Interim Deeislon #1487 

MATI211 OF EsTRADA-11/10y.ENA, 

:131 Deportation ProCeedingi 

• 'A-10551015 

A-10551431a 

Dookleelby ifocird June 11, 1966 

The special inquiry Gower nag authority-in deportation proceedings to grant A. 

mow pro tone waiver of the passihrt requirement under section. 211(e), 7.m, 

migration and Nationality Act, 

Onsium• • 

Order: ACV of 1852—Section 241(6)(1) (8 17.8.d. 1251(a) (1)]—Excludable-

•• as immigrant not in possession of valid unexpired, 

passport (ad to each respondent) 

-;: 

The respondents; a sister and brother, 18 and 11 years of age re-, 

spectivelYiere natives and citizens of Mexico. They haiebeen found. 

deportable se aliens who .were excludable at the time of their entry 

as immigrants not in possession of valid unexpired passports and 

not exempt from the possession thereof by said Act or regulations 

made thereunder pursuant to section 212(a) (20) of the Immigration 

and Nationality Act. An order entered by the special inquiry officer , 

on.April 7, 1965 grants a walver,of the passport requirement, 1111414, 

pro tune, as of the time of their admission to the 'United S4tes.for, 

permanent residents at El Paso, Texas, on April 23, 1956. "The order 

terminated. the proceedings and certified the case to the Board of 

Immigration Appeals for final decision. 

The respondents were issued immigration visas in 1956 as a ie.sult 

of a scheme evolved. by their parents to enter the United States for' 

permanent residence. The mother of the respondents obtained. birth.' 

records relating to one Micaela Moreno who was born in Ontario, 

California. The American Consul•at Afarez, Mexico, issued the respondents and their father immigration visas for permanent residence and they were admitted as immigrants at El Paso, Texas On 

4-p41•2a,.1956. The Piissport requirement was waived by the consul 

in accordance with the proitisioos of 22 CFR 42.36. 

249 
interim 'Decision 4t1487 

The evidence establishes that the two respondents were admitted 

on April 23, 1956, as immigrants upon a. waiver of the passport requirement pursuant to 8 OFR 211.2, which waiver was granted to 

them as a result of the misrepresentation that their mother was a 

United States citizen when in fact she was not a citizen of the United 

States. The evidence also establishes that the respondents were excludable on April 23, 1956, as aliens who were immigrants not in 

possession of a valid unexpired passport or other suitable travel 

document. We affirm the finding of the special inquiry officer that 

the respondents are deportable as charged in their respective orders 

to show cause. 

The respondents have applied for a waiver, Irmo pro tune, of the 

passport requirement (Exhs. 12 and 13). • Section 211(e) of the immigration and Nationality Act requires that every immigrant must 

present a valid unexpired passport if such document is required. 

under thi%-regulations issued by the Attorney 'General. These regulations are found in 8 CFR 211.2. The regulation provides among 

other things that the district director in charge of the port of entry 

may grant a passport waiver where there is good. cause for failure to 

present the required documents. The application for a waiver may 

be presented. to the special inquiry officer during an exclusion proceeding in the event the district director should refuse to grant a 

waiver .of the passport requirement (8 CFR 235.7). Accordingly 

under 8 CFR 235.7 the special inquiry officer does have authority to • 

consider an application for a waiver of the passport requirement 

where such application is made during the course of an. exclusion 

hearing. - 

The special inquiry officer is of the opinion that since a deportation charge under section 241(a) (1) of the Act is in effect a 'delayed 

exclusion proceeding and reaches all those who manage to enter the 

United States in violation of the excluding provisions of the law he 

may entertain and consider an application for a waiver of the passport requirement, nuns pro tune, with reference to date when the 

alien was admitted to the United States as an. immigrant and at 

-.which time he was not in possession of the required passport. The 

special inquiry officer relies upon 8 CFR 242.17(d),1for the authority to grant said waiver. We agree with the special inquiry officer 

that he has authority to grant the relief requested by the 

respondents. 

CFR 242.17(d) reads as follows: "Nothing contained herein is intended 

to foreclose the respondent from applying for any benefit or privilege which he 

believes himself eligible to receive in proceedings under this part." 

250 
Interim Decision #148T 

The trial attorney is of the opinion that _the special inquiry officer 

does not have authority to grant the waiver provided by section. 

211(e), none pro tuna The trial attorney argues that since the respondents did not have the relationship to a United States citizen. 

which would exempt them from presenting a passport this deficiency 

cannot be cured by ii/UTIV pro how action. The trial attorney maintains that a Rune pro taw order should correct the record to state• 

the facts as they existed at the time of the respondents' entry for 

permanent residence in 1956. It is argued that the respondents are 

unable to avail themselves of the benefits under the law which 

existed at the time of their entry because they were excludable under 

the' provisions of section 212(a) (15) as aliens likely to became a 

public charge. 

We find no basis for the exceptions raised by the trial attorney. 

There is no evidence that the respondents were ineligible for nonquota immigration visas at the time of their entry in 1956. Con- . 

 cerning the allegation of the trial ett'orne3• that they would have 

been inadmissible as aliens likely to become a public charge we note 

that they have resided in the United States for nine years and have 

not become public charges. 'Under 8 CFR 211.2(g) the burden is 

upon. the respondents to establish that there is "good cause for failure to present the required document." Unfortunately the respondents were not children of a United States citizen but this misrepresentation on the part of their parents when they applied for the respondents' nonquota immigration visas should. not inure to the detriment of the respondents themselves. Under the regulations which 

existed at that time 2the consul did have the authority to waive the 

passport requirment for a citizen of Mexico. We conclude that the 

respondents have piesented good cause for failure to have obtained 

the required Mexican passports and will affirm the grant of the 

waivers of the passport requirement by the: special inquiry officer, 

The regulation at that time read as follows: 

"42.38 . . . (a) except as provided in paragraph (b) of this section, every 

alien applying for an immigrant visa shall present to the consular officer a 

Passport • • • 

(b) . . . an immigrant within any of the following categories shall not be 

required to present a passport in applying for an immigrant visa: . . . 

(5) an immigrant who is the parent, spouse or unmarried son or daughter 

under twenty-one year's of age, of a 'United States citizen." 

Following a requirement by Mexico that her antimatter have a passport when 

departing from that country the regulation was amended in 1958 bg, adding the 

following language to clause (5) : 

"unless such immigrant is applying for a visa in the country of which he is a 

national and the possession of a passport is required for departure from such 

country." 

251 
Interim Decision #1487 

Rune pro tune. The order terminating the proceedings will be affirmed (Cf. Matter of G—, 6 I. & N. Dec. 9, 14.) 

ORDER: It is directed that the order entered by the special inquitr•officer on April 7, 1965, granting the respondents a waiver of 

the passport requirement viuno pro tune as of t14+ time of their admission at El Paso, Texas, on April 23, 1956 as nouquota immigrants 

and terminating this proceeding be and the same is hereby affirmed.. 

252 •