Interim Decision #2241 

MATTER OF POLANCO 

In Deportation Proceedings 

A-17559060 

Decided by Board November 8, 1973 

A native of the Western Hemisphere who entered the United States in possession of an immigrant visa issued to him as the unmarried child of a lawful 

permanent resident exempt from the labor certification requirements of 

section 212(a)(14) of the Immigration and Nationality Act, but who, in fact, 

was married between the date of visa issuance and the date of his entry, is 

deportable as one excludable at entry. This is true notwithstanding the 

absence in his visa of Form FS-548 (Statement of Marriageable Age Applicant) 

and notwithstanding he was admitted by an immigrant inspector upon 

application for admission (Matter of Khan, Interim Decision No. 2215). 

CHARGE: 

Order: Act of 1952—Section 241(aX1) (8 U.S.C. 1251(a)(1)]—Excludable at time 

of .entry—no valid certification by Secretary of Labor 

ON BEHALF OF RESPONDENT: Antonio C. Martinez, Esquire 

324 West 14th Street 

New York, New York 10014 

This is an appeal from an order of deportation entered by the 

immigration judge finding the respondent deportable, and granting him the privilege of voluntary departure. The appeal will be 

dismissed. 

The record related to a married male alien, 23 years of age, a 

native and citizen of the Dominican Republic, who entered the 

United States December 16, 1967, in possession of an immigrant 

visa, classified as a native of the Western Hemisphere, exempt 

from the provisions of section 212(aX14). Pursuant to section 212(a) 

(14), aliens seeking to enter the United States for the purpose of 

performing labor are excludable unless the Secretary of Labor has 

issued a certification that their employment will not adversely 

affect employment conditions in the United States. The exclusion 

does not apply to special immigrants who are children of aliens 

lawfully admitted to the United States for permanent residence. A 

child is defined by section 101(bX1) as an unmarried person under 

21 years of age. 

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The respondent's visa, issued on November 30, 1967, shows that 

he was found to be exempt from the labor certification requirement because he was the child of a lawful permanent resident. On 

December 9, 1967 he married a Dominican woman. On December 

16, 1967 he entered the United States with the above visa. At the 

time that he entered the United States, he was not of the status 

accorded by the visa. Thus, he was not then eligible to enter the 

United States because, being married, he was not a "child" of a 

lawful permanent resident as defined by section 101(b)(1). 

The respondent contends that because the immigrant inspector 

admitted the respondent at the time of entry without questioning 

him as to his marital status, the Government is estopped from 

deporting him inasmuch as the admission was based on the 

Government's own error. This same contention was rejected recently by this Board; we held that the Immigration and Naturalization Service is not bound by an error committed by an immigrant inspector at the time of admission, Matter of Khan, Interim 

Decision No. 2215 (BIA July 26, 1973), and cases cited therein. 

The respondent further contends that the Government is estopped from deporting him because the consular official who 

issued the visa failed to notify him of the immigration consequences of marrying prior to applying for admission to the United 

States. The respondent cites regulation 22 CFR 42.122 which 

directs that a consular officer shall, when appropriate, warn an 

alien that he will be inadmissible if he is not unmarried at the time 

of application for admission. A procedural note implementing the 

regulation provides that an alien of marriageable age issued a visa 

on the basis of his status as a "child" should be required to sign 

Form FS-548 (Statement of Marriageable Age Applicant) in duplicate, one copy of which should be attached to the immigrant visa. 

The statement informs the alien in writing of the fact that he will 

be ineligible for admission to the United States should he marry 

prior to entry. No Form FS-548 was attached to the respondent's 

visa. 

The respondent contends that the consul had a duty, imposed by 

State Department regulations, to inform him of the law and to 

have him sign a statement acknowledging that he had been so 

notified. He argues that the fact that the form is not attached to 

the visa overcomes the presumption of regularity which usually 

attaches to acts by Government officials. He then argues that the 

consul's failure to perform his duty estops the Government from 

deporting him. 

The effect of the respondent's argument would be to permit 

Government officials to modify the law by their errors; they do not 

have that power. "[W]e know of no case where an officer or agent 

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of the government ... has estopped the government from enforcing a law passed by Congress. Unless a law has been repealed or 

declared unconstitutional by the courts, it is a part of the supreme 

law of the land and no officer or agent can by his actions or 

conduct waive its provisions or nullify its enforcement,"Montilla v. 

United States, 457 F.2d 978, 986 (U.S. Court of Claims 1972). The 

estoppel doctrine has been successfully invoked against the Government when the Government has supplied misinformation. That 

is not the case here. The Government did not misinform the 

respondent. 

Failure to inform raises estoppel, generally, only when the party 

maintaining silence knew that the other party was acting or about 

to act as he would not have done had the truth been told because 

he thought the facts were otherwise. The consular official who 

issued the respondent's visa did not know that the respondent was 

planning to marry. Thus the consul's silence on the subject of the 

immigration consequences of marriage by respondent prior to 

entering the United States was not with the intention of misleading the respondent to his detriment. Therefore it is not the type of 

silence which raises estoppel. 

The respondent was not of the status accorded by his visa. 

Accordingly, he was excludable at the time of entry, as charged. 

ORDER: The appeal is dismissed. 

Further order; Pursuant to the immigration judge's order, the 

respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension 

beyond that time as may be granted by the District Director; and 

in the event of failure so to depart, the respondent shall be 

deported as provided in the immigration judge's order. 

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