Interim Decision #24titi 

MATTER OF MARTINEZ 

In Exclusion Proceedings 

A44145584 

Decided by Board February, 4,, 1976 

Since the only adverse factor against applicant, an alien commuter, is his failure to 

indicate in his immigrant visa application whether or not he had previously been 

deported and it appears from the record such failure may have been unintentional, he is 

granted, in exclusion proceedings, 7124714 pro tune permission to reapply prior to receipt 

of his immigrant visa, where it has been in excess of 25 years since he was deported in 

1950; it does not appear that he entered the United States at all from 1950 until he 

obtained his border crossing card in 1969; he did not work in the United States from 

1950 until he was granted an immigrant visa in 1972; the continuation of his employment 

in this country depends upon aproval of his application; and, although he lives in Mexico 

with his immediate family, his mother and four brothers and sisters reside in the United 

States. 

EXCLUDABLE: Act of 1952—Section 212(a)(17) 18 U.S.C. 1162(axr -DI—Previously arrested and deported, no permission to apply or reapply 

for admission. 

Art of 1952—Section 212(0(20) [8 U.S.C. 1182(a)(20))—No valid immigrant visa. 

ON BEHALF OF APPLICANT: Jerald Abrams, Esquire 

P.O. Drawer 989 

Eagle Pass, Texas 78852 

This is an appeal from a decision of an immigration judge dated 

August 14, 1975, finding the applicant inadmissible to the United States 

under sections 212(a)(17) and 212(a)(20) of the Immigration and Nationality Act, and denying the applicant's request for permission to 

reapply for admission to the United States as provided in section 

212(a)(17) of the Aet. The appeal will be sustained. 

The applicant is a 52-year-old married male alien who is a native and 

citizen of Mexico. He is the parent of five children, the oldest of whom is 

a United States citizen. 

In 1947, and again in 1950, the applicant was deported from the 

United States as an alien who lacked a valid immigrant visa. In March, 

1954, the applicant applied to the district director for permission to 

reapply for admission after deportation. The application was denied and 

this decision was affirmed on December 27, 1955 on appeal to the act 

Regional Commissioner. 

563 
Interim Decision #2466 

On November 19, 1959, the applicant applied for a nonresident alien's 

Mexican border crossing card, which was issued. On the back of the 

application, Form 1-190, it is indicated that the applicant revealed his 

1950 deportation, although no-mention appears to have been made of the 

1947 deportation. 

In August, 1972, the applicant applied for and was granted, an immigrant visa. He was exempted from the labor certification requirements 

of section 212(a)(14) as the parent of a United States citizen child. On the 

application for the visa, Form FS-510, the applicant failed to complete 

one page of the form: This page included the questions found in block 

41(b) concerning , prior deportations. The applicant testified, and the 

form indicates, that the applicant was assisted by another individual in 

executing this application. 

On November 14, 1973, , the applicant executed a commuter questionnaire. The applicant's Alien Registration fteeeipl Card, Form 1-151, 

bears an inct.cation a grommet in the upper corner—that the applicant 

was administratively given commuter status. However, the applicant's 

testimony at the hearing establishes that from the time his visa was 

issued until he executed the commuter questionnaire, he worked in the 

United States while residing in Mexico with his wife and children, and 

thus has been a commuter since August, 1972. See Matter of Silva, 

Interim Decision No. 2457, (BIA December 4, 1975). 

On April 8, 1974, the applicant was served with a notice that he was 

being detained fur an exclusion hearing because he did nut clearly 

appear to be entitled to enter the United States. The Service contends 

that the applicant's name had been posted on a "lookout" list and the 

applicant was stopped at the border. However, the applicant contends 

that at the time he was served with the notice, he had already made an 

entry into the United States and that he should, therefore, be in deportation proceedings. 

The applicant claims that he received a "call-in" letter and that in 

response to this letter, he went to Eagle Pass on April 8, 1974. He 

claims that he went first to his sister's house in Eagle Pass for lunch, and 

then returned to the Service office. His sister and his niece both gave 

corroborating testimony. 

The Service introduced a certificate of non-existence of the "call-in" 

letter as well as an affidavit from the immigration officer who issued the 

notice to the applicant. We note that the record does contain a "call-in" 

letter which was issued in October, 1973. Additionally, a Service officer 

was called as a witness and testified as to the procedures employed at 

the Border... 

The immigration judge concluded that, taken as a whole, the evidence 

established that the applicant had not made an entry and was, therefore, properly in exclusion proceedings. We agree with that conclusion. 

564 
Interim Decision #24155 

The immigration judge found the applicant's witnesses to be truthful. 

Nonetheless, they were not able to recall with sufficient specificity 

whether the events with respect to which they testified occurred on 

April. 8, 1974 or some other date near in time. This is of particular 

significance when it is borne in mind that the applicant was a commuter 

and crossed the border daily. The Service evidence, on the other hand, 

tends to establish that the applicant was detained at the border and is 

properly in exclusion proceedings. 

An immigration judge may grant an applicant permission to reapply 

for admission after deportation in an exclusion proceedings, Matter of 

S—N—, 6 I. & N. Dec. 73 (BIA 1954; Atty. Gen. 1954). The immigration judge denied the application essentially on the ground that the 

applicant had few ties in the United States and had failed. to establish 

that he would experience hardship if the waiver were not granted. 

Although the immigration judge noted the failure of the applicant to 

indicate his prior deportation, he did not rely on this in denying the 

application for permission to reapply. There is some ,indieStion in the 

record that the applicant claims that he told the person completing the 

form of his prior deportation. On the basis of this record, it appears that 

the applicant may not have intentionally failed to indicate his prior 

deportations. 

Although the applicant lives in Mexico with his immediate family, his 

mother and four brothers and sisters reside in the United States. The 

applicant was employed in the United States until the exclusion proceeding was begun. 

There appear to be no adverse factors against the appliCant, other 

than the failure to indicate whether or not he. had previously been 

deported. He did not work in the United States from 1950 until he was 

afforded an immigrant visa. It does not appear that he entered the 

United States at all from 1950 until he obtained his border crossing card 

in 1959. It has now been in excess of 25 years, since the,applicant was 

previously deported. • 

The applicant's continuation of his employment in the United States 

depends upon approval pf his application. 

On review of all these factors, we believe the applicant should be 

granted nunc pro tune permission to reapply for admission to the 

United States prior to the receipt of his. visa, This./Voic pro tune grant 

accordingly renders the applicant's visa yalid and hp therefore, is not 

inadmissible under section 212(a)(20) of the Act. 

ORDER: The appeal is sustained. 

Further order: The applicant is grinted permission to reapply for 

admission to the United States nuns pro tune prior to the receipt of his 

visa. 

Further order: The exclusion proceedings are terminated 

565