ANABO

Interim Decision #2874

MATTER OF ANABO

In Deportation Proceedings

A-34164113

Decided by Board July 10, 1981

(1) The married son of a United States citizen was excludable at entry under section 212

(a)(19) of the Act, 8 U.S.C. 1182(a)(19), for failing to disclose his marriage and was,

therefore, also excludable under section 212(a)(20), of the Act, 8 U.S.C. 1182(a)(20), for

having entered the United States with an invalid first-preference visa as the unmarried

son of a United States citizen, but was not excludable under section 212(a) (14) of the

Act, 8 U.S.C. 1182(a)(14), for failure to possess a labor eertMeation. Matter of Wong,

16 I&N Dec. 87 (BIA 1977); Matter of Montemayor, 15 l&N Dec. 353 (BIA 1975), distin-

guished.

(2) The legislative history of section 212(a)(14) reflects that Congress did not intend that

the son of a petitioning United States citizen be excludable under that section.

(3) Section 241(1) of the Act, 8 U.S.C. 1251(0, waives excludability at entry under sections

212(2)(19) and 212(ag20) where the alien was otherwise admissible at entry.

(d) The evasion of restrictive quotas by improperly entering as a first-preference immi-

grant does not render a respondent a nonpreference alien at entry for purposes of

excludability under section 212(a)(14) when he was classifiable as a fourth-preference

immigrant if his marriage had been disclosed and, therefore, respondent is entitled to

a waiver of the charges of deportability under section 241(0.

(5) Acknowledgement by the father renders a child legitimate under the Uniform Parent-

age Act, California Civil Code Sections 7000-7018.

CHARGE:

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)1—Excludable at time of entry

under sec. 212(a)(20)18 U.S.C. 1182(a)(20)1—No valid immigrant

visa

Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)1—Excludable at time of entry

under Sec. 212(0(10) [8 U.S.C. 11E2(0(19)1 —Visa obtained by

fraud or misrepresenting a material fact

Lodged: Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)1—Excludable at time of entry under sec.

212(a)(14) [8 U.S.C. 1182(a)(14)1—No valid labor certification

ON BEHALF OF RESPONDENT: ON BEHALF OF Seevice:

Donald I.. Ungar, Esquire Brian H. Simpson

Simmons, Ungar and Pohlam Trial Attorney

517 Washington Street

San Francisco, California 94111

By: Milhollan, Chairman; Maniatis, Maguire, and Morris, Board Members

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Interim Decision #2874

The respondent appeals from the August 14, 1979, decision of the

immigration judge denying his application for termination of the pro-

ceedings pursuant to section 241(t) of the Immigration and Nationality

Act, 8 U.S.C. 1251(f). The appeal will be sustained and the proceedings

terminated.

The respondent is a native and citizen of the Philippines who was

admitted into the United States as a lawful permanent resident cm

January 26, 1973, in possession of a first-preference immigrant visa as

the unmarried son of a United States citizen. See section 203(a)(1) of the

Act, 8 U.S.C. 1153(a)(1). On August 14, 1979, the immigration judge

concluded that the respondent was deportable by virtue of being exclud-

able at entry under sections 212(a)(19) and (20) of the Act, 8 U.S.C.

1182(a)(19) and (20). The basis for excludability was the fact that he had

entered into a marriage ceremony prior to entering the United States as

the unmarried son of a United States citizen.

On December 27, 1969, the respondent had married a Filipino woman

at Tanag, Bezal, the Philippines, and had not terminated that marriage

prior to immigrating into the United States as the first-preference unmar-

ried son of a United States citizen instead of as a married son, entitled

only to a fourth-preference immigrant visa pursuant to section 203(a)(4)

of the Act, 8 U.S.C. 1153(a)(4) (Tr. pp: 1-3) (Ex. 1, 3, 4, 5). Deportability

was clearly established that the respondent was excludable at entry

under sections 212(a)(19) and 212(a)(20) since he immigrated with an

invalid first-preference visa he obtained by concealing his marriage.

This constitutes clear, convincing, and unequivocal evidence of deport-

ability as required by Wood* v. INS, 385 U.S. 276 (1966) and 8 C. F. E. .

242.14(a).

The respondent then claimed that he was entitled to a waiver of the

charges of deportability pursuant to section 241(f) of the Act, 8 U. S. C.

1251(0. The Service responded by contending that the respondent was

ineligible for section 241(0 relief because he was also excludable at entry

under section 212(a)(14) of the Act, and lodged a charge under that

section at the deportation hearing.

The respondent is listed as the father of a United States citizen in a

Certificate of Live Birth issued by the State of California (Ex. 2). It

states that on August 2, 1977, a female child was born to the respondent

and a woman named Judy Jackson in Oakland, California. Such acknowl-

edgement renders the respondent's daughter his child for immigration

purposes. See Kaliski v. District Director, 620 F.2d 214 (9 Cir. 1980);

Matter of Fulgencio, 17 UN Dec. 471,(BIA 1980); 1976 Uniform Parent-

age Act, California Civil Code Sections 7000-7018. Consequently, the

respondent sought a waiver r f deportability pursuant to section 241(f)

which reads as follows:

(f) The provisions of this section relating to the deportation of aliens within the United

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Interim Decision #2874

States on the ground that they were excludable at the time of entry as aliens who have

sought to procure, or have procured visas or other documentation, or entry into the

United States by fraud or misrepresentation shall not apply to an alien otherwise

admissible at the time et 'entry who is the spouse, parent, or a child ea United Slates

citizen or of an alien lawfully admitted for permanent residence. (Emphasis supplied.)

The language of the section expressly covers the language of section

212(a)(19) of the Act, mandating a waiver of deportability for being

excludable at entry for qualifying respondents. In addition, the waiver

provision has been read liberally to reach evasion of quota restrictions in

INS v. Errico, 385 U.S. 214 (1966), and excludability under 212( a)(20)

for the entry with the invalid visa which results from the fraud. Matter

of Da Lonzba, 16 I&N Dec. 616 (BIA 1978); Matter of Agustin, 17

I&N Dec. 14 (BIA 1979).

However, when the respondent is also excludable under section

212(a)(14) of the Act, section 241(f) is ineffective to remove deportability

because such a respondent does not meet the statutory requirement

that he be "otherwise admissible at the time of entry for 241(0 relief."

Reid v. INS, 420 U.S. 619 (1975); Chow v. INS, 641 F.2d 1384 (9 Cir.

1981), Matter of Gcntzatez, 10 I&N Dec. 564 (BIA 1978). The respondent's

position is that he was "otherwise admissible" because he was not exclud-

able at entry under section 212(a)(14). He contends that he was exempt

from the requirements of section 212(a)(14) because he was the son of a

United States citizen and thus entitled to preference status under sec-

tion 203(a)(4) of the Act. The immigration judge disagreed, concluding

that the respondent was not entitled to be considered a fourth-preference

immigrant for 212(a)(14) excludability purposes because such a prefer-

ence had not been accorded him in a visa petition approved by the

Attorney General pursuant to section 203 of the Act (i.j. dec. pp. 3-4).

The respondent appealed to this Board.

• Neither this Board nor the courts have previously addressed the ques-

tion of whether an alien who would have been exempt from the labor

certification requirement under another preference classification than

the one improperly received, would be eligible for section 241(f) relief as

being "otherwise admissible" at the time of entry into the United States.

The great majority of cases involving a section 212(a)(14) charge as a

result of material misrepresentation of marital status involve married

sons or daughters of lawful permanent residents and sham marriages.

Section 212(a)(14) operates as an alternative ground of inadmissibility

for aliens concealing a marriage that precedes admission into the United

States as the second-preference son or daughter of a lawful permanent

resident pursuant to section 203(a)(2). Matter of Wong, 16 I&N Dec. 87

(BIA 1977); Matter of Agustin, supra. This results from the fact that

there is no preference classification under the Act for the married sons

and daughters of lawful permanent residents, therefore, uptin marriage,

such an alien becomes a nonpreference immigrant.

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Interim Decision #2874

A similar outcome occurs when the alien sought entry as a spouse

pursuant to a sham or invalid marriage. See Cacho v. INS, 547 F.2d

1057 (9 Ch.. 1976); Matter of Montemayor, 15 I&N Dec. 353 (BIA 1975).

That outcome, however, is not necessarily applicable when the respon-

dent sought entry as a first-preference unmarried son of a United States

citizen, despite having married. The language of section 212(a)(14) spe-

cific/illy limits its application to "preference immigrant aliens described -

under 203(a)(3) and (6) and to nonpreference immigrant aliens described

in section 203(a)(8)" which do not require a petitioning relative. The

married son or daughter of a petitioning United States citizen is entitled

to a fourth-preference immigrant visa pursuant to section 203(a)(4).

The legislative history of the last amendments to section 212(a)(14)

indicates that Congress did not intend to make close relatives of United

States citizens excludable under that section. The Senate Report accom-

panying the bill explicitly states ". . . these provisions are not applicable

in the case of immediate relatives or in the case of certain other close

relatives of United States citizens . . . where petitions have been filed

by citizens . . . . In those cases there is a clear responsibility assumed by

citizens ... who have filed petitions for their relatives to come to the

United States and as a consequence such certification by the Secretary

of Labor is deemed unnecessary." S. Rep. No. 748, 89th Gong. 1st Sess.

7, reprinted in 1965 U.S. Code Cong. and Ad. News 3320, 3334. It is clear

that Congress did not intend section 212(a)(14) excludability to include

sons and daughters of a United States citizen who qualify for a prefer-

ence immigration status and who are the beneficiaries of a visa petition

filed by their citizen parent, merely because they failed to disclose a

marriage, and thereby obtained a higher immigration preference.

A key element in qualifying for the 212(a)( 14) exemption is that the

citizen relative must have filed a visa petition on the alien's behalf that

would result in the exemption. Thus, in Matter of Haller, 12 I&N Dec.

319 (BIA 1967), we held that an alien seeking adjustment of status as a

nonpreferenee,immigrant was not entitled to an exemption from the

labor certification requirement despite the fact that he was married to a

United States citizen because she had not filed a visa petition on his

behalf. In visa petition proceedings only the petitioner has standing to

confer immigration benefits and contest a denial of a, visa petition by the

District Director. Matter of Kurys, 11 I&N Dec. 315 (BIA 1965); Matter

of C-, 9 I&N Dec. 597 (BIA 1962). In the present case, the respondent's

United States citizen father had filed a visa petition on his behalf. An

unrebutted finding had been made that the respondent was the son of a

United States citizen. The failure to disclose his married status ren-

dered him excludable under section 212(a)(19) for failing to disclose

material facts, and section 212(a)(20) for holding an invalid first.;

preference visa, since he was not unmarried as described in section

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Interim Decision #2874

203(a)(1). However, the nondisclosure does not render him excludable

under section 212(2)(14) where the same visa petition filed would have

entitled him to fourth-preference status and a section 212(a)(14) exemp-

tion, had the marriage been timely disclosed. See 8 C.F.R. 204.5(a).

The Service finally contends that the respondent should also not be

considered otherwise admissible for section 241(f) purposes because visa

numbers were not available for fourth prefeienee immigrants when he

-

was admitted into the United States. In Matter of DaLomba, supra, we

specifiCally held that section 241(f) operated to waive the evasion of

restrictive quotas because of overriding family considetations. In Da

Lomba, we adopted the Ninth Circuit's position as stated in Cacho v.

INS, 547 F.2d 1057, 1060 (9 Cir. 1976). The court in Cacho explained

that the failure to have a quota number available was a requirement of

the former section 211(a) of the Act, 8 U.S.C. 1181(a) and that such

inadmissibility under section 211(a) of the Act, was held subject to a

section 241(0 waiver by the Supreme Court's decision in INS vs. Errico,

supra at 220. Cacho v. INS, supra, at 1060; cf. Reid v. INS, supra, at

027; Mum, N. INS, supra, at 1084. Consequently, we find that the respon-

dent was otherwise admissible under the terms of section 241(f) and is,

therefore, entitled to such mandatory relief. The deportation proceed-

ings are hereby terminated.

ORDER: The appeal is sustained and the deportation proceedings

are terminated.

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