. Tod,
C.C.A.2 (N.Y.) 1924, 297 F. 214.
Departmental rule providing that absence not exceeding six months should be deemed temporary absence was not
unreasonable, and its application to Chinese merchant seeking readmission was not unfair. Hee Fuk Yuen v. White, C.C.A.9
(Cal.) 1921, 273 F. 10, certiorari denied 42 S.Ct. 51, 257 U.S. 639, 66 L.Ed. 411. See, also, U.S. v. Curran, C.C.A.N.Y.1924,
299 F. 206.
Under Act of 1907, language of Rule 4 of regulations of Bureau of Immigration and Naturalization, relating to admission
and exclusion of aliens, that "the provisions of the immigration act do not apply to aliens who have once been duly admitted
to the United States, or to any waters, territory, or other place subject to the jurisdiction thereof, proceeding to or from the
continental territory of the United States," applied only to aliens who had been admitted to United States or its dependencies
and were proceeding either from dependencies to continent or from continent to dependencies, and it had no application to
alien arriving from foreign country although he had been previously admitted. U.S. ex rel. Funaro v. Watchorn,
C.C.S.D.N.Y.1908, 164 F. 152.
231. ---- Status, return to unrelinquished domicile, classes subject to exclusion
Lawful permanent resident short of seven-year legal residence required to seek discretionary relief from deportation did not
satisfy residence requirement by counting time spent in United States as illegal alien. Madrid-Tavarez v. I.N.S., C.A.5 1993,
999 F.2d 111.
Time spent in United States under temporary worker visa cannot be used to satisfy seven-year "lawful domicile"
requirement needed for alien to be eligible for discretionary relief from deportation; terms of temporary worker visa required
alien to not intend to establish domicile in United States. Graham v. I.N.S., C.A.3 1993, 998 F.2d 194.
Alien's lawful domicile did not commence until date he became a permanent resident of the United States, rather than on
date he entered the United States on "B-2" visa as temporary visitor for pleasure. Melian v. I.N.S., C.A.11 1993, 987 F.2d
1521.
Alien did not have "lawful unrelinquished domicile of seven consecutive years" in the United States so as to be eligible to
ask the Attorney General for discretionary relief from an order of deportation, where for at least three of the seven years
during which he claimed to have been lawfully domiciled in this country he held the status of a nonimmigrant student, since
if alien complied with the terms of his student visa and did not intend to abandon his residence in foreign country, he was not
"domiciled" in the United States, while if he then intended to make the United States his permanent home, he violated the
conditions of his student visa and was not here "lawfully." Anwo v. Immigration and Naturalization Service, C.A.D.C.1979,
607 F.2d 435, 197 U.S.App.D.C. 121.
If aliens are here for a temporary purpose, they cannot establish domicile, while if they intend to stay, they violate the
terms of their admission and are no longer here lawfully within provision of this section allowing discretionary relief from
deportation for alien with lawful unrelinquished domicile of seven consecutive years. Castillo-Felix v. Immigration &
232. ---- Tacking periods of residence, return to unrelinquished domicile, classes subject to exclusion
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Illiterate aliens' periods of residence in country before and after interval of less than six months' absence, but no more,
could be tacked together to form period of five years' residence necessary to authorize re-entry. Navigazione Generale
Italiana v. Elting, C.C.A.2 (N.Y.) 1933, 66 F.2d 537, certiorari denied 54 S.Ct. 126, 290 U.S. 691, 78 L.Ed. 595.
233. Smugglers, classes subject to exclusion
Lawful permanent resident alien's departure from the United States was not innocent, but rather amounted to a meaningful
interruption in his residence, and thus he was properly placed in exclusion rather than deportation proceedings for alien
smuggling upon reentry, although he had no intent to aid or encourage his family to enter the United States illegally when he
departed, where he formed intent to encourage and facilitate his family's illegal entry during his trip abroad. Selimi v. I.N.S.,
C.A.7 2002, 312 F.3d 854.
Decision by Board of Immigration Appeals (BIA) that resident alien assisted in alien smuggling, and thus was not entitled
to relief from deportation, was not supported by substantial evidence; conclusion of Immigration Judge (IJ) that alien
admitted to smuggling in initial hearing could not be confirmed given that hearing was not recorded and that IJ may have
added handwritten words "admit" to order to show cause months after initial hearing, alien did not clearly acquiesce in
subsequent recorded hearing to IJ's statement that he had made admission, and circumstances of alleged smuggling incident
did not show overwhelming probability of guilt. Cortez-Acosta v. I.N.S., C.A.9 2000, 234 F.3d 476.
Board of Immigration Appeals' (BIA) interpretation of 1991 amendment to statute limiting eligibility for waiver to lawful
permanent aliens who attempted to smuggle immediate relative into the United States, as adding class of aliens seeking
admission or adjustment of status and retaining immediate-family-member restriction for both classes was reasonable.
Compean-Guevara v. Solis, W.D.Tex.1996, 939 F.Supp. 551.
234. Stowaways, classes subject to exclusion
Even though under prior immigration acts an alien, who had entered country as a stowaway and who had been convicted of
two crimes involving moral turpitude, had achieved a nondeportable status, such status was not preserved by savings clause,
set out as note under 1101 of this title, which clause was applicable unless 1181 of this title otherwise provided, since
1181(a)(4) of this title specifically provided that an alien was deportable if at time of entry he was within class of excludable
aliens or if after entry he had been convicted of two crimes involving moral turpitude. Lehmann v. U. S. ex rel. Carson,
U.S.Ohio 1957, 77 S.Ct. 1022, 353 U.S. 685, 1 L.Ed.2d 1122, rehearing denied 77 S.Ct. 1421, 354 U.S. 944, 1 L.Ed.2d 1542.
Section 1251 of this title, creating exception from deportation for aliens who are otherwise admissible and who have
certain family ties with persons lawfully in this country, does not apply to aliens who entered country as stowaways.
Gambino v. Immigration and Naturalization Service, C.A.2 (N.Y.) 1970, 419 F.2d 1355, certiorari denied 90 S.Ct. 2195, 399
U.S. 905, 26 L.Ed.2d 559.
Stowaway, desiring exercise of discretion to admit him given by former 136 of this title, had to claim it and show that he
was "otherwise admissible." Stone ex rel. Colonna v. Tillinghast, C.C.A.1 (Mass.) 1929, 32 F.2d 447.
Where alien, who had acquired a domicile in the United States by a previous lawful admission, had, while temporarily
abroad, boarded a ship at France as a stowaway with intention of obtaining free passage to United States, and had been put
ashore in England but had been returned to the ship by the British Immigration Authorities and had been put to work under
chief engineer, who assigned him quarters with the crew, in absence of statutory definition of "stowaway," determination of
board of special inquiry that such alien was a stowaway was justified, and failure of Attorney General to exercise his
discretionary power favorably toward such alien did not constitute a violation of any constitutional right or an abuse of
discretion. Zacharias v. McGrath, D.C.D.C.1952, 105 F.Supp. 421.
Status of Spanish national as an excluded alien was unaltered by his having been kept in the United States for prosecution
and imprisonment as a stowaway. U S ex rel Camezon v. District Director of Immigration & Naturalization at Port of N Y,
S.D.N.Y.1952, 105 F.Supp. 32.
Where ship's master turned over to immigration authorities a stowaway who did not have passport, travel documents or
immigration visa, Department of Justice was authorized to confine alien temporarily and could keep him in custody for a
reasonable period of time while seeking to effectuate his deportation or for as long as he consented to remain in detention
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station. In re Krajcirovic, D.C.Mass.1949, 87 F.Supp. 379.

The exclusion of stowaway fugitives from Poland and Roumania, who arrived without immigration visas or passports, in
the exercise of discretion vested in immigration authorities, did not deny equal protection of the law to such stowaways
because in other instances other persons similarly situated had been admitted. York ex rel. Davidescu v. Nicolls,
D.C.Mass.1946, 66 F.Supp. 747.
235. Security, classes subject to exclusion--Generally
"The act applies itself, not only to aliens who came with offensive theories, but to aliens who have become offensive, and it
expressly confers upon the Secretary of Labor authority to take them into custody, and provides for deportation in the manner
provided in the Immigration Act of February 5, 1917, and this irrespective of the time of their entry into the United States."
Ex parte Pettine, D.C.Mass.1919, 259 F. 733.
Exclusion of Libyan national, who sought admission into the United States to continue studying at aeronautics school
where he was being trained as a specialist in spare parts for aircraft under a contract between the school and an airline owned
by Libyan government, was justified on national security grounds. El-Werfalli v. Smith, S.D.N.Y.1982, 547 F.Supp. 152.
Former 137, 155, 156a, and 451-460 of this title and former 9-13 of Title 18 were regulatory measures to prevent
subversive activities and tighten provisions with reference to admission and deportation of aliens, and applied to friendly as
well as enemy aliens. U. S. v. Gancy, D.C.Minn.1944, 54 F.Supp. 755, affirmed 149 F.2d 788, certiorari denied 66 S.Ct. 166,
326 U.S. 767, 90 L.Ed. 463, rehearing denied 66 S.Ct. 229, 326 U.S. 810, 90 L.Ed. 495.
235A. ---- Release on bond
Preventing loss of life, avoiding mass migration from Haiti and ensuring presence of inadmissible aliens at court hearings
were facially legitimate and bona fide reasons for detaining Haitian nationals who arrived by boat in south Florida, and thus
policy of Immigration and Naturalization Service (INS) of granting parole to Haitians only in cases of unique hardship was
proper. Jeanty v. Bulger, S.D.Fla.2002, 204 F.Supp.2d 1366.
Excludable alien was not entitled to release pending resolution of his asylum claim since district director had facially
legitimate and bona fide reasons, supported by factual bases in the record, for revoking alien's parole and denying his release
on bond and conditions; district director determined that alien posed a national security risk and a risk of absconding, and that
alien failed to meet his burden of proving that his release was in the public interest. Haddam v. Reno, E.D.Va.1999, 54
F.Supp.2d 602.
236. ---- Anarchists, security, classes subject to exclusion
Adherent of direct action describing himself as anarchist was subject to deportation as such. Ex parte Caminita,
S.D.N.Y.1922, 291 F. 913.
"Mere personal abstention from violence, or even from violent language, does not secure immunity, if the result of the
gentlest and most guarded speech is to advocate or teach that which the statute condemns. The 'philosophic' anarchist is an
anarchist nevertheless. Lopez v. Howe, N.Y.1919, 259 F. 401, 170 C.C.A. 377, 12 A.L.R. 192, appeal dismissed and
certiorari denied, 1920, 254 U.S. 613, 41 S.Ct. 63, 65 L.Ed. 438. Since in this or in any similar case we cannot be concerned
with the weight of the evidence, buy only with the existence thereof, it is not useful to state or comment upon what Georgian
was proved to have done, what he admitted having done, or what he himself said of his own teachings, advocacy, or opinions.
We express no opinion as to the result upon our minds of the evidence adduced at the deportation hearing, beyond this, viz.,
there was evidence, indeed it was admitted, that though he did not and does not believe in the immediate overthrow of the
government of the United States that position is not the result of any affection for the same or approval of this republic, nor of
any objection to force and violence per se, but only results from an opinion that the time is not ripe. Ripeness is to be attained
by teaching, and by the dissemination of the style of literature which it is his business to circulate; when the time is ripe, it is
to be hoped that force and violence will not be necessary, but they will be appropriate as soon as they are likely to prevail.
However fantastic the above-outlined social program may seem, it is impossible to say that a professed and avowed effort to
hasten its consummation is not evidence of that which the statute forbids." U.S. v. Uhl, C.C.A.2 (N.Y.) 1921, 271 F. 676,
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"The act of October 16, 1918 (40 Stat. 1012, c. 186), is comprehensive and emphatic in declaring against all aliens who are
anarchists; and, so far as anarchists are concerned, it would seem that no result depends upon varying degrees of anarchy.
Indeed, in enumerating the offensive classes, the enactment at once declares generally against aliens who are anarchists, and
then, after separating by a semicolon the sweeping declaration against all anarchists from what follows, Congress proceeds to
enumerate special classes of offensive aliens, who may or may not be anarchists, such as those who advocate the overthrow
of government by force or violence, or who disbelieve in or are opposed to all organized government and who teach
assassination of public officials. But these special designations cannot be accepted as in any way detracting from the general
enactment against all aliens who are anarchists." Ex parte Pettine, D.C.Mass.1919, 259 F. 733.
Word "anarchist," as used in former 137 of this title and former immigration statutes, included not only persons who
advocated overthrow of organized government by force, but also those who believed in absence of government as political
ideal, and sought same end through propaganda. Lopez v. Howe, C.C.A.2 (N.Y.) 1919, 259 F. 401, 170 C.C.A. 377, appeal
dismissed, certiorari denied 41 S.Ct. 63, 254 U.S. 613, 254 U.S. 650, 65 L.Ed. 438. See, also, U.S. v. Stuppiello,
D.C.N.Y.1919, 260 F. 483; Ex parte Pettine, D.C.Mass.1919, 259 F. 733.
237. ---- Communist Party members, security, classes subject to exclusion
A resident alien who leaves the country for any period, however brief, makes a new entry on his return, and he is then
subject to all current exclusionary laws such as the provision in this section excluding from admission an alien who has ever
been a member of the Communist Party. Bonetti v. Rogers, U.S.Dist.Col.1958, 78 S.Ct. 976, 356 U.S. 691, 2 L.Ed.2d 1087.
Subsection (a)(28)(I)(i) of this section, providing that the Attorney General may provide by regulation that terms "members
of" and "affiliated with" as used in such subsection shall include only membership or affiliation which is or was voluntary
and shall not include certain enumerated instances, shows that the three specified qualifications are not to be strictly applied
as narrow exceptions, but are to be considered as illustrative of the spirit in which the rigorous provisions regarding
deportability of aliens who at any time had been members of Communist Party, are to be construed. Rowoldt v. Perfetto,
U.S.Minn.1957, 78 S.Ct. 180, 355 U.S. 115, 2 L.Ed.2d 140.
For purpose of subsection (a)(28)(E)(I)(i) of this section making "membership" in Communist Party a basis for deportation
of an alien, it is enough that alien join Party, aware that he was joining an organization known as Communist Party and
operating as a distinct and active political organization, and that he did so of his own free will; cognizance of the Party's
advocacy of violence not being a prerequisite to deportation. Galvan v. Press, U.S.Cal.1954, 74 S.Ct. 737, 347 U.S. 522, 98
L.Ed. 911, rehearing denied 75 S.Ct. 17, 348 U.S. 852, 99 L.Ed. 671.
Even if alien had joined Communist Party without knowledge of its advocacy of violence, he was deportable as a party
"member", absent any claim that he had joined the party "accidentally, artificially, or unconsciously in appearance only."
Galvan v. Press, U.S.Cal.1954, 74 S.Ct. 737, 347 U.S. 522, 98 L.Ed. 911, rehearing denied 75 S.Ct. 17, 348 U.S. 852, 99
L.Ed. 671.
Congress intended to exempt from exclusion aliens with nonmeaningful membership in the Communist Party. Firestone v.
Howerton, C.A.9 (Cal.) 1982, 671 F.2d 317.
Where alien was forced to accept membership in Hungarian Communist Party in order to avoid deprivation and to secure
some economic benefit to his family and alien had, unknown to the party, participated in 1956 revolution, alien's Communist
Party membership was devoid of political implications and charge of deportability based on such membership could not be
sustained. Berdo v. Immigration and Naturalization Service, C.A.6 (Mich.) 1970, 432 F.2d 824.
Controlling factor in proceeding for deportation of alien on ground of Communist Party membership is whether alien's
party membership is devoid of political implication and whether there is evidence that the association with the party was a
meaningful association. Berdo v. Immigration and Naturalization Service, C.A.6 (Mich.) 1970, 432 F.2d 824.
To establish that an alien was a member of the Communist Party and subject to deportation, government must establish by
substantial evidence that the alien had consciously committed himself to the Communist Party by entering into an affiliation
with it which had political implications. Berdo v. Immigration and Naturalization Service, C.A.6 (Mich.) 1970, 432 F.2d 824.
Testimony of an alien may in and of itself establish the alien's membership in Communist Party and that he therefore is
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excludable if his testimony depicts a party relationship sufficiently viable and purposeful. Langhammer v. Hamilton, C.A.1
(Mass.) 1961, 295 F.2d 642.
Activities of alien in joining Communist Party and related organizations and performing substantial duties serving as an
organizational secretary in the party and a secretary of a branch, while in East Germany and before he fled to the west were
not excusable and he was excludable and deportable even if his sole reason for such activities was to gain an education.
Langhammer v. Hamilton, C.A.1 (Mass.) 1961, 295 F.2d 642.
The provisions carried forward from Subversive Activities Control Act, 781 et seq. of Title 50, into this section for
exclusion, deportation, and ineligibility for naturalization of alien members of registered Communist action organizations are
valid, as Supreme Court's rulings that membership in Communist Party is valid ground for deportation of alien and denial of
bail to him pending deportation proceedings also govern exclusion and naturalization of such members. Communist Party of
U. S. v. Subversive Activities Control Bd., C.A.D.C.1954, 223 F.2d 531, 96 U.S.App.D.C. 66, certiorari granted 75 S.Ct.
Alien who had been a member of the Communist Party in Tunisia from 1937 to 1939, who was lawfully admitted into the
United States for permanent residence in 1948, and who had lived a law abiding life in this country thereafter was not subject
to deportation even though his past misconduct might have justified his exclusion at time of his application for admission.
Berrebi v. Crossman, C.A.5 (Tex.) 1953, 208 F.2d 498.
Evidence that alien had applied for membership in Communist Party, that he had sold Communist newspaper, and that he
had refused at hearing to answer as to his belief in overthrow of organized government by force, was insufficient, especially
where he had withdrawn application at next meeting and where Communist paper was merely one of number of
unobjectionable papers sold by him, to show "affiliation" with Communist Party within meaning of provision of former 137
of this title authorizing exclusion of aliens affiliated with organizations believing in, advising, advocating, or teaching
overthrow of United States government by force. U.S. ex rel. Kettunen v. Reimer, C.C.A.2 (N.Y.) 1935, 79 F.2d 315.
Because subsection of Immigration and Nationality Act establishing ineligibility for admission for foreigners associated
with communist or totalitarian organizations directly encompassed applicant alien's membership in organizations reputed to
be international fronts for Communist Party of Soviet Union, her affiliation with these organizations was not, in itself,
"facially legitimate and bona fide" reason for refusal by Department of State to grant her a nonimmigrant visa. Allende v.
Shultz, D.C.Mass.1985, 605 F.Supp. 1220.
Where application for Immigrant Visa and Alien Registration which was written entirely in English language did not
mention Yugoslavian Youth Organization known as "Narodna Omladina Jugoslavije" among proscribed organizations and
alien understood little English, alien's failure to list organization in application was unintentional and alien was properly
admitted to United States for permanent residence. In re Klajic, C.D.Cal.1966, 260 F.Supp. 807.
Alien who concealed his membership in East German Communist Party and related organizations procured his visa by
fraud or by wilful misrepresentation of material fact and for that reason was deportable. Langhammer v. Hamilton,
D.C.Mass.1961, 194 F.Supp. 854, affirmed 295 F.2d 642.
The necessity of being member of Communist Party in order to progress successfully through medical school in East
Germany did not make alien eligible for visa under subsection (a)(28)(I) of this section permitting visa when Communist
Party membership is involuntary and for purpose of obtaining "employment, food rations, or other essentials of living".
Langhammer v. Hamilton, D.C.Mass.1961, 194 F.Supp. 854, affirmed 295 F.2d 642.
238. ---- Members of proscribed organizations, security, classes subject to exclusion
An alien's membership in a proscribed organization may have been so nominal as to keep him out of the deportable class
even though he did not join such organization (1) as a child, (2) by operation of law, or (3) to obtain necessities of life, since
those instances, enumerated in subsection (a)(28)(E)(I)(i) of this section, were not intended to be exclusive. Galvan v. Press,
U.S.Cal.1954, 74 S.Ct. 737, 347 U.S. 522, 98 L.Ed. 911, rehearing denied 75 S.Ct. 17, 348 U.S. 852, 99 L.Ed. 671.
Under former 137(c) of this title it was present membership or present affiliation, fact to be determined on evidence,
which required deportation. Kessler v. Strecker, U.S.La.1939, 59 S.Ct. 694, 307 U.S. 22, 83 L.Ed. 1082.
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Denaturalization defendant's activities as editor at newspaper which espoused anti-American views and pro-Nazi
philosophy during his tenure, constituted membership and participation in a movement hostile to the United States; during
early 1950's when editor got his visa, Displaced Persons Committee (DPC) frequently denied Displaced Persons Act (DPA)
status to persons associated with private and semi-private newspapers that had published anti-American propaganda in Axis
nations during World War II because they were deemed members of movements hostile to the United States, and record
showed that newspaper received some degree of editorial direction from Hungarian government and that newspaper could not
have operated without government license. U.S. v. Koreh, C.A.3 (N.J.) 1995, 59 F.3d 431, rehearing and suggestion for
rehearing in banc denied.
Statute providing for exclusion of aliens who advocate or teach or who are members of or affiliated with organization that
advocates or teaches propriety of unlawful assaulting or killing of government officials or unlawful damage, injury, or
destruction of property, or sabotage is not limited solely to those individuals who oppose all forms of recognized government,
but also operates to exclude aliens who advocate or teach violence against particular governments, destruction of property, or
sabotage. Adams v. Baker, C.A.1 (Mass.) 1990, 909 F.2d 643.
The term "Palestine Liberation Organization" in statute excluding aliens or members of the PLO from operation of statute
providing that no alien may be denied a visa or excluded because of associations which, if engaged in by United States
citizen in the United States, would be protected under the Constitution, does not apply to groups affiliated with the PLO,
including the Popular Front for the Liberation of Palestine. Rafeedie v. I.N.S., D.D.C.1988, 688 F.Supp. 729, reconsideration
denied, stay granted, affirmed in part, reversed in part on other grounds 880 F.2d 506, 279 U.S.App.D.C. 183, on remand 795
F.Supp. 13.
Socialist Workers Party was not entitled to enjoin Immigration and Naturalization Service from considering membership in
SWP in immigration matters, absent evidence of any present or contemplated adverse action by INS against any SWP
member. Socialist Workers Party v. Attorney General of U.S., S.D.N.Y.1986, 642 F.Supp. 1357.
In enacting former 137(2)(D) of this title, prohibiting certain aliens from admission into United States, including aliens
who were members of or affiliated with Communist party of United States or any other totalitarian party of United States,
Congress did not intend to include all the radicalism involving world Communist movement subservient to the most powerful
existing Communist totalitarian dictatorship. U S ex rel James v. Shaughnessy, S.D.N.Y.1952, 107 F.Supp. 280, affirmed 202
F.2d 519, certiorari denied 73 S.Ct. 1112, 345 U.S. 969, 97 L.Ed. 1387.
Former 137 of this title was not limited to alien membership in or affiliation with proscribed organizations found to exist
at time of alien's entry into the United States or at any time after passage of 1940 amendment, but applied also to membership
or affiliation having its inception after alien's entry into the United States and terminating before passage of 1940
amendment. Ex parte Bridges, N.D.Cal.1943, 49 F.Supp. 292, affirmed 144 F.2d 927, certiorari granted 65 S.Ct. 564, 323
U.S. 708, 89 L.Ed. 570, reversed on other grounds 65 S.Ct. 1443, 326 U.S. 135, 89 L.Ed. 2103.
Former 137 of this title was not limited to aliens who were shown to have been possessed of knowledge of proscribed
character of organization with which they had affiliated themselves but applied to all alien members or affiliates of
proscribed organizations without regard to their intent in becoming such. Ex parte Bridges, N.D.Cal.1943, 49 F.Supp. 292,
affirmed 144 F.2d 927, certiorari granted 65 S.Ct. 564, 323 U.S. 708, 89 L.Ed. 570, reversed on other grounds 65 S.Ct. 1443,
326 U.S. 135, 89 L.Ed. 2103.
239. ---- Nazi persecution, security, classes subject to exclusion
Under proper construction of congressional intent, individual's service as concentration camp armed guard, whether
voluntary or involuntary, made him ineligible for visa. Fedorenko v. U. S., U.S.Fla.1981, 101 S.Ct. 737, 449 U.S. 490, 66
L.Ed.2d 686.
240. ---- Officials of foreign governments, security, classes subject to exclusion
Minor son of native of China who was admitted into United States as accredited official of Chinese government, could not
be denied admission along with his father whom he accompanied for reason that he was found to be afflicted with
clonorchiasis, a dangerous contagious disease. Court, commenting on last proviso, said: "This provision could hardly be
made broader. 'Nothing in the act shall apply to' the named officials, 'nor to their suites, families or guests.' And this
8 USCA 1182
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Page 234
provision is the last one in section 3 of the act, the only section which excludes because of the existence of a dangerous
contagious disease. I see no reason for holding that the act does not mean what it says, or that petitioner is not exempt from
its provisions. No particular form of proof of relationship is required by the act, and the fact that petitioner is the son of the
official seems to be conceded." Ex parte Cheuk Gar Lim, N.D.Cal.1922, 285 F. 396.
President was authorized to sign blank form of letter addressed to officers of United States abroad commending to their
favorable consideration agent of Hawaiian government, who was being sent to Azores and Madeira, to make arrangements
for transportation of immigrants from those islands of Hawaii, their passage being prepaid by Hawaiian government, and
their immigration being induced solely by representation of resources of Hawaiian Islands and industrial conditions existing
there, without any offer or promise of employment being made to any of them, such persons to have perfect freedom of
action in choosing their places of residence and vocations. 1909, 27 Op.Atty.Gen. 479.
241. ---- Overthrow of government by force, security, classes subject to exclusion
"Revolution" presupposes antagonism between government and its nationals, and alien has no right of revolution against
United States. Kjar v. Doak, C.C.A.7 (Ill.) 1932, 61 F.2d 566.
Question was not one of degrees of imminence of overthrow by force and violence but rather whether that was ultimate
purpose of organization. U.S. v. Wallis, S.D.N.Y.1920, 268 F. 413.
"Overthrow" means more than radical change in the form and functions of the government. Colyer v. Skeffington,
D.C.Mass.1920, 265 F. 17, 18 Ohio law Rep. 241, reversed on other grounds 277 F. 129.
242. ---- Waiver of condition, security, classes subject to exclusion
McGovern Amendment, which provides for waiver of enumerated conditions for excluding aliens, did not provide
independent authorization for admittance of alien who was excluded because of his alleged involvement with terrorist
violence, rather than because of affiliation with particular group. Adams v. Baker, C.A.1 (Mass.) 1990, 909 F.2d 643.
243. Violations of law, classes subject to exclusion
The Immigration and Naturalization Service, which considered fact that alien's wife and child resided in the United States,
but found that such positive fact was outweighed by alien's repeated disregard for immigration laws, did not abuse its
discretion in denying alien permission to reapply for admission to the United States. Estrada-Figueroa v. Nelson,
S.D.Cal.1985, 611 F.Supp. 576.
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8 USCA 1182

UNITED STATES CODE ANNOTATED

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(I) has engaged in a terrorist activity,

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(a) biological agent, chemical agent, or nuclear weapon or device, or

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the Prevention and Punishment of Genocide is inadmissible.

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described in section 1183a of this title with respect to such alien.

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States under clause (i).

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(2) the alien's-(A) removal;

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the nonimmigrant or nonimmigrants is or are sought.

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(B) For purposes of this subsection

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(i) is a citizen or national of the United States; or

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"(ii) 'Terrorist activity' defined

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Subsec. (a)(5)(A)(iv). Pub.L. 106-313, 106(c)(2), added cl. (iv).

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commission, otherwise" following "predicate offenses are".

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