Adelfo v. MacEren v. District Director, Immigration and Naturalization Service, Los Angeles, California

The Immigration and Nationality Act provides that “[t]he number of aliens who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence . shall not in any fiscal year exceed a total of 170,000.” 8 U.S.C. § 1151 (a) (1970). In filling this quota, Congress has stipulated that visas must first be granted to those on whom Congress has bestowed a preferred status. This preferred treatment is given to, amongst others, 1

8 U.S.C. § 1153 (a)(3).

Immigrants who fit this description are given what the Immigration and Naturalization Service refers to as a “third preference,” i. e., third most preferential treatment is given to their applications for immigrant visas after the applications of the spouses and unmarried children of United States citizens and the spouses and children of aliens lawfully admitted to the United States for permanent residence. 8 U.S.C. § 1153 (b). Every alien who desires immigrant status is presumed to be a “non-preference immigrant” until he establishes that he is entitled to preferential treatment. 8 U.S.C. § 1153 (d). If an alien lays claim to a preference, he must…

(dissenting) :

I respectfully dissent.

The majority affirms the district court’s judgment ordering the Immigration and Naturalization Service to grant Maceren permanent resident status primarily because it concludes that the retroactive application of 29 C.F.R. § 60 .-5(b) would be incongruous with the retroactive aspects of 8 C.F.R. § 204.4 (b). The majority bases its conclusion upon its assumption that the reinstatement provisions of section 204.4(b) would be a nullity if section 60.5(b) were to be applied retroactively. Thus, it holds that we must give retroactive effect only to section 204.4(b), because a court should give effect to the later of two inconsistent regulations.

I disagree that the retroactive application of section 60.5(b) would be inconsistent with the provisions of section 204.4(b) or that the two regulations are irreconcilable. ’ Under the provisions of 8 C.F.R. § 204.4 (b), as it read from May 9, 1970, to March 30, 1971, a preference petition under section 203(a)(3) or (6) of the Act that was supported by a labor certification remained valid for one year from the date the labor certification was signed. Until February 4, 1971, the labor certification was…

509 F.2d 934 Adelfo V. MACEREN, Appellee, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, LOS ANGELES, CALIFORNIA, et al., Appellants. No. 72--2818. United States Court of Appeals, Ninth Circuit. Oct. 25, 1974. Rehearing Denied Feb. 20, 1975. James R. Dooley, Asst. U.S. Atty. (argued), Los Angeles, Cal., for appellants. Sidney Broffman (argued), Los Angeles, Cal., for appellee. Before MOORE, * BROWNING and WALLACE, Circuit Judges. OPINION MOORE, Circuit Judge: 1 The Immigration and Nationality Act provides that '(t)he number of aliens who may be issued immigrant visas or who may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence . . . shall not in any fiscal year exceed a total of 170,000.' 8 U.S.C. § 1151 (a) (1970). In filling this quota, Congress has stipulated that visas must first be granted to those on whom Congress has bestowed a preferred status. This preferred treatment is given to, amongst others, 1 2 qualified immigrants who are members of the professions, or who because of their exceptional ability in the sciences or the arts will substantially benefit prospectively the national economy, cultural…