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Once it is established that this discrimination among citizens cannot escape traditional constitutional scrutiny simply because it is set in immigration legislation, the result is virtually foreordained. One can hardly imagine a more vulnerable statute.

The class of citizens denied the special privilege of reunification in this county is defined on the basis of two traditionally disfavored classifications-gender and legitimacy

45 Law Week 4407 (footnote omitted).

Education

Access to College Tuition Aid

The U.S. Supreme Court held in the case of Nyquist v. Mauclet, 45 Law Week 4655, on June 13, 1977, that a New York State educational assistance statute which discriminated against those aliens who have not made application to become a citizen or who have not submitted a statement affirming intent to apply for U.S. citizenship as soon as eligible violates the equal protection guarantee of the Fourteenth Amendment of the U.S. Constitution.

The statute in question, which provides financial assistance by the State of New York for higher education for defined citizens, aliens, and refugees, reads in pertinent part as follows:

Citizenship. An applicant . . . (b) must have made application to become a citizen, or (c) if not qualified for citizenship, must submit a statement affirming intent to apply for United States citizenship as soon as he has the qualifications, and must apply as soon as eligible for citizenship,

New York Educ. Law § 661 (3) (McKinney Supp. 1976).

The legal challenge was brought by two permanent resident aliens. One was Jean-Marie Mauclet, a French citizen who was married to a U.S. citizen and who had a child with U.S. citizenship. He applied for a tuition assistance award for the expenses of his graduate studies at the State University of New York. His application was not processed because he refused to apply for U.S. citizenship. The other was Alan Rabinovitch, a Canadian citizen who had lived in New York since 1964 and who was offered a New York Regents college scholarship and tuition assistance on the basis of his performance on the competitive Regents Qualifying Examinations. Later the offer was withdrawn after he indicated that he intended to retain his Canadian citizenship while continuing to reside in New York. Mauclet and Rabinovitch each brought suit in different U.S. District Courts alleging that the provisions of 661 (3) favoring citizens were unconstitutional. A three

judge court heard both cases together and ruled unanimously in their favor.

In a 5 to 4 decision, the U.S. Supreme Court affirmed the judgments of the District Court. The majority opinion by Mr. Justice Blackmun emphasized that State classifications based "on alienage are 'inherently suspect and subject to close judicial scrutiny.' Graham v. Richardson, 403 U.S. 365, 372 (1971)." 45 Law Week 4657. Further, "§ 661 (3) is directed at aliens and . . . only aliens are harmed by it." Id. Relying upon clause 4 of Section 8 of Article I of the U.S. Constitution, which gives Congress the power to "establish an uniform rule of naturalization," Justice Blackmun stated that "[c]ontrol over immigration and naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere." Id. 4658. The Court responded as follows to the appellants' assertions that section 661 (3) could be justified as "an incentive for aliens to become naturalized" and that the assistance program should serve only those who can or will vote:

If the encouragement of naturalization through these programs were seen as adequate, then every discrimination against aliens could be similarly justified. Id. 4658.

Resident aliens are obligated to pay their full share of the taxes that support the assistance programs. There thus is no real unfairness in allowing resident aliens an equal right to participate in programs to which they contribute on an equal basis. Id. 4658.

Three separate dissents were filed. In the principal dissent, with whom the Chief Justice joined, Mr. Justice Rehnquist contended that § 661 (3) should be sustained because this section permits the alien to escape the discriminatory effect of the statute:

[A] resident alien has, at all times, the power to remove himself from one classification and to place himself in the other, for, at all times, he may become entitled to benefits either by becoming a citizen or by declaring his intention to become a citizen as soon as possible. (Footnote omitted.) Unlike the situation in Griffiths, Sugarman, and Graham, there exists no period of disability, defined by status, from which the alien cannot escape. Id. 4660.

...

In a footnote, the majority opinion of Justice Blackmun responded to Justice Rehnquist :

By the logic of the dissenting opinion [of Justice Rehnquist], the suspect class for alienage would be defined to include at most only those who have resided in this country for less than five years, since after that time, if not before, resident aliens are generally eligible to become citizens. 8 U.S.C. § 1427 (a). The Court has never suggested, however, that the suspect class is to be defined so narrowly. In fact, the element of voluntariness in a resident alien's retention of alien status is a recognized element in several of the Court's decisions. For example, the Court acknowledged that Griffiths involved an appellant who was eligible for citizenship, but who had not filed a declaration of intention to become a citizen, and had "no present intention of doing so." 413 U.S., at 718 n. 1. And insofar as the record revealed, nothing precluded the appellees in Sugarman v. Dougall from applying for citizenship. 413 U.S., at 650 (Rehnquist, J., dissenting).

Id. 4657, n.11.

See the 1973 Digest, Ch. 3, § 3, pp. 91-97, for a further discussion of In re Griffiths, 413 U.S. 717 (1973) and Sugarman v. Dougall, 413 U.S. 634 (1973). Section 1 of the Fourteenth Amendment reads in pertinent part as follows:

No state shall make or enforce any law. . . ; nor deny to any person within its jurisdiction the equal protection of the laws.

Revocation of Naturalization and Deportation

On August 3, 1977, Leonel J. Castillo, Commissioner of the Immigration and Naturalization Service, testified before the Subcommittee on Immigration, Citizenship and International Law of the Committee on the Judiciary of the House of Representatives concerning the investigation of alleged Nazi war criminals by the Immigration and Naturalization Service. Portions of his prepared remarks describing actions of the U.S. Government with regard to these investigations follow:

[T]he Service has received allegations that certain individuals residing in the United States, either as citizens or as lawful permanent residents, committed atrocities or war crimes during World War II in several Eastern European countries such as Poland, Latvia, and Lithuania. These allegations were investigated by the Service, and as a result, a number of actions have been instituted. . . .

Revocation of naturalization pursuant to section 340 (a) of the Immigration and Nationality Act, 8 U.S.C. 1451 (a), is presently being sought in United States District Court in four cases involving five individuals. No hearing dates have been set yet . . . .

Four aliens are presently under deportation proceedings brought pursuant to section 241 (a) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)

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In an additional case, the Service has informed an alien who has already been found deportable that it intends to withdraw an order of temporary withholding of deportation under section 243 (h) of the Act, 8 U.S.C. 1253 (h)

One criminal prosecution under 18 U.S.C. 1425 for attempted unlawful procurement of naturalization has been submitted to the Grand Jury which is considering whether to indict.

Ten cases are presently being reviewed for the possible institution of revocation of naturalization proceedings. . . .

As of July 22, 1977, the Service had 22 recent allegations of Nazi war criminality pending a preliminary inquiry, which serves to identify the person against whom the allegation is made and to determine his present whereabouts and the state of his health. Domestic investigations, which include inquiries in Israel, were

pending in 13 cases. 69 cases were pending inquiries in Europe to be made by the Department of State.

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Determination of Refugee Status

In Pierre v. United States, 547 F. 2d 1281 (1977), the United States Court of Appeals for the Fifth Circuit, Robert A. Ainsworth, Jr., Circuit Judge, affirmed a district court denial of the habeas corpus petition of 147 Haitian nationals who challenged the U.S. Immigration and Naturalization Service's (INS) denial of their request for parole into the United States as political refugees. The court held in an opinion decided on March 7, 1977 (rehearing and rehearing en banc denied April 12, 1977), that the Protocol relating to the Status of Refugees (Protocol) done on January 31, 1967 (TIAS 6577; 19 UST 6223; entered into force for the United States November 1, 1968), did not "substantively" alter the "statutory immigration scheme" of the United States and that the Protocol did not invest the petitioners "with a liberty right protectable by due process or other constitutional protections." Id. 1288-1289. The court also held, inter alia, that the U.S. statutory distinction between excludable aliens and aliens who have made entry, even if illegally, did not deny excludable aliens such as the petitioners equal protection of the law; and that the Administrative Procedure Act, 5 U.S.C. 500 et seq., did not require the kind of hearing requested by petitioners to determine their refugee status.

The petitioning 147 Haitian nationals, while admitting their excludability under 8 U.S.C. 1182 (a) (20) due to their lack of appropriate documentation, requested parole into the United States under section 1182 (d) (5) as political refugees as defined in the Protocol. In describing U.S. asylum policy, the Court quoted article 33 of the Protocol:

No Contracting State shall expel or return ("refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Id. 1284.

The Court next quoted the Protocol's definition of "refugee" which substantially incorporates the following definition of "refugee" found in the Convention relating to the Status of Refugees done on July 28, 1951 (189 UNTS 150):

A. For the purposes of the present Convention, the term "refugee" shall apply to any person who:

(2) As a result of events occurring before January 1, 1951, and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Id. 1284.

Portions of the Court's opinion concerning the Protocol follow:

On appeal petitioners contend that the INS and the District Court misconstrue the effect of the Protocol on the statutory immigration scheme. They argue that on the one hand Article 33 of the Protocol permits the INS no discretion to exclude bona fide refugees; and that on the other hand the Protocol vests in all potential refugees a liberty right or expectation protectable under the due process clause of the Fifth Amendment to the United States Constitution, cf. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Neither contention has merit.

The legislative history of United States accession to the Protocol shows that the State Department, in presenting the Protocol to the Senate for ratification, believed that the Protocol would require no changes in the current administration of immigration policy. Lawrence Dawson, Acting Deputy Director of the Office of Refugee and Migration Affairs of the State Department, testified to this effect before the Senate Foreign Relations Committee when that committee was conducting hearings concerning the Protocol:

[A]ccession does not in any sense commit the contracting state to enlarge its immigration measures for refugees. Rather, the asylum concept is set forth in the prohibition against the return of a refugee in any manner whatsoever to a country where his life or freedom would be threatened; and the prohibition under Article 32 against the deportation of a refugee lawfully in the territory of a Contracting State to any country except in cases involving national security or public order. The deportation provisions of the Immigration and Nationality Act, with limited exceptions, are consistent with this concept. The Attorney General will be able to administer such provisions in conformity with the Protocol without amendment of the Act. [Emphasis added.] [Appendix 90th Cong., 2d Sess., Ex

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