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The fact that two grounds of inadmissibility were specifically mentioned in section 7 would, on well known legal principles, rule out grounds not mentioned.

Moreover, to extend the section to cover any ground of inadmissibility not specifically mentioned by Congress would make it impossible to withhold its thrust from any ground of inadmissibility, whether documentary criminal or subversive, which had been the subject of a misrepresentation, for there is no logical basis on which to differentiate grounds of deportation which have not been specifically mentioned. Bearing in mind that an alien receives the waiver not as a matter of discretion, but of right it becomes most unlikely that Congress could have intended a waiver of any but the two grounds specifically mentioned.*

Congressional comment reveals that the provisions of section 7 of Public Law 85-316 were incorporated in the Immigration and Nationality Act "for the purpose of codification" and to "codify existing law applicable to the granting of waivers of certain excluding provisions of the Immigration and Nationality Act and to consolidate with the basic statute the matter now contained in separate enactments, to wit, *** section 7 of the act of September 11, 1957" (1961 U.S. Code Cong. & Ad. News, 87th Cong., 1st Sess. 2950, 2981). The Congressional comment continues:

It is not proposed to incorporate into the basic statute a provision contained in section 7 of the act of September 11, 1957, relating to deportation of certain aliens within the United States where deportation was predicated on certain misrepresentations made by a specific category of immigrants, namely, displaced persons and refugees who entered the United States not later than November 1, 1954. This special relief provision of the 1957 act has served its humanitarian

Footnotes continued.

munist-controlled countries. This section would also permit a similar adjustment to be made in the case of spouses, parents, or children of United States citizens or lawful resident aliens, who have sought to procure or have procured visas or other documentation or entry into the United States by fraud or misrepresentation. The section further provides that after the effective date, the Attorney General shall have discretionary authority to waive the ground of inadmissibility in behalf of the spouse, parent or child of a United States citizen or alien lawfully admitted for permanent residence who is found to be subject to exclusion because he has practiced fraud or made a misrepresentation in connection with his visa application or application for admission to the United States. (S. Rep. No. 1057, 85th Cong., 1st Sess. 5 (1957).

A ground of inadmissibility which would not exist except for the fact that a false statement was made, i.e., the admission of the commission of perjury in the making of a false statement under oath before the consul (section 212(a) (9) of the Act) merges in the obtaining of the visa by fraud and comes within the waiver (Matter of Y-, 8 I. & N. Dec. 143, 149). The charge that a person was not a nonquota immigrant does not flow from the fact that fraud was com mitted in obtaining a visa, it precedes the fraud.

purpose and its continuation and inclusion into permanent law appears unnecessary inasmuch as according to available information persons eligible to be granted such relief have already obtained the envisaged benefit. (1961 U.S. Code Cong. & Ad. News, 87th Cong.. 1st Sess. 2981).

In other words, the codification withdrew relief from aliens who did not have the specified relations in the United States but the codification purported to make no other change. Since section 241 (f) of the Act is termed a codification, we see no reason for extending the scope of the section. This is especially so since published administrative and judicial interpretation of section 7 of Public Law 85-316 existed before the codification was made."

Another reason for the belief that Congress intended no change to be made in the Board's interpretation that only two grounds were waived is found in section 10 of Public Law 87-310 amending section 205 (c) of the Act (8 U.S.C. 1155 (c) (Supp. 1961)) in which Congress forbade the issuance of a nonquota visa to an alien who after a sham marriage had entered into a valid marriage to a United States citizen. This was done to "counteract the increasing number of fraudulent acquisitions of nonquota status through sham marriages." (1961 U.S. Code Cong. & Ad. News, 87th Cong., 1st Sess. 2980). If one going through a sham marriage achieved a nonquota status by the sham marriage, there would appear to be only unusual situations which would require subsequent application for a nonquota visa and it is unlikely that Congress would enact a law to deal with such rare cases. Moreover, we can see no reason why by section 241 (f) of the Act Congress would have intended to give permanent residence to an alien who had achieved nonquota status fraudulently by means of a sham marriage, if at the same time Congress would not give permanent residence to one in this category who had subsequently lawfully married a United States citizen.

Does our conclusion make section 241 (f) of the Act meaningless as counsel contends? We think not. A person deportable as having obtained a visa by fraud is barred from the United States. In the absence of legislation such as that contained in section 241 (f) of the Act there could be no waiver of this perpetual bar to the acquisition of lawful permanent residence in the United States even though ties with United States citizens or legally resident aliens existed. Section 241(f) of the Act is also effective to require termination of deportation proceedings where an alien willfully misrepresented a matter which did not make her inadmissible but which was nevertheless material; i.e., a misrepresentation concerning name, existence of a

*Congressional awareness of Board decisions is shown (see 1961 U.S. Code Cong. & Ad. News, 87th Cong., 1st Sess., 2984, comment on two Board decisions concerning expatriation, and section 401 of the Act, 8 U.S.C. 1106).

conviction of a crime which did not involve moral turpitude, etc. (see, Matter of S- and B—C—, Int. Dec. 1168).

Matter of G-, 8 I. & N. Dec. 355, cited by counsel as authority for granting relief to respondent supports the Board's position. In the case cited, respondent had obtained a nonquota immigrant visa by alleging he was the husband of an American citizen; in fact he was not. He was found deportable on the same section under which respondent's deportation is sought; he was required to depart from the United States; deportation proceedings were not terminated.

Matter of Y-, 8 I. & N. Dec. 143, is cited by counsel. We fail to see its applicability. We stated there that a qualitative ground of inadmissibility arising out of the commission of criminal or subversive acts is not waived under section 7 of the Act of September 11, 1957 and that the lack of documents which would have otherwise made the alien inadmissible to the United States could be waived under section 211(b) of the Act which authorizes the admission without documents of an alien lawfully admitted for permanent residence who departed from the United States temporarily. Such waiver would not be applicable to the present case. Respondent would therefore, remain deportable on documentary grounds as well as because of the fraud.

Matter of T-, 8 I. & N. Dec. 493, cited by counsel is not apposite. It involves section 241 (c) of the Act (8 U.S.C. 1251(c)) which is not before us. We held that the failure of the service to sustain a fraud charge based on 241 (c) of the Act precludes the sustaining of a documentary charge under 241 (a) of the Act. In the instant case, it is clear that the fraud charge based upon the misrepresentation as to marital status and destination, before the consul, and the nonquota charge are not dependent upon each other. Whether or not a fraud charge is sustained, the respondent was not validly married to a United States citizen and was not entitled to a nonquota status.

Since the respondent attempts to secure a waiver of grounds other than that she procured a visa by fraud or that she was not of the nationality specified in the visa, and since she was also inadmissible for an additional ground-the fact that she was not a nonquota immigrant as her visa showed her to be, we hold she is ineligible for relief under section 241 (f) of the Act. Respondent was no more admissible at time of entry than was an alien who concealed the fact that he had been a member of the Communist Party.

Counsel is of the belief that failure of the Government to lodge a charge accusing the respondent of having obtained a visa by fraud is being used to prevent the respondent from taking advantage of the benefits of section 241 (f) of the Act. Obviously this is not so. Even if the respondent were deportable as having obtained a visa by fraud,

we do not believe she would be entitled to the benefits of section 241 (f) of the Act.

We need add nothing to the special inquiry officer's discussion of counsel's contentions concerning the use of respondent's admissions against interest.

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

MATTER OF CASSISI

In DEPORTATION Proceedings

A-10202132

Decided by Board January 15, 1963

Recourse may not be had to the remarks of the State's Attorney to the court at the time of sentencing in order to determine whether or not the crime involves moral turpitude where respondent was convicted under a broad, divisible statute which enumerates several acts, the commission of which may or may not involve moral turpitude, and the record of conviction merely refers to the section of law involved.

CHARGE:

Order: Act of 1952-Section 241(a) (4) [8 U.S.C. 1251(a)(4)]—Crime involving moral turpitude committed within five years-Sentenced to confinement a year or more-Encouraging abortion (Conn. 1959).

The case comes forward on appeal by the trial attorney from the order of the special inquiry officer dated September 26, 1962 ordering that the proceedings be terminated.

The record relates to a native and citizen of Italy, 27 years of old, male, who last entered the United States at the port of New York on December 1, 1955 when he was admitted for permanent residence. On April 14, 1959 he was convicted in the Superior Court, New Haven, Connecticut of the offense of Encouraging the Commission of Abortion in violation of section 53-31 of the General Statutes of Connecticut and was sentenced to confinement in jail for a period of one year, execution of sentence suspended, and placed on probation for 2 years.

The record of conviction discloses that the respondent was first charged with violation of section 53-29 of the General Statutes of Connecticut, "Attempt to Procure Miscarriage". He entered a plea of not guilty to that charge. Thereafter, the State's Attorney, with consent of the court, filed a substituted information charging the respondent with violation of section 53-31 of the General Statutes of Connecticut, "Encouraging Abortion". The substituted information merely states that on February 21, 1959 the respondent and another

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