Interim Decision #2015 

MATTER or TORBERGSEN 

In Deportation Proceedings 

A-18244859 

Decided by Board November 26, 1969 

Respondent, who possesses the requisite familial relationship, and who is deportable as one excludable at entry under section 212(a) (20) of the Immigration and Nationality Act because not an immediate relative as specified 

in his immigrant visa obtained on the basis of an invalid marriage (his 

United States citizen wife's prior marriage never having been terminated), comes within the purview of section 241 (f) of the Act, as 

amended, notwithstanding there was no fraud on his part (Matter of Lim, 

Int. Dec. No.,1947), and notwithstanding he was not in possession of a 

labor certification at time of entry (Castillo-Godoy v. Rosenberg, 415 F.2d 

1266 (C.A. 9, 1969) ). 

CHARGES: 

Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) 1—Excludable at entry for procuring documentation by willful misrepresentation under section 212(a) (19) of 

the Act. 

Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) 1—Excludable at entry—not immediate relative as specified 

in immigrant visa under section 201 (b) of the Act. 

)N BEHALF OF RESPONDENT: 

Dean A. Andrews, Jr., Esquire 

803 Maison Blanche Building 

New Orleans, Louisiana 70112 

(Brief filed) 

ON BEHALF OF SERVICE: 

Henry J. Scroope, Jr. 

Trial Attorney 

(Brief filed) 

The respondent, a native and citizen of Norway, appeals from 

n order entered by the special inquiry officer denying his motion 

) reopen and reconsider a decision of January 15, 1969, which 

nds the respondent deportable under the provisions of section 

41(a) (1) of the Act as an alien who was excludable at the time 

f entry because he was not an immediate relative as specified in 

is immigration visa under section 201(b) of the Act. The order 

itered on that occasion provided for the respondent's voluntary 

parture in lieu of deportation with the proviso that if he failed 

1 

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Interim Decision #2015 

to depart when and as required, the privilege of voluntary departure would be withdrawn without further notice and the respondent deported to Brazil or in the alternative to Norway. Exceptions have been taken to the denial of the motion. 

The respondent is a male alien, 26 years of age, who last 

entered the United States through the port of Los Angeles, California, on or about April 16, 1968. He was then admitted for per= 

manent residence upon presentation of an immigration visa issued to him as the spouse of a citizen of the United States. The 

evidence affirmatively establishes that the respondent's citizen 

wife was previously married and that her marriage has never 

been terminated. 

The special inquiry officer has found the respondent deportable 

under section 241(a) (1) of the Act as an alien who was excludable at the time of entry in that he was not entitled to an immediate relative status under section 201 (b) of the Act. Sections 

212 (a) and 241(a) of the Immigration and Nationality Act set 

forth the general classes of aliens who are either excludable as aliens ineligible to receive visas or deportable as aliens in the 

United States in violation of the immigration laws. Section 

241 (a) (1) provides for the deportation of an alien who "at the 

time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry." (Emphasis added.) There is no provision in section 212(a) of the Act for 

the exclusion of aliens "who are not immediate relatives as specified in the immigrant visa" under section 201 (b), as amended. 

The Act does provide for the deportation of an alien under section 241 (a) (1) who at the time of entry was excludable under 

section 212 (a) (20) as an immigrant "who at the time of application for admission is not in possession of a valid unexpired immigrant visa ... required by [the] Act" (section 212(a) (20), Immigration and Nationality Act). Since the respondent had obtained 

an immigrant visa on the basis of an invalid marriage, he was 

not in possession of a valid immigration visa at the time he applied for admission at Los Angeles, California on April 16, 1968. 

This Board under 8 CFR 3.1(d) is empowered to exercise such 

authority as is appropriate and necessary for the disposition of 

the case. The respondent is the father of a legitimate child born 

at New Orleans, Louisiana on April 21, 1968 (p. 5 of Ex. 3, pp. 8 

and 9, special inquiry officer's opinion). The special inquiry officer 

has found the respondent ineligible for the benefits of section 

241(f), because at the time of entry he was not "otherwise ad433 
Interim Decision #2015 

miscible" since he did not have a labor certification as required 

by section 212(a) (14) of the Act. The special inquiry officer also 

stated that the benefits of section 241 (f) are not available to the 

respondent because he has not been found deportable on the fraud 

charge laid under section 212(a) (19), relying on our decision in 

Matter of Lim, 12 I. & N. Dec. 671 (BIA, 1968). The special inquiry officer's conclusion on this issue was reached prior to the 

decision in Castillo-Godoy v. Rosenberg, 9 Cir., No. 22432 (August 29, 1969), and our decision of March 13, 1969 in Matter of 

Lim, Interim Decision No. 1947. 

Our reconsideration of Lim (supra), in light of the court's rulng in In re Yuen Lan Horn, 289 F. Supp. 204 (S.D. N.Y., 1968), 

ed to the conclusion that an alien who innocently entered the 

Jnited States as a nonquota immigrant without knowledge that 

he petitioning spouse had made false representations in the petiion for a nonquota visa comes within the purview of section 

41(f), notwithstanding the fact that the alien is not deportable 

,n the basis of a fradulent entry but only on a documentary 

harge. Castillo-Godoy v. Rosenberg (supra) held essentially that 

labor certification at the time of entry was a quantitative reuirement which, like quote limitations, was intended to be 

raived by section 241 (f) for aliens who entered the United 

tates on the basis of fradulent misrepresentations. 

Ordinarily, we would remand this case to the special inquiry 

Meer for the lodging of a proper charge at a reopened hearing. 

he facts in the respondent's case, however, place him squarely 

ithin our 1969 ruling in Matter of Lim (supra) and the Ninth 

ircuit's ruling in Castillo-Godoy v. Rosenberg (supra). The SoAtor General has declined to petition for certiorrari to review 

at decision, concluding that it is correct. We therefore accept 

e holding of the Ninth Circuit in that case and we will order 

e proceedings terminated. Our decision and order renders the 

spondent's motion moot. 

ORDER : It is ordered that the proceedings under the order to 

ow cause dated October 9. 1968 be and the same are hereby ternated. 

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