Interim Decision #2976 

MATTER OF CONNELLY 

In Deportation Proceedings 

A-23078346 

Decided by Board August 8, 1984 

(1) Section 241(0 of the Immigration and Nationality Act, 8 U.S.C. § 1251(0 (1982), 

only waives excludability grounds that existed at the time of an alien's entry into 

the United States. 

(2) An alien who becomes admissible to the United States for permanent residence 

by virtue of his adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 

(1982), does not make an entry into the United States. 

(3) The respondent's fraudulent act took place after he had entered the United 

States when he sought adjustment of status under section 245 of the Act; therefore, he was not excludable on the basis of this fraud at the time of an entry. 

(4) The provisions of section 211(0 of the Act do not apply to framic committed by 

the respondent when he was in the process of adjusting his status to that of a 

lawful permanent resident under section 245 of the Act. 

CHARGE: 

Order: Act of 1952—Sec. 241(aX5) [8 U.S.C. § 1251(aX5)]—Alien convicted under 

section 266(c) [8 U.S.C. § 1306(c)] 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Eliot Gerson, Esquire Leonard A. Rosenberg 

1606 Stockton Street, Suite 302 Assistant Chief Legal 

San Francisco, California 94133 

Officer 

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members 

In a decision dated January 21, 1983, an immigration judge 

found the respondent deportable as charged, denied an application 

from the respondent for relief from deportation under section 241(f) 

of the Immigration and Nationality Act, 8 U.S.C. § 1251(f) (1982), 

and ordered that he be deported to the Republic of Ireland. The respondent has appealed. The appeal will be dismissed. 

The respondent is a native of England and a citizen of the 

United Kingdom. On July 21, 1978, he was admitted to the United 

States as a nonimmigrant visitor with authorization to remain 

until January 21,: 1979. A month before the expiration of that 

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period, he married a citizen of the United States. On the basis of 

that marriage, his status was adjusted to that of a lawful permanent resident on April 12, 1971, under section 245 of the Act, 8 

U.S.C. § 1255 (1976). That marriage was subsequently annulled by 

his, spouse on February 11, 1982, on the ground that it was bigamous. Apparently, the respondent is the one who had two marriages. 

On September 21, 1982, an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) was issued 

which alleges, inter alia, that the respondent was convicted on September 17, 1982, in the United States District Court for the Northern District of California for violating section 266(c) of the Act, 8 

U.S.C. § 1306(c) (1982), 1by making false statements on an application for alien registration, and, therefore, that he is deportable 

under section 241(a)(5) of the Act. The file contains a copy of the 

conviction record which indicates that the basis for the conviction 

was the fact that the respondent had omitted to state that he had 

been arrested, convicted, and confined in the United IGugclom. 2 As 

a result of the conviction for violating section 266(c), he was sentenced to imprisonment for a period of 6 months. The sentence, 

however, was suspended except for a 15-day period, and he was 

given credit in that regard for a 15-day period of imprisonment 

prior to the disposition of his case. 

At a deportation hearing before the immigration judge on September 28, 1982, the respondent admitted the allegations in the 

Order to Show Cause with the assistance of counsel, and then he 

applied for relief from deportation under section 241(f) of the Act. 

We are satisfied that the respondent's deportability has been established with evidence that is clear, unequivocal, and convincing. 

The pertinent part of section 241(f)(1) states as follows: 

(A) 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, whether willful or 

1Section 266(c) provides as follows: 

Any alien or any parent or legal guardian of any alien, who files an application 

for registration containing statements known by him to be false, or who procures 

or attempts to procure registration of himself or another person through fraud, 

shall be guilty of a misdemeanor arxd shall, upon conviction thereof, be fined not 

to exceed $1,000, or be imprisoned not more than six months, or both; and any 

alien co convicted shall, upon the warrant of the Attorney General, be taken into 

custody and be deported in the manner provided in chapter 5 of this title. 

2The respondent claims that he committed two criminal offenses when he was a 

teenager, the second of which resulted in confinement at what we would call a 

"reform school." 

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Interim Decision #2976 

innocent, may, in the discretion of the Attorney General, be waived for any alien 

(other than an alien described in subsection (aX19) of this section) who- 

(i) is the spouse, parent, or child of a citizen of the United States or of an 

alien lawfully admitted to the United States for permanent residence; and 

(ii) was in possession of an immigrant visa or equivalent document and was 

otherwise admissible to the United States at the time of such entry except for 

those grounds of inadmissibility specified under paragraphs (14), (20), and (21) of 

section 212(a) of this title which were a direct result of that fraud or misrepresentation. 

(B) A waiver of deportation for fraud or misrepresentation granted under subparagraph (A) shall also operate to waive deportation based on the grounds of inodmicsibility at entry described under subparagraph (AXii) directly resulting from 

such fraud or misrepresentation. (Emphasis added.) 

The respondent argued that the deportability charge was based 

upon a conviction for committing a fraud during the adjustment of 

status process; that this fraud could also have been a ground for 

exclusion under section 212(a)(19) of the Act, 8 U.S.C. § 1182(a)(19) 

(1982); 3 and, therefore, that he could be saved from deportation on 

the basis of the fraud by section 241(f). To satisfy the family relationship requirement, he testified that he was the father of a 

United States citizen child. The child is a product of the marriage 

which was annulled. 

The immigration judge denied the respondent's application on 

the ground that he was not making an "entry" when he adjusted 

his status under section 245 of the Act and, therefore, that the provisions of section 241(0 would not apply to any frauds that were 

committed during that process. The immigration judge also held 

that section 241(f) would not save the respondent from deportation 

in any event, as that section does not apply to deportability based 

upon section 241(a)(5). 

On appeal, the respondent contends that, in light of the strong 

humanitarian purpose of section 241(f) to provide relief from deportation in order to maintain the unity of families composed in part 

of a United States citizen, a distinction between an entry and an 

adjustment of status should not be dispositive. Rather than interpreting the provisions of section 241(0 literally, as the immigration 

judge did, the provisions of that section should be interpreted in a 

way that will effectuate its purpose. With this in mind, he notes 

that an alien who applies for adjustment of status is assimilated to 

the position of an alien seeking to enter the United States and 

3 Pursuant to section 212(aX19) of the Act, an alien shall be ineligible to receive 

visa and shall be excluded from admission if he "seeks to procure, or has sought to 

procure, or has procured a visa or other documentation, or seeks to enter the United 

States, by fraud, or by willfully misrepresenting a material fact." 

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such relief will be denied if he is excludable under any of the provisions of section 212(a) of the Act. He concludes that, therefore, adjustment of status is the equivalent of an entry into the United 

States. 

The Service has taken the position that the decision of the immigration judge is correct. 

We agree with the respondent's statement that the intent of Congress in enacting section 241(1) was to maintain the unity of families composed in part of United States citizens or lawful permanent 

residents. Matter of Da Loniba, 16 I&N Dec. 616 (BIA 1978). Nevertheless, it is apparent that section 241(f) only waives excludability 

grounds that existed "at the time of entry," and the term "entry" 

is a word of art that cannot be interpreted loosely. See generally 

Matter of Lin, 18 I&N Dec. 219 (BIA 1982); Matter of LewistonQueenston Bridge, 17 I&N Dec. 410 (3IA. 1980); Matter of Pierre, 14 

I&N Dec. 467 (BIA 1973). As used in the Immigration and Nationality Act, it means "any coming of an alien into the United States, 

from a foreign port or place or from an outlying possession." Section 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1982). Consequently, as the respondent was not coming into the United States from a 

foreign port or place or from an outlying possessive when he applied for adjustment of status, he was not making an entry at that 

time. We note that this is not inconsistent with the position that 

an alien applying for adjustment of status under section 245 is assimilated to the position of an alien who is making an entry. The 

only purpose of that "assimilation" is to decide whether the alien 

meets the requirement of section 245(a) that he be "admissible to 

the United States for permanent residence." If he is in the United 

States when he makes the application, as opposed to being in parolee status, he cannot be excluded under section 212(a) of the Act. At 

that point, he is only subject to expulsion in deportation proceedings under section 242 of the Act, 8 U.S.C. § 1252 (1982). Matter of 

Pierre, supra. If he were actually attempting to make an entry, he 

would be subject to exclusion proceedings. We conclude, therefore, 

that the provisions of section 241(f) do not apply to any frauds that 

the respondent committed when he was in the process of adjusting 

his status under section 245. See Pereira-Barreira v. INS, 523 F.2d 

503 (2d Cir. 1975); Khadjenouri v. INS, 460 F.2d 461 (9th Cir. 1972); 

Ferrante v. INS, 399 F.2d 98 (6th Cir. 1968). 

In view of our disposition of the "entry" issue, it is not necessary 

to address the question of whether section 241(f) applies to deportability based upon section 241(a)(5). We note, however, that a federal court of appeals has held that it does not apply to that ground of 

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deportability. See DeLeon v. INS, 547 F.2d 142 (2d Cir. 1976), cert. 

denied, 434 U.S. 841 (1977). 

We conclude that the respondent has not met his burden of establishing eligibility for relief from deportation under section 

241(1). See Matter of Fereira, 14 I&N Dec. 509 (BIA 1973). 

Accordingly, the following order will be entered. 

ORDER: The appeal is dismissed. 

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