Interim Decision #1850 

MATTER OF WEST 

In Deportation Proceedings 

A-14221237 

Decided by Board March. 27, 1968 

Respondent, an alien who entered the United States es a temporary visitor upon 

presentation of a legally obtained visitor's visa, who was subsequently 

granted section 245 adjustment of status which was rescinded on the ground of 

ineligibility therefor because based on a marriage to a U.S. citizen which was 

not valid, is, notwithstanding the requisite familial relationship, ineligible 

for relief from deportation under section 241(f) of the Immigration and Nationality Act, as amended, since she is deportable solely on a remained longer 

charge under section 211(a) (2) of the Act and the basis for deportability is 

unrelated to excludability at entry for fraud or misrepresentation. MrrisoSagt v. Immigration and Naturalization Service, 885 U.S. 214 (1968), 

distinguished.) 

CHARGE: 

Order: 'Act of 1952—Section 241(a) (2) [8 U.S.0 1251(a) (2)7—Remained 

longer—visitor. 

ON BEHALF OF RESPONDENT: 

Robert S. Bixby, Esquire 

559 Washington Street 

San Francisco, Calif. 91111 

(Brief filed) 

ON REMAIN of SEEVICE 

Irving A. Applerolut 

Appellate Trial Attorney 

(Brief filed) 

Stephen M. Suflin 

Trial Attorney 

(Brief filed) 

The Immigration Service appeals from a decision of the special 

inquiry officer dated September 15, 1967 terminating the above-captioned. proceedings pursuant to the provisions of section 241(f) of the 

Immigration and Nationality Aot (8 U S.C.1251(f) ). A brief in support of the special inquiry officer's decision has been submitted by 

counsel for the respondent. 

The respondent, a native and citizen of Korea, last entered. the 

United States as a visitor at the port of Honolulu, Hawaii on June 14, 

1964. She was granted an adjustment of her nonimmigrant status to 

that of a permanent-resident alien under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) on March 1, 1965. 

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Interim Decision #1850 

The adjustment of her status was based on a visa petition filed 

in her behalf by her citizen husband. Thereafter, in rescission proceedings, the respondent stipulated that she was ineligible for adjustment 

of status since her marriage to a citizen of the United States was not 

bona fide and was entered into solely for the purpose of evading tht -

immigration laws. She denied, however, that her marriage -was fraudulent and refused to stipulate that she had obtained her adjustment of 

status through fraud. 

The respondent's marriage to Glenn Alan Nunley, her first husband, 

was annulled on February 24, 1965. She married David West, another 

United States citizen, on the same day and on November 5, 1965 a citizen child was born of this union. The child lives with the respondent 

who is now separated from the child's father. 

The respondent's permanent resident status was rescinded on December 1, 1966. She was granted until February 11, 1967 within which to 

depart from the United States. She failed to depart and on. May 25, 

1967 an order to show cause was issued charging that the respondent 

was deportable under section 241(a) (2) of the Immigration and Nationality Act in that after admission as a nonimmigrant under section 

101(a) (15) of the said Act, she has remained in the United States 

for a longer time than permitted. 

The respondent, during the deportation hearing, moved for a termination of the proceedings on the ground that she was saved from 

deportation by section 241(f) of the Immigration and Nationality Act 

(8 U.S.C. 1251 (f) ). The respondent contends that her case is governed 

by Err ico-Scott v. immigration and Naturalization Service, 385 U.S. 

214 (1966). The Errico-Scott ease involved two aliens who obtained a 

preferred immigration status by fraud and misrepresentation. The 

issue before the Supreme Court was whether section 241(f) of the Immigration and Nationality Act saves an alien from deportation who 

misrepresents his status for the purpose of evading quota restrictions, 

if he has the necessary familial relationship to a United States citizen 

or a lawful permanent resident alien. The respondent now has the 

relationship required by section 241(f), supra.' 

The special inquiry officer concedes in his decision that an alien who 

fraudulently has her status adjusted to that of a permanent resident 

under section 245 does not fall literally within the terms of section 

Section 241 (t) of the Act reads as follows : "The provisions of this section 

relating to the deportation of aliens within the United States on the ground that 

they were excludable at the 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 *mouse, parent, or a child of a United States citizen 

or of an alien lawfully admitted for permanent residence." 

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Interim Decision #1850 

241(f) because section 241(f) by its terms deals with aliens who are 

"excludable because they procured visas by fraud." He reasons, however, that in Errico and Scott the Court said that section 241(f) cannot be applied with "strict literalness" and "even if there were some 

doubt as to the correct construction of the statute, the doubt should be 

resolved in favor of the alien." The special inquiry officer notes that if 

the respondent had obtained a nonquota immigration visa on the basis 

of a fraudulent marriage and then entered the United States, her case 

would clearly fall within the ameliorating provisions of section 241 

(f). The special inquiry officer also notes that in the case of Amarante 

v. Rosenberg, 326 F. 2d 58, the court stated that when "an alien seeks 

an adjustment of his status by the Attorney General under section 245, 

the Attorney General performs the same functions as does a consular 

officer when an alien is seeking to enter the country and applies for a 

nouquota visa." The special inquiry officer concludes that, since the 

situation of an alien who acquires permanent resident status by fraudulently- obtaining an immigration visa from a consul is so closely analogous to the alien who acquires permanent resident status under the 

provisions of section 245, they should be treated alike insofar as section 

241(f) is concerned. 

Counsel in his brief supports the reasoning of the special inquiry officer in terminating the proceeding. The Service on the other hand -

maintains that when the respondent's status as a permanent resident 

alien was rescinded, she reverted to a nonimmigrant illegally in the 

United States because section 246 (a) so provides 2 and the sole basis 

for her present deportability is as a nonimmigrant who remained longer which has nothing whatsoever to do with excludability for fraud. 

The Service relies upon our ruling in Matter of Tsaoonas, lat. Dec. No. 

1759, B.I.A., July 27, 1967, which rejected the applicability of section 

241(f) where the order of deportation was not based on any charge 

of fraud and misrepresentation but was simply predicated on the fact 

that after admission as a nonimmigrant temporary visitor for pleasure, 

the alien remained for a longer period of time than authorized. 

Furthermore, the Service argues that inherent in our decision in 

Matter of Alemis, Int. Dee. No. 1794 (BIA, July 12, 1967) is a rejection of the concept that a section 245 adjustment is to be equated to 

"entry" or "procurement of visa" within the meaning of section 241(f). 

Alemis arose in rescission proceedings under section 246 of the Act. 

Our decision noted that the issue before the Supreme Court in ErricoScott (supra) was whether section 241(f) saved from deportation 

'The Service relies on that portion of section 246 (a) which reads ". . the 

person shall thereupon be subject to all provisions of this Act to the same extent 

as if adjustment of status had not been made." 

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nterim Decision 4acee 

iliens who misrepresented their status for the purpose of evading 

pots restrictions whereas the issue in Alemis was whether the alien 

was "eligible" for adjustment of status which he had received and not 

whether the adjustment had been fraudulently obtained. The Service 

argues that by statute (section 246(a) ) the Attorney General must 

rescind for ineligibility, not fraud, and once the status has been rescinded the alien in such a. case reverts to a "remained longer nonimmigrant" and by virtue of this fact section 241(f) relief is not 

available because fraud is not in issue. 

We are mindful of the fact that the Supreme Court in Erric' o-Scott 

stated that "the fundamental purpose of this legislation (241(f ) ) was 

to unite families" and "even if there were some doubt as to the correct construction of the statute, the doubt should be resolved in favor 

of the alien." There aro basic fundamental differences, however, which 

distinguish Errico-Scott from the case before us. Both Errico and Scott 

"entered" the United States with visas for permanent residence that 

they had obtained by fraud or misrepresentation. The respondent on 

the other hand "entered" the United States as a nonimmigrant visitor 

for pleasure and presented a "temporary visa" which she had lawfully 

obtained. The respondent's entry as a nonimmigrant visitor, by statutory definition, was not for the purpose of family reunification, because 

before such a visa may issue, the alien must establish to the satisfaction 

of the consular officer that he has a residence in a foreign country 

which he has no intention of abandoning and that he is visiting the 

United States temporarily for business or pleasure (section 101(a) 

(15) (B)). Furthermore, there is no need for a waiver comparable to 

section 241(f) in the case of a nonimmigrant visitor because section 

212(d) (3) permits the granting of discretionary waivers to aliens 

excludable under section 212(a) (19). 

Section 241(f) by its very terms applies to aliens who were excludable at the time of their entry by reason of some fraud or misrepresentation by which they effected their entry. The respondent now finds 

herself subject to deportation not because of a fraudulent entry but 

because she has remained in the United States longer than the immigration laws permit. Her status as a permanent resident alien was 

rescinded, not for fraud in the procurement of entry documents, but 

for the reason that she was not "eligible" to obtain the immediate issue 

of an immigration visa because there was no valid marriage to a United 

States citizen on which to predicate a petition for nonquota status. 

When her status as a permanent resident alien was rescinded, she 

reverted to a nonimmigrant in the United States illegally, a mandatory 

requirement under section 246(a) of the Act. This is the sole basis 

for her deportability, and it has nothing whatsoever to do with exclud686 
Interim Decision #1850 

ability for fraud. The cases of Enrico-Scott are clearly distinguishable 

from the case before us. Cf., Ferrante v. Immigration and Naturalization Service, Nos. 16658-17854 (C.A. 6, February 7, 1968). We conclude on the basis of the foregoing that section 241(f) of the Immigrati on and Nationality Act has no application to the respondent's case. 

The respondent is the parent of a minor citizen child. She is now 

tho sole support of this child, as she is separated from the child's 

father. The Service has no objection to a remand of the case to the 

special inquiry officer to afford the alien an opportunity to make application for discretionary relief and for a full exploration of the possibilities for adjustment and relief. An appropriate order will be entered. 

ORDER: It is ordered that the decision of the special inquiry officer 

terminating the above-captioned proceeding be and the same is hereby 

set aside. 

It is further ordered that these proceedings be remanded to the special inquiry officer for the purposes set forth above. 

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