S

11A Eli OF S--

In EXCLUSION Proceedings

A-10067819

Board decision of October 9, 1981

Decided by the Attorney General January 22,1962

Board decision of January 24, 1962

Excludability—Deportability—Effect of adjustment of status, section 245, 1952

Act, on ground which existed prior thereto.

(1) Adjustment of status acquired under section 245 of the Act does not

immunize an alien from the exclusion and deportation provisions of the

Act. These provisions apply equally to aliens lawfully admitted for perma-

nent residence and to those who have had their status adjusted under sec-

tion 245 to that of permanent residents.

(2) The five- year limitation contained in section 246 applies t -) the Attorney

General's authority to rescind adjustment of status and does not bar exclu-

sion or deportation thereafter on grounds which existed prior to the ad-

justment and which would also have supported rescission, If timely known.

(3) In the instant case, the lapse of more than five years since the appli-

cant's adjustment of status under section 245 does not bar exclusion pro-

ceedings based on fraudulent procurement of an entry document prior to

the adjustment.

NOTE: Matter of V—, 7-363, ,distinguished.

ExcLunAnr.r.: Act of 1952—Section 212(a) (19) [8 U.S.C. 1182(a) (19)]-0b-

tamed visa by fraud or misrepresentation (1949).

BEFORE THE BOARD

(October 9, 1961)

DISCUSSION: Tho Board upheld the ruling of the special in-

quiry officer authorizing the applicant's admission to the United

States as a returning resident. The Commissioner believes the appli-

cant is inadmissible and requests that the decision of the Board be

certified to the Attorney General for review. The Board has entered

two orders : on June 2, 1961, the appeal of the District Director was

dismissed, and on August 17, 1961, a Service motion for reconsidera-

tion was denied Request for review is under 8 CFR 3.1 (b.) (1) (iii).

In April 1955 the applicant secured an adjustment of status under

section 245 of the Immigration and Nationality Act (8 U.S.C. 1255)

548

which then permitted a lawfully admitted nonimmigrant to obtain

the status of an alien lawfully admitted for permanent residence.

The applicant was ineligible for the adjustment but it was not

rescinded within the five-year time limit permitted by law (section

246(a), Immigration and Nationality Act; 8 U.S.C. 1256(a)). The

Board believes that in the absence of timely rescission the applicant

cannot be denied any nondiscretionary rights which are the incidents

of proper adjustment. The Service disagrees with this view, at least

as it applies to an alien who has departed from the United States

and seeks to reenter.

The law and facts have been fully stated in previous orders.

Briefly, in 1949 the applicant entered the United States on a dis-

placed person's visa which he had fraudulently procured. In 1951

he abandoned the United States and went to South America where,

shortly after his entry, he assumed the name of A—S—, allegedly

a fictitious name and one which he has used to date. In 1954 he

entered the United States as a visitor under the name of A—S—.

In 1955, using the Bailie of A S , he improperly secured the right

—

to be a permanent legal resident of the United States under section

245 of the Immigration and Nationality Act. He was not entitled to

the adjustment because he had not been lawfully admitted; he had

been inadmissible at the time of entry as one who had procured a

visa by fraud in 1949. The adjustment of status was not rescinded

within the five years during which such action could be instituted.

The applicant has reentered the United States from time to time in—

1957 on a reentry pe_la'A issued in the name of A—S----, and on

other occasions, as he is attempting to do at the present, on the basis

of a Form I-151A -a(alien registration card) which at the time of

application for admission (August 1960) was sufficient to authorize

the admission of an alien admitted for permanent residence return-

ing to resume residence (24 F.R. 2583, April 3, 1959).

The Service apparently agrees that where there has been no rescis-

sion of the adjustment of status, there can be no expulsion of an

alien (who did not depart after the adjustment) on grounds which

made the alien ineligible for the adjustment. Thus, we would assume

there is agreement that the alien who was ineligible for adjustment

because he is a criminal, a subversive, or a person who procured a

document by fraud can enjoy the fruits of his adjustment as long as

he remains in the United States. However, the Service feels that in

exclusion proceedings, even though there has been no rescission, it

is proper to exclude the alien on the grounds which it could not have

used to deport him prior to his departure. Thus, the examining

officer urges that the applicant is inadmissible under section 212(a)

(19), Immigration and Nationality Act (8 U.S.C. 1182(a) (19)), be-

cause he had procured a visa by fraud in 1949. However, the Board

549

is of the belief that since Congress provided that the adjustment

could not be questioned after the five years which have passed since

the adjustment, the applicant must be considered as having been

admitted for permanent lawful residence. It follows, in the Board's

opinion, that any attempt to exclude the applicant on the ground

which made him ineligible for the adjustment is an attack upon the

status which Congress stated should no longer be questioned. The

adjustment gave the applicant a legal status in the United States.

We can see no logical reason why Congress which desired to protect

this status by a statute of limitations, even though the status had

been acquired by one who was not eligible, should wish to withdraw

that protection because the alien had left the country and reapplied

for admission on the basis of the very adjustment of status which

they had protected. Since one lawfully admitted for permanent

residence is entitled by law to reenter to resume residence on the

basis of an alien registration card following a visit such as the appli-

cant made, he must be permitted to enter.

We do not know why Congress provided a statute of limitations to

prevent attack upon the right of permanent residence belonging to

an alien who had secured it by an adjustment, but failed to provide

similar protection for the one who secured his right through the

visa process; however, there is a difference, and it is this difference

which now prevents the applicant's right to permanent residence

from being questioned because he was ineligible to receive it.

The Service ,motion raises a matter which was not an issue at

the exclusion proceeding. The motion urges that the applicant is

inadmissible because, although his true name is -J—, he used the

name S on the reentry permit in 1957 and used, and is attempting

to use, a Form I-151A issued in the name of S— (he received it as

part of the adjustment of status). We do not believe that the ap

plicant is inadmissible because of his use of the name S . He

did not adopt it to defraud this Government. It is the name by

which he has been generally known since 1951 (United States ex rel.

Leibowitz v. Sehlotfeldt, 94 F.2d 263 (C.A. 7, 1938)). Moreover,

since it is the Board's belief that it must regard the applicant for

the purpose of immigration laws as the S— who obtained the right

to legal residence in 1955 with all the incidents flowing out of that

right, we do not believe that his use of the name under which he

received the adjustment can be considered a new and additional

violation of the immigration lasvb. Tu so consider it, would be to

do indirectly what cannot be done directly—challenge the applicant's

status as a lawful resident acquired by the adjustment.

To complete the discussion, we would point out that. the adjust-

ment of status obtained by the applicant would not free him from

liability to exclusion or expulsion if an act committed by him after

550

the adjustment placed him in any of the categorico which make an

alien excludable or deportable.

ORDER: At the request of the Commissioner under the authority

contained in 8 CFR 3.1(h) (1) (iii), the case is referred to the Attor-

ney General for review of the Board's decision.

BEFORE THE ATTORNEY GENERAL

(January 22, 1962)

The Board of Irrunigration Appeals, pursuant to 8 CFR 3.1(h) (1)

(iii), has, at the request of the Commissioner of Immigration and

Naturalization, referred its decision of June 2, 1961, in this case to

me for review. The Board of Immigration Appeals affirmed an

order of a special inquiry officer holding that the applicant was ad-

missible into the United States AS a returning lawfully admitted

resident alien. The decision raises a novel and important question of

interpretation of the immigration laws.

The question arises in the following way: Applicant, whose true

identity is apparently B—J—, a native of Czechoslovakia, first en-

tered the United States in 1949 on a displaced person's immigration

visa issued to a native of Germany, an identity which

the applicant had assumed in applying for the visa. In 1951 appli-

cant abandoned his residence in the United States and left for South

America. After passing through Brazil on a transit visa, he ar-

rived in Paraguay. Although five years of residence in Paraguay

is a prerequisite to the acquisition of Paraguayan citizenship, appli-

cant apparently acquired Paraguayan citizenship within several

months of his arrival. For purposes of his Paraguayan naturaliza-

tion he assumed the identity of A—S--, a native of Germany. In

1953 he entered Brazil, and in January 1054 he was admitted to

the United States as a visitor under the name of A—S—. In

September 1954 he was married to a lawfully resident alien. In

April 1955, pursuant to section 245 of the Immigration and Na-

tionality Act (66 Stat. 217 (1952)), applicant, under the assumed

identity of A—S—, had his status adjusted to that of an alien

lawfully admitted for permanent residence. Section 245, then, as

now,' required, among other things, that an alien to be eligible

far adjustment had to be admissible to the United States for per-

Stat. 505 (1960), 8 U.S.C. (Supp. TI) § 1255: "(a) The status of an

alien . may be adjusted by the Attorney General, in his discretion and

under such regulations as he may prescribe, to that of an alien lawfully

admitted for permanent residence if (1) the alien makes an application for

such adjustment, (2) the alien is eligible to receive an immigrant visa and is

admissible to the United States for permanent residence, and (3) an immi-

grant visa is immediately available to him at the time his application Is

approved."

551

manent residence under the Act. If applicant had at one time

procured a visa by fraud or willful material misrepresentation, this

would have made him ineligible for adjustment. 2

In 1956 applicant spent several hours in Mexico obtaining a

divorce from his wife. Between 1957 and 1960, he left and re-

entered the United States several times. On reentry he either pre-

sented the alien registration card issued to him as A—S--- or reentry

permits also issued to him in that name.

On applicant's last attempt to reenter the United States at Miami

Beach, Florida, in August 1960, the Immigration and Naturaliza-

tion Service sought to exclude him under section 212(a) (19) of

the Act 2 on the ground that his initial entry in 1949 was procured

by fraud or willful misrepresentation of a material fact. The spe-

cial inquiry officer who heard the exclusion proceeding, although

concluding that the applicant had procured his 1949 displaced per-

son's visa by fraud or willful material inisrepiesentation, held that

the passage of five years since the adjustment of applicant's status

barred his exclusion on a ground which existed prior to such ad-

justment. While Congress in section 246 of the Act, 8 U.S.C. 1256,

authorized the the Attorney General to rescind action granting ad-

justment if the alien was not in fact eligible for such adjustment, 3 he

pointed to the fact that the Attorney General's rescission authority

was limited to five years following the adjustment. It was his

view that exclusion or deportation proceedings based upon grounds

which would also have supported rescission were indirect attacks

on the adjustment of applicant's status to that of an alien lawfully

admitted for permanent residence and that Congress, in barring

rescission of the adjustment after five years, also intended to bar

such indirect attacks. Since the fraudulent procurement of a visa

in 1949 would have been grounds for rescission of the applicant's

status, and since the passage of more than five years barred rescis-

sion, the special inquiry officer concluded that applicant could not

3 Section 212(a) (19), 8 U.S.C. 1182(a) (19), excludes from admission into

the United States "[a]ny alien who seeks to procure, or has sought to pro-

cure, or hue procured a vino or other documentation, or seeks to enter the

United States, by fraud, or by willfully misrepresenting a material fact."

3 ". . . If, at any time within five years after the status of a person has

been otherwise adjusted under the provisions of section 245 or 249 of this

AM- or any other provision of lam to that of an alien lawfully admitted for

permanent residence, it shall appear to the satisfaction of the Attorney Gen-

eral that the person was not in fact eligible for such adjustment of status,

the Attorney General shall rescind the action taken granting an adjustment

of status to such person end cancelling deportation in the case of such person

if that, occurred and the person shall thereupon be subject to all provisions

of this Act to the same extent as if the adjustment of status had not been

made."

552

now be excluded on that ground: 3 Accordingly, he directed the ap-

plicant's admission. The Board of Immigration Appeals has affirmed

on the basis of the special inquiry officer's opinion.

I cannot agree that an adjustment of status under section 245 and

the five-year limitation on rescission provided in section 246 have

the effects attributed to them by the special inquiry officer and the

B

. oard of Immigration Appeals.

Neither the exclusion provisions of the Act, section 212 (8 U.S.C.

1182), nor its deportation provisions, section 241 (8 U.S.C. 1251),

contain statutes of limitations. 5 Consequently, an alien who upon

entry acquires the status of an alien lawfully admitted for permanent

residence is nevertheless subject to deportation at any future time, or

exclusion if he seeks to reenter the United States after departure,

for conduct preceding his acquisition cf that status. By virtue of

the decision below, an alien initially admitted as a nonimmigrant

who subsequently acquires the status of a lawfully admitted per-

manent resident through the adjustment procedure provided for in

section 245 of the Act, acquires, through the five-year limitation

on rescission of his status, the additional advantage of a statute of

limitations immunizing him from exclusion or deportation on

grounds founded on events preceding the acquisition of his status.

There is no indication that Congress intended to afford such an

advantage to one acquiring permanent resident status by adjust-

ment under section 245. That section was first enacted in 1952. 66

Stat. 217. Prior to that time, an alien initially admitted as a non-

immigrant could only change his status to that of an alien lawfully

admitted for permanent residence by undergoing a complicated

procedure called preexamination. Pursuant to that procedure, the

alien was required to leave the United States in order to obtain

an immigration visa from a consul and reenter. See, Gordon and

Rosenfield, Immigration Law and Procedure, 711 12 (1959). This, -

of course, entailed both a burdensome expense and inconvenience for

the alien. It did not, however, with respect to deportation or ex-

clusion proceedings thereafter commenced, put him in any better

position than an alien initially admitted for permanent residence

without preexamination. The adjustment procedure of section 245

was "specifically devised to obviate the need for departure and re-

4 The Service apparently conceded that deportation Is barred but contended

that this did not affect exclusion. I do not believe the question in this case

can be satisfactorily resolved on the basis of such a distinction.

pct nut failb to provide e ntatate of limitations for depot - tability

but since the grounds for deportability which it establishes apply retroactively

to conduct preceding its enactment (section 241(d), 8 U.S.C. 1251(d)), it has

been construed to apply to such conduct even in cases where the period of

limitations provided by previous law would have barred deportation. Leh-

r': 11Pli. v. Carson., 553 ❑ .S. 685 (1557).

553

entry in the cases of aliens temporarily in the United States. . . ."

H. Rept. No. 1365, 82d Cong., 2d Sess., p. 63 (1952). I find nothing

to suggest that the section was intended to ultimately immunize an

alien from deportation or exclusion thereafter on grounds which

would have made him initially inadmissible. In 1958, subsequent

to this applicant's adjustment of status, Congress liberalized the

adjustment procedure of section 245. The Senate Report accom-

panying the amendment of that section was careful, however, to

emphasize that the amendment was not designed either to "benefit

the alien who has entered the United States in violation of the law"

or to "affect the statutory standards of eligibility for immigration

into the United States." S. Rapt. No. 2133, 85th Cong., 2d Sess.,

p. 2. There is no reason to suppose that section 245, as originally

enacted, had any broader purpose.°

From this background, it seems clear that section 245 was in-

tended to perform no other Riot:Lion than to permit nonimmigranta

to attain permanent resident status without leaving the United

States. Nor is there any basis for believing that the five-year limita-

tion in section 246 on the Attorney General's rescission authority has

the effect of broadening the benefits conferred by a section 245

adjustment so as to place nonirr migrants who thereby acquire the

status of aliens lawfully admitted for permanent residence in a bet-

ter position than those who have initially entered as permanent

residents.

Section 246 permits the Attorney General to rescind adjustment

of status within five years. In the words of the statute, rescission

places an alien in the same position "as if the adjustment of status

had not been made"; that is, one whose status was adjusted under

section 245 to that of an alien "lawfully admitted for permanent

residence" is, through rescission, returned to nonimmigrant status.

Consequently, the effect of the five-year limitation on rescission is

simply to bar the Attorney General from returning an alien with

adjusted status to the category of nonimmigrant. I cannot agree

6 That Congress did not intend section 245 to confer any protections against

deportation or exclusion is brought out more clearly by contrasting its provi-

SilMIN with those of beclivu 234 of the Act (8 T.T.S.O. 1251), and section 24.9 of

the Act (8 U.S.C. 1259). Section 244 allows the Attorney General to suspend

the deportation of an alien who is found to be deportable. Section 249 now

authorizes him' to make a record of lawful admission for an alien except

where the alien is deportable on grounds specified in that section. Section 949

has been read as authorizing the Attorney General to waive known grounds

of deportation other than those specified in that section. Matter of L—F—Y—,

8-601 (1960). Thus, these provisions confer upon the Attorney General a

"pardoning" authority. In contrast, section 245 permits adjustment only where

the applicant is "eligible to receive an immigrant visa and is admissible to the

United States for permanent residence." Section 245 does not give Attorney

General "pardoning" authority.

554

that, in performing this narrow function, the. time limitation im-

posed on rescission by section 246 was intended to be read as quali-

fying the express authority provided by the Act to deport or ex-

clude aliens on proper grounds without time limitation. Such an

extreme interpretation would require either specific statutory lan-

■_tuage or at least a clear indication in the legislative history that.

Congress intended the statute to be so read. There is neither.?

I recognize that as I construe the time limitation in section 246

it may be of little practical value to the alien. While the limitation

obviously prevents the Attorney General from returning the alien

to the category of a nonimmigrant on the basis of conduct which

would have justified a rescission of adjustment, it could be argued

that this entails no real benefit to the alien since the same conduct

nevertheless can be utilized independently as a ground for his de-

portation or exclusion. This makes it difficult to ascertain pre-

cisely why Congress enacted the time limitation. But whatever

the purpose Congress may have intended the time limitation to

serve, it is clear that it could not, consistently with the policies

underlying the provisions of the immigration laws here involved,

have intended to confer upon an alien of adjusted status the benefit

of immunity from exclusion or deportation for prior conduct. 8

7 The time limitation provision is apparently the result of a recommendation

made by the Senate Committee on the Judiciary in its study of the immigra-

tion and naturalization systems of the United States. S. Rept. No. 1515, 51st

Cong., 2d Sess., p. 611 (1950). No explanation is given there of the pur-

pose to be attributed to the provision. Nor is it discussed at later points in

the legislative history mentioning the time limitation. See II. Rept. No. 2096,

82d Cong., 2d Sess., p. 128 (1952) ; H. Rept. No. 1365, 82d Cong., 2d Sess.,

p. 63 (1952) ; S. Rept. No. 1137, 82d Cong., 2d Sess., p. 26 (1952).

8 Congrese reasons for providing the five-year limitation are nowhere clearly

indicated. See note 7. supra. As far as I can determine, the significance

which Congress attached to the five-year limitation was that it cut off the

availability of a procedure which, although to all intents and purposes would

establish deportability, permitted the Attorney General to act more infor-

mally and expeditiously than he could in a deportation proceeding. The re-

scission procedure apparently resulted from congressional recognition that a

means more informal and expeditious than deportation was needed to correct

mistakes made in granting permanent residence to nonimmigrant aliens

through adjustment of status. Experience under preexamination had shown

that such mistakes were more likely to occur where eligibility for permanent

resident status was determined by government officers located in the United

States who did not ordinarily have the first-hand information available to

American consuls located in a prospective immigrant's native country. See

S. Rept. No. 1515, blot Cong., 2d Sess., p. 606 (1950). This view of rescission

is borne out by the fact that section 246 in authorizing rescission does not

provide the explicit and detailed procedural requirements laid down for de-

portation proceedings by section 242(b) of the Act (S 1252(b)). At

the same time Congress must have been aware that rescission by returning

the alien to nonimmigrant status, in fact, established his deportability on the

555

The special inquiry officer, in reaching a contrary conclusion,

relied in part on an earlier Board decision, Matter of V—, 7-363

(1956). There, deportation proceedings were brought against an

alien on the ground that she had entered the United States with-

out a valid entry document as required by section 212 (a) (20), 8 U.S.C.

1182(a) (20). She had presented a Form I 151A_ (alien registration

-

card) to obtain entry. The card had been issued pursuant to the cre-

ation of a record of lawful admission for permanent residence under

an earlier version of section 249 of the Act, 66 Stat. 219 (1952). It

appeared, however, that she obtained her record of lawful admission

by concealment of a material fact. Accordingly, the Service contended

that the Form I-151A which she obtained on the basis of that record

was not a valid entry document. The Board held, however, that since

her record of lawful admission had not been rescinded in accordance

with section 246 she could not be deported on the ground that she had

entered without a valid entry document. The special inquiry officer m

the instant case has read Matter of V—, supra, as standing for the

general proposition that an alien registered for lawful admission

under section 249, or whose status is adjusted under section 245, cannot

be deported or excluded on grounds which existed prior to such regis-

tration or adjustment without first rescinding that action, and if, as

here, rescission of adjustment is barred by the five year limitation in

-

section 246, exclusion is also barred.

Matter of V , supra, is not controlling in the instant case. The

—

only question before the Board in Matter of V— was whether the

Service was entitled to establish the alien's ineligibility for the

record of lawful admission in a deportation proceeding where the

rescission procedure, specifically provided to determine that issue,

was available. It did not have before it the question whether, had

rescission no longer been available due to the lapse of five years,

the record of lawful admission would not only bar deportation or

exclusion on a ground which required an explicit showing that the

record was improperly made, but on a preexisting ground which,

ground that he had over3tayed the period of hie admission. The five-year

limitation would thus seem to be a recognition that it would be unfair to

permit indefinitely such serious consequences to be effected through a some-

what informal procedure. After five years, the Attorney General is, therefore,

required to correct mistakes in granting permanent resident stntlic to those

initially admitted as nonimmigrants in the same manner as in the case of

other aliens, i.e., through deportation. I should note in passing that while

Congress may have permitted the Attorney General to make use of more in-

formal procedures in rescission, in practice under the governing regulation

there is little difference between the safeguards afforded an alien in deporta-

tion and that afforded him in rescission. See 8 CFR 246.12(a) and (b).

556

altltuugli independently sufficient as a basis for exclusion, would

also have supported a rescission.

I conclude that since section 246 only limits the Attorney General's

authority to rescind an adjustment of status, the lapse of more than

five years since applicant's adjustment does not bar an exclusion

proceeding based upon the alleged fraudulent procurement of an

entry visa prior to his adjustment of status. However, because

the determination by the special inquiry officer that the 1949 visa

was procured by fraud or material misrepresentation in violation

of section 212(a) (19) was made prior to my decision of October 2,

1961, in Matter of S— and B—C—,.9 '136, in which I formulated

standards for determining questions of materiality arising under that

section, I am remanding this case to the Board for such action as is

consistent with my opinion in Matter of S— and B—C—, supra.

The Service in its motion for reconsideration, denied by the

Board on August 17, 1961, also contended, for the first time, that

applicant's entry into the United States under the name of A—S--,

and subetilleoi 14, the adjustment of his status, provided an addi-

tional ground for excluding him. This ground was neither urged

nor considered in the hearing before the special inquiry officer. It

has been held that grounds for exclusion presented but not passed

upon at the hearing may he considered on administrative appeal

(United States ex rel, Jelic v. District Director, 106 F.2d 14, 19

(C.A. 2, 1939) ). I feel, however, that it would be unfair for the

Board, on appeal, or the Attorney General, on review, to consider

grounds not even presented at the hearing before the special inquiry

officer. I, therefore, do not consider the additional ground for

exclusion now urged by the Service.

BEFORE THE BOARD

(January 24, 1962)

ORDER: In accordance with the opinion of the Attorney General

of January 22, 1962, hereunder, the case is remanded to the special

inquiry officer for further consideration in accordance with that

opinion, and Matter of S— and B—C—, 9 436.-

557