spondent's claim to United States citizenship and dismissed his complaint with prejudice. Thereafter, on April 30, 1953 the respondent was found subject to deportation as an immigrant not in possession of a valid immigration visa under sections 13 and 14 of the Immigration Act of 1924 and under the Passport Act of May 22, 1918 for failure to present, at entry, an official passport or document in the nature of a passport. The respondent presently alleges that his wife and two children entered the United States on October 6, 1968, for permanent residence and that, therefore, he is eligible to apply for adjustment of status. The special inquiry officer, relying on Muslemi v. INS, 408 F.2d 1196 (9 Cir., 1969), concluded that the respondent was already a permanent resident by virtue of section 241 (f) and that an application for adjustment would serve no purpose. The special inquiry officer noted a recent opinion of the Attorney General (Matter of Lee, Interim Decision No. 1960 (1969)), which he interpreted as being in direct conflict with the decision of the Ninth Circuit in Muslemi. He nevertheless determined that the ruling of Muslemi applied here since the instant matter arose in the same circuit. At first blush, this conclusion appears tenable. A careful reading of both Muslemi and Matter of Lee, however, leads us to conclude that there is no conflict between those cases since Muslemi in our view is not subject to the broad interpretation given it by the special inquiry officer. Muslemi dealt with the basic question of whether an alien, who entered as a nonimmigrant and is found deportable as an immigrant without visa, comes within the scope of section 241 (f) as construed by INS v. Errico, 385 U.S. 214 (1966). The court in Muslemi concluded that he did, but remanded the case for a determination of whether Muslemi was "otherwise admissible" within the meaning of section 241 (f). The issue of whether an alien who entered as a nonimmigrant, thereby evading the visa issuing process applicable to immigrants, is "otherwise admissible" within the meaning of section 241(f) was never raised or argued in Muslemi and we cannot broadly state that that issue has been decided by the Ninth Circuit sub silentio. To the extent that the latter issue was not resolved by Muslemi, it remains an open question in the Ninth Circuit and the Attorney General's opinion in Matter of Lee is dispositive of that issue. In Matter of Lee, the Attorney General noted that section 241 (f) only encompassed fraud or misrepresentation committed by an alien in furnishing information in the course of being proc essed for entry as an immigrant. In his view, "the otherwise admissible requirement of section 241 (f) would be meaningless if it were not interpreted to mean that an alien, at the time of entry, must have satisfied all of the other requirements necessary to enter as an immigrant, apart from his inadmissibility derived from the particular facts or status as to which he made his misrepresentations." Consequently an alien, such as the respondent, who never applied for or obtained an immigrant visa, has not met all the "otherwise admissible" requirements for entry as an immigrant. As the Attorney General correctly noted, most of the immigration requirements are waived for aliens who came here as nonimmigrant visitors. Although the Attorney General noted the Muslemi decision, nevertheless, he emphasized that, “... [A]n alien who has evaded most of the immigration requirements by fraudulently entering as a nonimmigrant visitor also does not appear to be an 'otherwise admissible' immigrant." (Emphasis supplied.) The situation to which the Attorney General was alluding is precisely the one before us since the respondent entered as a nonimmigrant to prosecute a fraudulent claim to United States citizenship. The respondent's fraudulent claim to United States citizenship and entry as a nonimmigrant permitted him to avoid inspection as an immigrant alien and consequently a determination of whether he was admissible as an immigrant was never made. We must hold, in keeping with the Attorney General's position that the respondent was not "otherwise admissible" at the time of entry and therefore cannot benefit from the relief granted by section 241 (f). As a result, the respondent must seek relief through adjustment of status and we order these proceedings reopened so that consideration may be given to this application under section 245. ORDER: It is ordered that the motion to reopen proceedings be and the same is hereby granted. MATTER OF YANEZ-JAQUEZ In Deportation Proceedings A-10532657 Decided by Board January 16, 1970 (1) A conviction of passing a forged instrument which resulted in a suspended sentence and probation under the Texas Code of Criminal Procedure adopted effective January 1, 1966, is a final conviction upon which to predicate a ground of deportation under section 241 (a) (4), Immigration and Nationality Act, as amended. (2) A permanent resident alien, fully aware that his Form I-151 was required for readmission, who, without such Form willfully and deliberately departed to Mexico for a short visit (the purpose of which was characterized by criminal intent) thereafter returning to the United States by crossing the dry bed of the Rio Grande approximately one-half mile from the Service port of entry, thereby attempting to enter without inspection, made upon his return an entry upon which to predicate a ground of deportation [Rosenberg v. Fleuti, 374 U.S. 449 (1963), inapplicable].* CHARGE: Order: Act of 1952-Section 241(a) (4) [8 U.S.C. 1251]-Convicted of a crime involving moral turpitude, to wit, passing a forged instrument (1968), committed within five years after entry (1967), and sentenced to confinement therefor in a prison or corrective institution for a year or more. ON BEHALF OF RESPONDENT: Albert Armendariz, Esquire 543 Magoffin Avenue El Paso, Texas 79901 ON BEHALF OF SERVICE: (Brief filed) This case is before us on appeal from a special inquiry officer's order of June 16, 1969, directing that the respondent be deported from the United States to Mexico on the charge contained in the order to show cause. The appeal will be dismissed. Overruled. See 440 F.2d 701 (1971). The record relates to a 24-year-old unmarried male alien, a native and citizen of Mexico, who was admitted to the United States for permanent residence on July 19, 1955. He was assaulted and robbed in Juarez, Mexico, on or about May 4 or 5, 1963, following which he returned to his home in El Paso. The next day, he armed himself with an ice pick and planned to go back to Juarez to confront the persons who had robbed him. His mother tried to dissuade him, and refused to let him have his resident alien border crossing identification card (Form I-151), which is used in lieu of a visa to reenter the United States after a temporary visit abroad, with certain exceptions not here pertinent. The respondent, on arriving in Juarez, Mexico, did not immediately locate his assailants. He testified that because of the presence in the area of numerous Mexican police, he crossed the dry bed of the Rio Grande to the American side, where he was sitting on the river bank watching for his assailants. See Exhibit 4. United States border patrol officers, who patrol the area along the river bank, noticed the respondent and took him to the United States Immigration Service port of entry about half a mile away. He claimed he was a lawful permanent resident of the United States. His mother brought his I-151 to the Immigration Office, and satisfied the officials there that the respondent had been lawfully admitted to this country for permanent residence. He was then admitted, but was forthwith taken into custody by El Paso police for possession of the ice pick. On January 11, 1968, in the Fourth Judicial Court, El Paso, Texas, the respondent was convicted of the offense of passing a forged instrument, which is a crime involving moral turpitude. The respondent was given a two-year prison sentence, suspended, and was placed on adult probation for a period of two years. On June 7, 1968, an order was issued by the same court revoking the probation and ordering the respondent to serve two years in the State Penitentiary, beginning February 23, 1968. He is now serving that sentence.1 The respondent's first contention is that the conviction on which the Service relies is not of sufficient finality to support an order of deportation. In support of this proposition, he relies on 1 The record of the respondent's conviction (Ex. 2) shows that the conditions of his probation were that he would commit no offense against the laws of the State of Texas, any other State, or the United States, and that he would make restitution; and that the reason for the revocation of his probation was that on February 23, 1968, the respondent had passed another forged instrument. the precedent decision rendered by the Attorney General in Matter of L-R-, 7 I. & N. Dec. 318 (1957). We, however, reject this argument, finding that the decision under reference is not controlling here, for several reasons. In the first place, the Texas Code of Criminal Procedure was revised by the legislature in 1965 and a new Code of Criminal Procedure was adopted effective January 1, 1966; and the new code repealed all prior laws relating to criminal procedure, with certain exceptions which do not include the adult probation and parole law of 1967 or the suspended sentence law of 1913, which laws are involved in Matter of L-R-, ante. Second, under the new code, on facts substantially the same as those involved here, we upheld the special inquiry officer's order of deportation, for reasons which are equally applicable here. Third, any doubts which might arise on this point are completely dispelled by the revocation of the respondent's probation and the requirement for his incarceration in accordance with the original sentence. The respondent's second contention, which we likewise reject, is that while the crime which serves as the basis for the respondent's deportation was committed within five years after his return to the United States on May 6, 1963, conviction therefor did not occur until after the expiration of five years from that date. We have previously ruled that section 241 (a) (4) of the Immigration and Nationality Act renders deportable an alien who commits a crime involving moral turpitude within five years after entry whether or not the conviction for such a crime occurs within the five-year period. The rationale of that decision is clearly dispositive of all points raised by respondent in support of his arguments to the contrary in this case. Further discussion of this aspect of the case is unnecessary. We also find wanting the respondent's final contention that he did not make an "entry" into the United States on May 6, 1963 within the contemplation of the decision of the Supreme Court in the case of Rosenberg v. Fleuti, 374 U.S. 449 (1963). The evidence of record, as hereinbefore summarized, convinces us clearly and unequivocally, that on May 6, 1963, the respondent was in Juarez, Mexico, for a period of one and a half to two hours and thereafter returned to the United States within the city limits of El Paso, Texas, by way of crossing the Rio Grande at a point about one half mile west of the Sante Fe Street Bridge. The evi 2 Matter of Gonzalez De Lara, 12 I. & N. Dec. 806 (1968). 3 Matter of A—, 6 I. & N. Dec. 684 (1955). |