Petition for Writ of Certiorari — Arca v. Immigration & Naturalization Service

IN THE

OCTOBER TERM, ..

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

—_>—_————

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

—_—_-—

PAUL C. GRACEY

Interstate Beief 6 Record Co., 1036 Besubien St.. Detroit, Michigan 48226

WO, 2-8745—WO. 2-8732

TABLE OF CONTENTS

Opinions Below ..............seeeeseeeeees

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Question Presented ............ sees eee eens

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Statutes and Constitutional Provisions In-

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5. Statement of the Case .............-eeeeeee

6. Reasons for Granting the Writ .............

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Appendix “A” Order ..........eseeeeee eee eeees

Appendix “B” ............--ecseecceeeeeeeeceees

Appendix “C” Decision on Request for Stay and

i a icankecubs veer een uonwnee

Appendix “D” .......cccccccccccccccescccssscees

EE in iisckeutaceiedcedsinevereceeste

EE” para ntcveccnesdver oneedowavecioons

Appendix “G” Matter of Mangabat ..............

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CITATIONS

Constitutional Provisions: Page

Article I, Section 8, Clause 4 .........2ccceees. 5

Statutes:

Be Se REED hidehcsnknae caren sas boneensenan 2

The Immigration and Nationality Act of 1952,

66 Stat. 163 ff., as amended:

Section 242(b), § USC 1252(b). ........cceseees 5)

een WS TI Bak ook knkesnciaoseeves A)

Section 105(a)(2), S USC 1105(a)(2)........... A)

Section 241(b), 8S USC 1251(f).......... 3, 5,6, 10-12, 24

Section 241(a)(1), S USC 1251(a)(1)..........3, 10, 24

Section 241(a)(2), 8 USC 1251(a)(2)....... 3, 10, 11, 24

Section 212(a)(19), 8 USC 1182(a)(19)........ 3, 13,22

Section 212(a)(20), 8 USC 1182(a)(20)........ 3, 13, 23

Cases:

Ferrante v INS, 399 F2d 98 (6 Cir. 1968)........ 9

Goday v Rosenburg, +15 F2d 1266 (9 Cir. 1969).. 8

INS v Errico, 385 US 214, 87 S. Ct. 473, 17 L. Ed

ef 2l: | are rrr TT errr r oS 7, 11,12

Lee Fook Chuey v INS, 439 F2d 244 (9 Cir. 1970)

hg den. (2/11/71) ......-. eee cece ee eee eee 8

Page

Mangabat v INS, CCA 9th, Docket 72-1533, De-

SIE, xk ka hadeneueaeccsaradennsesus 7

Matter of Mangabat, Court of Immigration Ap-

peals, Interim Decision #2131.............. 7, 9,

Muslemi v INS, 408 F2d 1196 (9 Cir, 1969). .8, 10, 12, 13

Tsaconas v INS, 397 F2d 946 (7 Cir. 1968)...... 9

Vargas v INS, 409 F2d 335 (5 Cir. 1968)........ 8

IN THE

Supreme Court of the United States

OCTOBER TERM. ......

a ae

Supreme Court No.....................

Court of Appeals No...................

——— +

JOSELITO S. ARCA and

CORAZON I. ARCA,

Petitioners,

vs.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

a

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SIXTH CIRCUIT

——_-¢—-——-

The petitioners, by and through their attorney, Paul C.

Gracey, pray that a Writ of Certiorari issue to review the

Order heretofore entered against them by the United

States Court of Appeals, Sixth Circuit.

1. OPINIONS BELOW

The Order of the United States Court of Appeals, Sixth

Cireuit, filed without opinion on April 11, 1973, herein-

after set forth, (Appendix A, infra p. 15), is not yet ofli-

cially reported.

The opinion of the United States Department of Justics

Board of Immigration Appeals, now known as the Court

of Immigration Appeals, was decided and filed on July 1s,

1972, hereinafter set forth, (Appendix B, infra p. 16

et seq.), and is not officially reported.

The decision of the Special Inquiry Officer of the United

States Department of Justice, Immigration and Naturali-

zation Service was entered and filed on December 7, 1971,

hereinafter set forth, (Appendix C, infra p. 21), and is

not officially reported.

2. JURISDICTION

The Order of the United States Court of Appeals, Sixth

Cireuit, was entered and filed on April 11, 1973. There

was no Order entered respecting a re-hearing nor was

one requested; there was no Order entered granting an

extension of time within which to petition for certiorari.

The jurisdiction of this Court is invoked under Title 28

USC Section 1254(1).

3. QUESTION PRESENTED

The question presented is whether or not reversible er-

ror was committed by the Special Inquiry Officer and the

Court of Immigration Appeals in denying petitioners’ Mo-

tion to Re-open Deportation Proceedings in view of the

fact that petitioners are relying on the provisions of Title

8 USC Section 1251 (f) (Appendix D, infra p. 24) to save

them from deportation.

4. STATUTES AND CONSTITUTIONAL PROVISIONS

INVOLVED

The following statutory provisions involved herein are

set forth in Appendix D, infra, p. 22 et seq.

Immigration and Nationality

Act of 1952

8 USC 1101 (a) (15) (B) Section 101 (a) (15) (B)

8 USC 1182 (a) (19) Section 212 (a) (19)

(20)

8 USC 1201 (a) (2) Section 221 (a) (2)

8 USC 1251 (a) (1) Section 241 (a) (1)

8 USC 1251 (a) (2) Section 241 (a) (2)

8 USC 1251 (f) Section 241 (f)

5. STATEMENT OF THE CASE

Petitioners are natives and citizens of the Republic of

the Philippines. They entered the United States lawfully

in 1966 for the purpose of permitting Doctor Corazon L

Area to specialize in pediatric medicine. Between 1966

and 1970, two children were born to petitioners in the

United States, which children aequired United States cit-

izenship at birth. Petitioners returned to their native

Philippines in July, 1970, with their children, whose skin

allergies severely worsened in the tropical climate of the

Republie of the Philippines.

Petitioners almost immediately applied for and received

B-2 visas, i-e., nonimmigrant visitors’ visas, and entered

the United States as nonimmigrant visitors in September

1970 wth their children, whose health then almost imme-

diately improved.

Doctor Arca then petitioned for and received approval

of a third preference immigrant status. Pending such ap-

plication and before the approval, she was interviewed

by an officer of the Immigration and Naturalization Ser-

vice, in the absence of counsel, at which interview certain

damaging statements were made. As a result of the inter-

view and when she was notified of the approval of her

third preference petition, petitioners were notified that

there was no visa number immediately available for peti-

tioner and that, although persons in their position were

usually extended the privilege of remaining in the United

States pending such availability, petitoners were being de-

nied that privilege because of their ‘*pre-conceived intent”

to remain permanently in the United States when they

applied for their B-2 visa, which intent was not repre-

5

sented to the American Consul when applying for such

visas.

Thereafter, petitioners were ordered deported on the

basis that they were visitors for pleasure who had re-

mained in the United States for a longer time than per-

mitted. A Motion to Re-open the deportation proceedings

was denied by the Special Inquiry Officer. This decision

was affirmed by the Court of Immigration Appeals and by

the United States Court of Appeals, Sixth Circuit.

The Court of the first instance in the case at bar was

the Special Inquiry Officer of the Immigration and Natur-

alization Service whose jurisdiction rests on Article I, See-

tion 8, Clause 4 of the United States Constitution, whch

gives congress authority to establish a uniform rule of

naturalization. Statutorily, such jurisdiction rests on Title

8 USC Seetion 1252 which specifically grants jurisdiction

in such cases cases to a Special Inquiry Officer. The Court

of Immigration Appeals obtained its jurisdiction by virtue

of Title 8 CFR Section 3.1 pursuant to Title 8 USC See-

tion 1103. The jurisdiction o fthe United States Court of

Appeals rests on Title 8S USC Section 1105 (a) (2).

6. REASONS FOR GRANTING THE WRIT

Petitioners submit that the United States Court of Ap-

peals, Sixth Circuit, in affirming the decision of the Court

of Immigration Appeals has rendered a decision clearly in

eonfliet with a prior applicable decision of this Court, in-

terpreting Title 8 USC 1251 (f), Immigration and Nation-

ality Act of 1952, §241 (f) (Appendix D, infra p. 24).

Petitioners are aliens who are the parents of three

children born in the United States which children are

6

thus United States citizens from the time of their birth.

At no time has it been charged or shown that petitioners

are undesirable aliens or that they are excludable from the

United States on so-called qualitative grounds. When pe-

titioners were notified to depart from the United States

by means of form 1-210, (Appendix E, infra p. 25) they

were advised by means of a note at the bottom of the form

continuing to the reverse side of the form as follows:

“Although the beneficiary of a third preference

visa petition and his spouse are usually permitted

to remain in the United States pending the avail-

ability of visa numbers required for the filing of

applications for permanent residence status, this

privilege is not being extended in your case because

of your pre-conceived intent to remain here at the

time you applied for B-2 visas in Manila on August

7, 1970 and when you returned to this country as

visitors on September 15, 1970.”

Petitioners are ‘‘otherwise admissible” for the further

reason that the INS told them so on form 1-210, supra.

From the foregoing it appears that the petitioners fit

all of the requirements of Title 8 USC 1251 (f), Immigra-

tion and Nationality Act of 1952, 9241 (f), hereinafter re-

ferred to as §241 (f), set forth in Appendix D, infra

p. 24).

Inasmuch as the Court of Appeals did not promulgate

an opinion other than to say that they find no abuse of

discretion by the Court of Immigration Appeals in deny-

ing the Motion to Re-Open Deportation Proceedings, it

becomes necessary to look to the opinion filed by the

Court of Immigration Appeals to determine the holding

of the United States Court of Appeals, Sixth Circuit

herein.

7

The Court of Immigration Appeals in its decision filed

July 18, 1972 states that Section 241 (f) does not benefit

an alien who entered as a nonimmigrant and cites the

Court of Immigration Appeals’ decision in Matter of Man-

gabat, decided March 29, 1972, being Interim Decision

No. 2131 (Appendix G, infra p. 28 et seq.) Matter of

Mangabat was subsequently appealed to the United States

Court of Appeals for the Ninth Circuit, being docket num-

ber 72-1818 captioned as Mangabat v Immigration and

Naturalization Service and was decided along with Ca-

buco-F'lores v Immigration and Naturalization Service,

docket number 72-1333, on April 13, 1973 (Appendix H,

infra p. 34 et seq.) It is obvious from a reading of the

Court of Immigration Appeals’ decisions in the case at

bar and in Matter of Mangabat that the Court based its

decision not to disturb the decision of the Special Inquiry

Officer on the holding that Section 241 (f) does not bene-

fit an alien who entered as a nonimmigrant.

From the above reasoning, it is obvious that had the

Court of Immigration Appeals decided that the foregoing

section of the Act did benefit the petitioners, they would

have been required to find that the Special Inquiry Offi-

cer did not have the discretion to order the petitioners

deported and would have reversed his decision, reopened

the proceedings and terminated them. ‘Therefore, the

whole question of abuse of discretion rests on the appli-

cability of Section 241 (f).

The leading case on this question is Immigration and

Naturalization Service v Errico, 385 US 214, 87 S Ct 473;

li L Ed 2d 318 (1966). In that case, the alien misrepre-

sented his skills and on that basis received a first prefer-

ence quota status and entered the United States as an im-

migrant. One year later a child was born to the alien and

8

three years thereafter deportation proceedings were com-

menced on the ground that the alien was excludable at the

time of entry as not of the proper status under the quota

specified in the immigrant visa. The Government, in the

Errico ease, argued that the alien was not otherwise ad-

missible at the time of entry because, had he not lied

about his qualifications, he would not have been admitted

because of the quota restrictions. This Court said in dis-

cussing the predecessor of Section 241 (f), which it said

was not substantially changed:

“This language would be meaningless if an alien

who committed fraud for the purpose of evading

quota restrictions would be deportable as not ‘oth-

erwise admissible at the time of entry.’” 385 US

222.

From this, it can be seen that the Errico case stands

for the proposition that quantative limitations, i.e., quota

restrictions, cannot preclude an alien from being “other-

wise admissible” within the meaning of 241 (f), a pro-

position which has been consistently upheld and followed

in later cases. See Vargas v I.N.S., 409 F 2d 335 (5 Cir.

1968), Goday v Rosenberg, +15 F 2d 1266 (9 Cir. 1969), Lee

and Muslemi v I.N.S., 408 F. 2d 1196 (9 Cir. 1969), Lee

Fook Chuey v 1.N.S., 439 F 2d 244 (9 Cir. 1970), petition

for rehearing denied (February 11, 1971). An examina-

tion of the Notice to Depart given petitioners on October

28 1970, (Appendix E, infra p. 25) and the Notice of

Third Preference Petition Approved dated October 15,

1970, (Appendix F, infra p. 27) shows that the only rea-

sons petitioners were not adinissible to the United States

were the quota restrictions and the nisrepresentations of

petitioners’ intentions at the time of obtaining the B-2

visas.

9

It then becomes necessary to determine whether or not

there is any authority outside of decisions of the Court

of Immigration Appeals and the decision of the United

States Court of Appeals, Sixth Circuit, in the ease at

bar, which hold that section 241 (f) does not benefit an

alien who entered as a nonimmigrant.

The Court of Immigration Appeals in its decision in

Matter of Mangabat, supra, stated that the Courts of Ap-

peals outside the Ninth Circuit have endorsed the Goy-

ernnent’s long-standing constructions of section 241 (f)

that it does not benefit an alien who entered as a non-

imnigrant, citing the cases of l’errante v 1.N.S., 399 F 2d

98 (6 Cir. 1968) and Tsaconas v I.N.S., 397 F 2d 946 (7

Cir. 1968). A close examination of these eases reveals

that they do not stand for that proposition. In Ferrante,

supra, the alien sought io rely on section 241 (f) without

any attempt to show any fraud or misrepresentation by

which the alien gained entry to the United States. The

Court in Ferrante, held that 241 ({) did not apply because

there was no fraud or misrepresentation by which entry

was gained. It did not say that the section was not appli-

eable to nonimmigrants. In 7'saconas, supra, again, peti-

tioner sought to rely on section 241 (f) without making a

showing of any fraud or misrepresentation. The Court

said at 397 F' 2d 846 at page 949:

“Further, counsel for petitioner does not con-

tend that petitioner entered the United States by

fraud or misrepresentation nor was any evidence

of this fact adduced by petitioner’s counsel from

which that conclusion may be inferred. Standing

alone, a familial relationship is insufficient.”

Again, the Court in Tsaconas held that 241 (f) was not

applicable because there was no fraud or misrepresenta-

10

tion, and again, that case did not say that 241 (f) did not

benefit aliens admitted as nonimmigrants.

A ease in which the facts are almost completely the

same as the case at bar is Muslemi v 1.N.S., supra. In that

case, petitioner was a native of India and citizen of Iran

who, after discovering that the immigrant quotas for both

Iran and India had been filled, applied for and received a

temporary visitor’s visa to the United States stating that

he had intended to remain in the United States for no

more than three months, whereas in fact, he intended to

reside in the United States permanently. Almost imme-

diately after the passing of his departure date and the

commencement of deportation proceedings against peti-

tioner, he married an American citizen and then during

the deportation proceedings sought to rely on section 241

(f). Rather than proceeding against petitioner in that

case as a temporary visitor who had overstayed, section

241(a) (2), (Appendix D, infra p. 24) the Government

proceeded on the ground that he was excludable at the time

of entry as an immigrant without a valid unexpired immi-

grant visa, Section 202 (a) (2), 241 (a) (1), (Appendix

D, infra p. 24) and therefore argued that section 241 (f)

did not apply because the ground for deportation was not

based upon fraud at the time of entry. The Government

also argued that Section 241 (f) could not apply to the

petitioner as he entered as a nonimmigrant rather than as

an immigrant. The Ninth Circuit held that they need not

decide whether or not the nonimmnigrant’s status was ma-

terial inasmuch as the alien in that case was charged with,

being exeludable as an immigrant without a valid un-

expired immigrant visa. The Court held that because the

charge resulted directly from the alien’s fraudulent con-

cealment of his intention to remain in the country per-

manently, the benefits of section 241 (f) appliec to the

11

alien in the Juslemi case. In the case at bar, there is no

reason Why the Government could not have charged peti-

tioners with the same charge as that charged in the Mus-

lemi case.

In the very recent case of Manygabat v I.N.S., supra,

the Ninth Circuit takes a position which at first blush

may seem to hold that section 241 (f) does not benefit

aliens admitted as nonimmigrants. In that case, the charge

against the alien was that she had overstayed the time

permitted on her nonimmigrant visa and the charge was

lodged under section 241 (a)(2) (Appendix D, infra p. 24)

of the Act. The Court there sustained the deportation or-

der on the ground that the charge of remaining after the

expiration of the period permitted by the visitor’s visa

was not waived by section 241 (1) because it did not de-

pend directly or indirectly upon the asserted misrepre-

sentation in obtaining the visa. The Court quoted the

Supreme Court in Jmmigration Service v Errico, 385 US

214, 217 (1966) where it said that section 241 (1) ** waives

any deportation charge that, results directly from the

misrepresentation regardless of the section of the statute

under which the charge was brought.” The Ninth Cireuit

in Mangabat said that section 241 ({) is properly invoked

only where the fraud is germane to the charge upon which

the deportation is sought. The case at bar is clearly dis-

tinguishable from the Mangalat case in that a reading of

petitioner’s notice to depart advises them that the de-

parture date was set because, and only because, they had

misrepresented their intentions at the time of obtaining

their visitor’s visa, and entering the United States. It is

therefore clear that the misrepresentation is germane to

the charge and that the charge results directly from the

misrepresentation found by the government. It is further

clear that in the Mangabat case the only evidence of fraud

12

came from the testimony put forth by the petitioner at

the deportation hearing, and was apparently unknown

prior to that time; whereas in the case at bar, the Goy-

ernment, prior to deportation proceedings, made its own

determination that there was a misrepresentation of peti-

tioner’s intentions, as a result of which it set a departure

date and brought deportation proceedings based upon a

charge of staying longer than that date.

It is submitted that the foregoing clearly shows that

the United States Court of Appeals, Sixth Cireuit and the

Court of Immigration Appeals whose decision was af-

firmed by the Sixth Cireuit have decided a Federal ques-

tion, i.e., the interpretation of section 241 (f), in a way

clearly in conflict with the applicable decision of this

Court, that is, the case of 1.N.S. v Errico, supra. The

United States Court of Appeals should have reversed the

Court of Immigration Appeals. Failure to do so is re-

versible error.

A comparison of the decision by the United States Court

of Appeals, Sixth Cireuit, in the case at bar with the deci-

sion of the Ninth Circuit on the applicability of Section

241 (f) to nonimmigrant visitors shows the two circuits

to be in conflict. Since this Court’s decision in I.N.S. v

Errico, supra, so far as this writer has been able to de-

termine, the case at bar is the only one in which a United

States Court of Appeals has clearly held that §241 (f)

is not applicable to a nonimmigrant, while the Ninth Cir-

cuit has held in [LN.S. v Muslemi, supra, that §241 (£) is

applicable to one who entered as a nonimmigrant. This is

so even though the Court in Muslemi said it was not so

deciding. The Muslemi Court said it was not necessary to

decide that question because the government charged the

alien with entering the U.S. without a valid unexpired im-

13

migrant visa, (Appendix D, infra p. 24) Title 8 USC

§ 1182 (a) (20), Section 212 (a) (20) Immigration and

Naturalization Act of 1952, rather than being charged as

an alien who had procured a visa by misrepresentation, 8

USC 1182(a) (19), Section 212(a) (19) Immigration and

Nationality Act of 1952 (Appendix D, infra p. 22), the

rationale apparently being that he had fraudulently con-

cealed his intention to remain in the United States perma-

nently and therefore had a defective visa which is the same

as no visa at all. However, the fact remains that Muslemi

was originally issued a temporary visitor’s visa, valid on

its face. To that extent, the facts in Muslemi are no differ-

ent than in the case at bar. In both cases, the misrepresen-

tation of intentions were the real reason for the deporta-

tion charges. Because the Sixth and Ninth Circuits decided

the cases differently, there remains a conflict. In fact, the

Ninth Cireuit in the Mangabat case, supra, specifically

said that the Muslemi holding was not to the contrary

when it said on page five of the printed opinion (Appendix

H, infra p. 39 et seq.);

“The holding of Muslemi v Immigration and Na-

turalization Service, supra, is not to the contrary,

and, as suggested earlier, its rationale supports

the result we reach here.”

Even though petitioners in the case at bar were charged

with overstaying and Muslemi was not so charged, peti-

tioners here were given a departure date only because

they were said to have misrepresented their intentions to

gain entry. Thus, they overstayed a date that had been

set because of the misrepresentation.

Thus, it is submitted that, in addition to the failure

of the Sixth Cireuit to follow this Court’s applicable de-

cision, there is a conflict between the Sixth and Ninth

Cireuits on the question here involved and this Court

should grant certiorari on that basis also.

14

7. CONCLUSION

For the reasons aforementioned, petitioner does pray

that a petition for writ of certiorari to the Court of Ap-

peals for the Sixth Circuit be granted.

Respectfully submitted,

PAUL C. GRACEY

Attorney for Petitioners

2116 Guardian Building

Detroit, Michigan 48226

962-4160

Dated: June ...., 1973.

15

APPENDIX “A”

ORDER

(U. S. Court of Appeals—Sixth Circuit)

No, 72-1798

(Filed April 11, 1963)

Before: Celebrezze, Miller and Kent, Circuit Judges.

This is a petition to review a decision of the Court of

Immigration Appeals denying a motion to reopen depor-

tion proceedings. On consideration of the briefs and oral

arguinents, we find no abuse of discretion by the Court

in denying the motion to reopen the proceedings. Accord-

ingly, it is ORDERED that the decision of the Court of

Immigration Appeals be, and it is hereby, aftirmed.

Entered by Order of the Court

/s/ James A. Higgins,

Clerk

16

APPENDIX “B”

(U. S. Department of Justice—

Board of Immigration Appeals)

(Filed July 18, 1972)

Files: A17 386 957—Detroit

Al4 976 619

In re: Joselito S. Arca and Corazon I. Arca

In Deportation Proceedings

Appeal

On Behalf of Respondents:

Paul C. Gracey, Esq.

1851 Guardian Bldg.

Detroit, Michigan 48226

(Brief filed)

On Behalf of I&N Service:

R. A. Vielhaber, Esq.

Appellate Trial Attorney

Adolph F. Angelilli, Esq.

Trial Attorney

(Statement filed in opposition)

Oral Argument: February 9, 1972

Charges:

Order: Section 241(a)(2), I&N Act (8 U.S.C.

1251(a)(2))—Nonimmigrant visitors for plea-

sure—remained longer than permitted

Lodged: None

17

Application: Reopening of deportation proceedings

This is an appeal from a decision of a special inquiry

officer dated December 7, 1971, denying a motion to re-

open the deportation proceedings. The Service opposes

the motion. We affirm the decision and the appeal will be

dismissed.

The respondents are husband and wife. Both respon-

dents are 30 years of age and natives and citizens of the

Philippines. They last entered the United States at San

Francisco, California on or about September 15, 1970 as

nonimmigrant visitors for pleasure authorized to remain

in the United States in such status until November 28,

1970. They remained in the United States longer than au-

thorized. In decisions of a special inquiry officer dated

March 17, 1971, respondents were found deportable as

charged in the Order to Show Cause, but were granted

the privilege of voluntary departure, with an alternate

order that if they failed to depart from the United States

within 30 days, they shall be deported to the Philippines.

Deportability was not contested. Appeal was waived and

the decisions became final.

In their motion submitted to the special inquiry officer,

respondents requested a reopening of the deportation

proceedings or in the alternative that the special inquiry

officer reconsider the status of the respondents and that

they be permitted to remain in the United States pending

the availability of visa numbers. The basis for denying

the motion was that immigrant visas were not immediately

available to either of the respondents as required by

8 C.E.R. 245.2(a)(2) to make them eligible for adjust-

ment of status to that of a permanent resident and that

there is no requirement to postpone deportation proceed-

ings pending an alien’s pursuit of such collateral remedies.

18

After a careful review of the entire record, we coneur with

the findings of the special inquiry officer.

However, on appeal to the Board, respondent requested

reopening and termination of the deportation proceedings

under section 241(f) of the Act. Other points raised on

appeal were that the District Director should have allowed

them to remain in the United States on the basis of the

serious health problems of their United States citizen chil-

dren; that the respondents were denied their right to legal

representation when they were interviewed by an investi-

gator of the Service; and that the information obtained

from this interview should be suppressed because it in-

fluenced the District Director in instituting the deporta-

tion proceedings.

The sworn statement obtained on October 7, 1970 was

in connection with the enforcement of the immigration

laws and was in relation to the female respondent's appli-

cation for a visitor’s visa at the American Embassy in

Manila on August 7, 1970 and her intentions to remain in

the United States permanently at the time she returned

to the United States on September 15, 1970. Under section

287(b) of the Act, the Service has the power and author-

ity to take a sworn statement concerning the privilege of

any person to enter, re-enter, pass through, or reside in

the United States or concerning any matter which is ma-

terial or relevant to the enforcement of this Act and the

administration of the Service.

The law and regulations make no provision for the

presence of counsel in the type of examination and inter-

rogation that was conducted in obtaining this sworn state-

ment. In informing the female respondent that she had

the right to remain silent, to have a lawyer present, ete.

the Service was attempting to conform with the standards

19

set by the Supreme Court in criminal cases. The interro-

gation and obtaining the sworn statement were civil and

not criminal in nature and there is no clearly defined right

to have the assistance of counsel. In this case there was

no requirement to advise the female respondent of her

right to counsel. However, after such advice was given,

she voluntarily agreed to answer the questions. Therefore,

we find that respondelnt’s lack of representation at the

time she was interviewed and the sworn statement ob-

tained were not violations of due process.

There is no merit to the contention of the respondent

that the information obtained from the interview be sup-

pressed because it influenced the District Director in in-

stituting the deportation proceedings. As we stated in

Matter of Geronimo, Interim Decision 2077 (BIA 1971)

“. . . it is within the District Director's prospective dis-

cretion whether to institute deportation proceedings

aganst a deportabie alien or temporarily to withhold such

proceedings. Where such proceedings have been begun,

it is not the province of the special inquiry officer (or of

this Board on appeal) to review the wisdom of the District

Director’s action in starting the proceedings, but to de-

termine whether the deportation charge is sustained by

the requisite evidence . . .”.

Under 8 C.F.R. 245.4, a request for a stay of deporta-

tion by an alien under a final administrative order of de-

portation is a matter solely within the discretion of the

District Director. Since the respondents are under a final

administrative orler of deportation, the serious health

problems of their United States citizen children are mat-

ters for consideration by the District Director in connec-

tion with an application for stay of deportation.

Because on appeal the respondents requested reopen-

ing and termination of the proceedings under section

20

241(f) of the Act, we deferred action on the appeal pend-

ing decision by the Supreme Court on this issue in INS

v Vitales, No. 71-431, cert. granted 404 U.S. 983. The Su-

preme Court has now terminated that case inconclusively

by vacating the judgment of the Court of Appeals and

remanding with directions to dismiss the petition for re-

view 405 U.S. 983 (March 20, 1972). We conclude that we

should now act on the appeal. See Matter of Mangabat,

Interim Decision 2131 (BIA 1972). For the reasons

stated in Matter of Maxugabat, supra, we adhere to the

view that section 241(f) does not benefit an ailen who en-

tered as a nonimmigrant.

After a careful evaluation of the entire recor], includ-

ing the representations made on appeal, we find no reason

to reverse the decision of the special inquiry officer. The

respondents have not met the clear requirements neces-

sary for reopening under the regulations. Accordingly,

the following order will be entered.

Order: It is ordered that the appeal be and the same

is hereby dismissed.

/s/ Louisa Wilson,

Acting Chairman

21

APPENDIX “C”

DECISION OF THE SPECIAL INQUIRY OFFICER ON

REQUEST FOR STAY OF DEPORTATION AND

MOTION TO REOPEN

(United States Department of Justice—

lumigration and Naturalization Service)

Al4 976 619

Al7 386 957

Pursuant to 8 CFR 242.2 and 243.4, the above-named

respondent has applied for a stay of deportation in con-

nection with a motion to reopen—imotion to reconsider.

Upon consideration of the representations and submis-

sions made by and on behalf of the respondent and the

Service, | will adopt the position of the Service as set out

by the Trial Attorney in his statemtnt opposing the mo-

tion to reopen dated May 25, 1971.

ORDER: IT IS ORDERED that the motion to reopen

be and the same is hereby denied.

IT IS FURTHER ORDERED, however, that deporta-

tion of the respondents be stayed pending the timely tak-

ing of an appeal from this determination.

/s/ R. F. Bode

Special Inquiry Officer

Date: December 7, 1971

Place: Detroit, Michigan

Copy of this decision has been served on the respond-

ents and the Service.

APPENDIX “D”

8 USC 1101 (a) (15) (B), Immigration and Nationality

Act of 1952 §101(e)(15)(B)

(a) As used in this chapter—

(15) The term “immigrant” means every alien except

Pp

(B)

an alien who is within one of the following classes

of nonimmigrant aliens—

an alien (other than one coming for the purpose

of study or of performing skilled or unskilled

labor or as a representative of foreign press, radio,

film, or other foreign information media coming

to engage in such vocation) having a residence in

a foreign country which he has no intention of

abandoning and who is visiting the United States

temporarily for business or temporarily for pleas-

ure;

8 USC 1182 (a) (19), Immigration and Nationality Act of

1952 §212 (a) (19)

(a)

Except as otherwise provided in this chapter, the

following classes of aliens shall be ineligible to

receive visas and shall be excluded from admission

into the United States:

(19) Any alien who seeks to procure, or has sought to

procure, or has procured a visa or other docu-

mentation, or seeks to enter the United States, by

fraud, or by willfully misrepresenting a material

fact;

23

8 USC (a) (20), Immigration and Nationality Act of 1952

§212(a) (20)

(a)

(20)

Except as otherwise provided in this chapter, the

following classes of aliens shall be ineligible to re-

ceive visas and shall be excluded from admission

into the United States:

Except as otherwise specifically provided in this

chapter, any immigrant who at the time of applica-

tion for admission is not in possession of a valid

unexpired immigrant visa, reentry permit, border

crossing identification card, or other valid entry

document required by this chapter, and a valid

unexpired passport, or other suitable travel docu-

ment, or document of identity and nationality, if

such document is required under the regulations is-

sued by the Attorney General pursuant to section

1181(a) of this title;

8 USC 1201 (a) (2), Imnigration Nationality Act of 1952

§221 (a) (2)

(a) Under the conditions hereinafter prescribed and

(2)

subject to the limitations prescribed in this chap-

ter or regulations issued thereunder, a consular

officer may issue

to a nonimmigrant who has made proper applica-

tion therefor, a nonimmigrant visa, which shall

specify the classification under section 1101 (a)

(15) of this title of the nonimmigrant, the period

during which the nonimmigrant visa shall be valid,

and such additional information as may be re-

quired.

24

8 USC 1251 (a) (1), Immigration and Nationality Act of

1952 §241 (a) (1)

(a)

(1)

Any alien in the United States (including an alien

erewman) shall, upon the order of the Attorney

General, be deported who—

at the time of entry was within one or more of the

elasses of aliens excludable by the law existing at

the time of such entry;

8 USC 1251 (a) (2), Immigration and Nationality Act of

1952 §241 (a) (2)

(a)

(2)

Any alien in the United States (including an alien

erewman) shall, upon the order of the Attorney

General, be deported, who—

entered the United States without inspection or

at any time or place other than as designated by

the Attorney General or is in the United States

in violation of this chapter or in violation of any

other law of the United States;

8 USC 1251 (f), Immigration and Nationality Act of 1952

§241(f)

(f)

The provisions of this section relating to the de-

portation of aliens within the United States on the

ground that they were excludable at the time of

entry as aliens who have sought to procure, or

have procured visas or other documentation, or

entry into the United States by fraud or misrep-

resentation 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.

APPENDIX “E”

UNITED STATES DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

333 Mt. Elliott Street

Detroit, Michigan 48207 Telephone: 226-3276

Please refer to this file number

Al4 976 619

Al7 386 957

October 28, 1970

Corazon I. and Joselito S. Area

da20 Harvard Road

Detroit, MI 48224

Please note the below checked action which has been

taken in your case.

{[X}] In accordance with a decision made in your ease,

you are required to depart from the United States

at your own expense on or before November 23,

1970.

You must notify this office, Room No....., on or before

November 16, 1970 of the arrangements you have made to

effect your departure, including the date, place, and man-

ner.

Failure to depart on or before the specified date may

result in the withdrawal of voluntary departure and ae-

tion being taken to effect your deportation.

If there is a bond outstanding in our ease, you are

warned that to expedite cancellation of the bond and re-

26

turn of the collateral posted, you must make advance ar-

rangements with this office to have your departure wit-

nessed by an officer of this Service.

At the time of your departure, do not fail to surrender

Form I-94, in accordance with instructions on the reverse

of that form.

Very truly yours,

/s/ Thomas M. Pederson

District Director

Note: Although the beneficiary of a third preference visa

petition and his spouse are usually permitted to remain in

the United States pending the availability of visa numbers

required for the filing of applications for permanent resi-

dent status, this privilege is not being extended in your

ease because of your pre-conceived intent to remain here

at the time you applied for B-2 visas in Manila on August

7, 1970 and when you returned to this country as visitors

on September 15, 1970.

27

APPENDIX “F”

UNITED STATES DEPARTMENT OF JUSTICE

Imnigration and Naturalization Service

333 Mt. Elliott Street

Detroit, Michigan 48207

Notice of Third Preference Petition Approved Under

Section 203(a)(3) of the Immigration and

Nationality Act, as Amended.

Name of Beneficiary: Corazon Intano Arca

File No.: Al4 976 619 Date of Notice: 10-15-70

Country of Birth: Philippines Occupation: Physician

Date Petition Filed: 9-18-70

Date to Which Petition is Valid: 10-14-71

Please note the items below which are indicated by an

“x” marks concerning this petition.

[X] The petition has been approved. The petition states

that the beneficiary is in the United States and will

apply for adjustment of status to that of a lawful

permanent resident. A visa number is not pres-

ently available; therefore, the beneficiary may not

apply for adjustment of status to that of a per-

manent resident. The beneficiary has been or will

he notified concerning his stay in the United States.

[X] Remarks: See attached Form 1-210 with instruction

for your departure. You should advise this office

to which American Consulate abroad you desire the

28

approved petition forwarded since you will not be

permitted to remain in the United States to apply

for permanent resident status.

Name and address of Petitioner: Mail to:

Corazon I. Arca

5525 Harvard Rd.

Detroit, MI 48224

Very truly yours

/s/ Thomas M. Pederson

District Director

APPENDIX “G”

MATTER OF MANGABAT

EXHIBIT “C”

Interim Decision #2131

In Deportation Proceedings

A-19049517

Decided by Board March 29, 1972

(1) The fact that a lower federal court has disagreed with

a legal conclusion of the Board does not of itself

require that the Board recede from that conclusion;

the Board’s jurisdiction is nationwide and the con-

trary ruling of a reviewing court in one district or

circuit is not necessarily dispositive.

(2) The provisions of section 241(f) of the Immigration

and Nationality Act, as amended, do not benefit an

29

alien who entered the United States as a nonimuni-

grant. [The interpretation in Matter of Cadiz, 12 I &

N. Dec. 560; Matter of Pon, Interim Decision No.

2018; Matter of Norvzma, Interim Decision No. 2033;

and Matter of Yee, Interim Decision No. 2104, adhered

to notwithstanding Vitales vy. 1 & NS, 443 F.2d 348

C.A. 9, 1971), vacated (CNS vy. Vitales, No. 71-431

(Mar. 20, 1972)) and remanded with instructions to

dismiss petition for review.]

Charge:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251

(a) (2) |Non-immigrant—remained longer than per-

mitted.

On Behalf of Respondent:

David C. Marcus, Esquire

215 West Fifth Street

Los Angeles, California 90013

This is an appeal from an order of a special inquiry

ofticer dated October 21, 1971, denying on reconsideration

respondent's motion to reopen and terminate the proceed-

ings under section 241(f) of the lmigration and Nation-

ality Act. The appeal will be dismissed.

Respondent is a 34-year-old unmarried female alien,

a native and citizen of the Philippines. She was admitted

to the United States on May 19, 1968 ag a non-immigrant

visitor for a period to expire September 20, 1968 and re-

mained longer than permitted. At a deportation hearing

before a special inquiry officer on March 12, 1971, at which

she was represented by other counsel, respondent adinitted

the truth of the factual allegations of the Order to Show

Cause and conceded deportability on the above-stated

30

charge. The special inquiry officer found her to be depor-

table and granted her until June 1, 1971 to depart volun-

tarily in lieu of deportation. There was no appeal and the

special inquiry officer’s order became administratively

final. Respondent failed to depart and the alternate order

for her deportation to the Philippines vested.

On July 12, 1971, through present counsel, respondent

filed a motion to reopen and terminate. In it she alleged

that when she applied to the American consul in the Philip-

pines for her nonimmigrant visa, she did not disclose a

secret intention to remain here permanently; that on De-

cember 12, 1969, at Los Angeles she gave birth to a

daughter, who is a United States citizen; and that by

reason of her fraud and parentage of a United States

citizen child, she is entitled to termination of the proceed-

ings under section 241(f) of the Act. In an order dated

August 16, 1971, the special inquiry officer denied the

motion for the stated reason that the respondent had

submitted no evidence to corroborate her self-serving con-

fession of fraud.

Counsel thereupon moved for reconsideration, citing

INS v Errico, 385 U.S. 214, (1966) and the ensuing deci-

sions of the United States Court of Appeals for the Ninth

Cireuit in Vuslemi v. INS, 408 F.2d 1196 (1969) ; Lee Fook

Chucy v. INS, 489 F.2d 244 (1971); United States v. Osu-

na-Picos, 443 F.2d 907 (1971); and Vitales v. INS, 448 F.

2d 343 (1971). In the order now before us on appeal, the

special inquiry officer denied the motion, concluding that

the evidence presented did not make out a case of fraud

within the meaning of Section 241(f).

While this appeal was pending before us, the Supreme

Court granted the Services’ petition for certiorari to re-

view the Vitales decision, INS y. Vitales, 404 U.S. 983.

31

We held in abeyance further action in this case and in

certain other cases presenting the same issue, pending

definitive decision by the Supreme Court in Vitales, The

Supreme Court has now terminated that case inconclus-

ively.’ For the reasons stated below, we shall proceed to

a decision on this appeal, rather than Waiting further for

a possible definitive Supreme Court decision in a case yet

to be filed.

This Board has consistently taken the position that see-

tion 241(f) does not benefit an alien who entered as a

nonimmigrant, Matter of Cadiz, 12 1 & X Dee. 560 (BLA

1968); Matter of Pon, Interim Decision 2018 (BIA 1959) ;

Matter of Norzyma, Interim Decision 2035 (BLA 1970);

Matter of Yee, Interim Decision 2104 (BIA 1971). That

position is consonant with and indeed required by, the

rationale of the Attorney General's decision in Matter of

Lee, Interim Decision 1960 (BLA 1967; ALG, 1969); see

especially footnote 4. The Courts of Appeal outside the

Ninth Cireuit have endorsed our longstanding construe-

tion of the statute, M’errante v INS, 399 F.2d 98, 104-105

(6 Cir, 1968); Tsaconas v. INS, 397 F.2d 946, 948-949 (7

Cir. 1968); Rutledge vy. Esperdy, 200 F Supp. 231, 233

(S.D. NY. 1961); affirmed per curiam 297 K.2d 532 (2 Cir.

1961). The Ninth Cireuit alone has adhered to the expan-

sive view of the underlying Congressional design on which

its decisions are bottomed.

Where a reviewing court rejects our construction of a

statute, in treating with the same issue in subsequent

Miss Vitales left the United States and it was suggested to the

Court that this rendered the issue either moot or unreviewable under

section 106(c) of the Act. On March 20, 1972, the Court entered an

order vacating the Court of Appeals judgment and remanding the case

to that court with directions to dismiss the petition for review, INS vy,

Vitales, 404 U.S. —, No. 71-481,

32

cases we try to reach an accomodation compatible both

with respect for the court’s judginent and with the needs

of effective administration of the law. The fact that a

lower federal court has disagreed with a legal conclusion

of this Board does not of itself require us to recede from

that conclusion. The Board's jurisdiction is nationwide

and we hear appeals from Service decisions in all parts

of the country. The contrary ruling of a reviewing court

in one district or one circuit is not necessarily dispositive.

As we have seen with respect to section 241(f), a conflict-

ing view may be expressed by a court in another jurisdie-

tion.

Where further appellate review is not sought because it

is concluded administratively that the adverse court deci-

sion is correct, we recede from our former position and

accept the court’s position as our own in future cases. See

Matter of Lim, Interim Decision 1947 (BIA 1969). Where,

however, the Government's failure to seek further appel-

late review is due to factors other than acquiescence, we

try to preserve the status quo pending definitive decision

in another case. While continuing to apply our own legal

conclusion in other jurisdictions, we may apply the con-

trary conclusion in cases arising within the jurisdiction

of the court whch rendered it, Matter of Amado and Mon-

teiro, Interim Decision 1951 (BLA 1969).

It was to avoid this unhappy solution that we have with-

held action on appeals presenting this section 241(f) is-

sue in cases which would normally be reviewed in the

Ninth Cireuit, pending definitive decision in Vitales. In

view of the inconclusive termination of that case, we could

continue to hold the many cases we now have, until such

time as a suitable ease arising in another circuit becomes

the vehicle for ultimate Supreme Court decision. That will

33

take some time. We believe that effective administration

requires that we act now on the cases before us, without

further delay.

In declining to apply the cited Ninth Circuit decisions

in this and other cases reviewable in that circuit, we mean

no disrespect for that court. Since the issues have already

been crystallized, briefed and defined in the cited cases,

our action now should pave the way for prompt decision

in that court and prompt review in the Supreme Court.

The construteion of section 241(7) which we here apply is

one which the Attorney General has approved, and his

decision is binding on us. The Ninth Circuit's view repre-

sents a minority position among the circuits. The Solicitor

(ieneral’s challenge to it in petitioning for certorari in

Vitales negates any notion of administrative acquiescence.

The Supreme Court's action in granting certiorari indi-

cates that a substantal question is presented,

Under the circumstances, we feel justified in continuing

to adhere to the view that section 241 (f) does not benefit

an alien who entered as a nonimmigrant. We therefore dis-

iniss the appeal.

Order: The appeal is dismissed.

APPENDIX “H”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Lourdes Cabuco-F lores, ‘

Petitioner,

vs.

Immigration & Naturalization Service,

Respondent. { No. 72-1333

Genevieve L. Mangabat, No. 72-1818

Petitioner,

vs.

Immigration & Naturalization Service,

Respondent. :

[April 13, 1973]

On Petition to Review a Decision of the

United State Immigration & Naturalization Service

Before: Browning, Hufstedler, and Wallace,

Cireuit Judges.

Browning, Circuit Judge:

These petitions for review raise a common question un-

der section 241(f) of the Immigration and Nationality

Act, 8 U.S.C. § 1251(f), an ameliorative statute providing

that in some circumstances fraud or misrepresentation

by an entering alien who has close family ties with a citi-

zen or lawfully admitted permanent resident may be

35

waived as a ground for deportation. The issue is whe-

ther section 241(f) applies to deportation of a temporary

visitor on the ground that the visitor has overstayed the

period authorized. We hold that it does not.

Both petitioners are aliens, citizens of the Philippine

Islands. Hach entered the United States as a nonimmigrant

visitor for a stipulated period. After entry, each gave birth

to a child, a United States citizen by birth. Deportation

proceedings Were commenced against each on the ground

that she had remained longer than permitted on her visa,

and was therefore deportable under section 241(a) (2) of

the Act, 8 U.S.C. §$1251(a)(2). Each defended on the

ground that she was saved from deportation by section

241(f) because when she applied for her visitor's visa she

fraudulently concealed an intention to remain in the

United States permanently.

The Board of Immigration Appeals rejected the de-

fense as to petitioner Mangabat on the ground that section

241(f) applies only to persons who enter as immigrants

and not to those who enter as nonimmigrants. The Board

rejected the defense as to petitioner Cabuco-Flores on the

ground that her testimony established that she intended to

remain permanently only if she could do so lawfully and

thus failed to establish the requisite fraud.“

' Section 241(f) of the Act, 8 U.S.C. § 1251(f) reads:

The provisions of this section relating to the deportation of

aliens within the United States on the ground that they were ex-

cludable at the time of entry as aliens who have 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.

*See Bong Youn Chop v. Barber, 279 F.2d 642, 645-46 (9th Cir.

1960).

36

We sustain the deportation orders on another ground,

namely, that the charge of remaining after the expira-

tion of the period permitted by each petitioner’s visitor's

visa was not waived by section 241(f) because it did not

depend directly or indirectly upon the asserted misrepre-

sentation in obtaining the visa.

Literally, section 241(f) waives deportation of aliens

only “on the ground that they were excludable at the

time of entry as aliens who have sought to procure, or

have procured visas or other documentation, or entry into

the United States by fraud or misrepresentation,” in vio-

lation of section 212(a)(19), 8 U.S.C. $1182(a) (19). The

Supreme Court rejected a literal reading of section 241

(f) in Immigration Service v. Errico, 385 U.S. 214, 217

(1966), noting that by consistent administrative interpre-

tation the section ‘‘waives any deportation charges that

results directly from the misrepresentation regardless of

the section of the statute under which the charge was

brought” (emphasis added).

Thus, while not limited to the single ground for depor-

tation found in section 212(a)(19), section 241(f) is prop-

erly invoked only when the fraud is “germane to the

charge” upon which deportation is sought, Muslemi v. Im-

migration & Naturalization Service, 408 F.2d 1196, 1198

(9th Cir. 1969) (see also Hames-Herrera v. Rosenberg,

463 F.2d 451, 454 (9th Cir. 1972); Jolley v. Immigration

& Naturalization Service, 441 F.2d 1245, 1251-52, 1254 (5th

Cir. 1971); Loos v. Immigration & Naturalization Service,

407 F.2d 651, 654 (7th Cir. 1969); Tsaconas v. Immigra-

tion & Naturalization Service, 397 F.2d 946 (7th Cir.

|

37

1968)),’ and the charge relates to entry. Hanes-Herrera

y. Rosenberg, supra, Khadjcnouri v. Immigration & Na-

turalization Service, 400 F.2d 461, 462 (9th Cir. 1972);

Ferrante v. Immigration & Naturalization Service, 399 F.

2d 98, 104 (6th Cir. 1968); Tsaconas v. Immigration &

Naturalization Service, supra.*

Section 241(f) applies only to that fraud or misrepre-

sentation which the government must prove to establish

the ground relied upon for deportation; in some cireum-

stances it excuses such fraud. It does not make the alien’s

fraud an affirmative defense, independently exculpatory

without regard to the proof required to establish the

ground for deportability relied upon by the government.

In these cases petitioners were ordered deported because

the period of their authorized temporary stays had ex-

pired. The government’s case was completed upon proof

that petitioners were admitted as nonimmigrant visitors

for a temporary period, the period had elapsed, and peti-

tioners had not departed. The charge had nothing to do

with petitioner’s entry; lawfulness of their entry was as-

sumed. Proof that petitioners’ visas were procured by

fraud was irrelevant to the charge. Giving full effect to

“The statutory waiver excuses charges which are incidental to

the misrepresentation, such as perjury, improper quota charge, entry

without inspection, and lack of proper documents (when waiver can be

simultaneously granted). However, the mere fact that the alien claims

to have made a misrepresentation at the time of entry does not excuse

him from deportation validly ordered on another charge, not related to

the misrepresentation” (footnotes omitted). Gordon & Rosenfield, Im-

migration Law & Procedure § 4.7c, 4-41.

See also Ntovas v. Ahrens, 276 F.2d 483, 484 (7th Cir. 1960) (de

cided under § 7 of the 1957 Act). See note 5.

*See also Rutledge v. Esperdy, 200 F. Supp. 231 (S.D.N.Y. 1961),

afirmed on the basis of district court’s opinion 297 F.2d 532 (2d Cir.

1961), decided under § 7 of the 1957 Act. See note 5.

38

the section 241(f) waiver, the government’s proof of the

ground relied upon for deportation was unimpaired. Ac-

cordingly, the orders of deportation are not barred by see-

tion 241(f).

This interpretation is consistent with the section’s lan-

guage. It is also in harmony with the section’s purpose., for

Congress intended no more than to grant relief to aliens

“facing expulsion or deportation because they had gained

entry through misrepresentation.” Jmmigration Service v.

Errico, supra, 385 U.S. at 220-21 It avoids the anomalous

consequence that an alien may escape deportation simply

by ‘‘substitut{ing] for his own convenience a ground not

involved in the deportation proceedings.” Ntovas v. Ah-

rens, 276 F.2d 483, 484 (7th Cir. 1960). See also Tsaconas

v. Immigration & Naturalization Service, supra, 397 F.2d

946, 948. It avoids the constitutional question raised by

petitioner Cabuco-Flores, who points out that if section

241(f) is held to apply, but the factual determination of

the Board in her case is upheld, petitioner Mangabat will

be allowed to remain in this country, while petitioner Ca-

buco-Flores, whose situation is in all respects the same

except that she did not enter with a fraudulent intent, will

be deported.

This construction averts the wholesale frustration of

statutory limitations on immigration foreseen by the gov-

ernment, which suggests that a fraudulent intent to re-

main cannot be detected at the time of entry, nor disproved

during a deportation proceeding.

5 The Court was referring to § 7 of the 1957 Act, Pub. Law 85-316,

71 Stat. 639. “The present § 241(f) is essentially a re-enactment of

§ 7 of the 1957 Act. The legislative history leaves no doubt that no

substantive change in the section was intended.” Immigration Service

v. Errico, 385 U.S. 214, 223 (1966).

39

Finally, this construction limits the impact of the appar-

ent inconsistency between section 241(f)’s automatic

waiver where fraud is involved, and the severely limited

conditions under which aliens having close family ties in

the United States can be relieved of various other grounds

of deportation. See section 244 of the Act, S U.S.C. $1254;

section 212(e); 8 U.S.C. § 1182(e); section 212(h), 8 U.S.

C. § 1182(h).

The holding of Wuslemi v. Immigration & Naturaliza-

tion Service, supra, is not to the contrary, and, as sug-

gested earlier, its rationale supports the result we reach

here. Muslemi was not charged with overstaying; indeed,

he was notified that deportation proceedings were to be

instituted aaginst him one day before his temporary visa

expired. 408 F.2d at 1198. Deportation was sought on the

ground that he had entered without an immigrant visa and

was therefore excludable under section 212(a)(20), 8

US.C. § 1182(a)(20), and deportable under section 241

(a) (1), 8 U.S.C. § 1251(a) (1). 408 F.2d at 1197. To prove

its charge, the govermment was required to establish that

Muslemi entered the United States as an immigrant, that

is, as one who intended to remain in this country perman-

ently. The government was required to prove that Mus-

lemi had obtained his temporary visitor’s visa by fraudu-

lently misrepresenting his intentions. Thus, the “misrep-

resentation was germane to the deportation charge” (408

F.2d at 1199)—waiver of the fraud barred proof essential

to that charge.

The rule we adopt is also consistent with Lee Fook

Chuey v Immigration & Naturalization Service, 439 F.2d

2H (9th Cir. 1971). Lee Fook Chuey entered the United

States under a false claim of citizenship derived from his

father. He wa sordered deported on the charge that he was

40

an alien, who entered without inspection in violation of see-

tion 241(a)(2), 8 U.S.C. § 1251(a)(2). Obviously, proof

of this charge required the government to establish that

petitioner’s claim of citizenship was false. Section 241(f)

was therefore determinative.

However, Vitales v. Immigration & Naturalization Ser-

vice, 443 F.2d 343 (9th Cir. 1971), cannot be reconciled

with our present holding: Section 241(f) was held to bar

Vitales’ deportation on the ground that she had overstayed

the period permitted by a nonimmigrant visitor’s visa ob-

tained by fraudulently concealing an intention to remain

in this country permanently.

The Supreme Court granted certiorari in Vitales, 404

U.S. 983 (1971). Thereafter, petitioner left the country

voluntarily. The Supreme Court vacated the judgment of

this court, and remanded with instrutcions to dismiss the

petition. 405 U.S. 983 (1972). This court’s decision in Vi-

tales is therefore no longer binding precedent. See United

States v. Munsingwear, Inc., 340 U.S. 36, 39-41 (1950.)*

The orders of the Board are affirmed.

6In view of the dictum to the contrary in Chung Wook Myung v.

Immigation & Naturalization Service, 468 F.2d 627, 628 n.1 (9th Cir.

1972), this opinion has been circulated to all the active members of the

court. No judge has requested that the case be heard en banc.