11AunLE or DeG-- cr AL.

11AunLE or DeG-- cr AL.

In EXCLUSION Proceedings

A-10644334

A-10847616

A-11404156

A-11097105

Decide

Board Stay 14, 1959

Comtni9sionet's Motion ,Inne 15, 1959

Board. Decision Angit9t 24, 1950

Decided by the Attorney General December 14, 1059

Waiver of excludabillty—Adrunce exercise of sections 5 and 7, Act of September

11, 1957, not authorized in exclusion proceedings rihcre progent excludability

is established.

Advance svaircrr of inadmissibility under sections 5 and 7 of Act of September 11, 1057 are not authorized to fccnitate future admission of aliens

ordered excluded. Disposition of waiver requests must await room to foreign territory and compliance with procedure established by 8 CFI; 212.7(a).

EXCLUDABLE:

(—Act of 1552--Sentiou 212(a(12) [t U.S.C. 1182(a)(22)1—Em

gaged ln prostitution.

(DeV—)--Act of 1992 - goction 212(a) (12) [8 U.S.C. 1182(a) (12)1—Engaged in prostitution.

Act of 1952—Section 212(0 (19) [8 U.S.C. 1782(0) (10) (—Visa

by fraud or willful misrepresentation.

Act of 1 1352--Section 212(a) (20) [8 U.S.C. 1182(a)(20)j—No

valid visa.

(DeR—)—Act of 1552—Section 212(a) (19) (8 U.S.C. 1182(a) (19)1—Procuring documentation by fraud or willful misrepresentation.

(11—) —Act of 1552—Section 212(a) (9) [8 U.S.C. 1182(a) (0)1—Convicted of a crime involving moral turpitude.

Act of 3952—Section 212(a) (20) [8 U.S.C. 1382(a) (20)I—No

valid visa.

(DeG

BEFORE TAE BOARD

(Slay 14, 1059)

Discussion : This is a motion by the Assistant Commissioner,

Inspections, requesting that the Board reconsider and withdraw

that portion of the order entered in each case which granted the

particular applicant certain discretionary relief under Public Law

325

85-316 (Act of September 11, 1957). In each case the applicants

are physically in the United States and must leave to obtain visas

so that they may rejoin their families in the United States. The

discretionary relief was granted to expedite the issuance of visas

and the consequent return to the United States. The issue is

whether the Board had power to grant the discretionary relief.

Sections 5 and 7 of Public Law 85 - 316 authorize the waiver of certain grounds which prevent the issuance of visas and which bar

entry into the United State.. The motion will 1, denied.

Each of the applicants_ is_ excludable for the relating reasons

stated in the caption. The facts in the individual cases have been

fully set forth in previous Orders. The situations are not too dissimilar. To simplify matters, we shall briefly relate the facts of

only the first case (DeG—). DeG , a 27-year-old female, is a

native and citizen of Mexico. She is married to a citizen of the

United States, and there is a United States citizen child of the

union. The applicant was a prostitute in Mexico for periods of

various duration from 1951 to 1953. On March 9, 1956, she received

nunquota visa. She was ineligible for the issuance of this visa,

because she had engaged in prostitution (section 212(a) (12), Immigration and Nationality Act; 8 U.S.C. 1182(a) (12)). Her unfortunate employment was known neither to the consul when ho issued

the visa nor to the Service when she was admitted for permanent

residence on March 9, 1956. After her admission, the applicant

made her home in the United States. She left for a short visit to

Mexico. She is now reapplying for admission. She was found

excludable because she had engaged in prostitution. She applied

for discretionary relief under Public Law 85-316. The special inquiry officer considered the following matters: Applicant had been

a resident of the United States for several years; her husband and

child are citizens of the United States; her husband, an honorably

discharged veteran, had served in the army four years; the family

is buying a home; extreme hardship would result if the applicant

were excluded; and a check of appropriate government records

failed to reveal any derogatory information. The special inquiry

officer found that the applicant's admission Would not be contrary

to the national welfare, safety or security of the United States. He

ordered her admission as a returning re ,,irlent nmlor section 5 of

Public Law 85 - 316, waiving the inadmissibility arising out of the

fact that she had been a prostitute. The special inquiry officer certified the case to this Board for consideration. The Board found

that the visa issued in 1956 could not be validated because it had

been issued prior to September 11, 1957, when Public Law 85-316

had been enacted; that applicant had never been lawfully admitted

for permanent residence and that she needed a valid visa to enter.

326

The Board used Public Law 85-316 to grant the applicant an advance waiver of the ground of inadmissibility so that when she applied again for a visa, expeditious action could be taken upon her

application for the vie,

The Service position, while not stated so bluntly, is that the Board

has no authority to grant advance waivers of grounds of inadmissibility under sections 5 and 7 of Public Law 85-316 (8 U.S.C. 1182b,

1251a, 1959 Pocket Part), for to do so is contrary to regulations

(8 CFR 212.7) and the intent of the statute.

The contention that the Board is without authority in exclusion

proceedings to grant relief under Public Law 85-316 is new. It

was not advanced when these cases were previously before us.

The Attorney General has conferred his authority under the immigration laws upon this Board to be used "as is appropriate cud

necessary for the disposition of the case" before the Board, except

when there is a "specific limitation" on the Board's power (8 CFR

3.1(d) (1)). There is no specific limitation preventing the Board

from exercising relief under sections 5 and 7 in an exclusion proceeding. It has always been considered appropriate and necessary

in the disposition of a case to Give all relief possible to expedite the

return of an alien in a proper case (see orders in Matter of 0

0—, 4 I. & N. Dec. 211 (exclusion proceedings); Matter of

B—, 3 I. & N. Dec. 343 (application for advance exercise of

relief) ; Matter of H—, 3 1. & N. Dec. 784 (preexaminatiort proceedings) ; Matter of A , 2 1. & N. Dec. 459 (deportation proceedings)). The instant cases were properly before the Board on

appeal. We believe that the Board had authority to act (Matter of

N. Dec. 1; Matter of S N

6 I. & N. Dee. 73;

B ,

Matter of N , 6 I. & N. Dec. 321; Matter of M , 5 I. & N.

Doo. 595).

The Commissioner's issuance of regulations concerning Public

Law 85-316 (8 CFR 212.7) should not confuse the issue. The Attorney General has delegated authority under immigration laws to

the Commissioner and has authorized the Commissioner to issue

regulations to carry out his responsibilities. However, the delegation of authority states that the Commissioner has no authority to

divest the Attorney General or the Board of its power, privileges,

and duties (S CFR 2.1). Under his authority, the Commissioner

has issued S CFR 212.7 providing that persons living abroad should

submit applications for relief under motions 5 and 7 to the, ennRul

who is to forward the applications to the Service for decision.

Bearing in mind the extent of the grant of power to the Board and

the restrictions upon the Commissioner's power, it is clear that the

regulation issued by the Commissioner should no more be read to

divest the Board of authority than it should be read to divest the

Attorney General of authority. The regulation should be read in

327

its natural meaning as governing relations between applicants for

relief and the Service. Otherwise, it is being construed as giving

only the Service the right to give relief under sections 5 and 7.

Since in exclusion proceedings the Board has the power to grant

or deny relief applied for under sections 5 and 7, and no specific

reason for denying the applications of any of the individuals involved herein has been advanced, no change need be made in any of

the orders.

The remainder of the Service contentions have nothing to do with

the power of the Board to act but are general statements as to the

desirability of the Board taking the action it did. We shall comment briefly upon these contentions. The Service believes that in

granting relief in exclusion proceedings, the Board may overlook

grounds of inadmissibility which the consul may find to exist. Of

course, this possibility exists, as it does when the Service grants

advance relief under sections 5 and 7 in preexamination proceedings

in the United States. However, it is not an important consideration.

Exclusion proceedings (preexamination is considered of this nature)

are held before skilled employees who are interested in determining

whether or not an alien is inadmissible.. If some ground of inadmissibility escapes them which is discovered by the consul, the

waiver may be enlarged by the Service or the Board to ;tiebacdo the

ground of inadmissibility discovered, if the ground is one covered

by law and it is desirable to do so. If the ground of inadmissibility

disclosed cannot he waived, then, of course, the consul will not issue

a visa. One thing is clear. A grant of advance relief by-the-Board

or by the Service does not compel the consul to„issue. visa. That

IS a matter solely within his discretion. (A ground of inadmissibility may not he discovered until after the applicant has received

his visa, and appears before the Service; then, or in a case where no

visa is required, the Service or the Board may grant nine pro tune

relief under sections 5 and 7 (Matter of I. St N. Dec. 713)).

The Service is concerned with the thought that the Board may

make decisions without information which may be in the possession

of the consul. (All four of the applicants concerned here were

issued visas by an American consul. Since they were given favorable, consideration, it would appear extremely unlikely that he will

be in possession of any derogatory information which would be of

value in considering the advisability of granting waivers.) What

is done by the Board in granting an advance waiver in an exclusion

proceeding does not differ from the action of the Service itself in

granting the same relief in preexamination proceedings. In each

of the instant cases the usual Service neighborhood investigation

and check of appropriate records have been made. The basis for the

Service conclusion that the consul will 'do more than forward the

328

application to the Service, which the regulations require him to do,

is not set forth.

Extensive administrative experience using similar relief makes it

clear that the Board's action is efficient, effective, and will not result

in harm to the nation, or in the admission of undesirable aliens. An

application granted in exclusion proceedings, just as one granted in

preexamination proceedings by the Service, should reduce considerably the time involved in obtaining the issuance of a visa. Moreover, the individuals who are benefited by Board action in most

cases would be persons who had considerable periods of residence in

the United States and are under an order requiring their separation

from their homes and families. The fear of permanent separation

would be strong. It will undoubtedly do much to relieve this fear,

if, in deserving cases, favorable action is promptly taken. The intent of the law is to reunite deserving families. The action of the

Board speeds this end.

In summary, the practical reasons advanced by the Assistant Commissioner are no more potent here than if they were advanced in a

preexamination proceeding. Basically, the Board has power to act;

the action taken was in the exercise of sound discretion.

Order: It is ordered that the motion be and the same is hereby

denied.

BEFORE THE CENTRAL OFFICE

(June 15, 1959)

Discussion: In each of the instant exclusion proceedings, the

Board has affirmed excludability but has granted an advance waiver

of sections 5 and 7 of the Act of September 11, 1957, if the alien

applies for admission in possession of a valid visa issued within

6 months.

Involved is an interpretation of 8 CF11 212.7(a) which states, in

pertinent part: "An alien who is excludable and seeks a waiver

under section tl or 7 of the Act of September 11, 1957, shall file an

application on Form 1-601 at the consular office considering the application for a visa for transmittal to the Service for decision. The

applicant shall be notified of the decision and if the application is

denied of the reasons therefor and of his right to appeal in accordance with the provisions of Part 103 of this chapter." (Emphasis

supplied.)

In its order denying the Service motion to reconsider, the Board

has taken the position that its authority to take any action necessary

for disposition of a case before it,' overrides the specific language

8 CFR 3.1 Board of Immigration Appeals—

* (d) Powers of the

Board—(1) Generally. Subject to any specific limitation prescribed by this

chapter, in considering and determining cases before it as provided in this

part the Board shall exercise such discretion and authority conferred upon

the Attorney General by law as is appropriate and necessary for the disposition of the case * * *. (Emphasis supplied.)

329

562713-51-23

of the regulation; that the regulation can only govern relations

between the applicants and the Service, and has no applicability to

the Board. The Service, on the other hand, asserts that the Board

action is in no way necessary to disposition of the cases before it

since in any event, as the Board has recognized, the aliens must

proceed to the United States consul for visas. The Skrvice takes

the view that an orderly process has been evolved with concurrence

of the Department of State whereby an application for section 5 or

esetiun 7 relief is first received at the consulate and, if naeassary, is

forwarded to the Service for action on the basis of all available

information; that the ruling of the Board not only is unnecessary

to disposition of the sass, and contrary to the regulation, but, for

reasons set forth in the Service motion to reconsider, may actually

inconvenience the alien, the Service, and the Department of State.

It will be noted that these aliens are all natives and citizens of

Mexico. Their position in this respect is similar to that of the sub, A 10517426, Int. Dec. No. 978 (Atty.

ject in Mato. of

Gen., Feb. 26, 1959). In that case the Board, in its original order,

here re specting separation of families and expediting the issuance of visas.

attempted to advance precisely the argument advanced

The arguments have no more merit here than they did in that case,

, dUpy'CG, these aliens must apply to rt

since, as in Matter of Da?

United States consul for visas.

The Board has also attempted to draw an analogy to the procedure followed by the Service in preexamination proceedings.

Under 8 CFR 235a, the Service makes a finding only as to prima

facie eligibility for section 5 or 'section 7 relief in connection with

granting an application for the privilege

prearaminneican This

enables the United States consul in Canada to entertain the initial

application for a visa. If eligible in all other respects, the alien is

required to file with the consul the application called for by 8 CFR

212.7. This application is forwarded to the Service and considered

and passed upon at such time as the alien is actually preexamined.

The procedure followed by the Service in preexamination is in all

respects consistent with the position urged in the instant case—

namely, that it is improper for either the Service or the Board to

make an unnecessary advance adjudication in connection with a matter which must initially be passed upon by another governmental

agency.

For the reasons set forth in the Service motion of February 25,

1959, it is submitted that the decision is in error.

Request is hereby made that pursuant to the provisions of 8 CFR

3.1(h) (1) (iH), the instant cases be referred to the Attorney General

for review.

330

BEFORE THE BOARD

(August 24, 1959)

Discussion: In each of the cases in question, the Board has

granted under MCI-101W 5 and '7 of Public LOW C5-316 discretionary

relief of a nature it has as a practice of long standing granted under

similar circumstances.' The Service is of the opinion that the Board

is shorn of its usual power because of the regulation found at S CFR

212.7. This regulation of the Service concerns the manner of transmitting applications for relief under section 5 or 7 by one whose

application for a visa is being considered at a consular office. 2 -We

rejected - the Service construction of its regulation feelpg theiit it

would invade the province of the Attorney General who alone has

administrative power to restrict and change functions of the Board.

The Board nuts for the Attorney - General. The deci sions of this

Board are binding precedents upon the Service. The Service cannot

by regulation take away or change the functions of this Board, or

nullify its precedents. Otherwise, independent administrative review of actions vitally affecting aliens who are closely related to

United States citizens or lawfully resident aliens could be jeopar

dized or seriously curtailed.

Cases arising under the immigration laws present unusual and

varied factual situations. The greatest degree of administrative

flexibility is required to deal with such situations equitably and

fairly. It is the freedom permitted to thin Boned that has enabled

the Board to do its job of independent administrative review in a

"fair and equitable" manner.° It would seriously hamper the ability

So normal is the exercise of such power and so well established is the

practice that the special inquiry slicer who considered the issue of advance

relief granted it without even discussing the right to exercise relief. (Two

special inquiry officers terminated proceedings after improperly granting waivers. one 011lber tletantl relief. on the gronnel that the applicant sot eligible since her visa had not been issued after September 11, 1057. He did not

consider the availability of advance relief.)

a The aliens in the instant rases do sot have applications for visas pending.

They were issued visas before September 11, 1957. They applied for relief

-under Public Law 85-316 in the exclusion proceedings on the proper form.

a Comment of Committee on the Judiciary, H.R. No. 1365, 82d Cong., 2d Sees.,

pp. 35-6, February 14, 1952; C.S. Code Congressional and Administrative News,

1952, pp. 1687-8;

Board of Immigration ppeofs.—In the course of activities conducted in

pursuance of section 136 of the Legislative Reorganization Art of 1946 (60

Stat. 832), the committee gained good knowledge of the practices, procedures,

and decisions of the Board of Immigration Appeals established in the Department of Justice. It is believed that the Board has wen served its purpose

and has greatly contributed to a fair and equitable administration of justice

in immigration, nationality, and naturalization cases. Refraining at this time

from proposing to change the status of the Board into a statutory body, the

committee is of the opinion that the Attorney General should not niter in any

way the structure and functions of the Board.

-331

of the Board to minimize hardship if its hands were tied by rigid

concepts?

Several collateral matters raised by the motion require connnent.

The motion appears to indicate that by the regulation there has

been a redelegation to the Department of State of the power and

responsibility to pass upon an application for a waiver under section

5 or 7 of Public Law 85-316 (see, penultimate paragraph of discussion of the Service request for certification). A review of the

administrative practice of the Department of State reveals that it

does not contemplate the making of recommendations or joint action

with the Attorney General. Therefore, contrary to the implications

of the motion the Department of State does not page upon the request. It assists the alien who is an applicant for a visa to fill out

the form asking the Service to grant a waiver, and then without

making a recommendation, forwards the form to the Service. (See

letter from Department of State, Appendix "B.")

It may be desirable to have applications from those abroad filed

through the Department of State. However, such action is not

required by law, and it is not essential.° At present it is routine to

grant relief under the very law in question without any request

being filed with the Department of State. Aliens who entered with

visas issued oiler Public Low 85-310 became effective need not file

applications for relief under sections 5 and 7 with the consul. They

apply directly to the Service in exclusion proceedings. Aliens who

apply for adjustment of status under section 215 of the Immigration and Nationality Act apply directly to the Service. Aliens who

apply for creation of record of lawful entry under section 249 of

the Immigration and Nationality Act apply directly to the Service.

Aliens in preexamination proceedings file directly with the Service!'

Many applications for similar relief have been granted under the

7th proviso to section 3 of the Immigration Act of 1917 and under

section 212(c) of the Immigration and Nationality Act on the basis

of requests made directly to the Service.

In our opinion the motion in at least two aspects furnishes inaccurate information as to the procedure used in applying for section

5 or 7 relief. As we have indicated, the motion indicates that the

4 We have previously rejected a Service contention that its regulation as to

a procedural matter can abate the authority of the Board sitting in independent review of Service action in cases properly before it (unreported Matter of

A-4218988, Dec. 1, 1955, Appendix "A").

5 Service investigations were made in each case involved here. Information

of any importance which is available to the Department of State would have

been available to the Service in its investigation.

Preesamination, abolished as of June 30, 1959, was a device which enabled

an alien in the United States to enter Canada to apply for a United States

immigrant visa.

332

Department of State passes upon an application. In fact, the Department merely transmits the application without recommendation.

We believe the motion is also inaccurate in regard to what occurred

in a preexamination proceeding. The motion explains that in preexamination proceedings an alien in the United States who desires

to apply for relief under sections 5 and 7 is required to file an

application with the consul abroad and that the consul in turn sends

the application to the Service for consideration. An examination

of the pertinent regulations (8 CFR 235a) fails to reveal a reference

to such a round-about procedure. The Department of State does not

know of euch a practice (Appendix "B"). Ea sed upon review of

the cases which have been brought before us, it is quite clear to us

that an applicant for preexamination who applied for the benefits

of section 5 or 7 applied to the Service and to the Service only, and

that the Service approved or denied the application without any

intervention by the Department of State.

, A - 10547426, Int. Dec. No. 978, decided by the

Hatter of DeF

Attorney General on February 26, 1959, is quoted in the motion in

support of the Service view that its regulation as to procedure

prevents the Board from acting as it normally could. We understand dira66er of Do , supra, to bo e statement by the Attorney

General that section 5 or 7 is available to an alien making application for admission to the United States and that it is not available

to an alien in the United States wrileRc he is eligible fnr preesainina.

tion—a procedure contemplating the departure from and reentry of

an alien into the United States. Since the aliens here are applicants

for admission to the United States, obviously they are eligible in

this proceeding to apply for the relief.

Perhaps we are not clear as to the manner in which the Service

interprets Matter of DeF , supra, since after it was decided the

Service followed policies which in our opinion are contrary to the

Attorney General's ruling. The Attorney General, relying upon

several court cases, held that an application for relief under section

5 or the pertinent part of section 7 could be made only in exclusion

proceedings. Nevertheless, after this finding was handed down the

Service issued or continued in effect regulations permitting an alien

in the United States to apply for relief although exclusion proceed-

ings are not involved and the alien will never leave the United

States to apply for a visa and will never apply for admission. The

alien. 'need not even be eligible for preevanninatton (8 CFR. 945;

8 CFR 249.1, 24 F. R. 4906, June 17, 1959).

The Service action appears contrary to Matter of DeF

, supra,

in another regard. Matter of DeF—, supra, states that it is the

intent of Congress that sections 5 and 7 were to be applied prospectively only, i.e., to situations which arise after September 11, 1957.

333

This is so because it was found that Congress contemplated the

making of an application for a visa and that the application was

to be made alter Ihe date of Public Law 61-010. The Service, however, by its regulations makes possible the grant of relief to an alien

in the United States who entered long before September 11, 1957,

and who may even have entered without a visa (Matte.e of M

A-10216535, Int. Dec. No. 990). If the Service is correct in its

actions, then Matter of Deg—, supra, unfairly prevents the same

relief being given to the instant aliens. If the Service is correct in

its actions, proceedings should be terminated in each of these cases,

for the sole barrier to the eligibility for relief in the instant cases is

holding in Matter of DeF—, supra, that the law contemplates the

making of an application for a visa titter September 11,1967 -. Were

it not for this interpretation, each of these aliens who already has

obtained a visa could be granted a waiver under section 5 or 7 and

admitted for permanent residence.

Our discussion of the collateral matter should not obscure the

fundamental issue. The Board acting in accordance with wellPstahlished precedents has exercised the Attorney General's power

in matters properly before it. The Service is without authority to

deprive the Board of this power either directly or indirectly.

Order: To accordance with provisions of 8 CFR 3.1(h) (1) (iii),

these cases are refrred to the Attorney General for review.

BEFORE THE ATTORNEY GENERAL

(December 13, 1959)

Order: The orders excluding the aliens in the above-described

cases are approved, but that portion in each of the Board's orders

which directs admission of the aliens pursuant to an exercise of the

discretion contained in sections 5 and 7 of the Act of September 11,

1957, is hereby disapproVed. Exclusion of the aliens is without

prejudice to a further application for an exercise of discretion, in

accordance with the terms of 8 CFR 212.7(a), provided an application for admission is made with a valid visa issued within 6 months

from the date of this order or the date of any extensions authorized

by the appropriate district director.

. The aliens in these cases have all obtained visas to enter the

United States, but charges subsequently developed have been sustained against them. As a result they are now subject to exclusion.

On the basis of the record presented, the Board has ordered the

aliens excluded but has considered the cases appropriate for an

advance waiver of the grounds of exclusion through an exercise of

the discretion authorized by sections 5 and 7 of the Act of Septem334

her 11, 1957 (Public Law 85-316) and has so ordered. I have con-

cluded that the latter orders should be overruled.

The question presented by the cases involves the authority of the

Board to grant a waiver in light of the provisions of 8 Chili 212.7

(a), which requires that an application be made with the Service in

accordance with established procedures.

The Board's delegated authority, which is as broad as the Attorney General's in the areas which are under its jurisdiction, is at the

same time subject to specific limitations and falls short of the

authority it has attempted to exercise in these cases. The limits of

the Board's jurisdiction are described in 8 CFR

.

Decisions

involving an application for an exercise of the discretionary authority contained in sections 5 and 7 of the Act of September 11,

ore not among the desiqinns titers listed to which its appellate juris

diction extends. Accordingly, the jurisdiction of the Board is not

established, and it must therefore be said Pi - re:tide in the Commis"'Sioner of the Immigration and Naturalization Service pursuant to

the delegation made by 8 CFE 2.1. Disposition of the request for

a waiver in the instant cases must, therefore, proceed in accordance

with the provisions of S CPR 212.7(a).

It is true as urged that, the Board's powers embrace the exercise

of such discretion and authority as is appropriate and necessary for

the disposition of the case," but these too are subject to the limitations prescribed by the regulationo and tiro confined to the jurisdiction in which the Board is authorized to operate.

APPENDIX "A"

U.S. DEPARTMENT OF JUSTICE

BOARD Or IMMIGRATION APPEALS

Dec. 1-1955

File: A-1218988—E1 Paso

IN THE MATTER or N

R

IN EXCLUSION PROCEEDINGS

EXCLUDABLE: Seetio6 212(a) (26(B)—No nonimmigrant visa or

border crossing card.

Section 212(a) (2) —Departed from the United States

to avoid military service.

The appellant is a 29-year-old married male, a native and citizen

of Mexico who applied for admission to the United States on June

2, 1955, as a visitor for the purpose of buying necessities for himself and his family. He was excluded on the ground that he was

335

without nonimmigrant documents and on the ground that he had

departed from the United States and remained outside the United

States to avoid training or service in the Armed Forces (section

212(a) (22) of the Immigration and Nationality Act),

We affirmed the excluding decision. However, we found that the

appellant's need to enter the United States was sufficient to require

the grant of relief to him. To meet these needs, admission for short

visits over a period of one year was authorized, if he were otherwise

admissible than as one who had dapart,1 from and remained outside

the jurisdiction of the United States to avoid military service. This

action was taken under the authority contained in section 212(d) (3)

of the Immigration and Nationality Act.

Motion is now made by the Service for a reconsideration of our

action. It is asked that we withdraw the relief granted and dismiss

the appellant's appeal. The motion states that it is improper to

grant the alien discretionary relief because he had not applied for

such relief; because he had not paid a $25 fee required of applicants

for such relief and because the facts do not justify the granting of

relief.

The alien could have properly applied, either orally or in writing,

for relief under section 212(d) (3) before the special inquiry officer

(5 crp. 912R9) TTe would have paid a $25.00 fee when he made

his application for relief and then if he were ordered excluded and

relief was denied, he could have filed an appeal which would have

brought before us, both the issue of his admissibility and the request

for discretionary relief.'

Because he did not apply for the relief and pay the fee of $21.00

for filing the application,' the Service desires that his case be returned to the field, with the bare notification to the alien that he was

excluded. Apparently, he will then learn in some manner that he

may make application for discretionary relief under section 212

(d) (3) of the act; he will be required to submit an application for

such relief and pay the $25 fee for filing it. The application will

then be acted upon by the district director having administrative

jurisdiction over the place where the examination is being conducted. If the district director denies the application, appeal may

then be taken to this Board, upon payment of an appeal fee of

$10.00. Such circuitous action is unnecessary and of beheld neither

to the Government nor the alien, and in the circumstances before

us, would be unworthy conduct.

1 The alien did pay a $25 fee for Oling his appeal from the excluding

decision.

:There is no showing that he has ever been asked to pay this fee or advised at the hearing of his right to ask for relief.

336

The action in remanding this case to the field to apply formally

for relief is unnecessary because we have the power to grant all

relief that is necessary to make disposition of this case (8 CFR 6.1

(d) see Matto. of S—A7

6 I. S..- N. Dec. 73).

Furthermore, under the circumstances of this case, to make the

alien renew his efforts to enter the United States after having

waited so long for a determination would not befit the government.

An analysis of the facts before us reveals that when the alien applied for admission, he was interested not in gaining immediate

entry, but in determining how he could enter the United States

when the time came. The alien, who is a native and citizen of

Mexico, would be admissible to the United States as a temporary

visitor only if he were in possession of United States documents

entitling him to enter as a visitor.

Ha has sea meals doonanznta and

makes ass claim to having such documents. He does not claim that

lee is not required to be in possession of documents. It is inconceivable that with the education possessed by the alien and the fact

that he is a resident of a border town adjoining a port of entry, he

would have made application for permission to enter the United

States without being in possession of documents, unless he had some

motive other than in seeking immediate admission. The fact that

wider these circumstances the appellant submitted his case to a

special inquiry officer reveals that he did not have the intention of

attempting to enter the United States at the moment. Fiis intention

could have been only to determine what status he would have if he

applied for admission in poSsession of appropriate documents. The

appellant's need to enter the United States to purchase necessities

reveals that his desire to know his status was not the result of a

thirst for theoretical information by one who did not intend to

enter the T_Inited States. His submission to the immigration authorities was a practical way (apparently often suggested by Service

personnel) for determining his status as one who desired to enter

the United States. Since it is obvious that the alien was primarily

interested in determining how he could enter the United States to

take care of the needs of his family, we believe it would have been

most appropriate to inform this alien at his hearing of his right to

apply for discretionary relief to waive the ground of inadmissibility

which had been found to exist (8 CFR 212.82). In the absence of

such advice to the alien, under the circumstances existing here, we

do not believe that either he or the Government should be compelled

to go through the formalities the Service requires to bring this

matter to the attention of the Board. We rule, therefore, that the

alien's action in submitting himself to the authorities for a determination of his immigration status, under the circumstances here

found, carried with it a request for such relief as might be neces337

sary to make his admission possible. The failure of the Government

to inform him that an express application was required and that a

special fee had to he petit will not deprive him of his right to have

a ruling upon his application which was submitted so many months

ago.

As to the failure to pay the $25 fee for filing an application for

discretionary relief, this is a matter for the Service to take up with

the alien. We do not act as a collection agent for the Service in

these matters.

The Service contends that the reason for the alien desiring to

enter the United States—to buy necessities for himself and his family—is not urgent or compelling. The Service and this Board have

both, in the pant, taken administrative notice that it would nosh, an

undue hardship upon the aliens residing in Mexico near the border

if they were not permitted to enter the United States to obtain ordinary necessities. In answer to the Service motion, the alien has

supplied the additional information that he will accompany his wife

to a doctor in the United States as she cannot speak English well.

Order: It is ordered that the motion be and the same is hereby

denied.

APPENDIX "B"

DEPARTMENT OF STATE.

TV (mh.ingtoh,, July 17, 1959.

In reply refer to TO 150.1/6-2659

DEAR Mu. FINUCANE

In response to your letter of June 26, 1959 In re Defh----, File No.

A-10644351, I am glad to provide you the following information:

I. In an ordinary case of an alien abroad who has been refused a

visa by a consular officer and claims eligibility to a waiver, the consular officer provides the alien with a Form 1-601 inserting in it the

technical information regarding the visa refusal. The alien then

completes the form and returns it to the consular officer who forwards it to the appropriate office of the Immigration and Naturalization Service without attachments or recommendation. The INS

thereafter - makes suitable arrangements Cl.111,j/1,4111 with the circum

stances of the case to interview the alien and to consult such files

concerning the alien as may be in the consular office.

2. In the case of an alien in the United States who has been admitted to the preexamination privilege, the consular officer on being

notified by the INS or on ascertaining from some other source that

the alien would be ineligible- to receive a visa on grounds that could

338

be overcome by a waiver under section 5 or I makes an appointment

for formal application by the alien subject to the extension of a

waiver by the INS. Where the consular officer has the information,

he rues provide the rdion with a Form T-501 in which the technical

data are filled out. Such form is then completed by the alien and

submitted direct to the INS. In other cases, the alien obtains :a

Form 1-601 from the INS and submits it direct to the INS. The

consular officer learns that a waiver has been granted the alien

when he receives a copy of the order embodying the waiver. Such

orders are sometimes mailed to the consular officer and sometimes

are brought by the alien along with his other documents when he

comes abroad to the consular office. When there is a refusal of the

waiver by the INS, the consular officer learns of that refusal sometimes by written communication from the INS end oomatimes merely

because the alien fails to appear for his appointment.

It is hoped that the foregoing information is satisfactory for your

needs.

Sincerely yours,

/s/ Robert J. Cavanaugh,

ROBERT J. CAVANAUGH,

Acting Director, Visa Office.

Mr. THOMAS G. FE■TITCANE,

Chairman, Board of Immigration Appeals,

Department of Justice.

339