K

MA1TER OF K—

In DEPORTATION Proceedings

A-8178715

Decided by Board March 9, 1962

Deportability—Entry without inspection by falsely claiming United States cit-

itzenship—Eaemption under section 241(f) of 1952 act, as amended—Effcct

of 8 CFR 242.7a.

(1) Having been granted, under section 212(c), a none pro tune waiver of

inadmissibility based on conviction of a crime involving moral turpitude,

respondent is relieved from deportability by the application of section 241(I)

of the Act with respect to entry without inspection resulting from his false

claim to United States citizenship and the concomitant exercise of section

211(b) to waive the documentary ground.

(2) 8 CFR 242.7a authorizes the favorable exercise of the discretion con-

tained in section 211(b) for persons not otherwise subject to deportation

who are "qualified for an exemption from deportability under section

241 (f)"; that language also covers other deportation grounds flowing di-

rectly from the "fraud or misrepresentation" referred to specifically in sec-

tion 241(f). The section of law under which the deportation charge is laid

is immaterial; in this case section 241(f) exempts the respondent from de-

portation under section 241(a) (2) as an alien who entered without Inspection.

Ca A.soss :

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

at time of entry under section 212(a) (9) as an alien convicted

of cri me.

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

without inspection.

BEFORE THE BOARD

DISCUSSION: The special inquiry officer, on October 25, 1961,

entered an order terminating this proceeding by waiving the de-

portation charges that the respondent was excludable at the time

pf entry as a criminal alien and deportable as one who entered

without inspection (8 U.S.C. 1251(a) (1) and (2)). The order has

been certified to us for review of the discretionary action taken by

the special inquiry officer and for final decision (8 CFR 3.1(c)

and 103.4). The Immigration Service takes no exception to the

order of the special inquiry officer.

585

The respondent, a native and citizen of Poland, male, unmarried,

19 years of age, was admitted to the United States for permanent

residence at the port of New York on December 1, 1951. He was

convicted on October 23, 1959, in the Circuit Court of Oakland

County, Michigan, for the crime of breaking and entering in the

daytime and sentenced to a term of probation of throe years, the first

80 days of which he was confined in the Oakland County Jail.

The respondent last entered the United States through the port of

Detroit, Michigan, on or about December 15, 1960. The immigration

officer permitted him to enter on the strength of his statement that

he was a citizen of the United States. The respondent concedes

that he is deportable as charged under 8 U.S.C. 1251(a) (1) and

( a) (2).

The respondent applied for discretionary relief in the form of

waivers of the deportation charges under the discretion provided

by sections 211(h), 219(c), and 941(f) of the. Tmmigrat ion and .

Nationality Act (8 U.S.C. 1181(b), 1182(c), and 1251(f)). A

nunc pro tanc 2 waive: under section 212(c), supra, of the criminal

ground for exclusion presents no difficulty. The respondent meets

the statutory requirements of this provision of the Immigration

and Nationality Act. He is an alien who was lawfully admitted

far permanent residence on December 1, 1951. His voluntary de-

parture to Canada was for a temporary visit of two hours. He

was returning to a lawful unrelinquished domicile of seven con-

secutive years when he reentered the United States on or about

December 15, 1960. The reports of investigation by the Immigra-

tion and Naturalization Service and the probation officer clearly

indicate that a favorable exercise of the discretion contained in

section 212(c) is warranted in the respondent's case.

The principal issue presented by the case is whether there is a

sound basis in law for the special inquiry officer's conclusion that

the respondent's immigration status can be fully adjusted by

waiving the remaining deportation charge, to wit, "that he last

entered without inspection." Ordinarily, in the case of a surrepti-

tious entry this charge cannot be waived. However, in respondent's

ease he entered without inspection by falsely claiming to the im-

migration officer that he was a citizen of the United States. His

entry, therefore, was by fraud in that he misrepresented his true

nationality.

See Appendix for the text of sections 211(b), 212(c) - and 241(f) of the

Immigration and Nationality Act.

2 Relief may be granted, nun° pro tune, in deportation proceedings where

the charge is based on grounds for exclusion existing at the time of entry if

the exercise of discretion was then available. Matter of P , 7-713; Matter

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of F—, 6 537.

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586

The fact that the "entry withoul inspection" charge flows from

the respondent's misrepresentation of his true nationality raises the

ouestion of whether ha qualifies for an exemption from deporta-

hilitv under a recent amendment, to section 241 of the Immigration

-

and Nationality Art, P.L. 87-301, _let. of September '26, 1261, adds

subsection (if) to the provisions of section 241 (see Appendix).

Section 241(f), insofar as is pertinent here, provides in substance

alien is not subject to deportation on the ground that he

era , nelable at the time of entry as an alien who sought"... entry

Tinted States by fraud or misrepresentation . .." provided

'(en is "otherwise. admissible" and is "the spouse, parent, or a

o f i_united States cifi en 1r of en alien lawfully admitted 1:',77

)1; residence' (S '251(f)).

respondent, 19 years of ne. and -ortmarried, is a "child" of

(c .. resident alien a the quoted term is defined by section

(1)(C) of the immigration and Nationality Act (8 U.S.C.

l(ll(b) (1) (C.3) ). Tie is also an alien who was excludable at the

time of entry as one who sought to enter the United states by fraud

r epresentation. The remaining consideration, insofar as ad-

ing the respondent's immigration status under the provisions of

section 241(f), supra, is a determination of whether the respondent

can qualify as an "otherwise admissible" alien at the time of his last

entry on or about December 15. 1960. If he can, section 241(f)

requires the termination of deportation proceedings in cases where

the alien would have been admissible except for the fact that he

made a misrepresentation to secure entry (Matter of Y , 8 143 —

(=M.A., 1959).

To reach a conclusion as to whether the respondent could qualify

as an "otherwise admissible" alien at the time of entry and therefore,

within the provisions of section 241(f), supra, it is necessary to

review the grounds of inadmissibility which existed at the time of

respondent's last entry. We have already noted that the respond-

ent was inadmissible as a criminal alien under section 212(a) (9)

(8 U.S.C. 1182(a) (9)). We have also noted that the respondent

qualifies for a waiver of his inadmissibility on this ground by an

exercise of the discretion contained in section 212(c) (8 U.S.C.

11N c

There is an additional ground of inadmi s sibility that must be

waived before the respondent can qualify as an "otherwise admis-

sible" alien within the meaning of section 241(f), supra. The

respondent. on the occasion of his last, entry did not present proper

documents and was, therefore, excludable under section 21'.6(a) (20)

of the Immigration and Nationality Act (8 U.S.C. 1182(a) (20)).

The respondent testified that he has an alien registration card

(1-151) but did not have it with him at the time of his last entry ...

587

"I told him (immigration officer) I was born in Detroit" (p. 4

of Exh. 3; R.H. p. 7).

Section 211(b) of the Immigration and Nationality Act (see

Appendix) provides in substance that the Attorney General in his

discretion and "under such conditions as may be by regulations pre-

scribed" may authorize the readmission without documents of "other-

wise admissible" aliens who have been "lawfully admitted for per-

manent residence" and who departed from the United States

"temporarily." 8 CFR 242.7a is the regulation prescribing the con-

ditions under which the Attorney General's discretion may be exer-

cised to authorize an alien's readmission without documents. This

regulation, in addition to the statutory requirement of a previous

lawful admission for permanent residence, limits the alien's tempo-

rary absence to less than one year. It also contains a proviso which

reads:

Provided, That such alien (b) having been otherwise excludable at the time

of entry is with respect thereto qualified for an exemption from deportability

under section 241(f) of he Act, and (c) is not otherwise subject to depor-

tation.

Clause (b) of the proviso presents no problem. Our prior dis-

cussion clearly establishes that he respondent is qualified under

section 241(f) for an exemption from deportation on a charge

laid under section 241(a) (1) (8 U.S.C. 1251(a) (1) in that at

the time of his last entry he was inadmissible under section 212(a)

(19) as an alien who entered by fraud or misrepresentation (8

U.S.C. 1182(a) (19) ). Clause (c) of the proviso, however, limits

the exercise of the discretion contained in section 211(b) of the

Immigration and Nationality Act to aliens who are not "otherwise

subject to deportation." The respondent in this case is "otherwise

subject to deportation" on two charges. He is subject to deporta-

tion under the two categories mentioned in section 241(a) (2), to

wit, an alien who is in the United States in violation of law and

on the charge lodged during the hearing, namely, "entry without

inspection."

We said in Matter of Y , 8 143 (1959), that the predecessor to

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section 241 (f ), namely, section 7 of P.L. 85-316 (Act of September 11,

1957), is remedial legislation and should be interpreted as far as pos-

sible to permit adjustment of status without requiring family separa-

tions. Section 241(f), in setting up an exemption from deportation

for aliens who were excludable at the time of entry by reason of pro-

curing fraudulent documentation or misrepresenting their true status

at the time of entry, refers to "the provisions [plural] of this section

relating to the deportation of aliens within the United States . . ."

Actually, there is only one provision of section 241 concerned with the

deportation of excludable aliens, namely, section 211(a) (1), which

588

provides for the deportation of any alien rho "at the time of entry was

within one or more of the classes of aliens excludable by the law

existing at the time of such entry."

There are, however, other provisions of section 241(a) which

render an alien deportable after entry on charges which flow directly

from the entry by fraud or misrepresentation. The two charges

set, forth in section 241(a) (2) come within this category. Since

section 241 ( f ) describes in general terms aliens whose documenta-

tion or entry was procured by fraud or misrepresentation, we are

of the opinion that it was the intent of Congress to save from

deportation those aliens who were admissible except for the fact

that they had made fraudulent statements regardless of the pro-

vision of the statute under which their deportation is sought. The

section of the law under which the deportation charge is laid is

immaterial. Cf. Matter of S—, 7 715, 717 (B.I.A., 1958).

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Applying the rule to this case, we conclude that 8 CFR 242.7a

presents no bar to exercising the discretion contained in section

211 (b) , supra, thereby removing the deportation charge which flows

from the feet that the respondent last entered without documents

(sections 241(a) (1) and 212(a) (20) of the Immigration and Na-

tionality Act; 8 U.S.C. 1251(a) (1) and 1182(a) (20)). By the

same token, section 241(f) exempts the respondent from deportation

under section 241(a) (2) as an alien who entered without inspection.

The action taken by the special inquiry officer terminating this

proceeding pursuant to the provisions of sections 212(e), 211(b),

and 241(f) of the Immigration and Nationality Act (8 U.S.C.

1182(c), 1181(b) and 1251(f)) should be affirmed. An appropriate

order will be entered.

ORDER: It is directed that the decision and order of the special

inquiry officer dated October 25, 1961, terminating the proceedings

be and the same are hereby affirmed.

APPENDIX

Section 211(b), Immigration and Nationality Act:

Notwithstanding the provisions of section 212(a) (20) of this Act, in such cases

or in such classes of cases and under such conditions as may be by regula-

tions prescribed, otherwise admissible aliens lawfully admitted for permanent

residence who depart from the United States temporarily may be readmitted

to the United States by the Attorney General in his discretion without being

required to obtain a passport, immigrant visa, reentry permit or other docu-

mentation.

Section 212(c), Immigration and Nationality Act:

Aliens lawfully admitted for permanent residence who temporarily proceeded

abroad voluntarily and not under an order of deportation, and who are re-

589

turning to a lawful unrelinquished domicile of seven consecutive years, may

be admitted in the discretion of the Attorney General without regard to the

provisions of paragraph (1) through (25) and paragraphs (30) and (31) of

subsection (a). Nothing contained in this subsection shall limit the authority

of the Attorney General to exercise the discretion vested in him under sec-

tion 211 (b).

Section 241(f), Immigration and Nationality Act:

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 docu-

mentation, 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 lawfully

admitted for permanent residence.

594