Interim Decision #2524 

MATTER OF RANOL 

In Exclusion Proceedings • 

A-34670198 

Decided by Board April 26, 1976 

(1) Applicant was admitted to the United States for permanent residence on April 22, 

1975, as the unmarried daughter of a United States citizen because applicant and her 

father had falsely stated to the consular officer that applicant was not married. Following her admission for permanent residence, applicant departed the United States for 

Mexico on three separate occasions, and on May 3, 1975, she was detained for exclusion 

proceedings when attempting to reenter this coimtry from Mexico. 

(2) The rationale expressed by the Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449, 

respecting the effect of a brief departure from the United States on resident alien status , 

applies in the case of a resident alien whose original entry was unlawful. 

(3) In this case, there exists a record of lawful admission for perinanent residence. The 

applicant did not make an "entry" within the meaning of section 101(a)(13) of the 

Immigration and Nationality Act when site attempted reentry into this enun try on May 

8, 1975. Therefore, the proper forum in which to adjudicate the lawfulness of applicant's 

original admission is in a deportation proceeding with the applicant entitled to the 

attendant safeguards thereof. 

(4) Board withdraws from its contrary opinion expressed in Matter of MaldonadoSandoval, 14 L & N. Dec. 475, to the extent the views expressed therein are inconsistent with this opinion. 

EXCLUDABLE: Act of 1952—Sections 212(0(14), 212(a)(19), and 212(a)(20), I. & N. Act 

(8 U.S.C. 1182(a)(14), 8 U.S.C. 1182(a)(19), 8 U.S.C. 

1182(a)(20)] alien excludable by reason of not having 

required labor certification; by reason of having obtained immigrant visa by fraud or Avglfnlmisrepresentation of material fact; and by reason not being in possession of a valid unexpired inunigrant visa or other valid 

entry document. 

ON BEHALF OF RESPONDENT: 

Luis A. Velarde, Jr. 

Director, U.S. Catholic Conference 

700 S. Santa Fe 

El Paso, Texas 79901 

ON BEHALF OF SERVICE: 

B. J. Rumaker, Esquire 

Trial Attorney 

The applicant appeals from the July 9, 1976 decision of the immigration judge finding her excludable under sections 212(a)(14), 212(a)(19) 

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Interim Decision #2524 

and 212(a)(20) of the Immigration and Nationality Act. The appeal will 

be sustained and the record will be remanded. 

The applicant, who was born on June 29, 1954, is a native and citizen 

of Mexico. She was admitted to the United States as a permanent 

resident on April 22, 1975. Pursuant to section 212(a)(14) of the Act, 

respondent was granted an exemption from the requirement of a labor 

certification as the unmarried minor daughter of a United States citizen. 

After her entry on April 22, 1975, the applicant departed from the 

United States to Mexico and then sought to reenter the United States 

on May 3, 1975. Following an inspection by an immigration officer, she 

was detained for a hearing in exclusion proceedings and was served with 

an official notice (Forin 11122). The notice informed her that she appeared to come within the exclusion provisions of 212(a)(19) of the Act as 

an immigrart who obtained her visa by fraud. 

The record reveals that the applicant was married to Gustavo 

Pichardo-Rodriguez in Mexico on August 28, 1972; that she was married 

to him at the time she entered the United States on April 22, 1975; and 

that at the time of the application for an immigrant visa, she and her 

father (petitfuner) falsely stated to the American Vice Consul in Mexico 

that the applicant was not married. The applicant admitted to the 

aforementioned facts at her hearing. 

At the hearing, the applicant testified that upon her admission to the 

United States on April 22, 1975, she went to live with an aunt in El 

Paso, Texas for approximately seven days; that during that seven-day 

period, she entered Mexico on two separate occasions to visit her 

mother's home in Juarez. The applicant stated that after. the seven-day 

period in this United States she again went to her mother's home in 

Juarez, Mexico in order to obtain her clothes and remained there until 

she attempted to reenter the United States on May 3, 1975. 

The record contains a copy of a divorce decree issued by a court in the 

state of Chihuahua, Mexico on June 24, 1975 which purportedly terminated the marriage of the applicant and Gustavo Pichardo-Rodriguez. 

On appeal, the applicant's accredited representative contends that a 

deportation hearing was appropriate in this ease, and that the immigration judge erred by conducting a hearing in exclusion proceedings. The 

applicant relies on the doctrine enunciated in Rosenberg v. Fleuti, 374 

U.S. 449 (1933). In that case the Supreme Court held that an innocent, 

casual and brief excursion by a resident alien outside the country's 

borders may not have been "intended" as a departure disruptive of his 

resident alien status and that he, therefore, may not have subjected 

himself to the consequences of an "entry" into the United States on his 

return. 

The issue before us is whether the Fleuti rationale expressed above 

should be applied in the case of a resident alien whose original entry was 

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Interim Decision #2524 

unlawful. If we conclude that the applicant's attempted return to the 

United States on May 3, 1975 did not constitute an "entry", then she is 

entitled to deportation proceedings rather than exdusion proceedings. 

In Matter of Maldonado-Sandoval, 14 I. ez N. Dec. 475 (BIA 1973; 

amended 1974), the facts related to an applicant who was admitted for 

permanent resident, in possession of a special immigrant visa obtained 

by concealing "from an American Consul his existing marriage to a 

Mexican national and by fraudulently representing himself to be the 

spouse of a United States citizen. The applicant went abroad for a brief 

period and was then detained for a hearing in exclusion proceedings 

when he attempted to reenter the United States. In that case we 

concluded that the legality of the alien's original admission for permanent residence can be questioned in exclusion proceedings in connection 

with his application for readmission, notwithstanding the Fieuti-type 

nature of his departure, and notwithstanding the absence of an indication that prior to his departure the lawfulness of his original admission 

for permanent residence had been challenged. We further concluded in 

Matter of Maldonado-Sandoval, supra, that since the applicant was not 

a lawful permanent resident, his return to the United States following a 

brief absence in Mexico is not within the ambit, of Rosenberg v. Ftouti, 

supra, and constitutes an "entry within the meaning of section 

101(a)(13).' of the Act upon which to predicate a ground for exclusion. 

On appeal to the United States Court of Appeals fOr the Ninth Circuit 

in Maldonado-Sandoval v. INS, 518 F.2d 278 (CA. 9, 1975), the court 

held that: 

When evidence appears during an exclusion proceeding, that the alien has been therefore granted residence status and is seeking to return to the United States after a brief 

visit outside the United States, the exclusion proceeding shall be terminated. If there is 

also evidence that the alien may have fraudulently secured his residence status, the INS 

can thereupon institute deportation proceedings against him. 

In so holding the court was of the opinion that to deprive the petitioner 

of the benefit of deportation proceedings in the determination of his case 

Section 101(9)(13) of the Immigration and Nationality Act provides that: 

The term "entry" means any coming of an alien into the United States from a foreign 

port or place or from an outlying possession, whether voluntarily or otherwise, except 

that an alien having a lawful permanent residence in the United States shall not be 

regarded as making an entry into the United States for the purposes of the immigration 

laws if the alien proves to the satisfaction of the Attorney General that his departure to 

a foreign port or place or to an outlying possession was not intended or reasonably to be 

expected by him or his presence in a foreign port or place or in an outlying possession 

was not voluntary; Provided, That no person whose departure from the United States 

was occasioned by deportation proceedings, extradiction, or other legal process shall be 

held to be entitled to such exception. 

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Interim DeEsion #2524 

merely because of his brief visit across the border would do violence to 

both the letter and spirit of Rosenberg v. Plead, supra. 2 

In view of the ruling of the Court of Appeals for the Ninth Circuit in 

Maldonado-Sandoval, we withdraw from the contrary position ex-. 

pressed by this Board in Matter of Maldonado-Sandoval, supra. In this 

case there exists a record of lawful admission for permanent residence. 

Further, we fine that the applicant, did not make an "entry" within the 

meaning of section 101(a)(13) of the Act. Therefore, it follows that a 

deportation proceeding is the proper forum in which to adjudicate the 

issue of the lawfulness of the applicant's original admission. We conclude that the applicant is entitled to the procedural safeguards inherent 

in a deportation- proceeding. Accordingly, we shall sustain the appeal 

and remand the record to the immigration judge for further proceedings 

consistent with the above opinion. 

ORDER: The appeal is sustained and the record is remanded to the 

immigration judge for further proceedings consistent with the foregoing 

opinion. 

Louis P. Maniatis, Member, dissents without opinion. 

Warren R. Torrington, Member, Dissenting: 

I respectfully, dissent. 

The decision of the Court of Appeals in Maldonado-Saw doval v INS, 

518 F.2d 278 (C.A. 9, 1975), is, of course, binding upon us with regard to 

cases arising within the Ninth Circuit. It is not binding upon us in other 

jurisdictions. In my view, the wiser course would be to await the views 

of at least one other court of appeals before applying the Ninth Circuit's 

holding nationwide.. 

In Maldonado-Sandoval v. INS, supra, a two-or-three-day absence 

from the United States was involved. Here, the applicant appears to 

have stayed cut of the United States considerably longer. When she left 

she knew very well that she had not been eligible for admission to the 

United States. Her departure to Mexico can therefore not be considered 

an "innocent" one. Thus, it appears to me that she did not make a 

F/euti-type departure when she left for Mexico. Moreover, she obviously departed with the intent to violate our immigration laws by 

seeking another unlawful admission to the United States. The record, 

including her actual application for admission, on May 3, 1975, clearly 

showed that intent. Inasmuch as the applicant left for the purpose of 

accomplishing an objective contrary to the policy of immigration laws, 

her departure was also meaningfully interruptive of any permanent 

residence she might have acquired. 

2 Pursuant to .the court's order, this Board's order in Matter of Maldonado-Sandoval, 

supra, Was vacated, and the case was remanded to us for further proceedings consistent 

with views expressed by the court. 

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In Rosenberg v. Fleuti, 374 U.S. 449 (1963), at page 461, the Supreme 

Court stated, ". . . we do not think Congress intended to exclude aliens 

long resident in this country after lawful entry who have merely stepped 

across an international border and returned in 'about a couple hours.' " 

This applicant was not a "long resident in this country," had not made a 

lawful entry," and had not "merely stepped across an international 

.border and returned 'in about a couple hours.' " On the contrary, she 

had, at best, been in this country only for a few hours or days, had not 

made a lawful entry, and had obviously been absent from this country 

for a considerable time. Thus, there was no Fleuti-type departure, and 

the Ninth Circuit's decision in Maldonado-Sandoval v. INS, supra, 

cannot govern this case. 

The appeal should be dismissed. 

793