Interim Decision #1960 

MATTER OF LEE 

In Deportation PrOceedings 

A-11409328 

Decided by Board June 2, and September 13, 1967 

Decided by Attorney General May 1, 1969 

An alien who entered the United States without inspection upon a knowingly false claim of citizenship, thereby completely circumventing the immigration visa system, is ineligible for the benefits of section 241(f) of 

the Immigration and Nationality Act, as amended, since he was not "otherwise admissible" at time of entry.* 

CHARGE; 

Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)1—Entered 

without inspection. 

ON BEHALF OF RESPONDENT: 

Robert S. Bixby, Esquire 

Fallon, Hargreaves & Bixby 

559 Washington Street 

San Francisco, California 94111 

(Brief filed) 

ON BEHALF OF SERVICE: 

Stephen M. Suffin 

Trial Attorney 

(Brief filed) 

Charles Gordon 

General Counsel 

BEFORE THE BOARD 

(June 2, 1967) 

The case comes forward on appeal by the trial attorney from a 

decision of the special inquiry officer entered February 16, 1967 

terminating the proceedings. 

The record relates to a native and citizen of China, age 30, 

male, whose only entry into the United States took place at Honolulu, Hawaii on February 4, 1952 when 15 years old. He was then 

coming to the United States to live permanently, but did not present an immigration visa. The respondent was admitted upon his 

false claim that he was a son of and had derived United States 

• Reversed. See 439 F.2d 244 (C.A. 9, 1971). 

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Interim Decision #1960 

citizenship from one Huey Fook. He knew that he was not in fact 

the son of Huey Fook and had no claim to United States citizenship. 

The special inquiry officer has found that the respondent has 

established eligibility for suspension of deportation but has denied such relief because he is unable to find as required by section 

244 (a) (1) that the respondent "is deportable under any law of 

the United States." This finding is based upon the provisions of 

the waiver contained in section 241(f) of the Immigration and 

Nationality Act which provides: "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 spouse, parent or a child of a 'United 

States citizen or of an alien lawfully admitted for permanent residence." 

The respondent's wife is a native-born citizen of the United 

States and thus the respondent possesses the familial ties required by section 241(f) of the Act. The charge that the respondent is subject to deportation under the provisions of section 

241(a) (2) of the Immigration and Nationality Act in that he entered the United States without inspection is predicated upon the 

factual allegation that when he entered the United States he 

falsely represented himself to be a citizen of the United States. 

We have previously held that an alien who entered the United 

States by falsely claiming that he was a United States citizen had 

entered by fraud and misrepresentation but under section 241 (f), 

since he had the required relationship, was exempt from deportation on the charge based on his fraud. Matter of K—, 9 I. & N. 

Dec. 585. The charge in the instant case that the alien entered 

without inspection as an alien because he entered upon his false 

representation that he was a United States citizen is predicated 

upon the same grounds. 

Although the respondent in the present case is not deportable 

upon a stated documentary ground, the Supreme Court in the 

case of Enrico v. Immigration and Naturalization Service, 385 

U.S. 214 (December 12, 1966), noted with approval that administrative authorities have consistently held that section 241(f) 

waives any deportation charge that results directly from the misrepresentation regardless of the section of the statute under 

which the charge was brought, provided that the alien was 

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Interim Decision #1960 

"otherwise admissible at time of entry." The Supreme Court 

noted that the intent of the Act plainly was to grant exceptions to 

the rigorous provisions of the 1952 Act for the purpose of keeping family units together. Congress felt that, in many circumstances, it was more important to unite families and preserve 

family ties than to enforce strictly the quota limitations. It is, 

therefore, not surprising that Congress also granted relief to aliens facing exclusion or deportation because they had gained 

entry through a misrepresentation. The Court held that documentary charges relating to the fraud, in the light of the humanitarian purpose of the statute in its historical background, should be 

waived' 

In the instant ease, while there is nominally no documentary or 

quantitative charge, it is clear that the charge of entry without 

inspection is based upon the false and fraudulent misrepresentation that the respondent was a citizen of the United States. The 

fraud that is the basis of the charge is forgiven or waived by section 241(f) of the Immigration and Nationality Act. The Supreme Court in the Errico and Scott cases, 385 U.S. 214, confirmed that section 241(f) waives any deportation charge that 

results directly from the misrepresentation regardless of the section of the statute under which the charge is brought. 

The Supreme Court holding that documentary or quantitative 

grounds did not change the status of the respondent as a person 

"otherwise admissable" at time of entry who possesses the necessary familial ties, was merely an extension of the grounds presented in those cases and is not necessary to a decision in the instant case. We conclude that the respondent's deportability is 

waived under the provisions of section 241(f) of the Immigration 

and Nationality Act and that the language of the Supreme Court 

in the Errico and Scott cases apply even more forcefully to the 

instant case. We agree with the action of the special inquiry 

officer in terminating proceedings. 

ORDER: It is ordered that the appeal of the trial attorney 

from the decision of the special inquiry officer terminating the 

proceeding be and the same is hereby dismissed. 

BEFORE THE BOARD 

(September 13, 1967) 

The case comes forward on motion of the Service dated July 5, 

1967 requesting the Board to reconsider its order of June 2, 

1 Matter of Cordero-Santana, 12 I. & N. Dee. 69. 

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Interim Decision #1960 

1967 and urging that a sound construction of section 241 (f) of 

the Immigration and Nationality Act would be to hold that it 

does not apply to an initial entrant who posed as a citizen because, not having an immigrant visa, he was not "otherwise admissable." The Service further admonishes the Board that before 

taking the view it has of the statute, it should await a judicial 

statement on this type of case; further, by construing the statute 

so broadly, the Board preempts the situation and blocks judicial 

review. 

Briefly, the record relates to a native and citizen of China, 30 

years old, male, who entered the United States at Honolulu, Hawaii on February 4, 1952 when 15 years old; He was then coming 

to the United States to live permanently, but did not present an 

immigration visa. The respondent was admitted upon his knowingly false claim that he was a son of and had derived United 

States citizenship from one Huey Fook, whereas, he knew he was 

not the son of Huey Fook and had no claim to United States citizenship. The special inquiry officer found the respondent eligible 

for suspension of deportation under section 244 of the Immigration and Nationality Act but concluded that the respondent, 

under the provisions of the waiver contained in section 241(f) of 

the Immigration and Nationality Act, was not deportable and terminated proceedings, finding that the case came within the ambit 

of the Supreme Court's decision in Immigration and Naturalization Service v. Errico, 385 U.S. 214 (1966). The trial attorney 

appealed from the decision of the special inquiry officer urging 

that Errico should be limited to the facts of that case, namely, 

that section 241 (f) prohibits the institution of deportation proceedings only where there was fraud in connection with the procurement of an immigrant visa, but that it does not extend to 

entry under a false claim to United States citizenship. 

In our decision of June 2, 1967, we carefully analyzed the holding in Errico. We held that the charge of "entry 'without inspection" was based upon the false and fraudulent misrepresentation 

that the respondent was a citizen of the United States which was 

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

on behalf of the respondent, who possessed the necessary familial 

tie of a citizen wife, despite the fact that nominally there was no 

documentary or quantitative charge in the deportation proceeding. We pointed out that the Supreme Court had noted with approval that administrative authorities have consistently held that 

section 241(f) waives any deportation charge that results directly 

from the misrepresentation regardless of the section of the stat217 
Interim Decision #1960 

ute under which the charge was brought, provided that the alien 

was otherwise admissable at time of entry. We concluded that the 

respondent's deportability was waived under the provisions of 

section 241(f) of the Immigration and Nationality Act and that 

the language of the Supreme Court applied even more forcefully 

to the instant case and dismissed the appeal of the trial attorney. 

The motion does not persuade us that our decision is wrong.* 

In connection with the motion the appellate trial attorney has 

enclosed for consideration a copy of his memorandum in opposition to respondent's motion to reconsider in Matter of Muslemi, 

A-17256526. We have considered the arguments advanced in that 

memorandum insofar as they are applicable to the present case 

and we feel that there is no need to change our decision of June 

2, 1967. 

The instant motion criticizes the Board for extending the Sri-leo holding from the narrow construction denounced by the Supreme Court to its extreme opposite, which allegedly would lead 

to absurd and chaotic consequences. The motion completely overlooks the fact that the Supreme Court adopted a liberal interpretation in the light of the humanitarian purpose of the statute in 

view of its historical background. The danger of citing hypothetical situations which would result in "painful absurdities" is illustrated by brief of counsel which likewise sets up a hypothetical 

situation with illogical and inequitable results by invoking the provisions of section 241(f) in the manner in which the Service 

seeks. 

By regulations, 8 CFR 3.1(b) the Attorney General has conferred upon the Board the exercise of such discretion and authority as appropriate and necessary for such disposition of the case. 

We would be remiss in our duty if we did not exercise such discretion and authority. The motion will be denied. 

ORDER rIt is ordered that the motion be and the same is 

hereby denied. 

BEFORE THE ATTORNEY GENERAL 

(May 1, 1969) 

The Board of Immigration Appeals, at the request of the Commissioner of Immigration and Naturalization, has referred its decision to me for review pursuant to 8 CPR 8.1 (h) (1) MO_ The 

Board dismissed the appeal of the Immigration and Naturalizamatter of Wong, 11 L. & N. Dec. 712 and 12 I. & N. Dec. 8, and Matter 

of Mustard, 12 I. & N. Dec. 249, cited by the Service, are inapposite. 

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Interim Decision #1960 

tion Service from the decision of the special inquiry officer terminating the deportation proceedings instituted against respondent. 

The Board also denied the Service's motion for reconsideration. 

Respondent is a native and citizen of China who entered the 

United States on February 4, 1952, when he was 15 years old. He 

had never applied for an immigration visa and was admitted on 

his knowingly false claim that he was a United States citizen. Deportation proceedings were instituted against him on a charge of 

entry without inspection pursuant to section 241 (a) (2) of the 

Immigration and Nationality Act, 8 U.S.C. 1251. A special inquiry officer ordered his deportation on the charge on February 4, 

1958. 

Respondent was not in fact deported, however, and he married 

a native-born citizen of the United States in 1965. He moved in 

1967 to reopen the deportation proceedings for consideration of 

an application for suspension of his deportation pursuant to section 244 of the Act, 8 U.S.C. 1254, on the ground that it would 

result in extreme hardship to his citizen wife. The motion was 

granted, and a hearing was held before another special inquiry 

Officer. 

The special inquiry officer concluded that respondent was not 

deportable, because he satisfied the waiver provision of amended 

section 241 (f) of the Act, 8 U.S.C. 1251 (f), as construed by the 

Supreme Court in Immigration Service v. Errico, 385 U.S. 214 

(1966). Accordingly, he terminated the deportation proceeding 

and denied the application for suspension .= 

The decision in this case turns on the scope of amended section 

241 (f), which 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 spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence. 

Under the statute, an alien who has "procured visas or other documentation, or entry into the United States" by fraud or misrepresentation is eligible for relief from deportation if he has the 

necessary familial relationship and if he was "an alien otherwise 

1The special inquiry officer stated that his denial was based on the ground 

that suspension was available only for deportable aliens. It appears, however, that if he had found respondent deportable, he would have granted the 

application for suspension. 

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Interim Decision #1960 

admissible at the time of entry." Respondent, as the spouse of a 

United States citizen, clearly has the familial relationship required by the statute. The question before me is whether respondent, who has never applied for an immigration visa and who obtained entry under a false claim of citizenship, can be "an alien 

otherwise admissible at the time of entry." 

In Errico, the alien obtained first preference status on the basis 

of a false representation that he was a skilled mechanic with specialized experience in repairing foreign automobiles. In the companion case embraced by the Errico decision, Scott v. Immigration Service, the alien fraudulently obtained nonquota status on 

the basis of a sham marriage with an American citizen. The Supreme Court held that they were "otherwise admissible" within 

the meaning of section 241 (f). 

While each of those aliens misrepresented facts for the purpose 

of evading quota restrictions, each did submit himself to the statutory system for obtaining information from aliens who seek immigration visas, and presumably the information provided by each 

was found to satisfy all applicable immigration requirements 

other than those relating to his false status. 

In order to obtain an immigrant visa pursuant to the standard 

requirements, applicable to all immigrants coming from abroad,' a 

visa application is filed with the American consul; a medical examination is administered to assure that the health requirements 

are satisfied; police certificates are obtained to show any criminal 

record; birth records are examined; and a valid passport is required. Furthermore, the applicant is registered and fingerprinted, and must provide satisfactory sworn responses to questions as to residence, organizational memberships, prior arrests 

or confinement, use of narcotics, previous deportation or immigration violations, ability to read and subversive activities.* 

In sharp contrast to the requirements to be met prior to the 

issuance of an immigrant visa, a person entering the United States 

as a citizen need only show his citizenship. Thus, an alien who 

enters this country by falsely claiming that he is a United States 

citizen manages to avoid furnishing the information that is required of an alien and that serves as the basis for determining 

whether he is admissible as an immigrant. 

2 Under the procedure provided by section 245 of the Act, 8 U.S.C. 1255, 

certain aliens in the United States may have their status adjusted to that of 

an alien admitted for permanent residence. But they must be eligible for immigration visas. 

3 For additional conditions precedent to approval of an immigrant visa, see 

Gordon and Rosenfield, Immigration Law and Procedure §§ 3.3-8. 

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Interim Decision #1960 

Despite this critical difference between entering the United 

States under a fraudulently obtained immigrant visa and entering 

pursuant to a false claim of citizenship, in the present case the 

Board interpreted Errico as authorizing relief from deportation 

for an alien who had satisfied none of the immigration requirements at the time of his entry. I find nothing in the language of 

section 241 (f), its legislative history or the Errico opinion to support the view that Congress intended to permit the complete circumvention of the immigration visa system established by the 

Act. Such a circumvention would result from a holding that section 241(f) applies to an alien who neither was granted nor applied for an immigrant visa, but obtained his initial entry by posing as a citizen. 

Section 241(f) must be interpreted in light of the process 

established by the Immigration and Nationality Act for obtaining 

information from aliens who seek to qualify for entry into the 

United States. In granting relief to certain aliens who have "procured visas or other documentation, or entry into the United 

States by fraud or misrepresentation," section 241 (f) only encompasses fraud or misrepresentation committed by an alien in 

the course of furnishing information or otherwise being processed as required by our immigration laws. An evaluation of information furnished by an alien is necessary for the immigration 

authorities to determine whether he is admissible as an immigrant. The "otherwise admissible" requirement of section 241(f) 

would be meaningless if it were not interpreted to mean that the 

alien at the time of entry must have Satisfied all of the other requirements" necessary to entry as an immigrant, apart from his 

admissibility derived from the particular facts or status as to 

which he made his misrepresentation. An alien such as the press Most of the immigration requirements are waived for aliens who come 

here as nonimmigrant visitors. See, e.g„ 8 U.S.C. 1202 (c), 22 CFR 41.5-7, 

41.114 and 41.116. Consequently, an alien who has evaded most of the immigration requirements by fraudulently entering as a nonimmigrant visitor 

who also does not appear to be an "otherwise admissible" immigrant. The 

Board held in Matter of Cadiz, 12 L & N. Dec. 560 (January 9, 1968), that 

nonimmigrant visitors are not entitled to relief under 241 (f). The courts 

have not ruled on the issue as a general proposition. Several courts have held 

that under certain circumstances 241(1) did not grant relief to nonimmigrant 

visitors. Ferrante v. Immigration and Naturalization Service, 399 F.2d 98 

(6th Cir. 1268) ; Tsacomaz v. Immigration and Naturalization Service, 897 

P.2d 946 (7th Cir. 1968). On the other hand, the Ninth Circuit recently 

remanded a case involving a nonimmigrant visitor for an administrative 

determination of whether the alien was "otherwise admissible" at the time of 

entry. Muslemi v. Immigration and Naturalization Service, No. 22, 419 (9th 

Cir. March 17, 1969). 

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Interim Decision #1960 

ent respondent, who never applied for and obtained an immigrant 

visa, cannot meet that test.* 

Respondent attempts to broaden the Errico decision by relying 

on several pre-Errico opinions of the Board which deal with aliens lawfully admitted for permanent residence who are returning to the United States after a temporary trip abroad. Such reliance is misplaced, since returning resident aliens are eligible for 

certain discretionary relief which is not available to an alien 

seeking to enter this country for the first time. Under section 

211 (b) of the Act, 8 U.S.C. 1181(b), a returning resident alien 

who is otherwise admissible may be readmitted in the discretion 

of the Attorney General without the required documentation. 

Similarly, section 212(c), 8 U.S.C. 1182(e), provides that a returning resident alien may be readmitted in the discretion of the 

Attorney General without regard to most of the grounds of exclusion specified by the Immigration and Nationality Act. 

In Matter of K—, 9 I. & N. Dec. 585 (1962), the Board considered the matter of a resident alien who took a two-hour trip to 

Canada and then reentered the United States by misrepresenting 

himself as a United States citizen. While the Board found that 

the alien was inadmissible on two separate grounds in addition to 

his fraud, it also found that he qualified for discretionary waivers of both of those grounds. Therefore, the Board regarded the 

alien as if he were applying for admission nun° pro tune as of 

the time of reentry, and 'granted him the appropriate waivers. As 

a result, the Board viewed the alien as one who, apart from the 

inadmissibility deriVed from his misrepresentation as to citizenship, satisfied at the time of reentry all of our other immigration 

requirements for returning resident aliens. Since he was thus an 

"otherwise admissible" alien in the Board's view, it proceeded to 

invoke section 241(f) to remove the effect of his fraud and allow 

his reentry. 5 

Such a rationale cannot be extended to cases like the instant 

one. An alien who has not even applied for an immigrant visa, 

much less been examined and granted such a visa, has satisfied 

none of our immigration requirements and cannot properly be 

treated as an "otherwise admissible" alien. 

Accordingly, the order of the Board dismissing the appeal of 

the Immigration and Naturalization Service is reversed. The case 

is remanded to the Board for disposition of respondent's application for suspension of deportation. 

5The Board reached a • like result in Matter of Y —, 8 I. & N. Dec. 143 

(1959). 

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