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His immigration status may be readily adjusted by departure and reentry with an immigrant visa.
The respondent herein is deportable from the United States by reason of his entry without inspection. Section 7 of Public Law 85–316 is applicable only to persons who were excludable from the United States at time of entry and may not be utilized to waive a ground of deportation predicated upon section 241 (a) (2) of the Immigration and Nationality Act. An alien deportable for entry without inspection is not eligible for a waiver of documents with respect to subsequent entries. In view of the foregoing, respondent is deportable on the charge contained in the order to show cause.
Motion is hereby made that the Board of Immigration Appeals reconsider and withdraw the order dated October 1, 1958, terminating proceedings and that an order be entered finding the respondent deportable on the charge contained in the order to show cause.
BEFORE THE BOARD
(February 2, 1959)
Discussion: The Service asks that the Board order of October 1, 1958, terminating proceedings be withdrawn and that the respondent be ordered deported on the charge stated above. The motion will be denied.
Respondent, an 18-year-old single male, a native of Scotland and national of Great Britain, was admitted to the United States for permanent residence in 1949. He entered the United States on several occasions in 1956 and 1957 by representing himself to be a citizen of the United States. He had been issued an Alien Registration Card which would have authorized his admission but the card had been lost while he was in high school and he took no steps to have it replaced. The special inquiry officer terminated proceedings. We approved the action. We held that at the time the respondent sought entry he was inadmissiblbe as one who did not have the appropriate documents and as one who sought to enter by fraud or misrepresentation. Under section 211(b) of the Immigration and Nationality Act (8 U.S.C. 1181 (b)), we approved the special inquiry officer's waiver of the documents needed at the time of respondent's entries. The pertinent portion of section 7 of P.L. 85–316 requires termination of deportation proceedings where the deportation is sought of an alien who would have been admissible except for the fact that he made a misrepresentation to secure entry. We held that section 7 would eliminate any matters that arose out of the fact that respondent entered by misrepresenting his nationality.
The actual charge which is the basis for deportation proceedings alleges only that the respondent had been excludable at the time of entry because he did not have a visa. However, we pointed out that at the time of entry the respondent was excludable not only on the documentary ground, but also on the ground that he was in the class of those who seek to enter by fraud or misrepresentation, and that after he had gained entry the respondent also became deportable as one who had been inadmissible at the time of entry (for lack of documents, and as one who sought to enter by fraud or misrepresentation) and on the additional ground that he had entered without inspection. We may add that he is also deportable as one who is in the United States in violation of law (section 241 (a) (2), Immigration and Nationality Act, 8 U.S.C. 1251 (a) (2)).
The Service bases much of its case on the fact that respondent is subject to deportation on the charge that he had entered without inspection. "Entry without inspection” is the term describing either an entry made by a false and misleading statement as to United States citizenship or one made surreptitiously (Matter of CVV, 11. & N. Dec. 385). Our discussion has no bearing whatsoever with an alien who entered surreptitiously. The respondent did enter on a claim to United States citizenship. The charge "entry without inspection" could have been sustained. The Service position is that section 7 cannot bring about termination of proceedings where the charge of "entry without inspection” is sustained. The Service reasons that the "entry without inspection" charge is not based on the fact that the alien was excludable at the time of entry as one who sought to procure documents or entry by fraud, whereas the pertinent portion of section 7 speaks only of the deportability of an alien who was excludable at the time of entry as one who sought or did procure documents or entry by fraud or misrepresentation. The Service analysis overlooks the fact that the alien is deportable upon a ground which does bring him within the language of section 7. The charge which does bring the respondent within the scope of section 7 arises out of the fact that an alien who seeks to enter by fraud or misrepresentation is excludable for that reason (section 212(a) (19), Immigration and Nationality Act, 8 U.S.C. 1182(a) (19)). At the time the respondent made application to enter, he was excludable as one seeking to enter by fraud or misrepresentation (Matter of C-V, 1 I. & N. Dec. 385). After he made entry
as a result of false statements, he became deportable as one who had been excludable at the time he applied for admission because he had been in the class of those who seek to enter by fraud or misrepresentation (section 241 (a) (1), Immigration and Nationality Act). This charge is in the terms of one of the classes described in section 7. The section should, therefore, apply. The basic wrong is the application to enter made in the terms described by section 7. The fact that respondent is also deportable upon another charge arising
out of his false statements is no more material than the fact that a person who is deportable as one who was excludable because he had procured a document by fraud (a ground of deportation which is terminated by section 7), is also deportable on grounds not mentioned in section 7; namely, that he did not have a visa (section 241(a) (1)), or that he is in the United States in violation of a law of the United States (section 241(a) (2), Immigration and Nationality Act, 8 U.S.C. 1251 (a) (2)), (the very section which also contains the charge concerning entry without inspection), or that he committed perjury by his false statements (section 212(a) (9), Immigration and Nationality Act, 8 U.S.C. 1182(a) (9), and section 241 (a) (1), Immigration and Nationality Act).
There is another reason equally valid for holding that section 7 controls even though a ground of deportation is not couched in the terms of the section. We have held that section 7 applies even where a charge is not based on the very language of section 7 and section 241(a)(1) of the Immigration and Nationality Act relating to the obtaining of entry by fraud or misrepresentation. In order to carry out the intent of Congress, we have found it necessary to interpret the first part of section 7, insofar as it relates to fraud or misrepresentation, as describing in general terms aliens whose documentation or entry was procured by fraud or misrepresentation, regardless of the section of the statute under which they were deportable. On the basis of such reasoning we interpret the section to include not only the procurement of a document by fraud but also, even though it is not mentioned in section 7, any perjury which may have been committed in connection with the fraudulent procurement of documents (or entry). The intent of Congress was clearly to save from deportation those aliens who were admissible except for the fact that they had made fraudulent statements. Therefore, any ground of inadmissibility based upon the fact that the fraudulent statement existed is excused. The fact that the misrepresentation in a particular case may give rise to a ground of deportation such as the lack of a proper document or entry without inspection does not change the basic fact that documentation was procured by fraud or that entry was procured by fraud. Substance, not shadow, must prevail. This is remedial legislation with the primary purpose of preventing family separation (Matter of S7 I. & N. Dec. 715).
Although the Service argues that it was not congressional intent to excuse a misrepresentation which concealed the fact that the person concerned was an alien, we see no reason why a misrepresentation as to citizenship is in a different category than any other material misrepresentation which is excused by the act. In both cases only the misrepresentation is excused, no qualitative ground of deportation is excused. There is no reason for treating one misrepresentation differently from another insofar as the general class described by section 212(a)(19) of the Immigration and Nationality Act is concerned. Applying the rule to this case, we must conclude that section 7 would apply. The respondent's representation that he was a citizen is excused and so would any charge based on what he had done in establishing that he was a citizen. Of course, any qualitative ground of inadmissibility arising out of the commission of criminal or subversive acts is not waived, and the existence of such grounds would make respondent one who was not otherwise admissible at the time of his entry, and, therefore, one who did not come within the terms of section 7. Such grounds of inadmissibility do not exist here.
The Service states that the waiver of documents was not effective to cure the documentary deficiency which existed in this case. The first sentence of section 7 removes the illegal entries as a ground of deportability. The waiver under section 211(b) for each entry removes the deportable charge based upon the lack of a document. Matter of A-,71. & N. Dec. 518, and Matter of IS
H 6 I. &N. Dec. 738 (1955), cited in the motion, are not to the contrary. In both cases the aliens had made illegal entries which could not be cured because section 7 was not in existence.
The motion points out that respondent is not permanently debarred from the United States by reason of his entry upon the misrepresentation but may depart from the United States readily and reenter with an immigrant visa. The poor economic condition of the respondent and his father makes it a matter of hardship for him to depart and obtain an immigrant visa. Moreover, the Service position would establish a principle which would be applicable to an individual who could not readily enter Canada but might have to go to a far distant country to obtain a visa. There is no reason to limit the administrative authority which the statute gives. There is a positive need for such administrative power. Safeguards in its exercise exist since there must have been a lawful admission for permanent residence and, where documents are needed, a discretionary waiver of documentary requirements.
Order: It is ordered that the motion be and the same is hereby denied.
MATTER OF C-F-1
In VISA PETITION Proceedings
Decided by Board October 2, 1958
Board Decision October 31, 1958
Adopted child—Two-year legal custody and residence must be with both adop
tive parents if two exist-Nonquota status denied to adopted child who resided with only one parent. (1) The two-year legal custody and residence required of an adopted child by the 1957 amendment to section 101 (b) (1) of the 1952 act must be had with both of the adoptive parents where two exist, or with one when the family unit consists of only one adoptive parent. (Cf. Matter of M- VP 2-134174, Int. Dec. No. 988.) (2) Child adopted abroad in 1947 who did not reside with adoptive father for two-year period (the father maintaining residence in the U.S.) is not entitled to nonquota status despite continuous residence since infancy with adoptive mother.
BEFORE THE BOARD
(October 2, 1958)
Discussion: The case comes forward on appeal from the order of the District Director, New York District, dated February 12, 1958, denying the visa petition on the ground that the petitioner has failed to establish that he is the adoptive parent or that the beneficiary while under the age of 14 has been in the legal custody of or resided with the petitioner for two years following his adoption.
The petitioner, 44 years old, male, a native of China and a naturalized citizen of the United States, seeks nonquota status on behalf of the beneficiary, his alleged adopted child. The beneficiary was born September 24, 1947, in China. A supporting affidavit by the petitioner's wife, whom he married on December 10, 1937, sets forth that the natural father of the beneficiary died on June 12, 1947, and that on December 15, 1947, while the natural mother was still living, she adopted the beneficiary and that the beneficiary has lived with her as their adopted child with the consent of her husband; that the natural mother of the adopted child died on February 5, 1948. The