MATTER OF DJ' ---- 

In DEPORTATION Proceedings 

A-16547428 749.8

Decided by Board July 7, 1958 and March 10, 1959 

Decided by Attorney General February 26, 1959 

Act of September 11, 1957—Availability of waivers under section 5 and second 

part of section 7 to aliens ineligible for preexamination. 

(1) Aliens within the United States who are ineligible for preexamination 

cannot be granted advance waivers of inadmissibility under section 5 and 

the second part of section 7 of the Act of September 11, 1957 while they 

remain in the United States. 

(2) Native and citizen of contiguous territory, to whom preexamination procedures are inapplicable, must depart and apply for waivers at the time she 

makes application to enter the United States from her home country. 

CHARGES : 

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Has engaged In prostitution. 

Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1) I—Not in possession of valid visa. 

Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)7—Excluded 

and deported; no permission to reapply. 

Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Procured 

visa by willfully mistevruseaLlug material racts. 

BEFORE THE BOARD 

(July 7, 1958) 

Discussion: The Commissioner of Immigration and Naturalization asks that the Board certify its decision in this case to the 

Attorney General for review. 

The respondent, a 25-year-old married female, a native and citizen of Mexico, was admitted to the United States in February 

1956. She is married to a United States citizen. She is deportable 

on the grounds shown above. She is not eligible for suspension of 

deportation because she lacks the required residence; respondent 

must leave the United States. She will be barred from returning by 

the provisions of the Immigration and Nationality Act applying to 

those who were prostitutes and to those who have secured visas by 

fraud. However, sections 5 and 7 of Public Law 85-316 approved 

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September 11, 1957 permit the Attorney General to waive the 

grounds of inadmissibility. The question is whether the respondent 

may make the application in the United States and remain here 

until the application is decided, or whether she must go to Mexico 

to make it and remain those until it is granted. We has, ruled 

that the respondent may apply while in the United States. The 

Service would require her to depart from the United States to apply 

for the waiver. Then she would be required to submit the application for the waiver to the consul abroad and he would forward it 

to the Service for action (8 CFR 7.1). 

Under our ruling, the respondent may make the application for a 

waiver while she remains in the United States and she need not 

leave until the application is acted upon. If it is disapproved, she 

must depart. If it is approved, she will go to Mexico to apply for 

her visa. It is evident that if the respondent is permitted to remain 

in the United States while her application is processed there will 

be the minimum possible dislocation of family life and adjustment 

of status will be accomplished at the minimum expense. Also, there 

will be the best opportunity for correcting whatever deficiencies 

may appear in the application. 

The Service doss not desire to make all aliens leave the United 

States to apply for the waiver. It would permit applications for 

the waiver to be made in the United States by aliens who qualify 

for preexamination—that is, applications could be made by all but 

citizens of Canada, Mexico, or islands adjacent to the United States 

(8 CFR 235a.1). This distinction between aliens eligible for preexamination and aliens ineligible is made by the Service on the 

theory that the request for the waiver under Public Law 85-316 

must be made in the court of an application for admission to the 

United States; preexamination is considered an application for admission; there ie no other administrative device avellehla to slims 

in the United States to make an application for admission. We do 

not believe the Service position is correct. We see no connection 

between the waiver and preexamination, and we find no requirement 

that the request for the waiver must be made during an application 

for admission to the United States. 

The request for the waiver is not an application for admission. 

It is a request that certain barriers which stand in the way of the 

issuance of a visa and admissibility to the United Staes be waived. 

Application for admission will be made only if the waiver Is granted 

and only after the visa is issued. For many years, both under the 

7th proviso to section 3 of the Immigration Act of February 5, 1917 

(39 Stat. 875) and under section 212(c) of the present act (8 U.S.C. 

1182(c)), a similar relief was granted to aliens in deportation proceedings and to aliens in the United States who intended to depart 

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for visits abroad and then return to the United States. (See Matter 

of S—, 6 I. & N. Dec. 392.) A careful examination of the law 

and of congressional and administrative history revealed no reason 

for requiring natives of Canada, Mexico, or adjacent islands to leave 

their families to make an application for the waiver while natives 

of all other lands may apply while they are in the United States. 

On the contrary, we found that congressional desire to prevent needless 

family separation and administrative practice involving the grant of 

similar relief required that all eligible aliens be permitted to apply for 

the relief while they are in the United States. 

The Service emphasis upon preexamination requires examination 

of that procedure. Preexamination is an administrative device to 

permit aliens who are distant from their homelands to enter a convenient contiguous foreign territory to apply for a visa. It was 

created to prevent the hardships arising out of extended family 

separation and to minimize the financial burden which would arise 

if an alien had to return to his distant homeland to apply for a 

visa. Preexamination merely puts an alien from distant lands in the 

same position in regard to obtaining a visa as the alien from contiguous territory. A grant of preexamination does not remove the 

necessity of applying for a waiver if one is needed. Preexamination 

is available to aliens who are legally or illegally in the United States. 

It is applied fur and passed upon while the. alien romaine in the 

United States. Eligibility for preexamination is fixed not by law 

but by the Attorney General who can and has varied the classes from 

time to time. For administrative efficiency, and to make use of provisions of law relating to medical examinations, preexamination is 

regarded as part of the admission procedure. This is a fiction. 

Indulgence in the fiction is not called for by the nature of the application for a waiver under Public Law 85-316. However, if it is 

necessary to consider an application for a waiver under Public Law 

85-316 as part of the admission process, it would be no more and 

no less difficult a task than to so consider an application for preexamination. 

The Service motion states that the limitation it seeks to impose 

in waiver cases is no more illogical than the limitation which now 

denies citizens of Canada, Mexico and adjacent islands the right 

to preexamination. An examination of the assertion requires that 

it he rejected. Preexamination gives an alien the privilege of making application for a visa in Canada. There is no hardship in 

denying this right to one who can at will readily enter Canada 

(or a nearby foreign country) and apply for his visa. However, 

there is a lack of logic in denying Canadians, Mexicans and natives 

of adjacent islands the privilege of applying in the United States 

for a waiver under Public Law 85-316, because in their cases it will 

impose a hardship. It will result in their being subjected to ex70 
tended family separations and being saddled with the expense of 

maintaining separate establishments while these hardships will not 

be incurred by natives of the other countries. 

The fact that this respondent can freely enter a foreign contiguous territory to apply for a visa dues not justify saddling; her with 

the expense of a foreign stay of uncertain duration and the heartache 

of family separation when these evils can be avoided so easily. 

Order: It is ordered that pursuant to the authority contained 

in 8 CFR 6.1(h) (1) (iii) and at the request of the Commissioner of 

Immigration and Naturalization, the decision of the Board in this 

easy he certified to the Attorney General for review. 

BEFORE THE ATTORNEY GENERAL 

(February 26, 1959) 

Order: The decision of April 14, 1998, by the Board of immigration Appeals remanding this case to the special inquiry officer 

for investigation and decision concerning the alien's eligibility for 

relief is reversed and the Board is directed to proceed to its decision 

in the case. 

This ease is before me grenrchrnext with the provisions of 

CFR 3.1(h) (1) (iii) for review of the Board's decision. 

Charges requiring deportation of the alien, a native of Mexico, 

have been sustained but an unresolved issue concerns her eligibility 

for relief under the provisions of sections 5 and 7 of Public Law 

85-316, 85th Congress. In this connection, a decision rendered on 

June 18, 1958, by the United States District Court for the Eastern 

District of Michigan is dispositive. That Court held that the provisions of the law in question are available to aliens making application for admission to the United States, and as to aliens physically 

with.. theUnited Staten this means aliens eligible for pre...mination aminarata v. Sahli, 163 F. Supp. 125). See, to the same effect, 

Chabolla-Delgado v. Hoy, D.C. Calif. S.D., Cent. Div., Civ. No. 

361-58—BH, decided June 20, 1958; Puig p Garcia v. Murff, D.C. 

N.Y. S.D., Civ. 131-393, decided Dec. 23, 195S. 

The subject alien being a native of Mexico, a contiguous country 

to which preexamination procedures are not applicable under the 

regulations, is precluded from preexamination while she remains in 

the United States. Accordingly, she is ineligible for the relief in 

question except as she applies for it in connection with an application to enter the United States from Mexico. 

BEFORE THE BOARD 

(March 10, 1959) 

Discussion: The facts have been fully stated in previous orders. 

By order dated April 14, 1958, we found the respondent deportable 

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upon the grounds stated above. We held that respondent must 

depart from the United States since there is no administrative power 

to adjust her status while she remained in the United States. 

Iteepontient desires to return Le the United Stairs to make her home 

here with her United States citizen husband. She is inadmissible 

to the United States because she obtained a visa by fraud and 

because she engaged in prostitution at one time. These grounds of 

inadmissibility may be waived under sections 5 and 7 of Public 

Law 85-316. We ordered reopening of proceedings to determine 

whether respondent was eligible for relief under Public Law 85-316. 

This we did in the belief that an alien in the United States could 

be given a waiver of the grounds of inadmissibility in deportation 

proceedings so that the alien could depart and readily apply for a 

visa. The Commissioner took issue with this ruling. ills position 

is that the relief may be granted in advance in the United States 

but only to an alien who is eligible for preexamination, and that 

since respondent, a native of Mexico, a contiguous country, is not 

eligible for preexamination, she cannot be given relief while she is 

in the United States but must depart and apply for it outside the 

United States. 

At the Commissioner's request the issue was referred to the Attorney General for review. The Attorney General now has ruled 

that respondent, a person precluded from preexamination, is ineligible for relief "except as she applies for it in connection with an 

application to enter the, United States from Mexico." Our order 

of April 14, 1958, remanding the case to the special inquiry officer 

was reversed and we were directed to proceed to a decision in the 

case. Respondent's deportability is established. She is ineligible 

for administrative relief. Her appeal must be dismissed. 

Order! It is ordered that the appeal of the respondent be and 

the same is hereby dismissed. 

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