Interim Decision #2018 

MATTER OF PON 

In Deportation Proceedings 

A-10490469 

Decided by Board December 31, 1969 

An alien who entered the United States as a nonimmigrant visitor upon 

presentation of a certificate of identity obtained upon a fraudulent claim 

to United States citizenship, thereby avoiding inspection and determination of admissibility as an immigrant alien, was not "otherwise admissible" at time of entry and, therefore, is ineligible for the benefits of section 

241 (f) of the Immigration and Nationality Act, as amended [Matter of 

Lee, Interim Decision No. 1960•]. 

CHARGES: 

Warrant: Act of May 24—Immigrant—no visa 

Act of May 22, 1918, as amended 

Act of Feb. 5, 1917—Did not present unexpired passport. 

ON BEHALF OF RESPONDENT: Joseph P. Fallon, Jr., Esquire 

80 Hotaling Place 

San Francisco, California 94111 

(Brief filed) 

The case has been certified to us by the special inquiry officer 

vho denied respondent's motion to reopen proceedings for the 

purpose of applying for adjustment of status under section 245 of 

he Immigration and Nationality Act. Our careful study of the isues herein persuades us that the motion should be granted. 

The respondent originally entered the United States on Novemer 29, 1951, as a nonimmigrant visitor pursuant to section 3 (2) 

f the Immigration Act of 1924. At the time of entry, he preented a certificate of identity issued by the American Consul 

nder section 503 of the Nationality Act of 1940, which certifiate was obtained upon the respondent's fraudulent claim to 

1nited States citizenship. On January 8, 1953, the United States 

)istrict Court for the Northern District of California denied re- 

*See, Matter of Yee, Interim Decision No. 2104. 

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Interim Decision #2018 

spondent's claim to United States citizenship and dismissed his 

complaint with prejudice. Thereafter, on April 30, 1953 the respondent was found subject to deportation as an immigrant not 

in possession of a valid immigration visa under sections 13 and 

14 of the Immigration Act of 1924 and under the Passport Act of 

May 22, 1918 for failure to present, at entry, an official passport 

or document in the nature of a passport. The respondent presently 

alleges that his wife and two children entered the United States 

on October 6, 1968, for permanent residence and that, therefore, 

he is eligible to apply for adjustment of status. 

The special inquiry officer, relying on Muslemi v. INS, 408 F.2d 

1196 (9 Cir., 1969), concluded that the respondent was already a 

permanent resident by virtue of section 241 (1) and that an application for adjustment would serve no purpose. The special inquiry officer noted a recent opinion of the Attorney Genera! 

(Matter of Lee, Interim Decision No. 1960 (1969)), which he interpreted as being in direct conflict with the decision of the Ninth 

Circuit in Muslemi. He nevertheless determined that the ruling of 

Muslemi applied here since the instant matter arose in the same 

circuit. 

At first blush, this conclusion appears tenable. A careful reading of both Muslemi and Matter of Lee, however, leads us to conclude that there is no conflict between those cases since Muslemi 

in our view is not subject to the broad interpretation given it by 

the special inquiry officer. Muslemi dealt with the basic question 

of whether an alien, who entered as a nonimmigrant and is found 

deportable as an immigrant without visa, comes within the scope 

of section 241 (f) as construed by INS v. Enrico, 385 U.S. 214 

(1966). The court in Muslemi concluded that he did, but remanded the case for a determination of whether Muslemi was 

"otherwise admissible" within the meaning of section 241(f). The 

issue of whether an alien who entered as a nonimmigrant, 

thereby evading the visa issuing process applicable to immigrants, is "otherwise admissible" within the meaning of section 

241 (f) was never raised or argued in Muslemi and we cannot 

broadly state that that issue has been decided by the Ninth Circuit sub sitentio. To the extent that the latter issue was not resolved by Muslemi, it remains an open question in the Ninth Circuit and the Attorney General's opinion in Matter of Lee is 

dispositive of that issue. 

In Matter of Lee, the Attorney General noted that section 

241 (f) only encompassed fraud or misrepresentation committed 

by an alien in furnishing information in the course of being proc447 
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essed for entry as an immigrant. In his view, "the otherwise admissible requirement of section 241(f) would be meaningless if it 

were not interpreted to mean that an alien, at the time of entry, 

must have satisfied all of the other requirements necessary to 

enter as an immigrant, apart from his inadmissibility derived 

from the particular facts or status as to which he made his misrepresentations." Consequently an alien, such as the respondent, 

who never applied for or obtained an immigrant visa, has not 

met all the "otherwise admissible" requirements for entry as an 

immigrant. As the Attorney General correctly noted, most of the 

immigration requirements are waived for aliens who came here 

as nonimmigrant visitors. Although the Attorney General noted 

the Muslemi decision, nevertheless, he emphasized that, "... [A]n 

alien who has evaded most of the immigration requirements by 

fraudulently entering as a nonimmigrant visitor also does not appear to be an 'otherwise admissible' immigrant." (Emphasis supplied.) 

The situation to which the Attorney General was alluding is 

precisely the one before us since the respondent entered as a nonimmigrant to prosecute a fraudulent claim to United States citizenship. The respondent's fraudulent claim to United States citizenship and entry as a nonimmigrant permitted him to avoid 

inspection as an immigrant alien and consequently a determination of whether he was admissible as an immigrant was never 

made. We must hold, in keeping with the Attorney General's position that the respondent was not "otherwise admissible" at the 

time of entry and therefore cannot benefit from the relief granted 

by section 241 (f). As a result, the respondent must seek relief 

through adjustment of status and we order these proceedings reopened so that consideration may be given to this application 

under section 245. 

ORDER: It is ordered that the motion to reopen proceedings 

be and the same is hereby granted. 

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