Interim Decision #2393 

MATTER OF MUNGUIA 

In Deportation Proceedings 

A-13715070 

A-20018896 

Decided by Board May 5, 1975 

Where the Service charged deportability under the provisions of section 241(aX1) of the 

Immigration and Nationality Act, predicated on excludability under section 212(a)(20) 

of the Act, in that respondents did not possess valid immigrant visas at the time of 

application for admission into the United States, they are not entitled to the benefits of 

section 241(f) of the Act. The Service is not required to charge deportability under 

212(a)(19) of the Act, based on fraud. 

CHARGE: 

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

immigrant not in possession of valid unexpired immigrant 

visa under section 212(a)(20) (8 U.S.C. 1182 (a)(20)) (both 

respondents). 

ON BEHALF OF HESPONEENTs: ON EnnALr or SERVICE! 

James Michael Hoffman, Rep. Bernard J. Hornbach 

582 Market Street, Room 519 Trial Attorney 

San Francisco, California 94104 

The respondents have appealed from the August 1, 1974 decisions of 

an immigration judge ordering their deportation to Mexico. The appeal 

will be dismissed. 

The respondents, husband and wife, are natives and citizens of 

Mexico. The Service alleges that they are deportable under section 

241(a)(1) of the Immigration and Nationality Act as aliens who were 

excludable at entry under section 212(a)(20), because they lacked the 

proper documents for admission as immigrants. The respondents have 

conceded the truth of the factual allegations set forth in the orders to 

show cause. On appeal they challenge the immigration judge's decisions 

only on the ground that section 241(f) saves them from deportation on 

the charge alleged by the Service. 

The record indicates that the male respondent entered the United 

States under a false claim to United States citizenship. The female 

respondent appears to have gained admission either under a similar 

false claim to citizenship or upon presentation of a holder crossing card 

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Interim Decision #2393 

belonging to someone else. Neither respondent has ever been lawfully 

admitted for permanent residence. 

We have concluded, on the basis of the Supreme Court's decision in 

Reid v. INS, 420 U.S. 619, 43 U.S.L.W. 4387 (March 18, 1975), that the 

respondents are not entitled to the benefits of section 241(f) of the Act. 

In Reid the Supreme Court held that section 241(f) does not benefit an 

alien who has entered the United States under a false claim to United 

States citizenship and who is charged with deportability under section 

241(a)(2). In reaching this decision, the Court indicated that except for 

the eircuma.:,ances involved in INS v. Errico, 885 U.S. 214 (1966), 

section 241(f) does not apply to a section 241(a)(1) ground of deportability predicated on any provision of section 212(a) other than subsection 

(19). 

The respondents are not charged with deportability via section 212-

(a)(19); their charge of deportability is predicated on section 212(a)(20). 

They are not entitled to the benefit of section 241(f). 

The result reached by the immigration judge was correct. The appeal 

will be dismissed. 

ORDER: The appeal is dismissed. 

Irving A. Appleman, Board Member, concurring opinion. 

In Reid' v . INS, 420 U.S. 619, 43 U.S.L.W. 4387 (March 18, 1975), 

relied on in this ease, the Court was concerned with a charge based on 

Section 241(a)(2), entry without inspection by false claim of United 

States citizenship. Here, the alien entered by false claim of United 

States citizenship but the charge is under section 241(a)(1) excludable at 

time of entry as an immigrant not in possession of an immigrant visa, as 

required by section 212(a)(20). 

Reid v. INS, supra, does not purport to overrule INS v. Errico, 385 

U.S. 214. Rather, It distingaishes, in that in Errico the charge was 

based on excludability at the time of entry. Thus the Court in Reid 

speaks of Errico as ". . . extending the waiver provision of section 241(f) 

not only to deportation based on excludability under section 212(a)(19), 

but to a claim of deportability based on fraudulent misrepresentation in 

order to satisfy the requirements of section 211(a). . . . the provisions of 

section 241(1) were intended to apply to some Misrepresentations that 

were material to the admission procedure." 

Reid is not without' its ambiguities, and there is a question, which 

need not be here resolved, whether section 241(f) must be granted in a 

case which is comparable to Errico under the present law. However, I 

agree with my fellow membeis that in the light of Reid, section 241(f) is 

not available to an alien who has completely frustrated the admission 

procedure by a false Claim of -United States citizenship', regardless of the 

charge used in the case.' 

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