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

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SUP R:

LIBRARY, —

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COURT, Rx: * ee wv 44 1973

Iu the = rite Oiitet —— JF, CLERK i

OF THE

Ruited States

OCTOBER TERM, 1973

No. 73-1083

MONIQUE PREUX,

Petitioner,

IMMIGRATION AND NATURALIZATION SERVICE,

and JOHN L. TODD, DISTRICT DIRECTOR,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

PETITION FOR CERTIORARI

LOA E. BLISS

JAMES R. BARASH

Pikes Peak Legal Services

104 South Tejon

Suite 300

Colorado Springs, Colorado

80902

Telephone: (303) 471-0380

Attorneys for Petitioner

TABLE OF CONTENTS

Page

1. Opinions Below . . . .« « « « « 1

2. Jurisdiction ...«.e-ereee 2

3. Question Presented . ...«.-s. 3

4. Statutes and Constitutional

Provisions Involved. ..... 3

5. Statement of the Case. .... 4

6. Argument . . . « © «© «© «© © © « 6

A. Section 241(f) is a remed-

ial statute and should be

construed liberally. ... 6

B. The deportation charge is

not controlling in deter-

Mining the applicability

of Section 241(f). .... 9

C. A liberal interpretation

of Section 241(f) is not

inconsistent with other

provisions of the Act and

does not create enforcement

problems . . . « «© 6 « « « 13

Fo GomeeenGe aos. «+ oe ee te ee 14

Appendix A Opinion of the Tenth

Circuit. . « © « «© « « 16

Appendix B Decision of Court of

Immigration Appeals. . 20

Appendix C Decision of Special

Inquiry Officer. ... 22

ii.

Appendix D Statutes. . . . « « « 32

Appendix E Original Order to

Show Cause. . . « « « 36

Appendix F Letter dropping deport-

ation proceedings . . 38

Appendix G Order to Show Cause . 39

Appendix H Cabuco-Flores v.

INS + e 2 e e 2 e ° * 4 1

Appendix I Milande v. Immigration

& Naturalization Ser-

vice. & + a e +. e + es 49

CITATIONS

CONSTITUTIONAL PROVISIONS:

Article I, Section 8, Clause 4... 6

STATUTES :

The Immigration and Nationality

Act of 1952, 66 Stat. 163 ff.,

as amended:

§ 101 (a) (3), 8 USC 1101(a)(3) . 3

§ 101(a) (15) (B), 8 USC 1101 (a)

(15) (B) e e * . o e t e e e a e

§ 103, 8 UBC 1203 . 2 2 ot 8 6

§ 105(a) (2), 8 USC 1105(a) (2) . 6

§ 212(a) (19), 8 USC 1182(a) (19) 3, 4,

si aiitiaeien NONE NEL SORE LOIN ERLE SI MONTE IG

§ 212(a) (20), 8 USC 1182 (a) (20) 3

§ 221(a) (2), 8 USC 1201(a) (2) . 3

§ 241(a) (1), 8 USC 1251(a) (1) . 3, 4,

§ 24l1(a) (2), 8 USC 1251(a) (2) . 3

§ 241(£), 8 USC 1251(f) . . . « 3, SH14

§ 242(b), 8 USC 1252(b) . . «. « 3, 6

28 USC 19S4(2) 2. 2 we ee oe 8 8 2

CASES:

Cabuco-Flores v. INS,

“Docket No. Jo-1L303

een Cin. 2975) « « + « 8 6 oS 11

Ferrante v. INS,

(6th Cir. 1968) . « « « © © « « 10

INS v. Errico,

ewe 4,

87 S.Ct. 473,

17 L.Ed.2d 318 (1966) * 7 © ee Te 10-14

Lee Fook Chuey v. INS,

739 F.2d oi

(9th Cir. 1970)

r'hg den. 2-11-71 eee ee @# @© @ 13, 14

Milande v. INS,

Docket No. 72-1529

(7th Cis. 1973) e e . ae a * e ae 10, 12

iv.

Muslemi v. INS,

is 96

(Sth Cir. 1969) . . « e

Ntovas v. Ahrens,

(7th Cir. 1960)

cert. denied 364 U.S. 826

Tsaconas v. Immigration &

Naturalization Service,

20 946

(7am Cir. 1968) . « 2 « «

Vitales v. Immigration &

Naturalization Service,

teem Cae. 3974) « 2 2 8

Page

oe 9

e 10

ee 10

ee il

FAW APTS ? PAR

Iu the Supreme Court

OF THE

Ruited States

OCTOBER TERM, 1973

No. 73-1083

MONIQUE PREUX,

Petitioner,

IMMIGRATION AND NATURALIZATION SERVICE,

and JOHN L. TODD, DISTRICT DIRECTOR,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit,

PETITION FOR CERTIORARI

The Petitioner, by and through her

attorneys, Loa E. Bliss and James R. Barash,

Pikes Peak Legal Services, pray that this

Court issue a Writ of Certiorari to review

an Order entered against Petitioner by the

United States Court of Appeals for the Tenth

Circuit.

1. Opinions Below

The Order and Opinion of the United

States Court of Appeals for the Tenth Circuit,

filed September 7, 1973, has not been offi-

cially published to date. It has been

marked for publication (Appendix A, infra,

Pp. 16).

The opinion of the United States

Department of Justice Board of Immigration

Appeals, now known as the Court of Immigra-

tion Appeals, was decided and filed on

January 22, 1973, attached hereto (Appendix

B, infra, p. 20), and is not officially

reported.

The decision of the Special Inquiry

Officer of the United States Department of

Justice, Immigration and Naturalization

Service, was entered and filed on October

30, 1972, and attached hereto (Appendix C,

infra, p. 22). It is not officially reported.

2. Jurisdiction

Jurisdiction of this Court is sought

pursuant to 28 U.S.C. 1254(1) to review a

decision of the United States Court of

Appeals for the Tenth Circuit entered Sep-

tember 7, 1973. Stay of Mandate was entered

September term, on October 5, 1973, to and

including October 31, 1973, and an extension

of Stay of Mandate was subsequently granted

to and including November 14, 1973. If on

or before that date the Clerk of the Court

of Appeals for the Tenth Circuit should

receive a notice from the Clerk of the

Supreme Court of the United States that a

timely petition for Writ of Certiorari has

been filed in the Supreme Court, then the

Stay of Mandate will continue until final

disposition by the Supreme Court.

No order requesting a rehearing and

no order granting an extension of time in

which to file a petition for certiorari has

been entered by the Court below.

3. Question Presented

The question presented is whether

Section 241(f£) of the Immigration and Nat-

ionality Act, 8 U.S.C. 1251(f), applies to

aliens admitted on immigrant visas only or

whether it also applies to aliens who have

entered on visitors visas and overstayed

their time.

4. Statutes and Constitutional Provisions

The following statutory provisions

involved herein are set forth in Appendix

D, infra, p. 32).

Immigration and

Nationality Act

of 1952

8 USC 1101 (a) (3) § 191 (a) (3)

8 USC 1101l(a) (15) (B) § 10i {a) (15) (B)

8 USC 1182(a) (19) (20) § 212(a) (19) (20)

8 USC 1201 (a) (2) § 221 (a) (2)

8 USC 1251 (a) (1) § 241 (a) (1)

8 USC 1251 (a) (2) § 241 (a) (2)

8 USC 1251 (f) § 241(£)

The controlling statute, cited in

recent Circuit Court opinions, is 8 U.S.C.

1251(£), Immigration and Nationality Act

of 1952, § 241(f).

“(£) The provisions of this sec-

tion relating to the deportation

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

a-*o +4 e-« _*

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."

5. Statement of the Case

The essential facts are not in dispute.

The Petitioner is a Belgian National cur-

rently present in the United States. Peti-

tioner gave birth to a child in Colorado

Springs, Colorado, on September 5, 1970,

and said child, Amorette Teresa Ortiz, is

a citizen of the United States and Peti-

tioner is the mother of said child. After

the birth of the child, Petitioner left the

United States with her and then re-entered

the United States with her on June 25,

1971, with a nonimmigrant visitor's visa,

which visa expired on December 24, 1972.

Deportation proceedings were first

opened against Petitioner on October 27,

1971, long before the expiration of Peti-

tioner's visitor's visa, by an Order to

Show Cause (Appendix E, infra, p. 36) based

upon Petitioner's alleged entry into the

United States for the purpose of living

permanently with a man in Colorado Springs,

Colorado. Petitioner was alleged to be an

alien excludable at the time of entry

under 24l(a) (1), 8 U.S.C. 1251(a) (1), as

an immigrant not in possession of a valid

immigrant visa, thus falling under the

exclusionary provisions of Section 212 (a)

(19), 8 U.S.C. 1182(a) (19) (Appendix E,

infra, p. 36). That proceeding was found

to have been dropped erroneously by the

District Director in a decision rendered |

Oe ne) ee ee

by the Special Inquiry Officer and avail-

able to the United States Court of Appeals

for the Tenth Circuit on review. (Appendix

C, infra, p. 22.) Had those proceedings

been allowed to continue, a defense under

Immigration and Nationality Act of 1952,

§ 241(f), 8 U.S.C. 1251(£), would have been

directly related to the charge involved.

Petitioner did not leave the United

States on December 24, 1971. On April 13,

1972, deportation proceedings were init-

iated against Petitioner on the grounds

that she had overstayed her temporary

visitor's visa which resulted in a finding

by the Special Inquiry Officer that Peti-

tioner was deportable and not entitled to

relief under § 241(f) of the Immigration

and Nationality Act, 8 U.S.C. 1251(f),

ruling that § 241(f) applies only to aliens

who have obtained immigrant visas by fraud.

Petitioner did, however, during the course

of the hearing, attempt to demonstrate that

under § 241(f£) of the Immigration and

Nationality Act, 8 U.S.C. 1251(f£), she

was saved from deportation because she had

procured her nonimmigrant visa by fraud,

she was “otherwise admissible at the time

of entry," and she possessed the familial

relationship required by the statute. On

January 22, 1973, the Board of Immigration

Appeals dismissed Petitioner's appeal and

ordered her deportation.

The record of the earlier deportation

action was received into evidence in the

instant action. The decision of the Court

of Immigration Appeals was subsequently

appealed to the United States Court of

Appeals for the Tenth Circuit, automatically

staying Petitioner's deportation.

2° 2 <«+- << eo-+-re+8 7. 2-6 “2 a

The Court of the first instance in

the case at bar was the Special Inquiry

Officer of the Immigration and Naturaliza-

tion Service, whose jurisdiction rests on

Article I, Section 8, Clause 4, of the

United States Constitution, which gives

Congress authority to establish a uniform

rule of naturalization. Statutorily,

such jurisdiction rests on Title 8 U.S.C.

Section 1252 which specifically grants

jurisdiction in such cases to a Special

Inquiry Officer. The Court of Immigration

Appeals obtained its jurisdiction by

virtue of Title 8 C.F.R. Section 3.1

pursuant to Title 8 U.S.C. Section 1103.

The jurisdiction of the United States

Court of Appeals rests on Title 8 U.S.C.

Section 1105 (a) (2).

6. Argument

Petitioner submits that the United

States Court of Appeals for the Tenth

Circuit, in affirming the Court of Immi-

gration Appeals, has rendered a decision

in conflict with a prior applicable decision

of this Court interpreting Title 8 U.S.C.

1251(£), Immigration and Nationality Act

of cag Section 241(f) (Appendix C, infra,

Pp. 2

Petitioner further submits that if

the decision of the Circuit Court is not

in conflict with the prior applicable deci-

sion, it is because the prior applicable

case did not decide directly on the same

facts the question in issue, and that the

scope of a Congressional act is in question

and should be decided by this Court,

A. Section 241(f) is a remedial i

statute and should be construed liberally.

The government urges a narrow reading |

of Section 241(f) which would limit the

scope of its application solely to those

aliens entering the United States with a

fraudulently procured immigrant visa.

However, a narrow construction of the

statute is completely contrary to the

tenor of this Court's decision in Immi-

ration and Naturalization Service v.

Errico, 365 U.S. 214 (1966). There this

Gourt held that a literal application of

the statute would strip it of practically

all meaning, and thus contravene its broad

humanitarian purpose of preventing the

separation of family members. The Court

placed considerable stress upon the reme-

dial nature of the statute and emphasized

that if any doubt exists as to its proper

construction, such doubt should be resolved

in favor of the alien. And the Court

stated that,

",... the administrative author-

ities have consistently held

that Section 241(f) waives any

deportation charge that results

directly from the misrepresenta-

tion regardless of the section

of the statute under which the

charge was brought, provided

that the alien was ‘otherwise

admissible at the time of

entry'" (385 U.S. at 217).

Literally, 8 U.S.C. 1251(f£) applies

only when an alien is charged with entering

in violation of 8 U.S.C. 1182(a) (19), which

exludes from entry “any alien who *** has

procured a visa or other documentation ***

by fraud, or by willfully misrepresenting

a material fact ***," In Immigration and

Naturalization Service v. Errico, 355 U.S.

’ ’ e Court rejected such a literal

reading of 8 U.S.C. 1251(f). In Errico,

= : 7

“supra, the Court held that Section 1251(£)

sateen deportation of two aliens who had

fraudulently procured immigrant visas.

One had misrepresented his occupational

eligibility for first preference quota

status; the other had entered into a fraud-

ulent marriage in order to obtain nonquota

status as the spouse of an American citizen.

The Immigration and Naturalization service

brought deportation charges against the

former on the ground that he was excludable

at the time of entry as not of the proper

status under the quota specified in the

immigrant visa, and against the latter on

the ground that she was not a nonquota

immigrant as specified in her visa. The

Court expanded the interpretation of Section

241(f) for the benefit of the aliens in

holding that fraud in concealing or mis-

stating a material fact in gaining immi-

.grant visas to avoid quota restrictions

did not destroy the alien's status as being

otherwise admissible, and that therefore

it did not matter that the quotas for the

aliens' countries were over-subscribed at

the time of their entry.

No support can be found in the express

language of Section 241(f£) for the govern-

ment's contention that the benefits of this

statute should be limited to aliens who

have been admitted with fraudulently pro-

cured immigrant visas. Congress used the

broadest possible language in the statute

encompassing "aliens who have sought to

procure, or have procured visas or other

documentation, or entry into the United

States by fraud or misrepresentation."

Congress did not qualify the word "visas"

with the word "immigrant," nor did it spe-

cify any particular type of "documentation,"

nor did it define "alien" as immigrant

alien, nor for that matter, did it require

er SR aa an S58

ad 6 © e = . . ees - a] <2 . - - =

an alien to have sought to procure or have

procured any visa or other documentation

by fraud or misrepresentation. All that

is required by the terms of the statute

is that an alien has sought to procure or

has procured "entry" into the United

States by fraud. The language of the sta-

tute clearly indicates that Congress was

not concerned with the manner in which an

alien entered the United States. Rather,

Congress was concerned with excusing all

fraudulent entries provided the alien has

the requisite familial relationship and

is not excludable from the United States

on any of the qualitative grounds enumer-

ated in Section 212 of the Immigration and

Nationality Act, 8 U.S.C. 1182.

B. The deportation charge is not

controlling in determining the applica-

bility of Section 241(f).

The government places reliance upon

the deportation charge as being determin-

ative of an alien's eligibility for a

waiver of deportability under Section

241(f). It is contended that the statute

does not apply to the Petitioner because

the government did not charge her with

deportability under Section 241(a) (1) of

the Immigration and Nationality Act, 8

U.S.C. 1251(a) (1), as an alien who has

committed fraud in seeking entry or in

procuring entry documents within the ambit

of Section 212(a) (19) of the Immigration

and Nationality Act, 8 U.S.C. 1182(a) (19).

The Petitioner is, of course, amenable to

deportation under Section 241(a) (1) as

an alien who falls within the exclusionary

provisions of Section 212(a)(19). Under

identical circumstances, the alien was

charged with deportability under Section

241 (a) (1) in Muslemi_ v. Immigration and

7 -

e“@ en * i

Naturalization Service, 408 F.2d 1196 (9th

Cir. 1969). See, Milande v. Immigration

and Naturalization Service, Docket No.

72-1529 (?th Cir. 1973). (Appendix I,

infra, p. 49.)

In effect, the government says that

it may make the determination of who is to

receive benefits under the statute simply

by its selection of the deportation charge,

regardless of the operative facts of the

case. One who is deserving in the eyes of

the government could be charged with fraud

in obtaining entry in order to qualify

for the benefits of the statute, whereas

the supposedly undeserving alien could be

charged with overstaying as the Petitioner

was. As authority for this proposition,

the government will rely on Ntovas v.

Ahrens, 276 F.2d 483 (7th Cir. 1960),

certiorari denied, 364 U.S. 826. However,

that case was decided prior to this Court's

decision in Errico which rejected a formal-

istic approach to the interpretation of

Section 241(f). None of the principles

laid down by this Court in Errico were

considered in Ntovas.

The government will also rely upon

two cases decided subsequent to this Court's

decision in Errico, both of which involved

aliens whose deportation was ordered on

the charge of overstaying their authorized

period of temporary admission. Ferrante v.

Immigration and Naturalization Service, 399

F.2d 908 (oth Cir. 1968); Tsaconas v. Immi-

ration and Naturalization Service, 307

F.2d 946 (?th Cir. 1968). In both of these

cases, the aliens sought to invoke Section

241(f). However, they were unsuccessful ;

in both instances because there was no evi- F

dence that they had gained entry by fraud 4

or misrepresentation.

_- -- 2. . .* . . --. ied _* - e7-@

In Vitales v. Immigration and Natu-

ralization Service, 443 F.2d 345 (9th Cir.

, tor which certiorari was granted

by this Court, the Ninth Circuit held that

Section 241(f£) relief was available to

aliens in possession of a nonimmigrant

visa. The subsequent Ninth Circuit deci-

sion, Cabuco-Flores v. Immigration and

Naturalization Service, Docket No. 72-1333

ir. ppendix H, infra, p. 41),

did not technically reverse Vitales, but

did reverse the position expressed therein

inasmuch as Vitales had become moot by

the alien's removal to the Philippines

before the Court decided the issue. Cabuco-

Flores, supra, sustained deportation on

the ground that,

"... the charge of remaining

after the expiration of the

period permitted by each peti-

tioner's visa was not waived

by Section 241(f) because it

did not depend directly or

indirectly upon the asserted

misrepresentation in obtaining

the visas." _— F.2d at.

The government in effect argues that

Petitioner is deportable because she has

overstayed her visitor's visa and she does

not have a valid immigrant visa.

The aliens in Errico did not have

valid immigrant visas. Their immigrant

visas were not properly issued, and they

were not eligible immigrants under the

provisions of the Immigration and Nation-

ality Act. A fraudulently procured immi-

grant visa is equivalent to no visa. It

makes little sense to argue that an alien

with an invalid visa (no visa) should

somehow be preferred to an alien without

any visa. Hence, there is no rational

« eo +27 « os @

basis for giving preferential treatment

to the alien who is admitted with a fraud-

ulently procured immigrant visa. An

alien who overstayed his time on a visitor's

visa is in effect being charged with failure

to have an immigrant visa. Petitioner in

this case was specifically so charged

(Appendix E, infra, p. 36). That charge

was later dropped (Appendix F, infra, p.

38) in favor of a charge of simple Overstay,

The Seventh Circuit decision, Milande

v. Immigration and Naturalization Service,

supra, feta open the issue of whether or

not the defense of fraud in the entry would

be available as an affirmative defense to

nonimmigrants when the charge is brought

on grounds of fraud rather than grounds of

overstay. It stretches credulity to envision _

a charge of fraud in the entry being made

with respect to a nonimmigrant when it has

been decided in a number of circuits that

a charge of overstay will accomplish certain

deportation. Thus even though the question

technically is still open to adjudication

it as a practical matter would seem to be

foreclosed. The real issue then is the

Status of the alien as immigrant or non-

immigrant and not the charge brought.

The Court below found that Petitioner

had a concealed intent to remain and that

this concealed intent to remain did not give

rise to a deportation charge that "results

directly from the misrepresentation." ;

Immigration Service v. Errico, supra, at

217. There is, however, on the facts of

the case, little if no difference in Peti-

tioner's position and that of one of the ;

aliens in Errico,

"The issue is whether the statute

saves from deportation an alien

a —

- - “oe; * . ad --

who misrepresents his status

for the purpose of evadin uota

Seatrictions, if he has the

necessary familial relationship

to a United States citizen or

a lawful permanent resident."

Immigration Service v. Errico,

supra, at 5 [Emphasis added].

Petitioner Scott, in Errico, entered

into a sham marriage for the purpose of

obtaining non-quota status. She had never

lived with her husband and never intended

to do so. Her concealed intent was to remain

separate and apart from her sham spouse.

In fact all species of fraud of necessity

must involve some concealed intent. Peti-

tioner Scott was charged with obtaining

entry documents by fraud and therefore

failure to have a valid immigrant visa.

The position of the Petitioner Scott and

Petitioner Preux is essentially the same.

The practical effects of excluding nonim-

migrants from protection is to circumvent

the humanitarian purpose of the statute.

C. A liberal interpretation of Sec-

tion 241(f) is not inconsistent with other

provisions of the Act and does not create

enforcement problems.

The government will urge that peti-

tioner's interpretation of Section 241(f)

conflicts with other provisions of the

Immigration and Nationality Act and would

create problems of enforcement of the immi-

gration laws by allowing aliens to bypass

a screening process. Both of these arguments

were advanced in the government's petition

for rehearing and suggestion for rehearing

in Lee Fook Chuey v. Immigration and Natu-

ralization Service, 439 F.20 244 (Oth Cir,

1971). in its order denying the government's

position, the Court found that the various

sections of the Immigration and Nationality

Act cited by the government did not evi-

dence a statutory scheme pointing toward

the limitation of Section 241(f) relief

only to those who submitted themselves to

the immigrant visa issuing procedure.

As the Court observed in Lee Fook

Chuey, supra:

"Almost invariably, by the time

that the relief provision of

241(f) is invoked, the integrity

of the immigrant visa system

has been long violated. Section

241(f) deals with the problem

after the breach has occurred,

When Congress enacted this

provision, it was reconciling

strong and conflicting policies.

Congress was dealing with prob-

lems arising from violations

of the visa system, and had to

do so in the context of ongoing

family ties and expectations

which had developed for many

years after the breach. Without

placing blame, we believe Section

241(f) as we have interpreted ;

it, is the result of the inef- 4

fective enforcement of the

Immigration laws, not the cause

of it. (439 F.2d at 250).

7. Conclusion ‘

Because of the humanitarian purpose

of Section 241(f), and because the language

of that statute is couched in the broadest

possible terms, a fair reading of Errico,

supra would mandate according Petitioner

relief under that section.

EFAS DAIS RIAA INRER " iAH RATA AIEEE ONL IIL MIME REID

tf in fact this Court believes*that —

the recent Circuit opinions are in conformity

with the Errico decision, then Petitioner

would urge this Court to reconsider the

intended scope of the statute in light of

the particular facts presented by this

case.

Respectfully submitted,

LOA E. BLISS

JAMES R. BARASH

Pikes Peak Legal Services

104 South Tejon

Suite 300

Colorado Springs, Colorado

80902

Telephone: (303) 471-0380

Attorneys for Petitioner

‘i —

“APPENDIX A:

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TERM -- 1973

MONIQUE PREUX,

Petitioner,

IMMIGRATION AND NATURAL-

IZATION SERVICE, and

JOHN L. TODD, District

Director,

ee a ae ees eres oe

eee eee ee eee ee ee ee

Respondents.

Petition for Review of an Order of the

Immigration and Naturalization Service

James R. Barash (Loa E. Bliss, on the brief),

for Petitioner.

Bruce R. Heurlin, Attorney, Department of

Justice (John L. Murphy, Chief, Government

Regulations Section, Criminal Division,

on the brief), for Respondents.

Before BREITENSTEIN, MCWILLIAMS and BARRETT,

Circuit Judges.

MCWILLIAMS, Circuit Judge.

Monique Preux, a Belgian national,

has filed in this court pursuant to 8 U.S.C.

SERRE SOMMER RED I IIP A RENAN ELIE IR ALE EISELE OPEL Br UMM IE SASTRY EIS

Bieta. orem —

§ 1105(a) a petition to review an order’ of ©

the Immigration and Naturalization Service

that she be deported. In our view the

order of deportation is proper and should

be affirmed.

Preux first entered the United States

on a visitor's visa on November 28, 1969,

and while in the United States gave birth

to a child. Preux thereafter returned with

the child to Belgium and later reentered

the United States with the child on June

25, 1971, on a six months nonimmigrant

visitor's visa. Accordingly, the visitor's

visa expired on December 24, 1971. Preux,

however, did not then leave the country

and has thereafter at all times resisted

efforts to deport her.

After deportation proceedings, an

order was entered that she be deported

ursuant to the provisions of 8 U.S.C. §

1251(a) (2). The precise grounds for deport=

ation, and this we deem to be of importance,

was simply that she had overstayed the time

limitation in her visitor's visa and was

accordingly no longer lawfully within the

United States.

Preux concedes that she has over=-

stayed her visitor's visa, but asserts

that because of the ameliorative provisions

of 8 U.S.C. § 1251(f) she cannot be de-

ported. Accordingly, 8 U.S.C. § 1251 (f)

is at the heart of the present controversy.

That statute reads as follows:

"The provisions of this sec-

tion relating to the deportation

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 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 * * *,"

It is Preux's theory of the case that

she obtained her six months visitor's visa :

as the result of fraud and misrepresentation, —

the fraud and misrepresentation being that

when she obtained the six months visitor's

visa she had a concealed intent not to leave

at the end of six months and, on the con-

trary, intended to stay permanently in the

United States, and that had she revealed

her true intent in this regard she would

have been denied a visitor's visa. Such,

according to Preux, brings into play the

humanitarian provisions of 8 U.S.C. § 1251

(£) and precludes her deportation.

This precise argument has been recently ©

considered, and in each instance rejected,

by the Ninth and Seventh Circuits. Lourdes

Cabuco-Flores v. Immigration and Naturali-

zation Service, Nos. 72-1333 and 72-1818

(9th Cir. April 13, 1973), and Milande v.

Immigration and Naturalization Service, No.

72-1529 (7th Cir, July 5, 1973).

In Cabuco-Flores, the Ninth Circuit

held that a deportation order based on over=

staying one's visitor's visa did not bring

into play the provisions of 8 U.S.C. §

1251(f) because the deportation order "did

not depend directly or indirectly upon the

asserted misrepresentation in obtaining

the visa."

Re AE EI SS = BE FEI EE LOE DONO CPD 5 CR IOI TINGE aL SERB IEE Sie aie oe _ i

as en Ses +a 7 : spi aid ani) SaaS iy

Pt Set TN STROM TUR tS? ROE toe RE ‘i

In Milande, the Seventh Circuit

"agreed" with the ruling in Cabuco-Flores

and in like fashion held that the provi-

sions of 8 U.S.C. § 1251(f£) are “available

only when the fraud is relevant to the

charge for which deportation is sought."

Accordingly, in both Cabuco-Flores

and Milande, it was held that one subject

to a deportation order on the grounds

that his visitor's visa had expired could

not invoke the provisions of 8 U.S.C. §

1251(f£) on the plea that when he obtained

his visitor's visa he did so with fraud

and misrepresentation in that he did not

intend to leave when his visitor's visa

expired and that he intended to stay

permanently in the United States. We

subscribe to both the reasoning and the

result in Cabuco-Flores and Milande.

We are not unaware of Immigration

and Naturalization Service v. Errico, 385

U.S. 214 (1966), which did not deal with

an overstayed visitor's visa, but concerned

two persons who had gained entry into the

United States as immigrants, as opposed

to visitor status, by fraud and misrepre-

sentation. However, as was deemed to be

true in both Cabuco-Flores and Milande,

we believe our disposition of the present

controversy to be in full accord with the

reasoning of Errico. Errico suggests to

us, too, that the provisions of 8 U.S.C.

§ 1251(£) may operate as a waiver of a

deportation charge if, and only if, the

deportation charge “results directly from

the misrepresentation." Such is not true

in the instant case.

Order affirmed.

APPENDIX B:

: a

UNITED STATES DEPARTMENT OF JUSTICE

Board of Immigration Appeals

File: Al19 821 979 - Denver

In re: MONIQUE PREUX

IN DEPORTATION PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

James R. Barash, Esq. &

Loa E. Bliss, Esq.

Legal Services of El Paso Co.

104 South Tejon Street

Colorado Springs, Colorado 80902

ON BEHALF OF I&N SERVICE:

William E. Weinert, Esq.

Trial Attorney

CHARGES:

Order: Section 24l(a) (2), Immigra-

tion and Nationality Act -

remained longer nonimmigrant

visitor

Lodged: None

APPLICATION: Termination of proceedings

This is an appeal from an order of

a special inquiry officer finding the

respondent deportable and directing her

deportation to Belgium. The appeal will

be dismissed.

Our review of the record and briefs

on appeal satisfies us that the hearing

, : POS MRI SEL ES

elit il oes

was fair, that deportability has been estab-

lished by clear, convincing and unequivocal

evidence, and that the special inquiry

officer properly applied the pertinent legal

principles. Section 241(f) of the Immigra~

tion and Nationality Act does not benefit

respondent, since she entered as a nonimmi-

grant, Matter of Mangabat, Interim Decision

2131 (BIA 1972). The District Director's

denial of an extension of stay is not review=-

able by a special inquiry officer or this

Board, Matter of Sourbis, 11 I&N Dec.

(BIA 1965).

ORDER: The appeal is dismissed.

Chairman

335

' APPENDIX C:

UNITED STATES DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

File: Al19 821 979 = Denver

In the Matter of §

MONIQUE PREUX § IN DEPORTATION

Respondent § PROCEEDINGS

CHARGE: I&N Act - Section 241l(a) (2),

remained longer nonimmigrant

visitor

APPLICATION: Termination under Section

241 (£)

IN BEHALF OF RESPONDENT:

James R. Barash, Esq. &

Loa E. Bliss, Esq.

Legal Services of El Paso Co.

104 South Tejon Street

Colorado Springs, Colo. 80902

IN BEHALF OF SERVICE:

William E. Weinert, Esq.

Trial Attorney

El Paso, Texas 79984

DECISION OF THE SPECIAL INQUIRY OFFICER

The respondent is a female alien, of uncer-

tain marital status, 22 years old, and a

native and citizen of Belgium who has con-

tested deportability. In pleading to the

order to show cause herein (Exhibit l),

the respondent admitted allegations one,

two, and three; she admitted allegation

four "with an explanation" and without

further elaboration as to the "explanation" ]

and hence she is regarded as having denied

allegation four in view of this allegation ib

RASS SENS Be ha Si

not being unequivocally admitted; she denied

allegation five; and she denied that she

was deportable as charged.

The Government introduced into evidence,

in support of the charge of deportability

and to prove the allegations which were

contested, a photo copy of pertinent por-

tions of the respondent's passport (Exhibit

2), an application to extend time of tem-

porary stay executed by the respondent

herein which was filed with the Denver Office

of the Immigration Service on December 8,

1971 (Exhibit 3), and a letter dated January

24, 1972, from the District Director at

Denver to the respondent advising her that

her application for extension of stay was

denied (Exhibit 4). Page 14 of the respond-

ent's passport shows that she was admitted

to the United States on June 25, 1971, at

the port of New York. Allegation three

of the order to show cause states this fact

and the respondent admitted this allegation.

Page 15 of the respondent's passport con-

tains a nonimmigrant visa issued to the

respondent at the United States Embassy

at Brussels on June 3, 1971, under classi-

fication "B-2" and this visa recites that

it is valid indefinitely for multiple

applications for admission into the United

States. I take administrative notice that

classification "B-2" means a nonimmigrant

visitor for pleasure as defined in section

101 (a) (15) (B) of the Immigration and Nation-

ality Act. In her application for extension

of time of temporary stay which the respond-

ent executed on December 7, 1971, and sub-

mitted to the Denver Office of the Immigra-

tion Service on December 8, 1971 (Exhibit

3), she stated that her nonimmigrant class-

ification was that of a tourist (B2), that

her authorized stay expires December 24,

1971, that the date and port of her last

arrival in the United States was June 25,

1971, at New York (items 5 §°6), and that

she desired an extension until June 24,

1971 (item 7). In this.application she

stated also that she was not married but

that she had a child Amorette Teresa Ortiz,

born September 5, 1970, in the United

States (item 16) and she stated that she,

in addition to using the name Monique Preux

also used another name "Ortiz" (items 1

& 2). A lengthy statement prepared by one

of the two attorneys presently representing

the respondent is attached to the aforesaid

application for extension of stay and

there is also attached to this application

a birth certificate of the child Amorette

Teresa Ortiz. In his letter of January

24, 1972 addressed to the respondent

(Exhibit 4), the District Director of

Denver advised her that her application

for extension of temporary stay was denied

and stated two reasons for the denial.

In addition, the respondent was informed

that she would have to depart from the

United States not later than February 3,

1972,

On her part, the respondent presented no

evidence to controvert the evidence above

submitted by the Government nor has she

made any claim that she was granted an

extension of stay or given any permission

to remain in the United States beyond

February 3, 1972. She has, however, con-

tended that she is immune from deportability

and this will be considered later below.

Section 214(a) of the Immigration and

Nationality Act [8 U.S.C. 1184(a)] contains

the statutory authorization for the admis-

sion to the United States of nonimmigrant

aliens and for their stay in this country.

That section provides for the issuance of

OAT LEER TBA MDE ERS TS RED NEE LOSING BOE EIE SPIE EY APOE TON NTT RIS Pe nF ORT fi ~e ATR RE: eer,

BEG ancy

regulations in connection with the admis-

sion and stay in the United States by such

individuals. The regulations which have

been promulgated and which are pertinent

to the issue here with reference to the

admission and stay of this respondent in

the United States as a nonimmigrant visitor

for pleasure, Classification "B-2," are

found in 8 C.F.R. 214.1 and 214.2(b). The

admission of the respondent to this country

as a nonimmigrant visitor on June 25, .

1971, was governed by these regulations

and her further continuance in this country

and request for an extension of stay are

also governed by these regulations.

Within the purview of these regulations

the denial of the respondent's application

for extension of stay by the District

Director at Denver which has been referred

to above was an action that is not appeal-

able. The action of the District Director

was not arbitrary and he informed the

respondent of the two reasons why he —

denied her application for further exten-

sion of nonimmigrant visitor stay in

this country as is shown by reference

to his letter of January 24, 1972 (Exhibit

4). The validity of these reasons is

confirmed by the respondent's own testimony

in the course of the instant deportation

proceeding where she stated that she wished

to continue to remain in the United States

(R. 10) and that when she entered the

United States on June 25, 1971, she entered

intending to remain in this country and

she still wished to remain in this country

(R. 20 & 21). Further testimony on the

part of the respondent during the course

of the hearing shows that she had formed

a liaison with a man by the name of Maur-

‘nice Ortiz otherwise known as Jimmy Brown

of Colorado Springs, Colorado, and that

she has been living with this man, The

child Amorette Teresa Ortiz is the issue

of their relationship. Testimony by this

individual during the hearing confirmed

this fact. During the course of the hearing

the testimony of the respondent and Ortiz/

Brown was to the effect that they have

created a common-law marital relationship

between them in the State of Colorado.

However, reference to the application for

extension of stay made by this respondent

(Exhibit 3) shows that she stated therein

she was not married (item 16). All of

these facts show that the District Director

at Denver did not act in an arbitrary

fashion in denying the respondent's appli-

cation for extension of stay.

I find from the evidence adduced herein

that allegations four and five of the order

to show cause have been established by

Clear, convincing, and unequivocal evidence.

Allegations one, two, and three were admitted

by the respondent and have also been estab-

lished or corroborated by the evidence

herein. I conclude, therefore, that the =

respondent is now deportable under section

241 (a) (2) of the Immigration and Nationality

Act as an alien who, after admission as a

nonimmigrant under section 101l(a) (15) of

said Act, has remained in the United States

for a longer time than permitted, as charged

in the order to show cause.

Counsel for the respondent has moved for

termination of the proceedings under section

241(£) of the Immigration and Nationality

Act [8 U.S.C. 1251(£)] upon the ground that

the respondent as the mother of a United

States citizen, the child Amorette Teresa

Ortiz, is entitled to relief under this

section. The birthof this child in Colorado

is established by the evidence herein (Exhi-

bit 7) and the Government has conceded that q

the respondent is the mother of this child. ,

mneaiepitstererm at) . me

SIRE VR AP MR EM RAR IGEN a: LRM Ee REIT RON aD SB A PORE EEG NL mc BVI YE aR

PPE POLARS aE

The respondent testified that she entered

the United States with the intention of

remaining in this country and that she still

had the same intention, that she obtained

the nonimmigrant visitor's visa which she

used to enter this country because this was

the only visa available to her at the time,

that she did not request a different type

of visa than the visitor's visa because

she knew she would not be granted one (R.

20 & 21). Counsel for the respondent has

contended, also, that the Government had

instituted an earlier deportation proceeding

with reference to this respondent based on

the charge that the respondent at the time

of entry to the United States came into

this country for the purpose of resuming

residence with a man with whom she had

earlier resided in the United States and

that hence the respondent at the time of

entry was excludable as an alien who did

not have a valid immigrant visa. The record

of that earlier deportation proceeding,

which was before myself, has been received

into evidence in the instant proceeding

(Exhibit 6). After the hearing based on

that earlier order to show cause had been

opened and adjourned by me to a later date,

it had been "cancelled" by the District

Director at Denver under the authority of

8 C.F.R. 242.7 on November 23, 1971, and

some months later, on April 13, 1972, the

instant deportation proceedings were com-

menced by issuance of the present order to

show cause herein (Exhibit 1). The action

of the District Director in cancelling the

earlier order to show cause (Exhibit 6)

was erroneous on his part under the regu-

lation, 8 C.F.R. 242.7, for the reason that

the hearing thereunder had been opened by

me on October 27, 1971, and the proper

course of procedure would have been to

move that the case be dismissed for any

= — :

of the reasons shown in the regulation. The

error, however, was harmless for the Immigra-

tion Service could have lodged another

charge, such as the present charge of deport-

ability stated in the current order to show

cause (Exhibit 1), in a subsequent session

of the hearing had the hearing been resumed

at a later date as was contemplated when I

adjourned it after the session held on Octo-

ber 27, 1971. Reference to the transcript

of that session of the hearing shows that

the Trial Attorney announced the Government

intended to lodge another charge, albeit

under section 241l(a) (9) of the Immigration

and Nationality Act (see p. 8 of the trans-

cript, part of Exhibit 6). Also, in the

continued hearing, if one had been held,

the Government could have withdrawn and

abandoned the original charge of deporta-

bility stated in the order to show cause by

which the earlier deportation proceedings

had been commenced (Exhibit 6).

In support of his contention that the re-

spondent is immune from deportability under

section 241(f) of the Act, counsel for the

respondent has cited INS v. Errico, 385 U.S.

214 (1966) and Perkins v. Blg, 307 U.S. 325

(1939). The latter case is Stearly inapposite.

It is concerned only with the issue of whe-

ther or not Elg lost United States citizenship

by the action of her parents and by holding

that she had not lost United States citizen-

ship it was ruled that Elg was not under

the jurisdiction of the deportation statute.

The matter of the applicability of the

Errico decision needs to be considered,

however. The principle of the Errico deci-

sion is not applicable to aliens who are

deportable on a charge that they are non-

immigrants who overstayed temporary admission

in the United States and hence relief from \

deportability under section 241(f) of the 4

as PS ERIE RE NR CUE MOREA RE een Me RRL ORE PINAL AI LEE ARs PONTE

ERLE

Act will not be granted to a respondent

who is being charged with deportability

as an overstay visitor. Tsaconis v. INS,

397 F.2a 946 (7th Cir. 1968); Ferrante v.

INS, 399 F.2d 98 (6th Cir. 1968); Contra,

Vitales v. INS, 443 F.2d 343 (9th Cir.

. Subsequent to the decision in the

-Witales case the Board of Immigration

Appeals held that that decision is not

binding on a nationwide basis and that

the provisions of section 241(f) of the

Act do not benefit an alien who entered

the United States as a nonimmigrant.

Matter of Mangabat, Int. Dec. 2131 (1972).

Similarly, Matter of Koryzma, Int. Dec.

2033 (1970). With reference to the con-

tention of counsel for the respondent

during the hearing that the Government

originally instituted a deportation hearing

with reference to this respondent on a

charge based that she was deportable for

the reason that she was excludable at the

time of entry as an immigrant without a

visa (Exhibit 6), and then subsequently

dropped this charge in favor of the present

charge of deportability, the Government

may select the charge it wishes to proceed

with and an alien cannot complain that a

charge was not selected which would have

been more advantageous to him because he

could thereby benefit from certain provi-

sions of the statute providing for discre-

tionary relief if the charge desired by

the alien had been used. Ntovas v. Ahrens,

276 F.2d 383 (7th Cir. 1960), cert. den.

364 U.S. 826; Loos v. INS, 407 F.2d 651

(7th Cir. 1969), cert. den. 396 U.S. 877.

Although earlier in the hearing counsel

for the respondent indicated that the

respondent would seek relief as the spouse

of a United States citizen, counsel finally

elected not to proceed for such relief.

BRAINS eK

AHO WALTHER ET

Counsel indicated toward the close of the :

hearing that the respondent would not seek :

to adjust status under section 245 of the ;

Immigration and Nationality Act and relied

only upon relief under section 241(f) of

the Act. In view of this it will not be

necessary to comment on the lengthy testi-

mony which was adduced with reference to

whether or not this respondent was married

to Maurnice Ortiz, otherwise known as Jimmy

Brown and whether that individual was a

United States citizen. If Ortiz/Brown is

a United States citizen and if the respondent

is validly married to him, he may, if he

wishes, file a visa petition with the Dis-

trict Director of the Immigration Service

at Denver and thereby establish for the

respondent immediate relative status under

section 201(b) of the Immigration and Nation-

ality Act. Such status having been estab-

lished in that manner, the respondent may,

if she chooses, seek to reopen the instant

deportation proceedings to give her an

opportunity to file an application for

adjustment of status to that of resident

alien under section 245 of the Immigration

and Nationality Act. Up to the present

time she has not elected to seek an adjust-

ment of status thereby. She may, of course,

also seek to obtain an immigrant visa once

she has departed from the United States and

wishes to return to this country at a later

time.

The respondent has made no application for

voluntary departure. She relies entirely

upon the contention that she is not deport-

able under section 241(f) of the Act. As

I have already concluded that relief under

that section is not available to her she

will be ordered deported to Belgium, the

country that she designated.

ORDER: IT IS ORDERED that the respondent's

motion for termination of the deportation

proceedings pursuant to section 241(f) of

the Immigration and Nationality Act is

hereby denied.

IT IS FURTHER ORDERED that the respondent

be deported from the United States to

Belgium on the charge contained in the

order to show cause.

B. S. Karmiol

Special Inquiry Officer

ee ee a. « SERRATE maa

’ APPENDIX D:

8 USC 1101(a) (3), Immigration and Nation-

ality Act of 1952 § 101(a) (3)

(a) As used in this chapter -

(3)

The term "alien" means any person

not a citizen or national of the

United States.

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

Nationality Act of 1952 § 101(a) (15) (B)

(a)

(15)

(B)

As used in this chapter -

The term "immigrant" means every

alien except 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

pleasure;

8 USC 1182(a) (19), Immigration and Nation-

ality Act of 1952 § 212(a) (19)

(a) Except as otherwise provided in

this chapter, the following

classes of aliens shall be ineli-

gible to receive visas and shall

be excluded from admission into

eae

‘

{

ee BO ES

BUND AS ih SARC SNR SIS sla iS Dees BRD AE ER BAS a its Sen os ain

(19)

the United States:

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;

8 USC 1182(a) (20), Immigration and Nation-

ality Act of 1952 § 212(a) (20)

(a)

(20)

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:

Except as otherwise specifically

provided in this chapter, any

immigrant who at the time of

application for admission is

not in possession of a valid

unexpired immigrant visa, re-

entry permit, border crossing

identification card, or other

valid entry document required

by this chapter, and a valid

unexpired passport, or other

suitable travel document, or

document of identity and nation-

ality, if such document is re-

quired under the regulations

issued by the Attorney General

pursuant to section 118l(a) of

this title;

8 USC 1201(a) (2), Immigration and Nation-

ality Act of 1952 § 221(a) (2)

(a) Under the conditions hereinafter

prescribed and subject to the

limitations prescribed in this

chapter or regulations issued

thereunder, a consular officer

may issue

(2) to a nonimmigrant who has made

proper application therefor, a

nonimmigrant visa, which shall

specify the classification under

section 110l(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 required.

8 USC 1251(a) (1), Immigration and Nation-

ality Act of 1952 § 241(a) (1)

(a) Any alien in the United States

(including an alien crewman)

shall, upon order of the Attorney

General, be deported who -

(1) at the time of entry was within

one or more of the classes of

aliens excludable by law existing

at the time of such entry.

8 USC 1251l(a) (2), Immigration and Nation-

ality Act of 1952 § 241(a) (2)

(a) Any alien in the United States

(including an alien crewman)

shall, upon the order of the

Attorney General, be deported

who -

RS ME set asc aie sas an a Ss 2S eS a lala ele as aE ate ae ih CRN Laie a daha chica ede:

(2) entered the United States without

inspection orat 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 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 deportation 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 who 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.

‘ APPENDIX E:

UNITED STATES DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

ORDER TO SHOW CAUSE and NOTICE OF HEARING

In Deportation Proceedings under

Section 242 of the

Immigration and Nationality Act

UNITED STATES OF AMERICA:

In the Matter of

MONIQUE PREUX

Respondent.

——

To: Monique Preux File No. Al9 821 979

230 No. Wasatch Ave., Apt. 1, Colorado

Springs, Colorado 80903

UPON inquiry conducted by the Immi-

gration and Naturalization Service, it is

alleged that:

1. You are not a citizen or national

of the United States;

2. You are a native of Belgium

and a citizen of Belgium

3. You entered the United States at

New York, New York on or about June 25, 1971;

4. You were then admitted as a

visitor for pleasure and were authorized

to remain in the United States until Decem-

ber 24, 1971;

5. You had previously been admitted

as a visitor for pleasure November 28, 1969,

and had been authorized to remain in the

United States until September 1, 1971;

6. You had between November 28, 1969,

and May, 1971, resided in an illicit rela-

tionship with a man who was legally married

to another woman;

— - . — ett niet ad ii BLESS

re]

‘a

NADAL Ge hebsas ny sone the Lie SE

haa ees Mat aia

eh et SS MM SA

aN nee RN sah aaa att Hebe RRES

—

7. When you last entered June 25,

1971, you entered for the purpose of re-—

suming residence with that person in the

United States;

8. You were not in possession of

a valid immigrant visa.

AND on the basis of the foregoing

allegations, it is charged that you are

subject to deportation pursuant to the

following provision(s) of law:

Section 241(a) (1) of the Immigration and

Nationality Act, in that, at time of entry

you were within one or more of the classes

of aliens excludable by the law existing

at the time of such entry, to wit, aliens,

who are immigrants not in possession of a

valid unexpired immigrant visa, reentry

permit, border crossing card, or other

valid entry document and note exempted

from the possession thereof by said act

or regulations made thereunder.

WHEREFORE, YOU ARE ORDERED to appear

for hearing before a Special Inquiry

Officer of the Immigration and Naturali-

zation Service of the United States Depart-

ment of Justice at 17027 Federal Office

Building, 20th and Stout Streets, Denver,

Colorado 80202 on October 27, 1971 at 3:00

Pem., and show cause why you should not

be deported from the United States on the

charge(s) set forth above.

Dated: October 20, 1971

Issued: 2:50 p.m. IMMIGRATION AND NATURAL-

Form I-221 IZATION SERVICE

(Rev. 3-30-67)

/s/ Lloyd D. Prowell

Lloyd D. Prowell, Deputy

District Director

Denver, Colorado

' APPENDIX F:

A-19 821 979

17027 Federal Office Building

Denver, Colorado 80202

November 23, 1971

Miss Monique Preux

230 N. Wasatch Avenue, #1

Colorado Springs, Colorado 80903

Dear Miss Preux:

The deportation proceedings lodged

against you have been terminated and the

Order to Show Cause has been cancelled.

Enclosed find your passport and Form I-94

given to you at time of entry. Please

note that your authorized period of admis-

sion expires on December 24, 1971

Very truly yours,

John L. Todd

District Director

Enclosure

cc: Loa Elaine Bliss

Suite 300

104 S. Tejon

Colorado Springs, Colorado 80902

CERTIFIED MAIL - Return Receipt Requested

APPENDIX G:

UNITED STATES DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

ORDER TO SHOW CAUSE and NOTICE OF HEARING

In Deportation Proceedings under

Section 242 of the

Immigration and Nationality Act

UNITED STATES OF AMERICA:

In the Matter of )

MONIQUE PREUX )

Respondent. )

To: Monique Preux File No. Al9 821 979

230 No. Wasatch Ave., Apt. 1, Colorado

Springs, Colorado 80903

UPON inquiry conducted by the Immi-

gration and Naturalization Service, it is

alleged that:

1. You are not a citizen of the

United States;

2. You are a native of Belgium

and a citizen of Belgium

3. You entered the United States

at New York,-New York on or about June 25,

1971; , .

4, You were then admitted as a

visitor for pleasure and were authorized £

to remain in the United States until

February 3, 1972;

5. You have remained in the United

States beyond February 3, 1972, without

authorization.

AND on the basis of the foregoing

allegations, it is charged that you are

subject to deportation pursuant to the

following provision(s) of law:

Section 24l(a) (2) of the Immigration

and Nationality Act, in that, after admis-

sion as a nonimmigrant under Section 101

(a) (15) of said act you have remained in

the United States for a longer time than

permitted.

WHEREFORE, YOU ARE ORDERED to appear

for hearing before a Special Inquiry Officer

of the Immigration and Naturalization Ser-

vice of the United States Department of

Justice at 17027 Federal Office Building,

20th and Stout Streets, Denver, Colorado

80202 on April 26, 1972 at 2:00 p.m., and

show cause why you should not be deported

from the United States on the charge(s) set

forth above.

Dated: April 13, 1972

Issued: 9:15 am IMMIGRATION AND NATURAL=

Form I-221 IZATION SERVICE

(Rev. 3-30-67)

Lloyd D. Prowell, Deputy

District Director

Denver, Colorado

RPE NTS UP an br pe rea . ae 4 a

ERRORS ORD CO OE BMC IRA ADSENSE ROT PRR ER To maa ara tcp a ieatenitatiaies

ECR ESTO TT IRN Et

lain hte

Peer sng

APPENDIX H:

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOURDES CABUCO=-FLORES

Petitioner,

— ee we ee ee ee

IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

GENEVIEVE L. MANGABAT,

Petitioner,

Ne Ow we owes we we

IMMIGRATION & NATURALIZATION)

SERVICE, )

Respondent, )

)

(April 13, 1973]

On Petition to Review a Decision of the

United States

Immigration & Naturalization Service

Before: BROWNING, HUFSTEDLER and WALLACE,

Circuit Judges

BROWNING, Circuit Judge:

These petitions for review raise a

common question under 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 citizen

Or lawfully admitted permanent resident

may be waived as a ground for deportation.+

The issue is whether 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. Each 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

by her visa, and was therefore deportable

under section 24l(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 re-

jected the defense as to petitioner Mangabat

on the ground that section 241(f) applies

lsection 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 excludable at the time of entry as

aliens who have sought to procure, or

have procured visas or other documenta-

tion, 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,

re we = hops

° hae A w

only to persons who enter as immigrants

We sustain the deportation orders on

another ground, namely, that the charge of

remaining after the expiration of the per-

iod permitted by each petitioner's visitor's

visa was not waived by section 241(f) be-

cause it did not depend directly or indir~

ectly upon the asserted misrepresentation

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

or have procured visas or other documenta-

tion, or entry into

fraud or misrepresentation," in violation

of section 212(a) (19), 8 U.S.C. § 1182 (a)

(19). The Supreme Court rejected a literal

reading of section 241(f) in pen gration

Service v, Errico, 385 U.S. 2 °

s noting that by consistent admin-

istrative interpretation the section

Thus, while not limited to the single

ground for deportation found in section

2See Bong Youn Choy v. Barber, 279 F.2a

212 (a) (19), section 241(f) is properly

invoked only when the fraud is "germane

to the charge" upon which deportation is

sought, Muslemi v. Immigration & Natural-

ization Service, 408 F384 1156, 11598 (Sth

Cir. 1000) (see also Hames-Herrera v.

Rosenberg, 463 F.20 451, 454 (Sth Cir.

1972); Jolley v. Immigration & Naturali-

zation Service, 441 F.2d 1245, 1251-52,

1254 (5th Cir. 1971); Loos v. Immigration

& Naturalization Service, 407 F.2d 651,

cn Cal. ; Tsaconas v. Immigra-

tion & Naturalization Service, 397 F.

946 (7th Cir. 1968)),% and the charge

relates to entry. Hames-Herrera v. Rosen-

berg, supra; Khadjenouri v. Immigration

& Naturalization Service, 460 F 3a qé1l,

462 (9th Cir. 1972); Ferrante v. Immigra-

tion & Naturalization Service, 399 F.

58, 104 (6th Cir. 1968); Tsaconas v.

Immigration & Naturalization Service,

supra,.*

3"The statutory waiver excuses charges

which are incidental to the misrepresen-

tation, 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" (foot-

notes omitted). Gordon & Rosenfield, Immi-

gration Law & Procedure § 4.7c, 4-41.