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Tibke v. Immigration and Naturalization Service

July 9, 1964

HANS WERNER TIBKE, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Author: Hays

Before MOORE, KAUFMAN and HAYS, Circuit Judges.

HAYS, Circuit Judge.

Section 245 of the Immigration and Nationality Act, as amended, 8 U.S.C. § 1255 (Supp. V, 1959-63) (the "Act") provides:

"(a) The status of an alien, other than an alien crewman, 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 approved."

The issue in the present case is whether, as the petitioner urges, Section 245 permits the Attorney General to adjust the status of an alien who entered as an immigrant and who later became deportable or whether, as the Service maintains, the Section permits adjustment of status only in the case of nonimmigrants.

Petitioner Tibke is a native and citizen of Germany who entered the United States in 1958 as an immigrant admitted for lawful permanent residence. While resident in the United States Tibke was twice convicted of crimes involving moral turpitude. By reason of these convictions Tibke was deportable under Section 241(a) (4) of the Act.

During the pendency of deportation proceedings against him, Tibke married an American citizen. Although his prior convictions rendered him inadmissible to the United States "for permanent residence" within the meaning of Section 245, Section 212(g) of the Act authorizes the Attorney General, in his discretion, to waive this ground of excludability for an alien who is the spouse of a United States citizen, if it is established that exclusion would result in extreme hardship to the spouse and that admission of the alien would not be contrary to the national welfare and security of the United States. As a result of his marriage, therefore, Tibke became eligible for relief under Section 212(g), which, if granted, would satisfy the admissibility requirements of Section 245. By his marriage Tibke also acquired a nonquota status. To use the language of Section 245, if that Section is applicable to him, he became "eligible to receive an immigrant visa" immediately upon approval of his application for adjustment of status.

Tibke applied in the pending deportation proceeding for a waiver of excludability under Section 212(g) and an adjustment under Section 245 to the status of an alien lawfully admitted for permanent residence. The Special Inquiry Officer denied Tibke's application, relying on Matter of Da Silva, Interim Dec. No. 1268 (1963), a decision of the Board of Immigration Appeals, which held that Section 245 afforded relief only to non-immigrants and not to immigrants. On Tibke's appeal to the Board of Immigration Appeals, that Board upheld the ruling of the Special Inquiry Officer. Tibke thereupon appealed to this court. Immigration and Nationality Act, § 106, 8 U.S.C. § 1105a (Supp. V, 1959-63); Foti v. I.N.S., 375 U.S. 217, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963).

On its face the statute seems clear. "An alien" includes both a non-immigrant and an immigrant*fn1 Nevertheless the Board of Immigration Appeals in Matter of Da Silva, supra, held that the statutory development of Section 245 and the relationship of Section 245 to other portions of the statutory framework indicated that Congress did not intend "a change so radical as to make Section 245 apply to aliens lawfully admitted as immigrants as well as non-immigrants." Substantially the same analysis is urged here by respondent.

We are not persuaded by the material referred to by respondent and the Board of Immigration Appeals that Congress meant anything other than what it said, and we hold that Section 245 applies to all aliens, with the expressly stated exception of alien crewmen.

Section 245 was first enacted in 1952 to supplant the administrative procedure known as "pre-examination." Pre-examination relieved certain aliens, whose status would otherwise not entitle them to remain in the United States, from the hardship and expenses of going abroad for a long wait until an immigration visa was processed. Aliens qualifying for pre-examination "had their eligibility to enter as immigrants determined in this country prior to sending them to Canada where they briefly appeared before a United States consular officer, and then returned to this country with an immigrant visa." Sen.Rep.No.2133, 85th Cong., 2d Sess., 1958, 2 U.S.Code Cong. & Adm.News, p. 3698. Section 245 eliminates the perfunctory and needless trip to Canada by permitting eligible aliens to adjust their status while remaining in the United States throughout the administrative process. The rights conferred by Section 245 are thus wholly procedural; the alien must still satisfy applicable substantive standards and persuade the Attorney General to exercise his discretion favorably.

In the basic 1952 Act, Section 245 provided that the applicant must be "an alien who was lawfully admitted to the United States as a bona fide nonimmigrant and who is continuing to maintain that status." 66 Stat. 217 (1952). In 1958 the provision was amended to permit as an applicant "an alien who was admitted to the United States as a bona fide nonimmigrant," 72 Stat. 699 (1958), thus deleting the requirement of continuance of the original bona fide nonimmigrant status. The present provision, which extends coverage to "an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States," was adopted in 1960.

The Board of Immigration Appeals concluded that this statutory history evidenced a concern with the plight of nonimmigrants and that the purpose of the 1960 amendment was to eliminate the necessity for the applicant's original status as a nonimmigrant to have been bona fide - a requirement that has caused some administrative difficulty, see Matter of B -, 8 I. & N. Dec. 621 (1960); Matter of G -, 8 I. & N. Dec. 636 (1960); Matter of A -, 8 I. & N. Dec. 655 (1960); Matter of F -, 8 I. & N. Dec. 680 (1960) - rather than to expand coverage to all aliens. Support for this interpretation was found in the heading under which Section 245 continues to be found in the codified statutes, 8 U.S.C. § 1255 (Supp. V, 1959-63), "Adjustment of status of nonimmigrant to that of person admitted for permanent residence." (Emphasis added.)

We think that, on the contrary, the statutory history demonstrates that when Congress intended to limit Section 245 to nonimmigrants it did so without ambiguity and that the change in the statute by the use of the general term "an alien" must be given full effect. Had Congress meant to make only the limited change suggested by respondent, it would have been sufficient merely to eliminate the words "bona fide" from the phrase "bona fide nonimmigrant." Instead the inclusive term "an alien" was left unmodified in the statute. In view of the ...


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