Pedro Valmores Oloteo and Myrna Isabel Oloteo v. Immigration and Naturalization Service

643 F.2d 679, 1981 U.S. App. LEXIS 13882
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 27, 1981
Docket80-7128
StatusPublished
Cited by35 cases

This text of 643 F.2d 679 (Pedro Valmores Oloteo and Myrna Isabel Oloteo v. Immigration and Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pedro Valmores Oloteo and Myrna Isabel Oloteo v. Immigration and Naturalization Service, 643 F.2d 679, 1981 U.S. App. LEXIS 13882 (9th Cir. 1981).

Opinions

HEMPHILL, District Judge:

Petitioners, husband and wife, seek reversal of a final decision of the Board of Immigration Appeals affirming their deportation as ordered by an immigration judge of the United States Immigration and Naturalization Service. The dispositive issue critical to this review is whether this Court interprets the five-year statute of limitations imposed on rescission of adjusted status proceedings by § 246(a)1 of the Immigration and Nationality Act, 8 U.S.C. § 1256(a) [hereinafter § 246(a)], as erecting a time bar to deportation proceedings against immigrants where the ground for such proceedings is ineligibility at the time permanent resident status was acquired. The court declines to so extend the statute and, accordingly, affirms the decision of the Board.

Petitioners are natives and citizens of the Philippines. Pedro Oloteo was admitted to the' United States as a lawful permanent resident in May of 1969 on the basis of his claimed status as an unmarried child of a lawful permanent resident. In April of 1971 petitioner Myrna Oloteo was granted preference status as the wife of Pedro Oloteo (by marriage purportedly consummated subsequent to Pedro’s entry) and immigrated to this country as a permanent resident as well. The impetus for these deportation proceedings, commenced more than five years after Myrna Oloteo’s entry, was the discovery by the immigration service that the couple had, in fact, been married prior to Pedro Oloteo’s immigration, in May of 1969. This factual determination of misrepresentation by petitioners, grounds for deportation under § 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1) because their entry visas were thereby obtained by fraud, see § 212(a)(19) of the Act, 8 U.S.C. § 1182(a)(19), is not contested in this appeal.2 What petitioners advance is that these proceedings are barred by the five-year limitation contained in § 246(a). The statute provides in pertinent part:

“If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of § 1255 or 1259 of this title or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and cancelling deportation in the case of such person if that occurred and the persons thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made.” (emphasis added)

I

Congress has embraced within the confines of the Immigration and Nationality Act a detailed scheme for the admission and deportation of aliens. See 8 U.S.C. 1101 et seq. The implementation of this scheme is an exercise left to the wisdom and authority of the political branches of government, which function has long been recognized by the judiciary as largely immune from court control. Lem Moon Sing v. United States, 158 U.S. 538,15 S.Ct. 967, 39 L.Ed. 1082 (1895); The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623,32 L.Ed. 1068 (1889); Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977).

“At the outset, it is important to underscore the limited scope of judicial inquiry into immigration legislation. This Court has repeatedly emphasized that ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.
[681]*681Our cases ‘have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’ Our recent decisions have not departed from this long-established rule. Just last Term, for example, the Court had occasion to note that the power over aliens is of a political character and therefore subject only to narrow judicial review.’ And we observed recently that in the exercise of this broad power over immigration and naturalization, ‘Congress regularly makes rules that would be unacceptable if applied to citizens.’ ” [Citations omitted.]

Fiallo v. Bell, 430 U.S. at 792, 97 S.Ct. at 1477. It is with this limited scope of inquiry that this Court approaches the dispositive question on appeal.

II

The Act now provides two procedures by which aliens seeking permanent resident status may attain it. The first is the customary entry procedure whereby an alien outside the United States obtains an immigrant visa in his own country through the United States consular office and immigrates via a port of entry. 8 U.S.C. § 1151, 1154. This well-trodden path for aliens seeking immigrant status in this country was the one taken by petitioners. The second method is the “adjustment in status” procedure.3 § 245(a) of the Act, 8 U.S.C. 1255(a) provides:

“§ 1255. Adjustment of status of non-immigrant to that of person admitted for permanent residence; * * * * * *
(a) The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.”

Thus, the alternative method permits an alien already “admitted or paroled” into the United States to acquire an adjusted status to that of a permanent, resident, whereas the more traditional method of entry avails itself largely to those immediate relatives of permanent residents living in a foreign land who obtain not an adjusted, but an original, immigrant status upon entry.4

What Congress plainly intended by § 246 of the Act was a procedure whereby the Attorney General may, in his discretion, “bust the rank” of the adjusted permanent resident alien and restore him to his original temporary status as an alien “admitted or paroled” into the United States, if it appears to his satisfaction that the alien “was not in fact eligible for such adjustment of status”. § 246(a), supra.

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643 F.2d 679, 1981 U.S. App. LEXIS 13882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pedro-valmores-oloteo-and-myrna-isabel-oloteo-v-immigration-and-ca9-1981.