Interim Decision #1821 

MATFOR OF CiDFL 

In Deportation Proceedings 

A-14547666 

Decided by Board January 9, 1968 

Since the provisions of section 241(f) of the Immigration and Nationality Act, 

as amended, do not apply to trawl relating to a nonimmigrant entry, the benefits of that section are not available to respondent to waive her deportability 

based on entry with a nonimmigrant visa obtained by fraud. 

CHARGES : 

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

at entry under section 212(a) (19), procured documentation by fraud. 

Lodged: Act of 1052—Section 241(a) (5) [8 U.S.C. 1251(a) (5)3 —Convicted 

under Title 18, U.S.C., section 1546. 

ON BEHALF OF RESPONDENT : 

Nicholas Wai Yuen Char, Esquire 

942 Maunakea Street 

Honolulu, Hawaii 96817 

(Oral argument waived) 

ON BEHALF OF SERVICE: 

Irving A. Appieman 

Appellate Trial Attorney 

Donald B. Anderson • 

Acting Trial Attorney 

(Brief filed) 

This case is before the Board on certification from the special inquiry officer, who found respondent not &portal& on either charge 

and terminated proceedings. 

Respondent is a 21-year-old married female alien, native and citizen 

of the Philippines. She last entered the United States on October 7, 

1964 at Honolulu, Hawaii, as a nonimmigrant visitor, presenting a. 

passport and visa in the name of Romualda N. Vidad. This was admittedly not her true name, and to obtain her nonimmigrant visa she 

admittedly gave false information to the American Consul about, 

among other things, family ties in the Philippines, family members 

in the United States, and whether she had ever applied for a nonimmigrant visa before. The record before us does not show the period 

for which she was originally admitted as a visitor. 

In May 1965, an order to show cause was issued, alleging that respondent entered the United States with a passport and visa she had 

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Interim Decision #1821 

knowingly procured in a false name, and charging that she •was, therefore, deportable under section 241(a) (1) as one who at the time of 

entry was excludable for having procured. a visa or other documentation by fraud or willful misrepresentation under section 212(a) (19) 

of the Act. 

Deportability on the charge in the order to show cause was conceded 

at the first hearing, held on June 18, 1965. Counsel informed the special 

inquiry officer that on May 14, 1965 respondent had married a naturalized citizen of the United States and that a petition for nonquota 

status for her would be filed shortly, together with an application for 

adjustment under section 245 of the Act, coupled with an application 

under section 212(i) for a. fraud waiver. The hearing was adjourned 

to permit submission of these documents, which were received on 

July 20, 1965. 

The Service presented respondent's case to the United States Attorney for prosecution under section 1546 of Title 18 U.S.C., and an 

indictment was filed on January 27, 1966, charging respdndent with 

having "unlawfully obtained, accepted and received" a visa, "knowing 

the same to have been procured by means of false claims and statements 

and by fraud." When the indictment was Lied, respondent was in the 

seventh month of pregnancy, and the criminal proceedings were held 

in abeyance until after the birth of the child. In May 1966, after trial, 

respondent was found guilty as charged. She was ordered•o pay a fine 

of $800, imposition of sentence was suspended, and she was -placed on 

probation for a period of five years. . • 

A second hearing was held on May 11, 1967, and the Service lodged 

an additional charge of deportability, under section 241(a) (5), based 

upon the conviction. Respondent conceded deportability on the lodged 

charge. The hearing was closed without decision, the special inquiry 

officer stating that it was not yet certain to•what extent the decision 

would be affected by the Supreme Court ruling in the case of Imozigrrt. 

Lion and Naturalisation Bernice v. Errieo, 385 U.S. 214. He announced 

his intention of certifying his decision to this -Board if no 'precedent 

decision in point should be rendered prior to his, and also advised 

respondent of her appeal rights if he should deny her application: 

In his decision rendered on August 4, 1967, the special inquiry 

officer pointed out that the language of the order to show cause charge, 

relating to the securing of the nonimmigrant visa, was the very same 

language that appeared in section 241(f). He held it to be clear that 

Congress had Intended section 241(f) to apply to both immigrant and 

nonimmigrant visas, and to any alien in the United States charged 

with having obtained, a visa or entry by fraud. Since respondent had 

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Interim Decision #1821 

the requisite family ties and had been otherwise admissible, he ruled 

that the charge in the order to show cause could not be sustained. 

On the lodged charge, he stated: 

• • * The basis of the lodged charge was clearly the misrepresentation or 

fraud which is waived under section 241 (f) of the Act. The Immigration Service 

has consistently held that this section also waives any deportation charge 

resulting directly from such representation, regardless of the statute under 

which the charge is brought. Immigration and Naturalization Service v. Errtco, 

supra, Matter of 5—, 7 I. & N. Dee. 715, Matter of Y—, 8 L & N. Dec. 148. The 

lodged charge is therefore found not to be sustained. 

In a' further- statement on his disposition of the case, the special 

inquiry officer pointed out that while section 241 (f) waived deportability based on excludability for fraud or misrepresentation, it did not 

act to adjust respondent's status to that of an immigrant lawfully in 

the United States, and left her amenable to all applicable charges of 

deportability other than those resulting from the fraud or misrepresentation: Ire stilted 

• * • It appears that the Service can either proceed against the respondent 

on a charge based on her remaining in the United States for a longer period than 

that far she was admitted, or the District Director can adjust her status 

tinder section 245 of the Immigration and Nationality Act. Of course this issue 

not before us in these proceedings which will be terminated but certified to 

the Board of Immigration Appeals for Anal determination. 

- The Service urges reversal of the special inquiry officer's decision, 

contending that section:241(f) is not applicable to fraud in obtaining 

a nonimmigrant visa, and that Congress did not intend to cover, by 

section 241(f), the separate ground of deportability under section 

241(a) (5). • 

We do not believe it was ever contemplated or intended that section 

241(f.) should apply to fraud relating to a nonimmigrant entry. The 

history' of this section and its predecessor (section t of the Act of 

September 11, 1957) shows that its purpose was to excuse deportability 

for fraud or misrepresentation so that an alien need not be separated 

from his American citizen or resident alien parents, spouse or children. 

(Cf. H. Rep. 1088, 87th 03ng., 1st Sess.; H. Rep. 1199, 85th Cong., 1st 

Sess., 19a.) The misrepresentations constantly referred to were "place 

of birth, nationality, immigrant status, and the like * * *," (H. Rep. 

1199, supra), all material to entry or attempted entry for permanent 

residence, and not basic to a determination as to whether a visitor's 

visa should issue. Entry as a nonimmigrant visitor, by statutory definition, was not for the purpose of family reunification, for before 

such a visa, may issue, the alien must establish to the satisfaction of the 

consular officer that he has a residence in a foreign country which he 

has no intention of abandoning, and that he is visiting the United 

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Interim Decision #1824 

States temporarily for business or pleasure (section 101 (a) (15) (B), 

Immigration and Nationality Act). Further, there was no need for 

such a, waiver for a nonimmigrant visitor; the Act already contained 

a provision permitting the granting of a discretionary waiver of the 

excludability provisions of section 212(a) (19) to one seeking to enter 

as a nonimmigrant visitor (section 212(d) (8) ). The section was addressed to the need of the person who had already entered for permanent residence on a visa obtained by fraud or misrepresentation, 

who had dose family in the United States and who, if he were found 

deportable on that ground and required to leave the United States, 

would forever thereafter be debarred from returning other thau•as a 

temporary visitor. . . 

We hold, therefore, that respondent's deportability, based upon ob: 

taining a nonimmigrant visa by fraud, is not excused by the provisions 

of section 241(f), and the special inquiry officer's decision terminating 

these proceedings cannot stand. • Respondent is the spouse and parent of American citizens. 4 .,06tition for immediate relative status has already been approved on her 

behalf, and she has submitted an application for adjustment to permanent resident status under the provisions of seettOn 245, togithir 

with an application for a fraud waiver under section 212(i). No consideration was given to these applications by the special inquiryofficer 

because of his conclusion that respondent was not deportable as 

charged. Having found that respondent is deportable, we remand these 

proceedings for adjudication by the special inquiry okcii of respondent's applications for discretionary relief from deportation. 

ORDER: It is ordered that the decision of the. special inquiry 

officer terminating proceedings be and the same is hereby set aside. 

It is further ordered that these proceedings be remanded to the special inquiry officer for the purposes set forth above. 

563