Our decision of August 7, 1962, is based upon the premise that any foreign-born who acquired United States citizenship at birth pursuant to the provisions of section 301 (a) (7) of the Immigration and Nationality Act (8 U.S.C. 1401 (a) (7)) could retain the citizenship so acquired by coming to the United States prior to attaining the age of 23 years and following any such coming by being actually physically present in the United States for periods of time which have a continuity of 5 full years between his 14th and 28th birthdays. The permissible absences allowed by section 16 of Public Law 85-316 (supra) were not included in the computation of the required continuous 5year period as "constructive presence.”

The special inquiry officer is of the opinion that it was the intent of Congress to adopt the "constructive presence" theory when they enacted section 16 of Public Law 85-316. Section 16 reads in pertinent part "absences from the United States of less than 12 months in the aggregate, during the period for which continuous physical presence in the United States is required, shall not be considered to break the continuity of such physical presence" (emphasis supplied). The special inquiry officer maintains that the term "period" as used in the emphasized portion of section 16 (supra) refers to the period of 5 years of physical presence, rather than to the period between the ages of 14 and 28 years during which the 5 years of physical presence must occur. Under the special inquiry officer's theory any absences of less than 12 months within a continuous 5-year period would count as "constructive presence."

The applicant herein is admissible to the United States as a citizen under the limited interpretation of the "actual physical presence" requirements set forth in section 301 (b) as amended by section 16 of Public Law 85-316 (supra). He is also admissible as a citizen under the "constructive physical presence" theory advocated by the special inquiry officer. Since a clear cut issue with regard to the "continuity of physical presence" theory vis a vis the "constructive physical presence" theory is not before us in this case we see no need to adopt either theory at this time. An appropriate order will be entered.

ORDER: It is directed that the order entered by the special inquiry officer on September 20, 1962 admitting the applicant as a citizen of the United States be and the same is hereby affirmed.

MATTER OF SLADE

In DEPORTATION Proceedings

A-10296218

Decided by Board November 30, 1962

Where respondent, who entered the United States as a nonquota immigrant on the basis of a fradulent marriage, is deportable under section 241 (a)(1) of the Immigration and Nationality Act because excludable at time of entry under section 211(a) in that she was not a nonquota immigrant as specified in her visa, she is ineligible for the benefits of section 241(f) since she was not "otherwise admissible" at entry.

CHARGE:

Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a) (1)]—Excludable at entry-not nonquota immigrant.

This is an appeal from the order of the special inquiry officer finding respondent deportable upon the ground stated above, and granting voluntary departure.

The appeal does not appear to be timely filed (8 CFR secs. 3.3, 242.21 (Supp. 1961), Matter of Z-M-, 3 I. & N. Dec. 167, Matter of SS. "Dirphys", 3 I. & N. Dec. 223); however, in view of the importance of the issue involving section 241 (f) of the Act (8 U.S.C.A. 1251(f) (Supp. 1961)), we shall take jurisdiction by certification (8 CFR 3.1 (c) (Supp. 1961)).

In the notice of appeal, issue is taken with the finding of deportability, and with the denial of an application for creation of the status of an alien lawfully admitted for permanent residence under section 244 (a) of the Immigration and Nationality Act. However, we find no application for the relief. The special inquiry officer neither mentioned nor ruled upon such an application, and counsel did not refer to it in his brief or oral argument; we shall, therefore, address ourselves to the question of deportability.

The issues are: (1) whether respondent who entered as a nonquota immigrant is deportable because she was not entitled to such status, (2) if deportable, whether respondent comes within a provision of law

which removes certain aliens who obtained visas by fraud from liability to deportation. As to the first question we find in the affirmative, and as to the second, in the negative.

Respondent, a 34-year-old female, a native and citizen of Jamaica, entered the United States upon surrender of a nonquota immigrant visa issued to her as the wife of Joseph Slade, a United States citizen. The Service charges that the marriage to Slade was a sham one, that it did not create the relation of husband and wife for immigration purposes, and that the respondent therefore was not entitled to a nonquota status as the wife of a United States citizen.

Respondent refused to testify at the deportation hearing concerning her marriage, but the record contains sworn statements made by her on this subject to a Service investigator on two occasions (Ex. 2, statement of April 30, 1959; Ex. 3, statement of October 18, 1961). These statements reveal that after respondent entered the United States as a visitor, she paid Dudley Goulbourne and others the sum of $400 to arrange a marriage between herself and a United States citizen. On March 12, 1956, in accordance with the arrangements, Goulbourne introduced the respondent to Joseph Slade, a person who had agreed to marry respondent for a fee. On this same day, the parties secured a marriage license and were married. (The marriage certificate was postdated to March 14, 1956 to conceal the fact that there had been a violation of a state law which required the passage of 24 hours between the issuance of the license and the performance of the marriage.) A few hours after the marriage was performed, respondent and her husband parted and went separate ways. No attempt was made to consummate the marriage. The respondent stated the marriage had been entered into with the mutual understanding that it would not be consummated, that there would be no marital responsibilities, that the parties would not live together, and that it would be terminated by divorce after the respondent secured a visa and became a United States citizen (probably within a 3-year period after the marriage), that the marriage was a "paper" one, and that it had been entered into solely to enable respondent to get a nonquota visa as the wife of a United States citizen.

A marriage of the nature described a marriage entered into by both parties without a bona fide intention of residing together as husband and wife and made merely for the purpose of obtaining benefits under the immigration laws, is not a valid marriage for immigration purposes (Matter of M-, 8 I. & N. Dec. 217). For immigration purposes, therefore, the respondent was not married to a United States citizen at the time she applied for the visa; she was not entitled to a nonquota visa, and she is clearly deportable on the charge that

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she was not a nonquota immigrant at the time of entry. The charge in the order to show cause is sustained.

We come now to the question as to whether respondent is removed from liability to deportation by section 241 (f) of the Act (8 U.S.C. 1251(f) (Supp. 1961)) 1 which provides in pertinent part that the requirement for the deportation of an alien who procured a visa by fraud "shall not apply to an alien otherwise admissible at the time. of entry" who is the parent of a United States citizen (respondent is the mother of a child born out of wedlock in the United States). Counsel contends that, since it has been found that respondent entered into a fraudulent marriage which became the basis for the issuance of the nonquota visa, section 241 (f) of the Act applies and prevents the use of the fraud and the obtaining of the nonquota visa as grounds of deportation. The special inquiry officer, pointing out respondent's deportation was being sought not on a fraud charge but on a documentary ground, assumed for the purpose of discussion, that respondent could have been found deportable under section 212 (a) (19) of the Act because of her fraudulent misrepresentations to the consul when she obtained her visa; he concluded, nevertheless, that respondent did not come within section 241 (f) of the Act because being deportable on a documentary ground she was not "otherwise admissible" than by reason of section 212(a) (19) of the Act.

2

Counsel's contentions are made against the fact that legislation similar in essence to that found in section 241 (f) of the Act, was construed as authorizing waiver of only two grounds of deportation-a fraud ground under section 212 (a) (19) of the Act, and the ground that a person was not of the nationality shown in his visa (section 211(a) of the Act, supra, note 2). The legislation referred to, the predecessor of section 241 (f) of the Act, is section 7 of Public Law 85-316, 85th Cong., S. 2792, September 11, 1957 which reads as follows:

1 Section 241 (f) of the Act provides as follows:

The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.

'Aliens are deportable who are excludable at time of entry (section 241 (a) (1) of the Act, 8 U.S.C. 1251(a) (1)). Section 212 (a) (19) of the Act, 8 U.S.C. 1182 (a) (19) provides for the exclusion of "Any alien who seeks to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact;"

Section 211(a) of the Act (8 U.S.C. 1181 (a)) makes excludable aliens who fail to comply with certain documentary requirements. It provides: "No immigrant

Sec. 7. The provisions of section 241 of the Immigration and Nationality Act relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as (1) aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation, or (2) aliens who were not of the nationality specified in their visas, shall not apply to an alien otherwise admissible at the time of entry who (A) is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence; or (B) was admitted to the United States between December 22, 1945, and November 1, 1954, both dates inclusive, and misrepresented his nationality, place of birth, identity, or residence in applying for a visa: Provided, That such alien described in clause (B) shall establish to the satisfaction of the Attorney General that the misrepresentation was predicated upon the alien's fear of persecution because of race, religion, or political opinion, if repatriated to his former home or residence, and was not committed for the purpose of evading the quota restrictions of the immigration laws or an investigation of the alien at the place of his former home, or residence, or elsewhere. After the effective date of this Act, any alien who is the spouse, parent, or child of a United States citizen or of an alien lawfully admitted for permanent residence and who is excludable because (1) he seeks, has sought to procure, or has procured, a visa or other documentation, or entry into the United States, by fraud or misrepresentation, or (2) he admits the commission of perjury in connection therewith, shall hereafter be granted a visa and admitted to the United States for permanent residence, if otherwise admissible, if the Attorney General in his discretion has consented to the alien's applying or reapplying for a visa and for admission to the United States.

As we have previously stated, the section was held to excuse from liability to deportation, a person who had made a material misrepresentation and a person who had been charged to the wrong quota. We held the law was not intended to cover any other ground of inadmissibility (Matter of D'O-, 8 I. & N. Dec. 215, Matter of S-, 7 I. & N. Dec. 715; see Langhammer v. Hamilton, 194 F. Supp. 854, 857, D. Mass. (1961), aff'd 295 F. 2d 642, 648, 1st Cir. (1961), Buffalino v. Holland, 277 F. 2d 270, 3rd Cir. (1960), cert. den. 364 U.S. 863). The wording of section 7 would hardly permit another interpretation.3 shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such immigrant visa of the accompanying parent, (2) is properly chargeable to the quota specified in the immigrant visa, (3) is a nonquota immigrant if specified as such in the immigrant visa, (4) is of the proper status under the quota specified in the immigrant visa, and (5) is otherwise admissible under this Act."

The legislative intent in passing section 7 of the Act of September 11, 1957 is summarized in the report of the Senate Committee accompanying the Senate Bill which became the law. The report states:

Section 7 of the bill [S. 2972] would provide for the correction of a situation which exists in the case of certain aliens admitted under the Displaced Persons Act who are in a deportable status because of misrepresentations made with reference to their nationality or place of birth to avoid repatriation to ComFootnote continued on following page.