Interim Decision #2874 

MATTER OF ANABO 

In Deportation Proceedings 

A-34164113 

Decided by Board July 10, 1981 

(1) The married son of a United States citizen was excludable at entry under section 212 

(a)(19) of the Act, 8 U.S.C. 1182(a)(19), for failing to disclose his marriage and was, 

therefore, also excludable under section 212(a)(20), of the Act, 8 U.S.C. 1182(a)(20), for 

having entered the United States with an invalid first-preference visa as the unmarried 

son of a United States citizen, but was not excludable under section 212(a) (14) of the 

Act, 8 U.S.C. 1182(a)(14), for failure to possess a labor eertMeation. Matter of Wong, 

16 I&N Dec. 87 (BIA 1977); Matter of Montemayor, 15 l&N Dec. 353 (BIA 1975), distinguished. 

(2) The legislative history of section 212(a)(14) reflects that Congress did not intend that 

the son of a petitioning United States citizen be excludable under that section. 

(3) Section 241(1) of the Act, 8 U.S.C. 1251(0, waives excludability at entry under sections 

212(2)(19) and 212(ag20) where the alien was otherwise admissible at entry. 

(d) The evasion of restrictive quotas by improperly entering as a first-preference immigrant does not render a respondent a nonpreference alien at entry for purposes of 

excludability under section 212(a)(14) when he was classifiable as a fourth-preference 

immigrant if his marriage had been disclosed and, therefore, respondent is entitled to 

a waiver of the charges of deportability under section 241(0. 

(5) Acknowledgement by the father renders a child legitimate under the Uniform Parentage Act, California Civil Code Sections 7000-7018. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)1—Excludable at time of entry 

under sec. 212(a)(20)18 U.S.C. 1182(a)(20)1—No valid immigrant 

visa 

Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)1—Excludable at time of entry 

under Sec. 212(0(10) [8 U.S.C. 11E2(0(19)1—Visa obtained by 

fraud or misrepresenting a material fact 

Lodged: Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)1—Excludable at time of entry under sec. 

212(a)(14) [8 U.S.C. 1182(a)(14)1—No valid labor certification 

ON BEHALF OF RESPONDENT: 

Donald I.. Ungar, Esquire 

Simmons, Ungar and Pohlam 

517 Washington Street 

San Francisco, California 94111 

ON BEHALF OF Seevice: 

Brian H. Simpson 

Trial Attorney 

By: Milhollan, Chairman; Maniatis, Maguire, and Morris, Board Members 

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Interim Decision #2874 

The respondent appeals from the August 14, 1979, decision of the 

immigration judge denying his application for termination of the proceedings pursuant to section 241(t) of the Immigration and Nationality 

Act, 8 U.S.C. 1251(f). The appeal will be sustained and the proceedings 

terminated. 

The respondent is a native and citizen of the Philippines who was 

admitted into the United States as a lawful permanent resident cm 

January 26, 1973, in possession of a first-preference immigrant visa as 

the unmarried son of a United States citizen. See section 203(a)(1) of the 

Act, 8 U.S.C. 1153(a)(1). On August 14, 1979, the immigration judge 

concluded that the respondent was deportable by virtue of being excludable at entry under sections 212(a)(19) and (20) of the Act, 8 U.S.C. 

1182(a)(19) and (20). The basis for excludability was the fact that he had 

entered into a marriage ceremony prior to entering the United States as 

the unmarried son of a United States citizen. 

On December 27, 1969, the respondent had married a Filipino woman 

at Tanag, Bezal, the Philippines, and had not terminated that marriage 

prior to immigrating into the United States as the first-preference unmarried son of a United States citizen instead of as a married son, entitled 

only to a fourth-preference immigrant visa pursuant to section 203(a)(4) 

of the Act, 8 U.S.C. 1153(a)(4) (Tr. pp: 1-3) (Ex. 1, 3, 4, 5). Deportability 

was clearly established that the respondent was excludable at entry 

under sections 212(a)(19) and 212(a)(20) since he immigrated with an 

invalid first-preference visa he obtained by concealing his marriage. 

This constitutes clear, convincing, and unequivocal evidence of deportability as required by Wood* v. INS, 385 U.S. 276 (1966) and 8 C. F. E. . 

242.14(a). 

The respondent then claimed that he was entitled to a waiver of the 

charges of deportability pursuant to section 241(f) of the Act, 8 U. S. C. 

1251(0. The Service responded by contending that the respondent was 

ineligible for section 241(0 relief because he was also excludable at entry 

under section 212(a)(14) of the Act, and lodged a charge under that 

section at the deportation hearing. 

The respondent is listed as the father of a United States citizen in a 

Certificate of Live Birth issued by the State of California (Ex. 2). It 

states that on August 2, 1977, a female child was born to the respondent 

and a woman named Judy Jackson in Oakland, California. Such acknowledgement renders the respondent's daughter his child for immigration 

purposes. See Kaliski v. District Director, 620 F.2d 214 (9 Cir. 1980); 

Matter of Fulgencio, 17 UN Dec. 471,(BIA 1980); 1976 Uniform Parentage Act, California Civil Code Sections 7000-7018. Consequently, the 

respondent sought a waiver r f deportability pursuant to section 241(f) 

which reads as follows: 

(f) The provisions of this section relating to the deportation of aliens within the United 

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Interim Decision #2874 

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 shall not apply to an alien otherwise 

admissible at the time et 'entry who is the spouse, parent, or a child ea United Slates 

citizen or of an alien lawfully admitted for permanent residence. (Emphasis supplied.) 

The language of the section expressly covers the language of section 

212(a)(19) of the Act, mandating a waiver of deportability for being 

excludable at entry for qualifying respondents. In addition, the waiver 

provision has been read liberally to reach evasion of quota restrictions in 

INS v. Errico, 385 U.S. 214 (1966), and excludability under 212( a)(20) 

for the entry with the invalid visa which results from the fraud. Matter 

of Da Lonzba, 16 I&N Dec. 616 (BIA 1978); Matter of Agustin, 17 

I&N Dec. 14 (BIA 1979). 

However, when the respondent is also excludable under section 

212(a)(14) of the Act, section 241(f) is ineffective to remove deportability 

because such a respondent does not meet the statutory requirement 

that he be "otherwise admissible at the time of entry for 241(0 relief." 

Reid v. INS, 420 U.S. 619 (1975); Chow v. INS, 641 F.2d 1384 (9 Cir. 

1981), Matter of Gcntzatez, 10 I&N Dec. 564 (BIA 1978). The respondent's 

position is that he was "otherwise admissible" because he was not excludable at entry under section 212(a)(14). He contends that he was exempt 

from the requirements of section 212(a)(14) because he was the son of a 

United States citizen and thus entitled to preference status under section 203(a)(4) of the Act. The immigration judge disagreed, concluding 

that the respondent was not entitled to be considered a fourth-preference 

immigrant for 212(a)(14) excludability purposes because such a preference had not been accorded him in a visa petition approved by the 

Attorney General pursuant to section 203 of the Act (i.j. dec. pp. 3-4). 

The respondent appealed to this Board. 

• Neither this Board nor the courts have previously addressed the question of whether an alien who would have been exempt from the labor 

certification requirement under another preference classification than 

the one improperly received, would be eligible for section 241(f) relief as 

being "otherwise admissible" at the time of entry into the United States. 

The great majority of cases involving a section 212(a)(14) charge as a 

result of material misrepresentation of marital status involve married 

sons or daughters of lawful permanent residents and sham marriages. 

Section 212(a)(14) operates as an alternative ground of inadmissibility 

for aliens concealing a marriage that precedes admission into the United 

States as the second-preference son or daughter of a lawful permanent 

resident pursuant to section 203(a)(2). Matter of Wong, 16 I&N Dec. 87 

(BIA 1977); Matter of Agustin, supra. This results from the fact that 

there is no preference classification under the Act for the married sons 

and daughters of lawful permanent residents, therefore, uptin marriage, 

such an alien becomes a nonpreference immigrant. 

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Interim Decision #2874 

A similar outcome occurs when the alien sought entry as a spouse 

pursuant to a sham or invalid marriage. See Cacho v. INS, 547 F.2d 

1057 (9 Ch.. 1976); Matter of Montemayor, 15 I&N Dec. 353 (BIA 1975). 

That outcome, however, is not necessarily applicable when the respondent sought entry as a first-preference unmarried son of a United States 

citizen, despite having married. The language of section 212(a)(14) specific/illy limits its application to "preference immigrant aliens described - 

under 203(a)(3) and (6) and to nonpreference immigrant aliens described 

in section 203(a)(8)" which do not require a petitioning relative. The 

married son or daughter of a petitioning United States citizen is entitled 

to a fourth-preference immigrant visa pursuant to section 203(a)(4). 

The legislative history of the last amendments to section 212(a)(14) 

indicates that Congress did not intend to make close relatives of United 

States citizens excludable under that section. The Senate Report accompanying the bill explicitly states ". . . these provisions are not applicable 

in the case of immediate relatives or in the case of certain other close 

relatives of United States citizens . . . where petitions have been filed 

by citizens . . . . In those cases there is a clear responsibility assumed by 

citizens ... who have filed petitions for their relatives to come to the 

United States and as a consequence such certification by the Secretary 

of Labor is deemed unnecessary." S. Rep. No. 748, 89th Gong. 1st Sess. 

7, reprinted in 1965 U.S. Code Cong. and Ad. News 3320, 3334. It is clear 

that Congress did not intend section 212(a)(14) excludability to include 

sons and daughters of a United States citizen who qualify for a preference immigration status and who are the beneficiaries of a visa petition 

filed by their citizen parent, merely because they failed to disclose a 

marriage, and thereby obtained a higher immigration preference. 

A key element in qualifying for the 212(a)( 14) exemption is that the 

citizen relative must have filed a visa petition on the alien's behalf that 

would result in the exemption. Thus, in Matter of Haller, 12 I&N Dec. 

319 (BIA 1967), we held that an alien seeking adjustment of status as a 

nonpreferenee,immigrant was not entitled to an exemption from the 

labor certification requirement despite the fact that he was married to a 

United States citizen because she had not filed a visa petition on his 

behalf. In visa petition proceedings only the petitioner has standing to 

confer immigration benefits and contest a denial of a, visa petition by the 

District Director. Matter of Kurys, 11 I&N Dec. 315 (BIA 1965); Matter 

of C-, 9 I&N Dec. 597 (BIA 1962). In the present case, the respondent's 

United States citizen father had filed a visa petition on his behalf. An 

unrebutted finding had been made that the respondent was the son of a 

United States citizen. The failure to disclose his married status rendered him excludable under section 212(a)(19) for failing to disclose 

material facts, and section 212(a)(20) for holding an invalid first.; 

preference visa, since he was not unmarried as described in section 

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Interim Decision #2874 

203(a)(1). However, the nondisclosure does not render him excludable 

under section 212(2)(14) where the same visa petition filed would have 

entitled him to fourth-preference status and a section 212(a)(14) exemption, had the marriage been timely disclosed. See 8 C.F.R. 204.5(a). 

The Service finally contends that the respondent should also not be 

considered otherwise admissible for section 241(f) purposes because visa 

numbers were not available for fourth -prefeienee immigrants when he 

was admitted into the United States. In Matter of DaLomba, supra, we 

specifiCally held that section 241(f) operated to waive the evasion of 

restrictive quotas because of overriding family considetations. In Da 

Lomba, we adopted the Ninth Circuit's position as stated in Cacho v. 

INS, 547 F.2d 1057, 1060 (9 Cir. 1976). The court in Cacho explained 

that the failure to have a quota number available was a requirement of 

the former section 211(a) of the Act, 8 U.S.C. 1181(a) and that such 

inadmissibility under section 211(a) of the Act, was held subject to a 

section 241(0 waiver by the Supreme Court's decision in INS vs. Errico, 

supra at 220. Cacho v. INS, supra, at 1060; cf. Reid v. INS, supra, at 

027; Mum, N. INS, supra, at 1084. Consequently, we find that the respondent was otherwise admissible under the terms of section 241(f) and is, 

therefore, entitled to such mandatory relief. The deportation proceedings are hereby terminated. 

ORDER: The appeal is sustained and the deportation proceedings 

are terminated. 

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