[House Report 105-125]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    105-125
_______________________________________________________________________


 
                   FOR THE RELIEF OF HERACLIO TOLLEY

_______________________________________________________________________


   June 10, 1997.--Referred to the Committee of the Whole House and 
                         ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 378]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 378) for the relief of Heraclio Tolley, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                          Purpose and Summary

    This legislation would classify the beneficiary as a child 
for purposes of approval of a relative visa petition filed by 
his adoptive parent and the filing of an application for an 
immigrant visa or adjustment of status.

                Background and Need for the Legislation

    Heraclio and his brother, Florencio, became orphans when 
their mother died and their father abandoned them at the ages 
of 2 and 4 respectively, leaving them to be raised by their 
maternal grandparents in Mexico. Several year later, when their 
uncle visited, he learned that the boys were living with little 
or no supervision, so he brought them back to the United States 
with him and took over full responsibility and care for the 
boys. The uncle, who worked for the adopting family, was killed 
in an auto accident a year later. At that time, the Tolleys 
contacted an adoption attorney and instructed him to start 
proceedings for guardianship so that they could become legally 
responsible for the boys as well as enroll them in school. 
However, because they began guardianship proceedings prior to 
adoption proceedings, it set back the completion of the 
adoption process 4 months past Heraclio's 16th birthday.
    Immigration law requires that in order for an adopted child 
to qualify for permanent residence status as a ``child'' of an 
American citizen, the child must have been adopted by the age 
of 16. The petition for adoption was filed prior to Heraclio 
Tolley's sixteenth birthday. Had the Tolleys began adoption 
proceedings before the guardianship proceedings, the adoption 
would have been finalized before he turned 16.

                                Hearings

    The Committee's Subcommittee on Immigration and Claims held 
no hearings on H.R. 378.

                        Committee Consideration

    On March 13, 1997, the Subcommittee on Immigration and 
Claims met in open session and ordered favorably reported the 
bill H.R. 378, by voice vote, a quorum being present.
    On May 13, 1997, the Committee on the Judiciary met in open 
session and ordered reported favorably the bill H.R. 378, by 
voice vote, a quorum being present.

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 378, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 16, 1997.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Office has prepared 
the enclosed cost estimate for H.R. 378, a bill for the relief 
of Heraclio Tolley.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,

                                           June E. O'Neill, Director.  
    Enclosure.

H.R. 378, A bill for the relief of Heraclio Tolley

    CBO estimates that enacting this legislation would have no 
significant impact on the federal budget. H.R. 378 would not 
affect direct spending or receipts; therefore, pay-as-you-go 
procedures do not apply. This bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act of 1995 and would impose no costs 
on state, local, or tribal governments.
    H.R. 378 would classify Heraclio Tolley, who is 18 years of 
age, as a child for the purposes of a petition for an immigrant 
visa or for adjustment of status to permanent residence. This 
bill would not provide any special preference for Mr. Tolley 
and would not affect the total level of immigration. Thus, 
enacting this legislation would have no significant impact on 
the federal budget.
    The CBO staff contact for this estimate is Mark Grabowicz, 
who can be reached at 226-2860. This estimate was approved by 
Paul N. Van de Water, Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to Rule XI, claus 2(1)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article 1, Section 8, Clause 10 of the 
Constitution.

                              Agency Views

    The comments of the Immigration and Naturalization Service 
on H.R. 2346, the bill's predecessor in the 104th Congress, are 
as follows:
                                Department Justice,
                   Iimmigration and Naturalization Service,
                                  Washington, DC, October 10, 1996.

Hon. Henry Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: In response to your request for a report 
relative to H.R. 2346 for the relief of Heraclio Tolley, there 
is enclosed a memorandum of information concerning the 
beneficiary.
    The bill would provide that the 19 year old adopted son of 
Dawn and Daniel Tolley may be classified as a child under 
Section 101(b)(1)(E) of the Immigration and Nationality Act 
(Act). The bill further provides that the natural parents, 
brothers or sisters of the beneficiary shall not, by virtue of 
such relationship, be accorded any right, privilege, or status 
under the Act. The bill further requires payment of the 
required visa fees and the proper visa number deduction.
    Absent enactment of the bill, the beneficiary, a native and 
citizen of Mexico, appears to be ineligible for permanent 
residence until such time as his brother, Florencio, obtains 
United States citizenship and meets the other requirements to 
petition for him.
            Sincerely,
                              Pamela Barry, Executive Director,    
                       Congressional and Intergovernmental Relations.  
    Enclosure.

 MEMORANDUM OF INFORMATION FROM IMMIGRATION AND NATURALIZATION SERVICE 
                          FILES RE: H.R. 2346

    Information concerning this case was obtained from the 
beneficiary, Heraclio Tolley, and the interested parties, Mr. 
and Mrs. Daniel Lloyd Tolley.
    The beneficiary, Heraclio Tolley a native and citizen of 
Mexico was born October 16, 1977. The beneficiary entered the 
United States with his uncle, Cleso Martinez-Rivera, and his 
younger brother, Florencio, on January 14, 1992 near the port 
of entry at San Ysirdo, California. They all entered without 
inspection
    The beneficiary and Florencio were brought to the United 
States by their uncle due to a complete collapse of their 
immediate family structure. The beneficiary's mother, Viviana 
Martinez died in July 1982. At about the same time the boys 
were abandoned by their father, Juventino Mendez. Their uncle, 
Cleso Martinez, visited the family and learned of the boys 
predicament. Heraclio, at age fourteen, had moved to Guanajuato 
and was picking vegetables. Florencio was living with aged 
grandparents, but was rarely home. Neither of the boys was 
attending school.
    After their arrival in the United States the two brothers 
lived with and were supported by Mr. Martinez in El Cajon/
Lakeside California. Mr. Martinez was, at that time, employed 
as a construction worker by the Weingarten Fletcher Group. His 
foreman was Daniel Lloyd Tolley. The interested parties had 
known Heraclio and Florencio since shortly after their arrival 
in the United States. On January 27, 1993, Mr. Martinez was 
involved in an automobile accident which resulted in his death 
and serious injury to the beneficiary.
    The interested parties then decided to adopt Heraclio and 
Florencio, as they had no family capable of caring for them in 
the United States or Mexico. Mr. and Mrs. Tolley initially 
became legal guardians of Heraclio and Florencio. On February 
18, 1994, the final adoption decree was awarded, making the 
Tolleys the legal adoptive parents. However, this occurred four 
months after Heraclio's sixteenth birthday, negating his 
eligibility to immigrate. Florencio, because of his age, was 
allowed to immigrate and is now pursuing United States 
citizenship. It is the Tolleys' desire that the two brothers be 
allowed to live together.
    Daniel Lloyd Tolley was born on June 29, 1957 in the United 
States. Dawn Ann Tolley was born on May 4, 1948 in the United 
States. They were married in 1989. Mrs. Tolley has 2 daughters 
from a previous marriage. Mr. Tolley has no other children in 
addition to Heraclio and Florencio.
    Heraclio Tolley is a graduate of Valhalla High School in El 
Cajon, California and is currently attending Community College, 
he is not currently employed. Mr. and Mrs. Tolley are both 
employed and have a combined annual income of approximately 
$75,000. Heraclio and his brother are financially supported by 
the Tolleys.