11A Eli OF S-- 

In EXCLUSION Proceedings 

A-10067819 

Board decision of October 9, 1981 

Decided by the Attorney General January 22,1962 

Board decision of January 24, 1962 

Excludability—Deportability—Effect of adjustment of status, section 245, 1952 

Act, on ground which existed prior thereto. 

(1) Adjustment of status acquired under section 245 of the Act does not 

immunize an alien from the exclusion and deportation provisions of the 

Act. These provisions apply equally to aliens lawfully admitted for permanent residence and to those who have had their status adjusted under section 245 to that of permanent residents. 

(2) The five-year limitation contained in section 246 applies t -) the Attorney 

General's authority to rescind adjustment of status and does not bar exclusion or deportation thereafter on grounds which existed prior to the adjustment and which would also have supported rescission, If timely known. 

(3) In the instant case, the lapse of more than five years since the applicant's adjustment of status under section 245 does not bar exclusion proceedings based on fraudulent procurement of an entry document prior to 

the adjustment. 

NOTE: Matter of V—, 7-363, ,distinguished. 

ExcLunAnr.r.: Act of 1952—Section 212(a) (19) [8 U.S.C. 1182(a) (19)]-0btamed visa by fraud or misrepresentation (1949). 

BEFORE THE BOARD 

(October 9, 1961) 

DISCUSSION: Tho Board upheld the ruling of the special inquiry officer authorizing the applicant's admission to the United 

States as a returning resident. The Commissioner believes the applicant is inadmissible and requests that the decision of the Board be 

certified to the Attorney General for review. The Board has entered 

two orders : on June 2, 1961, the appeal of the District Director was 

dismissed, and on August 17, 1961, a Service motion for reconsideration was denied Request for review is under 8 CFR 3.1 (b.) (1) (iii). 

In April 1955 the applicant secured an adjustment of status under 

section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) 

548 
which then permitted a lawfully admitted nonimmigrant to obtain 

the status of an alien lawfully admitted for permanent residence. 

The applicant was ineligible for the adjustment but it was not 

rescinded within the five-year time limit permitted by law (section 

246(a), Immigration and Nationality Act; 8 U.S.C. 1256(a)). The 

Board believes that in the absence of timely rescission the applicant 

cannot be denied any nondiscretionary rights which are the incidents 

of proper adjustment. The Service disagrees with this view, at least 

as it applies to an alien who has departed from the United States 

and seeks to reenter. 

The law and facts have been fully stated in previous orders. 

Briefly, in 1949 the applicant entered the United States on a displaced person's visa which he had fraudulently procured. In 1951 

he abandoned the United States and went to South America where, 

shortly after his entry, he assumed the name of A—S—, allegedly 

a fictitious name and one which he has used to date. In 1954 he 

entered the United States as a visitor under the name of A—S—. 

In 1955, using the Bailie of A—S , he improperly secured the right 

to be a permanent legal resident of the United States under section 

245 of the Immigration and Nationality Act. He was not entitled to 

the adjustment because he had not been lawfully admitted; he had 

been inadmissible at the time of entry as one who had procured a 

visa by fraud in 1949. The adjustment of status was not rescinded 

within the five years during which such action could be instituted. 

The applicant has reentered the United States from time to time —in 

1957 on a reentry pe_la'A issued in the name of A—S----, and on 

other occasions, as he is attempting to do at the present, on the basis 

of a Form I-151A -a(alien registration card) which at the time of 

application for admission (August 1960) was sufficient to authorize 

the admission of an alien admitted for permanent residence returning to resume residence (24 F.R. 2583, April 3, 1959). 

The Service apparently agrees that where there has been no rescission of the adjustment of status, there can be no expulsion of an 

alien (who did not depart after the adjustment) on grounds which 

made the alien ineligible for the adjustment. Thus, we would assume 

there is agreement that the alien who was ineligible for adjustment 

because he is a criminal, a subversive, or a person who procured a 

document by fraud can enjoy the fruits of his adjustment as long as 

he remains in the United States. However, the Service feels that in 

exclusion proceedings, even though there has been no rescission, it 

is proper to exclude the alien on the grounds which it could not have 

used to deport him prior to his departure. Thus, the examining 

officer urges that the applicant is inadmissible under section 212(a) 

(19), Immigration and Nationality Act (8 U.S.C. 1182(a) (19)), because he had procured a visa by fraud in 1949. However, the Board 

549 
is of the belief that since Congress provided that the adjustment 

could not be questioned after the five years which have passed since 

the adjustment, the applicant must be considered as having been 

admitted for permanent lawful residence. It follows, in the Board's 

opinion, that any attempt to exclude the applicant on the ground 

which made him ineligible for the adjustment is an attack upon the 

status which Congress stated should no longer be questioned. The 

adjustment gave the applicant a legal status in the United States. 

We can see no logical reason why Congress which desired to protect 

this status by a statute of limitations, even though the status had 

been acquired by one who was not eligible, should wish to withdraw 

that protection because the alien had left the country and reapplied 

for admission on the basis of the very adjustment of status which 

they had protected. Since one lawfully admitted for permanent 

residence is entitled by law to reenter to resume residence on the 

basis of an alien registration card following a visit such as the applicant made, he must be permitted to enter. 

We do not know why Congress provided a statute of limitations to 

prevent attack upon the right of permanent residence belonging to 

an alien who had secured it by an adjustment, but failed to provide 

similar protection for the one who secured his right through the 

visa process; however, there is a difference, and it is this difference 

which now prevents the applicant's right to permanent residence 

from being questioned because he was ineligible to receive it. 

The Service ,motion raises a matter which was not an issue at 

the exclusion proceeding. The motion urges that the applicant is 

inadmissible because, although his true name is -J—, he used the 

name S on the reentry permit in 1957 and used, and is attempting 

to use, a Form I-151A issued in the name of S— (he received it as 

part of the adjustment of status). We do not believe that the ap 

plicant is inadmissible because of his use of the name S . He 

did not adopt it to defraud this Government. It is the name by 

which he has been generally known since 1951 (United States ex rel. 

Leibowitz v. Sehlotfeldt, 94 F.2d 263 (C.A. 7, 1938)). Moreover, 

since it is the Board's belief that it must regard the applicant for 

the purpose of immigration laws as the S— who obtained the right 

to legal residence in 1955 with all the incidents flowing out of that 

right, we do not believe that his use of the name under which he 

received the adjustment can be considered a new and additional 

violation of the immigration lasvb. Tu so consider it, would be to 

do indirectly what cannot be done directly—challenge the applicant's 

status as a lawful resident acquired by the adjustment. 

To complete the discussion, we would point out that. the adjustment of status obtained by the applicant would not free him from 

liability to exclusion or expulsion if an act committed by him after 

550 
the adjustment placed him in any of the categorico which make an 

alien excludable or deportable. 

ORDER: At the request of the Commissioner under the authority 

contained in 8 CFR 3.1(h) (1) (iii), the case is referred to the Attorney General for review of the Board's decision. 

BEFORE THE ATTORNEY GENERAL 

(January 22, 1962) 

The Board of Irrunigration Appeals, pursuant to 8 CFR 3.1(h) (1) 

(iii), has, at the request of the Commissioner of Immigration and 

Naturalization, referred its decision of June 2, 1961, in this case to 

me for review. The Board of Immigration Appeals affirmed an 

order of a special inquiry officer holding that the applicant was admissible into the United States AS a returning lawfully admitted 

resident alien. The decision raises a novel and important question of 

interpretation of the immigration laws. 

The question arises in the following way: Applicant, whose true 

identity is apparently B—J—, a native of Czechoslovakia, first entered the United States in 1949 on a displaced person's immigration 

visa issued to a native of Germany, an identity which 

the applicant had assumed in applying for the visa. In 1951 applicant abandoned his residence in the United States and left for South 

America. After passing through Brazil on a transit visa, he arrived in Paraguay. Although five years of residence in Paraguay 

is a prerequisite to the acquisition of Paraguayan citizenship, applicant apparently acquired Paraguayan citizenship within several 

months of his arrival. For purposes of his Paraguayan naturalization he assumed the identity of A—S--, a native of Germany. In 

1953 he entered Brazil, and in January 1054 he was admitted to 

the United States as a visitor under the name of A—S—. In 

September 1954 he was married to a lawfully resident alien. In 

April 1955, pursuant to section 245 of the Immigration and Nationality Act (66 Stat. 217 (1952)), applicant, under the assumed 

identity of A—S—, had his status adjusted to that of an alien 

lawfully admitted for permanent residence. Section 245, then, as 

now,' required, among other things, that an alien to be eligible 

far adjustment had to be admissible to the United States for perStat. 505 (1960), 8 U.S.C. (Supp. TI) § 1255: "(a) The status of an 

alien . may be adjusted by the Attorney General, in his discretion and 

under such regulations as he may prescribe, to that of an alien lawfully 

admitted for permanent residence if (1) the alien makes an application for 

such adjustment, (2) the alien is eligible to receive an immigrant visa and is 

admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application Is 

approved." 

551 
manent residence under the Act. If applicant had at one time 

procured a visa by fraud or willful material misrepresentation, this 

would have made him ineligible for adjustment. 2 

In 1956 applicant spent several hours in Mexico obtaining a 

divorce from his wife. Between 1957 and 1960, he left and reentered the United States several times. On reentry he either presented the alien registration card issued to him as A—S--- or reentry 

permits also issued to him in that name. 

On applicant's last attempt to reenter the United States at Miami 

Beach, Florida, in August 1960, the Immigration and Naturalization Service sought to exclude him under section 212(a) (19) of 

the Act 2on the ground that his initial entry in 1949 was procured 

by fraud or willful misrepresentation of a material fact. The special inquiry officer who heard the exclusion proceeding, although 

concluding that the applicant had procured his 1949 displaced person's visa by fraud or willful material inisrepiesentation, held that 

the passage of five years since the adjustment of applicant's status 

barred his exclusion on a ground which existed prior to such adjustment. While Congress in section 246 of the Act, 8 U.S.C. 1256, 

authorized the the Attorney General to rescind action granting adjustment if the alien was not in fact eligible for such adjustment, 3he 

pointed to the fact that the Attorney General's rescission authority 

was limited to five years following the adjustment. It was his 

view that exclusion or deportation proceedings based upon grounds 

which would also have supported rescission were indirect attacks 

on the adjustment of applicant's status to that of an alien lawfully 

admitted for permanent residence and that Congress, in barring 

rescission of the adjustment after five years, also intended to bar 

such indirect attacks. Since the fraudulent procurement of a visa 

in 1949 would have been grounds for rescission of the applicant's 

status, and since the passage of more than five years barred rescission, the special inquiry officer concluded that applicant could not 

3Section 212(a) (19), 8 U.S.C. 1182(a) (19), excludes from admission into 

the United States "[a]ny alien who seeks to procure, or has sought to procure, or hue procured a vino or other documentation, or seeks to enter the 

United States, by fraud, or by willfully misrepresenting a material fact." 

3 ". . . If, at any time within five years after the status of a person has 

been otherwise adjusted under the provisions of section 245 or 249 of this 

AM- or any other provision of lam to that of an alien lawfully admitted for 

permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, 

the Attorney General shall rescind the action taken granting an adjustment 

of status to such person end cancelling deportation in the case of such person 

if that, occurred and the person shall thereupon be subject to all provisions 

of this Act to the same extent as if the adjustment of status had not been 

made." 

552 
now be excluded on that ground:3Accordingly, he directed the applicant's admission. The Board of Immigration Appeals has affirmed 

on the basis of the special inquiry officer's opinion. 

I cannot agree that an adjustment of status under section 245 and 

the five-year limitation on rescission provided in section 246 have 

the effects attributed to them by the special inquiry officer and the 

Board of Immigration Appeals. . Neither the exclusion provisions of the Act, section 212 (8 U.S.C. 

1182), nor its deportation provisions, section 241 (8 U.S.C. 1251), 

contain statutes of limitations. 5Consequently, an alien who upon 

entry acquires the status of an alien lawfully admitted for permanent 

residence is nevertheless subject to deportation at any future time, or 

exclusion if he seeks to reenter the United States after departure, 

for conduct preceding his acquisition cf that status. By virtue of 

the decision below, an alien initially admitted as a nonimmigrant 

who subsequently acquires the status of a lawfully admitted permanent resident through the adjustment procedure provided for in 

section 245 of the Act, acquires, through the five-year limitation 

on rescission of his status, the additional advantage of a statute of 

limitations immunizing him from exclusion or deportation on 

grounds founded on events preceding the acquisition of his status. 

There is no indication that Congress intended to afford such an 

advantage to one acquiring permanent resident status by adjustment under section 245. That section was first enacted in 1952. 66 

Stat. 217. Prior to that time, an alien initially admitted as a nonimmigrant could only change his status to that of an alien lawfully 

admitted for permanent residence by undergoing a complicated 

procedure called preexamination. Pursuant to that procedure, the 

alien was required to leave the United States in order to obtain 

an immigration visa from a consul and reenter. See, Gordon and 

Rosenfield, Immigration Law and Procedure, 711-12 (1959). This, 

of course, entailed both a burdensome expense and inconvenience for 

the alien. It did not, however, with respect to deportation or exclusion proceedings thereafter commenced, put him in any better 

position than an alien initially admitted for permanent residence 

without preexamination. The adjustment procedure of section 245 

was "specifically devised to obviate the need for departure and re4The Service apparently conceded that deportation Is barred but contended 

that this did not affect exclusion. I do not believe the question in this case 

can be satisfactorily resolved on the basis of such a distinction. 

pct nut failb to provide e ntatate of limitations for depot- tability 

but since the grounds for deportability which it establishes apply retroactively 

to conduct preceding its enactment (section 241(d), 8 U.S.C. 1251(d)), it has 

been construed to apply to such conduct even in cases where the period of 

limitations provided by previous law would have barred deportation. Lehr': 11Pli. v. Carson., 553 ❑ .S. 685 (1557). 

553 
entry in the cases of aliens temporarily in the United States. . . ." 

H. Rept. No. 1365, 82d Cong., 2d Sess., p. 63 (1952). I find nothing 

to suggest that the section was intended to ultimately immunize an 

alien from deportation or exclusion thereafter on grounds which 

would have made him initially inadmissible. In 1958, subsequent 

to this applicant's adjustment of status, Congress liberalized the 

adjustment procedure of section 245. The Senate Report accompanying the amendment of that section was careful, however, to 

emphasize that the amendment was not designed either to "benefit 

the alien who has entered the United States in violation of the law" 

or to "affect the statutory standards of eligibility for immigration 

into the United States." S. Rapt. No. 2133, 85th Cong., 2d Sess., 

p. 2. There is no reason to suppose that section 245, as originally 

enacted, had any broader purpose.° 

From this background, it seems clear that section 245 was intended to perform no other Riot:Lion than to permit nonimmigranta 

to attain permanent resident status without leaving the United 

States. Nor is there any basis for believing that the five-year limitation in section 246 on the Attorney General's rescission authority has 

the effect of broadening the benefits conferred by a section 245 

adjustment so as to place nonirr migrants who thereby acquire the 

status of aliens lawfully admitted for permanent residence in a better position than those who have initially entered as permanent 

residents. 

Section 246 permits the Attorney General to rescind adjustment 

of status within five years. In the words of the statute, rescission 

places an alien in the same position "as if the adjustment of status 

had not been made"; that is, one whose status was adjusted under 

section 245 to that of an alien "lawfully admitted for permanent 

residence" is, through rescission, returned to nonimmigrant status. 

Consequently, the effect of the five-year limitation on rescission is 

simply to bar the Attorney General from returning an alien with 

adjusted status to the category of nonimmigrant. I cannot agree 

6That Congress did not intend section 245 to confer any protections against 

deportation or exclusion is brought out more clearly by contrasting its proviSilMIN with those of beclivu 234 of the Act (8 T.T.S.O. 1251), and section 24.9 of 

the Act (8 U.S.C. 1259). Section 244 allows the Attorney General to suspend 

the deportation of an alien who is found to be deportable. Section 249 now 

authorizes him' to make a record of lawful admission for an alien except 

where the alien is deportable on grounds specified in that section. Section 949 

has been read as authorizing the Attorney General to waive known grounds 

of deportation other than those specified in that section. Matter of L—F—Y—, 

8-601 (1960). Thus, these provisions confer upon the Attorney General a 

"pardoning" authority. In contrast, section 245 permits adjustment only where 

the applicant is "eligible to receive an immigrant visa and is admissible to the 

United States for permanent residence." Section 245 does not give Attorney 

General "pardoning" authority. 

554 
that, in performing this narrow function, the. time limitation imposed on rescission by section 246 was intended to be read as qualifying the express authority provided by the Act to deport or exclude aliens on proper grounds without time limitation. Such an 

extreme interpretation would require either specific statutory lan-

■_tuage or at least a clear indication in the legislative history that. 

Congress intended the statute to be so read. There is neither.? 

I recognize that as I construe the time limitation in section 246 

it may be of little practical value to the alien. While the limitation 

obviously prevents the Attorney General from returning the alien 

to the category of a nonimmigrant on the basis of conduct which 

would have justified a rescission of adjustment, it could be argued 

that this entails no real benefit to the alien since the same conduct 

nevertheless can be utilized independently as a ground for his deportation or exclusion. This makes it difficult to ascertain precisely why Congress enacted the time limitation. But whatever 

the purpose Congress may have intended the time limitation to 

serve, it is clear that it could not, consistently with the policies 

underlying the provisions of the immigration laws here involved, 

have intended to confer upon an alien of adjusted status the benefit 

of immunity from exclusion or deportation for prior conduct. 8 

7The time limitation provision is apparently the result of a recommendation 

made by the Senate Committee on the Judiciary in its study of the immigration and naturalization systems of the United States. S. Rept. No. 1515, 51st 

Cong., 2d Sess., p. 611 (1950). No explanation is given there of the purpose to be attributed to the provision. Nor is it discussed at later points in 

the legislative history mentioning the time limitation. See II. Rept. No. 2096, 

82d Cong., 2d Sess., p. 128 (1952) ; H. Rept. No. 1365, 82d Cong., 2d Sess., 

p. 63 (1952) ; S. Rept. No. 1137, 82d Cong., 2d Sess., p. 26 (1952). 

8 Congrese reasons for providing the five-year limitation are nowhere clearly 

indicated. See note 7. supra. As far as I can determine, the significance 

which Congress attached to the five-year limitation was that it cut off the 

availability of a procedure which, although to all intents and purposes would 

establish deportability, permitted the Attorney General to act more informally and expeditiously than he could in a deportation proceeding. The rescission procedure apparently resulted from congressional recognition that a 

means more informal and expeditious than deportation was needed to correct 

mistakes made in granting permanent residence to nonimmigrant aliens 

through adjustment of status. Experience under preexamination had shown 

that such mistakes were more likely to occur where eligibility for permanent 

resident status was determined by government officers located in the United 

States who did not ordinarily have the first-hand information available to 

American consuls located in a prospective immigrant's native country. See 

S. Rept. No. 1515, blot Cong., 2d Sess., p. 606 (1950). This view of rescission 

is borne out by the fact that section 246 in authorizing rescission does not 

provide the explicit and detailed procedural requirements laid down for deportation proceedings by section 242(b) of the Act (S 1252(b)). At 

the same time Congress must have been aware that rescission by returning 

the alien to nonimmigrant status, in fact, established his deportability on the 

555 
The special inquiry officer, in reaching a contrary conclusion, 

relied in part on an earlier Board decision, Matter of V—, 7-363 

(1956). There, deportation proceedings were brought against an 

alien on the ground that she had entered the United States without a valid entry document as required by section 212 (a) (20), 8 U.S.C. 

1182(a) (20). She had presented a Form I-151A_ (alien registration 

card) to obtain entry. The card had been issued pursuant to the creation of a record of lawful admission for permanent residence under 

an earlier version of section 249 of the Act, 66 Stat. 219 (1952). It 

appeared, however, that she obtained her record of lawful admission 

by concealment of a material fact. Accordingly, the Service contended 

that the Form I-151A which she obtained on the basis of that record 

was not a valid entry document. The Board held, however, that since 

her record of lawful admission had not been rescinded in accordance 

with section 246 she could not be deported on the ground that she had 

entered without a valid entry document. The special inquiry officer m 

the instant case has read Matter of V—, supra, as standing for the 

general proposition that an alien registered for lawful admission 

under section 249, or whose status is adjusted under section 245, cannot 

be deported or excluded on grounds which existed prior to such registration or adjustment without first rescinding that action, and if, as 

here, rescission of adjustment is barred by the five -year limitation in 

section 246, exclusion is also barred. 

Matter of V —, supra, is not controlling in the instant case. The 

only question before the Board in Matter of V— was whether the 

Service was entitled to establish the alien's ineligibility for the 

record of lawful admission in a deportation proceeding where the 

rescission procedure, specifically provided to determine that issue, 

was available. It did not have before it the question whether, had 

rescission no longer been available due to the lapse of five years, 

the record of lawful admission would not only bar deportation or 

exclusion on a ground which required an explicit showing that the 

record was improperly made, but on a preexisting ground which, 

ground that he had over3tayed the period of hie admission. The five-year 

limitation would thus seem to be a recognition that it would be unfair to 

permit indefinitely such serious consequences to be effected through a somewhat informal procedure. After five years, the Attorney General is, therefore, 

required to correct mistakes in granting permanent resident stntlic to those 

initially admitted as nonimmigrants in the same manner as in the case of 

other aliens, i.e., through deportation. I should note in passing that while 

Congress may have permitted the Attorney General to make use of more informal procedures in rescission, in practice under the governing regulation 

there is little difference between the safeguards afforded an alien in deportation and that afforded him in rescission. See 8 CFR 246.12(a) and (b). 

556 
altltuugli independently sufficient as a basis for exclusion, would 

also have supported a rescission. 

I conclude that since section 246 only limits the Attorney General's 

authority to rescind an adjustment of status, the lapse of more than 

five years since applicant's adjustment does not bar an exclusion 

proceeding based upon the alleged fraudulent procurement of an 

entry visa prior to his adjustment of status. However, because 

the determination by the special inquiry officer that the 1949 visa 

was procured by fraud or material misrepresentation in violation 

of section 212(a) (19) was made prior to my decision of October 2, 

1961, in Matter of S— and B—C—,.9 '136, in which I formulated 

standards for determining questions of materiality arising under that 

section, I am remanding this case to the Board for such action as is 

consistent with my opinion in Matter of S— and B—C—, supra. 

The Service in its motion for reconsideration, denied by the 

Board on August 17, 1961, also contended, for the first time, that 

applicant's entry into the United States under the name of A—S--, 

and subetilleoi 14, the adjustment of his status, provided an additional ground for excluding him. This ground was neither urged 

nor considered in the hearing before the special inquiry officer. It 

has been held that grounds for exclusion presented but not passed 

upon at the hearing may he considered on administrative appeal 

(United States ex rel, Jelic v. District Director, 106 F.2d 14, 19 

(C.A. 2, 1939) ). I feel, however, that it would be unfair for the 

Board, on appeal, or the Attorney General, on review, to consider 

grounds not even presented at the hearing before the special inquiry 

officer. I, therefore, do not consider the additional ground for 

exclusion now urged by the Service. 

BEFORE THE BOARD 

(January 24, 1962) 

ORDER: In accordance with the opinion of the Attorney General 

of January 22, 1962, hereunder, the case is remanded to the special 

inquiry officer for further consideration in accordance with that 

opinion, and Matter of S— and B—C—, 9-436. 

557