Norma Andalis Bagamasbad, Petitioner, v. Immigration and Naturalization Service, Respondent, 531 F.2d 111 (3d Cir. 1976)

The narrow issue presented in this alien's petition for review of an order of the Board of Immigration Appeals is whether Section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a),¹  requires the Attorney General to make an eligibility determination before he can exercise his discretion. The Board held that the immigration judge could pretermit the eligibility issue and could deny the application for status adjustment as an exercise of discretion. We set aside the Board's order and remand for further proceedings.

Petitioner, a native and citizen of the Philippines, entered the United States at Honolulu, Hawaii, on July 12, 1968, as a nonimmigrant visitor for pleasure. Having overstayed her visit, she applied, pursuant to § 245 for an adjustment of her status to that of a permanent resident. On February 21, 1973, the Philadelphia District Director denied her application in the exercise of discretion and granted her 30 days to effect her voluntary departure from the United States. Because petitioner remained in the United States beyond the 30-day period, she was ordered to show cause why she should not be deported. At the April 19, 1973, deportation hearing, petitioner renewed her application for adjustment of status, conceded deportability, and admitted she had misrepresented her occupation when she applied for her visa. She had listed her occupation as a merchant; she was a teacher. She also had represented that she had not earned a college degree when, in fact, she had received a B.S. in Medical Technology in 1966.

In her written decision, the immigration judge denied petitioner's renewed application, reasoning that petitioner's 'material, deliberate misrepresentations' did not merit a favorable exercise of administrative discretion. It is conceded that the Immigration Service made no specific determination of petitioner's eligibility for adjustment of status prior to denying her application as a matter of discretion.

Petitioner does not seek judicial review of the exercise of discretion. Rather, she urges that, irrespective of the discretionary denial of status adjustment, an eligibility determination is both extremely important to her and statutorily mandated.² 

Petitioner asserts that the importance of an eligibility determination will surface when, after departing from the United States pursuant to the Board's order, she applies to a consular office for an immigrant visa. 'Respondent's finding of fraud . . . might very well indicate to a consular officer abroad, reviewing the Petitioner's application for an immigrant visa in the future, that the Petitioner is excludable from admission . . ..' Petitioner's Brief at 12.

An overview of the duties of consular officers and an explanation of the transfer of their duties to the Attorney General under § 245 place petitioner's apprehension in perspective. Therefore, we now turn our attention in those directions.

If an alien seeks admission into the United States as an immigrant, he completes a visa application before a consular officer. The consular officer then has an affirmative duty to determine the alien's eligibility for a visa. See 8 U.S.C. § 1201(g). Congress has provided that certain classes of aliens are statutorily ineligible to receive visas:

(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact . . ..

8 U.S.C. § 1182. Thus, if the consular officer were to determine that the alien fell within this classification, no visa would issue.

We were told by government counsel at oral argument that, unlike final deportation orders of the INS, 8 U.S.C. § 1105a,³  eligibility determinations of consular officers are not subject to judicial review. Indeed, government counsel suggested that not even an administrative appeal to the Secretary of State lies from the consular officer's determination.⁴  Therefore, the consular officer plays a significant role in the alien admission process.

If the alien, other than an alien crewman, is in the United States, he may apply to the Attorney General under § 245 for an adjustment of status to that of an alien lawfully admitted for permanent residence. However, the application can be granted only if the Attorney General determines he 'is eligible to receive an immigrant visa.' 8 U.S.C. § 1255(a) (2). Therefore, the statutory classifications of ineligibility, 8 U.S.C. § 1182, would apply with equal force in a § 245 proceeding. Consequently, the failure of the immigration judge to determine first whether petitioner was an alien 'eligible to receive an immigrant visa', 8 U.S.C. § 1255(a) (2), is doubly important to petitioner, especially where, as here, the immigration judge characterized her misrepresentations as material and deliberate.

Petitioner's apprehension of the practical consequences of the immigration judge's failure to make an eligibility determination certainly is not controlling. Our task is to analyze the statute itself, and it is to this that we now turn.

Section 245(a) provides in pertinent part:

The status of (a nonimmigrant) alien, . . . 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.

Petitioner argues that this sub-section requires a determination by the Attorney General that the three express conditions are met before he can deny adjustment of status as a matter of discretion. Although the language of the statute is not as specific as it could be, we find much logic to the contention. Analogous case law furthers the argument, and the legislative history of amendments to § 245 does not detract from it.

In support of her contention petitioner relies heavily on Jay v. Boyd, 351 U.S. 345, 76 S. Ct. 919, 100 L. Ed. 1242 (1956). There, the alien brought a habeas corpus action testing the validity of the denial of his application, under § 244(a) (5) of the Act, 8 U.S.C. § 1254(a) (5),⁵  for discretionary suspension of deportation. In the course of its opinion affirming the denial of discretionary suspension, the Court referred to the conditions of eligibility for discretionary relief as 'the first step in the . . . procedure,' ibid. at 352, 76 S. Ct. at 924, and stated: 'Eligibility for the relief here involved is governed by specific statutory standards which provide a right to a ruling on an applicant's eligibility.' Ibid. at 353, 76 S. Ct. at 924 (emphasis added).

Although Jay was not an adjustment of status proceeding, the statutory structure of § 244 was strikingly similar to that of § 245. The government attempts to dilute the Court's express declaration. It suggests that the regulations summarized in Jay required an eligibility determination before an exercise of discretion could take place' currently, the regulations do not require this two-step process.

In 1952 the regulations required the immigration judge to present evidence bearing on the applicant's eligibility for relief, 8 C.F.R. Rev. § 242.53(c) (1952) and further required a 'written decision' with 'a discussion of the evidence relating to the alien's eligibility for such relief and the reasons for granting or denying such application.' 8 C.F.R. Rev. § 242.61(a) (1952). Now, 'the only burden on the Immigration Judge in the present case was to make a decision, written or oral, which discusses the 'evidence and findings as to deportability' and which contains 'a discussion of the evidence pertinent to any application made by (the alien) under section 242.17 (e.g., § 244 and § 245 applications) and the reasons for granting or denying the request.' 8 C.F.R. § 242.18(a). Under the newer regulations, gone is the requirement that the Immigration Judge discuss the alien's eligibility for discretionary relief.' Respondent's Brief at 8.

The government's argument runs into two walls. First, the current regulation does not set forth what determinations must be made. It does not say that an immigration judge can or cannot pretermit the § 244 or § 245 conditions and deny the application as an exercise of discretion. Thus, the current regulation supplies no support to the government's position.

Second, the government misreads the explicit language of Jay v. Boyd, supra, which states that statutory standards provided the alien's right to a Section 244 eligibility ruling. The Court did not say that the standards were imposed by regulations of the Attorney General or that the Attorney General could pretermit such a determination.

Analogizing the statutory formulation in § 244 to that in § 245, we find much force and logic in the Court's pronouncement in Jay. First, § 245(a) explicitly mandates the satisfaction of three conditions before the Attorney General can exercise his discretion in favor of permanent resident status. Second, there is no question that if the Attorney General does exercise favorable discretion, all three requirements must be satisfied. Third, if a point is reached where the Attorney General concludes that the alien should be denied relief as a matter of discretion, it would seem to follow that the applicant has the right to assume he has met all three qualifications. Otherwise, the exercise of unfavorable discretion would appear to be a meaningless, unnecessary act. See Ameeriar v. INS, supra n.2, 438 F.2d at 1040 (Gibbons, J., dissenting) ('eligibility must exist before that discretion comes into operation').

The Board disagrees. It held that the immigration judge is not required to find eligibility. Therefore, under the Board's holding, petitioner cannot even rely on an implied finding of eligibility. We fail to see the logic of this holding. Moreover, the interest in orderly administrative and judicial review commands the Supreme Court statement. Contrasted with the procedures regulating a determination of eligibility by a consular officer,⁶  there is, as heretofore observed, a statutory right to administrative and judicial review of the § 245 determination.⁷  Thus, Jay v. Boyd, supra, supports persuasively the statutory interpretation sought by petitioner.

Having unsuccessfully distinguished Jay, the government seeks comfort in Silva v. Carter, 326 F.2d 315 (9th Cir. 1963), cert. denied, 377 U.S. 917, 84 S. Ct. 1181, 12 L. Ed. 2d 186 (1964). There, a similar issue came before the court under the framework of §§ 212(g) and 249 of the Act. Like § 244 in Jay v. Boyd, supra, the provisions of §§ 212(g) and 249 in Silva v. Carter, supra, are similar in structure to those of § 245. Therefore, we will draw analogies from them.

In Carter, the acting regional commissioner denied Silva's application on the basis that Silva did not merit the Attorney General's favorable exercise of discretion. Explicit eligibility conditions had to be met, but the Commissioner did not determine whether Silva had satisfied the requirement that his admission not be contrary to the national welfare, safety or security of the United States. The crucial distinction between Carter and our case lies in the reasons for exercising unfavorable discretion. In Carter the reasons for exercising unfavorable discretion had nothing to do with the national welfare requirement. Therefore, there was 'nothing to indicate that discretionary relief was denied by the regional commissioner on the ground of ineligibility.' Ibid. at 320.

Here, the misrepresentations in petitioner's visa application formed the basis for the exercise of unfavorable discretion. These identical misrepresentations could render petitioner ineligible to receive an immigrant visa. 8 U.S.C. §§ 1182(a) (19), 1255(a) (2).⁸  Thus, unless the question of her eligibility is now determined, there is no way of knowing whether the denial of relief encompassed a tacit finding of ineligibility.

The legislative history of § 245 does not support the restrictive interpretation urged by the government. Much of this history has been set forth by Judge Gibbons, dissenting in Ameeriar v. INS, supra, 438 F.2d at 1036--38.

Prior to 1952, if a person was in the United States temporarily or irregularly, but eligible for an immigration visa and quota number, there was no statutory method of obtaining such a visa without leaving the country and applying to a consulate. To alleviate hardships, the Immigration and Naturalization Service developed the practice of pre-examination, whereby under an agreement with Canada, eligible immigrants were examined by immigration officers in the United States, and when their admissibility was established, sent by prearrangement to a consul in Canada who issued a visa. A limited remedy of adjustment of status was enacted in the Act of June 27, 1952, Pub. L. No. 82--414, § 245, 66 Stat. 217, and subsequent amendments of the statute broadened its application. The administrative regulations sanctioning pre-examination were revoked in 1959. 24 Fed.Reg. 6477 (1959). See Bufalino v. Holland, 277 F.2d 270, 281 (3 Cir.), cert. denied, 364 U.S. 863, 81 S. Ct. 103, 5 L. Ed. 2d 85 (1960).

Ibid. at 1036.

We are persuaded that the intent of the 1958 and 1960 amendments to § 245 was to streamline this aspect of the immigration process--to provide a method for determining whether the 'alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence', without the necessity of pre-examination in the United States and subsequent physical departure to a foreign-based American consul to obtain a visa. The Senate Committee on the Judiciary described the amendment as 'a procedural measure designed to ameliorate existing practices and procedures developed by way of administrative regulations'. S.Rep. No. 2133, 85th Cong., 2d Sess. (1958), 1958 U.S.Code Cong. & Admin.News pp. 3698, 3699.

Judge Gibbons has explained further:

The reports also refer to saving of expense, both by the Government and by the immigrant by eliminating the formalism of a trip to Canada. When, in 1960, the statute was amended, Act of July 14, 1960, Pub. L. No. 86--648, § 10, 74 Stat. 505, to eliminate as an eligibility requirement admission as a bona fide nonimmigrant, the Senate Report on the amending statute quoted with approval the above quoted language of S.Rep. No. 2133, repeated the ameliorating purposes of the legislation, and said:

'The Attorney General's interpretation (of the 1958 Amendment) will not only necessitate the reinstatement of the fallacious procedure known as 'preexamination' and consisting of round trips to Canada for the sole purpose of obtaining an immigration visa, but will certainly greatly increase the number of private bills. The Congress has repeatedly expressed its disapproval of the 'preexamination' procedure and has similarly expressed its dissatisfaction with the mounting volume of private legislation.'

438 F.2d at 1037.

Under the former practice, therefore, pre-examination inquired into an alien's statutory eligibility for admission into the United States as an immigrant alien. As we read the legislative history, the amendments to § 245 were procedural in nature. They sought 'to ameliorate existing practices and procedures'. They did not, as the government would have us hold, replace the existing law with one requiring an eligibility determination only if favorable discretionary action were indicated.

The finding of eligibility vel non under § 245 is extremely critical to this petitioner. If she is found to be ineligible for adjustment and thus deportable, she has a right to administrative and judicial review. The Supreme Court has said that the 'finding of eligibility involves questions of fact and law'. Foti v. INS, 375 U.S. 217, 228--29 n.15, 84 S. Ct. 306, 313, 11 L. Ed. 2d 281 (1963). Rusk v. Cort, 369 U.S. 367, 379--80, 82 S. Ct. 787, 794, 7 L. Ed. 2d 809 (1962), teaches that, in matters arising under the Immigration and Nationality Act of 1952, 'the Court will not hold that the broadly remedial provisions of the Administrative Procedure Act are unavailable to review administrative decisions under the 1952 Act in the absence of clear and convincing evidence that Congress so intended.' (Emphasis supplied.) See also Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967).

As the government related at oral argument and as we indicated earlier, Congress has provided explicitly that there be no review of a consul's denial of a visa for want of statutory eligibility. However, we cannot accept the notion that Congress would sanction procedures whereby there could be no judicial review of an adverse finding on the very important question of statutory eligibility of an immigrant for admission to the United States. Yet this is the very real practical effect of the interpretation the government urges upon us. See Part I supra. Given the Supreme Court's direction that 'only upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review,' Abbott Laboratories v. Gardner, supra, 387 U.S. at 141, 87 S. Ct. at 1511, petitioner's interpretation of § 245 emerges as the only method to insure administrative and judicial review of the question of statutory eligibility.⁹ 

Finally, we find much merit to petitioner's contention that, under the facts of her case, it is important that there be administrative and judicial review of the effect of her prior misrepresentations. Case law and the Attorney General's interpretation of § 1182(a) (19) distinguish among various forms of misrepresentations on visa applications. See, e.g., La Madrid-Peraza v. INS, 492 F.2d 1297 (9th Cir. 1974) (per curiam); Matter of S- and B-C-, supra, 9 I & N Dec. at 447. Moreover, if she is found to be eligible for a visa and discretion is exercised adversely to her, she may then reappear before a consular officer armed with whatever persuasive authority may be accorded the Attorney General's eligibility determination.

We are not impressed by the government's contention that, in any event, the consular officer would not be bound by the Attorney General's determination of eligibility or by a judicial determination thereof. At this stage of the proceedings, we cannot speculate on what effect the Attorney General's determination of eligibility would have on a representative of the State Department. Nor do we have before us a case or controversy requiring a decision on the jural implications of a consular officer's refusal to respect a final judgment of a federal court.

We conclude that the statutory schema of § 245 requires a determination of eligibility as a prerequisite to any exercise of discretion by the Attorney General so that an alien, physically present in the United States, could avail himself of administrative and judicial review. We perceive as applying to this provision the same reasoning employed by former Chief Justice Warren, speaking for the Court in Foti v. INS, supra:

Since a special inquiry officer (immigration judge) cannot exercise his discretion to suspend deportation until he finds the alien statutorily eligible for suspension, a finding of eligibility and an exercise of (or refusal to exercise) discretion may properly be considered as distinct and separate matters.

375 U.S. at 228--29 n.15, 84 S. Ct. at 313 (emphasis added).

The order of the Board of Immigration Appeals will be set aside and the cause remanded for proceedings consistent with the foregoing.

VAN DUSEN, Circuit Judge (dissenting):

I respectfully dissent because I believe that the majority opinion extends the scope of judicial review of action by the Attorney General under Section 245 of the 1952 Immigration and Nationality Act, 8 U.S.C. § 1255, beyond that authorized by the applicable congressional statutes, as implemented by Executive Regulations and construed by the Supreme Court of the United States.

Unlike the majority, I believe that the statutory language in 8 U.S.C. § 1255(a) and analogous case law only requires the Attorney General to examine the facts and decide whether to exercise his 'discretion' on an application for adjustment of status to that of an alien lawfully admitted for permanent residence in cases where he determines not to grant such discretionary relief. The inclusion in the congressional statute of three other pre-conditions for the grant of any application under § 1255(a)¹  does not preclude the Attorney General from denying relief on the basis of the first pre-condition listed in the statute, namely, 'the status of an alien . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe.²  to that of an alien lawfully admitted for permanent residence if . . ..'

Congress has, therefore, provided that the Attorney General, not the courts, shall make the decision on any application for adjustment of status 'in his discretion.'³ 

In Silva v. Carter, 326 F.2d 315, 320 (9th Cir. 1963), the court said:

'If the lack of an express ruling on the second eligibility requirement is to be taken as an indication that no determination whatever was made as to that matter, Silva was likewise not prejudiced. In that event the matter left to the Attorney General's discretion must have been exercised without reference to the facts concerning eligibility. This is as it should be, whether or not there are express rulings on the questions of eligibility. Had the regional commissioner ruled that Silva met both eligibility tests, he was still empowered to deny the request for waiver in the exercise of discretion. His power could not be less where no such ruling had been made.

'Silva calls attention to Jay v. Boyd, 351 U.S. 345, 353, 76 S. Ct. 919, 100 L. Ed. 1242, a case involving the discretionary form of relief known as suspension of deportation. The court there said that eligibility for such relief 'is governed by specific statutory standards which provide a right to a ruling on an applicant's eligibility.' Granting the application, by analogy, of this statement to the problem now before us, we do not believe that it helps Silva.

'. . . (T)here is here nothing to indicate that discretionary relief was denied by the regional commissioner on the ground of ineligibility. Thus Silva could not possibly have been prejudiced by the lack of an express ruling as to eligibility.

'We conclude that the regional commissioner did not err in denying the request for waiver on the discretionary ground, without first making an express ruling on the second element of statutory eligibility specified in section 212(g).' (Footnotes omitted.)As noted below, the record and statistics subject to judicial notice make these points clear:

A. Petitioner has been illegally in this country for over six years and represented to the officials of this country that her entry as a temporary tourist visitor in early July 1968 was for a pleasure visit of two months.

B. By violating our immigration laws and advancing the technical arguments accepted by the majority, Bagamasbad has been able to take advantage of her illegal misrepresentations upon entry and her illegal overstay through litigation of contentions carefully considered and rejected repeatedly by administrative officials and the Board of Immigration Appeals.

C. It is most unlikely that any prejudice to petitioner would have resulted from her additional false representations and duplicity if she had returned to the Philippines and waited for the labor certification to become available in 1972.

D. Current releases by Commissioner of Immigration Leonard F. Chapman, Jr. estimate that there are eight million aliens illegally in the United States today.⁴ 

In order to understand the factual background of this case, in which the record shows careful review by the administrative officials of the petitioner's several applications for discretionary relief, it is significant that petitioner became deportable in 1969 for overstaying her 1968 temporary tourist visa for a pleasure visit to the United States, estimated by her to last two months. If she had complied with the law and her representations concerning her alleged, proposed, short visit to the United States by returning to the Philippines in that year, there would have been no findings of material false statements, including what her attorney describes as 'concealed information; no question but what she misrepresented her status.'⁵  Instead of complying with the temporary 1968 visa granted pursuant to 8 U.S.C. § 1101(a) (15) (B) to petitioner as 'an alien having a residence in a foreign country which (she) has no intention of abandoning and who is visiting the United States . . . temporarily for pleasure . . .,' petitioner overstayed her permission to visit this country for several years and filed, in 1972 and thereafter, applications for adjustment of status under § 245 of the 1952 Immigration and Nationality Act (8 U.S.C. § 1255). These applications resulted in the findings of misrepresentations by petitioner which are exemplified by this language of the Administrative Law Judge's June 8, 1973, decision (A.R. 20--23):⁶ 'Respondent, as noted above, previously had submitted her application for adjustment of status to the Immigration and Naturalization Service which had denied it on the ground that respondent had wilfully misrepresented a material fact when she had applied for her nonimmigrant visa at the American Consulate in Manila.

'In her sworn statement of January 26, 1973 (Ex. 2) respondent admitted that in applying for her nonimmigrant visa at the American Consulate at Manila, she stated she had no degree 'because that is what my agent advised me to do.' She admitted that he had informed her it would be difficult for her to get a visa to go to the United States if she stated she had a medical technology degree. During her deportation hearing on April 19, 1973 respondent admitted that she had not set forth her occupation as a teacher, again on advice of her travel agent, 'because he said it could be difficult to get the visa' (Tr. p. 6).

'It is pertinent to note that respondent testified that . . . she went to a travel agency for aid in getting to the United States 'for education and training,' without success. Hence she went to the second one for help and managed to secure her nonimmigrant visitor's visa on which is listed for the purpose of the trip 'Tourism--Pleasure trip for two months' (Ex. 3).

'Obviously, the whole pattern of respondent's behavior indicates clearly that she was fully aware that she was deliberately deceiving the American Consul when applying for her nonimmigrant visa by falsifying her amount of education, her occupation and even the purpose of her trip which she listed with tongue in cheek. Respondent has shown that her objective was to get to the United States for 'education and training' and she did not hesitate to use any means to accomplish it.

'Respondent was fully aware of her misleading representations but, as she stated, were she to tell the truth 'it could be difficult to get the visa' (Tr. p. 6). Obviously, such false statements were material, deliberate misrepresentations of respondent's true status and purpose.

'The extraordinary relief provided by Section 245 of the Immigration and Nationality Act should be granted only in meritorious cases. . . .

'Counsel argues that were respondent forced to seek her immigrant visa abroad, she would be unable to overcome the fraud factor of Section 212(a) (19) of the Act, supra. Such argument concerning consular action should be addressed to the Department of State--not here. We are concerned only with the facts before us. Were we to accord respondent the extraordinary relief requested, we would be placing a premium on falsehood and deceit and, in effect, encourage others to trod a similar path.

'The granting of adjustment of status is discretionary and is not automatic upon the establishment merely of statutory eligibility. . . .

'We find that the respondent has not sustained her burden of establishing that her application for adjustment of status merits the favorable exercise of discretion. Therefore, as a matter of administrative discretion her application will be denied. Although we shall deny the application for adjustment of status, we shall again, as a matter of discretion, grant her the lesser relief of voluntary departure. She has selected the Philippines as the country of deportation in the event that becomes necessary.'

On appeal, the Board of Immigration Appeals concluded (A.R. 3): 'The immigration judge's decision was correct.'

This record makes clear that petitioner had ample opportunity to dispute the facts found by the administrative officials receiving her application for adjustment of status and, hence, she was not denied due process of law. See Morrissey v. Brewer, 408 U.S. 471, 486--89, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).

The following language of the United States Court of Appeals for the Second Circuit in Noel v. Chapman, 508 F.2d 1023, 1027--29 (1975), is appropriate in this case:

'There is no reason to prefer those who have flouted the immigration laws, which permitted their entry for a limited time and purpose, over those who have steadfastly and patiently followed legal procedures.'

The Supreme Court of the United States has consistently recognized the limited scope of judicial review of discretionary decisions by the Attorney General pursuant to congressional legislation in the immigration field. In Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S. Ct. 618, 621, 1 L. Ed. 2d 652 (1957), the Court said:

'It is clear from the record that the Board applied the correct legal standards in deciding whether petitioners met the statutory prerequisites for suspension of deportation. The Board found that petitioners met these standards and were eligible for relief. But the statute does not contemplate that all aliens who meet the minimum legal standards will be granted suspension. Suspension of deportation is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised even though statutory prerequisites have been met.'

More recently, the Supreme Court said in Kleindienst v. Mandel, 408 U.S. 753, 766--67, 92 S. Ct. 2576, 2583, 33 L. Ed. 2d 683 (1972):

'The Court without exception has sustained Congress' 'plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.' (Citing case.) '(O)ver no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens. (Citing case.) In Lem Moon Sing v. United States, 158 U.S. 538, 547, (15 S. Ct. 967, 39 L. Ed. 1082) (1895), the first Mr. Justice Harlan said:

'The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.'

'Mr. Justice Frankfurter ably articulated this history in Galvan v. Press, 347 U.S. 522, (74 S. Ct. 737, 98 L. Ed. 911) (1954), a deportation case, and we can do no better. After suggesting, at 530, (74 S. Ct. at 742), that 'much could be said for the view' that due process places some limitations on congressional power in this area 'were we writing on a clean slate,' he continued:

'But the slate is not clean. As to the extent of the power of Congress under review, there is not merely 'a page of history' . . . but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. . . . But that formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government . . .

'We are not inclined in the present context to reconsider this line of cases.'

The decisions which have emphasized that the appellate courts can review only refusal to exercise discretion by the administrative officials on the standard of abuse of discretion and need not review other administrative action which can become relevant only if discretion has been exercised seem persuasive in this situation. See, for example, Goon Wing Wah v. Immigration & Naturalization Service, 386 F.2d 292, 293--94 (1st Cir. 1967). Similarly, Silva v. Carter, supra, supports the action of the Board in this case in its holding that the Attorney General's denial of relief on a discretionary basis was within his power as granted by Congress.

Foti v. Immigration Service, 375 U.S. 217, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963), seems to me more consistent with the result reached by the Board than that of the majority opinion. In that case, the Court said at 228, 84 S. Ct. at 313:

'Admittedly, the standard of review applicable to denials of discretionary relief cannot be the same as that for adjudications of deportability, since judicial review of the former is concededly limited to determinations of whether there has been any abuse of administrative discretion.'

Furthermore, the Court emphasized that the intent of Congress in enacting § 5a of P.L. 87--301, adding 8 U.S.C. § 1105a to the Immigration and Nationality Act, 'was to prevent delays in the deportation process' (375 U.S. 232, 84 S. Ct. 315). Such delays will result from the additional administrative burden required by the majority's mandate that eligibility for deportation be the subject of findings in every application under 8 U.S.C. § 1255. Reliance on Jay v. Boyd, 351 U.S. 345, 76 S. Ct. 919, 100 L. Ed. 1242 (1956), by the majority would appear to be misplaced. The regulations applicable in 1956 to requests for adjustment of status, which require 'a discussion of the evidence relating to the alien's eligibility for such relief. . . .'⁷  were not in effect in 1972. In addition, the application in Jay was based on language in § 244 (not 245) of the 1952 Immigration and Nationality Act,⁸  which was far different in 1956 than the wording in § 245⁹  was in 1972.¹⁰ 

Since the Supreme Court has emphasized its concern with adding burdens to 'the efficient operation of the lower federal courts,' Swift & Co. v. Wickham, 382 U.S. 111, 128--29, 86 S. Ct. 258, 268, 15 L. Ed. 2d 194 (1969); cf. Gonzalez v. Employees Credit Union, 419 U.S. 90, 98, 95 S. Ct. 289, 42 L. Ed. 2d 249 (1974); Rosado v. Wyman, 397 U.S. 397, 403, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970),¹¹  we should not be insensitive to the imposition by our decisions of additional requirements on administrative agencies burdened with applications for relief from large numbers of aliens illegally in this country. See page 120 and note 4 above.¹² 

ADAMS and ROSENN, Circuit Judges, join in this opinion.