Opinion

R-G

  • 8 I. & N. Dec. 128
Court
Board of Immigration Appeals
Filed
Jul 1, 1958
Status
Published
Cited by
7 cases
Authority
More cited than 89.0%

The opinion

MATTER OF R G

In EXCLUSION Proceedings

A-8945675

Decided by Board September 2, 1958

Excludability Specific statutory ground not required for exclusion of alien

—

who would immediately become deportable upon entry--Deportability — Sec-

tion 241(a)(5) of 1952 act not a continuing ground of deportation when alien

is lawfully admitted for permanent residence.

(1) Notwithstanding lack of a specific statutory ground of exclusion, an alien

who upon entry would immediately become subject to deportation should

be found excludable. (Accord, Matter of V--, 56096/451, 1 I. & N. Dec. 293;

distinguished, Matter of V—, A 8613142, 7 I. & N. Dec. 565.)

-

(2) An alien deportable under section 241 (a ) (5) of the act (whether for

failure to comply with registration provisions of section 265 or because of

conviction under 18 U.S.C. 1546) would not again become deportable by rea-

son of the same conduct when, following departure, he has been lawfully

admitted for permanent residence.

EXCLUDED: Subject to deportation under section 241(a) (5) of the Immigration

and Nationality Act (8 U.S.C. 1251(a) (5) )—Convicted of violation

of 18 U.S.C. 1546.

BEFORE THE BOARD

Discussion: This case is before us on the Regional Commis-

sioner's motion for reopening and reconsideration.

The applicant is a 23-year-old unmarried female, native and

citizen of Mexico. On April 10, 1955, she attempted entry by

representing herself to be G R , a citizen of the United States.

Upon interrogation on the same day, she admitted her alienage.

She pleaded guilty to a violation of 18 U.S.C. 1546 and on May

17, 1955, she was sentenced to imprisonment for 6 months but exe-

cution of the sentence was suspended. She departed from the United

States about 3 days later.

After obtaining an immigrant visa, the applicant on August 21,

1956, applied for admission for permanent residence. The special

inquiry officer was of the opinion that the applicant, if admitted

to the United States, would immediately become deportable under

section 241(a) (5) of the Immigration and Nationality Act (8 U.S.C.

1251 (a) (5)), and he concluded that she was inadmissible for that

reason. An appeal from that decision was dismissed by this Board

on October 23, 1956.

In his decision of September 10, 1956, the special inquiry officer

referred to certain appealing factors. The applicant's 9 brothers

and sisters, 5 of whom were born in the United States, and her

parents all now reside in this country. The alien members of the

family are lawful permanent residents. The special inquiry officer

stated that the applicant did not actually present the birth cer-

tificate of G—R--- on April 10, 1955; that she was encouraged

to attempt the illegal entry by another individual who did most

of the talking to immigration officers; and that, as of the date of

the excluding decision, the Service was no longer urging prosecu-

tion under 18 U.S.C. 1516 in such cases.

The Regional Commissioner's motion for reconsideration cited

our decision in Matter of V — , A-8613142, 7 I. & N. Dec. 565

(1957), and interpreted it to mean that even if an alien would be

subject to deportation proceedings after entry, he should not be ex-

cluded for that reason. It is true that a statement appears in head-

note 3 of that decision that the contention that the alien was ex-

cluable under section 241(c) of the Immigration and Nationality

Act on the theory that if admitted he would immediately become

deportable, was rejected by the Board. Actually, the decision in

that case did not contain any discussion of whether the alien, if

admitted, would immediately become deportable under section 241

(c). We did not state that lack of a specific exclusion ground in

section 212(a) required an alien's admission notwithstanding that

he would immediately become subject to deportation upon entering

the United States; and the contrary has been the long-standing ad-

ministrative practice since Matter of V — , 56096/451, 1 I. & N.

Dec. 293 (1942). We adhere to the views stated there.

The factor which distinguishes Matter of V — , 7 I. & N. Dec.

565, from the case of the applicant is that there was a specific

statutory provision which rendered him inadmissible, that is, sec-

tion 212(a) (19), whereas there is no specific paragraph of section

212(a) which requires the applicant's exclusion. In effect, our hold-

ing there was merely that the language of the exclusion provision

governs in exclusion proceedings and not the language of some

related deportation provision. In view of the foregoing, the ques-

tion in the applicant's case resolves itself into whether she would

be deportable under section 241(a) (5) if admitted to the United

States.

The question stated above was previously considered by us in

Matter of S , A-10555066-7, 7 I. & N. Dec. 536 (1957). That

case involved two aliens who were also deportable under section

241(a) (5) of the Immigration and Nationality Act. We held that a

temporary absence would not defeat deportation but that, following

the lawful admission of the aliens for permanent residence, they

129

would not again be deportable by reason of the acts which had

previously formed the basis for deportation. There the aliens were

deportable under the first clause of paragraph (5) of section 241(a)

which relates to one who "has failed to comply with the provisions

of section 265 * '* *" whereas, the present applicant's deportability

is dependent upon the last clause of the same paragraph which

reads, "has been convicted under section 1546 of title 18 of the

United States Code." We can perceive no logical reason why

different rules should be applied to these two clauses of the same

statutory provision.

There is one statement in Matter of S — , supra, which might,

at first glance, be considered a factor distinguishing it from the

case of this applicant. It is a statement to the effect that if the

respondents should receive permission to reapply for admission

after arrest and deportation, they would not be ineligible for ad-

mission to the United States because of their violation of section

265. The decision itself shows that the respondents would not be

subject to deportation under section 241(a) (5) following their law-

ful admission for permanent residence and that this would be true

regardless of whether they were granted permission to reapply.

The reason the respondents needed permission to reapply was be-

cause the decision contemplated that they would be deported. A

grant of permission to reapply eliminates only section 212(a) (16) or

(17) as a ground of exclusion, and an alien granted such permis-

sion would still be inadmissible if he is excludable on some other

ground. There would be no statutory authority for applying a

broader scope to the grant of permission to reapply. Hence, the

above-mentioned statement in Matter of S — , supra, means, (1)

that the aliens would not be ineligible for admission to the United

States because of their violation of section 265, and (2) that they

will require permission to reapply following their deportation.

For the reasons stated in Matter of S — , supra, we hold that

the applicant will not be deportable under section 241(a) (5) fol-

lowing her lawful admission for permanent residence. Since it was

solely on the basis of her supposed deportability under section

241(a) (5) that the appliCant was excluded and inasmuch as she

appears to be otherwise admissible, we will grant the Regional

Commissioner's motion.

Order: It is ordered that the motion of the Regional Commis-

sioner be granted.

It is further ordered that the order of this Board dated October

23, 1956, be withdrawn; that the alien's appeal from the special in-

quiry officer's order of September 10, 1956, be sustained; and that

she be admitted for permanent residence.

130

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