Originally posted by Folinskyinla
Hi:

Ah, the Errico decision. That case was later followed by INS v. Reid 420 US 619 (1975). [I have Westlaw up and running in a separate window].

One must remember the law of unintended consequences. The nature of the Common Law use of cases is to extrapolate general principals from specific case -- and the Supreme Court exemplifies that role. But at times, the lawyers in trenches will start applying that general case to their specific cases -- often trying to stretch the legal envelope. And then the courts will gag a bit.

Errico involved the old section 241(f) [which was amended in 1980 to be a form of discretionary relief and is now found at 237(a)(1)(H)] which provided for a MANDATORY defense to deportation because of entry fraud if you had the qualifying US relative.

It is not at all uncommon for the same conduct to fall under multiple grounds of deportability. In Errico, the INS charged the alien with a ground of deportability OTHER than fraud, but which was factually based upon the fraud.

I know of one law firm in Los Angeles [still in existence] which started asserting 241(f) to visitor visa overstay charges by arguing that their clients committed visa fraud when they applied for tourist visas by concealing an intent to remain in the United States, and since they subsequently had a US born child, they were excused from their fraud. Of course, this is weird because it was the alien trying to prove their OWN fraud.

But Errico seemed to support that. So later Reid came down the pike -- and Congress later eliminated the problem by clarifying the statute a bit AND making the relief discretionary.

Another interesting case from the Supremes is Phinpathya from the early 80's. In 1963, the Supremes had issued the classic "entry" case in Rosenberg v Flueti. Over the years, the Flueti "brief, innocent, casual & not meaningfully interruptive" rubric had been applied to permissible breaks in the "continuous presence" requirement for section 244 "suspension of deportation". The issue presented to the Supremes was whether or not Ms. Phinpathya's departure fit within that rubric. The Government argued that it was not brief, it was no innocent, and it wasn't casual" and Mrs. P argued on "meaningfully interruptive." [IMHO, the Government was right, but there were equities on Mrs. P's side because of their child's condition and her husband was granted suspension].

Phinpathya is often described as a 5-4 decision. But on the JUDGEMENT, Phinpatya lost 9-zip. The dissent agreed with the Government's position. The majority went BEYOND the issues briefed and simply ruled that the plain language of the statute didn't allow for ANY absence -- thereby going against nearly 20 years of accpeted practice.

BTW, in 1986, Congress legislatively "overruled" Phinpathya by amendment to the statute. I actaully now often use Phinpathya for the principle that the statute controls.

A further BTW, before you crow, "ah, another 9th Circuit reversal" -- take a look at INS v Chada. Chada is considered a very important case outside of immigration law.

Originally posted by AnnaV
Hey, Mr F,

I give up. I can't spend 8 hours a day trying to research all these cases, as interesting as they are, just to come up with a meaningful reply. I also don't have access to WestLaw or LexisNexis (sp?), so researching on the net makes it a little more involved than I would like it to be. (What I would love is something analogous to a citations index in science.) I love reading case laws as much as the next guy, but if I continue on this thread, I might as well enter law school. This whole experience gives new meaning to the phrase, "A little learning is a dangerous thing" (as applied to me, of course).

And for the record, I *never* crow. I just think that the 9th circuit has become a caricature of itself. There are some cases in which I actually agree with the 9th circuit (especially in patients' rights), but because of their reputation, no one really takes them so seriously anymore (MY impression) because of their rate of reversal in the Supreme Court. If it goes up to the SC, chances are 3 out of 4 that the decision will be reversed. Odds aren't too good. I make fun of the 9th circuit in the same way I make fun of pretty much any other government entity that has become an open target of derision (IRS and USCIS, anyone?).

Anyways, I'm bowing out of this thread for good.... Well, I might sneak a peak at the decisions you mentioned (out of morbid curiousity), but not a squeak more from me.

Thanks for an interesting discussion.

Anna