Interim Decision #2818

Interim Decision #2818

MATTER OF PIMENTEL

In Deportation Proceedings

A-31263818

Decided by Board August 1, 1980 (1) Adjustment of status was denied as a matter of discretion to an alien who entered

into a bigamous marriage to avoid the effect of the immigration laws and to facilitate

his entry as a lawful permanent resident.

(2) Due to the evidence in the record of a bigamous marriage and the concealment of

information concerning his former marriages, the alien failed to meet the statutory

requirement of good moral character pursuant to section 244(a)(1) of the Act, 813.S_C_

1254(a)(1), in order to be eligible for suspension of deportation.

(3) Paragraph 5 of the Temporary Restraining Order of Silva v. Levi, made a permanent

injunction under the Revised Final Judgment Order in Silva v. Bell, No. 76-C4268 (N.D.

III. November 9, 1978), prohibits the. Board of Immigration Appeals from dismissing

an alien's appeal in> a deportation case in which the record of proceedings clearly

shows that the alien is a native of an independent country of the Western;Hemisphere

and has a priority date for the issuance of an immigrant visa between July 1, 1968, and

December 31, 1976, provided he entered the United States prior to March 11, 1977.

(4) An alien whose deportation is barred under Silva v. Bell, No. 76-C4268 (N.D. Ill.

November 9, 1978), still has the right to seek review on appeal to the Board of

Immigration Appeals of all issues involving relief from deportation.

(5) Notwithstanding a finding of ineligibility for suspension of deportation, discretionary denial of adjustment of status and refusal to terminate proceedings, the case will

be remanded since the alien comes within the protection of Silva v. Bell, No. 76-C4268

(N.D. III. November 9, 1978), and the question of a possible grant of voluntary

departure will be considered at a later date.

CHARGES:

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

see.212(a)(14)NUS.C.1182(a)(14)]-14e valid labor certification at time of entry

Sec. 241(a)(1) (8 U.S.C. 1251(a)(1))—Excludable at entry under

sec. 212(a)(20) (8 U.S.C. 1182(a)(20)]—Immigrant not in possession of valid immigrant visa

ON BEHALF OF RESPONDENT: Peter Hirsch for

Antonio C. Martinez, Esquire

3M. West 14th Street

New York, New York 10014

By:

Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

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Interim Decision #2818

In an oral decision dated June 28,1978,' the immigration judge found

the respondent deportable as charged and denied him various forms of

relief from deportation. The respondent has appealed. The case will be

remanded.

The respondent is a 37-year-old married male, native and citizen of

the Dominican Republic, who initially entered the United States for

lawful permanent residence on June 21, 1971. He gained admission

through an immediate relative immigrant visa as the spouse of a

United States citizen, Fidela Carmona. The respondent, through previous counsel, conceded deportability as charged and sought relief in the

form of adjustment of status, suspension of deportation, and voluntary

departure.

The respondent originally married Juana Estella Morillo, a citizen of

the Dominican Republic, on Apri118, 1968, and divorced her on July 10,

1970. He married his second wife, Fidela Carmona, on May 5, 1970.

After obtaining an immigrant visa through his second wife, he

divorced her and remarried his first wife. He then applied for an

immigrant visa for his first wife. The respondent did not report the

true number of his prior marriages when applying for his first wife's

immigrant visa. He also failed to disclose his previous marriage when

he applied for a marriage license and an immigrant visa through his

second wife. The respondent also admitted having conceived a child

with his first wife while still married to his second wife. The immigration judge concluded that the respondent's bigamous marriage to his

second wife and the events that followed were part of a plan to avoid

the effect of the immigration laws and to facilitate his entry as a lawful

permanent resident, which warranted denial of the adjustment in the

exercise of discretion.

The immigration judge determined that the respondent was

statutorily eligible to adjust his status pursuant to section 245 of the

Immigration and Nationality Act, 8 U.S.C. 1255, as a nonpreference

immigrant, based upon an approved labor certification with a priority

date of March 11, 1976. However, he denied relief as a matter of

discretion because he found adverse factors in the record surrounding

the respondent's marriages.

The immigration judge further determined that the respondent did

not meet the statutory requirements for suspension of deportation. See

section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1). The immigration judge

found that the respondent lacked the requisite good moral character

because of his previously described actions and that no extreme hardship had been shown. He further found that the respondent did not

The oral decision of the immigration judge appears to be incorrectly dated and

should read July 21, 1978.

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Interim Decision #2818

warrant relief in the exercise of his discretion.

The immigration judge also denied, on discretionary grounds, the

alternative relief of voluntary departure available under section 244(e)

of the Act, 8 U.S.C. 1254(e). He reached that result after weighing the

respondent's equity of residence in the United States for a period of

time against the adverse factors in the record.

On appeal, the present counsel for the respondent has brought to our

attention that the respondent, by virtue of his March 11, 1976 priority

date for an immigrant visa and his last entry into this country before

March 11, 197'7, is within the protected class of aliens described in the

Temporary Restraining Order in Silva v. Levi? See Matter of Zapata,

Interim Decision 2745 (BIA 1979). By the terms of that order, in cases

such as this, the Board is prohibited from dismissing the alien's

appea1.3 Paragraph 5 of the order provides in relevant part:

5. The Board of Immigration Appeals shall not dismiss an alien's appeal nor sustain

an INS appeal in a deportation case in which the record of proceedings clearly shows

that the alien is a native of an independent country of the Western Hemisphere and

has a priority date for the issuance of an immigrant visa between July 1, 1968, and

December 31, 1976, inclusive ....

There is no indication in this provision of the extent or the manner in

which the Board may review such an appeal. There Is authority for the

immigration judge to consider, as he did, the various forms of relief

advanced by the respondent. Specifically, paragraph 6 of the order

provides:

6. Nothing in this order shall prevent a deportation hearing from being held, nor a

decision from being rendered by a special inquiry officer (Immigration Judge) in any

case in which the alien seeks relief under either section 244(a) or section 245 of the

Immigration and Nationality Act, 8 U.S.C. 1254(a) or 1255, or seeks any other form of

relief from deportation. The enforcement of any resulting decision that may be

unfavorable to the alien is subject to the terms of this order.

We believe that it can be reasonably inferred from paragraph 5 that

a right to apply for relief permits a right of review to this Board if the

decision is adverse to the alien; otherwise, the denial would remain in

effect without further review until the Silva permanent injunction is

The Temporary Restraining Order in Silva v. Levi, No. 76-04268 (N.D. Ill. April 1,

1977) became a permanent injunction under the Revised Final Judgment Order in Silva

v. Bell, No. 76-C4268 (N.D. III, Nov. 9, 1979) enforcing 605 F.2d 978 (7 Cir. 1979). The order,

inter alia, provides that the INS shall not begin, continue, or conclude any efforts to

expel any alien who is a native of an independent country of the Western Hemisphere

and who has a priority date between July 1, 1968, and December 31, 1976, provided he

entered the United States prior to March 11, 1977.

'There are exceptions to this prohibition, but they are not present here. See paras.

5(1), 5(2), and 5(3), Temporary Restraining Order, Silva v. Levi, supra.

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Interim Decision #2818

dissolved.' Moreover, restricting our review would frustrate the purpose of the Silva order which is to quickly and fairly redistribute

immigrant visas to those who qualify for recaptured Cuban visa

numbers. Furthermore, neither party has obj ected to our consideration of the matter on this appeal. We, therefore, find no impediments to

our review of the denial of the respondent's applications for adjustment of status, suspension of deportation, and voluntary departure.

For the same reasons, we are not prevented from considering the

respondent's additional argument for termination of proceedings as a

"form of relief from deportation" within the meaning of paragraph 6

of the Silva order, supra..

The Silva alien should not, however, have to exercise his right of

review at his peril. Regardless of our findings today, the protection

from deportation under Silva still remains in effect. See Silva v. Levi,

para. 6, Temporary Restraining Order, supra.. Our interpretation of

the Silva order merely recognizes the right of review of all issues

involving relief from deportation. The Silva alien may seek review

without the consequences of deportation if he is unsuccessful, while

enabling him to take advantage of immigration benefits if he prevails.

Under this approach, the purposes of paragraphs 5 and 6 can best be

served and their interests reconciled.

We now turn to the merits of the respondent's arguments on appeal.

Initially, the respondent contends that the proceedings below must be

terminated for failure to sustain the charge under section 241(a)(1)

and 212(a)(14) of the Act, 8 U.S.C. 1251(a)(1) and 1182(a)(14), that he

was excludable at entry for failing to have an approved labor certification. Essentially, the respondent argues that he had a duly approved

labor certification upon his last entry, which he claims is the controlling entry under the statute.

The respondent, through previous counsel, had conceded deportability. Nonetheless, we have examined the respondent's argument and

find that it is without merit. The mandate of section 241(a)(1) to

exclude certain aliens at the time of entry applies to any entry into the

United States, whether it is an original entry or a reentry. lA Gordon

and Rosenfield, Immigration Law and Procedures § 4.7(b), at 4-46 (rev.

ed. 1979). Moreoever, "entry" as defined in the Act means "any coming." Section 101(a)(13) of the Act, 8 U.S.C. 1101(a)(13). The term

includes initial as well as subsequent entries. See United States ex. rel

Volpe v. Smith, 289 U.S. 422, 425 (1933); cf. Matter of Sanchez, Interim

Silva v. Soil, Revised Final Judgment Order, supra, at para. 6, prnvidev

(6) The Order of this Court of April I, 1977, is hereby 'made a permanent injunction.

This injunction shall dissolve with the issuance of the last recaptured visa number

or the processing of the last class member, or upon further order of this Court.

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Interim Decision #2818

Decision 2751 at 3 (BIA 1980). On each re-entry made by the respondent, he did not have a valid immigrant visa nor a labor certification. We

find, therefore, that deportability is supported by evidence which is

clear, unequivocal, and convincing. Wooclby v. INS, 385 U.S. 276, 286

(1966).

The respondent next argues that the immigration judge improperly

applied the presumption of fraud created by section 241(c) of the Act, 8

U.S.C. 1251(c), when evaluating the respondent's marriage to the

United States citizen, Fidela Carmona. On the contrary, the immigration judge's finding regarding the respondent's marriage was not

based upon any presumption under section 241(c), or otherwise. The

immigration judge drew reasonable inferences from the suspicious

sequence of events involved; namely, his bigamous marriage to the

United States citizen and acquisition of an immigrant visa through

her, the divorce from her and prompt remarriage to his first spouse,

and his subsequent filing of immigration papers for his first wife. In

addition, the respondent concealed information concerning his former

marriages. When considered together, these factors amply support the

immigration judge's conclusion that the respondent married the

United States citizen in order to facilitate his entry as an immigrant.

Under these circumstances, the denial of adjustment of status was

warranted as a matter of discretion. Matter of Blae,15 I&N Doc. 626 at

32 (A.G. 1976), ord, 556 F.2d 586 (9 Cir. 1977) (table). See Matter of

Arai, 13 I&N Dec. 494, 496 (BIA 1970).

Although the respondent contends that he has been in the United

States over 7 years, he has not shown that he has been a person of good

moral character during that time nor did he show how his deportation

would result in the required extreme hardship to himself or to qualifying family members designated in section 244(a)(1) of the Act. We

concur with the ruling of the immigration judge that the respondent

has failed to sustain his burden of establishing statutory eligibility for

suspension of deportation and that he does not warrant relief as a

matter of discretion. See Matter of Marquez, 15 I&N Dec. 200 (BIA

1975).

As to the immigration judge's denial of voluntary departure to the

respondent, the appeal will be sustained. Due to the remand under

Silva a decision of a grant of voluntary departure will be reserved for

further consideration by the immigration judge at an appropriate

future date.

The respondent finally contends that the immigration judge erred by

admitting into evidence the marriage and divorce certificates when

deportability was already conceded, citing 8 ("1_F_R. 242.16(h). That

regulation presents no such bar to the admissibility of these documents. The documents were admitted into evidence within the sound

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Interim Decision #2818

discretion of the immigration judge. Even if cumulative on the issue of

deportability, they provided original and probative information concerning the respondent's good moral character and his scheme to

circumvent this country's immigration laws, which formed the basis

for the immigration judge's denial of relief from deportation.

Having decided that the proceedings should not be terminated and

that relief from deportation should be denied, we must now dispose of

the case under the mandate of Silva v. Levi, supra. Accordingly, the

case shall be remanded to the immigration judge for further consideration under the terms of the Temporary Restraining Order, now made

a permanent injunction in Silva v. Bell, supra.'

ORDER, Relief in the form of termination of proceedings, adjustment of status, and suspension of deportation is denied.

FURTHER ORDER, The appeal from denial of voluntary departure is sustained.

FURTHER ORDER: The case is remanded to the immigration

judge for disposition under the court order, or modification thereof, of

Silva v. Bell, No. 76-C4268 (N.D. Ill. November 9, 1979).

The record shows that the respondent has no absences from this country since

January 1977, and has a nonpreference visa priority date of March 11, 1976. Ho does not

appear within the exceptions of paragraph 4 of the Silva Temporary Restraining Order.

See Matter of Zapata, supra, at 3-4, 4 n.3. Therefore, no action can be taken to effect his

deportation. Silva v. Levi, supra, Temporary Restraining Order at para. 4.

487