MATTER OF C 

In DEPORTATION Proceedings 

A-11659714 

Decided by Board May 31, 1960 

Discretionary relief—Section 211 (c) and (d)—Not granted where alien on 

notice that marriage would invalidate preference visa. 

Section 211 (e) and (d) waiver will not be exercised in favor of 20-year-old 

Italian girl who was married a few days before departing for United States 

after having signed statement in Italian and English (attached to her third 

preference quota visa) placing her on notice that marriage prior to entering the United States would invalidate the visa. 

CHARGE : 

Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable 

at entry as not of proper status under quota specified in immigrant 

visa under section 211(a) (4). 

BEFORE THE BOARD 

Discussion: Respondent is 20 years old, married, female, a 

native and citizen of Italy. Her only entry into the United States 

was at New York on April 20, 1959, at which time she was admitted 

for permanent residence upon presentation of a third preference 

quota immigrant visa issued to her by the United States Consulate, 

Naples, Italy, as the unmarried minor child of a permanent resident 

alien. The special inquiry officer found respondent to be deportable 

on the charge stated in the order to show cause and granted her 

voluntary departure with an automatic order of deportation in the 

event she fails to depart. Respondent appeals to this Board. 

The record shows that at the time respondent filed her application 

for an immigrant visa at the American Consulate, and at the time 

it was issued to her on February 5, 1959, she was the unmarried 

daughter of a legally resident alien_ At that time she was entitled 

to a third preference visa under section 203(a) (3) of the Immigration and Nationality Act.' On April 9, 1959, a few days before her 

Section 203(a) (3), Immigration and Nationality Act: "The remaining 20 

percentum of the quota for each quota are for such year, plus any portion of 

such quota not required for the issuance of immigrant visas to the classes 

specified in paragraphs (1) and (2), shall be made available for the issuance 

of immigrant visas to qnalifieci quota immigrants who are the spouses or the 

children of aliens lawfully admitted for permanent residence." (On September 

22, 1959, 73 Stat. 644, the word children, was changed to read "unmarried sons 

or daughters.") 

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departure from Italy, respondent was married by civil and churcn 

ceremony. At the time she entered the United States she did not 

disclose the fact of her marriage to any immigrant inspector, and 

she entered under her maiden name. She is still married, and her 

husband, a native and citizen of Italy, still resides in that country. 

There are two issues in this case: (1) Is respondent deportable 

on the charge stated? (2) Is respondent eligible for the discretionary relief provided in section 211(c) and (d) of the act? We 

find, first, that respondent is deportable on the charge stated in the 

order to chow cause. 

The definition section of the Immigration and Nationality Act of 

1952, section 101(b) (1), provides, "The term 'child' means an unmarried person under 21 years of age who is—(A) a legitimate 

child * * *." Therefore, the change in the term, "children of aliens" 

in the quota section, 203(a) (3), on September 22, 1959 (see footnote 

one) constituted no change in the law. The amendment evidently 

was to make doubly clear the intention of Congress that only an 

unmarried child qualifies for a third preference visa under section 

203(a) (3). 

Counsel contends that there is no provision in section 241 for 

deporting an alien in respondent's position. Section 241(a) (1) 

declares, "Any alien in the United States * * * shall, upon order 

of the Attorney General, be deported who—(1) at the time of entry 

was within one or more of the classes of aliens excludable by the 

law existing at the time of such entry." Chapter 2, Documentary 

Requirements, section 211(a) states, "No immigrant shall be admitted into the United States unless at the time of application for 

admission he * * * (4) is of the proper status under the quota gpecifed in the immigrant visa." It is not sufficient that she be an unmarried minor child when the visa is issued to her. She must be 

of the proper status under the quota specified in her visa at the time 

she enters the United States. She was not of the specified status, 

and she is, therefore, deportable under section 241(a) as a person 

"excludable by the law existing at the time of such entry." 

The briefs of counsel have gone extensively into the matter of 

respondent's good faith, whether or not the marriage was consummated, and whether or not the record establishes that respondent 

was on notice that marriage prior to entry would disqualify her 

from using her third preference visa. The Board has taken the 

view consistently in these cases that even if the holder of such a 

visa does not know that marriage invalidates his visa, and practices 

no fraud or concealment, he is deportable. He is not of the "proper 

status under the quota specified in the immigrant visa," as required 

by section 211(a). 

The only reported decision of this Board concerning a marriage 

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!ollowing issuance of a third preference visa which invalidated the 

visa prior to entry into the United States is Matter of T—, 3 

& N. Dec. 528 (B.I.A., April 6, 1949). There the alien, while 

still a minor, obtained an annulment of her marriage in Texas. The 

decree was declared by the court to be an annulment of the marriage 

contract ab initio. Therefore, we terminated proceedings because 

the alien, by the annulment, again became an unmarried minor child. 

There is no such issue in the instant case. 

Counsel quotes from United States ex rel. Leibowitz v. &Hotfeldt, 94 F.2d 263 (C.A. 7, 1938), in support, of his application. 

The court in that case repeatedly stated that the "appellee would 

have been entitled to a quota visa if his correct name and age had 

been stated," and he "was within the quota provisions and otherwise met the prescribed requirements to enable him to effect a legal 

entry." The case cited is not applicable to the instant proceeding. 

Respondent became ineligible for the status claimed in the visa 

issued to her. 

The matter of good faith does go to the question of whether the 

Board will act favorably on respondent's petition for favorable 

exercise of the discretion under section 211(c) and (d).' The 

record contains a mimeographed, one-page document, entitled "Marital Declaration," signed by respondent and attached to her visa. 

This declaration, headed "American Consulate General, Naples, 

Italy," dated February 5, 1959, states, "I understand that this visa 

will become invalid should I marry prior to my admission to the 

United States. Should I marry I understand if I make application 

at a U.S. port of entry I will be excluded or, if admitted, liable to 

deportation." The marital declaration appears both in English and 

in Italian, and is signed by respondent on the blank line for signature at the end of the paragraph in Italian. Respondent testified 

that she is able to read and write in the Italian language. There 

is no evidence concerning the length of time she attended school, 

but her testimony is precise and well phrased. 

Counsel submits that the "Marriage Declaration" is not prescribed 

or authorized by the immigration act and is of no binding force. 

The device of the marriage declaration has no legal significance, of 

course, except that it is additional evidence that notice was given 

2Section 211(c) provides: "The Attorney General may in his discretion, 

subject to subsection (d), admit to the United States any otherwise admissible immigrant not admissible under clause (2), (3), or (4) of subsection (a), 

if satisfied that such inadmissibility was not known to and could not have been 

ascertained by the exercise of reasonable diligence by, such immigrant prior to 

the departure of the vessel. * * *" (Empbais supplied.) 

Section 211(d) provides that the discretion under 211(c) shall not be exercised unless the immigrant can obtain a quota number under the proper quota 

during the present fiscal year or during the next fiscal year. 

667 
an unmarried minor child (of marriageable age) applying for a 

third preference quota visa. The fact is that since this marriage 

declaration has been in use by United States consulates appeals to 

the Board such as the instant case have greatly decreased. 

The marriage declaration is intended to emphasize the statement 

set forth in the visa, paragraph 30, "I claim to be a third preference 

quota immigrant and my claim is based on the following facts: 

Minor unmarried daughter of an alien lawfully admitted to the 

United States for permanent residence." Paragraph 31 lists the 

documents required by the Immigration and Nationality Act, filed 

herewith and made a part hereof, as follows: "birth certif., single 

status certif., family status certif., penal dots. (3), marital statement." Thus the immigration documents in the possession of this 

respondent from February 5, 1959 until the date she was admitted 

to the United States, April 20, 1959, declare in not less than four 

places that she is a minor unmarried daughter, as required by section 101(b) (1), the definition section, and section 203(a) (3), the 

quota section of the act. 

Counsel ridicules the suggestion that the "immigrant examines, 

scrutinizes and remembers" the documents he is asked to sign, and 

states that the immigrant signs all papers requested and, evidently, 

never looks at them again. The travel documents were in the hands 

of respondent for more than 2 months prior to her marriage. Counsel criticizes the wording of the "Marital Declaration." Certainly 

it must be admitted that it is awkwardly phrased. The fact remains 

that it should be enough of a warning to have put a literate person 

on notice that marriage following the issuance of the visa, but prior 

to her entry into the United States, would in some way seriously 

affect her immigrant status, even if the other statements and declarations in her visa regarding her unmarried status had made no 

impression upon her. 

The facts of the case are not as they would be if the documents 

had been signed by respondent and returned to a Government official, so that she did not see them from the time she signed them 

until the time she applied for admission into the United States. 

She stated at her hearing that she signed all the documents without 

stopping to read them. However, in her preliminary statement (Ex. 

6, p. 3) she said that she thinks she read the document but cannot 

remember; she only remembers signing it. 

We fail to see where counsel derives comfort from Clarke v. Landon, 139 F. Supp. 113 (D. Mass., 1956), or from Landon v. Clarke, 

239 F.2d 631 (C.A. 1, 1956). The instant case falls under the rule 

that if the misrepresentation had been known at the time of respondent's entry into the United States, she would have been denied 

use of the visa in her possession. 

668 
Not only was respondent not eligible for the preference visa she 

ibtained, but she now seeks a third preference quota visa for her 

husband as the spouse of an alien lawfully admitted for permanent 

residence. Thus, respondent and her husband would both enter the 

United States under the preferences, rather than having to wait out 

their turn on the lists for nonpreference visas. 

We find that this is not an appropriate case for the favorable 

exercise of the discretion provided in section 211(c). Respondent 

has riot established to our satisfaction, as required by the statute, 

that her inadmissibility under the preference visa issued to her 

"was not known to and could not have been ascertained by the exercise of reasonable diligence by" her, prior to the departure of her 

vessel from Italy for the -United States. On the contrary, it is our 

opinion that she is a person who is able to comprehend the meaning 

and effect of the documents placed before her. The special inquiry 

officer has granted respondent voluntary departure, and that is the 

maximum relief available to her on this record. 

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

669