discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence." The District Director, in arriving at his decision that the applicant is ineligible for United States citizenship and excludable under section 212 (a) (22) of the Act, premises his conclusion on the grounds that under section 101 (f) (8) of the Act the applicant cannot be found to be a person of good moral character during the period in which good moral character is required to be established because he is "one who at any time has been convicted of murder". Moreover, pursuant to section 316(a)(3) of the Act, which states in pertinent part, "No person except as otherwise provided in this title shall be naturalized unless such petitioner... during all the periods referred to in this subsection has been and still is a person of good moral character", the applicant may not be naturalized and is, so reasons the District Director, ineligible to citizenship. We cannot agree with the District Director's reasoning which would, by administrative fiat, add to the classes of aliens declared by the Congress in section 212 of the Act to be ineligible to receive visas. It is true that the applicant, as a convicted murderer, is by Congressional mandate, pursuant to the sections of the Act cited by the District Director, barred from United States citizenship. However, that fact does not bring him within the classes of aliens "ineligible to citizenship" as used in section 212 (a) (22) and defined in section 101 (a) (19) of the Act. The definition is unambiguous, but if clarification were needed the legislative history of the Act contains the following unequivocal statement: "The term 'ineligible to citizenship' as defined in section 101 (a) (19) is confined in its reference to such aliens as draft evaders, avoiders, or deserters." (1952 U.S. Code, Cong. and Admin. News, p. 1653, 1684.) Also see Matter of D-E-, 6 I. & N. Dec. 698. Accordingly, the District Director's finding of statutory ineligibility under section 212 (a) (22) will not be upheld. The applicant, by his own admission, has been convicted of a crime involving moral turpitude, i.e., murder, and is, therefore, excludable under section 212 (a) (9) of the Act. The spouse of the applicant is a lawful permanent resident of the United States. Therefore, the requisite relationship exists on which to base an application for waiver of excludability to be considered by the District Director in the exercise of his discretion. Conceding the possibility of a waiver of the ground of excludability under 212 (a) (9) being granted, there still remains the question of admissibility on medical grounds in view of the appli cant's prior psychiatric treatment. The application will be remanded for further inquiry into the facts and, thereafter, reconsideration by the District Director. ORDER: It is ordered the decision of the District Director be overruled and the case remanded for action not inconsistent with the foregoing. MATTER OF LIM In Deportation Proceedings A-11422036 Decided by Board March 13, 1969 Respondent, who innocently entered as a nonquota immigrant without knowledge that her petitioning husband's representation to be a U.S. citizen was fraudulent, comes within the purview of section 241 (f) of the Immigration and Nationality Act, as amended, in the light of In re Yuen Lan Hom, 289 F. Supp. 204 (S.D. N.Y., 1968), holding that an innocent falsehood constitutes a "misrepresentation" within the meaning of the statute. [Matter of Lim, 12 I. & N. Dec. 671, superseded.] CHARGE: Order: Act of 1952-Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)]-Excludable at entry-not nonquota immigrant as specified in visa-section 211(a) (3). This case is before us on motion of the Immigration and Naturalization Service to reconsider and withdraw our prior orders and terminate these proceedings in light of the intervening decision in In re Yuen Lan Hom, 289 F. Supp. 204 (S.D. N.Y., 1968). The motion will be granted and the proceedings terminated. The facts and pertinent legal principles were discussed in our prior orders, now reported in Matter of Lim, 12 I. & N. Dec. 671, and need not be repeated at length. The question is whether the respondent, who innocently achieved nonquota status on her husband's fradulent representation that he was a United States citizen, is saved from deportation by section 241 (f) of the Immigration and Nationality Act. In our prior decisions, we concluded that, anomalous as it might seem, the bounty of section 241 (f) extended only to those guilty of fraud, and not to the innocent. In the Hom case, supra, the same issue was presented in a naturalization setting. The district court emphatically rejected our reading of the statute and concluded that section 241 (f) applies to such a situation. The court held that a liberal construction was warranted by the underlying congressional intent to unite families; and that, in any event, an innocent falsehood literally constitutes a "misrepresentation" within the meaning of the statute. The Government did not appeal. The fact that a lower federal court has rejected a legal conclusion of this Board does not of itself require us to recede from that conclusion. The Service'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 is not necessarily dispositive of the issue; a conflicting view may be expressed by a court in another jurisdiction. See, e.g., Errico v. INS, 349 F.2d 541 (9 Cir., 1965) and Scott v. INS, 350 F.2d 894 (2 Cir., 1965). Similarly, the Government's failure to appeal from a lower court's adverse decision does not of itself indicate acquiescence. The determination not to appeal may be based on other considerations, such as the inadequacy of the record as a vehicle for appeal or factors outside the record which render an appeal undesirable. In the Hom case, however, it is clear from the Department's file that the decision not to appeal was based on the conclusion that the district court's reading of the statute is correct. We will, therefore, recede from the position we had heretofore taken in the instant case. Accordingly, we will grant the Service's motion, withdraw our prior orders, and sustain the order of the special inquiry officer terminating the proceedings. ORDER: It is ordered that the prior orders of the Board dated March 7, 1968 and December 13, 1967, respectively, and published as Interim Decision No. 1847 (now 12 I. & N. Dec. 671), be and they are hereby withdrawn. It is further ordered that the decision of the special inquiry officer dated September 27, 1967, terminating the proceedings, be and it is hereby sustained. MATTER OF AGARWAL In Deportation Proceedings A-17230653 Decided by Board March 18, 1969 Currently pending litigation of a collateral issue (denial of respondent's visa petition) in the United States District Court is no justification for the termination or postponement of the deportation proceedings against respondent. CHARGE: Order: Act of 1952-Section 241 (a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant-remained longer. ON BEHALF OF RESPONDENT: Hiram W. Kwan, Esquire Suite 203 Los Angeles, California 90012 This is an appeal from the order of the special inquiry officer finding respondent deportable as charged but granting him the privilege of voluntary departure on or before January 2, 1969. The respondent is a 39-year-old married male alien, a native and citizen of India, who was admitted to the United States at Honolulu, Hawaii on or about May 25, 1966, being admitted as a nonimmigrant temporary worker and authorized to remain in the United States until June 3, 1968. He remained beyond that date. He was subsequently granted the privilege of voluntary departure by a United States immigration officer in lieu of the institution of deportation proceedings, but he did not depart within the time designated. The instant deportation proceedings were then commenced. The respondent admits the allegations of fact contained in the order to show cause and concedes that he is deportable as charged. On appeal, the respondent contends that the order to show cause should be dismissed pending the outcome of a petition for |