MANGABAT

Interim Decision #2131

MATTER OF MANGABAT*

In Deportation Proceedings

A-19049517

Decided by Board March 29, 1972

(1) The fact that a lower federal court has disagreed with a legal conclusion of

the Board does not of itself require that the Board recede from that conclu-

sion; the Board's jurisdiction is nationwide and the contrary ruling of a

reviewing court in one district or circuit is not necessarily dispositive.

(2) The provisions of section 241(f) of the Immigration and Nationality Act, as

amended, do not benefit an alien who entered the United States as a

nonimmigrant. [The interpretation in Matter of Cadiz, 12 L & N. Dec. 560;

Matter of Pon, 13 I. & N. Dec. 446; Matter of iforyzma, 13 I. & N. Dec. 514; and

Matter of Yee, 13 I. & N. Dec. 785, adhered to, notwithstanding Vitales v.

I&NS, 443 F.2d 343 (C.A. 9, 1971), vacated (I&NS v.Vitales, 405 U.S. 983 (1972))

and remanded with instructions to dismiss petition for review.]

CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant-

remained longer than permitted.

ON BEHALF OF RESPONDENT: David C. Marcus, Esquire

215 West Fifth Street

Los Angeles, California 90013

This is an appeal from an order of a special inquiry officer dated

October 21, 1971, denying on reconsideration respondent's motion

to reopen and terminate the proceedings under section 241(f) of

the Immigration and Nationality Act. The appeal will be dis-

missed.

Respondent is a 34 -year - old unmarried female alien, a native

and citizen of the Philippines. She was admitted to the United

States on May 19, 1968 as a nonimmigrant visitor for a period to

expire September 20, 1968 and remained longer than permitted. At

a: deportation hearing before a special inquiry officer on March 12,

1971, at which she was represented by other counsel, respondent

* Reaffirmed. See 477 F.2d 108; cert. denied, 414 U.S. 841 (1973).

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Interim Decision #2131

admitted the truth of the factual allegations of the order to show

cause and conceded deportability on the above-stated charge. The

special inquiry officer found her to be deportable and granted her

until June 1, 1971 to depart voluntarily in lieu of deportation.

There was no appeal and the special inquiry officer's order became

administratively final. Respondent failed to depart and the alter-

nate order for her deportation to the Philippines vested.

On July 12, 1971, through present counsel, respondent filed a

motion to reopen and terminate. In it she alleged that when she

applied to the American consul in the Philippines for her nonimmi-

grant visa, she did not disclose a secret intention to remain here

permanently; that on December 12, 1969, at Los Angeles she gave

birth to a daughter, who is a United States citizen; and that by

reason of her fraud and parentage of a United States citizen child,

she is entitled to termination of the proceedings under section

241(f) of the Act. In an order dated August 16, 1971, the special

inquiry officer denied the motion for the stated reason that the

respondent had submitted no evidence to corroborate her self-

serving confession of fraud.

Counsel thereupon moved for reconsideration, citing INS v.

Ei-rico, 385 U.S. 214 (1900), and the ensuing decisions of the United

States Court of Appeals for the Ninth Circuit in Muslemi v. INS,

408 F.2d 1196 (1969); Lee Fook Chuey v. INS, 439 F.2d 244 (1971);

United States v Os-Luna Picas, 443 F.2d 907 (1971); and Vitales v.

- -

INS, 443 F.2d 343 (1971). In the order now before us on appeal, the

special inquiry officer denied the motion, concluding that the

evidence presented did not make out a case of fraud within the

meaning of section 241(f).

While this appeal was pending before us, the Supreme Court

granted the Service's petition for certiorari to review the Vitales

decision, INS v. Vitales, 404 U.S. 983. We held in abeyance further

action in this case and in certain other cases presenting the same

issue, pending definitive decision by the Supreme Court in Vi-

tales. The Supreme Court has now terminated that case inconclu-

sively.1 For the reasons stated below, we shall proceed to a

decision on this appeal, rather than waiting further for a possible

definitive Supreme Court decision in a case yet to be filed.

This Board has consistently taken the position that section

241(f) does not benefit an alien who entered as a nonimmigrant,

I Miss Vitales left the United States and it was suggested to the Court that

this rendered the issue either moot or unreviewable under section 106(c) of the

Act. On March 20, 1972, the Court entered an order vacating the Court of

Appeals judgment and remanding the case to that court with directions to

dismiss the petition for review, INS v. Vitales, 405 U.S. 983.

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Interim Decision #2131

Matter of Cadiz, 12 I. & N. Dec. 560 (BIA, 1968); Matter of Pon, 13 I.

& N. Dec. 446 (BIA, 1969); Matter of lioryzma, 13 I. & N. Dec. 514

(BIA, 1970); Matter of Yee, 13 I. & N. Dec. 785 (BIA, 1971). That

position is consonant with, and indeed required by, the rationale of

the Attorney General's decision in Matter of Lee, 13 I. & N. Dec.

214 (BIA, 1967; A.G. 1969); see especially footnote 4. The Courts of

Appeals outside the Ninth Circuit have endorsed our longstanding

construction of the statute, Ferrante v. INS, 399 F.2d 98, 104-105 (6

Cir., 1968); Tsaconas v. INS, 397 F.2d 946, 948 -949 (7 Cir., 1968);

Rutledge v. Esperdg, 200 F. Supp. 231, 233 (S.D. N.Y., 1961),

affirmed per curiam 297 F.2d 532 (2 Cir., 1961). The Ninth Circuit

alone has adhered to the expansive view of the underlying

Congressional design on which its decisions are bottomed.

Where a reviewing court rejects our construction of a statute, in

treating with the same issue in subsequent cases we try to reach

an accohimodation compatible both with respect for the court's

judgment and with the needs of effective administration of the

law. The fact that a lower federal court has disagreed with a legal

conclusion of this Board does not of itself require us to recede from

that conclusion. The Board's jurisdiction is nationwide and we

hear appeals from Service decisions in all parts of the country. The

contrary ruling of a reviewing court in one district or one circuit is

not necessarily'dispositive. As we have seen with respect to section

041m, a conflictiing view may be expressed by a court in another

jurisdiction.

Where further appellate review is not sought because it is

concluded administratively that the adverse court decision is

correct, we recede from our former position and accept the court's

position as our own in future cases. See Matter of Lim, 13 I. & N.

Dec. 169 (BIA, 1969). Where, however, the Government's failure to

seek further appellate review is due to factors other than acquies-

cence, we try to preserve the. status quo pending definitive deci-

sion in another case. While continuing to apply our own legal

conclusion in other jurisdictions, we may apply the contrary

conclusion in eases arising within the jurisdiction of the court

which rendered it, Matter of Amado and Monteiro, 13 I. & N. Dec.

179 (BIA, 1969).

It was to avoid this unhappy solution that we have withheld

action on appeals presenting this section 241(f) issue in cases

which would normally be reviewed in the Ninth Circuit, pending

definitive decision in Vitales. In view of the inconclusive termina-

tion of that ease, we could continue to hold the many cases we now

have, until such time as a suitable case arising in another circuit

becomes the vehicle for ultimate Supreme Court decision. That

will take some time. We believe that effective administration

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requires that we act now on the cases before us, without further

delay.

In declining to apply the cited Ninth Circuit decisions in this and

other cases reviewable in that circuit, we mean no disrespect for

that court. Since the issues have already been crystallized, briefed

and defined in the cited cases, our action now should pave the way

for prompt decision in that court and prompt review in the

Supreme Court. The construction of section 241(f) which we here

apply is one which the Attorney General has approved, and his

decision is binding on us. The Ninth Circuit's view represents a

minority position among the circuits. The Solicitor General's chal-

lenge to it in petitioning for certiorari in Vitales negates any

notion of administrative acquiescence. The Supreme Court's action

in granting certiorari indicates that a substantial question is

presented.

Under the circumstances, we feel justfied in continuing to

adhere to the view that section 241(f) does not benefit an alien who

entered as a nonimmigrant. We therefore dismiss the appeal.

ORDER: The appeal is dismissed.

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