even though BIA did not discuss claim, its affirmance of decision of the IJ shows that it adequately considered claim where most of the IJ's decision was devoted to discussion of claim
How later courts described this case
- even though BIA did not discuss claim, its affirmance of decision of the IJ shows that it adequately considered claim where most of the IJ's decision was devoted to discussion of claim
- applying this principle sub silentio
Written by the judges who cited it.
The opinion
OAKES, Circuit Judge
(dissenting):
The majority construes an ambiguous, if not conflicting, set of deportation statutes *151 against the alien. I would construe them in his favor, as we are required to do by well-settled doctrine. Fong Haw Tan v. Phelan, 333 U.S. 6,10 , 68 S.Ct. 374 , 92 L.Ed. 433 (1948); Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975). This doctrine derives from a recognition of the severity of the deportation sanction, which has been characterized by the Supreme Court as “a drastic measure and at times the equivalent of banishment or exile.” Fong Haw Tan v. Phelan, supra, 333 U.S. at 10 , 68 S.Ct. at 376 . The majority’s construction, moreover, appears to limit the holding in INS v. Errico, 385 U.S. 214 , 87 S.Ct. 473 , 17 L.Ed.2d 318 (1966), to an extent that the Supreme Court has not in any way countenanced. Accordingly I dissent.
Mr. Frias committed one fraudulent act when he entered this country. He posed as another person, a permanent resident alien, and thereby violated the provisions of 18 U.S.C. § 1546 . The prosecution and conviction under that criminal statute were not based on any other act or violation of immigration law. He admitted his fraud, and he paid for it by serving a prison sentence. The question before us is whether he will also be deported despite the fact, which all concede, that he has established the necessary elements to bring him within the leniency provisions of Section 241(f) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1251 (f). His only criminal act was “seekpng] to enter the United States . by fraud,” as that phrase is used in Section 212(a)(19), 8 U.S.C. § 1182 (a)(19), and he is the husband of an American citizen and the father of two American citizens. The majority holds that the mere charge of violation of another provision of Section 212(a) makes 241(f) inapplicable, even if 241(f) would otherwise apply to the particular fact situation. This is an overly narrow reading of 241(f), one that frustrates the congressional purpose in adopting the forgiveness provisions of this section for the benefit of aliens, otherwise admissible, who have citizen families in the United States. I believe that a fair reading of INS v. Errico, supra, and Reid v. INS, 420 U.S. 619 , 95 S.Ct. 1164 , 43 L.Ed.2d 501 (1975), supports, indeed requires, that Section 241(f) be given a broader interpretation.
As this court noted in Pereira-Barreira v. INS, 523 F.2d 503 , 508 n.5 (2d Cir. 1975), Reid v. INS, supra, 420 U.S. at 630-31 , 95 S.Ct. 1164 , expressly preserved, even while limiting, INS v. Errico, supra. As Judge Timbers said in Pereira-Barreira , “[t]he essence of Errico , as interpreted by Reid , is that aliens deportable under Section 212(a)(19) should not be deprived of the waiver provision of Section 241(f) by the INS’s decision to rely on another section for the deportation.” 523 F.2d at 508 n.5. Mr. Frias’s case is substantially equivalent to that of Errico and Scott in the Errico case and unlike that of the Reids. Like Errico and Scott, Mr. Frias procured entry into the United States by posing as a different kind of alien than he was; he did not evade inspection. Moreover, his familial relationship with an American citizen was established prior to, not after, his fraudulent entry. This fact makes the instant case stronger for relief than either Errico or Reid , in which the fraud preceded any relationship with a citizen. It also emphasizes the purpose of Section 241(f): to preserve and unite existing families. See Persaud v. INS, 537 F.2d 776, 779-80 (3d Cir. 1976)