Interim Decision #2441

Interim Decision #2441

MATTER OF JAUREGUI

In Deportation Proceedings

A-19901868

Decided by Board October 21, 1975

Respondent is charged with deportability under section 241(a)(1) of the Immigration and

Nationality Act as an alien excludable at entry under Section 212(a)(20) of the Act. •

Nothwithstanding the law of respondent's case as established by the Ninth Circuit is

that the provisions of section 241(f) of the Act, as amended, can be applied to prevent

his deportation on this charge, since the mandate of the Ninth Circuit has not been acted

upon by the Board and since the Service cannot appeal the Board's decision to the Ninth

Circuit, the Board follows the intervening change in controlling law on section 241(f) as

announced by the Supreme Court in Reid v. INS (420 U.S. 619 (1975)) subsequent to the

Ninth Circuit's decision in respondent's case. Hence, respondent is ineligible for the

benefits of section 241(f) (Matter of Minimal/or, 15 L & N. Dec. 353).

CHARGE:

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

entry (ocetion 212(a)(20))_ immigrant not in possession of a

valid inunigrant visa or other valid entry document.

—

ON BEHALF OF RESPONDENT: George Haverstick, Esquire

1150 Union Street, Suite 3

San Diego, California 92101

This case is before us on remand from the United States Court of

Appeals for the Ninth Circuit. The respondent's appeal, which we deem

still to be before us, will once again be dismissed, and we shall reinstate

the order of deportation.

The respondent is a native and citizen of Mexico who entered the

United States upon the presentation of an Alien Registration Receipt

Card (Form 1-151), which was either counterfeit or which belonged to

someone else. He was ordered deported to Mexico after a hearing before

an immigration judge. In a decision dated May 25, 1972, we dismissed

the respondent's appeal from that order of deportation. The only questions now before us involve the applicability of section 241(f) of the

Immigration and Nationality Act to the respondent's situation. .

Section 241(f) provides:

The provisions of this section relating to the deportation of olio= within the United

States on the ground that they were excludable at the time of entry as aliens who have

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Interim Decision #2441

sought to procure, or have procured visas or other documentation, 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.

In our decision of May 25, 1972, we found that section 241(1) did not

prevent the respondent's deportation primarily because the respondent

had not beer. subjected to the "consular screening proCess" as an immigrant. In so holding we relied on the Attorney General's decision in

Matter of Lee, 13 I. & N. Dec. 214, 218 (BIA 1967; A.G. 1969). The

United States Court of Appeals for the Ninth Circuit reversed us,

pointing out that Matter of Lee, supra, had been overruled in Lee Fook

Chuey v. INS, 439 F.2d 244 (C.A. 9, 1971), and that Lee Fook Chuey

was still the :.aw in the Ninth Circuit. The case, however, was remanded

to us in order that we might reach the question of whether the respondent had sufficiently established the requisite misrepresentation prescribed by section 241(f).

Our review of the record convinces us that fraud has been adequately

established for purposes of the application of section 241(f). The respondent briefly testified as to the facts surrounding his entry (Tr. p. 8), and

it was stipulated that the Service records also indicate that the respondent entered upon the presentation of false documents (Tr. p. 4).

The respondent is charged with deportability under section 241(a)(1)

as an alien who was excludable at entry under section 212(a)(20) Under

ordinary circumstances, our finding on the fraud question would result

in the proceedings being terminated, because the law of this case, as

established by the Ninth Circuit, is that section 241(f) can be applied to

prevent the respondent's deportation on this charge.

However, subsequent to the Ninth Circuit's decision in this case, and

while the case was still pending before us, the Supreme Court decided

the case of Raid v. INS, 420 U.S. 619 (1975). We have interpreted Reid

as precluding the application of section 241(f) to the precise charge of

deportability levied against the respondent. Matter of Montemayor, 15

I. & N. Dec. 353 (BIA 1975). The Ninth Circuit appears to be in accord

with our analysis of Reid. See Guel-Perales v. INS, 519 F.2d 1372,

(C.A. 9, 1975), cert. den. 423 U.S. 1057. See also Castro-Guerrero v.

INS, 515 F.2d 615 (C.A. 5, 1975). The question then presented is

whether or not we are bound to follow the mandate of the Ninth Circuit

in this case and thus ignore the change in the state of the law.

The "law of the case" doctrine does not prevent a court which rendered a decision from reexamining its ruling when the same case once

again comes before the court. Messinger v. Anderson, 225 U.S. 436

(1912); Wm. G. Roe & Co. v. Armour & Co., 414 F.2d 862 (C.A. 5, 1969);

Helms Bakeries v. Commissioner of Internal Revenue, 263 F.2d 642

(C.A. 9, 1959), cert. denied, 360 U.S. 903 (1959).. An intervening change

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in controlling authority, such as a Supreme Court decision, has been

deemed a sufficient justification for declining to follow the law of the

case. McComb v. Crane, 174 F.2d 646 (C.A. 5, 1949); Higgins v.

California Prune & Apricot Grower, Inc., 3 F.2d 896 (C.A. 2, 1924).

On occasion, several United States courts of appeals have indicated

that the mandate of a prior decision is nevertheless binding on a lower

court upon remand. City of Seattle v. Puget Sound Power & Light Co.,

15 F.2d 794 (C.A. 9, 1926), cert. denied, 273 U.S. 752 (1927); Higgins v.

California Prune & Apricot Grower, Inc., supra; Poetic American

Fisheries v. Hoof, 291 F. 306 (C.A. 9, 1923), cert. denied, 263 U.S. 712

(1923). However, there is support for the view that a lower court is not

totally precluded from applying a new legal rule announced by a higher

authority, even though the mandate in the case might thereby be

technically ignored. Banco Nacional de Cuba v. Farr, 383 F.2d 166,

177-78 (C.A. 2, 1967), cert. denied, 390 U.S. 956 (1968); petition for

rehearing denied, 390 U.S. 1037 (1968); Sartor v. Arkansas Natural

Gas Co., 29 F. Supp. 956 (W.D. La. 1939) (reversed in Sartor v.

Arkansas Natural Gas Corp., 111 F.2d 772 (CA. 5, 1940), on the

ground that the lower court had misinterpreted the intervening authority).

We are of the opinion that the controlling law on section 241(f) is

contrary to the law of this case. Since the Immigration and Naturalization Service cannot appeal our decision to the Ninth Circuit, we see no

alternative but to apply the law as we perceive it, particularly since the

mandate of the Ninth Circuit has not been acted upon. Moreover, it

seems to us that, in view of its interpretation of Reid, in Guel-P crates v.

INS, supra, the Ninth Circuit would wish to see its interpretation

applied in this case too.

Section 241(f) does not prevent the respondent's deportation on the

charge specified in the order to show cause. Matter of Montemayor,

supra; see Reid v. INS, supra. The appeal will be dismissed and the

respondent will be ordered deported to Mexicti.

ORDER: The respondent's appeal is dismissed.

Further order: The respondent shall be deported from the United

States to Mexico on the charge contained in the order to show cause.

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