Interim Decision 44276 

MATTER OF VILLAGOMEZ-GASOA 

In EXCLUSION Proceedings 

A-13114857 

Decided by Board April 5, 1983 

Since the permission to reapply granted appellant, a previously-deported Mexican alien, under the provisions of 8 CFR 214k.7 at the time he was recontraeted 

as an agricultural laborer in September 1955, was unlimited and applied to 

future entries no matter what their nature, he did not require permission to 

reapply at the time of his application for an immigrant visa in 1982; therefore, 

the concealment of his prior deportations was not a material misrepresentation since the line of inquiry cut oft by the misrepresentation would not have 

resulted in a proper determination that he was excludable. Nee Metier of 

Alvarez-Mujioa, Int. Dec. No. 1354.] 

Exam:rams • Act of 1952—Section 212(a) (19) [8 II.S.C. 1182(a) (19) ]--Visa 

procured by fraud. 

The Officer in Charge, San Ysidro, California, appeals from the 

order of the special inquiry officer authorizing the applicant's admission to the United States when in possession of proper documents. 

The issue is whether applicant's failure to reveal to the American 

Consul when he applied for a visa that he had been deported was a 

material misrepresentation. The appeal will be dismissed. 

Applicant, a 40-year-old married male, native and national of Mexico, had been deported from the United States in 1946, 1947 and 1949. 

On May 31, 1955 while he was illegally in the United States, he was -

given a contract as an agricultural worker at El Centro, California. 

Upon the expiration date of the contract on September 1, 1955 it was 

renewed and except for intervals totaling about a year and a half applicant was employed as a contract agricultural worker until December 

27, 1961. On May 28, 1962, applicant secured a, nonquota immigrant 

visa from an American Consul in Mexico; he was admitted for permanent residence on June 4, 1962. Sines admission, applicant has 

commuted daily from his home in Mexico to his employment in the 

United States. 

In his application for a visa, the -applicant did not reveal he had 

been arrested and deported from the United States. His explanation 

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is that the man to whom he had gone for help in filling out the forms 

told him that since he could not recall the exact dates of the deportations he should not give any information concerning them. The Service charges that the applicant secured his visa by fraud in that he 

failed to reveal that he was inadmissible to the United States because 

he did not have permission to reapply although he had been deported. 

The special inquiry officer ruled that the applicant had not needed 

permission to reapply because he had been the beneficiary of a blanket 

permission to reapply which had been granted to persons admitted as 

agricultural workers. The special inquiry officer held that the misrepresentations was not a material one. The Officer in Charge, in his 

appeal; contends that the blanket permission had given applicant the 

right to reapply only if he came as an agricultural worker (or some 

other temporary status) , and if he came as an immigrant he still needed 

permission to reapply for admission after arrest and deportation. 

Furthermore, the Officer in Charge contends that a graat of permission to reapply was never made, for the existing disability was merely 

waived under section 212(d) (3) of the Immigration and Nationality 

Act, 8 U.S.C. 1182(d) (3) . The Officer in Charge further contends 

that the misrepresentation is material even if the applicant did not 

need permission to reapply, for the misrepresentation cut of a relevant 

line of inquiry which might have resulted in a proper determination 

that he was excludable. 

We must dismiss the appeal. We find that a grant of permission to 

reapply rather than a waiver has been made, that the grant once given 

applied to future entries no matter what their natures, and that when 

applicant applied for a visa, he did not need permission to reapply. 

We conclude that no material misrepresentation existed because the 

line of inquiry cut of by the misrepresentation would not have 

resulted in a proper determination that the applicant was excludable, 

That the applicant was the beneficiary of a blanket grant of permission to reapply rather than of a temporary waiver of a ground of inadmissibility is based upon both the conclusions reached when laws prior 

to the Immigration and Nationality Act were construed and the language of the grant. Prior to the Immigration and Nationality Act, 

the authority to grant permission to reapply was contained in sections 

3 and 23 of the Act of February 5, 1917 and section 1, Act of March 4, 

1929; 1authority to waive a ground of inadmissibility for one desiring 

to enter for temporary purposes was found in section 3, ninth proviso, 

Aet of February 5, 1917. 2At one time agricultural workers who did 

3 Now section 212(a) (17) of the Immigration and Nationality Act, 8 U.S.C. 

1182(a)(17)_ 

'Now section 212(d) (3) of the Immigration and Nationality Act. A U.S.C. 

1182 (d ) (3) . 

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not have permission to reapply were admitted under the, ninth proviso 

to section 3 of the Act of February 5, 1917 despite the failure to have 

permission to reapply (Matter of R-1.,—,11. & N. Dec. 624 (1913) ; 

however, later, and just prior to the Immigration and Nationality Act, 

the regulations were changed to read as follows : 

Previous deportation; Pornaosion to rooPPZY. An alien who established 

that he is in all respects entitled to admission as an agricultural worker under 

the provisions of this part, except that he has been previously excluded or arrested and deported on not more than one occasion solely because of illegal entry 

or absence of required documents, is hereby granted permission to reapply for 

admission to the United States : Provided, That in the case of such an alien who 

has been arrested and deported, such permission to reapply shall not become effective unless and until the alien has resided outside the United States for at least 

one year after deportation. Mho proviso raorcap. neonates the prohibition contained In law.] (6 OFR 115.7, 16 F.R. 7348, July 27, 1951) 

We construed this regulation as a grant of permission to reapply for 

all purposes including immigration to the United States. 3The substance of this regulation was put in. 8 CFR 475.7 in 1952 and was in 

effect when applicant was admitted to the United States as a contract 

laborer on May 31, 1955. The regulation read as follows: 

Previous removal, deportation.; permission to reapply. An alien who established that he is in all respects entitled to admission as an agricultural worker 

under the provisions of this part, except that he has been previously removed 

at Government expense pursuant to section 242(b) of the Immigration and 

Nationality Act, or excluded or arrested and deported, on not more than one 

occasion solely because of illegal entry or absence of required documents, is 

hereby granted permission -to reapply for admission to the United States as an 

agricultural worker. (17 P. 11562, December 19, 1952) 

This grant of permission to reapply did not attach to the applicant 

since he had been arrested and deported on more than one occasion. 

Applicant recoritracted on September 1, 1955. At this time the provisions of 8 CFR 214k.7 applied; it read as follows 

Previous removal, deportation; permission to reapply. An alien who establishes that he is in all respects entitled to admission as an agricultural worker 

under the provisions of this part, except that he has been previously removed at 

Government expense pursuant to section 242 (b) of the act or excluded or arrested 

and deported solely because of illegal entry or absence of required documents, 

is hereby granted permission to reapply for admission to the United States 

as an agricultural worker.. (17 P.R. 11562, December 19, 1952 amended, 20 

P.R. 5964, August 17, 1955, redesignated 20 P.R. 6380, August 31, 1955) 

This is the provision which the special inquiry officer ruled was a grant 

of permission to reapply valid for all purposes and unlimited in effect. 

We believe the relief granted by 8 CFR 214k.7 is a grant of per- 

' It had also been settled since March 10, 1948 that permission to reapply 

must be granted outright or denied, and that where permission to reapply had 

been granted, an attempted limitation was ineffective. 

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mission to reapply under section 212(a) (17) of the Act rather than a 

waiver under section 212(d) (8) of the Act. The language upon its 

face purports to grant outright relief rather than a waiver of a ground 

of inadmissibility and is substantially similar to other blanket grants 

of permission to reapply.' The Board as well as the alien is bound by 

the apparent meaning of the language of the regulations. The language of the blanket grant is to be contrasted with language used when 

a waiver was intended. For example, we note that when a waiver was 

intended by the regulations, the regulations specifically state that 

section 212(d) (3) of the Act is being invoked and that the ground of 

inadmissibility concerned is "waived." 5Finally, we find it significant 

that on November 28, 1957 the pertinent regulation was amended to 

grant to an agricultural laborer a waiver of the ground of inadmissibility arising out of lack of permission to reapply following a deportation, 

The language of the regulations in effect at the time the applicant 

was recontracted in September 1955 constituted an unambiguous 

blanket grant of permission to reapply to eligible aliens who sought to 

enter as agricultural workers. Applicant was an eligible applicant, 

he sought to enter as an agricultural worker, the grant therefore 

attached to him and could not be qualified in any way. 

We must now consider the fact that applicant failed to reveal the 

truth concerning his , deportations when he applied for a visa. This 

concealment was done on the advice of a person to whom applicant 

had gone for help in filling out his preliminary application. This 

4 * * * Permission to reapply is granted in the case of a person who was deported from the United States prior to March 1, 1959, and on March 1, 1959, and 

at the time of his application for a visa, or at the time of application for admission if a visa is not required, has a parent, spouse, or child who is a United 

States citizen or an alien lawfully admitted to the United States for permanent 

residence, except that this grant of permission to reapply shall not be regarded 

as a waiver of grounds of excludability as provided in section 5 or 7 of the Act of 

September 11, 1957. (8 ors 212.2, 24 P.R. 1480, February 27, 1959) 

Pursuant to the authority contained in section 212(d) (3) of the Immigration 

and Nationality Act, aground of inadmissibility contained in section 212(a) (24) 

of the act is waived in the case of an alien, otherwise admissible under the immigration laws, who is in possession of appropriate documents or has been granted 

a waiver thereof and is seeking admission to the United States as a nonimmigrant 

(18 P.R. 3528, June 19, 1953, 8 OFR, 212.8 (b) ). 

°Previous removal, deportation; permission. to reapply. Pursuant to the 

authority contained in section 212(d) (3) of the act, the bar to admissibility 

contained in paragraph (18) or (17) of section 212 (a) of the act is hereby 

waived for an alien who establishes that be is otherwise admissible as an agricultural worker under the provisions of this part, except for his previous removal 

or deportation because of entry without inspection or lack of required documents 

(22 P.R. 9518, November 28, 1957, 8 CPR 214k.7). 

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advice was given to applicant after the applicant had revealed that 

he was confused as to the dates of the deportation. Both applicant 

and the scribe appear to have been convinced that the failure to know 

the exact dates was a serious matter. While we do not condone applicant's failure to reveal the truth, the fact is that he was admissible 

at the time he applied for the visa. The applicant has made an unrefuted showing that he was eligible to enter. Applicant has no arrest 

record. Ile has been steadily employed in the -United States for many 

years and was regularly found worthy of being rehired as an agricultural laborer. We believe the applicant has established that inquiry 

would not have revealed any reasonable ground for the proper denial 

of the visa. 

The appeal of the Officer in Charge will be dismissed. 

ORDER: It is ordered that the appeal of the Officer in Charge be 

and the same is hereby dismissed. 

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