Interim Decision #2775 

MATTER OF AREGUILLIN 

In Deportation Proceedings 

A-22365591 

Decided by Board April 7, 1980 

(1) An alien who physically presents herself for questioning and makes no knowing 

false claim to citizenship is "inspected" even though she volunteers no information 

and is asked no questions by the immigration authorities, and has satisfied the 

"inspection and admission" requirement of section 215 of the Immigration and Nationality Act, 8 U.S.C. 1255. 

(2) "Admission" occurs when the inspecting officer communicates to the applicant that 

he has determined that the applicant is not inadmissible. That communication has 

taken place when the inspector permits the applicant to pass through the port of 

entry. 

(3) The respondent bears the burden of proving that she in fact presented herself for 

inspection as an element of establishing eligibility for adjustment of status. 

(4) Where no finding was made below as to credibility and sufficiency of evidence 

supporting respondent's claim that she was a passenger in a car permitted to proceed 

into the United States after the driver alone had been questioned by the inspecting 

officer, and hence inspected and admitted within the contemplation of the law, Board 

remanded case to immigration judge. 

(5) Immediate relatives and other aliens exempted from the numerical limitations of 

the Act are not within the purview of the injunction entered in Silva v.. LPvi, No 16- 

C4268 (N.D. M. March 22,1977; as amended April 1, 1977). See final judgment order 

entered in Silva v. Bell, No. 76-C4268 (N.D. III. October 10, 1978). 

CHARGE 

Order: Act of 1952—Sec. 241(a)(1) and 212(a)(20) j8 U.S.C. 1251(a)(1)] and 8 U.S.C. 

1182(a)(20))—No valid visa 

ON BEHALF OF RESPONDENT: Laurier B. McDonald, Esquire 

P.O. Drawer 54 

Edinburg, Texas 78539 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

In a decision dated January 25, 1978, an immigration judge found the 

respondent deportable as charged on the basis of her concessions at the 

hearing, denied her application for adjustment of status pursuant to 

section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, but 

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granted her the privilege of voluntary departure in lieu of deportation. 

The respondent has appealed from the denial of relief under section 

245. The appeal will be sustained and the record remanded for further 

proceedings before the immigration judge. 

The respondent, a 45-year-old native and citizen of Mexico, claims 

eligibility for adjustment on the basis of her status as the beneficiary 

of an approved immediate relative visa petition which had been filed on 

her behalf by her United States citizen spouse. The immigration judge 

found that the respondent had not been inspected and admitted at the 

time of her last entry into the United States and therefore has not 

satisfied the statutory re quirementsior the relief sought under section 

245 of the Act.' 

The respondent offered the following account with respect to the 

entry in issue. The respondent testified that she crossed the MexicanUnited States border in a car with two couples and another woman. 

She had no travel or entry documents in her possession at the time. 

The respondent stated that the immigration officer at the port of entry 

looked inside the ear, asked the driver a question, 2then permitted the 

car and its occupants to proceed into the United States. She testified 

that she personally was asked no questions by the immigration officer; 

she apparently volunteered no information. 

The immigration judge concluded as a matter of law that the manner of entry described by the respondent does not establish an inspection and admission for purposes of section 245 inasmuch as the respondent was in fact inadmissible for lack of documentation at the 

time she presented herself for inspection. The immigration judge 

sought to distinguish the well-established line of cases which holds 

that an alien who physically presents himself for questioning is "inspected" even though he volunteers no information and is asked no 

questions by the immigration authorities. See Matter of F—, 1 I&N 

Dee. 90 (BIA 1941; A.G. 1941); Matter of F—,1 I&N Dec. 343 (BIA 1942); 

Matter of G—, 3 I&N D cc. 136 (BIA 1948).3He noted that the burden 

was on the Government in the foregoing cases to show, as part of its 

burden of establishing deportability, that inspection had not occurred 

' Section 245(a) of the Act states as an eligibility requirement that the alien have been 

"inspected and admitted or paroled into the United States...." 

2 The respondent stated that she "think[s]" the driver was asked where he was from; at 

several points in the proceedings the respondent, who testified through a Spanish 

interpreter, indicated that she did not comprehend the verbal exchange between the 

immigration inspector and the driver since they spoke English. 

That general rule notwithstanding, an alien who gains admission to the United 

States upon a knowing false claim to citizenship has not been 'inspected and admitted." 

See Reid v. United States, 420 U.S. 619 (1975); Matter of 9 I&N Dec. 94 (R.C. 1960); 

Matter of S—, 9 I&N Dec. 599 (BIA 1962); Matter of Woo, 11 I&N Dec. 706 (BIA 1966); 

Matter of Wong, 12 I&N Dec- '733 (BIA 1968). 

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while in the present case, the respondent bears the burden of proving 

she had been inspected as an element of establishing her eligibility for 

adjustment. 

We agree with the respondent that the immigration judge's distinction is without a difference in determining what constitutes "inspection and admission." We find no basis for concluding that Congress, in 

first imposing the requirement that an alien be "inspected and admitted!' or paroled into the United States as a condition for establishing 

eligibility for relief under section 245, 4intended to depart from the 

long-settled construction of that term in favor of the interpretation 

adopted by the immigration judge, i. e., that only an alien who has been 

"lawfully or legally" admitted to the United States may qualify for 

adjustment of status as one who has been inspected and admitted s 

Regardless of which party bears the burden of establishing the 

presence or absence of an inspection and admission, that which must 

be proved remains unchanged. The rule that an alien has not entered 

without inspection when he presented himself for inspection and made 

no knowing false claim to citizenship applies in determining whether 

an' alien has satisfied the inspection and admission requirement of 

section 245 of the Act. 

We are satisfied that if the facts are found to be as claimed by the 

respondent, she was inspected and admitted° within the contemplation 

of the law. The respondent, however, bears the burden of proving that 

she did, in fact, present herself for inspection. Inasmuch as the immigration judge found the respondent ineligible as a matter of law for 

adjustment under section 245, he made no finding with respect to the 

credibility or sufficiency of the evidence offered, which at present 

consists of the respondent's uncorroborated testimony. We shall accordingly remand the record to the immigration judge for further 

proceedings, during which the respondent should be accorded an opportunity to offer any additional evidence she may be able to produce 

' Act of July 14, 1960, 74 Stat. 505. 

In 1952, Congress provided for adjustment of status, under prescribed conditions, to 

"an alien who was lawfully admitted to the United States as a hone fide nonim 

migrant ..." Section 245 was subsequently amended in 1958 and in 1960 to eliminate 

that restrictive terminology. The immigration judge's interpretation would in effect 

reenact the superseded law. Moreover, under the rationale set forth by the immigration 

judge, any alien found deportable under section 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1), 

for having been excludable at the time of entry presumably would likewise be precluded 

from establishing statutory eligibility for section 245 relief for failure to satisfy the 

"inspection and admission" requirement. 

"Admission" occurs when the inspecting officer communicates to the applicant that 

he has determined that the applicant is not inadmissible. Matter of V—Q—, 9 I&N Dec. 

78 (BIA 1960). That communication has taken place when the inspector permits the 

applicant to pass through the port of entry. 

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in support of her assertions, and for the entry of a new decision. In the 

event the decision on remand is again adverse to the respondent, we 

direct that the case be certified back to the Board for review. 

Finally, the respondent for the first time on appeal argues that 

termination of these proceedings is required by the Temporary Restraining Order entered in Silva v. Levi, No. 76-C4268 (N.D. 111. March 

22, 1977; as amended April 1, 1977), which enjoins the Service from 

initiating, continuing, or concluding any effort to expel an alien within 

the plaintiff class, and further enjoins the Board from dismissing an 

alien's appeal or sustaining a Service appeal in a deportation case 

involving such alien, unless it has been determined that the alien is 

ineligible to receive an immigrant visa or that his continued presence 

in this country is contrary to the national interest or security. See the 

final judgment order entered in Silva v. Bell, No. 76-C4268 (N.D. Ill. 

October 10, 1978): We find no merit in her contention. 

The class of aliens protected by the Silva injunction is defined as 

follows: 

natives of independent countries of the Western HemiaDhere who have priority 

dates for the issuance of immigrant visas between July 1, 1968 and December 81, 1916, 

whose priority dates have not been reached for processing or who have not been called 

for final views. 

Silva v. Bell, supra, "Findings of Fact," Para. 9. The protected class is 

comprised of aliens who should have been issued one of 144,999 visa 

numbers which were assigned to Cuban refugees and wrongfully 

charged against the annual Western Hemisphere quota between July 

1968 and October 1976. The respondent, as an immediate relative not 

subject to the numerical limitations of the Act, did not receive a 

priority date for the allocation of a visa number and was in no manner 

affected by the unlawful charging policy which the Silva order seeks to 

remedy. We conclude that immediate relatives and other aliens exempted from the numerical limitations of the Act are not within the 

purview of the Silva injunction. The following orders will be entered. 

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

immigration judge for further proceedings consistent with the foregoing opinion and the entry of a new decision. 

FURTHER ORDER1 In the event the decision on remand is adverse to the respondent, the record. shall be certified to the Board for 

review. 

1The Seventh Circuit Court of Appeals overruled this decision as it relates to the 

allocation of visa numbers. Silva v. Bell, 605 F.2d 978 (7 Cir. 1979). 

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