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MATTER OF TORBERGSEN
In Deportation Proceedings
Decided by Board November 26, 1969
Respondent, who possesses the requisite familial relationship, and who is de
portable as one excludable at entry under section 212 (a) (20) of the Immigration and Nationality Act because not an immediate relative as specified in his immigrant visa obtained on the basis of an invalid marriage (his United States citizen wife's prior marriage never having been terminated), comes within the purview of section 241 (f) of the Act, as amended, notwithstanding there was no fraud on his part (Matter of Lim, Int. Dec. No. 1947), and notwithstanding he was not in possession of a labor certification at time of entry (Castillo-Godoy v. Rosenberg, 415 F.2d
1266 (C.A. 9, 1969)). CHARGES: Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) ]—Exclud
able at entry for procuring documentation by willful misrepresentation under section 212(a) (19) of
the Act. Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)]—Exclud
able at entry—not immediate relative as specified
in immigrant visa under section 201 (b) of the Act. ON BEHALF OF RESPONDENT:
ON BEHALF OF SERVICE: Dean A. Andrews, Jr., Esquire
Henry J. Scroope, Jr. 803 Maison Blanche Building
Trial Attorney New Orleans, Louisiana 70112
(Brief filed) (Brief filed)
The respondent, a native and citizen of Norway, appeals from an order entered by the special inquiry officer denying his motion to reopen and reconsider a decision of January 15, 1969, which finds respondent deportable under the provisions of section 241 (a) (1) of the Act as an alien who was excludable at the time of entry because he was not an immediate relative as specified in his immigration visa under section 201 (b) of the Act. The order entered on that occasion provided for the respondent's voluntary departure in lieu of deportation with the proviso that if he failed to depart when and as required, the privilege of voluntary departure would be withdrawn without further notice and the respondent deported to Brazil or in the alternative to Norway. Exceptions have been taken to the denial of the motion.
The respondent is a male alien, 26 years of age, who last entered the United States through the port of Los Angeles, California, on or about April 16, 1968. He was then admitted for permanent residence upon presentation of an immigration visa issued to him as the spouse of a citizen of the United States. The evidence affirmatively establishes that the respondent's citizen wife was previously married and that her marriage has never been terminated.
The special inquiry officer has found the respondent deportable under section 241 (a) (1) of the Act as an alien who was excludable at the time of entry in that he was not entitled to an immediate relative status under section 201 (b) of the Act. Sections 212(a) and 241 (a) of the Immigration and Nationality Act set forth the general classes of aliens who are either excludable as aliens ineligible to receive visas or deportable as aliens in the United States in violation of the immigration laws. Section 241 (a) (1) provides for the deportation of an alien who “at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry.” (Emphasis added.) There is no provision in section 212 (a) of the Act for the exclusion of aliens "who are not immediate relatives as specified in the immigrant visa" under section 201 (b), as amended. The Act does provide for the deportation of an alien under section 241 (a) (1) who at the time of entry was excludable under section 212(a) (20) as an immigrant "who at the time of application for admission is not in possession of a valid unexpired immigrant visa ... required by [the] Act" (section 212(a) (20), Immigration and Nationality Act). Since the respondent had obtained an immigrant visa on the basis of an invalid marriage, he was not in possession of a valid immigration visa at the time he applied for admission at Los Angeles, California on April 16, 1968.
This Board under 8 CFR 3.1 (d) is empowered to exercise such authority as is appropriate and necessary for the disposition of the case. The respondent is the father of a legitimate child born at New Orleans, Louisiana on April 21, 1968 (p. 5 of Ex. 3, pp. 8 and 9, special inquiry officer's opinion). The special inquiry officer has found the respondent ineligible for the benefits of section 241 (f), because at the time of entry he was not "otherwise admissible” since he did not have a labor certification as required by section 212(a) (14) of the Act. The special inquiry officer also stated that the benefits of section 241 (f) are not available to the respondent because he has not been found deportable on the fraud charge laid under section 212(a) (19), relying on our decision in Matter of Lim, 12 I. & N. Dec. 671 (BIA, 1968). The special inquiry officer's conclusion on this issue was reached prior to the decision in Castillo-Godoy v. Rosenberg, 9 Cir., No. 22432 (August 29, 1969), and our decision of March 13, 1969 in Matter of Lim, Interim Decision No. 1947.
Our reconsideration of Lim (supra), in light of the court's ruling in In re Yuen Lan Hom, 289 F. Supp. 204 (S.D. N.Y., 1968), led to the conclusion that an alien who innocently entered the United States as a nonquota immigrant without knowledge that the petitioning spouse had made false representations in the petition for a nonquota visa comes within the purview of section 241 (f), notwithstanding the fact that the alien is not deportable on the basis of a fradulent entry but only on a documentary charge. Castillo-Godoy v. Rosenberg (supra) held essentially that a labor certification at the time of entry was a quantitative requirement which, like quote limitations, was intended to be waived by section 241 (f) for aliens who entered the United States on the basis of fradulent misrepresentations.
Ordinarily, we would remand this case to the special inquiry officer for the lodging of a proper charge at a reopened hearing. The facts in the respondent's case, however, place him squarely within our 1969 ruling in Matter of Lim (supra) and the Ninth Circuit's ruling in Castillo-Godoy v. Rosenberg (supra). The Solicitor General has declined to petition for certiorrari to review that decision, concluding that it is correct. We therefore accept the holding of the Ninth Circuit in that case and we will order the proceedings terminated. Our decision and order renders the respondent's motion moot.
ORDER: It is ordered that the proceedings under the order to show cause dated October 9, 1968 be and the same are hereby terminated.
MATTER OF CHAMIZO
In Deportation Proceedings
Decided by Board November 28, 1969
Since the Service regulations require that in deportation proceedings an
order be entered which will result in the proceedings being processed to a final conclusion, the special inquiry officer's grant of indefinite voluntary departure, without more, after a finding of respondent's deportability, was in error, and the case is remanded by the Board to the special inquiry officer to set a time within which such voluntary departure shall take place, to include an alternate order of deportation, and for a decision on respondent's application for withholding of deportation under section 243(h)
of the Immigration and Nationality Act. CHARGE: Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]-Entry
without inspection. ON BEHALF OF SERVICE: R. A. Vielhaber
Appellate Trial Attorney
The special inquiry officer has certified his decision to use for consideration and final determination. In his decision of September 4, 1968, he found the respondent deportable as charged and denied her application for adjustment of status to that of a permanent resident pursuant to the provisions of section 1 of the Act of November 2, 1966, P.L. 89-732 (commonly referred to as the Cuban Refugee Act). He granted the respondent the privilege of voluntary departure but did not set any date within which such departure must be effected. Because of granting voluntary departure for an indefinite period of time, he did not enter an alternate order of deportation. There was pending before him an application for withholding of deportation to Cuba pursuant to section 243 (h) of the Immigration and Nationality Act, but such application was not acted upon in view of his decision. Although the case is before us on certification by the special inquiry officer, the Immigration and Naturalization Service filed a separate appeal to the decision contending that it was wrong on the law and the facts.
The respondent is a 42-year-old married female alien, a native and citizen of Cuba, who arrived in the United States at Laredo, Texas on October 15, 1959, having entered the country without being properly inspected and admitted as an alien. At the original deportation hearing, held on November 19, 1959, she admitted all of the allegations of fact contained in the order to show cause and conceded deportability. At that time, she was ordered de ported from the United States. No discretionary relief was granted because none was requested. The proceedings were reopened in 1967 so that respondent could apply for adjustment of status under the recently enacted Cuban Refugee Act.
Public Law 89-732 provides as follows:
Notwithstanding the provisions of section 245 (c) of the Immigration and Natonality Act, the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 ... may be adjusted by the Atttorney General ... to that of an alien lawfully admittted for permanent residence ... (emphasis supplied).
Since the respondent admittedly entered the United States without inspection, she was not eligible for adjustment of status under this law and the special inquiry officer was correct in denying her application. Her entering without inspection also renders her deportable as charged.
We will not disturb the special inquiry officer's decision to extend to the respondent the privilege of voluntary departure. We do, however, find error in his granting such voluntary departure for an indefinite period of time and his failure to enter an alternate order of deportation. When voluntary departure is granted pursuant to the provisions of section 244 (e) of the Act, it is incumbent upon the special inquiry officer in accordance with 8 CFR 244.1 to set a time within which such departure shall take place, and he is further required by 8 CFR 242.18 (c) to enter an order which will lead to a final concluding of the deportation proceedings. These sections of law are as follows:
8 CFR 244.1 Pursuant to Part 242 of this chapter and section 244 of this Act, a special inquiry officer in his discretion may authorize the suspension of an alien's deportatiton, or if the alien establishes that he is willing and has the immedi
1 See Matter of Estrada-Betancourt, 12 I. & N. Dec. 191 (B.I.A., 1967).