REID v. INS

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioners Robert and Nadia Reid, husband and wife, are citizens of British Honduras. Robert Reid entered the United States at Chula Vista, California, in November 1968, falsely representing himself to be a citizen of the United States. Nadia Reid, employing the same technique, entered at the Chula Vista port of entry two months later. Petitioners have two children who were born in the United States since their entry.

In November 1971, the Immigration and Naturalization Service (INS) began deportation proceedings against petitioners, which were resolved adversely to them first by a special inquiry officer and then by the Board of Immigration Appeals. On petition for review, the United States Court of Appeals for the Second Circuit by a divided vote affirmed the finding of deportability. 492 F.2d 251 (1974). We granted certiorari to resolve the conflict between this holding and the contrary conclusion of the Court of Appeals for the Ninth Circuit in Lee Fook Chuey v. INS, 439 F.2d 244 (1970).1 419 U.S. 823 (1974).

Because of the complexity of congressional enactments relating to immigration, some understanding of the structure of these laws is required before evaluating the legal contentions of petitioners. The McCarran-Walter Act, enacted by Congress in 1952, 66 Stat. 163, as amended, 8 U. S. C. § 1101 et seq., although frequently amended since that date, remains the basic format of the immigration laws. "Although the McCarran-Walter Act has been repeatedly amended, it still is the basic statute dealing with immigration and nationality. The amendments have been fitted into the structure of the parent statute and most of the original enactment remains undisturbed." 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure 1-13 to 1-14 (rev. ed. 1975).

Section 212 of the Act as amended, 8 U. S. C. § 1182, specifies various grounds for exclusion of aliens seeking admission to this country. Section 241 of the Act, 8 U. S. C. § 1251, specifies grounds for deportation of aliens already in this country. Section 241 (a) specifies 18 different bases for deportation, among which only the first two need directly concern us:

The INS seeks to deport petitioners under the provisions of § 241 (a) (2), asserting that they entered the United States without inspection.2 Petitioners dispute none of the factual predicates upon which the INS bases its claim, but instead argue that their case is saved by the provisions of § 241 (f), which provides in pertinent part as follows:

Petitioners contend that they are entitled to the benefits of § 241 (f) "by virtue of its explicit language." This contention is plainly wrong, and for more than one reason.

The language of § 241 (f) tracks the provisions of § 212 (a) (19), 8 U. S. C. § 1182 (a) (19), dealing with aliens who are excludable, and providing in pertinent part as follows:

.....

Thus the "explicit language" of § 241 (f), upon which petitioners rely, waives deportation for aliens who are "excludable at the time of entry" by reason of the fraud specified in § 212 (a) (19), and for that reason deportable under the provisions of § 241 (a) (1). If the INS were seeking to deport petitioners on this ground, they would be entitled to have applied to them the provisions of § 241 (f) because of the birth of their children after entry.

But the INS in this case does not rely on § 212 (a) (19), nor indeed on any of the other grounds for excludability under § 212, which are in turn made grounds for deportation by the language of § 241 (a) (1). It is instead relying on the separate provision of § 241 (a) (2), which does not depend in any way upon the fact that an alien was excludable at the time of his entry on one of the grounds specified in § 212 (a). Section 241 (a) (2) establishes as a separate ground for deportation, quite independently of whether the alien was excludable at the time of his arrival, the failure of an alien to present himself for inspection at the time he made his entry. If this ground is established by the admitted facts, nothing in the waiver provision of § 241 (f), which by its terms grants relief against deportation of aliens "on the ground that they were excludable at the time of entry," has any bearing on the case. Cf. Costanzo v. Tillinghast, 287 U.S. 341, 343 (1932).

The issue before us, then, turns upon whether petitioners, who accomplished their entry into the United States by falsely asserting that they were citizens of this country, can be held to have "entered the United States without inspection." Obviously not every misrepresentation on the part of an alien making an entry into the United States can be said to amount to an entry without inspection. But the Courts of Appeals have held that an alien who accomplishes entry into this country by making a willfully false representation that he is a United States citizen may be charged with entry without inspection. Ex parte Saadi, 26 F.2d 458 (CA9), cert. denied, 278 U.S. 616 (1928); United States ex rel. Volpe v. Smith, 62 F.2d 808 (CA7), aff'd on other grounds, 289 U.S. 422, 424 (1933); Ben Huie v. INS, 349 F.2d 1014 (CA9 1965). We agree with these holdings, and conclude that an alien making an entry into this country who falsely represents himself to be a citizen would not only be excludable under § 212 (a) (19) if he were detected at the time of his entry, but has also so significantly frustrated the process for inspecting incoming aliens that he is also deportable as one who has "entered the United States without inspection." In reaching this conclusion we subscribe to the reasoning of Chief Judge Aldrich, writing for the Court of Appeals for the First Circuit in Goon Mee Heung v. INS, 380 F.2d 236, 237, cert. denied, 389 U.S. 975 (1967):

Petitioners rely upon this Court's decision in INS v. Errico, 385 U.S. 214 (1966). There the Court decided two companion cases involving fraudulent representations by aliens in connection with quota requirements which existed at the time Errico was decided, but which were prospectively repealed in 1965. Errico, a native of Italy, falsely represented to the authorities that he was a skilled mechanic with specialized experience in repairing foreign automobiles. On the basis of that representation he was granted first-preference-quota status under the statutory preference scheme then in effect, entered the United States with his wife, and later fathered a child by her.

Scott, a native of Jamaica, contracted a marriage with a United States citizen by proxy solely for the purpose of obtaining nonquota status for her entry into the country. She never lived with her husband and never intended to do so. After entering the United States in 1958, she gave birth to an illegitimate child, who thereby became an American citizen at birth.

When the INS discovered the fraud in each of these cases, it sought to deport both Errico and Scott on the grounds that they were "within one or more of the classes of aliens excludable by the law existing at the time" of their entry, and therefore deportable under § 241 (a) (1). The INS did not rely on the provisions of § 212 (a) (19), making excludable an alien who has procured a visa or other documentation or entry by fraud, nor indeed did it rely on any other of the subsections of § 212 dealing with excludable aliens. Instead it relied on an entirely separate portion of the statute, § 211, 8 U. S. C. § 1181 (a) (1964 ed.), prospectively amended in 1965,3 but reading, as applicable to Errico and Scott, as follows:

The INS contended that Errico fell within the proscription of § 211 (a) (4), and that Scott fell within the proscription of § 211 (a) (3), and that therefore § 211 (a) prohibited their admission into the United States as of the time of their entry. It apparently reasoned from these admitted facts that both Errico and Scott were therefore "excludable" at the time of their entry within the meaning of § 241 (a) (1).

Section 211 of the Act of 1952, 66 Stat. 181-182, is entitled Documentary Requirements. Section 212 of the same Act, 66 Stat. 182-188, is entitled General Classes of Aliens Ineligible to Receive Visas and Excluded from Admission. INS could clearly have proceeded against either Scott or Errico under § 212 (a) (19), on the basis of their procuring a visa or other documentation by fraud or misrepresentation. Just as clearly Scott and Errico could have then asserted their claim to the benefit of § 241 (f), waiving deportation based upon fraud for aliens who had given birth to children after their entry and who were otherwise admissible. Instead the INS relied on the provisions of § 211 (a), which deal with the general subject of the necessary documentation for admission of immigrants, rather than with the general subject of excludable aliens. Rather than questioning whether a failure to comply with § 211 (a) (3) or (4) by itself rendered an alien "excludable" as that term is used in § 241 (a) (1), the Court in Errico implicitly treated it as doing so and went on to hold that § 241 (f) "saves from deportation an alien who misrepresents his status for the purpose of evading quota restrictions, if he has the necessary familial relationship to a United States citizen or lawful permanent resident." INS v. Errico, 385 U. S., at 215.

Errico was decided by a divided Court over a strong dissenting opinion. Even the most expansive view of its holding could not avail these petitioners, since § 241 (f) which it construed applies by its terms only to "the deportation of aliens within the United States on the ground that they were excludable at the time of entry." Here, as we have noted, INS seeks to deport petitioners, not under the provisions of § 241 (a) (1), relating to aliens excludable at the time of entry, but instead under the provisions of § 241 (a) (2), relating to aliens who do not present themselves for inspection. Yet there is no doubt that the broad language used in some portions of the Court's opinion in Errico has led one Court of Appeals to apply the provisions of § 241 (f) to a case indistinguishable from petitioners', Lee Fook Chuey v. INS, 439 F.2d 244 (CA9 1970), and to decisions of other Courts of Appeals in related areas which may be summarized in the language of Macduff: "Confusion now hath made his masterpiece."

Aliens entering the United States under temporary visitor permits, who acquire one of the specified familial relationships described in § 241 (f) after entry, have argued with varying results that their fraudulent intent upon entry to remain in this country permanently cloaks them with immunity from deportation even though they overstayed their visitor permits.4 Acceptance of this theory leads to the conclusion that § 241 (f) waives a substantive ground for deportation based on overstay if the alien can affirmatively prove his fraudulent intent at the time of entry, but grants no relief to aliens with exactly the same familial relationship who are unable to satisfactorily establish their dishonesty. See Cabuco-Flores v. INS, 477 F.2d 108 (CA9), cert. denied sub nom. Mangabat v. INS, 414 U.S. 841 (1973); cf. Jolley v. INS, 441 F.2d 1245 (CA5 1971). Balking at such an irrational result, one court has gone so far as to declare that § 241 (f) waives deportability under § 241 (a) (1) even though no fraud is involved if the alien is able merely to establish the requisite familial tie. In re Yuen Lan Hom, 289 F.Supp. 204 (SDNY 1968).

Nor has there been agreement among those courts which have construed § 241 (f) to waive substantive grounds for deportation under § 212 other than for fraud delineated in § 212 (a) (19) as to which other grounds are waived. While some courts have found that § 241 (f) waives any deportation charge to which fraud is "germane"5 others have found it waives "quantitative" but not "qualitative" grounds where its requirements are met.6 Still others have required that "but for" the misrepresentation, the alien meet the substantive requirements of the Act7 while at least one court has discerned in Errico a test requiring that the aliens' fraudulent statement be taken as true, with determination on such hypothetical facts whether the alien would be deportable. Cabuco-Flores v. INS, supra, at 110.

We do not believe that § 241 (f) as interpreted by Errico requires such results. We adhere to the holding of that case, which we take to be that where the INS chooses not to seek deportation under the obviously available provisions of § 212 (a) (19) relating to the fraudulent procurement of visas, documentation, or entry, but instead asserts a failure to comply with those separate requirements of § 211 (a), dealing with compliance with quota requirements, as a ground for deportation under § 241 (a) (1), § 241 (f) waives the fraud on the part of the alien in showing compliance with the provisions of § 211 (a). In view of the language of § 241 (f) and the cognate provisions of § 212 (a) (19), we do not believe Errico's holding may properly be read to extend the waiver provisions of § 241 (f) to any of the grounds of excludability specified in § 212 (a) other than subsection (19). This conclusion, by extending the waiver provision of § 241 (f) not only to deportation based on excludability under § 212 (a) (19), but to a claim of deportability based on fraudulent misrepresentation in order to satisfy the requirements of § 211 (a), gives due weight to the concern expressed in Errico that the provisions of § 241 (f) were intended to apply to some misrepresentations that were material to the admissions procedure. It likewise gives weight to our belief that Congress, in enacting § 241 (f), was intent upon granting relief to limited classes of aliens whose fraud was of such a nature that it was more than counterbalanced by after-acquired family ties;8 it did not intend to arm the dishonest alien seeking admission to our country with a sword by which he could avoid the numerous substantive grounds for exclusion unrelated to fraud, which are set forth in § 212 (a) of the Immigration and Nationality Act.

The judgment of the Court of Appeals is

Affirmed.

MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting.

In INS v. Errico, 385 U.S. 214 (1966), respondent evaded quota restrictions by falsely claiming to be a skilled mechanic. Once in this country, he became the parent of a United States citizen. We found Errico's deportation barred by § 241 (f) of the Immigration and Nationality Act, 66 Stat. 163, as added, 75 Stat. 655, 8 U. S. C. § 1251 (f). In the instant case, petitioners evaded quota restrictions by falsely claiming United States citizenship. After settling here, they too became parents of United States citizens. Yet the Court today finds that § 241 (f) is no bar to their deportation. Because I find no material difference between the instant case and Errico, I dissent.

Section 241 (f) of the Immigration and Nationality Act provides:

In Errico, supra, after a full review of the statute and its legislative history, the Court concluded that § 241 (f) was intended "not to require that aliens who are close relatives of United States citizens have complied with quota restrictions to escape deportation for their fraud . . . ." 385 U. S., at 223. This conclusion was necessary "to give meaning to the statute in the light of its humanitarian purpose of preventing the breaking up of families composed in part at least of American citizens. . . ." Id., at 225.

Thus Errico governs the instant case. The Court, however, distinguishes Errico on the ground that there deportation proceedings were based on § 211 (a) (4) of the Act, 8 U. S. C. § 1181 (a) (4) (1964 ed.), which dealt with quota requirements, whereas here deportation is based on § 241 (a) (2), which deals with inspection requirements. This distinction is grounded on the argument that § 241 (f) tracks § 212 (a) (19), 8 U. S. C. § 1182 (a) (19), which deals with excludable aliens, and Errico was such an alien. But petitioners in the instant case were also excludable under § 212 (a) (19), since they sought "to enter the United States, by fraud." Indeed the Court's entire approach was explicitly rejected in Errico itself:

Even if statutory language is unclear any doubt should be resolved in favor of the alien since "deportation is a drastic measure and at times the equivalent of banishment or exile." Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948). See also Barber v. Gonzales, 347 U.S. 637, 642-643 (1954); Errico, supra, at 225. Today the Court strains to construe statutory language against the alien.

The INS contends that if petitioners were to succeed in this case, "the sky would fall in on the Immigration and Naturalization Service."1 Apart from the lack of credible support for this dire prediction,2 if the Immigration and Nationality Act is indeed unworkable, the remedy is for Congress to amend it, not for this Court to distort its language and the cases construing it.