Pedro Valmores Oloteo and Myrna Isabel Oloteo v. Immigration and Naturalization Service

643 F.2d 679 Pedro Valmores OLOTEO and Myrna Isabel Oloteo, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 80-7128. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 9, 1981. Decided April 27, 1981. Michael Ullman, Beverly Hills, Cal., for petitioners. Allen W. Hausman, Atty., Dept. of Justice, Washington, D.C., for respondent. 1 On petition for review of an order of the Board of Immigration Appeals. 2 Before MERRILL and KENNEDY, Circuit Judges, and HEMPHILL * , District Judge. HEMPHILL, District Judge: 3 Petitioners, husband and wife, seek reversal of a final decision of the Board of Immigration Appeals affirming their deportation as ordered by an immigration judge of the United States Immigration and Naturalization Service. The dispositive issue critical to this review is whether this Court interprets the five-year statute of limitations imposed on rescission of adjusted status proceedings by § 246(a) 1 of the Immigration and Nationality Act, 8 U.S.C. § 1256 (a) (hereinafter § 246(a)), as erecting a time bar to deportation proceedings against immigrants where the ground for such proceedings is ineligibility at the…

Petitioners, husband and wife, seek reversal of a final decision of the Board of Immigration Appeals affirming their deportation as ordered by an immigration judge of the United States Immigration and Naturalization Service. The dispositive issue critical to this review is whether this Court interprets the five-year statute of limitations imposed on rescission of adjusted status proceedings by § 246(a) 1 of the Immigration and Nationality Act, 8 U.S.C. § 1256 (a) [hereinafter § 246(a)], as erecting a time bar to deportation proceedings against immigrants where the ground for such proceedings is ineligibility at the time permanent resident status was acquired. The court declines to so extend the statute and, accordingly, affirms the decision of the Board.

Petitioners are natives and citizens of the Philippines. Pedro Oloteo was admitted to the' United States as a lawful permanent resident in May of 1969 on the basis of his claimed status as an unmarried child of a lawful permanent resident. In April of 1971 petitioner Myrna Oloteo was granted preference status as the wife of Pedro Oloteo (by marriage purportedly consummated subsequent to Pedro’s entry) and immigrated to this…

concurring in the judgment:

I agree unreservedly with the court’s interpretation of the statutes in question. It is not clear, however, that we can avoid the petitioners’ argument that the statutes and regulations, as interpreted by the INS and by this court, violate the equal protection component of the due process clause of the fifth amendment. I concur in the judgment because I find the constitutional argument is without merit.