No evidence has been produced showing any connection with subversive groups. The character investigation is favorable. An employment certificate and affidavits of witnesses establish that respondent has been continuously physically present in the United States since August 1950.

The special inquiry officer has found that respondent's deportation, while it would undoubtedly entail some hardship to him, such hardship failed to satisfy the "exceptional, extremely and unusual” hardship requirement of the Immigration and Nationality Act and as a result he was ineligible for suspension of deportation. Furthermore, the special inquiry officer found that, even assuming respondent met the minimum statutory requirements for eligibility for suspension of deportation, and despite his maritime service of approximately 16 months during World War II between December 1942 and March 1944 and December 1944 and January 1945, in view of respondent's repeated conflicts with the immigration laws and the fact that he has eked out the period since April 1954 while under deportation proceedings, and in view of the lack of family ties in the United States, as a matter of administrative discretion suspension of deportation would not be granted, and that the maximum relief granted the respondent would be that of the privilege of voluntary departure in lieu of deportation. The decision of the special inquiry officer was rendered on October 22, 1962. Two days afterward there was enacted the Act of October 24, 1962 (Public Law 87-885; 76 Stat. 1247; 8 U.S.C.A. 1254, C.A.P.P. 1962), section 4 of which amended section 244 of the Immigration and Nationality Act (8 U.S.C. 1254) in several important respects. Among other things, section 244 (a) was changed from the former five subparagraphs into two subparagraphs. The respondent's case would appear to fall within section 244(a)(1) of the Act as amended by section 4 of Public Law 87-885. This new section requires seven years' residence in the United States preceding the date of the application and requires the person to establish that his deportation would result in extreme hardship to the alien. Ordinarily we would remand the case to the special inquiry officer for reopening and reconsideration in view of the less stringent requirements of section 244 of the Immigration and Nationality Act as newly amended by section 4 of Public Law 87-885.

However, the same section 4 of Public Law 87-885 added a new subparagraph (f) to section 244 to the effect that no provision of that section should be applicable to an alien who entered the United States as a crewman (as well as excluding certain other classes from the benefits of the amendatory legislation). No purpose, therefore, would be served in reopening the case for consideration under section 244 (a) (1), as amended by the Act of October 24, 1962, since the new

subparagraph (f) renders moot the respondent's eligibility for that form of discretionary relief, inasmuch as he last entered the United States as a crewman.

The respondent was still the subject of administrative adjudication and had not established any right to the future status of a permanent resident he was seeking to obtain by his application; accordingly, the amendment is not being given any retrospective application. No savings clause was enacted as a part of the Act of October 24, 1962 in contrast to the savings clause enacted in section 405 (a) of the Immigration and Nationality Act of 1952 which made specific reference to a pending application for suspension of deportation under section 19 of the Immigration Act of 1917 as amended on the date of the enactment of that Act. The exclusion from the benefits of the amendatory legislation of October 24, 1962 of the aliens enumerated in section 244(f), namely, crewmen, exchange students and natives of contiguous countries or adjacent islands, constitutes the expression of a clear Congressional policy not to extend the benefits of the amendatory legislation to those specified classes. Inasmuch as an approved application for suspension of deportation would still require a referral to Congress, it would appear inconsistent to hold crewmen eligible for the benefits of the amended suspension of deportation from which they are specifically barred.1 Even though the amendment of section 224(f) of the Act of October 24, 1962 occurred subsequent to the date of the special inquiry officer's decision but during the pendency of the administrative appeal, the respondent, who entered as a crewman, is not now eligible for consideration of suspension of deportation and his application for that form of relief must be denied.2 The grant of voluntary departure in lieu of deportation appears to be the maximum relief which can be accorded the respondent.3

This conclusion disposes of the contentions of counsel, both at oral argument and as set forth in his brief. The denial of the respondent's application for adjustment of status under section 6 of the Refugee Relief Act is not within our jurisdiction. We have noted the cases cited by counsel in his brief but we do not find them to be applicable to the situation before us. For the reasons already set forth, we find an alien who entered as a crewman ineligible for suspension of deportation under section 244 (a) as amended.

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

1

Matter of Tarabocchia, Int. Dec. No. 1266 (February 11, 1963).

* Cf. Fassilis et al. v. Esperdy, 301 F.2d 429 (2d Cir., 1962); also Hintopoulos

v. Shaughnessy, 353 U.S. 72.

* Matter of Vara-Rodriguez, Int. Dec. No. 1254.

MATTER OF MARINHO

In DEPORTATION Proceedings

A-11499121

Decided by Board October 22, 1962 and February 11, 1963

Where conspiracy indictment does not contain an allegation that the alien procured a visa by fraud his conviction under the indictment will not under the doctrine of collateral estoppel establish his deportability under section 212 (a) (19) of the Immigration and Nationality Act. CHARGES:

Order: Act of 1952-Section 241 (c) [8 U.S.C. 1251(c)]-Failed or refused to fulfill marital agreement made to procure entry as immigrant.

Lodged: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under 8 U.S.C. 1182 (a) (19)-Visa procured by fraud or misrepresentation.

Act of 1952-Section 241 (a) (1) [8 U.S.C. 1251(a) (1)]—Excludable at entry under 8 U.S.C. 1182(a) (20)—Immigrant

visa not valid.

BEFORE THE BOARD

This case is before us on appeal from a decision of a special inquiry officer directing the respondent's deportation.

The respondent is a 30-year-old married male, native and citizen of Portugal, who last entered the United States on June 27, 1958 at which time he was admitted as a nonquota immigrant on the basis of his marriage on April 14, 1958 to Mary McCabe, a United States citizen. He was previously in the United States from September 1956 to May 1958. The Service takes the position that the respondent's marriage was not a bona fide one and that its only purpose was to secure nonquota status for him. On January 19, 1962 he was convicted of conspiracy to violate 8 U.S.C. 1325. The Government abandoned the charge stated in the order to show cause and the second lodged charge and relied solely on the first lodged charge (p. 11). The special inquiry officer concluded that this charge was sustained. The only

issue to be determined is whether the respondent is deportable on the charge mentioned.

The examining officer stated (p. 17) that the Government would rely on the doctrine of collateral estoppel, and the special inquiry officer based his decision on that theory, citing Matter of C—, 8 I. & N. Dec. 577 (1960), and Matter of T-, Int. Dec. No. 1115 (1960). There the courts had made specific findings of fact which precluded relitigation of the same facts in the deportation proceedings. The record before us does not show that the court made findings of fact in the criminal proceeding, and the special inquiry officer has not referred to any specific findings as having been made in that proceeding. Accordingly, the two cases upon which the special inquiry officer relied are not analogous.

The two cases mentioned above were cited by the examining officer as well as the unreported case of Sifuentes v. Rogers (S.D. Cal., 1960); United States v. Rangel-Perez, 179 F. Supp. 619 (S.D. Cal., 1959); and Matter of Z-, 5 I. & N. Dec. 708 (1954). We do not believe that the Sifuentes case has any applicability. In the Rangel-Perez case, the question in the second criminal proceeding was whether the doctrine of collateral estoppel could be invoiced against the defendant as to the issue of alienage because of an earlier conviction, and the court specifically said (p. 626) that it was beyond dispute that a finding of fact that the defendant was then an alien had been made in the first criminal proceeding and that this finding had been necessary to a judgment of guilt. We have already indicated that the record in the respondent's case does not show what findings of fact were made in the criminal proceeding. With respect to Matter of Z-, supra, that case is distinguishable because the alien had been convicted under 18 U.S.C. 1546 which relates inter alia to receiving an immigrant visa knowing that it was procured by means of any false claim or statement, whereas the respondent was convicted of conspiracy to violate an entirely different statutory provision.

There is included in Exhibit 3 the court's judgment of January 19, 1962 showing that the respondent was convicted "of the offense of conspiracy (making false statement to Immigration and Naturalization Service)". Count one of the indictment also shows that the respondent was not convicted of violating 8 U.S.C. 1325 but that he and Mary McCabe Marinho were charged with conspiracy under 18 U.S.C. 371 to violate 8 U.S.C. 1325. There are statements in count one that it was part of the plan and purpose of the conspiracy that the two defendants would do certain acts but it was not stated that the acts were actually done except insofar as concerns the overt acts which were set out. One of these is that the respondent entered the United States

on June 27, 1958. However, the indictment does not specifically charge that he procured an immigrant visa.

8 U.S.C. 1325, which the defendants conspired to violate, applies to obtaining entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, but it does not relate to procurement of a visa. Exhibit 2 shows that the deportation charge on which the Service relies is based on that part of 8 U.S.C. 1182 (a) (19) which refers to an alien who has procured a visa by fraud or by willfully misrepresenting a material fact. Under the circumstances, we conclude that the doctrine of collateral estoppel is not applicable to the respondent's case and that his conviction standing alone is insufficient to meet the requirement of 8 U.S.C. 1252 (b) (4) that a decision of deportability must be based upon reasonable, substantial and probative evidence.

Under 8 CFR 242.18 (a), a formal enumeration of findings is not required but it is provided that the decision of the special inquiry officer shall include findings as to deportability. Such findings were not made in the respondent's case, and it is impossible to determine from this record whether the special inquiry officer found that the respondent procured his visa by both fraud and misrepresentation, by fraud only, or by misrepresentation only. If the latter, there should be set forth the specific statement in the visa application which constituted a misrepresentation. The immigrant visa was not made. part of the record.

In his notice of appeal, counsel contended that the marriage between the respondent and Mary McCabe was consummated and that it is an existing legal and valid marriage. In his statement of November 5, 1959 (Ex. 5, pp. 14, 22-23), the respondent stated that he had had sexual relations with his wife. On April 3, 1962 (Ex. 4, p. 5), he stated that he "never lived with her as a wife". At the hearing on June 27, 1962 (p. 26), the respondent answered affirmatively when asked whether he ever had sexual intercourse with this woman after their marriage. No further questions were asked as to when this occurred or whether it occurred on more than one occasion. This may or may not have a bearing on the question of whether the visa was procured by fraud or misrepresentation, but we believe this matter should be developed.

8 CFR 3.1(d) (2) provides that the Board may return a case to the Service for further action without entering a final decision on the merits. In view of what we have said above, we consider it appropriate to reopen the hearing and remand the case to the Service for further development of the record.

ORDER: It is ordered that the outstanding order of deportation be withdrawn; that the hearing be reopened for further action in