548 F2d 846 Hulse-Guerrero v. Immigration & Naturalization Service

548 F.2d 846

Victor Anthony HULSE-GUERRERO, Petitioner,

No. 76-1295.

United States Court of Appeals,
Ninth Circuit.

Jan. 25, 1977.

Warren J. Krauss (argued), San Francisco, Cal., for petitioner.

Eva S. Halbreich, Asst. U. S. Atty. (argued), Los Angeles, Cal., for respondent.

Before TRASK and ANDERSON, Circuit Judges, and TAKASUGI,* District Judge.


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The petitioner, Victor Anthony Hulse-Guerrero, a native and citizen of British Honduras, appeals from a decision of the Board of Immigration Appeals which denied his requests for discretionary relief under 8 U.S.C. §§ 1251(f), 1254(e), and 1255.


Under former section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a), the status of certain aliens could be adjusted by the Attorney General in his discretion. However, section 245(c), 8 U.S.C. § 1255(c), provided:


"The provisions of this section shall not be applicable to any alien who is a native of any country of the Western Hemisphere . . . ."


Thus, as a native of British Honduras and therefore a native of a country of the Western Hemisphere, appellant-petitioner was statutorily ineligible for adjustment of status. The Board of Immigration Appeals relied upon this exclusion in denying him discretionary relief.


On October 20, 1976, while this case was on appeal, the Congress of the United States enacted Public Law No. 94-571, 90 Stat. 2703, which became effective on January 1, 1977. This law abolishes the distinction in treatment of aliens under section 245(c) and makes adjustment of status by the Attorney General equally available to natives of both the Western and Eastern Hemispheres. Petitioner is now entitled to apply for this discretionary relief.


Because a grant of status adjustment would moot all the issues on appeal, we remand the case to the Board of Immigration Appeals to allow time to permit petitioner to make an application for status adjustment and for a decision by the Board thereafter in the light of Public Law No. 94-571 and the application. In the event no application is filed within 30 days, or in the event the application is denied, the present decision of the Board shall stand affirmed.


Honorable Robert M. Takasugi, United States District Judge, Central District of California, sitting by designation