LEE

Interim Decision #1960

MATTER OF LEE

In Deportation PrOceedings

A-11409328

Decided by Board June 2, and September 13, 1967

Decided by Attorney General May 1, 1969

An alien who entered the United States without inspection upon a know-

ingly false claim of citizenship, thereby completely circumventing the im-

migration visa system, is ineligible for the benefits of section 241(f) of

the Immigration and Nationality Act, as amended, since he was not "other-

wise admissible" at time of entry.*

CHARGE;

Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)1—Entered

without inspection.

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Robert S. Bixby, Esquire Stephen M. Suffin

Fallon, Hargreaves & Bixby Trial Attorney

559 Washington Street (Brief filed)

San Francisco, California 94111 Charles Gordon

(Brief filed) General Counsel

BEFORE THE BOARD

(June 2, 1967)

The case comes forward on appeal by the trial attorney from a

decision of the special inquiry officer entered February 16, 1967

terminating the proceedings.

The record relates to a native and citizen of China, age 30,

male, whose only entry into the United States took place at Hono-

lulu, Hawaii on February 4, 1952 when 15 years old. He was then

coming to the United States to live permanently, but did not pres-

ent an immigration visa. The respondent was admitted upon his

false claim that he was a son of and had derived United States

• Reversed. See 439 F.2d 244 (C.A. 9, 1971).

214

Interim Decision #1960

citizenship from one Huey Fook. He knew that he was not in fact

the son of Huey Fook and had no claim to United States citizen-

ship.

The special inquiry officer has found that the respondent has

established eligibility for suspension of deportation but has de-

nied such relief because he is unable to find as required by section

244 (a) (1) that the respondent "is deportable under any law of

the United States." This finding is based upon the provisions of

the waiver contained in section 241(f) of the Immigration and

Nationality Act which provides: "The provisions of this section

relating to the deportation of aliens within the United States on

the ground that they were excludable at the time of entry as al-

iens who have sought to procure, or have procured visas or other

documentation, or entry into the United States by fraud or misre-

presentation shall not apply to an alien otherwise admissible at

the time of entry who is the spouse, parent or a child of a 'United

States citizen or of an alien lawfully admitted for permanent res-

idence."

The respondent's wife is a native-born citizen of the United

States and thus the respondent possesses the familial ties re-

quired by section 241(f) of the Act. The charge that the respond-

ent is subject to deportation under the provisions of section

241(a) (2) of the Immigration and Nationality Act in that he en-

tered the United States without inspection is predicated upon the

factual allegation that when he entered the United States he

falsely represented himself to be a citizen of the United States.

We have previously held that an alien who entered the United

States by falsely claiming that he was a United States citizen had

entered by fraud and misrepresentation but under section 241 (f),

since he had the required relationship, was exempt from deporta-

tion on the charge based on his fraud. Matter of K , 9 I. & N.

—

Dec. 585. The charge in the instant case that the alien entered

without inspection as an alien because he entered upon his false

representation that he was a United States citizen is predicated

upon the same grounds.

Although the respondent in the present case is not deportable

upon a stated documentary ground, the Supreme Court in the

case of Enrico v. Immigration and Naturalization Service, 385

U.S. 214 (December 12, 1966), noted with approval that admin-

istrative authorities have consistently held that section 241(f)

waives any deportation charge that results directly from the mis-

representation regardless of the section of the statute under

which the charge was brought, provided that the alien was

215

Interim Decision #1960

"otherwise admissible at time of entry." The Supreme Court

noted that the intent of the Act plainly was to grant exceptions to

the rigorous provisions of the 1952 Act for the purpose of keep-

ing family units together. Congress felt that, in many circum-

stances, it was more important to unite families and preserve

family ties than to enforce strictly the quota limitations. It is,

therefore, not surprising that Congress also granted relief to al-

iens facing exclusion or deportation because they had gained

entry through a misrepresentation. The Court held that documen-

tary charges relating to the fraud, in the light of the humanitar-

ian purpose of the statute in its historical background, should be

waived'

In the instant ease, while there is nominally no documentary or

quantitative charge, it is clear that the charge of entry without

inspection is based upon the false and fraudulent misrepresen-

tation that the respondent was a citizen of the United States. The

fraud that is the basis of the charge is forgiven or waived by sec-

tion 241(f) of the Immigration and Nationality Act. The Su-

preme Court in the Errico and Scott cases, 385 U.S. 214, con-

firmed that section 241(f) waives any deportation charge that

results directly from the misrepresentation regardless of the sec-

tion of the statute under which the charge is brought.

The Supreme Court holding that documentary or quantitative

grounds did not change the status of the respondent as a person

"otherwise admissable" at time of entry who possesses the neces-

sary familial ties, was merely an extension of the grounds pre-

sented in those cases and is not necessary to a decision in the in-

stant case. We conclude that the respondent's deportability is

waived under the provisions of section 241(f) of the Immigration

and Nationality Act and that the language of the Supreme Court

in the Errico and Scott cases apply even more forcefully to the

instant case. We agree with the action of the special inquiry

officer in terminating proceedings.

ORDER: It is ordered that the appeal of the trial attorney

from the decision of the special inquiry officer terminating the

proceeding be and the same is hereby dismissed.

BEFORE THE BOARD

(September 13, 1967)

The case comes forward on motion of the Service dated July 5,

1967 requesting the Board to reconsider its order of June 2,

1 Matter of Cordero-Santana, 12 I. & N. Dee. 69.

216

Interim Decision #1960

1967 and urging that a sound construction of section 241 (f) of

the Immigration and Nationality Act would be to hold that it

does not apply to an initial entrant who posed as a citizen be-

cause, not having an immigrant visa, he was not "otherwise ad-

missable." The Service further admonishes the Board that before

taking the view it has of the statute, it should await a judicial

statement on this type of case; further, by construing the statute

so broadly, the Board preempts the situation and blocks judicial

review.

Briefly, the record relates to a native and citizen of China, 30

years old, male, who entered the United States at Honolulu, Ha-

waii on February 4, 1952 when 15 years old; He was then coming

to the United States to live permanently, but did not present an

immigration visa. The respondent was admitted upon his know-

ingly false claim that he was a son of and had derived United

States citizenship from one Huey Fook, whereas, he knew he was

not the son of Huey Fook and had no claim to United States citi-

zenship. The special inquiry officer found the respondent eligible

for suspension of deportation under section 244 of the Immigra-

tion and Nationality Act but concluded that the respondent,

under the provisions of the waiver contained in section 241(f) of

the Immigration and Nationality Act, was not deportable and ter-

minated proceedings, finding that the case came within the ambit

of the Supreme Court's decision in Immigration and Naturaliza-

tion Service v. Errico, 385 U.S. 214 (1966). The trial attorney

appealed from the decision of the special inquiry officer urging

that Errico should be limited to the facts of that case, namely,

that section 241 (f) prohibits the institution of deportation pro-

ceedings only where there was fraud in connection with the pro-

curement of an immigrant visa, but that it does not extend to

entry under a false claim to United States citizenship.

In our decision of June 2, 1967, we carefully analyzed the hold-

ing in Errico. We held that the charge of "entry 'without inspec-

tion" was based upon the false and fraudulent misrepresentation

that the respondent was a citizen of the United States which was

waived by section 241 (f) of the Immigration and Nationality Act

on behalf of the respondent, who possessed the necessary familial

tie of a citizen wife, despite the fact that nominally there was no

documentary or quantitative charge in the deportation proceed-

ing. We pointed out that the Supreme Court had noted with ap-

proval that administrative authorities have consistently held that

section 241(f) waives any deportation charge that results directly

from the misrepresentation regardless of the section of the stat-

217

Interim Decision #1960

ute under which the charge was brought, provided that the alien

was otherwise admissable at time of entry. We concluded that the

respondent's deportability was waived under the provisions of

section 241(f) of the Immigration and Nationality Act and that

the language of the Supreme Court applied even more forcefully

to the instant case and dismissed the appeal of the trial attorney.

The motion does not persuade us that our decision is wrong.*

In connection with the motion the appellate trial attorney has

enclosed for consideration a copy of his memorandum in opposi-

tion to respondent's motion to reconsider in Matter of Muslemi,

A-17256526. We have considered the arguments advanced in that

memorandum insofar as they are applicable to the present case

and we feel that there is no need to change our decision of June

2, 1967.

The instant motion criticizes the Board for extending the Sr-

i-leo holding from the narrow construction denounced by the Su-

preme Court to its extreme opposite, which allegedly would lead

to absurd and chaotic consequences. The motion completely over-

looks the fact that the Supreme Court adopted a liberal interpre-

tation in the light of the humanitarian purpose of the statute in

view of its historical background. The danger of citing hypotheti-

cal situations which would result in "painful absurdities" is illus-

trated by brief of counsel which likewise sets up a hypothetical

situation with illogical and inequitable results by invoking the pro-

visions of section 241(f) in the manner in which the Service

seeks.

By regulations, 8 CFR 3.1(b) the Attorney General has con-

ferred upon the Board the exercise of such discretion and author-

ity as appropriate and necessary for such disposition of the case.

We would be remiss in our duty if we did not exercise such dis-

cretion and authority. The motion will be denied.

ORDER rIt is ordered that the motion be and the same is

hereby denied.

BEFORE THE ATTORNEY GENERAL

(May 1, 1969)

The Board of Immigration Appeals, at the request of the Com-

missioner of Immigration and Naturalization, has referred its de-

cision to me for review pursuant to 8 CPR 8.1 (h) (1) MO_ The

Board dismissed the appeal of the Immigration and Naturaliza-

matter of Wong, 11 L. & N. Dec. 712 and 12 I. & N. Dec. 8, and Matter

of Mustard, 12 I. & N. Dec. 249, cited by the Service, are inapposite.

218

Interim Decision #1960

tion Service from the decision of the special inquiry officer termi-

nating the deportation proceedings instituted against respondent.

The Board also denied the Service's motion for reconsideration.

Respondent is a native and citizen of China who entered the

United States on February 4, 1952, when he was 15 years old. He

had never applied for an immigration visa and was admitted on

his knowingly false claim that he was a United States citizen. De-

portation proceedings were instituted against him on a charge of

entry without inspection pursuant to section 241 (a) (2) of the

Immigration and Nationality Act, 8 U.S.C. 1251. A special in-

quiry officer ordered his deportation on the charge on February 4,

1958.

Respondent was not in fact deported, however, and he married

a native-born citizen of the United States in 1965. He moved in

1967 to reopen the deportation proceedings for consideration of

an application for suspension of his deportation pursuant to sec-

tion 244 of the Act, 8 U.S.C. 1254, on the ground that it would

result in extreme hardship to his citizen wife. The motion was

granted, and a hearing was held before another special inquiry

Officer.

The special inquiry officer concluded that respondent was not

deportable, because he satisfied the waiver provision of amended

section 241 (f) of the Act, 8 U.S.C. 1251 (f), as construed by the

Supreme Court in Immigration Service v. Errico, 385 U.S. 214

(1966). Accordingly, he terminated the deportation proceeding

and denied the application for suspension .=

The decision in this case turns on the scope of amended section

241 (f), which reads as follows :

The provisions of this section relating to the deportation of aliens within

the United 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 of entry who is

the spouse, parent, or a child of a United States citizen or of an alien law-

fully admitted for permanent residence.

Under the statute, an alien who has "procured visas or other doc-

umentation, or entry into the United States" by fraud or misre-

presentation is eligible for relief from deportation if he has the

necessary familial relationship and if he was "an alien otherwise

1 The special inquiry officer stated that his denial was based on the ground

that suspension was available only for deportable aliens. It appears, how-

ever, that if he had found respondent deportable, he would have granted the

application for suspension.

219

Interim Decision #1960

admissible at the time of entry." Respondent, as the spouse of a

United States citizen, clearly has the familial relationship re-

quired by the statute. The question before me is whether respond-

ent, who has never applied for an immigration visa and who ob-

tained entry under a false claim of citizenship, can be "an alien

otherwise admissible at the time of entry."

In Errico, the alien obtained first preference status on the basis

of a false representation that he was a skilled mechanic with spe-

cialized experience in repairing foreign automobiles. In the com-

panion case embraced by the Errico decision, Scott v. Immigra-

tion Service, the alien fraudulently obtained nonquota status on

the basis of a sham marriage with an American citizen. The Su-

preme Court held that they were "otherwise admissible" within

the meaning of section 241 (f).

While each of those aliens misrepresented facts for the purpose

of evading quota restrictions, each did submit himself to the stat-

utory system for obtaining information from aliens who seek im-

migration visas, and presumably the information provided by each

was found to satisfy all applicable immigration requirements

other than those relating to his false status.

In order to obtain an immigrant visa pursuant to the standard

requirements, applicable to all immigrants coming from abroad,' a

visa application is filed with the American consul; a medical ex-

amination is administered to assure that the health requirements

are satisfied; police certificates are obtained to show any criminal

record; birth records are examined; and a valid passport is re-

quired. Furthermore, the applicant is registered and finger-

printed, and must provide satisfactory sworn responses to ques-

tions as to residence, organizational memberships, prior arrests

or confinement, use of narcotics, previous deportation or immi-

gration violations, ability to read and subversive activities.*

In sharp contrast to the requirements to be met prior to the

issuance of an immigrant visa, a person entering the United States

as a citizen need only show his citizenship. Thus, an alien who

enters this country by falsely claiming that he is a United States

citizen manages to avoid furnishing the information that is re-

quired of an alien and that serves as the basis for determining

whether he is admissible as an immigrant.

2 Under the procedure provided by section 245 of the Act, 8 U.S.C. 1255,

certain aliens in the United States may have their status adjusted to that of

an alien admitted for permanent residence. But they must be eligible for im-

migration visas.

3 For additional conditions precedent to approval of an immigrant visa, see

Gordon and Rosenfield, Immigration Law and Procedure §§ 3.3-8.

220

Interim Decision #1960

Despite this critical difference between entering the United

States under a fraudulently obtained immigrant visa and entering

pursuant to a false claim of citizenship, in the present case the

Board interpreted Errico as authorizing relief from deportation

for an alien who had satisfied none of the immigration require-

ments at the time of his entry. I find nothing in the language of

section 241 (f), its legislative history or the Errico opinion to sup-

port the view that Congress intended to permit the complete cir-

cumvention of the immigration visa system established by the

Act. Such a circumvention would result from a holding that sec-

tion 241(f) applies to an alien who neither was granted nor ap-

plied for an immigrant visa, but obtained his initial entry by pos-

ing as a citizen.

Section 241(f) must be interpreted in light of the process

established by the Immigration and Nationality Act for obtaining

information from aliens who seek to qualify for entry into the

United States. In granting relief to certain aliens who have "pro-

cured visas or other documentation, or entry into the United

States by fraud or misrepresentation," section 241 (f) only en-

compasses fraud or misrepresentation committed by an alien in

the course of furnishing information or otherwise being proc-

essed as required by our immigration laws. An evaluation of in-

formation furnished by an alien is necessary for the immigration

authorities to determine whether he is admissible as an immi-

grant. The "otherwise admissible" requirement of section 241(f)

would be meaningless if it were not interpreted to mean that the

alien at the time of entry must have Satisfied all of the other re-

quirements" necessary to entry as an immigrant, apart from his

admissibility derived from the particular facts or status as to

which he made his misrepresentation. An alien such as the pres-

s Most of the immigration requirements are waived for aliens who come

here as nonimmigrant visitors. See, e.g„ 8 U.S.C. 1202 (c), 22 CFR 41.5-7,

41.114 and 41.116. Consequently, an alien who has evaded most of the immi-

gration requirements by fraudulently entering as a nonimmigrant visitor

who also does not appear to be an "otherwise admissible" immigrant. The

Board held in Matter of Cadiz, 12 L & N. Dec. 560 (January 9, 1968), that

nonimmigrant visitors are not entitled to relief under 241 (f). The courts

have not ruled on the issue as a general proposition. Several courts have held

that under certain circumstances 241(1) did not grant relief to nonimmigrant

visitors. Ferrante v. Immigration and Naturalization Service, 399 F.2d 98

(6th Cir. 1268) ; Tsacomaz v. Immigration and Naturalization Service, 897

P.2d 946 (7th Cir. 1968). On the other hand, the Ninth Circuit recently

remanded a case involving a nonimmigrant visitor for an administrative

determination of whether the alien was "otherwise admissible" at the time of

entry. Muslemi v. Immigration and Naturalization Service, No. 22, 419 (9th

Cir. March 17, 1969).

221

Interim Decision #1960

ent respondent, who never applied for and obtained an immigrant

visa, cannot meet that test.*

Respondent attempts to broaden the Errico decision by relying

on several pre Errico opinions of the Board which deal with al-

-

iens lawfully admitted for permanent residence who are return-

ing to the United States after a temporary trip abroad. Such reli-

ance is misplaced, since returning resident aliens are eligible for

certain discretionary relief which is not available to an alien

seeking to enter this country for the first time. Under section

211 (b) of the Act, 8 U.S.C. 1181(b), a returning resident alien

who is otherwise admissible may be readmitted in the discretion

of the Attorney General without the required documentation.

Similarly, section 212(c), 8 U.S.C. 1182(e), provides that a re-

turning resident alien may be readmitted in the discretion of the

Attorney General without regard to most of the grounds of exclu-

sion specified by the Immigration and Nationality Act.

In Matter of K , 9 I. & N. Dec. 585 (1962), the Board consid-

—

ered the matter of a resident alien who took a two-hour trip to

Canada and then reentered the United States by misrepresenting

himself as a United States citizen. While the Board found that

the alien was inadmissible on two separate grounds in addition to

his fraud, it also found that he qualified for discretionary waiv-

ers of both of those grounds. Therefore, the Board regarded the

alien as if he were applying for admission nun° pro tune as of

the time of reentry, and 'granted him the appropriate waivers. As

a result, the Board viewed the alien as one who, apart from the

inadmissibility deriVed from his misrepresentation as to citizen-

ship, satisfied at the time of reentry all of our other immigration

requirements for returning resident aliens. Since he was thus an

"otherwise admissible" alien in the Board's view, it proceeded to

invoke section 241(f) to remove the effect of his fraud and allow

his reentry. 5

Such a rationale cannot be extended to cases like the instant

one. An alien who has not even applied for an immigrant visa,

much less been examined and granted such a visa, has satisfied

none of our immigration requirements and cannot properly be

treated as an "otherwise admissible" alien.

Accordingly, the order of the Board dismissing the appeal of

the Immigration and Naturalization Service is reversed. The case

is remanded to the Board for disposition of respondent's applica-

tion for suspension of deportation.

5 The Board reached a •like result in Matter of Y — , 8 I. & N. Dec. 143

(1959).

222