Interim Decision #2093 

MATTER OF GABOURIEL 

In Deportation Proceedings 

A-19872688 

Decided by Board September September 7, 1971 

Respondent, who entered this country while asleep, who was not interrogated 

by an immigration inspector, who made no representation or statement of 

any kind at entry and who possessed no entry documents, is ineligible for 

the benefits of section 241(f) of the Immigration and Nationality Act, as 

amended, since there was no fraud or misrepresentation involved in her 

entry into the United States. 

CHARGES: 

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

without inspection. 

Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable at entry under section 212(a) (26), nonimmigrant without visa. 

ON BEHALF OF RESPONDENT: Steve Hollopeter, Esquire 

Community Legal Assistance Center 

1440 West Ninth Street 

Los Angeles, California 90015 

(Brief filed) 

The special inquiry officer, in his decision dated March 22, 1971 

found the respondent deportable under the lodged charge only, refused to terminate the proceedings under section 241(f), and denied her the privilege of voluntary departure. From that order 

the respondent appeals. Her appeal will be dismissed. 

The record relates to a female alien, 36 years of age, a native 

and citizen of British Honduras, who entered the United States 

on or about January 10, 1968. She is the mother of an illegitimate 

United States citizen child. 

Deportability was conceded. We agree with the special inquiry 

officer that there is clear, convincing and unequivocal evidence in 

the record to support the finding of deportability under the 

lodged charge. 

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The respondent testified that she was never interrogated by an 

immigrant inspector when she entered the United States. She 

stated that she was asleep in an automobile at the time. 

Counsel moved that the proceedings be terminated pursuant to 

section 241 (f) of the Immigration and Nationality Act, based on 

the fact that the respondent has a United States citizen child. 

The issue in this case is whether the respondent is saved from 

deportation by 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 ... 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 . . . parent . . . of a 

United States citizen.... 

The precise question is whether an alien who entered the 

United States while asleep, and who made no representation or 

statement of any kind, but who possessed no entry documents, 

procured entry by fraud or misrepresentation within the meaning 

of 241 (f). 

Respondent's counsel, in his brief, contends that respondent's 

silence at entry, though due to the fact that she was then asleep, 

constitutes, in the eyes of the law, a misrepresentation because 

she had a duty to speak. We cannot accept this thesis. We agree 

with the special inquiry officer, who found no fraud present. 

Fraud was not an "essential ingredient" of the charge under 

which she was ordered deported, Matter of Koryzma, Interim Decision No. 2033 (BIA, 1970). 

Respondent's counsel cites the decision in INS v. Errico and 

Scott, 385 U.S. 214 (1966). We feel that decision is not controlling in this case, because each of the aliens there involved had 

committed fraud in the procurement of his immigrant visa. 

The case of Muslemi v. INS, 408 F.2d 1196 (9 Cir. 1969), also 

cited by counsel, is not in point. In that case the deportation 

charge (entry without an immigrant visa) resulted directly from 

the alien's fraudulent concealment of his intention to remain in 

the United States permanently. 

Counsel's reliance on Lee Fook Chuey v. INS, 439 F.2d 244 (9 

Cir. 1971) and United States v. Osuna-Picos, 443 F.2d 907 (9 Cir. 

1971) is misplaced. Those cases both concerned aliens who entered the United States upon a fraudulent claim of United States 

citizenship. There is no wilful fraud in the present case. 

We note that Supreme Court review of the Ninth Circuit decision in Lee Fook Chuey, supra, has not been sought. That deci743 
Interim Decision #2093 

sion has been endorsed and followed in two subsequent decisions 

in the same court, United States v. Osuna-Picos, supra, and Vitales v. INS, 443 F.2d 343 (May 28, 1971). We are now informed 

that the Solicitor General has authorized the filing of a certiorari 

petition in Vitales. Although the Ninth Circuit's construction of 

section 241 (f) may thus soon be definitively reviewed, we see no 

reason to hold further proceedings in this case in abeyance pending possible Supreme Court action. This case presents a narrow 

issue, not within the scope of any of the Ninth Circuit decisions 

cited above, viz., whether the provisions of section 241 (f) extend 

to a case where no fraud or misrepresentation is involved. We 

shall therefore decide this appeal on its merits. 

In Errico and Scott, supra, the issue was the interpretation of 

the phrase "otherwise admissible" in section 241 (f). The present 

case, on the other hand, concerns an entirely different element in 

the statute, i.e., determining which aliens are "excludable at the 

time of entry as aliens who have ... procured ... entry into the 

United States by fraud or misrepresentation ...." Consequently, 

there is no reason to go into the question of whether the ground 

of inadmissibility in the present case is quantitative or qualitative. That question bears only upon the "otherwise admissible" 

issue. See Lee Fook Chuey, supra. 

The respondent testified that she had been asleep when the 

other occupants in the car were interrogated by an immigrant 

inspector. We agree with the special inquiry officer's conclusion 

that there was no fraud involved in her entry into the United 

States. Because there was no fraud involved, the special inquiry 

officer found that the lodged charge is not based upon any 

claimed misrepresentation or fraud, but solely upon the absence 

of the entry documents required by section 212 (a) (26) of the 

Act. We agree with the special inquiry officer's conclusion in this 

regard. 

We have found no decision, judicial or administrative, holding 

that an alien who physically entered the United States without 

making application for admission, either as an immigrant or as a 

nonimmigrant, and without any inspection by the immigration 

authorities, is saved from deportation by operation of section 

241 (f). There is one case which seems to point to the opposite 

conclusion. In Gambino v. INS, 419 F.2d 1355 (2 Cir., 1970), 

cert. denied 399 U.S. 905, a similar situation was presented of an 

alien who entered the United States without inspection or documents, as a stowaway. The court found the alien deportable notwithstanding the provision of section 241 (f). 

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Interim Decision #2093 

The Gambino court noted that section 241 (f) would appear to 

apply literally only to an alien charged with entering in violation 

of section 212 (a) (19) of the Act, but observed that its application had been extended administratively to include cases brought 

under any deportation charge resulting directly from misrepresentation, regardless of the section under which the charge was 

brought. The court pointed out that the alien, a stowaway, had 

not been, and indeed could not have been, charged with misrepresentation under section 212 (a) (19). The same is true of the present case, where the respondent did not even have the opportunity 

to make a misrepresentation. The same result should ensue. 

In Matter of Lim, Interim Decision No. 1947 (BIA, 1969), the 

alien had innocently misstated that she was the spouse of a 

United States citizen and was admitted as a nonquota immigrant, 

without knowledge that her husband was an alien. We concluded 

that her innocent misrepresentation brought her within the purview of section 241 (f). The same sort of "derivative misrepresentation" was found in Matter of Torbergsen, Interim Decision 

No. 2015 (BIA, 1969), where we also held that section 241(f) 

applied. However, in the present case, no representations of any 

sort, derivative or otherwise, are present. 

Based upon our examination of the statute, court decisions and 

prior Board precedents, we conclude that the special inquiry 

officer was correct in his decision that the provisions of section 

241(f) do not authorize termination on the facts in the present 

case. 

We also agree with the special inquiry officer's decision not to 

grant the privilege of voluntary departure, for the reasons stated 

by the special inquiry officer. 

Accordingly, we will affirm the order of the special inquiry officer and dismiss the appeal. The following order will be entered. 

ORDER: The appeal is dismissed. 

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