Interim Decision #2251 

MATTER OF FEREIRA 

In Deportation Proceedings 

A-19909351-2 

Decided by Board December 14, 1973 

(1) Respondent, who maintains that he does not remember the eireumetaneeo 

surrounding the time, place, and manner of his last entry into the United 

States, has failed to sustain the burden of proof as to the nature of his entry 

required under section 291 of the Immigration and Nationality Act. In the 

absence of evidence in negate the presumption of unlawful status eatablishod 

by section 291 of the Act, the presumption applies and supports deportation on 

a charge of entry without inspection under section 241(a)(2) of the Act. 

(2) An alien must bear the burden of proof in establishing the applicability of 

section 241(f) of the Act, as amended, to his case. Since respondent has failed 

to establish that his last entry was accomplished other than surreptitiously, 

he has not carried his burden of proof to establish the applicability of the 

provisions of section 241(f) to his ease. 

CHARGES: 

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(aX2)I—Entered without 

inspection (respondent No. 1). 

Act of 1952—Section 241(aX2) [8 U.S.C. 1251(aX2)]—Nonimmigrantremained longer (respondent No. 2). 

ON BEHALF OF RESPONDENTS: David C. Marcus, Esquire 

215 West Fifth Street 

Los Angeles, California 90013 

The respondents have appealed from a decision of an immigration judge, dated September 11, 1972, which found them deportable, but granted them the privilege of voluntary departure. The 

appeal will be dismissed. 

The respondents are husband and wife. They are natives and 

citizens of Mexico. The female respondent has admitted the truth 

of the factual allegations contained in the Order to Show cause, 

but has denied deportability. She contends that the provisions of 

section 241(f) of the Immigration and Nationality Act exempt her 

from deportation. By her own admission she entered as a nonimmigrant. She has remained for a longer period than she was 

authorized and it is on this basis that the Service alleges deporta509 
Interim Decision #2251 

bility. Under these circumstances the benefit of section 241(f) is 

not available to her. Cabuco-Flores v. INS, 477 F.2d 108 (C.A. 9, 

1973); Matter of Mangabat, Interim Decision No. 2131 (B IA 1972). 

We therefore conclude that her deportability has been established 

by clear, convincing and unequivocal evidence. 

The male respondent was charged with being deportable for 

having entered the United States without inspection. At the 

hearing, the Service contended that his last entry into this 

country was effected surreptitiously. The male respondent admitted that one of his three entries had been accomplished in this 

manner, but asserted that he did not remember how he last 

entered. The Service did not introduce independent proof in this 

regard. In finding the male respondent deportable, the immigration judge relied on section 291 of the Act, which requires an 

individual in deportation proceedings to prove the time, place and 

manner of his entry into the United States. That section further 

specifies that if this burden is not sustained, the person "shall be 

presumed to be in the United States in violation of law." 

The male respondent maintains that he does not remember the 

circumstances surrounding the time, place and manner of his last 

entry. He obviously has not sustained his burden of proof under 

section 291. He has conceded that he is an alien, he has admitted 

making a surreptitious entry and he has failed to prove that his 

last entry was accomplished in any other manner. Consequently, 

the presumption established by section 291 becomes operative. 

Although that section of the Act does not specify the precise 

nature of the presumed unlawful status, for it to have any 

relevance the presumption must operate in conjunction with the 

provisions of section 241(a) of the Act. See Matter of IA, 12 I. & N. 

Dec. 293 (BIA 1967). We therefore conclude that the presumption 

extends to a charge under section 241(a) which relates to the 

"manner" in which an alien may have entered the country. 

In this case, there exists significant evidence that the male 

respondent entered surreptitiously. The Service was therefore 

justified in charging him with being deportable as an alien who 

entered without inspection. Since this charge relates to the "manner" of an entry, we hold that the presumption applies, and the 

male respondent, not having sustained his burden of proof, is 

deportable as charged. See Alt Chia Pang v. INS, 368 F.2d 637 

(C.A. 3, 1966), cert. denied, 386 U.S. 1037 (1967); Vlisidis v. Holland, 

245 F.2d 812 (C.A. 3, 1957); Matter of Ortega-Mojaro, 13 I. & N. Dec. 

838 (BIA 1970), affirmed, Ortega-Moharo v. INS, 441 F.2d 658 (C.A. 

9), cert. denied, 404 US. 886 (1971); Matter of Wong, 13 I. & N. Dee. 

820 (BIA 1971); Matter of R—S--- 37 I. & N. Dec. 271, 273 (A.G. 1956). 

In the absence of any evidence to negate the presumption, the 

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ilien is deemed to be here in violation of law, and we hold that this 

statutory mandate is sufficient to satisfy the burden of proof 

:.equirements set forth in Woodby v. INS, 385 U.S. 2'76 (1966). 

The male respondent has also raised the issue of the applicabilty of section 241(f) to his case. Section 241(f) is not a discretionary 

^emedy. Instead, that provision mandates that an alien who meets 

.ts conditions shall not be deported on any charge to which the 

section applies. Basically, section 241(f) will save an alien from 

leportation if: (1) the charge against the alien directly relates to 

iris procurement of entry or documentation by fraud or misrepresentation; (2) the alien was otherwise admissible at entry; and (3) 

the alien has one of several family ties to a United States citizen 

)r alien lawfully admitted for permanent residence. 

To a large extent these criteria involve information which is not 

readily available to the Government, but by its nature is known to 

any alien in question. Thus, it is the alien, and not the Service, 

who will be aware of any qualifying familial relationship he may 

possess. It is the alien who will have information regarding his 

past activities and residences, and therefore will know the facts 

relevant to an inquiry regarding the "qualitative" provisions of 

the Act. Since section 241(f) affords a benefit to aliens who would 

otherwise be deportable, and since the Service in general would 

not accurately be able to determine the applicability of this 

provision in the absence of an alien's cooperation, it would be 

inappropriate to require that the Service shoulder the burden of 

proof on this issue. Consequently, we hold that it is the alien who 

must bear the burden of proof in establishing the applicability of 

section 241(f) to his case. 

In this instance the male respondent's failure to establish that 

his entry was accomplished other than surreptitiously is of primary importance from the standpoint of section 241(f). Its importance stems from the fact that the benefit of section 241(f) is not 

available to one who entered surreptitiously. Monarrez-Monarrez 

v. INS, 472 F.2d 119 (C.A. 9, 1972). Since the male respondent has 

not resolved this major question regarding the nature of his entry, 

we must conclude that he has not carried his burden of proof to 

establish that he is entitled to the benefit of section 241(f). 

Finally, the respondents have failed to direct our attention to a 

single example of the other errors which they allege were committed by the immigration judge_ Moreover, we have found no 

impropriety which could have had an impact on the decision in 

this case. The decision of the immigration judge was correct. 

Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

Further order: Pursuant to the immigration judge's order, the 

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respondents are permitted to depart from the United States 

voluntarily within 30 days from the date of this order or any 

extension beyond that time as may be granted by the District 

Director; and in the event of failure so to depart, the respondents 

shall be deported as provided in the immigration judge's order. 

512