Interim Decision #1694 

Maumee OF CORDERO-SAITTANA 

In Deportation Proceedings 

A-12618549 

Decided by Board February 13, 1967 

Notwithstanding respondent, who is deportable on a charge of visa fraud and 

misrepresentation, is also deportable on documentary charges of "no visa" and 

"no passport", he is not precluded by such documentary charges from establisting he was "otherwise admissible" for the purposes of a waiver of the 

grounds of deportation under section 241(f) of the Imellgratien and Nationality Act, as amended, since any ground of deportation (regardless of the 

section of statute under which brought) which results directly from the visa 

fraud or misrepresentation is encdmpaased within the purview of section 

241(f) of the Act, provided the alien has the requisite relationship to a "United 

States citizen or resident alien. 

()FUDGES 

Qrder : Act of1952r-Section 241(a) (1) [8 11.8.0. 1251(i) (1)]—Excludable 

at time of entry-r-Viaa procured by fraud or mierep-

. resentation. 

Act of 1052—sootioa 241(a) (1) 'f5 ;DS 0. 1251(a) (1)7 —Excludable 

at time of entry—No passport. 

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

at time of entry—No valid immigrant visa. 

Brststr or Snsvroz: Irving A. Appleman 

Appellate Trial Attorney 

Stephen Ai. Suffix 

Trial Attorney 

(Brief filed) 

. • 

The case comes forward on appeal by the Service from the order 

of the special inquiry officer dated June 3, 1965 terminating the proceedings. 

The respondent is a native and citizen of Mexico, 43 years old, male, 

who was admitted to the United States for permanent residence on 

July 4, 1961 on the basis of a nonquote, immigrant visa issued to him 

on July 3, 1961 at the American Consulate General at Tijuana, B.C., 

Mexico on July 3, 1961, as a native of the western hemisphere. A Mex69 
Interim Decision #1694 

lean passport was not required under the State Deparment regulations 

because he had been married to a United States citizen, Neomia 

Tarkington, on March 7, 1960. 

However, the record establishes that the respondent had previously 

been married on October 28, 1943 to Maria Isabel Marcado-Garcia at 

Sayula, Jalisco, Mexico and that four children were born of this marriage. He resided with Maria from 1942 until he entered this country 

as an agricultural laborer in 1952, did not live with her thereafter but 

continued to support their children. On November 18, 1964 his marriage to Maria was terminated by divorce and he remarried Neomia 

on May 21, 1965. 

In his application 'for the immigrant visa executed before the American Vice Consul on July 3, 1961, the respondent stated that he vats 

married only once, that his wife's name was Neomia and that he had 

no children. Although the respondent was by birth nonquota, these 

false statements are regarded as material inasmuch as at the very least 

the misrepresentations choked off a relevant line of inquiry which 

might have resulted in a proper determination of excludability since 

it would have led to the discovery of adultery and bigamy and desertion of the first wife.' The charge of excludability based upon the 

visa procured by fraud or misrepresentation is sustained. 

The special inquiry officer has terminated proceedings on the theory 

that the second charge contained in the order to show cause and the 

lodged charge, which are documentary charges, all arose out of the 

same fraud or misrepresentation. The special inquiry officer applied 

section 241 (1) of the . Immigration and Nationality Act which 

provides: - 

The provisions of this section relating to the deportation of aliens within the 

United States on the ground that *boy were excludable at time of entry as 

aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not 

apply to an alien otherwise admissible at the time of entry who is the spouse, 

parent, or a child of a United States citizen or of an alien lawfully admitted for 

permanent residence. 

The special inquiry officer concluded that on the basis of his present 

marriage to a United States citizen he comes within the ameliorating 

provisions of section 241(f) of the Immigration and Nationality Act, 

as amended, that the waiver in that section also covers other deportation grounds flowing directly from the fraud or misrepresentation, and 

terminated proceedings upon the basis of the 241(f) waiver. 

Consideration of the case on appeal was held in abeyance pending the 

outcome of the appeal to the Supreme Court in Er, ioo v. Immigration 

I Matter of 8— and 13-0—, 9 I.* N. Dec. 488 (A.G., 1981 ). 

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Interim Decision #1694 

and Naturalization Service (9th Circuit) and Scott v. Immigration 

and Naturalization Service (2d Circuit) which reached diametrically 

opposed conclusions on the meaning of the term "otherwise admissible 

alien" contained in section 241(f) of the Immigration and Nationality 

Act. The Supreme Court decision was handed down December 12, 1966 

and is reported in 385 U.S. 314. 

At the-outset the Supreme Court noted that even the Government 

agrees that section 241(f) cannot be applied with strict literalness. 

Under the literal interpretation which would involve a violation of 

section 212(a) (19) of the statute, an alien who entered by fraud could 

be deported for having entered with a defective visa or other documentary irregularities even if he would have been admissible if he 

had not committed the fraud. Such an interpretation would be admittedly inconsistent with the manifest purpose of the section and the 

administrative authorities have consistently held that section au(t) 

waivee any deportation uharYe that results directly' from the misrepresentation regardless of the section of the statute wader which the 

charge was brought, provided that the alien was "otherwise admissible 

at the time of entry." 

The Court traced the parent comparable legislation, namely, the 

Displaced Persons Act of 1948 and section 7 of the 1957 Act. The 

Court held that the language contained in the 1957 Act would be 

meaningless if an alien who committed fraud for the purpose of evading quota.restrictions would have been. deportable as "not oth.erwiss 

admissible at time of entry."• Congress must have felt that aliens who 

evaded quota restrictions by fraud would be "otherwise admissible at 

time of entry" or it would not have found it necessary to provide further that., in the case of an alien not possessing a close familial relationship to a 'United States citizen or lawful permanent resident, the 

fraud must not be for the purpose of evading quota restrictions. The 

Court felt its conclusion was reinforced by the fact that Congress further specified that the aliens who were not close relatives of United 

States citizens must establish that their fraud was not committed for 

the purpose of evading an investigation. The Court concluded that elementary principles of statutory construction led to the conclusion that 

Congress meant to specify two specific types of fraud that would leave 

an alien "otherwise admissible" but that it would nonetheless bar relief 

to those aliens who could not claim relationship with a United States 

citizen or alien lawfully admitted for permanent residence, i.e.; fraud 

to evade quota restrictions and fraud to &Void. investigation. 

The Court went on to state that the construction of the statute that 

it adopted in these eases was further reinforced when the section was 

regarded in the context of the 1957 Act. The fundamental purpose 

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of this legislation was to unite families. The Act principally granted 

relief to persons who would be temporarily or permanently separated 

from their nearest relatives and the strict requirements of the Immigration and Nationality Act, including the national quotas, were 

not relaxed for them. It was wholly consistent with this purpose for 

Congress to provide that immigrants who gained admission by misrepresentation, perhaps many year ago, should not be deported because their country's quota was oversubscribed when they entered 

if the effect of deportation would be to separate a family composed 

in part of an American or a lawfully permanent resident. The Court 

went on to say that any doubts, even in a deportation statute, should 

be resolved in favor of the alien and concluded that to give meaning 

to the statute in the light of its humanitarian purpose of preventing 

the breaking up of families composed in part at least of American 

citizens, the conflict between the Circuits must be resolved in favor 

of the aliens, affirmed the Enrico decision and reversed the Scott 

decision. 

In the instant case the documentary charges flow from and are 

a direct result of the fraud charged in the order to show cause.. 2The 

Supreme Court in Enrico, etc.fhas held. that section 241(f) waives 

any deporiation charge:that results.directly from the mietrepresentaL 

tion regardless of the section of the statute under which the charge 

was brought provided that -the alien was ootherwise admissible -at 

time of entry?' The Court emphasized that-in the- case of persons 

possessing the necessary familial ties, and having in mind that the 

fundamental purpose of the legislation was to unite families and togive moaning to the statute in the light of its humanitarian purposeof preventing the breakup of families composed in part at least of 

American citizens, immigrants who gained admission by misrepresentation should not be deported because their quota was oversuhscribed. The Court held that the documentary charges relating tothe fraud, in the light of the humanitarian purpose of the statute. 

and its historical-background, should be waived. The Supreme Court 

decision confirms that the proceedings were properly terminated by 

the special inquiry officer. 

ORDER: It is ordered that the appeal of the Service from thedecision of the special inquiry officer terminating the proceedings beand the same is hereby dismissed. . 

'Where a no passport charge is linked to a no visa - charge by a commonground of misrepresentation and the no visa charge is not sustained, the no 

passport charge also falls. Matter of Boa, 16 L & N. Dee. 87. 

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