Interim Decision #2428 

MATTER OF DINIZ 

In Deportation Proceedings 

A-30329571 

Decided by Board September 5, 1975 

In the light of the Supreme Court decision in Reid v. INS,420 'U.S. 619 (1975), the waiver 

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

amended, do not apply to a charge of deportability under section 241(a)(2) of the Act, even 

though the underlying basis for deportability is the failure to fulfill a marital agreement 

under section 241(c) of the Act (Matter of Montemayor; 15 I. & N. Dec. 353 adhered to; 

Matter of Marehisi, 121. & N. Dee. 132, overruled). 

CHARGE: 

Order Act of 1952—Sections 241(a)(2) and 241(e) U.S.C. 1251(a)(2) and 1251(c)]—

Entry with visa procured by fraud—failed or refused to fulfill 

marital agreement 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

John A. Mutter, Esquire Paul O. Vincent 

170 Westminster Street Appellate Trial Attorney 

Providence, Rhode Island 02903 

In a decision dated April 30, 1974, the immigration judge ordered the 

respondent deported from the United States. The respondent has ap-

'pealed from that decision_ The appeal will be dismissed 

The respondent is a native and citizen of Portugal. The Service 

alleged, and the immigration judge found, that the respondent was 

deportable under section 241(a)(2) and section 241(c) of the Immigration 

and Nationality Act as an alien who has failed or refused to fulfill his 

marital agreement which was made for the purpose of procuring his 

entry as an immigrant. The respondent contests deportability, claiming 

that he married in good faith. 

The facts are adequately discussed in the immigration judge's decision. The testimony of the respondent's wife squarely conflicts with the 

respondent's version of his marriage, and the documentary evidence of 

record supports the testimony of the respondent's wife. The immigration judge also found that the respondent was not a credible witness. 

We agree with the decision of the immigration judge. Deportability 

has been established by clear, convincing and unequivocal evidence. 

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Interim Deck on #2428 

The respondent also argues that his deportation is prevented by 

section 241(f) of the Act. The respondent evidently has married another 

United States citizen and would therefore have the requisite familial 

relationship for section 241(f). The question thus presented is whether 

section 241(f) can be applied to waive deportability under section 241-

(a)(2) and section 241(c), if the underlying factual basis for deportability 

involves a failure or refusal to fulfill a marital agreement within the 

contemplation of section 241(c). 

Earlier Board decisions have treated section 241(c) as a separate 

charge upon which deportability can be predicated. Matter of Mietus, 11 

I. & N. Dec. 679 (BIA 1966); Matter of M—, 7 I. & N. Dec. 601 (BIA 

1957); Matter of T—, 7 I. & N. Dec. 417 (BIA 1957); see also Matter of T—, 

8 I. & N. Dec. 493 (BIA 1959). We have also held that section 241(1) 

could operate to prevent the deportation of an alien charged under both 

section 241(a)(2) and section 241(c). Matter of Manehis, 12 I. & N. Dec. 

132 (BIA 1967); cf. Matter of S—, 7 I. & N. Dec. 715 (BIA. 1958). 

We no longer believe this approach to section 241(f) to be sound law in 

view of the Supreme Court's decision in Reid v. INS, 420 U.S. 619 

(1975). We have concluded that section 241(f) cannot waive deportability under section 241(a)(2). Accordingly, it is not necessary for us to 

consider the effect of section 241(f) on the section 241(c) charge, assuming that such a charge may stand alone. 

We recognize that section 241(c) refers, directly to both the fraud 

provision of section 212(a)(19), and to section 241(a)(2). Furthermore, it 

does not appear that the Supreme Court considered section 241(c) in 

deciding Reid v. INS, supra. Nevertheless, in view of the clear pronouncements contained in Reid, we hold that section 241(f) is not available to an alien charged with deportability under section 241(a)(2), even 

as it relates tc section 241(c). 

In Reid the Supreme Court held that section 241(f) could not benefit 

an alien who has entered the United States under a false claim to United 

States citizenship and who was charged with deportability under section 

241(a)(2) as an alien who had entered without inspection. The Supreme 

Court's opinion in Reid also indicates that section 241(f) only applies to 

a section 241(a)(1) charge of deportability based on either section 212-

"(a)(19), or on section 211(a) as it appeared prior to its amendment in 

1965. 1See Castro-Guerrero V. INS, 515 F.2d 615 (C.A. 5, 1975); Matter 

of Montemayor, 15 I. & N. Dec. 353 (BIA'1975). This limitation on the 

scope of section 241(f) precludes its extension to section 241(a)(2), even 

though the underlying basis for deportability is the failure to fulfill a 

marital agreement under section 241(c). 

The Supreme Court also indicated that section 241(a)(2) establishes a 

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ground for deportation which is independent of whether the alien was 

excludable vat the time of his entry. Reid. dealt with the "entry without 

inspection" portion of section 241(a)(2). However, the portion of section 

241(a)(2) which relates to presence in the United States in violation of 

the Act, and which is in issue here, similarly is independent of excludability at entry. Accordingly, ". . nothing in the waiver provision of 

§241(1), which by its terms grants relief against deportation of aliens 'on 

the ground that they were excludable at the time of entry,' has any 

bearing on the case." Reid v..INS, 420 U.S. at 623. 

Fraud is in fact present in this case. Fraud, however, is not an 

essential element of deportahility either under the "entry without inspection" portion of section 241(a)(2) involved in Reid, or under the 

portion of section 241(a)(2) involved here. 

We have interpreted Reid as very narrowly limiting the scope of 

section 241(f). See Matter of Montemayor, supra. We adhere to that 

interpretation. Matter of Manehisi, supra, is overruled. 

The decision of the immigration judge was correct. 

ORDER: The appeal is dismissed. 

Irving A. Appleman, Member, Dissenting: 

I respectfully dissent. 

The literal application of Reid v. INS, 420 U.S. 619 (1975) in this case 

is troublesome. The alien has been found deportable under section 

241(c), 8 U. S. C. 1251(e), of the Immigration and Nationality Act. As the 

majority decision notes this has been held to be a separate and distinct 

charge. The reference to section 241(a)(2) in the same paragraph in the 

order to dhow cause may be regarded as surplussage. 

Section 241(c) is the specific fraud charge used in the case of an alien 

who entered the United States by means of a fraudulent marriage. It 

reads in pertinent part, "An alien shall be deported as having procured a 

visa or other documentation by fraud within the meaning of paragraph 

(19) of section 212(a), and to be in the United States in violation of this 

Act within the meaning of subsection (a)(2) of this section, if . . . it 

appears to the satisfaction of the Attorney General that he or she has 

failed or refused to fulfill his or her marital agreement which in the 

opinion of the Attorney General was hereafter made for the purpose of 

procuring his or her entry as an immigrant." 

This is a charge completely founded in fraud, incorporating section 

212(a)(19) by reference. By its very language one within the proscription "has procured . . . documentation by fraud within the meaning of 

paragraph (19) of section 212(a)." As the Court pointed out in Reid v. 

INS supra, at page 622, section 241(f), 8 U.S.C. 1251(f), I. & N. Act, 

tracks the provisions of section 212(a)(19) dealing with aliens excludable 

for fraud and waives deportation for those excludable at the time of 

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entry by reason of the fraud specified in section 212(a)(19). In my 

opinion the respondent is within this language and not barred from 

relief by the holding in Reid. In relying on section 241(e) the Service 

has, to all intents and purposes, established inadmissibility under section 212(a)(19) as shown by post-entry conduct. The waiver under section.2.41(f) is mandatory if he is now validly married to a United States 

citizen as claimed_ I would therefore remand and reopen for proof of the 

marriage. 

Louisa Wilson, Member, Dissenting: 

I concur in the dissent of Board Member Irving A. Appleman: 

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