CORDERO-SANTANA

Interim Decision #1694

Maumee OF CORDERO-SAITTANA

In Deportation Proceedings
A-12618549
Decided by Board February 13, 1967
Notwithstanding respondent, who is deportable on a charge of visa fraud and
misrepresentation, is also deportable on documentary charges of "no visa" and
"no passport", he is not precluded by such documentary charges from estab-
listing he was "otherwise admissible" for the purposes of a waiver of the
grounds of deportation under section 241(f) of the Imellgratien and Na-
tionality Act, as amended, since any ground of deportation (regardless of the
section of statute under which brought) which results directly from the visa
fraud or misrepresentation is encdmpaased within the purview of section
241(f) of the Act, provided the alien has the requisite relationship to a "United
States citizen or resident alien.
()FUDGES

Qrder : Act of1952r-Section 241(a) (1) [8 11.8.0. 1251(i) (1)]—Excludable
at time of entry-r-Viaa procured by fraud or mierep-
. resentation.
Act of 1052 sootioa 241(a) (1) 'f5 ;DS 0. 1251(a) (1)7 Excludable
— —

at time of entry—No passport.
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (I)I—Excludable
at time of entry—No valid immigrant visa.
Brststr or Snsvroz: Irving A. Appleman
Appellate Trial Attorney
Stephen Ai. Suffix
Trial Attorney
(Brief filed)
. •

The case comes forward on appeal by the Service from the order
of the special inquiry officer dated June 3, 1965 terminating the pro-
ceedings.
The respondent is a native and citizen of Mexico, 43 years old, male,
who was admitted to the United States for permanent residence on
July 4, 1961 on the basis of a nonquote, immigrant visa issued to him
on July 3, 1961 at the American Consulate General at Tijuana, B.C.,
Mexico on July 3, 1961, as a native of the western hemisphere. A Mex-

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lean passport was not required under the State Deparment regulations
because he had been married to a United States citizen, Neomia
Tarkington, on March 7, 1960.
However, the record establishes that the respondent had previously
been married on October 28, 1943 to Maria Isabel Marcado-Garcia at
Sayula, Jalisco, Mexico and that four children were born of this mar-
riage. He resided with Maria from 1942 until he entered this country
as an agricultural laborer in 1952, did not live with her thereafter but
continued to support their children. On November 18, 1964 his mar-
riage to Maria was terminated by divorce and he remarried Neomia
on May 21, 1965.
In his application 'for the immigrant visa executed before the Amer-
ican Vice Consul on July 3, 1961, the respondent stated that he vats
married only once, that his wife's name was Neomia and that he had
no children. Although the respondent was by birth nonquota, these
false statements are regarded as material inasmuch as at the very least
the misrepresentations choked off a relevant line of inquiry which
might have resulted in a proper determination of excludability since
it would have led to the discovery of adultery and bigamy and deser-
tion of the first wife.' The charge of excludability based upon the
visa procured by fraud or misrepresentation is sustained.
The special inquiry officer has terminated proceedings on the theory
that the second charge contained in the order to show cause and the
lodged charge, which are documentary charges, all arose out of the
same fraud or misrepresentation. The special inquiry officer applied
section 241 (1) of the . Immigration and Nationality Act which
provides: -
The provisions of this section relating to the deportation of aliens within the
United States on the ground that *boy were excludable at time of entry as
aliens who have sought to procure, or have procured visas or other documenta-
tion, or entry into the United States by fraud or misrepresentation shall not
apply to an alien otherwise admissible at the time of entry who is the spouse,
parent, or a child of a United States citizen or of an alien lawfully admitted for
permanent residence.
The special inquiry officer concluded that on the basis of his present
marriage to a United States citizen he comes within the ameliorating
provisions of section 241(f) of the Immigration and Nationality Act,
as amended, that the waiver in that section also covers other deporta-
tion grounds flowing directly from the fraud or misrepresentation, and
terminated proceedings upon the basis of the 241(f) waiver.
Consideration of the case on appeal was held in abeyance pending the
outcome of the appeal to the Supreme Court in Er, ioo v. Immigration
I Matter of 8— and 13
- 0 , 9 I.* N. Dec. 488 (A.G., 1981 ).
—

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and Naturalization Service (9th Circuit) and Scott v. Immigration
and Naturalization Service (2d Circuit) which reached diametrically
opposed conclusions on the meaning of the term "otherwise admissible
alien" contained in section 241(f) of the Immigration and Nationality
Act. The Supreme Court decision was handed down December 12, 1966
and is reported in 385 U.S. 314.
At the-outset the Supreme Court noted that even the Government
agrees that section 241(f) cannot be applied with strict literalness.
Under the literal interpretation which would involve a violation of
section 212(a) (19) of the statute, an alien who entered by fraud could
be deported for having entered with a defective visa or other docu-
mentary irregularities even if he would have been admissible if he
had not committed the fraud. Such an interpretation would be ad-
mittedly inconsistent with the manifest purpose of the section and the
administrative authorities have consistently held that section au(t)
waivee any deportation uharYe that results directly' from the misrep-
resentation regardless of the section of the statute wader which the
charge was brought, provided that the alien was "otherwise admissible
at the time of entry."
The Court traced the parent comparable legislation, namely, the
Displaced Persons Act of 1948 and section 7 of the 1957 Act. The
Court held that the language contained in the 1957 Act would be
meaningless if an alien who committed fraud for the purpose of evad-
ing quota. restrictions would have been . deportable as "not oth.erwiss
admissible at time of entry."• Congress must have felt that aliens who
evaded quota restrictions by fraud would be "otherwise admissible at
time of entry" or it would not have found it necessary to provide fur-
ther that., in the case of an alien not possessing a close familial rela-
tionship to a 'United States citizen or lawful permanent resident, the
fraud must not be for the purpose of evading quota restrictions. The
Court felt its conclusion was reinforced by the fact that Congress fur-
ther specified that the aliens who were not close relatives of United
States citizens must establish that their fraud was not committed for
the purpose of evading an investigation. The Court concluded that ele-
mentary principles of statutory construction led to the conclusion that
Congress meant to specify two specific types of fraud that would leave
an alien "otherwise admissible" but that it would nonetheless bar relief
to those aliens who could not claim relationship with a United States
citizen or alien lawfully admitted for permanent residence, i.e.; fraud
to evade quota restrictions and fraud to &Void. investigation.
The Court went on to state that the construction of the statute that
it adopted in these eases was further reinforced when the section was
regarded in the context of the 1957 Act. The fundamental purpose
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of this legislation was to unite families. The Act principally granted
relief to persons who would be temporarily or permanently separated
from their nearest relatives and the strict requirements of the Im-
migration and Nationality Act, including the national quotas, were
not relaxed for them. It was wholly consistent with this purpose for
Congress to provide that immigrants who gained admission by mis-
representation, perhaps many year ago, should not be deported be-
cause their country's quota was oversubscribed when they entered
if the effect of deportation would be to separate a family composed
in part of an American or a lawfully permanent resident. The Court
went on to say that any doubts, even in a deportation statute, should
be resolved in favor of the alien and concluded that to give meaning
to the statute in the light of its humanitarian purpose of preventing
the breaking up of families composed in part at least of American
citizens, the conflict between the Circuits must be resolved in favor
of the aliens, affirmed the Enrico decision and reversed the Scott
decision.
In the instant case the documentary charges flow from and are
a direct result of the fraud charged in the order to show cause.. 2 The
Supreme Court in Enrico, etc.fhas held. that section 241(f) waives
any deporiation charge:that results.directly from the mietrepresentaL
tion regardless of the section of the statute under which the charge
was brought provided that -the alien was ootherwise admissible -at
time of entry?' The Court emphasized that-in the- case of persons
possessing the necessary familial ties, and having in mind that the
fundamental purpose of the legislation was to unite families and to-
give moaning to the statute in the light of its humanitarian purpose-
of preventing the breakup of families composed in part at least of
American citizens, immigrants who gained admission by misrepre-
sentation should not be deported because their quota was oversuh-
scribed. The Court held that the documentary charges relating to-
the fraud, in the light of the humanitarian purpose of the statute.
and its historical-background, should be waived. The Supreme Court
decision confirms that the proceedings were properly terminated by
the special inquiry officer.
ORDER: It is ordered that the appeal of the Service from the-
decision of the special inquiry officer terminating the proceedings be-
and the same is hereby dismissed. .
'Where a no passport charge is linked to a no visa - charge by a common-
ground of misrepresentation and the no visa charge is not sustained, the no
passport charge also falls. Matter of Boa, 16 L & N. Dee. 87.

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