MATrER OF F— 

In SECTION 245 Proceedings 

A-10490404 

Decided by Regional Commissioner September 16, 1960 

Approved by Assistant Commissioner October 7, 1960 

Adjustment of status Section 245, as amended—Alien erroneously admitted 

as United States citizen without false claim held eligible. 

An alien who was erroneously admitted as a United States citizen but who 

did not willfully make a false claim to citizenship meets the "inspected and 

admitted" requirement for eligibility under amended section 245 of the Immigration and Nationality Act, The contrary rule obtains when the claim to 

citizenship was made willfully and fraudulently. 

BEFORE THE REGIONAL COMMISSIONER 

(September 16, 1960) 

DISCUSSION: This case comes forward on appeal from the order 

of the district director denying the application on the ground that 

the alien was not admitted as a bona fide nonimmigrant. 

Applicant is a 37-year-old married female, a native and citizen 

of the Philippine Islands. She was married to a native-born citizen 

of the United States in Carson City, Nevada, on June 6, 1950. This 

is applicant's first marriage and of this union two children were 

born in the United States. Her spouse's two previous marriages 

were terminated by divorce. All of applicant's immediate family 

reside in the United States. Her father, formerly a citizen of Germany, and mother, formerly a citizen of the Philippine Islands, 

were naturalized in San Francisco on May 25, 1934, and August 16, 

1960, respectively. She has one sister who is a native-born United 

States citizen. Her two brothers and other three sisters, all natives 

and citizens of the Philippine Islands, are lawful resident aliens 

whose status in the United States was adjusted through pre,examination proceedings 

Applicant first entered the United States at San Francisco on 

February 9, 1932, with other members of her family as nationals of 

the United States. It was during this period of residence in the 

United States that her father was naturalized on May 25, 1934. On 

June 26, 1936, along with other members of her family, applicant 

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returned to the Philippine Islands. On August 3, 1939, applicant 

next applied for admission with her family at San Francisco as a 

citizen of the United States. The Board of Immigration Appeals 

ordered her excluded holding that she failed by one day to gain 

United States citizenship wider section 2172 of the Revised Statutes 

through her father's naturalization on May 25, 1934, and that she 

lacked by about eight months completing the required five years 

residence in the United States pursuant to a lawful admission to 

gain citizenship through her naturalized father under the Act of 

May 24, 1934. On March 24, 1940, applicant returned to the Philippine Islands under the exclusion order of the Board of Immigration 

Appeals. Applicant last arrived in the United States on May 2, 

1945, at San Pedro, California, with other members of her family 

on board the United States Naval Transport Admiral F. herle, as a 

wartime evacuee from the Philippine Islands. Upon this arrival, 

applicant was inspected and erroneously admitted as a United States 

citizen and has since resided continuously in the United States. 

On April 18, 1956, applicant sought adjustment of her immigration status through preexamination, and although her application 

was approved by the Service she was unable to proceed to Canada 

and obtain her immigrant visa due to financial difficulties. Applicant subsequently applied under section 245 of the Immigration and 

Nationality Act for status as a permanent resident. This application was submitted about September 8, 1959, and was denied on the 

ground that she was not admitted as a bona fide nonimmigrant when 

she last entered the United States on May 2, 1945. The denial was 

timely appealed. Although the application in this case was filed, 

considered, denied, and appealed under section 245 as that section 

existed prior to July 14, 1960, the appeal will be considered under 

present section 245. 

In its present form, the Rtrd t 1-a ronfers discretionary authority 

upon the Attorney General to adjust the status of an alien, other 

than an alien crewman, to that of a permanent resident if such alien: 

1. Was inspected and admitted or paroled into the United States; 

2. Makes an application for adjustment; 

3. Is eligible to receive an immigrant visa; 

4. Is admissible to the United States for permanent residence; and 

5. An immigrant visa is immediately available to him at the tune 

his application is approved. 

The requirement that an alien must have been admitted to the 

United States as a 11 C17 14.4 fde nuninuuipaut Lu qualify fur adjustment no longer appears in the current statute. Therefore, if the 

applicant meets the above-enumerated requirements, her application 

may be granted. 

A proper application has been Sled and the applicant has been 

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found to be eligible to receive an immigrant visa and admissible to 

the United States for permanent residence. A petition to accord 

her nonquota status has been approved so an immigrant visa is immediately available to her. The only issue to be resolved is whether 

she was inspected and admitted into the United States. 

It is well established that aliens who knowingly Made a false 

claim to United States citizenship for the purpose of evading inspection under the immigration laws gained entry without inspection 

(Matter of C-17—, 1-385; Matter of 5-220 ; Matter of E—, 

6 275). The courts also have so held. In the case of United States 

ex rel. Volpe v. Smith., 62 F.2d 808, Judge Evans, in writing the 

majority opinion, stated : 

No other false or fraudulent representatlou could have accomplished Its uulawful purpose [entry] so effectively as the one appellant adopted. To assert 

that he was a citizen of the United States and that his naturalization pLpers 

were In Chicago wholly disarmed the inspector and terminated the inspection. 

. . . In legal effect, there was no inspection. (Matter in brackets added.) 

However, it has been held that where a, person presented himself 

to an immigrant inspector and stated that he was a citizen of the 

United States, honestly believing this to be the truth, that person 

did not enter without inspection (Matter of S—, unreported, A5984855, B.I.A., Dec. 31, 1946; Matter of D—, unreported, A6768542, B.I.A., Oct. 19, 1949). With reference to the applicant's 

erroneous admission as a United States citizen, the records disclose 

that upon arrival she presented herself for inspection and did not 

willfully make a false claim to such citizenship. Accordingly, the 

applicant is considered to have been inspected and admitted. (See 

Matter of K—B—N—, A-10825969, 9-50, Sept. 14, 1960.) 

The applicant has resided in the United States for more than 20 

years. She is married to a United States citizen and has two minor 

United States citizen children. Evidence of her good moral character has been submitted. Therefore, it is concluded that the facts and 

circumstances in this case merit favorable exercise of the Attorney 

General's discretionary authority. The appeal will be sustained and 

the application will be granted. 

ORDER: It is ordered that the application be granted. 

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