K-B-N

MATTER of K—B—N-

In SECTION 245 Proceedings

A-10825969

Decided by Regional Commissioner September 14, 1960

Approved by Assistant Commissioner October 3, 1960

Adjustment of status—Section 245, as amended—Knowing false claim to citi-

zenship precludes eligibility as alien whn has heen inspected and admitted_

Discretionary denial based on lack of good faith.

(1) An alien who obtained entry into the United States by knowingly and

falsely claiming United States citizenship is deemed to have entered the

United States without inspection. Hence, he cannot be regarded as having

been "inspected and admitted" within the contemplation of amended sec-

tion 245 of the Immigration and Nationality Act. (See, Matter of T—,

9-478, and Matter of S—, 9-599.)

(2) By virtue of the prior regulations governiu6 the athulluu of a holder

of a certificate of identity under section 503 of the Nationality Act of 1940,

such a person will be found to have been "inspected and admitted" into the

United States. Nevertheless, adjustment of status under section 245 of the

Act will be denied as a matter of discretion in such a case when it is

shown that the applicant obtained his certificate of identity by false testi-

mony and acted with a lack of good faith in subsequent judicial proceedings.

BEFORE THE REGIONAL COMMISSIONER

(September 14, 1960)

DISCUSSION: This case comes forward on applicant's motion to

reconsider denial of application for adjustment of status under sec-

tion 245, as amended. The application was denied by this office on

February 19, 1960, on the ground that the alien was not a bona fide

non imm igrant at the time he entered the United States. Under the

law and regulations in effect on that date the applicant was clearly

ineligible for the benefit sought. The applicant has based his motion

to reopen on the premise that he is now eligible on the existing rec-

ord because the Act of July 14, 1960, amending section 245, removed

the requirement that an applicant establish that he was admitted as

a bona fide nonimmigrant. No new evidence is offered.

Normally, a motion to reopen under these circumstances would

not be granted because an alien whose application was properly de-

nied under the prior law may, if he believes he is eligible under the

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amended law and regulations, file a new application. However, be-

cause of the unusual factors in this case, the motion will be granted

and the application will be reconsidered by this office under the

amended provisions of the law.

Applicant is a 20-year-old married male, native and citizen of

China, who gained entry into the United States on July 13, 1952,

at San Francisco, California, as a temporary visitor. His purpose

in coming to the United States was to appear in the United States

District Court in connection with his pending action to determine

his citizenship under section 503 of the Nationality Act of 1940.

Subsequent to applicant's entry, his case was dismissed by the Court

pursuant to a stipulation entered into by his attorney and the U.S.

Attorney. Applicant has admitted that the certificate of identity

with which he gained entry into the United States was procured by

him through false and misleading statements to the American Con-

sul in Hong Kong, China.

The applicant's fraudulent statements before the American Consul

in connection with the issuance of his document for entry into the

United States were the basis for the finding that he was not a bona

fide nonimmigrant when he entered this country and resulted in the

denial of his application for adjustment.

The instant motion seeks reconsideration of the application based

on a recent amendment to section 245 (providing for adjustment of

status to an alien who was "inspected and admitted or paroled" into

the United States). Counsel submits that the amendment removes

the former requirement that an applicant must establish his admis-

sion was as a "bona fide nonimmigrant" and that his client now

qualifies for the adjustment sought since he was inspected and ad-

mitted to the United States.

While the alien who in good faith applied for and gained entry

into the United States as a United States citizen can be considered

to have been inspected and admitted to the United States for the

purposes of section 245, as amended, it is well established that the

alien who knowingly made a false claim to United States citizenship

for the purpose of evading inspection under the immigration laws

gained entry without inspection (Matter of C—V—, 1-385; Matter

of P , 5 - 220; Matter of E — , 6-220; Matter of E — , 6---275). It

must be determined, therefore, whether the applicant was inspected

and admitted to the United States.

The applicant made a claim to United States citizenship at the

American Consulate General at Hong Kong and on December 13,

1951, a determination was made by that office that he was an alien.

He then instituted an action in the United States District Court,

Northern District of California, for a judgment declaring that he

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was a citizoi, of the United States. He applied for and succeeded

in obtaining a certificate of identity under the provisions of section

503 of the Nationality Act of 1940 at the American Consulate Gen-

eral in Hong Kong for the purpose of entering the United States to

prosecute his case before the Court. On the basis of that certificate

of Identity he was adh-kitteil to the United States at San Francisco,

California, on July 14, 1,952, under the provisions of the then exist-

ing Part 112.2 of Title 8, Code of Federal Regulations. The perti-

nent portion of that regulation stated: "The holder of such a cer-

tificate of identity shall be regarded as an alien until otherwise

finally held by the court in the action for a judgment declaring him

to be a national of the United States. He may be admitted to the

United States as a temporary viRitnr for bus-2.91es* * *." (Empha-

sis supplied.) On the basis of the foregoing, it is concluded that

the applicant was inspected and admitted to the United States.

Counsel is correct in his statement that entry as a bona fide non-

immigrant is not now a requirement for adjustment of status under

the amended section 245. Congress left that former requirement out

of the present statute to obtain more flexibility in the administra-

tion of this section of law. However, the wording "inspected and

admitted" used by Congress in the present statute does not mean

that any alien who was inspected and admitted, whether the ad-

mission was lawful or otherwise, would be accorded the benefits of

this section of law, The Committee report accompanying H. J. 397,

which later became the law, states: ", .. only those aliens who enter

the United States in good faith and without any intention of cir

cumventing quota restrictions of the Immigration and Nationality

Act, or any other law relating to immigration shall be entitled to

the benefits of section 245(a), as amended." (Senate Report No.

1651, 86th Cong., 2nd Sess., p. 27.) It is clear that. Congress did

not intend that aliens who deliberately enter the United States un-

lawfully should receive the benefits of this statute. It is equally

clear that Congress had no intention of limiting the discretionary

authority of the Attorney General in his administration of this

amended statute.

The applicant falsely claimed United States citizenship in pro-

ceedings before an American Consular Officer at Hong Kong in

1951; When that attempt failed' he instituted action in the United

States District Court for the Northern District of California under

a false name for a judgment declaring him to be a citizen of the

United States. By falsely testifying under oath that the court ac-

tion was instituted in good faith, the.applicant was able to obtain

the certificate of identity in the false name and with that fraudulent

certificate he gained entry into the United States. The court action

was dismissed on June 17, 1959, and the applicant has now admitted

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that he testified falocly when ho obtained the certificate of identity

under a false name. In view of the clear showing of a lack of good

faith on the part of the applicant in the entire proceeding outlined

above, it is concluded that this application for the benefits of section

245 does not warrant favorable exercise of the Attorney General's

discretion. The application will be denied.

ORDER: It is ordered that the application be denied.