Interim Decision #2094 

MATTER OF RODRIGUEZ 

In Deportation Proceedings 

A-18090257 

Decided by Board August 3, 1,971 

Respondent, a native and citizen of the Dominican Republic, was admitted 

for permanent residence on August 10, 1968, upon presentation of an immigrant visa issued July 31, 1968, with a waiver of a labor certification as 

the unmarried child of a lawful permanent resident alien. In connection 

with the visa application, he signed State Department Form FS-548 indicating awareness that he would be subject to exclusion if he married prior 

to entry. He was married on August 8, 1968, and, therefore, is deportable 

as an alien excludable at entry under section 212(a) (14) of the Immigration and Nationality Act, as amended, for lack of a valid labor certification, since he was not an unmarried child as defined by section 101(b) (1) 

of the Act at the time of entry. 

CHARGE 

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)]—Excludable by law existing at time of entry (section 212 (a) 

(14) ; 8 U.S.C. 1182)—immigrant, no valid labor 

certification. 

)N BEHALF OF RESPONDENT: 

Antonio C. Martinez, Esquire 

77 Seventh Avenue 

New York, New York 10011 

(Brief filed) 

ON BEHALF OF SERVICE: 

Martin J. Travers 

Trial Attorney 

(Brief filed) 

The special inquiry officer, in a decision dated April 6, 1971, 

enied the respondent's application for termination of the proeedings; granted him the privilege of voluntary departure; and 

rovided for his deportation from the United States to the Doiinican Republic, on the charge contained in the order to show 

cruse, in the event of his failure so to depart. The appeal from 

la decision, which brings the case before this Board for considration, will be dismissed. 

The record relates to a 21-year-old male alien, a native and citin of the Dominican Republic, who last entered the United States 

1 August 10, 1968. He was then admitted for permanent resi746 
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dence upon presentation of an immigrant visa issued to him on 

July 31, 1968, by the American Embassy, Santo Domingo, Dominican Republic, with a waiver of a labor certification under section 

212(a) (14) of the Immigration and Nationality Act, as the unmarried child of a lawful permanent resident alien of the United 

States. However, he had married Amparo Rosario on August 9, 

1968, at Santo Domingo, Dominican Republic. 

Section 212 (a) (14) of the Immigration and Nationality Act 

renders ineligible to receive visas and excludable from admission 

into the United States aliens seeking to enter this country for the 

purpose of performing skilled or unskilled labor, unless they are 

in possession of a certification from the Secretary of Labor. The 

statute specifically provides that the exclusion of aliens thereunder shall apply to special immigrants, defined in section 

101 (a) (27) (A) of the statute as meaning an immigrant born in 

any independent foreign country of the Western Hemisphere or 

the Canal Zone. It does provide for an exception to the exclusion 

provision in the cases, inter (ilia, of children of aliens lawfully admitted to the United States for permanent residence (in this case 

respondent's mother enjoyed such status). However, section 

101(b) (1) of the Act defines the term "child" as meaning an unmarried person under 21 years of age. 

The pertinent facts of this case recited above, viewed in the 

light of the pertinen s a u ory provisions just enumerated, compel concurrence in the special inquiry officer's conclusion that the 

respondent's deportability on the above-stated charge is established. The contentions to the contrary advanced by counsel in the 

course of the hearing before the special inquiry officer have been 

adequately answered by said official in his comprehensive opinion, 

and need no repetition here. On appeal, however, counsel has 

come forward with a somewhat ingenious argument which, while 

rejected, requires a detailed response. 

Counsel points out that 22 CFR 42.122 (d) requires the visaissuing officer abroad to warn the alien clearly and unequivocally 

that he will be inadmissible to the United States if he is not unmarried at the time of his application for admission to this country. 

He argues that the alien, in order to be warned, must understand 

and appreciate the consequences of what will happen if he does 

not remain single. He asserts that the consular officer does not 

discharge his duty to warn by having the alien merely sign a 

form at a time when the alien signs more than half a dozen other 

forms. He urges that the only reasonable explanation why this respondent did get married in the light of the danger to his pre747 
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ferred status is that he did not know or understand the contents 

of the Form FS-548, infra, which he signed and the evidence 

shows that no one informed him that he could not get married 

without destroying his preferred status. He concludes that the 

consular officer who issued this respondent his visa clearly failed 

in his duty to warn the respondent, and that thus the latter is not 

the author of his own misfortune but is being punished for failure of the consular officer to carry out his mandated duty. 

This Board has consistently taken the position in cases of this 

type that the alien is deportable even if he practices no fraud or 

concealment, Matter of C—, 8 I. & N. Dec. 665. Specifically, this record contains a mimeographed, one-page document, FS-548, dated 

July 31, 1968, signed by the respondent and attached to his visa. 

This declaration states, "I understand that I shall lose my special, 

immediate relative or preference status or right to benefit from 

the immigrant status from my accompanying parent if I marry 

prior to my application for admission at a port of entry into the 

United States and that I would then be subject to exclusion therefrom." This declaration appears both in English and Spanish, 

and is signed by the respondent on the blank line for signature at 

the beginning of the paragraph in Spanish. The record shows 

that the respondent attended school for nine years, and that he 

was completely literate in the Spanish language. Also as pointed 

out by the special inquiry officer (p. 6), the respondent testified 

that the United States consul told him he was being granted an 

immigrant visa on the basis of being the unmarried son of a legal 

resident alien. 

Moreover, there is a presumption of official regularity which 

attaches to the consular officer's issuance of the visa in question, 

including his compliance with the provisions of 22 CFR 

42.122(d). The fact that the respondent did sign the Form 

FS-548 is corroborative of the presumption. The respondent's 

testimony supports the foregoing and indicates that he was 

knowledgeable of the fact that if he did marry, he would lose the 

benefit derived as a result of his allegation that he was the unmarried son of a legally resident alien. Finally, in this connection, 

it is not incumbent upon the Government to establish that the respondent willingly and knowingly signed the Form FS-548 in 

order to sustain the charge contained in the order to show cause. 

In conclusion, counsel advanced the contention that these proceedings deprive the respondent of his right to due process of law 

under the Fifth Amendment to the Constitution of the United 

States, and also constitute cruel and unusual punishment to him 

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in violation of the Eighth Amendment to the Constitution of the 

United States. Technically speaking, these arguments properly 

rest with the courts rather than this administrative tribunal. 

Substantively, however, as pointed out by the Service trial attorney, who has cited appropriate authority, these questions have 

been considered and found wanting by the courts on several occasions. Further comment on this aspect of the case is unnecessary. 

All we need add is that the execution of the special inquiry' 

officer's order has been stayed during the pendency of this appeal. 

ORDER: It is ordered that the appeal be and the same is 

hereby dismissed. 

It is further ordered that, pursuant to the special inquiry 

officer's order, the respondent be permitted to depart from the 

United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by 

the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special 

inquiry officer's order. 

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