Gisela Irene Whetstone v. Immigration and Naturalization Service, Edward Levi, Attorney General of the United States

Petitioner, a 26 year old citizen of Germany, was admitted to the United States on June 10, 1971, as a non-immigrant fi-ancée until September 9, 1971. Petitioner was in possession of a visa issued pursuant to Sec. 101(a)(15)(K) of the Immigration Nationality Act ( 8 U.S.C. § 1101 (a)(15)(K)) (herein “the Act”) as the fiancée of Mr. Hamilton Larry Whetstone, an American citizen, 51 years of age. Petitioner married Whetstone on July 2, 1971 (but left him within 30 days and within three months of entry), and hence the Attorney General was required, unless (she) was found otherwise inadmissible, to record the lawful admission (of Mrs. Whetstone) for permanent residence. 8 U.S.C. § 1184 (d). The record before us fails to disclose whether any such recordation took place. We presume it did not, for otherwise there would be no purpose in petitioner’s filing an application for adjustment of status to permanent resident.

We need not concern ourselves with the six-year delay since the District Director’s order of deportation issued on November 23, 1971. A deportation order does not become invalid or unenforceable through the mere lapse of time, whether caused by intentional acts of a…

(concurring in the result):

I concur in the result reached by the court. The heart of this case is whether Matter of Harris, Interim Decision 2336 (Board of Immigration Appeals, 1974) was properly decided. If it was, we should affirm the Board’s determination in this case. If it was not, we should reverse the Board’s determination and remand for further proceedings. I join the court in reversing because in my view the dissenting members of the Board in Matter of Harris properly construed 8 U.S.C. § 1184 (d). A valid marriage concluded “within a period of ninety days after the alien’s arrival” is what is necessary to require the Attorney General to “record the lawful admission for permanent residence of the alien . . .” provided he or she is “otherwise admissible”. Ibid.

The petitioner meets those requirements so far as this record reveals. The statute does not require that the marriage be a satisfactory one at the time the Service acts on the petition of the alien. Nor does it require that it be undissolved at that time. I reach this result without relying on Bark v. Immigration & Naturalization Service, 511 F.2d 1200 (9th Cir. 1975), which involved a different provision of the…

561 F.2d 1303 43 A.L.R.Fed. 892 Gisela Irene WHETSTONE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Edward Levi, Attorney General of the United States, Respondent. No. 75-2468. United States Court of Appeals, Ninth Circuit. Sept. 28, 1977. Lauren S. Kahn, Atty., U. S. Dept. of Justice, Washington, D. C., argued for respondent. Peter A. Schey, Legal Aid Foundation, San Diego, Cal., for petitioner. Petition to Review a Decision of the U. S. Immigration & Naturalization Service. Before BARNES and SNEED, Circuit Judges, and HAUK, * District Judge. BARNES, Senior Circuit Judge: 1 Petitioner, a 26 year old citizen of Germany, was admitted to the United States on June 10, 1971, as a non-immigrant fiancee until September 9, 1971. Petitioner was in possession of a visa issued pursuant to Sec. 101(a)(15)(K) of the Immigration Nationality Act ( 8 U.S.C. § 1101 (a)(15)(K)) (herein "the Act") as the fiancee of Mr. Hamilton Larry Whetstone, an American citizen, 51 years of age. Petitioner married Whetstone on July 2, 1971 (but left him within 30 days and within three months of entry), and hence the Attorney General was required, unless (she) was found otherwise inadmissible,…