a duty owed to the plaintiff." Putting aside the question of whether appellant, in view of the INS's offer to continue its investigation if appellant will cooperate, is eligible to invoke such relief, appellant's contention must be rejected for the reason that the INS is under no duty to conduct an investigation for the purpose of determining whether visas should be issued to aliens in foreign countries by the State Department pursuant to § 104 of the Act, 8 U.S.C. 1104. The sole duty of the INS in this context was to determine whether appellant's petition for preference status for her children in Taiwan, based on their relationship to her, should be granted under § 203 (a) (2) of the Act, 8 U.S.C. 1153 (a) (2), see 8 CFR § 204, 22 CFR 42.40. This it has done, approving appellant's preference petition on April 9, 1975.

The investigation which appellant seeks to compel the INS to complete in the present action is not directed toward the preference petitions for the children but the question of whether appellant fraudulently acquired her immigration status. Whether the INS pursues this latter inquiry further and, if so, whether it will institute proceedings to rescind her status are matters solely within the INS's discretion, see United States v. Santelises, 476 F.2d 787, 790 (2d Cir. 1973); United States ex rel. Masucci v. Follette, 272 F.Supp. 563, 565 (S.D.N.Y. 1967), and hence are not reviewable under the Administrative Procedure Act or 28 U.S.C. 1361. Moreover, the INS has five years from the date when appellant acquired her permanent resident status within which to institute rescission proceedings. Zaoutis v. Kiley, 558 F.2d 1096 (2d Cir. 1977). In short, neither the children's application for admission into the United States as immigrants nor the consul's request to the INS create a duty on the part of the INS to appellant to investigate whether rescission proceedings should be instituted, much less to complete any such investigation within a shorter period than that provided by § 246 (a) of the Act, 8 U.S.C. 1256(a). Aside from our powerlessness to intervene, the judicial creation of such a duty would have the potential for mischievous interference with the functioning of already overburdened administrative agencies.

In stating in its opinion that the INS had a duty under 8 CFR 205 and 22 CFR 42.43 to conduct and complete the investigation requested by the consulate, the district court appears to have confused the INS's duty to act on preference petitions, which are concerned solely with the family relationship between the parties, with the question of whether the INS must investigate alleged fraud in obtaining a permanent resident status. These matters are entirely separate and distinct. Since there is no question as to the parentchild relationship between appellant and her children in Taiwan, the preference petitions were approved by the INS on April 9, 1975. The INS's duty in the matter ended there. To the extent that the district court's opinion states that the INS is under a further duty to investigate a fraudulently-obtained preference status it is vacated.

The order [of dismissal] of the district court is affirmed.

569 F.2d 1182.

Ubiera v. Bell et al., 463 F. Supp. 181 (1978), aff'd, 594 F.2d 853 (2d Cir. 1978), also involved a possible fraudulent entry, discovered in connection with applications for second preference visas under section 203 (a) (2) of the Immigration and Nationality Act by the wife and adopted son of the permanent resident alien, who had himself immigrated to the United States as the spouse of a permanent resident alien from whom he had been subsequently divorced. The Immigration and Naturalization Service had approved second preference petitions for the wife and child. However, the consul had deferred final action on the visa applications, pending results of an investigation which he requested the Service to conduct, regarding a possible violation by the principal alien, Ubiera, of section 241 (c) of the Act (fraudulent entry through marriage contracted to evade immigration laws). Ubiera had entered into a previous marriage with a permanent resident alien on November 20, 1970, on the basis of which he had obtained an immigrant visa as a second preference immigrant, and had traveled to the United States and been admitted for permanent residence, on August 30, 1972. Less than two years later, on June 6, 1973, the marriage was judicially terminated, whereupon Ubiera married on July 7, 1973, in the Dominican Republic, the wife who was one of the second preference beneficiaries in the visa applications in question.

Ubiera then sought (1) a declaratory judgment that the defendants might not deport him or rescind his permanent resident status, and (2) an order directing the consul to issue decisions on the visa applications immediately, upon the basis that his previous marriage and permanent resident status were valid for immigration purposes.

Ubiera alleged that under the equal protection principles inherent in the Fifth Amendment, the five-year statute of limitations for rescission of adjustment of status, specified in section 246(a) of the Act, 8 U.S.C. 1256 (a), had to be applied also to aliens who had obtained by immigration a permanent resident status "no different from that obtained by adjustment of status under section 245" of the Act, 8 U.S.C. 1255. Under this reasoning he would no longer be subject to deportation under section 241 (c), since more than five years had elapsed since his admission for permanent residence in August 1972. He also contended that the relief being sought did not interfere with the visa issuance process, since he was not seeking review of anything the consul had done, but rather was requesting the Court to direct the consul to exercise his discretion in the light of the Court's declaration as to Ubiera's status as a permanent resident, being sought.

Referring, inter alia, to Kleindienst v. Mandel, 408 U.S. 753 (1972), and to Hsieh v. Kiley, ante, District Judge Charles E. Stewart, Jr.,

rejected both of Ubiera's contentions, and granted the defendants' motion to dismiss. He stated, in part:

SUBJECT-MATTER JURISDICTION

But we understand the law to be that any such judicial direction to the consul is forbidden; and, moreover, even if such direction were given, the consul's discretion would remain absolute. See Committee on the Judiciary's 1950 report on the proposed Immigration Act, S.Rep. No. 1515, 81st Cong. 2d Sess., 622 (1950). [W]e understand the cases and the legislative history to preclude any interference by the courts in the visa issuance proc

ess...

We conclude therefore that we may take no action with respect to the consul's decision to defer consideration of the visa applications of plaintiff's family pending an investigation by the Service of plaintiff's status as a permanent resident.

FIFTH AMENDMENT CLAIM:

Plaintiff asserts that his deportability under section 241 (c) results only from the happenstance that he obtained permanent residence as a result of immigration, rather than by adjustment of status under section 245, in which event the five-year period in section 246 (a) would protect him from deportation. Therefore, he contends the Fifth Amendment requires that the five-year limitation must be applied to his case. It follows, he further contends, that he has standing and there is a justiciable controversy.

His status as a permanent resident by way of immigration, however, resulted not from chance but from the fact that adjustment of status was not available to him in 1972 (section 245 (c) as then in effect.)3

...

In any event, we think plaintiff has failed to present a justiciable controversy, which is ripe for decision [citations omitted]. . . . The Service has interpreted section 246 (a), which provides only for rescission of status but not for deportation, as not precluding deportation of any alien with five or more years residence, however permanent resident status was obtained. Matter of S., 9 I&NS Dec. 548, 553 (1962). Thus, plaintiff may be subject to deportation proceedings even if the five-year limitation in section 246 (a) is applied to him. In seeking a declaratory judgment that there is a five-year statute of limitations on deportation and that it is applicable to him, plaintiff asks us to grant relief which neither the Service, the Attorney General (see Matter of S., supra), nor Congress has been willing to provide. See S.Rep. 1515, 81st Cong., 2d Sess., 289 (1950); * 38 Cong. Rec. 5159 (1952) (Remarks of Senator Benton); 98 Cong. Rec. 4433-34 (rejection of proposed amendment to the Act to add a five-year statute of limitations for deportable aliens). See also

Gordon and Rosenfield, Immigration Law and Procedure, section 4.6(b). Since there is only a possibility that the Service may ever seek to deport plaintiff, a possibility which presently exists as to any other alien admitted to permanent residence, and since plaintiff would have a full opportunity to litigate his status in any deportation proceeding subject to judicial review (sec. 242 of the Act, 8 U.S.Č. 1252), we think plaintiff has not here presented a controversy appropriate or ripe for judicial scrutiny.

Finally, we agree with defendants that plaintiff has failed to state a claim upon which relief can be granted. Plaintiff asserts that he is unable to live with his family in this country because it is unconstitutional not to give him the benefit of the five-year bar in section 246 (a). But he has no constitutional right as a resident alien to have his wife and child in this country. Noel v. Chapman, 508 F.2d 1023 (2d Cir. 1975). Moreover, the Service does not interpret and apply section 246 (a) to discriminate against aliens such as plaintiff who did not obtain permanent residency under section 245 but by immigration from abroad. The Service, as indicated above, considers that all aliens, regardless of how they obtained status or the length of residence here, are subject to deportation at any time, Matter of S., supra, and the Attorney General's interpretation of section 246 (a) in that proceeding is consistent with the legislative history of the 1952 Immigration Act of which sections 245 and 246 were a part. In Francis v. I.N.S., 532 F.2d 268 (2d Cir. 1976), the Court found a denial of equal protection resulting from a statutory interpretation by the Board of Immigration Appeals. The Court based its conclusion on the ground that aliens similarly situated were accorded different treatment unrelated to any legitimate governmental interest. Here, the Service interprets the statute in question in a manner which makes all aliens similarly situated subject to the same treatment, and its interpretation is fully supported by the congressional history.

The constitutionality of this section was upheld in Dunn v. I.N.S., 499 F.2d 856 (9th Cir. 1974), cert. denied, 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 801 (1975).

"It is the recommendation of the subcommittee that the time limitation on [an alien's] deportation should be eliminated. If the cause for exclusion existed at the time of entry, it is believed that such aliens are just as undesirable at any subsequent time as they are within the 5 years after entry."

It appears that these sections were included in the Act to replace an old, cumbersome procedure known as pre-examination, and that the rescission proceedings in section 246 were developed to aid the Service in its administration of the Act and not as a means of placing any limits on the availability of deportation as a remedy in appropriate cases. See Gordon and Rosenfield, supra, at section

7.3a.

463 F. Supp. 184-186.

Undocumented Aliens

Proposed Legislation

The Senate Committee on the Judiciary held hearings in May and September 1978 on S. 2252, the proposed Alien Adjustment and Employment Act of 1978, which embodied legislative proposals contained in President Carter's message to Congress, August 4, 1977, concerning which, see the 1977 Digest, pages 118–125. In testimony before the Committee on May 10, 1978, Attorney General Griffin B. Bell noted that, while the Immigration and Naturalization Service had already begun to implement the nonlegislative measures recommended, new legislation remained the central element of the new program. Excerpts from his statement follow:

*

Section 5 of the proposed Act would make unlawful the hiring by any employer of any undocumented alien. Only employers who engaged in a "pattern or practice" of hiring undocumented aliens would be the target of enforcement efforts. Violators of the employment bar could be penalized by both injunctive relief and substantial civil fines a maximum of $1,000 for each undocumented worker hired. An employer would, however, be able to defend any charge of hiring an undocumented alien by establishing that, prior to employment, the employer in good faith saw each prospective employee's documentation of legal residence. Approved documentation of legal residence would be set forth in regulations which I would promulgate as Attorney General. One of the authorized identification documents would be the social security card.

It is clear that legislation which would prohibit the employment of undocumented aliens is central to policy on illegal immigration. Our policy, if it is to be successful, must be directed at the pushpull forces which bring about illegal migration. The undocumented alien comes to the United States seeking work which is readily available. While it is unlawful for the migrant to be in this country, as well as to work here, it is not unlawful at the present time for an employer to employ him. Therein lies a strong incentive which pulls the migrant and which must be checked.

However, it is also clear that new legislation toward this end must be coupled with an identification system, to be used for purposes of employment, in order to absolve employers of the difficulty of determining illegal presence and to prevent attendant discrimination against those who appear to be foreign.

Although the social security card will be more effective as one of the identification documents for employment purposes, it is important to point out that the social security card would not be a national identification card or a domestic passport.