„Interim Decision #2120 

MATTER OF WONG* 

In Deportation Proceedings 

A-19057437 

A-19058775 

A-19058773 

Decided by Board January 17, 1972 

(1) Admission to the United States of respondents, a married female alien and her 

two minor children, in possession of visas to which they were not entitled never 

conferred a lawful status upon them, and they cannot rely on each other's 

admission to bring themselves within the purview of section 241(0 of the Immigration and Nationality Act, as amended. 

(2) The Service, acting out of a desire to benefit the minor respondents, should not 

be penalized because orders to show cause were not issued to them when 

proceedings were instituted against the mother. The issuance of orders to show 

cause to the children subsequent to the mother's deportation hearing and a 

request for reopening of proceedings in her case so that all three cases could be 

considered at one time was not improper, since formal action in the cases of the 

minors had been made an issue by the special inquiry officer. 

CHARGES: 

Order: Act of 1952— Section 241(aX1) [8 U.S.C. 1251(aX1)] — Excludable at 

entry as aliens not of status specified in immigrant 

visa. 

Lodged: Act of 1952 Section 241(a)(1) [8 1251(a)(1)] — Excludable at 

entry under section 212(a)(20), not in possession of 

valid immigrant visas. 

ON BEHALF OP RPSPONOPTITA: 

Michael W. Roberts, Esquire 

970 North Hill Street 

Los Angeles, California 90012 

(Brief filed) 

ON BEHALF OF SERVICE: 

R. A. Vielhaber 

Appellate Trial Attorney 

Reece B. Robertson 

Trial Attorney 

(Brief filed) 

* Affirmed: 474 F.2d 739 (C.A. 9, 1973). 

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Interim Decision #2120 

Respondents appeal from the special inquiry officer's order 

finding them deportable on the lodged charge. Voluntary departure was granted. The appeals will be dismissed: 

The facts have been fully stated in previous orders. Briefly, 

respondents are a married female alien, 46 years of age, and her 

two minor children. The adult respondent is a native and citizen of 

China, the minor respondents are natives of Hong Kong and 

citizens of Great Britain. The husband/father of the respondents 

received an immigrant visa under the fourth preference. The 

respondents were given preference visas as members of an immigrant's family accompanying him or following to join him, section 

203(aX9) of the Act. The husband/father never came to the United 

States. When the respondents applied for admission on March 7, 

1969, the Service, unaware that they were not accompanying or 

following to join the husband/father, admitted them for permanent 

residence. On August 27, 1969, the Service instituted deportation 

proceedings against the adult respondent. Proceedings were not 

instituted against the minor respondents. 1On October 15, 1969, the 

special inquiry officer entered an order in the deportation proceeding finding that the adult respondent was not deportable because 

she was within the provisions of section 241(f) of the Act which, 

under certain conditions, save from deportation an alien who 

entered by fraud or misrepresentation. As is pertinent here, one of 

the conditions imposed by section 241(1) is that the alien who is 

under proceedings be the parent or the child of an alien lawfully 

admitted for permanent residence. The special inquiry officer 

found that the adult respondent met this condition because she 

was the parent of the two minor children who had been admitted 

for permanent residence. The special inquiry officer held that 

while the minors had been erroneously admitted for permanent 

residence, he was required to consider them as having been 

lawfully admitted for permanent residence until they were placed 

in deportation proceedings and were formally adjudicated to be 

deportable. He certified his decision to the Board since a novel 

question was involved. 

Before the Board acted, the Service placed the two minor 

respondents under deportation proceedings and moved for reopening of the adult respondent's case so that the three cases could be 

considered together. We granted the motion. In our order, we 

pointed out that the special inquiry officer's decision having been 

1 The Service states that it refrains from issuing an order to show cause in the 

case of a deportable child of tender years whose parent is in deportation 

proceedings. This restraint is exercised so that the child may leave on a 

voluntary basis with the parent if the parent's departure is required. 

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Interim Decision #2120 

certified was not a final action, but merely a suggested solution. 

Our reopening order required the special inquiry officer to redetermine the issues presented. 

The special inquiry officer handled the three cases together. He 

held that respondents were deportable on the lodged charge since 

they had not been admissible to the United States with their 

preference immigrant visas! they were not accompanying or following to join their husband/father. It followed that they had not 

been in possession of valid visas. He held that section 241(f) relief 

was not available to any of the respondents since no person to 

whom they had the necessary relationship was a lawful permanent resident alien or a United States citizen. 

Counsel contends that the necessary conditions exist for the 

application of section 241(f) to any respondent's case. He believes 

that the lawful permanent resident mentioned in section 241(0 

need not be a person who is a lawful permanent resident at the 

time of the deportation proceeding as long as he was at one time, 

no matter how brief a time, such a person. He believes that any of 

the respondents is such a person because each, even if only for a 

moment, was a lawful permanent resident upon admission. Additionally, he contends that the adult female respondent was a 

lawful permanent resident, at least, from the time the special 

inquiry officer terminated the deportation proceeding and certified 

his decision, to the time the Board reopened proceedings. 

The contentions are rejected. Admission of respondents in possession of visa to which they were not entitled never conferred a 

lawful status upon them, Mannerfrid v. Brownell, 145 F. Supp. 55 

(D.C., 1956); U.S. ex rel. Garos v. Reimer, 24 F. Supp. 869 (S.D.N.Y., 

1938), affirmed 97 F.2d 1019 (C.A.2, 1938), cert. denied 305 U.S. 650 

(1938); Matter of M—, 4 I. & N. Dec. 532 (A.G., 1952). The special 

inquiry officer's original order terminating proceedings in the 

belief that the adult respondent came within section 241(f) conferred no rights upon her. As we stated in our order reopening 

proceedings, a decision which is certified is not a final one, it is 

merely a suggested disposition of a case. Not until the Board 

enters its order is there a final adjudication of the alien's rights. 

We are faced therefore, with the cases of three aliens who, 

although admitted for permanent residence, were not lawfully 

admitted. They cannot rely upon each other's admission to bring 

themselves within section 241(f). 

Cases cited by counsel concerning that aspect of section 241(f) 

which makes it a condition of eligibility that the alien be "otherwise admissible" are inapposite. We do not reach this aspect of 

eligibility since the respondents are clearly ineligible on the 

ground we have previously discussed. 

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Interim Decision #2120 

Counsel contends that the Board failed to follow its regulations 

when it based its action in reopening the deportation proceeding 

on the fact that orders to show cause had been issued in the cases 

of the minor respondents. The regulation provides that the Board 

shall not grant a reopening unless the motion to reopen is based 

on evidence not previously available to the movant and the 

evidence could not have been discovered or presented at the 

former hearing, 8 CFR 3.2. Counsel contends that the Service, 

aware that the minor respondents had not been lawfully admitted 

for permanent residence, could have issued orders to show cause 

and could have presented evidence of such issuance at the former 

hearing. The contention must be dismissed. The fact that orders to 

show cause were not issued to the children together with the 

mother has been adequately explained by the Service. The Service 

should not be penalized because it acted out of a desire to benefit 

the minor respondents. Since formal action in the case of the 

minors had been made an issue by the special inquiry officer, it 

was not improper to take such formal action and then request 

reopening of proceedings so that all three cases could be considered at one time. 

We note that the adult respondent has another child involved 

in immigration proceedings. Her son Lip (Lap) Kuen Wong, 

A-17189943, a minor, was excluded by a special inquiry officer when 

he applied on March 8, 1969 at Honolulu, Hawwaii. His appeal has 

been dismissed by the Board. Counsel informed us that this child is 

the beneficiary of an order issued by the United States District 

Court at Los Angeles in habeas corpus proceedings permitting him 

to stay in the United States until a final determination is made on 

the adult respondent's case. The adult respondent filed a visa petition on this child's behalf requesting that he be classified as the 

unmarried child of an alien lawfully admitted for permanent residence. The District Director denied the petition on the ground that 

the petitioner was not an alien lawfully admitted for permanent 

residence. Her appeal in the visa petition case, also before us, is 

being dismissed this day. 

ORDER: The appeals are dismissed. 

Further order: Pursuant to the special inquiry officer's order, 

the respondents are permitted to depart from the United States 

voluntarily within 60 days from the date of this decision or any 

extension beyond that time as may be granted by the District 

Director; in the event of failure so to depart, the respondents shall 

be deported as provided in the special inquiry officer's order. 

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