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MATTER OF CASTILLO-SEDANO

In Exclusion Proceedings

A-31284721

Decided by Board September 5, 1975

As the California decree of annulment of applicant's marriage to a United States citizen was a default judgment procured by applicant's wife, and the evidence adduced at the hearing before the immigration judge showed that no fraud was involved, the relationback doctrine as set forth in Matter of Samedi, 14 I. & N. Dec. 625, is not followed with respect to the annulment of applicant's marriage, since to do so would result in a gross miscarriage of justice (Matter of B-, 3 I. & N. Dec. 102).

EXCLUDABLE: Act of 1952-Section 212(a)(14) [8 U.S.C. 1182(a)(14)]—No valid labor

certification.

Act of 1952-Section 212(a)(19) [8 U.S.C. 1182(a)(19)—Obtained visa by fraud or willful misrepresentation of material facts.

Act of 1952-Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—No valid immi

grant visa.

ON BEHALF OF APPLICANT:

Robert S. Fox, Esquire

Room 226, Dool Building

Calexico, Califronia 92231

ON BEHALF OF SERVICE:
Anthony M. DeGaeto
Appellate Trial Attorney

In a decision dated May 1, 1974, the immigration judge ordered the applicant's admission to the United States as a returning resident immigrant. The Service has appealed from that decision. The appeal will be dismissed.

The alien applicant is a native and a citizen of Mexico who was originally admitted to the United States for permanent residence on November 10, 1971. He was issued an immigrant visa and exempted from the labor certification requirements of section 212(a)(14) of the Immigration and Nationality Act on the basis of his marriage to a United States citizen on July 10, 1971.

In April 1972, the applicant became a commuter, residing in Mexico and entering this country on a daily basis to work. On August 14, 1973, in a California court, the applicant's spouse procured a decree of annulment of her marriage to the applicant.

When the applicant attempted to return to the United States on

approximately September 21, 1973, he was referred for an exclusion hearing. The Service contends that the applicant's marriage to a United States citizen was fraudulent and that he is therefore excludable under sections 212(a)(14), (19) and (20) of the Act.

The applicant testified at the hearing. His former wife did not. On the basis of the evidence adduced at the hearing, the immigration judge found that the applicant and his wife were close friends for approximately 18 months before their marriage and that they had resided together as husband and wife for approximately nine months. He also found that the judgment of nullity of the applicant's marriage was a default order and that it should not be considered an adjudication on the merits that the marriage was fraudulent. He found that the annulment was obtained as the result of incompatability or some other cause unrelated to evasion of the immigration laws.

The immigration judge considered the effect of Matter of Samedi, 14 I. & N. Dec. 625 (BIA 1974), which holds that annulments in California relate back to the date of marriage and constitute a finding that no marriage ever existed. However, relying on language in Matter of B-, 3 I. & N. Dec. 102 (BIA 1947), he stated that it was clear that the relation back doctrine was not followed blindly where to do so would result in a gross miscarriage of justice. He found that to apply the relation back doctrine in the present case would result in just such a miscarriage of justice.

We concur in the immigration judge's findings of fact. We also agree with his statement that the relation back doctrine, as set forth in Matter of Samedi, supra, cannot be applied blindly where to do so would result in a gross miscarriage of justice. This view has been recognized by both the California Supreme Court, Sefton v. Sefton, 45 Cal. 2d 872, 291 P.2d 439 (1955), and this Board, Matter of B-, supra; Matter of M−, 3 I. & N. Dec. 25 (BIA 1947); Matter of T–, 8 I. & N. Dec. 493, 496 (BIA 1959); Matter of Yaldo, 12 I. & N. Dec. 830, 832n.1 (BIA 1968), aff'd Yaldo v. INS, 424 F.2d 501 (C.A. 6, 1970).

Under the circumstances present in this case, where there was a default decree of annulment procured by the applicant's wife, and the evidence adduced before the immigration judge actually showed that no fraud was involved, we agree with the immigration judge's decision not to apply the relation back doctrine to the applicant's annulment. Consequently, the immigration judge's decision was correct, and the Service appeal will be dismissed.

ORDER: The appeal is dismissed.

MATTER OF DINIZ

In Deportation Proceedings

A-30329571

Decided by Board September 5, 1975

In the light of the Supreme Court decision in Reid v. INS,420 U.S. 619 (1975), the waiver of deportability provisions of section 241(f) of the Immigration and Nationality Act, as amended, do not apply to a charge of deportability under section 241(a)(2) of the Act, even though the underlying basis for deportability is the failure to fulfill a marital agreement under section 241(c) of the Act (Matter of Montemayor, 15 I. & N. Dec. 353 adhered to; Matter of Marchisi, 12 I. & N. Dec. 132, overruled). CHARGE:

Order: Act of 1952-Sections 241(a)(2) and 241(c) [8 U.S.C. 1251(a)(2) and 1251(c)]— Entry with visa procured by fraud-failed or refused to fulfill marital agreement.

ON BEHALF OF RESPONDENT:

John A. Mutter, Esquire

170 Westminster Street

Providence, Rhode Island 02903

ON BEHALF OF SERVICE:

Paul C. Vincent

Appellate Trial Attorney

In a decision dated April 30, 1974, the immigration judge ordered the respondent deported from the United States. The respondent has appealed from that decision. The appeal will be dismissed.

The respondent is a native and citizen of Portugal. The Service alleged, and the immigration judge found, that the respondent was deportable under section 241(a)(2) and section 241(c) of the Immigration and Nationality Act as an alien who has failed or refused to fulfill his marital agreement which was made for the purpose of procuring his entry as an immigrant. The respondent contests deportability, claiming that he married in good faith.

The facts are adequately discussed in the immigration judge's decision. The testimony of the respondent's wife squarely conflicts with the respondent's version of his marriage, and the documentary evidence of record supports the testimony of the respondent's wife. The immigration judge also found that the respondent was not a credible witness.

We agree with the decision of the immigration judge. Deportability has been established by clear, convincing and unequivocal evidence.

The respondent also argues that his deportation is prevented by section 241(f) of the Act. The respondent evidently has married another United States citizen and would therefore have the requisite familial relationship for section 241(f). The question thus presented is whether section 241(f) can be applied to waive deportability under section 241(a)(2) and section 241(c), if the underlying factual basis for deportability involves a failure or refusal to fulfill a marital agreement within the contemplation of section 241(c).

Earlier Board decisions have treated section 241(c) as a separate charge upon which deportability can be predicated. Matter of Mietus, 11 I. & N. Dec. 679 (BIA 1966); Matter of M-, 7 I. & N. Dec. 601 (BIA 1957); Matter of T−, 7 I. & N. Dec. 417 (BIA 1957); see also Matter of T-, 8 I. & N. Dec. 493 (BIA 1959). We have also held that section 241(f) could operate to prevent the deportation of an alien charged under both section 241(a)(2) and section 241(c). Matter of Manchis, 12 I. & N. Dec. 132 (BIA 1967); cf. Matter of S-, 7 I. & N. Dec. 715 (BIA 1958).

We no longer believe this approach to section 241(f) to be sound law in view of the Supreme Court's decision in Reid v. INS, 420 U.S. 619 (1975). We have concluded that section 241(f) cannot waive deportability under section 241(a)(2). Accordingly, it is not necessary for us to consider the effect of section 241(f) on the section 241(c) charge, assuming that such a charge may stand alone.

We recognize that section 241(c) refers directly to both the fraud provision of section 212(a)(19), and to section 241(a)(2). Furthermore, it does not appear that the Supreme Court considered section 241(c) in deciding Reid v. INS, supra. Nevertheless, in view of the clear pronouncements contained in Reid, we hold that section 241(f) is not available to an alien charged with deportability under section 241(a)(2), even as it relates to section 241(c).

In Reid the Supreme Court held that section 241(f) could not benefit an alien who has entered the United States under a false claim to United States citizenship and who was charged with deportability under section 241(a)(2) as an alien who had entered without inspection. The Supreme Court's opinion in Reid also indicates that section 241(f) only applies to a section 241(a)(1) charge of deportability based on either section 212(a)(19), or on section 211(a) as it appeared prior to its amendment in 1965.1 See Castro-Guerrero v. INS, 515 F.2d 615 (C.A. 5, 1975); Matter of Montemayor, 15 I. & N. Dec. 353 (BIA 1975). This limitation on the scope of section 241(f) precludes its extension to section 241(a)(2), even though the underlying basis for deportability is the failure to fulfill a marital agreement under section 241(c).

The Supreme Court also indicated that section 241(a)(2) establishes a

ground for deportation which is independent of whether the alien was excludable at the time of his entry. Reid dealt with the "entry without inspection" portion of section 241(a)(2). However, the portion of section 241(a)(2) which relates to presence in the United States in violation of the Act, and which is in issue here, similarly is independent of excludability at entry. Accordingly, ". . . nothing in the waiver provision of §241(f), which by its terms grants relief against deportation of aliens 'on the ground that they were excludable at the time of entry,' has any bearing on the case." Reid v. INS, 420 U.S. at 623.

Fraud is in fact present in this case. Fraud, however, is not an essential element of deportability either under the "entry without inspection" portion of section 241(a)(2) involved in Reid, or under the portion of section 241(a)(2) involved here.

We have interpreted Reid as very narrowly limiting the scope of section 241(f). See Matter of Montemayor, supra. We adhere to that interpretation. Matter of Manchisi, supra, is overruled.

The decision of the immigration judge was correct.
ORDER: The appeal is dismissed.

Irving A. Appleman, Member, Dissenting:

I respectfully dissent.

The literal application of Reid v. INS, 420 U.S. 619 (1975) in this case is troublesome. The alien has been found deportable under section 241(c), 8 U.S.C. 1251(c), of the Immigration and Nationality Act. As the majority decision notes this has been held to be a separate and distinct charge. The reference to section 241(a)(2) in the same paragraph in the order to show cause may be regarded as surplussage.

Section 241(c) is the specific fraud charge used in the case of an alien who entered the United States by means of a fraudulent marriage. It reads in pertinent part, "An alien shall be deported as having procured a visa or other documentation by fraud within the meaning of paragraph (19) of section 212(a), and to be in the United States in violation of this Act within the meaning of subsection (a)(2) of this section, if . . . it appears to the satisfaction of the Attorney General that he or she has failed or refused to fulfill his or her marital agreement which in the opinion of the Attorney General was hereafter made for the purpose of procuring his or her entry as an immigrant."

This is a charge completely founded in fraud, incorporating section 212(a)(19) by reference. By its very language one within the proscription "has procured. . . documentation by fraud within the meaning of paragraph (19) of section 212(a)." As the Court pointed out in Reid v. INS supra, at page 622, section 241(f), 8 U.S.C. 1251(f), I. & N. Act, tracks the provisions of section 212(a)(19) dealing with aliens excludable for fraud and waives deportation for those excludable at the time of

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