Interim Decision #1970 

MATTER or LE noon 

In Exclusion Proceedings 

A-17904833 

Decided by Board May 12, 1969 

(1) An alien cannot withdraw her application for admission during the 

course of an appeal to the Board of Immigration Appeals after the special 

inquiry officer has rendered his decision and entered an order of exclusion.* 

(2) An alien who seeks to enter the United States as a nonimmigrant student without a valid noninunigrant student visa is inadmissible under section 212 (a) (26) of the Immigration and Nationality Act, even though in 

possession of a nonimmigrant visitor visa, and she is denied, in the exercise of discretion, a waiver of the student visa requirement pursuantto 

the provisions of section 212(d) (4) of the Act (unforeseen emergency), 

based on allegations she was misinformed by the United States consul as 

to the need of a student visa, where at the time of her alleged application 

for a student visa she was not then in possession of, and has been unable 

to secure, a certificate of eligibility from an approved institution of learning. 

ExcLuDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)]—

Immigrant without visa. 

Act of 1952—Section 212 (a) (26) [8 U.S.C. 1182 (a) (26)]— 

Nonimmigrant without valid nonimmigrant 

visa. 

ON BEHALF OF APPLICANT: ON BEHALF OF Sravzon: 

Donald Bottler, Esquire Sam L Feldman 

7080 Hollywood Boulevard Trial Attorney 

Hollywood, California 90028 (Brief filed) 

An order entered by the special inquiry officer on December 23, 

1968 excludes the applicant as a nonimmigrant alien who seeks 

admission without a valid noninunigrant visa pursuant to the 

provisions of section 212(a) (26) of the Immigration and Nationality Act (8 U.S.C. 1182 (a) (26) ). Counsel requests withdrawal of 

the applicant's application for admission in his notice of appeal 

(Form I-290A). 

* Modified. See, Matter of Vargas-Molina, Interim Decision No. 2069. 

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Interim Decision #1970 

We will first consider the issue of whether the applicant may 

withdraw her application for admission during the pendency of 

an appeal to this Board after the special inquiry officer has rendered a decision and entered an order excluding her. Counsel in 

his notice of appeal states that the applicant wishes to depart 

from the United States "without the stigma of [an order of] deportation" in order to apply for a student visa abroad and then 

reapply for admissidn to the United States "in [the] correct status, namely, that of an alien student." Counsel cites our decision 

in Matter of Estrada-Tena, 12 I. & N. Dec. 429 (1967), as authority for the withdrawal of an application for admission on ap 

peal to this Board. 

Our decision in Matter of Estrada-Tena (supra) concerned an 

alien whose counsel, during the course of the hearing before the 

special inquiry officer, attempted to withdraw his client's application for admission. The special inquiry officer refused to permit a 

withdrawal and excluded the applicant. The special inquiry officer 

certified the case to this Board for a determination of whether an 

alien may withdraw an application for admission where the hearing has been completed and nothing remains except the rendering 

of a decision and the entry of an order of exclusion. We held that 

in the absence of regulations to the contrary, Estrada-Tena did 

have the right to withdraw his application for admission. We reasoned that he was under no compulsion to enter the United States 

from Mexico; that the fact that he remained in Mexico accomplished the same result as if he were excluded and deported, without the necessity of seeking permission to reapply for, admission 

within a year after exclusion and deportation; and that prior to 

the special inquiry officer's decision, the option to press or withdraw the application for admission should rest with the applicant. 

The trial attorney in his brief raises the issue of whether an 

alien may withdraw an application for admission after an exclusion order has been entered by the special inquiry officer. He 

maintains that an alien should not be permitted to gamble on a 

decision and then be allowed to withdraw his application for admission if the decision turns out to be adverse. If such withdrawal is permissible as a matter of right, he reasons, the alien 

could undercut the exclusion order even after affirmance by this 

Board on appeal, by the simple expedient of moving to reopen for 

the purpose of exercising the right of withdrawal. 

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Interim Decision #1970 

This Board functions as an appellate administrative body pursuant to the regulations set forth in 8 CFR 3. Our jurisdiction in 

exclusion proceedings is governed by 8 CFR 3.1(b) (1), which 

states in substance that appeals will lie from "decisions of special 

inquiry officers in exclusion cases, as provided in Part 236 of this 

chapter." 8 CFR 236.4 states in pertinent part; 

Fituditv of Order. The order of the special inquiry officer shall be final except when a case has been certified as provided in Part 3 or Part 103 of this 

chapter, or when an appeal is taken to the Board of Immigration Appeals. 

8 CFR 3.4 permits the withdrawal of an appeal in exclusion proceedings both before and after it has been forwarded to the 

Board of Immigration Appeals_ It also provides that where the 

record has been forwarded, the request for withdrawal shall also 

be forwarded and "if no decision in the case has been made on 

appeal, the record shall be returned, and the initial devision [of 

the special inquiry officer] shall be final." It is clear from the regulations that once the special inquiry officer has made his decision 

and there is an appeal to this Board, withdrawal of the appeal 

before this Board has acted leaves the special inquiry officer's decision in effect. 

The applicant in the case before us seeks to withdraw her application for admission during the course of an appeal to this 

Board after the special inquiry officer has rendered his decision 

and entered an order of exclusion. We conclude that she does not 

have this right. The regulations do not provide for such withdrawal, and we see no reason why an applicant should be permitted to withdraw as of right after the special inquiry officer has 

decided the case. We realize, of course, that there may be circumstances where an alien's inability to withdraw the application 

may result in a gross miscarriage of justice. Where this is the 

case and the alien or his counsel requests relief, both the special 

inquiry officer and this Board may, where warranted, vacate an 

order of exclusion to permit the withdrawal of an application for 

admission. 

It is clear from the record before us that counsel seeks to withdraw the application for admission in order to avoid the excluding provisions of section 212 (a) (16) of the Act, which requires 

an alien who has been excluded from admission and ordered deported to wait one year before he can reapply for admission unless he first obtains the consent of the Attorney General. The 

mere fact that an alien who has been ordered excluded will need 

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Interim Decision #1970 

permission to reapply for admission does not ordinarily result in 

a gross miscarriage of justice, since a remedy exists by way of an 

application for permission to reapply in accordance with the procedure set forth in 8 CFA 212.2. 

The applicant is an unmarried female alien, 21 years of age, a 

native and citizen of France, who applied for admission to the 

United States as a nonimmigrant visitor at the port of San Francisco, California on October 22, 1968. She presented a valid 

French passport and a nonimmigrant B-1 visa which had been 

issued to her by the American Consul at Tangier, Morocco, on October 10, 1967, valid to October 10, 1971, for multiple applications 

for admission into the United States. 

The applicant testified that her purpose in coming to the 

United States at this time was to enter school in order to complete her training as a nurse (pp. 10 and 40). She further testified 

that while in Paris in September and October of 1968, she went 

to the American Consulate and inquired concerning a student visa 

to come to the United States to study nursing. She allegei that 

she was told by an employee at the consulate that such a visa was 

not necessary since the B-1 visa on her passport was still valid 

and she could come to the United States on that visa (pp. 24, 25, 

27) 

The special inquiry officer finds that the evidence with respect 

to the applicant's excludability under section 212 (a) (20) of the 

Immigration and Nationality Act is insufficient to establish that 

the applicant intends to remain in the United States permanently 

if she should be admitted at this time as a nonimmigrant. The evidence with regard to this issue is found in Exhibit 3, a sworn 

statement made by the applicant on October 24, 1968. The applicant.indicated at that time that she might desire to reside permanently in the United States after completion of her course of 

study as a nurse. She also stated that she intended to go to Canada after the completion of her studies to apply for an immigrant 

visa and then lawfully return to the United States as a permanent resident (pp. 19-24). The special inquiry officer concludes 

that it might be inferred from the applicant's sworn statement 

and her testimony during the hearing that her intention was that 

if admitted to the United States as a nonimmigrant, she would 

thereafter at some time apply for status as .a permanent resident 

alien under section 245 of the Immigration and Nationality Act, 

presumably after she had completed her course of study in nurs254 
Interim Decision #1970 

ing so as to be qualified for a preference. The applicant testified 

that she was unaware of the fact that it was possible to apply for 

permanent residence while in the United States (p. 23). We affirm the conclusion of the special inquiry officer that the applicant 

is not inadmissible under section 212 (a) (20) of the Immigration 

and Nationality Act. 

We will next consider the merits of the applicant's appeal from 

the decision and order of the special inquiry officer excluding her 

under the provisions of section 212 (a) (26) as an alien who is 

seeking to enter the United States as a nonimmigrant student 

without a nonimmigrant student visa. The applicant freely admits that she is seeking admission for the purpose of attending a 

school of nursing (p. 40). She presented a visa issued pursuant to 

the provisions of section 101(a) (15) (B) (1), which permits the 

entry of a nonimmigrant temporarily for business. She also concedes that she has been unable to obtain a certification of her eligibility for admission to a school of nursing (Form 1-20) because of the language barrier (p. 32). 

During the course of the hearing, the applicant applied for a 

waiver of the student visa requirement pursuant to the provisions 

of section 212 (d) (4) of the Immigration and Nationality Act. 

Under this section, the requirement for such a visa may be 

waived by the Attorney General, acting jointly *ith the Secretary of State "on the basis of unforeseen emergency in individual 

cases." (Emphasis supplied.) The "unforeseen emergency" relied 

upon by the applicant is based upon her testimony that the American Consul in Paris, France informed her "you don't have to 

apply for a student's visa because •you have a six-months tourist visa ... they [Immigration Service] don't mind if you go to 

school or as a tourist" (p. 25). The applicant testified that she 

fully informed the consul that she was returning to the United 

States to study nursing when she applied for a student visa (p. 

24). 

The special inquiry officer adjourned the hearing accorded the 

applicant on November 26, 1968 to afford counsel an opportunity 

to prepare an application for a waiver under section 212 (d) (4) 

of the Act and to secure a certification of acceptance by a school 

of nursing (p. 28). The trial attorney then of record requested a 

substantial length of time "to make inquiries of the American 

Consul at Paris, France" (p. 28). When the heafing was resumed 

on December 23, 1968, the trial attorney informed the special in255 
Interim Decision #1970 

quiry officer that no inquiry had been made to the consul in Paris, 

France by the former trial attorney and he stated for the record 

"that any inquiry or any answer to any inquiry ... would be irrelevant and not material and therefore the inquiry will not be 

made in this case." When questioned as to the basis for his position, the trial attorney replied. "Because the consular officer is 

presumed to act in accordance with applicable laws and regulations and inasmuch as this applicant does not have a [student] 

visa, anything the consular officer might have told this girl, the 

Service is not bound by" (p. 34). 

The trial attorney's position is supported by both the law and 

the regulations. Section 221 (h) of the Act provides in substance 

that nothing in the Act shall be construed to entitle any alien "to 

whom a visa or other documentation has been issued" to enter the 

United States if upon arrival at a port of entry the alien is found 

to be inadmissible by the Immigration Service. This section of the 

Immigration and Nationality Act also puts the alien on notice by 

a provision that, "The substance of this subsection shall appear 

upon every visa application." Furthermore, 22 CFR 41.45 precludes the issuance of a student visa to an alien applicant by a 

consular office abroad unless the applicant can show, inter Oa, 

that he "has been accepted for attendance by, an established institution of learning . . . which has been approved by the Attorney 

General . . . as evidenced by a presentation of Form 1-20 (certificate of eligibility) properly executed by the accepting school and 

signed by the alien . ." The applicant in this case did not have a 

"certificate of eligibility (Form 1-20) at the time of her alleged 

application for a student visa. 

The special inquiry officer has carefully weighed the evidence 

with regard to the circumstances concerning the applicant's request for a waiver of the requirement that she present a nonimmigrant student visa. He concludes that the application for a 

waiver should be denied as a matter of administrative discretion. 

We find in this record no "unforeseen emergency" in the applicant's case within the meaning of section 212(d) (4). We affirm 

the action taken by the special inquiry officer. 

The evidence establishes that the applicant is excludable under 

the provisions of section 212(a) (26) of the Act since she does not 

possess a (F-1) student visa and is applying for admission for 

the primary purpose of enrolling at an institution of higher 

learning in the United States. Furthermore, we conclude that the 

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Interim Decision #1970 

applicant cannot, as a matter of right, withdraw her application 

for admission at this stage of the proceeding. On this record, we 

conclude that withdrawal of the order of exclusion is not warranted. We affirm the order entered by the special inquiry officer 

and will dismiss the appeal. 

ORDER It Is directed that the appeal be and the same is 

hereby dismissed. 

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