LOUIE

Interim Decision #2223

MATTER OF LOUIE

In Deportation Proceedings

A-14238047

A-17959858

Decided by Board August 27, 1973

Notwithstanding an absence of fraud on their part, respondent and his wife, who

innocently entered this country as preference immigrants on the basis of the

representation that respondent's brother was a citizen of the United States

whereas, in fact, he was not a citizen, come within the purview of section 241(f)

of the Immigration and Nationality Act, as amended, since the terms of that

section encompass innocent misrepresentations.

CHARGE:

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

of entry—not of status specified in visa.

ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE:

Robert S. Bixby, Esquire • Stuart Shelby

Fallon, Hargreaves, Bixby & McVey Trial Attorney

30 Hotaling Place (Brief filed)

San Francisco, California 94111

(Brief filed)

The respondents in this case are husband and wife. They have

appealed from a decision of an immigration judge which found

them deportable, denied their application for termination of the

proceedings under section 241(f) of the Immigration and National-

ity Act, but granted them the privilege of voluntary departure. It

is our conclusion that the respondents are saved from deportation

by section 241(f); accordingly, we will sustain the appeal and order

termination of the proceedings.

The male respondent, claiming to be the brother of a United

States citizen, entered this country as a preference immigrant in

1967. The female respondent gained admission in 1968 as the

spouse of a permanent resident alien, namely, her husband. It is

uncontested that the brother of the male respondent was not in

fact a citizen, and that the respondents were not entitled to the

immigrant visas which they received. At their hearing the re-

spondents admitted each factual allegation contained in the order

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Interim Decision #2223

to show cause, yet denied deportability on the ground that they

were exempt from deportation under the mandate of section 241(f)

of the Act.

Section 241(1) of the Act exempts an - alien from deportation if it

is established that: (1) the alien procured entry or documentation

through fraud or misrepresentation; (2) the alien was otherwise

admissible at the time of his entry; and (8) the alien is the spouse,

parent, or child of a United States'citizen or resident alien. The

decision of the immigration judge, which held this provision to be

unavailable to the respondents, was based upon his finding that

the requisite fraud did not exist.

The evidence adduced at the hearing indicates that the two

aliens involved in this case were unaware that the brother of the

male respondent was not actually a citizen. The brother had

apparently concealed his false status from the respondents as well

as from the Immigration and Naturalization Service. Thus, the

entries effected by the respondents appear to have been done in

the absence of any fraud on their behalf, although it is unquestion-

able that an innocent misrepresentation occurred. Despite his

correct factual determination, the immigration judge was in error

in concluding that the good faith of the respondents precluded the

application of section 241(f) to their case. In Matter of Lim, 13 I. &

N. Dec. 169 (BIA,1969), and Matter of Torbergsen, 13 I. & N. Dee.

432 (131A,1869), the Board clearly held that the terms of the

statute do not prevent its invocation by an alien whose misrepre-

sentation was innocent, as oppossed to fraudulent. Consequently,

we find that the respondents satisfy the first element of the

statute.

• We do not perceive, nor does the Service contend that there

exists, any ground which would preclude these aliens from meet-

ing the "otherwise admissible" requirement of the statute. More-

over, each respondent entered as an immigrant and thus was

subject to an administrative examination as prescribed by the

Attorney General in Matter of Lee, 13 I. & N. Dec. 214, 218

(A.G.,1969).

Finally, the respondents appear to have the requisite familial

relationship_ They have a daughter who immigrated to the United

States as the spouse of a permanent resident alien, and who is still

a resident alien herself. Although the daughter is married and

could not qualify as a "child" within the meaning of the Act, see

Section 101(bX1), this does not prevent these aliens from being

deemed "parents" under section 101(b)(2) and thus "parents" for

purposes of section 241(f). See Matter of Citino, 12 I. & N. Dec. 427

(DIA,1967);111,atter of G , 8 I. & N. Dec. 356 (3IA,1959).

—

Since the respondents satisfy the three requirements of section

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Interim Decision #2223

241(i) of the Act, we find that they are exempt from deportation.

The decision of the immigration judge was therefore incorrect, and

we shall order termination of the proceedings.

ORDER: The proceedings are terminated as to both respond-

ents.

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