try hinged on a misstatement of fact-whether intentional or innocent. One such class of aliens would be those falsely representing themselves as American citizens. Indeed, given the requirement of a visa or recognized substitute document for the entry of nationals of most foreign countries and the improbability that one who had honestly obtained a visa would have reason to lie upon presenting his documentation at the border, the most logical application of the separate "fraudulent entry" provision is to precisely those aliens in petitioner's position-those who entered under a claim of citizenship.

The interpretation proferred by the government is not only contrary to the plain meaning of the words used by Congress, it is also without support in the legislative history of the statute. We have neither found nor have we been directed to any committee reports or congressional statements indicating an intent to limit the embrace of this statute to visa-bearing aliens. Indeed, the evidence available from those sources points with some force in the opposite direction. But even were the weight of congressional comment sufficient to create uncertainty as to the proper reading of this statute, the government's position would nevertheless fall to the interpretative canons announced by the Supreme Court in Immigration and Naturalization Service v. Errico [385 U.S. 214; 87 S.Ct. 473; 17 L.Ed.2d 318 (1966)]. For in that opinion the Court, while noting that "the meaning of the words 'otherwise admissible' [in § 241 (f)] is not obvious,' instructed that "if there [be] some doubt as to the correct construction of the statute, the doubt should be resolved in favor of the alien." In this case the government has first attempted to create doubt where the statute speaks with seeming clarity, and has then urged us to resolve that doubt against the alien. This Court is bound, however, by the language of the Congress and the decisions of the Supreme Court. We have no warrant under Errico to apply bizarre techniques of interpretation to restrict the scope of § 241(f).

Finally, it should be noted that even when the specific language, legislative history, and proper method of interpreting the statute are ignored, the government's position prevents a logical defense. Section 241(f) was designed to provide relief to those who have evaded the full rigor of the immigration process by their misrepresentations. The basic assumption of the provision is that the alien has rendered himself liable to deportation by this circumvention of the system. No one disputes, for example, that the statute covers the case of an alien who has obtained a visa by materially misrepresenting his status, even to the point of falsifying his identity and country of origin. If § 241 (f) holds an alien "otherwise admissible" who has made a mockery of the immigration interview by his distortion of reality, we see no justification for denying the protection of that section to an alien who has taken the small additional step of entirely avoiding the procedure by asserting American citizenship. Lies concerning identity, occupation, and country of origin may well render the initial immigration investigation either as worthless as no investigation at all, or as difficult and fruitless as a later § 241 (f) inquiry. More importantly, the government's argument overlooks the fact that § 241(f) was not intended to shore up the integrity of

the immigration process, but rather was designed as an instrument of humanitarian relief to be applied once the wall has been breached.

*

Section 241 (f) is not primarily designed to provide a retroactive enforcement mechanism. It is a benovolent statute. Mercy and compassion are inherent in its ameliorative function; and we are convinced that Congress did not intend for the courts to be niggardly in their interpretation of its language. If the term "otherwise admissible" is to have meaning within the context of the statute it must be interpreted as requiring that an alien meet only the physical, mental, and moral standards for admission to this country set out in 8 U.S.C. § 1182. . .

*

*

*

*

The Court concluded that because of the erroneous view of the law adopted by the Board of Immigration Appeals, no administrative judgment had been made on petitioner's qualitative acceptability at the time of entry. The case was remanded to the Board for such determination.

The Fifth Circuit reached the same result in Gonzalez v. Immigration and Naturalization Service, 493 F. 2d 461 (1974), decided on May 3, 1974.

See also Cortez-Flores v. Immigration and Naturalization Service, 500 F.2d 178 (1974), decided by the Fifth Circuit on Sept. 13, 1974; and Castro-Guerrero v. Immigration and Naturalization Service, 503 F.2d 964 (1974), decided by the Fifth Circuit on Nov. 11, 1974.

In Mahone v. Immigration and Naturalization Service, 504 F.2d 414 (1974), the U.S. Court of Appeals for the Ninth Circuit held, on October 4, 1974, that an alien who enters the United States without inspection or without documents and makes no representation either verbally or in writing is not eligible for relief under Section 241 (f). Plaintiff's entry was not surreptitious, but did completely bypass the normal immigration requirements. The Court said that "the fraud must be one of actual misrepresentations to someone rather than avoidance of detection to come with the parameters of 8 U.S.C. 1251 (f).” "Entry" into United States

In Palatian v. Immigration and Naturalization Service, 502 F.2d 1091 (1974), decided by the U.S. Court of Appeals for the Ninth Circuit on August 30, 1974, it was held that where an alien with permanent resident status attempted to smuggle 55 pounds of untaxed marijuana into the United States after a stay of two and one-half days in Mexico, the interruption of his residence in the United States was meaningful, and he made an "entry" into the country which rendered him excludable, even if his departure from the United States

was initially for innocent purposes. The term "entry" is defined in 8 U.S.C. 1101 (a) (13).

Evidence of Alienage

On June 28, 1974, the U.S. Court of Appeals for the First Circuit, in Sint v. Immigration and Naturalization Service, 500 F.2d 120 (1974), held that even though an admission of foreign citizenship made in 1970 prior to an April 1970 voluntary departure from the United States was persuasive evidence of alienage in 1970, such admission could not alone constitute clear and convincing evidence of alienage in 1974 for purposes of determining deportability. The government had the burden of demonstrating alienage in order to establish deportability. See §§ 241 (a) (1) and 242 (b) (4) of the Immigration and Nationality Act.

Adjustment of Status

In Dunn v. Immigration and Naturalization Service, 499 F.2d 856 (1974), the U.S. Court of Appeals for the Ninth Circuit held, on June 27, 1974, that an alien subject to deportation as a result of conviction for possession of marijuana was not entitled to discretionary relief under 8 U.S.C. 1182 (c) permitting discretionary reentry of aliens returning to an unrelinquished domicile. It was also held that Section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255 (c), denying the discretionary relief of adjustment of status to nonquota natives of Western Hemisphere countries has a rational basis and is constitutional. The Court said that "There is a rational basis for the distinction between aliens from the Eastern Hemisphere and aliens from the Western Hemisphere for purposes of relief from deportation pending adjustment of status." (at p. 859.)

Extended Departure Date

On February 6, 1974, the U.S. District Court for the Southern District of New York, in Noel v. Green, 376 F.Supp. 1095 (1974), held that the INS policy which denied to Western Hemisphere aliens married to permanent resident aliens, but who were nevertheless illegally in the United States awaiting issuance of visas, the discretionary relief of an extended departure date except on a showing of compelling factors, did not constitute a gross abuse of discretion and did not deprive such aliens of equal protection. The INS policy also distinguished between aliens present in the United States and married as of April 10, 1973, and those who arrived or married after that date. See the Immigration and Nationality Act §§ 101 (a) (27), 201 (a, b), and 212(a) (14).

84

Refugees; Asylum; Statelessness

Travel Documents

Refugees

On January 11, 1974, the Immigration and Naturalization Service, Department of Justice, announced an amendment to the regulations concerning the issuance of refugee travel documents. The amendment, which became effective on February 19, 1974, defines the term “lawful presence" as used in Section 223a.3 of Title 8 of the Code of Federal Regulations. The amendment serves to make discretionary rather than mandatory the issuance of a refugee travel document to a person whose authorized presence in the United States is so brief (e.g. transit or crewman) as not to imply residence, even of a temporary nature, amounting to "lawfully staying" within the meaning of Article 28 of the 1951 United Nations Convention Relating to the Status of Refugees (TIAS 6577; 19 UST 6223). According to the INS, this is in accord with an interpretation of Article 28 by the U.N. High Commissioner for Refugees. The second sentence of Section 223a.3 was amended to read as follows:

Any alien physically present in the United States may apply for a refugee travel document if he believes he is a refugee. A refugee travel document shall be issued to a refugee whose presence in the United States is lawful unless compelling reasons of national security or public order otherwise require; lawful presence, as used herein, does not include brief presence as a transit or crewman, or any other presence so brief as not to signify residence even of a temporary nature. A refugee travel document may be issued, in the exercise of discretion, to any other refugee unless reasons of national security or public order otherwise require; sympathetic consideration shall be given to such an application unless the Service intends to expel or exclude the alien from the United States. For reasons of national security, a refugee travel document shall not be issued to an alien who intends to travel to, in, or through Cuba or Communist portions of Korea or Viet-Nam, unless the restriction with respect to any such place or places has been waived as provided in § 223a.5 (b) (2).

The Fed. Reg., Vol. 39, No. 12, Jan. 17, 1974, p. 2079. See also the 1973 Digest, Ch. 3, § 4, pp. 103–104. Art. 28 of the United Nations Convention of July 28, 1951, is as follows:

1. The contracting states shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such documents. The contracting states may issue such a travel document to any other refugee in their territory; they shall in particular give sympathetic consideration to the issue of such a travel document to refugees in their territory who are unable to obtain a travel document from the country of their lawful residence.

569-769-75-8

2. Travel documents issued to refugees under previous international agreements by parties thereto shall be recognized and treated by the contracting states in the same way as if they had been issued pursuant to this article.

The United States is not a party to the 1951 Convention, but is obligated under Art. 28, inter alia, through the 1967 Protocol Relating to the Status of Refugees (TIAS 6577; 19 UST 6223; entered into force for the United States Nov. 1, 1968, subject to reservations).

On November 25, 1974, amendments to 8 CFR 223 and 223a pertaining to eligibility for issuance of reentry permits and refugee travel documents, respectively, became effective. The amendment to § 223.1 provides that an applicant for a reentry permit who is a lawful permanent resident and who is in possession of a refugee travel document issued pursuant to 8 CFR 223a may not be issued a reentry permit unless he surrenders the refugee travel document to the Immigration and Naturalization Service. The amendment to § 223a.3 provides that a lawful permanent resident alien who is in possession of a reentry permit issued pursuant to Section 223 of the Immigration and Nationality Act and 8 CFR 223 may not be issued a refugee travel document unless he surrenders the reentry permit to the Service.

See the Fed. Reg., Vol. 39, No. 208, Oct. 25, 1974, pp. 37967-37968.

Resettlement

On December 13, 1974, Linwood Holton, Assistant Secretary of State for Congressional Relations, replied to questions on human rights submitted by Representative Donald Fraser, Chairman of the Subcommittee on International Organizations and Movements of the House Foreign Affairs Committee. Many of the questions dealt with human rights in Chile. Among them was the following: "President [Augusto Pinochet Ugarte] has promised to allow the political prisoners to leave Chile, but apparently has done little to implement his promise. What is the Department doing to encourage Chile to implement this promise? If implemented, how would we assist the U.N. High Commissioner for Refugees and other international agencies to provide resettlement opportunities? How many of these political prisoners are we prepared to accept?" Mr. Holton replied:

Our information indicates that progress is being made to implement Junta President Pinochet's expressed readiness to allow detainees to leave Chile. Information received from humanitarian organizations working in Chile indicates that the Chilean Government is considering releasing large numbers in the coming months. How many of these persons might be required to leave Chile as a condition of their release has not been determined.

Thus, the scope and modalities of any international resettlement effort are as yet uncertain. So far as we know, the U.N. High Commission for Refugees (UNHCR), which has taken the responsi