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(a) (20) of the Immigration and Nationality Act (8 U.S.C. 1182(a) (20)) as an immigrant who is not in possession of a valid unexpired immigrant visa or other entry document. The respondent has failed to clearly establish that he was "otherwise admissible" at the time of entry. .. The special inquiry officer did not consider or refer to the provisions of section 205(c), as amended by section 10 of the Immigration and Nationality Act of September 26, 1961.2

The Service representative argued before this Board (1) that respondent was either not a nonquota immigrant or he had no valid visa, and (2) that even had the annulment not taken place, if the marriage was in fact a fraudulent marriage, the no valid visa charge would be sustainable, if the Service had chosen to bring that charge.

On several occasions the Board has had appeals from denials of visa petitions, and we have said that a visa petition proceeding was not the correct form in which to litigate the legality of a marriage. In those cases we have returned the visa petition to the Service for the purpose of having the validity of the marriages adjudicated in deportation proceedings. This is just such a case, and it comes up now in a deportation proceeding.

Counsel pleads that the equities of the case justify waiving the fraud of the respondent's first marriage, if there was fraud. Counsel admits that if respondent is required to depart, he is not again eligible for nonquota status as the spouse of a United States citizen because of the prohibition of section 10 of the Act of September 26, 1961, amending section 205(c) of the Immigration and Nationality Act (see footnote 2).

The Board has held routinely in visa petition cases where an alien has been accorded nonquota status as the spouse of a United States citizen and approval of the visa petition was later revoked for fraud, that such a beneficiary could not qualify for nonquota status on the basis of a subsequent marriage, even though the subsequent marriage may be bona fide. Matter of W—, Int. Dec. No. 1222 (B.I.A., May 22, 1962); Matter of A, Int. Dec. No. 1223 (B.I.A., June 1, 1962).

Both the Service representative and counsel recognize that Public Law 87–301, September 26, 1961, contains two divergent provisions. In application these provisions appear to be conflicting. Section 16 (see footnote 1) is an abbreviated but broadened reenactment of section 7 of the Act of September 11, 1957, which was conceived primarily to

* Section 10 of the Act of September 26, 1961, amends section 205 (c) of the Immigration and Nationality Act by adding: "Notwithstanding the provisions of this subsection, no petition shall be approved if the alien previously has been accorded, by reason of marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws—(1) a nonquota status under section 101 (a) (27) (A) as the spouse of a citizen of the United States..."

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assist refugees and displaced persons who had made misrepresentations to avoid repatriation to certain geographical areas in Europe following World War II, or for other defensive reasons.

The Board was precluded from granting advance waivers under section 7 of the Act of September 11, 1957 to aliens within the United States, as that provision was interpreted by the Attorney General in Matter of DeF, 8 I. & N. Dec. 68. Under that statute respondent in the instant matter would have been precluded from the waiver, because he would have to depart from the United States to obtain it, and then the prohibition of section 10 of the Act of September 26, 1961 (against granting a visa petition on the basis of his second marriage) would have come into play. However, the waiver provided by section 16 of the Act of September 26, 1961 clearly gives the authority simply to terminate proceedings when the waiver is granted.

Section 10 of the Act of September 26, 1961 is an entirely new provision of law. Referring to section 10, this Board said in Matter of R-, Int. Dec. No. 1188:

The legislative history indicates that the amendment was proposed to strengthen existing law by giving the Attorney General a new legal instrumentality to counteract the increasing number of fradulent acquisitions of nonquota status through sham marriages between aliens and United States citizens. The leg on was prompted by a recent report of the Attorney General to Congress about the increasing number of such sham marriages, indicating the existence of marriage schemers operating in various parts of the country arranging for high fees, for deceitful marriages involving in most instances alien seamen,

Sections 12, 14, 15 and 16 of the Act of September 26, 1961 give enlarged rights and special consideration to aliens who are the spouse, parent or child of a United States citizen or legally resident alien, and who otherwise would be excludable or deportable. However, section 10 of the same Act indicates that Congress intended that the expanded privileges are not to be available even to a bona fide spouse, if he has in the past been party to a sham marriage entered into for the purpose of evading the immigration laws. Even though section 10 of the Act of September 26, 1961 specifically forbids only the approval of a visa petition in his behalf, it indicates the intention of Congress that the immigration status of such a person is not to be adjusted under any of the ameliatory acts.

Counsel maintains that the words "otherwise admissible" in section 16 are not a bar to a grant of the waiver, claiming that this phrase refers to a state of inadmissibility which might exist apart from the fraud, e.g., criminality, feeble-mindedness, insanity, epilepsy. Counsel asserts that the words otherwise admissible" mean that, except

H. Rept. No. 1086, 87th Cong., 1st Sess., pp. 36, 37.

for the fraud and the impediment of the fraud, respondent must not have had some other impediment at the time of entry that would make him inadmissible.

The Service asserts that to be "otherwise admissible” means that the respondent must have been in possession of a valid visa at the time of his entry, and that respondent cannot receive the waiver. He was actually a quota immigrant, who entered as a nonquota immigrant. See Matter of D'04,8 I. & N. Dec. 215 (1958), wherein we held that proceedings could not be terminated under section 7 of the Act of September 11, 1957 (P.L. 85–316) where respondent evaded the quota restrictions by securing entry as a nonquota immigrant. We stated in D'O— that there is nothing in the history of section 7 of the Act of September 11, 1957 which indicates that it was the intention of Congress to remove the careful protection which had been built into the immigration laws regarding quotas. We stated, “Section 7 excuses the presence of fraud. It does not wipe out the existence of all other grounds of inadmissibility which may have been present. Section 7 also excuses the fact that an alien had been charged to the wrong quota." We agree with the Service contention that respondent was not "otherwise admissible” at the time of his last entry as required by section 16 of the Act of September 26, 1961.

We are well aware of the hardship factors on which counsel has dwelt at length. The same factors exist in the visa petition cases, of which Interim Decisions Nos. 1222 and 1223 are examples. There are certain to be family ties in the alien's favor in these cases; otherwise, this problem in statutory construction could not arise since there would be no visa petition filed in his behalf, and no request for a waiver under section 241 (f) which is available only to a spouse, parent or child of a United States citizen or lawfully resident alien.

We find nothing in the record to justify reexamination of the issue of the good faith of respondent's first marriage. Aside from the testimony of respondent's first wife, he admitted that he would have left the United States when he was first apprehended if he had not found someone to post the $1,000 bond for him. He also testified that he knew that some of his friends from Sicily had married in the United States and had been permitted to remain here. Respondent was represented throughout the 1958 proceedings by counsel who was vigorous and knowledgeable.

Section 16 of the Act of September 26, 1961 provides an absolute waiver for an alien who has procured documentation by fraud and who comes within the other requirements of the provision. If respondent were given such a waiver he and the Government would be in an untenable position. He could not get a visa, because of the prohibition contained in section 10 of the Act of September 26, 1961, but neither could he be deported. He could not be granted a legal status, but neither could his illegal status be litigated, because these proceedings would have been terminated. Aside from the finding that respondent was not "otherwise admissible” at entry, it is our conclusion that an alien who has been the beneficiary of a visa petition based on a marriage found later to have been contracted for the purpose of evading the immigration laws, cannot claim the benefit of the waiver provided by section 16 of the Act of September 26, 1961, adding section 241(f) to the Immigration and Nationality Act. This is the only interpretation which reconciles section 205(c) as amended, with section 241 (f) of the Immigration and Nationality Act.

ORDER: It is ordered that the appeal be and is hereby dismissed.

MATTER OF BUSTILLOS RUIZ

In EXCLUSION Proceedings

A-13040423

Decided by Board October 26, 1962

Where the rentention provisions of section 301(b) of the Immigration and Nation

ality Act can be met by an interpretation of section 16, Act of September 11, 1957, which permits the periods of permissible absence to be included in the computation of the required period of physical presence, as well as by an interpretation which requires the periods of absence to be compensated for by additional periods of physical presence, it is unnecessary to adopt one or the other of such interpretations in deciding the case. of. Matter of BustillosRuiz, Interim Decision #1243.

The Board of Immigration Appeals on August 7, 1962, entered an order directing the reopening of this case for the introduction of additional evidence on the issue of whether the applicant's physical presence in the United States has been sufficient for the retention of his United States citizenship acquired at birth (section 301 (b) of the Immigration and Nationality Act, as amended by section 16 of Public law 85-316; 8 U.S.C. 1401 (b) and 1401b). The order also directed that the case be certified to the Board for final decision pursuant to 8 CFR 3.1(c). The case is again before us following a reopened heari accorded the applicant on September 5, 1962.

The applicant, a married male, 24 years of age, was born in Mexico on Jan. 2, 1938, of lawfully married parents, one of whom was a citizen of the United States, the other an alien. He applied for entry as a United States citizen at the port of El Paso, Texas on February 4, 1962. He was excluded as an alien not in possession of an immigration visa (section 212(a) (20), Immigration and Nationality Act, 8 U.S.C. 1182(a) (20)). The special inquiry officer concluded that the applicant had lost his United States citizenship by failing to establish a residence in the United States prior to his 23rd birthday and therefore required documentation to enter as an alien.

Our decision of August 7, 1962, rejected the special inquiry officer's interpretation of section 301(b), as amended, to wit: that in order for

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