Immigration and Naturalization Service v. Errico

PETITIONER: Immigration and Naturalization Service
RESPONDENT: Errico
LOCATION: Hayden Residence

DOCKET NO.: 54
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 385 US 214 (1966)
ARGUED: Oct 20, 1966
DECIDED: Dec 12, 1966

Facts of the case

Question

Media for Immigration and Naturalization Service v. Errico

Audio Transcription for Oral Argument - October 20, 1966 in Immigration and Naturalization Service v. Errico

Earl Warren:

Number 54, Immigration and Naturalization Service, petitioner, Giuseppe Errico.

Mr. Solicitor General.

Thurgood Marshall:

Mr. Chief Justice and may it please the Court.

This is one of two cases that have been set down one to follow the other.

This case, the Court of Appeals for the Ninth Circuit vacated the decision of the Board of Immigration Appeals which had affirmed an order of deportation issued against Giuseppe Errico.

Errico had entered the United States in 1959 by fraudulent representation made in order to bypass the then quota requirements for his native country of Italy.

The decision of the court below is in direct conflict with that of the Second Circuit in Scott against Immigration Service which is the case to follow.

The issue in both cases is much the same.

It is whether a relief provision of the Immigration Act of 1961, intended we think to be a relatively narrow applicability actually waives the deportation of Errico.

The Government contends that the provision Section 241 helps in the Immigration Act does not authorize the waiver of deportation in each of these cases.

A conclusion we say is supported by the text of the statute, the intention of Congress and the overall statutory scheme of the nationality acts.

As to the facts, Errico is now 32, is a native and citizen of Italy and because at the time he sought entry as of the present time, the Italian quota was substantially oversubscribed.

Indeed, we point out in the brief that at the time of his entry, the waiting list was some 162,612 and he made this false statement in order to obtain entry into the United States.

He falsely represented that he was a skilled mechanic with experience in repairing foreign automobile and because of that representation, he was granted a first preference status under the Italian quota.

And under the then existing preference system and those are Section 203 (a) and (1), he was admitted in the United States in October of 1959 and he has resided continuously in Portland, Oregon since his entry.

William J. Brennan, Jr.:

Mr. Solicitor, has all of these been changed by each provisions or something?

Thurgood Marshall:

The recent provision of course changes the whole quota system that's gone and as of now he could qualify to come in but there's still would be I think it's 20,000 for Italy.

But as it now stands we're applying the law as it was at the time he came in and at the time he --

William J. Brennan, Jr.:

Well, I was just wondering how big a problem is this in number any idea?

Thurgood Marshall:

Well, the number, it's pretty hard, the best example, I don't know how we do it these figures there, there are some 3 million resident aliens in the country as of now.

As to how many of them run to this, I don't know.

And -- but on the other point if you're interested on what would happen to him if this case stands and the deportation stands as to the area code, he has parents here and it's not clear in the record as to whether they are citizens yet.

And he has brothers and sisters eight at least, at least eight brothers and sisters not more, and as he stands he would not be entitled to preference.

But while he's in the United States, he could ask for discretionary relief and he could apply for adjustment of status.

But that would be under the Attorney General so it's not a certainty that he wouldn't have to go back at all.

William J. Brennan, Jr.:

Could he (Inaudible) re-enter under the (Inaudible) Act?

Thurgood Marshall:

He could.

The way I am advised by the Revenue Service that under 245 which is 8 U.S. Code 1255 he could qualify for adjustment of status and the immigration quota for Italy is still pretty far back as to this amount and he would have to qualify for some of the preferences and that would depend as to whether or not his mother and father are citizens or the brothers and sisters wouldn't help him too much but we don't know those facts.

He would still have to qualify under the ---

John Paul Stevens:

Why should that not that have been determined without coming all the way up here in this Court?