TIJAM

Interim Decision #3372

In re Lumen Berina TIJAM, Respondent

File 41 236 021 - Los Angeles

Decided December 10, 1998

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) In making the discretionary determination on a waiver of deportability pursuant to sec-
tion 241(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(H) (1994),
an Immigration Judge should consider the alien’s initial fraud or misrepresentation in the
overall assessment of positive and negative factors.

(2) The Board of Immigration Appeals declines to follow the policy set forth by the
Commissioner of the Immigration and Naturalization Service in Matter of Alonzo, 17 I&N
Dec. 292 (Comm’r 1979), that the underlying fraud or misrepresentation for which the alien
seeks a waiver should be disregarded.

Charles M. Miller, Esquire, Studio City, California, for respondent

A. Ashley Gambourian, Assistant District Counsel, for the Immigration and Naturalization Service

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEIL-
MAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, GUENDELSBERG-
ER, JONES, GRANT, and SCIALABBA, Board Members, Concurring and
Dissenting Opinions: VILLAGELIU, Board Member; ROSENBERG, Board Member.

GUENDELSBERGER, Board Member:

In a decision dated August 18, 1995, an Immigration Judge found the
respondent deportable, denied her a waiver of deportability under section
241(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. §
1251(a)(1)(H) (1994),1 found her statutorily ineligible for suspension of

1
Since amendments made by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 309-546 (“IIRI-
RA”), are not currently applicable to the case before us, except where otherwise noted, refer-
ences herein are made to the Immigration and Nationality Act as it existed prior to IIRIRA’s
enactment, Section 241(a)(1)(H) has been renumbered as section 237(a)(1)(H) of the Act, 8
U.S.C. § 1227(a)(1)(H) (Supp. II 1996), by the IIRIRA.

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deportation under section 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1)
(1994), and denied her the privilege of voluntary departure in lieu of
deportation to the Philippines under section 244(e) of the Act. The respon-
dent has appealed from that decision. The respondent’s request for oral
argument is denied, 8 C.F.R. § 3.1(e) (1998). The record will be remanded
to the Immigration Judge for further proceedings.

I. ISSUES ON APPEAL

The respondent conceded deportability on all the charges against her,
including a charge of fraud. She claims, however, that the fraud was based
on an innocent misrepresentation. On appeal the respondent has challenged
the Immigration Judge’s findings that she did not merit a section
241(a)(1)(H) waiver in the exercise of discretion and that she was statutori-
ly ineligible for suspension of deportation and voluntary departure. In addi-
tion, she has filed a motion to reopen the proceedings and remand the record
to the Immigration Judge to allow her to apply for adjustment of status pur-
suant to section 245 of the Act, 8 U.S.C. § 1255 (Supp. II 1996).
Addressing the respondent’s request for a waiver under section
241(a)(1)(H) of the Act, we find it appropriate to remand the record to the
Immigration Judge for further proceedings. Based on the recent decision
from the United States Supreme Court in INS v. Yueh-Shaio Yang, 519 U.S.
26, 117 S. Ct. 350 (1996), we find it appropriate to revisit the issue of the
relevant factors to consider in exercising discretion in section 241(a)(1)(H)
cases. Specifically, for the reasons set forth below, we decline to limit the
factors we may consider in the exercise of discretion, and therefore, we
decline to follow the holding in Matter of Alonzo, 17 I&N Dec. 292
(Comm’r 1979). In regard to the other forms of relief requested by the
respondent, we find that upon remand to the Immigration Judge the respon-
dent may pursue any relief available to her.

II. WAIVER OF DEPORTABILITY PURSUANT
TO SECTION 241(a)(1)(H)

A. Factual Background

The record reveals that the respondent, a 43-year-old native and citizen
of the Philippines, entered the United States as a lawful permanent resident
on March 14, 1987, with an immigrant visa issued to her as the unmarried
daughter of a United States citizen (her now deceased father). On December
23, 1989, the respondent visited the Philippines and was married in a reli-
gious ceremony.

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On March 17, 1992, the respondent filed an Application to File Petition
for Naturalization (Form N-400). On the application, the respondent listed
her 1989 marriage as her only marriage, She also listed four children on the
application, two born in the United States subsequent to her entry as a law-
ful permanent resident, and two born in the Philippines prior to her immi-
gration. The respondent had failed to disclose the two children born in the
Philippines on her earlier application for an immigrant visa.
At an interview conducted on September 15, 1993, as part of the
respondent’s application for naturalization, the respondent, under oath,
informed the immigration examiner that she did not include her two eldest
children on her visa application because they were born out of wedlock and
she did not want the Immigration and Naturalization Service to investigate
her. She also told the immigration examiner that she had only one marriage
which occurred in 1989. The immigration examiner confronted the respon-
dent with a marriage contract dated January 9, 1982, which indicated that
the respondent and her husband were married in a civil ceremony on that
date. The immigration examiner also stated that the Service found birth cer-
tificates for the respondent’s eldest children, which indicated that they were
legitimate. The respondent had submitted birth certificates for these chil-
dren, which stated that they were illegitimate. According to the transcript of
the naturalization interview contained in the record, the respondent failed to
provide the immigration examiner with an explanation why she concealed
her first marriage. On September 17, 1993, the respondent withdrew her
naturalization application.2
On November 3, 1994, the respondent was served with an Order to
Show Cause and Notice of Hearing (Form I-221), charging her with
deportability. At her deportation hearing held on August 16 and 18, 1995,
the respondent, her nursing supervisor, and an expert witness in the area of
clinical social work testified on the respondent’s behalf. Regarding the 1982
marriage contract, the respondent testified that she did, in fact, have a civil
marriage ceremony on January 9, 1982. She reiterated, however, that she
did not think that the first civil marriage of 1982 was valid because she and
her husband asked the person who performed the civil ceremony not to
record the marriage. She stated that she and her husband decided to get a
marriage contract without actually getting married so that her Saudi
Arabian employers would not fire her when they found out that she was
pregnant. She again stated that she did not include her two eldest children
on her immigrant visa application because she believed that they were ille-

2
The respondent reapplied for citizenship on October 27, 1993, and was interviewed in
conjunction with that application on May 25, 1994. On November 3, 1994, deportation pro-
ceedings were initiated against the respondent. On July 10, 1995, the respondent had a final
hearing regarding her naturalization application before a United States district court judge.
The judge dismissed the application without prejudice due to the pending deportation case.

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gitimate. She also denied any knowledge of the second set of birth certifi-
cates showing that the two eldest children were legitimate, which were sub-
mitted by the Service. She indicated that it was not her signature on those
birth certificates.
Both the expert witness and the respondent testified that the respon-
dent’s United States citizen son, who is 10 years old, suffers from a learn-
ing disability. They both stated that it would be in the best interest of the
child to remain in the United States, where special programs are available
to him to deal with his disability. The respondent also stated that she did not
think that her son could receive special assistance for his disability in the
Philippines. She also testified that she was concerned about her children’s
health in the Philippines, especially since they would no longer have access
to her health care coverage, and because her son has adverse reactions to
mosquito bites.
Both the respondent and the expert witness testified to the fact that the
respondent’s United States citizen mother suffers from a blood disorder
called polycythemia. The respondent testified that, as a registered nurse, she
is in a position to monitor her mother’s blood and take her to the doctor. She
stated that although she and her mother live with her other siblings, she
cares for her mother because of her medical background.
The respondent’s nursing supervisor testified that the respondent had
been a clinical nurse at Holy Cross Medical Center since 1987. She stated
that the respondent was in charge of a post-intensive care unit for trauma
and cardiopulmonary patients and, at times, supervised other nurses in her
unit. The supervisor testified that the respondent did “excellent work,” was
“trustworthy,” and was an “industrious person.”
The record reveals that the respondent has been employed as a regis-
tered nurse at Holy Cross Medical Center since May 4, 1987, and at the
All Saints Health Care Center since May 19, 1993. She makes a good
salary and is able to contribute financially to her mother’s care and to the
rent of the condominium that she shares with her siblings and her mother.
She also sends money to her husband and children in the Philippines. She
has consistently paid her income taxes and has no criminal violations. The
respondent also volunteers at her local church. According to the record
before us, to date, the respondent has not filed a visa petition for her hus-
band or her two children in the Philippines.
The respondent claims on appeal that the immigration examiner
coerced her into withdrawing her naturalization application by threatening
to deport her. She contends that he would not allow her to provide an expla-
nation for the existence of the 1982 marriage contract. The respondent
asserts that she and her husband never intended to record the civil marriage.
In fact, she claims that they paid the preparer of the marriage contract extra
money to prepare the contract, but to not file it. She states that they had the
contract prepared because she was pregnant, and she feared that her Saudi

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Arabian employer would fire her if she had a child out of wedlock. The
respondent also states that she believed that the marriage contract was not
valid because “it was predated, had an invalid license, lacked witnesses and
a witness signature.” She contends that she first learned that the 1982 mar-
riage contract was recorded when the immigration examiner showed her the
document at her continued naturalization interview.

B. The Exercise of Discretion

In order to demonstrate eligibility for relief under section 241(a)(1)(H)
of the Act, the respondent must establish that she is statutorily eligible and
that she merits relief in the exercise of discretion.3 The Immigration Judge
found, and we agree, that the respondent is statutorily eligible for a waiver.
Thus, the only issue is whether the Immigration Judge properly denied the
respondent’s request for relief in the exercise of discretion.
The question whether to exercise discretion favorably necessitates a
balancing of an alien’s undesirability as a permanent resident with the
social and humane considerations present to determine whether a grant of
relief is in the best interests of this country. Adverse factors may include the
nature and underlying circumstances of the fraud or misrepresentation
involved; the nature, seriousness, and recency of any criminal record; and
any other additional evidence of the alien’s bad character or undesirability
as a lawful permanent resident of the United States. Favorable considera-
tions may include family ties in the United States; residence of a long dura-
tion in this country, particularly where it commenced when the alien was
young; evidence of hardship to the alien or her family if deportation occurs;

3
Section 241(a)(1)(H) provides:

The provisions of this paragraph relating to the deportation of aliens within the United
States on the ground that they were excludable at the time of entry as aliens described
in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the
Attorney General, be waived for any alien (other than an alien described in paragraph
(4)(D)) who—

(i) is the spouse, parent, son, or daughter of a citizen of the United States or
of an alien lawfully admitted to the United States for permanent residence; and

(ii) was in possession of an immigrant visa or equivalent document and was
otherwise admissible to the United States at the time of such entry except for
those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of
section 212(a) which were a direct result of that fraud or misrepresentation.

A waiver of deportation for fraud or misrepresentation granted under this subpara-
graph shall also operate to waive deportation based on the grounds of inadmissibility
at entry directly resulting from such fraud or misrepresentation.

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a stable employment history; the existence of property or business ties; evi-
dence of value and service to the community; and other evidence of the
alien’s good character. See Hernandez-Robledo v. INS, 777 F.2d 536 (9th
Cir. 1985); see also Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA
1996).
The record before us presents a complicated set of facts in which the
respondent has presented significant equities, but in which there also exist
serious adverse factors. In the respondent’s favor, we find that she has sub-
stantial family ties in the United States. She has been in the United States
for more than 10 years and has been steadily employed since her entry.
Because of her steady employment history, the respondent is able to provide
financially for her husband and her two children in the Philippines.The
respondent’s mother is also in need of financial and medical support and
care, to which the respondent contributes. One of the respondent’s United
States citizen children has a learning disability and may have difficulty
adjusting to life in the Philippines. Moreover, both of the respondent’s
United States citizen children have spent the formative years of their lives
in the United States. Thus, the respondent’s deportation may have a signif-
icant impact upon her United States citizen children.
There are, however, serious adverse factors in the record. The respon-
dent concealed in her immigrant visa application that she was married and
entered the United States as the unmarried daughter of a United States cit-
izen, despite having been married in a civil ceremony on January 9, 1982.
She also failed to disclose that she had two children in the Philippines when
she filed her application for an immigrant visa.
Of particular significance to us are the discrepant documents in the
record. The respondent, under oath, both at her naturalization interview and
at her deportation hearing, contended that her 1982 civil marriage was
invalid, although there is what appears to be a valid marriage contract in the
record. The respondent continued to make this assertion on appeal without
presenting any evidence to support her assertion. In addition, the Service
alleges that the birth certificates submitted by the respondent for her two
children in the Philippines are fraudulent, as they state the children are ille-
gitimate, whereas the Service found birth certificates for the children show-
ing them as legitimate. It is unclear from the record, however, whether the
respondent’s birth certificates are, in fact, fraudulent.
The Immigration Judge explicitly found that the respondent “lied to the
Immigration Officer during her naturalization interview.” Making false
statements under oath during the naturalization process is an extremely seri-
ous adverse factor. United States citizenship is a uniquely significant status,
and the integrity of the naturalization process is a matter of profound impor-
tance, both to present United States citizens and to aliens who hope to
become citizens of this country, as well as to the Government.

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A finding of false testimony under oath, given during the course of a
hearing in which relief from deportation under section 241(a)(1)(H) is
sought, is also considered an extremely serious adverse factor. Although the
Immigration Judge remarked in his decision that he detected a “basic decep-
tiveness before me in court” and a “pattern of deception” in the respon-
dent’s “conduct during her hearings and during her testimony,” he did not
make an explicit finding that the respondent gave false testimony during her
deportation hearing. In particular, it remains unclear from the record before
us whether the Immigration Judge accepted or rejected the respondent’s
explanations regarding the 1982 marriage contract and the double set of
birth certificates for the eldest two children, which contain discrepant infor-
mation as to whether they were born in or out of wedlock.
We remain uncertain, after examining the record before us, whether the
Immigration Judge made a finding that the respondent testified falsely dur-
ing the course of the deportation hearing, and, if so, whether appropriate
weight was afforded such a finding. Because of the importance of a clear
ruling on the issue of “false testimony” during the course of the deportation
proceeding as to the birth certificates and the 1982 marriage, we find it
appropriate to remand the record to the Immigration Judge for a determina-
tion of the authenticity of the birth certificate submitted by the respondent
for her two eldest children and a finding as to credibility of the respondent’s
explanations regarding these documents. Upon remand, the parties may
present any additional evidence as is appropriate.

C. INS v. Yueh-Shaio Yang

Subsequent to the Immigration Judge’s decision in this case, the United
States Supreme Court issued a decision in INS v. Yueh-Shaio Yang, supra. In
Yang, the Supreme Court addressed the issue of the exercise of discretion in
section 241(a)(1)(H) waivers, specifically, which factors could be consid-
ered in making such a determination. On January 16, 1997, we requested
the parties to submit supplemental briefs in the instant case, addressing the
question of the exercise of discretion regarding the respondent’s section
241(a)(1)(H) application in light of the recent Supreme Court decision in
Yang. In regard to this general question, we asked that the parties also
address what impact, if any, the Yang decision had on the Service’s policy,
as set forth in Matter of Alonzo, supra, of disregarding the underlying fraud
or misrepresentation for which the respondent is deportable, i.e., the initial
fraud, in making the waiver determination. Both parties responded to our
request by filing supplemental briefs.
Based on the Supreme Court’s decision in Yang, we find it appropriate to
revisit the issue of the relevant factors to be considered in exercising discre-
tion in section 241(a)(1)(H) cases. Specifically, we will address the issue of
considering the underlying, or initial, fraud or misrepresentation for which

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the respondent is deportable in making the waiver determination. See Matter
of Alonzo, supra. Such a discussion is appropriate to provide guidance to the
Immigration Judge in the instant case on remand, and to other Immigration
Judges and the Service in subsequent section 241(a)(1)(H) cases, in making a
discretionary determination. Upon remand, the Immigration Judge should
consider the following discussion in entering a new decision.

D. Matter of Alonzo: Considering the Initial Fraud

In determining whether to favorably exercise discretion on a waiver
request, the Service’s stated policy has been to disregard the underlying
fraud or misrepresentation for which the respondent is seeking the waiver—
the initial fraud. See Matter of Alonzo, supra.
The United States Court of Appeals for the Ninth Circuit, within whose
jurisdiction this matter arises, had ruled in a number of decisions that mis-
representations “arising from” the initial fraud should not constitute an
adverse factor against the respondent in making a section 241(a)(1)(H) dis-
cretionary determination. See Delmundo v. INS, 43 F.3d 436 (9th Cir. 1994);
see also Braun v. INS, 992 F.2d 1016 (9th Cir. 1993); Hernandez-Robledo
v. INS, supra.
In INS v. Yueh-Shaio Yang, supra, however, the United States Supreme
Court held that the language of section 241(a)(1)(H) of the Act “imposes no
limitations on the factors that the Attorney General (or her delegate . . . ) may
consider in determining who, among the class of eligible aliens, should be
granted relief.” 117 S. Ct. at 352. The Court stated that it is “rational, and
therefore lawful, . . . to distinguish aliens . . . who engage in a pattern of immi-
gration fraud from aliens who commit a single, isolated act of misrepresenta-
tion.” Id. at 354. The Court also noted that while it is not required by the Act
that the entry fraud or misrepresentation be disregarded in making the waiv-
er determination, it may be an “abuse of discretion” to make an irrational
departure from the past policy of disregarding the initial fraud, Id. at 353.
Based on the Supreme Court’s decision in Yang, we find it appropriate
to revisit the issue raised in Matter of Alonzo, supra. Although erroneously
attributed to this Board on various occasions, Matter of Alonzo is a decision
by the Commissioner of the Immigration and Naturalization Service, in
which the Commissioner held that in making the discretionary determina-
tion under section 212(i) of the Act, 8 U.S.C. § 1182(i) (1976), (which is
analogous to section 241(a)(1)(H)), the action for which the alien seeks to
be forgiven should not be held as an adverse factor.4 This policy decision

4
Section 212(i) of the Act is analogous to section 241(a)(1)(H) in that it provides a dis-
cretionary waiver for an alien who has sought to procure, or has procured, a visa or other doc-
umentation, or entry into the United States by fraud or misrepresentation. It differs from sec-
tion 241(a)(1)(H) in several ways. It applies to aliens who are excludable because of fraud or

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has been extended to section 241(a)(1)(H) cases by the Service.
We are not, however, bound by decisions of the Commissioner. See
Matter of Fueyo, 20 I&N Dec. 84, 87 n.3 (BIA 1989); see also Matter of
Udagawa, 14 I&N Dec. 578, 582 (BIA 1974). Compare 8 C.F.R. § 3.1(g)
(1998) (stating that decisions of the Board are specifically made binding on
the Service) with 8 C.F.R. § 103.3(c) (1998) (stating that Service decisions
are made binding only on Service employees). Moreover, the Service now
contends that as a matter of policy it has decided to withdraw from Matter
of Alonzo. In its supplemental brief on appeal, the Service states that it “will
hereinafter consider an alien’s entry fraud as an adverse factor in determin-
ing whether an alien merits a favorable exercise of discretion under section
241(a)(1)(H) of the Act. Additionally, the circumstances surrounding the
fraud may be considered in the balancing equation.”
In her supplemental brief on appeal, the respondent argues that because
the policy outlined in Matter of Alonzo was in effect when the respondent
filed her application for a waiver under section 241(a)(1)(H) of the Act, a
departure from the Alonzo holding would be “irrational and an abuse of dis-
cretion.” The respondent cites to the United States Supreme Court’s lan-
guage in INS v. Yueh-Shaio Yang, supra, to support her contention.5
We decline to limit the factors we may consider in the exercise of dis-
cretion. As noted by the Supreme Court in Yang, “[S]atisfaction of the
requirements under § 241(a)(1)(H), including the requirement that the alien
have been ‘otherwise admissible,’ establishes only the alien’s eligibility for
the waiver. Such eligibility in no way limits the considerations that may
guide the Attorney General [or her delegate] in exercising her discretion to
determine who, among those eligible, will be accorded grace.” INS v. Yueh-
Shaio Yang, 117 S. Ct. at 353. We recognize that Congress’ intent in enact-

misrepresentation, As amended by section 349 of the IIRIRA, 110 Stat. at 3009-639, section
212(i) provides that a waiver is not available to aliens who might previously have qualified
on the strength of their relationship to their United States citizen or lawful permanent resident
children, and it now requires a showing of “extreme hardship” to the qualifying citizen or law-
ful resident relative.
In Alonzo the Commissioner relied on the fact that the version of section 212(i) then in
effect did not include an extreme hardship requirement, thus distinguishing it from section
212(h), See Matter of Alonzo, supra, at 294, Notably, section 349 of the IIRIRA added an
extreme hardship requirement to section 212(i), so this distinction no longer exists.
5
In Yang the United States Supreme Court stated:
Though the agency’s discretion is unfettered at the outset, if it announces and follows—
by rule or by settled course of adjudication—a general policy by which its exercise of dis-
cretion will be governed, an irrational departure from that policy (as opposed to an avowed
alteration of it) could constitute action that must be overturned as “arbitrary, capricious,[or]
an abuse of discretion” within the meaning of the Administrative Procedure Act, 5 U.S.C. §
706(2)(A).
INS v. Yueh-Shaio Yang, 117 S. Ct. at 353.

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ing section 241(a)(1)(H) was to foster, in appropriate cases, the unity of
families composed, in part, of United States citizens or lawful permanent
residents. See Hernandez-Robledo v. INS, supra. In adding a discretionary
component to section 241(a)(1)(H), however, Congress was acting in keep-
ing with the underlying purpose of predecessor provisions that granted
“relief to limited classes of aliens whose fraud was of such a nature that it
was more than counterbalanced by after-acquired family ties.” Reid v. INS,
420 U.S. 619, 630 (1975) (addressing former section 241(f) of the Act). In
making a discretionary finding, we believe that we must look at each of the
adverse factors, including the alien’s initial fraud, to determine whether, in
light of all of the factors presented, a waiver of deportability should be
granted to maintain the alien’s family unity and strong ties to the United
States. Section 241(a)(1)(H) was intended to afford relief to those aliens
whose “after-acquired family ties” outweighed their fraud, both the initial
fraud and other fraud “arising from” the initial fraud. Therefore, we decline
to follow the holding in Matter of Alonzo, supra, and we will not limit the
factors that we may consider in the exercise of discretion.
The respondent argues on appeal that if we fail to follow the policy
outlined in Matter of Alonzo, it would be an abuse of discretion because the
Alonzo ruling was in effect when she filed her application for a waiver
under section 241(a)(1)(H) of the Act. Our “departure” from the Alonzo
ruling is neither irrational nor an abuse of discretion. We have articulated
a rational basis for deciding to “withdraw” from the Alonzo ruling, which,
in fact, was never a ruling that this Board adopted as a precedent. See 8
C.F.R. § 3.1(g). Moreover, we provided both parties with adequate notice
and the opportunity to address the possibilities that we would decline to
follow the ruling in Matter of Alonzo and that the respondent’s initial fraud,
of concealing her first marriage, may be considered in the exercise of dis-
cretion. We also note that upon remand, the respondent has the opportuni-
ty to address the circumstances surrounding her initial fraud and to coun-
terbalance the adverse factors in the record, including the initial fraud, with
factors in her favor.

III. CONCLUSION

Upon remand, the parties will be provided an opportunity to augment
the record, and the Immigration Judge will enter a new decision, consider-
ing the equities in the respondent’s favor as well as all of the adverse fac-
tors, including the respondent’s initial fraud, in making a discretionary
determination. We note that subsequent to filing the instant appeal, the
respondent submitted a motion to reopen the proceedings and remand the
record to the Immigration Judge to allow her to apply for adjustment of sta-
tus pursuant to section 245 of the Act, based upon an approved employ-

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ment-based visa petition. Because we have decided to remand the record to
the Immigration Judge for further proceedings, the respondent may pursue
at the new hearing her application for adjustment of status or a request for
any other relief for which she is eligible.
ORDER: The record is remanded to the Immigration Judge for fur-
ther proceedings consistent with the foregoing opinion.

CONCURRING AND DISSENTING OPINION: Gustavo D. Villageliu,
Board Member

I respectfully concur in part and dissent in part.
While I agree with most of the majority’s reasoning, I also agree with
the concurring and dissenting opinion of Board Member Rosenberg that the
focus of the discretionary determination should emphasize family ties and
take into account the fact that the waiver is meant to excuse fraud or willful
misrepresentation at entry.
We should not indiscriminately apply the test prescribed in Matter of
Marin, 16 I&N Dec. 591 (BIA 1978), for post-entry misbehavior by resi-
dent aliens to a situation where the adverse factor being considered is a mis-
representation at entry. The requirement in section 241(a)(1)(H) of the Act,
8 U.S.C. § 1251(a)(1)(H) (1994), that an alien in deportation proceedings
seeking such a waiver be the spouse, son, or daughter of a United States cit-
izen or lawful permanent resident otherwise admissible at entry, except for
the misrepresentation, necessarily implies that such equities should ordi-
narily be sufficient for the favorable exercise of discretion. The purpose of
this waiver is to forestall deportation for being excludable at entry where it
would break up a family composed in part of United States citizens or law-
ful permanent residents. See INS v. Errico, 385 U.S. 214 (1966); Matter of
Da Lomba, 16 I&N Dec. 616 (BIA 1978). Consequently, I agree with Board
Member Rosenberg that to deny the waiver to an eligible alien solely
because of the initial fraud might constitute an abuse of discretion contrary
to the express terms of the statute.

CONCURRING AND DISSENTING OPINION: Lory Diana Rosenberg,
Board Member

I respectfully concur in part and dissent in part.
The issues before us do not involve merely the effect of the Supreme
Court’s ruling in INS v. Yueh-Shaio Yang, 519 U.S. 26, 117 S. Ct. 350
(1996), or, whether the Immigration Judge’s exercise of discretion over the
respondent’s waiver application under section 241(a)(1)(H) of the
Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(H) (1994), and
denial of suspension of deportation and voluntary departure was proper. The
principal issue, on which the exercise of discretion depends at least in part,

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is whether the respondent engaged in fraud or willful misrepresentation in
her contacts with United States Government officials, or whether any mis-
representations she may have made were innocent.
This raises two fundamental questions: First, what constitutes fraud or
willful misrepresentation, or false testimony, in the context of deportability
and excludability? And, second, if a misrepresentation did occur, what
weight should it be given as an adverse factor and how does it effect our
cumulative evaluation of the many factors that must be considered in adju-
dicating the respondent’s request for a discretionary waiver under section
241(a)(1)(H) of the Act?
While I agree with the majority that the decision of the Immigration
Judge is wanting and impedes a proper review of his denial of the respon-
dent’s request for a waiver under section 241(a)(1)(H) of the Act. I also find
his conclusion that the respondent engaged in fraud or willful misrepresen-
tation under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i)
(1994), as well as that she “lied” in the course of a naturalization interview,
to be erroneous and not supported by reasonable, substantial, or probative
evidence. I also agree that the respondent, who appears to have been legal-
ly married when she received an immigrant visa as an “unmarried daugh-
ter,” may need to obtain a waiver to overcome the fact that she was exclud-
able at the time of her entry because she lacked valid entry documents. At
the same time, I disagree that the “serious adverse factors” the majority
seems to presume exist in the record actually are present, and I disagree
with the majority’s declaration of the standard applicable to a waiver under
section 241(a)(1)(H) of the Act. As we are remanding the record for further
consideration, I write separately to address the lack of evidence of fraud or
willful misrepresentation in the record, and its effect on the consideration
of the respondent’s request for a waiver that is subject to the discretion of
the Attorney General.

I. DEPORTABILITY ON GROUNDS OF BEING
EXCLUDABLE AT ENTRY FOR FRAUD OR WILLFUL
MISREPRESENTATION OF A MATERIAL FACT

The evidence reflects that in November 1986, the respondent filed an
application for an immigrant visa indicating that she was not married and
omitting any mention that she had two children (whom she believed to be
illegitimate because she did not consider herself to have been married when
they were born). She immigrated to the United States in March 1987 and
married her husband in a full civil and religious ceremony in 1989.
Subsequently, in 1992, the respondent filed an application for naturaliza-
tion, indicating that she was married, and revealing that she had two chil-
dren born in the Philippines and two children born in the United States.

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At a naturalization interview, the respondent was confronted with a
“marriage contract” dated January 8, 1982, which she attempted to explain
by noting that it lacked a necessary witness signature, and that the one wit-
ness signature that appeared on the document was made on a date different
from the date on which the “contracting parties” signed the document. She
also attempted to explain that there were no witnesses actually present when
the document was executed, that it was executed in a place other than the
place the license was issued, that the contract was signed without waiting a
requisite 10-day period, and that she and her husband had paid the arranger
of the contract not to record the document. Although she admitted that she
had not affirmatively disclosed the fact of this contract at the time of her
immigrant visa interview, she was not given an opportunity to explain her
reasons for not doing so,
The respondent reported that she was told she had to withdraw the
application or be deported. When she complied, her permanent resident
alien card was returned to her. She then obtained counsel, filed a second
naturalization application, and was interviewed again. While that applica-
tion was pending, she was served with an Order to Show Cause and Notice
of Hearing (Form I-221), which alleged that she had committed fraud or
willful misrepresentation of a material fact, that she lacked a valid immi-
grant visa, and that she had no valid labor certification. She was charged
with being deportable on the basis that she was excludable at entry on those
grounds. At a deportation hearing before the Immigration Judge, she reiter-
ated the same explanation that she had provided to the naturalization exam-
iner pertaining to her good faith belief that the “marriage contract” had not
been recorded, and that even if recorded, it did not constitute a valid mar-
riage under the laws of the Philippines. She elaborated on her explanation,
stating further that the contract was obtained after she had become pregnant
while unmarried, in order to give the appearance that she was married and
to preserve her position in Saudi Arabia where an unwed pregnancy would
not be tolerated.
In my view, the first matter to be resolved is whether the respondent has
been properly found to be deportable on the basis of fraud or a willful mis-
representation that renders her excludable at entry as charged.1 As the
respondent is deportable on the two additional underlying grounds of inad-
missibility on which the Immigration and Naturalization Service bases its
“excludable at entry” charge, it may appear that whether or not the respon-
dent was properly determined to be excludable at entry under section

1
Although the respondent does not argue this point on appeal with regard to deportabil-
ity per se, she does brief and argue the point in the context of her appeal of the Immigration
Judge’s discretionary denial of a waiver under section 241(a)(1)(H) of the Act, and in her
motion to remand.

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212(a)(6)(C)(I) of the Act has little practical relevance to the resolution of
this appeal. In addition, the waiver she seeks does not require that she
engaged in fraud or a willful misrepresentation, but also cures innocent mis-
representations and depends only on her having entered with an immigrant
visa that was invalid. Nevertheless, the characterization of the respondent’s
initial entry to the United States as an immigrant is critical to our decision
to remand her case and to the ultimate exercise of discretion over her appli-
cation for a waiver under section 241(a)(1)(H) of the Act, as well as to her
eligibility for other forms of relief under the Act.

A. Absence of Clear, Unequivocal, and Convincing Evidence
of Fraud or Willful Misrepresentation

The respondent did not concede being deportable on the ground that
she was excludable at entry on the fraud or willful misrepresentation
grounds contained in section 212(a)(6)(C)(i) of the Act.2 Instead, she was
found to be deportable by the Immigration Judge on each of the three
grounds underlying the charge that she was excludable at entry.
The transcript reflects quite clearly that on April 18, 1995, the respon-
dent’s attorney stated on her behalf that she (1) admitted to having entered
the United States in 1987 as the unmarried son or daughter of a United
States citizen; (2) admitted to having been married on the date she entered
the United States, and therefore, to being ineligible to receive a visa; (3)
denied that she was asked whether she was married or unmarried by the
consular officer who issued the immigrant visa; and (4) denied having come
to the United States to perform skilled or unskilled labor without a valid
labor certification. She also denied each of the three grounds of inadmissi-
bility referred to in the Order to Show Cause, on which the Service relied
to establish deportability based on excludability at entry.
The Service acts as the prosecutor in deportation and removal cases,
and has authority to determine the grounds of deportability that are charged,
to issue the former Order To Show Cause or the current Notice to Appear
(Form I-862) and serve it on the named respondent, and finally, to file the
charging document with the Immigration Court. See 8 C.F.R. §§ 3.15, 239.1
(1998) (involving the contents and issuance of the charging document); see
also 8 C.F.R. §§ 3.14, 240.40 (1998) (involving commencement of depor-
tation proceedings). In deportation proceedings initiated prior to April 1,
1997, the Service bears the burden of proving deportability by “clear,
unequivocal, and convincing evidence.” See Woodby v. INS, 385 U.S. 276

2
The transcript reflects that occasional references to the respondent having conceded
deportability were continually corrected by the Immigration Judge, who insisted consistently
that he had found the respondent deportable,

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(1966) (discussing the standard of clear, unequivocal, and convincing evi-
dence that applies in deportation proceedings); 8 C.F.R. § 240.46(a) (1998)
(providing that no decision on deportability shall be valid in the absence of
evidence that is clear, unequivocal, and convincing); see also former section
242(b)(4) of the Act, 8 U.S.C. § 1252(b)(4) (1994) (mandating that no deci-
sion shall be valid unless based on reasonable, substantial, and probative
evidence).
In light of the respondent’s denial that she was asked by the consular
officer whether or not she was married, as well as the respondent’s denial
of the charge that she was excludable at entry for having procured a visa or
admission to the United States by fraud or willful misrepresentation of a
material fact, the trial attorney representing the Service questioned the
respondent as follows:
Q. Why did you not tell the consular officer that you were married?

A. In the first place, they didn’t ask me anything about marital status, And in the sec-
ond (indiscernible) that I should present while I worked in Saudi Arabia.

Q. Do you know if you told the consular authorities that you were married that you
would have been denied a visa?

A. They didn’t tell me anything about that.

Q. That wasn’t the question ma’am. The question was did you know that if you with-
held the fact of your marriage, that you would not be given a visa?

A. Yes.

(Emphasis added.) As I believe the majority has erred in glossing over this
aspect of the proceedings, I shall spell out the state of the record before us
in relation to the governing standard requiring that deportability be estab-
lished by evidence that is “clear, unequivocal, and convincing.” Woodby v.
INS, supra; see also Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979).
First, although the respondent admitted having entered on an immigrant
visa assigned to her as the unmarried daughter of a United States citizen,
she denied having committed fraud or a willful misrepresentation of a mate-
rial fact. Second, in the above-quoted colloquy with the Service attorney,
the respondent denied having stated affirmatively during her immigrant visa
interview either that she was married or unmarried; she attempted to explain
something about the circumstances under which she got “married,” but this
explanation was cut off as “indiscernible” during the transcription process.
Third, the respondent stated she was not informed that if she told the con-
sular authorities that she was married her visa would have been denied. And
fourth, she answered “yes” to the rephrased question posed by the trial
attorney for the Service, inquiring not whether she knew that by providing

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information about her marriage she would not be given a visa, but instead,
whether she knew that by withholding information about her marriage, she
would not be given a visa.
The “indiscernible” portion of the respondent’s response in the course
of this colloquy, and her affirmative “yes” response to the question whether
she knew she would be denied a visa if she did not reveal her marriage,
leaves us with a muddled record in which the respondent’s testimony is
equivocal at best. The supposed evidence of deportability (on the ground of
excludability at entry for fraud or willful misrepresentation) based on such
interrupted and abbreviated testimony is not clear, much less convincing,
Cf, Woodby v. INS, supra; 8 C.F.R. § 240.46(a).

B. Elements of Fraud or Willful Misrepresentation
of a Material Fact

Fraud or willful misrepresentation of a material fact, the statutory sec-
tion on which the charge that the respondent was excludable at entry is
based, was enacted by the Immigration Act of 1990, Pub. L. No. 101-649,
104 Stat. 4978, replacing former section 212(a)(19) of the Act, 8 U.S.C. §
1182(a)(19) (1988), which addressed misrepresentations under an earlier
version of the Act.3 The statute provides:
Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure
(or has sought to procure or has procured) a visa, other documentation, or entry into
the United States or other benefit provided under this Act is excludable.

Section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (1994). The
Board has addressed what constitutes fraud or willful misrepresentation of a
material fact in relation to excludability or deportability in administrative
decisions issued both before and after the amendment of the Act in 1990.
These decisions, as well as those of the Supreme Court and the United States
Court of Appeals for the Ninth Circuit that are applicable to this case, support
my conclusion that the respondent’s statements at the time of her application
for an immigrant visa, and thereafter, at her naturalization interview and in the
deportation hearing that is the subject of this appeal, do not constitute either
fraud or willful misrepresentation of a material fact, or false testimony.

3
See section 601 of the Immigration Act of 1990, 104 Stat. at 5067, which recodified for-
mer section 212(a)(19) of the Act, as amended by section 6(a) of the Immigration Marriage
Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, 3543-44 (adding the term
“other benefit”); see also section 237(a)(1)(H) of the Act, 8 U.S.C. § 1227(a)(1)(H) (Supp. II
1996), applicable to cases initiated after April 1, 1997, as amended by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.
3009-546 (“IIRIRA”), in which Congress substituted the terms “admission” for “entry” and
“inadmissible” for “excludable.”

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The principal elements of the ground of excludability contained in sec-
tion 212(a)(6)(C)(i) of the Act pertinent to our determination are (1) fraud
or (2) willfulness and (3) materiality. Fraud or a willful misrepresentation
may be committed by the presentation of either an oral or written statement
to a United States Government official, Matter of Y-G-, 20 I&N Dec. 794
(BIA 1994) (requiring that to sustain a charge of fraud, it must have been
perpetrated on United States Government officials). Fraud requires that the
respondent know the falsity of his or her statement, intend to deceive the
Government official, and succeed in this deception. Matter of G-G-, 7 I&N
Dec. 161 (BIA 1956), See generally Kathleen Sullivan, When
Representations Cross the Line, Bender’s Immigration Bulletin, Vol. 1, No.
11 (Oct. 1996).
Fraud or a willful misrepresentation is not limited to “false testimony,”
which requires that the actor have made a false statement under oath with
the subjective intent of obtaining an immigration benefit.4 Kungys v. United
States, 485 U.S. 759, 780 (1988); see also Bernal v. INS, 154 F.3d 1020 (9th
Cir. 1998) (holding that an applicant’s false oral statements made under
oath in a question-and-answer statement before a Service officer in connec-
tion with any stage of the processing of a visa or in a naturalization exami-
nation constitutes “false testimony” within the meaning of 8 U.S.C. §
1101(f)(6), and citing Matter of Ngan, 10 I&N Dec. 725 (BIA 1964));
Phinpathya v. INS, 673 F.2d 1013, 1018-19 (9th Cir. 1981) (stating that the
“term testimony does not encompass all statements, or even all statements
made under oath,” but refers to “a statement made by a witness under oath
for the purpose of establishing proof of a fact to a court or tribunal”), rev’d
on other grounds, 464 U.S. 183 (1984). False testimony under section
101(f)(6) of the Act does not apply to concealment, Kungys v. United States,
supra, at 780-81.
The respondent’s first interaction with an official of the United States
Government involved the consideration of her application for an immi-
grant visa. The respondent has testified consistently that at the time she
initially provided the information that she was not married on her visa
application, she did not believe she was legally married, as she understood
the marriage contract she entered into in 1982 to be lacking in regularity
and therefore ineffective under the law of the Phillippines. She also has
stated consistently that she was not asked whether or not she was married
or unmarried, and she did not testify under oath that she was married or

4
Our consideration of whether the respondent, at any point, provided false testimony is
not only relevant to excludability, but to the exercise of discretion under section 241(a)(1)(H)
of the Act, and to the respondent’s eligibility for suspension of deportation and voluntary
departure, which require a showing of “good moral character” as defined in section 101(f)(6)
of the Act, 8 U.S.C. § 1101(f)(6) (Supp. II 1996).

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unmarried at the interview before the United States consular officer.
Both Board precedent and Ninth Circuit law require that a statement
constituting a misrepresentation must be made with knowledge of its falsi-
ty for it to be considered “willful.” See Forbes v. INS, 48 F.3d 439, 432 (9th
Cir. 1995); Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979)
(recognizing that the alien must know that the statements he or she is mak-
ing are false); see also Espinoza-Espinoza v. INS, 554 F.2d 921, 925 (9th
Cir. 1977) (requiring that the statement must be made with knowledge of its
falsity). Although a specific intent to deceive is not necessary, an acciden-
tal statement or one that is the product of honest mistake is not considered
to be a “willful” misrepresentation. See Sullivan, supra (citing Foreign
Affairs Manual, section 40.63, note 5.1). Moreover, a misrepresentation
refers to some degree of affirmative conduct. Silence is not a misrepresen-
tation, and does not “shut off a line of inquiry.” Matter of D-L- & A-M-, 20
I&N Dec. 409 (BIA 1991); Matter of G-, 6 I&N Dec. 9 (BIA 1953).5
The concept of “materiality” presents a mixed question of law and fact,
United States v. Gaudin, 515 U.S. 506, 521 (1995); Kungys v. United States,
supra, at 770 (addressing the specific intent to obtain an immigration or nat-
uralization benefit, and whether misrepresentation or concealment was pre-
dictably capable of affecting, or had a natural tendency to affect, the official
decision under section 340 of the Act, 8 U.S.C. § 1451 (1988)); id. at 783
(Brennan, J., concurring). In Matter of S- and B-C-, 9 I&N Dec. 436 (BIA
1960; A.G. 1961), the Attorney General established that a misrepresentation
is considered to be material if the respondent is excludable on the true facts;
and the misrepresentation tends to shut off a line of inquiry relevant to the
visa, document, or other benefit procured or sought to be procured that
might have resulted in the alien’s exclusion. See, e.g., Matter of Hui 15 I&N
Dec. 228 (BIA 1975) (involving misrepresentation by a national of China
about identity, birthplace, nationality, and birth date, by which he sought a
nonresident alien Mexican border crossing card). However, a “harmless”
misrepresentation that does not affect admissibility is not “material.” Cf.
Matter of Martinez-Lopez, 10 I&N Dec. 409, 414 (BIA 1962; A.G. 1964)
(finding no materiality in the alien’s misrepresentation of a job offer where
he was not likely to become a public charge); Matter of Mazar, 10 I&N
Dec. 80, 86 (BIA 1962) (finding no materiality in nondisclosure of invol-
untary communist party membership that would not have resulted in a
determination of excludability).

5
See also Kungys v. United States, supra, at 773 (distinguishing the “concealment or
misrepresentation” clause of section 340(a) of the Act, 8 U.S.C. § 1451(a) (1988), which
applies only “where the ‘order and certificate of naturalization . . . were procured by con-
cealment of a material fact or by willful misrepresentation,’” from false testimony that
involves the procurement of other benefits, even resident visas that constitute a prerequisite
to naturalization).

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Interim Decision #3372

The validity of a marriage is generally governed by the law of the place
of celebration, Matter of Dela Cruz, 14 I&N Dec. 686 (BIA 1974); Matter
of P-, 4 I&N Dec. 610, 612 (BIA, A.G. 1952). As the respondent indicates
in her brief on appeal, prior to its amendment in November 1987, Article 3
of the Philippines Civil Code, which was in effect at the time that she par-
ticipated in obtaining the marriage contract, as well as when she applied for
her immigrant visa and entered the United States as an immigrant, required
(1) the authority of the solemnizing officer; (2) a valid marriage license
(with certain exceptions); and (3) a marriage ceremony before the solem-
nizing officer in which the parties are present and make a personal declara-
tion that they take each other as husband and wife in the presence of not less
than two witnesses of legal age. Significantly, Article 4 states that “[t]he
absence of any of the essential of formal requisites shall render the marriage
void ab initio . . . .” See Mayo v. Shiltgen, 921 F.2d 177, 181 (8th Cir. 1990)
(remanding for consideration of the petitioner’s argument that if her mar-
riage was void, she was not excludable).
The respondent admits to having participated in obtaining a marriage
contract that was pre-dated and not based on what she believed was a valid
license, not entered into before witnesses as required, not signed by the nec-
essary witnesses, and, to the best of the respondent’s understanding, not
registered at the time it was obtained. Nonetheless, while neither the
respondent’s testimony nor the marriage contract obtained in 1982 consti-
tutes clear, unequivocal, and convincing evidence of fraud or a willful mis-
representation, the evidence of the marriage contract’s eventually having
been recorded may establish that the respondent was, in fact, married prior
to her immigrant visa interview and her entry to the United States. It cannot
be disputed that the fact of the respondent’s having been married, if indeed
she was married under the law of the Philippines, was material to her eligi-
bility for an immigrant visa at the time she presented her immigrant visa
application to the consular officer. Matter of Anabo, 18 I&N Dec. 87 (BIA
1981) (finding an affirmative misrepresentation made by a visa applicant
who claims to be single, when he actually is married, to be material).
Legally material and factually erroneous though the respondent’s rep-
resentation that she was not married may prove to be, however, I do not
believe the record supports the conclusion that the respondent made a will-
ful misrepresentation. The respondent’s consistent testimony, which is
uncontroverted and plausible in light of the documentary evidence, is that
she did not believe the marriage contract she obtained constituted a valid,
legal marriage. Until she was confronted at her first naturalization inter-
view, she was unaware that the marriage contract actually had been recorded.
Furthermore, although the respondent testified that she now accepts
that she is considered to have been married in 1982 as the result of the mar-
riage contract, there is no evidence that the respondent’s representation on
her immigrant visa application that she was not married was made with

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knowledge of its falsity, Cf. Forbes v. INS, supra. Similarly, as discussed
below, the respondent’s failure to list her two children on her immigrant
visa application, while material, is not an adequate basis on which to con-
clude that she committed fraud or willful misrepresentation. As the respon-
dent’s misrepresentation must be made with knowledge of its falsity to be
“willful,” her innocent misrepresentation does not establish a willful viola-
tion under section 212(a)(6)(C)(i).

C. Erroneous Finding That the Respondent “Lied”
in Relation to 212(a)(6)(C)(i) of the Act

The Immigration Judge not only found that the respondent was
deportable due to being excludable at entry under section 212(a)(6)(C)(i) of
the Act, but found that the respondent “lied.” In order to uphold these find-
ings, we would have to reject the respondent’s consistent testimony explain-
ing her lack of knowledge and intent, without any affirmative evidence that
the respondent knowingly engaged in a willful misrepresentation. We
would have to draw the inference that she knew her 1982 marriage to be
lawful and stated she was not married on her immigrant visa application
knowing that representation to be false. We not only would have to reject
her affirmative testimony that she understood the 1982 marriage contract
into which she entered not to have been “registered,” but would have to
overlook the fact that, as shown to the respondent at her naturalization inter-
view, the document still does not appear to be properly executed and lacks
the requisite witness signatures.
Such unsupported adverse inferences are simply unreasonable. In
Matter of Bosuego, supra, at 128, the Board held that where the respondent
had applied for a nonimmigrant visa, but failed to disclose that she was a
college graduate with a sister residing in the United States, “the likelihood
that knowledge of those facts would have led to a finding that the respon-
dent was inadmissible” was “undeterminable from the record before us.”
Citing Woodby v. INS, supra, we stated that “[t]he element of materiality is
a fact crucial to a finding of deportability” on fraud or misrepresentation
grounds, Matter of Bosuego, supra, at 131. Ah, one might counter, but in the
instant case, the true facts do seem to indicate that the respondent was mar-
ried, and therefore, by representing that she was not married and failing to
mention the names of her first two children, she shut off a line of inquiry
that might have resulted in her being excluded.
However, this is not consistent with Bosuego, in which the Board found
that the record did not contain any reference to other pertinent factors that
might have influenced the consular officer’s decision. Similarly, in the
instant case, the Service failed to develop any evidence concerning whether
or not the marriage contract was either witnessed or recorded in 1982, at the
time the respondent applied for her immigrant visa, or concerning the way

427
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in which the respondent presented herself in other contexts, the way in
which her husband viewed their having entered into the contract, the law of
the Philippines, or any other factor bearing on either the materiality of the
misrepresentation or the respondent’s knowledge of its probable falsity.
Likewise, in Matter of Salazar, 17 I&N Dec. 167 (BIA 1979), the respon-
dent testified that when he left the United States to attend his immigrant
visa interview, he was separated from his wife but intended to rejoin her,
that he never was asked any questions about the status of his marriage at his
visa interview, and that he knew the visa petition his wife had filed had been
revoked, but did not know the date of revocation. The Board stated that
“[g]iven this state of affairs, and the apparent uncertainty of his marriage at
that time, it cannot be said that the Service has carried its burden in estab-
lishing that the applicant was in fact aware of what had transpired concern-
ing his visa petition, and that his failure to volunteer information . . . con-
stituted a willful misrepresentation of a material fact.” Id. at 170.
The Immigration Judge’s finding that the respondent lied on her immi-
grant visa application is unsupported on the record and has been refuted by
the respondent. In quoting the respondent’s supposed “lie,” the Immigration
Judge relies on the respondent’s testimony that she was married one time in
a religious ceremony in a church to her husband, and her repeated dis-
claimer that she was not previously married in a civil ceremony. The
respondent’s statement is only a “lie,” however, if she made it willfully,
believing it to be a false statement, Forbes v. INS, supra. Clearly, as the
respondent has insisted over a 10-year period from 1987 to the present—in
the context of a visa application, a visa interview, two naturalization appli-
cations, two naturalization interviews, and one deportation hearing—she
did not believe that her act of obtaining a “marriage contract” in 1982 cre-
ated a valid marriage. Consequently, in her mind and to her understanding
such a declaration was not false.
The Immigration Judge’s conclusion that the Service had established
deportability as to the respondent’s being excludable at entry because of
fraud or a willful misrepresentation of a material fact is erroneous, and does
not constitute a valid decision. See section 242(b)(4) of the Act.6 Similarly,
as the respondent’s subsequent statements, including oral testimony under
oath that she provided in either the naturalization interviews or at her depor-
tation proceeding, restated her honest belief that, until confronted at the first
naturalization interview, she believed that she was not married, there is

6
Similarly, although the burden of proof would be on the respondent in the case of an
affirmatively filed application for naturalization benefits, I do not believe that there is evi-
dence from which we can draw a reasonable inference that the respondent engaged in fraud
or willful misrepresentation, or gave false testimony in her naturalization application(s) or at
her interview(s) on those applications.

428
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insufficient evidence to conclude that the respondent provided false testi-
mony within the meaning of section 101(f)(6) of the Act.

III. CONSIDERATION OF A WAIVER UNDER
SECTION 241(a)(1)(H)OF THE ACT

The intent of Congress in enacting former section 241(f), 8 U.S.C. §
1251(f) (1988), later codified at section 241(a)(1)(H) of the Act, was a
humanitarian desire to unite families and preserve family ties. The funda-
mental purpose for such legislation was to forestall deportation where it
would break up a family composed in part of United States citizens or law-
ful permanent residents. See INS v. Errico, 385 U.S. 214 (1966) (holding
that aliens who had made fraudulent representations to the visa-issuing offi-
cial and who had been charged with deportability for being excludable at
entry as not nonquota or preference quota immigrants as specified in their
visas were saved from deportability when they had the relatives prescribed
by the statute); see also Reid v. INS, 420 U.S. 619 (1975) (limiting benefits
under section 241(f) where the Service relies on a ground of deportation
such as former section 241(a)(2) of the Act—entry without inspection—
which does not rest on excludability unrelated to misrepresentations);
Matter of Da Lomba, 16 I&N Dec. 616 (BIA 1978) (holding that it is not
necessary that a deportation charge be brought under former section
212(a)(19) of the Act in order for section 241(f) to be operative if, in fact,
immigration documentation was obtained by fraud).
My conclusion that the record cannot support the finding that the
respondent engaged in fraud or willful misrepresentation may appear to
present a rather confounding situation, as the respondent is seeking a waiv-
er under section 241(a)(1)(H) of the Act, which presupposes excludability
under section 212(a)(6)(C)(i) of the Act. However, as discussed below,
according to both the express language of the statute and administrative
precedent, the waiver is available to overcome not only willful, but inno-
cent, misrepresentations. In addition, it should be obvious that if there was
no “initial fraud,” the scope of the Attorney General’s discretion in adjudi-
cating eligibility for such a discretionary waiver must take into account the
nature of any affirmative misrepresentation, as well as any silence not
amounting to a misrepresentation.

A. Innocent Misrepresentations

Eligibility for a waiver under section 241(a)(1)(H) of the Act does not
depend on the respondent having made a fraudulent or willful misrepresen-
tation, In Matter of Ideis, 14 I&N Dec. 701 (BIA 1974), the Board held that
despite the fact the respondent committed no fraud in connection with her
admission for permanent residence as the unmarried daughter of a lawful

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permanent resident her innocent misrepresentations that her father was a
lawful permanent resident were sufficient to bring her within the purview of
the provisions of section 241(f) of the Immigration and Nationality Act, as
amended.
We concluded that although the record indicated that the respondent did
not commit fraud, it was clear that she made an innocent misrepresentation,
which was “sufficient to bring the respondent within the terms of section
241(f).” Matter of Ideis, supra, at 703; see Matter of Louie, 14 I&N Dec.
421 (BIA 1973) (finding that despite the absence of fraud, entry as a pref-
erence immigrant in reliance on the erroneous belief a sibling was a citizen
is covered by section 241(f) of the Act, which encompasses innocent mis-
representations); Matter of Torbergsen, 13 I&N Dec. 432 (BIA 1969) (find-
ing a section 241(f) waiver available, notwithstanding the fact that there was
no fraud and the respondent was not in possession of a labor certification at
time of entry); see also Castillo-Godoy v. Rosenberg, 415 F.2d 1266 (9th
Cir. 1969); Matter of Lim, 13 I&N Dec. 169 (BIA 1969) (reversing a prior
decision that had concluded, “anomalous as it might seem, the bounty of sec-
tion 241(f) extended only to those guilty of fraud, and not to the innocent,”
in favor of a more liberal construction).

B. Effect of the Supreme Court’s Decision in INS v. Yueh-Shaio Yang

I agree with the majority that after INS v. Yueh-Shaio Yang, supra, it is
clear that the Attorney General may consider a broad panoply of factors in
determining whether a waiver under section 241(a)(1)(H) of the Act is war-
ranted as a matter of discretion. I emphasize, however, as did the Supreme
Court, that were the Attorney General to treat the fact of the initial fraud or
willful misrepresentation as tipping the discretionary equation to require
denial, such a result might constitute an abuse of discretion contrary to the
express terms of the statute, 117 S. Ct. at 353.
Moreover, I strongly disagree that the proper discretionary standard
involves a balancing of “an alien’s undesirability as a permanent resident
with the social and humane considerations” present in the case, in order to
determine “whether a grant of relief is in the best interests of this country.”
Matter of Tijam, Interim Decision 3372, at 6 (BIA 1998). Such language,
casually imported by the majority from the discretionary standard we artic-
ulated in Matter of Marin, 16 I&N Dec. 591 (BIA 1978) (“Marin test”),
involving a discretionary waiver of excludability under former section
212(c) of the Act, 8 U.S.C. § 1182(c) (1976), is wholly unrelated to the dis-
cretionary determination that we are making in the instant case under sec-
tion 241(a)(1)(H) of the Act. Although we recently adopted the Marin test
as the standard in Matter of Mendez, 21 I&N Dec. 296 (BIA 1996), adapt-
ing it for application in discretionary waiver determinations under section
212(h) of the Act, waivers sought under both section 212(h) and former sec-

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tion 212(c) primarily involve convicted criminals.
By contrast, as uniformly interpreted by the Supreme Court and the
Board alike, the statutory provision for a waiver under section 241(a)(1)(H)
of the Act focuses primarily on maintaining families that have come into
being after the respondent’s willful or innocent violation of the Act. As
opposed to focusing principally on after-acquired equities related to family
ties and family unification, which, undisputedly, is the essential underlying
purpose of a waiver under section 241(a)(1)(H) of the Act, the Marin test
takes into account an alien’s anti-social criminal activity, and any rehabili-
tation that he or she may have established, in addition to other factors such
as length of residence in the United States, family ties, and any hardship to
the respondent or family members that might result from deportation.
In the context of adjudicating a waiver for relief under section 212(h)
or former section 212(c) of the Act, it is the fact of the anti-social conduct
or criminal activity, such as prostitution or an actual criminal conviction in
violation of the Act, that warrants assessing the respondent’s “undesirabili-
ty as a permanent resident,” and determining whether granting discretionary
relief is “in the best interests of this country.”7 No such limitation should
exist with respect to a waiver adjudication under section 241(a)(1)(H) of the
Act. This waiver is premised upon the acceptance of an entry having been
made on the basis of an invalid immigrant visa that could have been the
result of nothing more than an innocent misrepresentation. As George
Orwell said in his novel, Animal Farm, all animals are not equal, and simi-
larly, all immigration violations are not equal, The Marin test is not, and
should not be imposed as, the ultimate unified basis for discretionary adju-
dications.
A denial of a waiver is reviewed for an abuse of discretion, See
Hernandez-Robledo v. INS, 777 F.2d 536 (9th Cir. 1985); Batoon v. INS,
707 F.2d 399, 401 (9th Cir. 1983). What the Yang decision clarifies is that,
although the initial fraud may be waived, it still may be considered as one
of several factors that the Attorney General takes into account in determin-
ing whether or not to grant a waiver of a misrepresentation that resulted in
issuance of an immigrant visa. No more, no less, Cf. Delmundo v. INS, 43
F.3d 436 (9th Cir. 1994) (finding that although subsequent fraud may be an
extension of an initial fraud, which may be excused, perpetuation of that
fraud on the Immigration Court may be considered as a factor in assessing

7
Although a waiver under former section 212(c) of the Act was available to overcome
any exclusion ground other than those relating to national security, or to overcome any ground
of deportability that had a counterpart in the applicable exclusion grounds of the Act, no
reported case since our precedent in Matter of Marin, decided over 20 years ago, involved an
application for such a waiver on grounds other than those relating to criminal convictions or
crime-related violations of the Act.

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eligibility for a waiver); Hernandez-Robledo v. INS, supra, at 541 (holding
that “the inquiry is not into the illegality of his or her presence in the United
States but the reasons that an alien should be allowed to stay, despite the
illegality”). The Supreme Court’s decision does not authorize superimposi-
tion of an agency-created test that involves a policy judgment concerning
the “best interests of the country,” and such a test is inapposite to the nature
of the waiver involved. It merely makes clear that in the course of weighing
and balancing favorable and adverse factors, the initial immigration viola-
tion that gives rise to the need for a waiver under section 241(a)(1)(H) of
the Act, and any subsequent violations that flow from that initial violation,
can be considered and weighed as part of the discretionary equation.
Thus, despite my general agreement with the notion that any fraud
committed by a waiver applicant may be taken into account in balancing the
favorable and adverse factors. I disagree with certain aspects of the major-
ity decision related to the treatment of the respondent’s waiver application.
Specifically, in the instant case it is significant that the record contains no
evidence that the respondent’s misrepresentation was other than innocent,
based on her honest but mistaken belief that she was not married because
the marriage contract into which she had entered was not valid, even if
recorded. Although the majority talks in terms of “concealment,” asserting
that the respondent “concealed” that she was married and “failed to dis-
close” that she had two children, concealment really is not an applicable
concept in the context of determining either fraud or willful misrepresenta-
tion, or false testimony. See supra note 5. Moreover, just as the Supreme
Court has construed the term “concealment” in the context of the denatu-
ralization provisions, “concealment,” no less than the misrepresentation,
must be shown to have been willful. See Fedorenko v. United States, 449
U.S. 490, 508 n.28 (1981); Costello v. United States, 365 U.S. 265, 272 n.3
(1961). A reasonable evaluation of the favorable and adverse factors pre-
sented relevant to the respondent’s eligibility for a discretionary waiver
must take into account that there is no evidence of fraud or willful misrep-
resentation.
Furthermore, in Casem v. INS, 8 F.3d 700 (9th Cir. 1993), the Ninth
Circuit held that hardship to children was a central issue in the adjudication
of the waiver. The Ninth Circuit found that in a “statutory provision similar
to section 1251(a)(1)(H), . . . [the Attorney General is allowed] at her dis-
cretion to suspend a deportation order if, among other things, ‘deportation
would . . . result in extreme hardship to the alien or to his spouse, parent, or
child, who is a citizen of the United States or an alien lawfully admitted for
permanent residence . . . .’” Id. at 703 (quoting section 244(a)(4) of the Act,
8 U.S.C. § 1254(a)(1)). The court stated that section 241(a)(1)(H) of the
Act, which is limited to aliens excludable at the time of entry due to fraud
or misrepresentation, “requires that the BIA take into account all relevant
factors without acting in an arbitrary, illegal, or irrational fashion, Braun v.

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INS, 992 F.2d 1016, 1018-19 (9th Cir. 1993).” Id. at 702. The court went
on to state, “We have admonished the INS in section 1254(a)(1) cases to
appraise carefully the effect deportation would have on an alien’s children
who are United States citizens. See Cerrillo-Perez v. INS, 809 F.2d 1419,
1426 (9th Cir. 1987).” Id. at 703.
As the Ninth Circuit has emphasized, “Congressional intent was simi-
lar with regard to section 1251(a)(1)(H) . . . [which was] enacted . . . to pre-
vent the break-up of families comprised in part of American citizens or law-
ful permanent residents. . . . Congress ‘was intent upon granting relief to
limited classes of aliens whose fraud was of such a nature that it was more
than counterbalanced by after-acquired family ties.’” Casem v. INS, supra,
at 703 (quoting Reid v. INS, supra, at 630). The Ninth Circuit explained,
therefore, that “[a]lthough the statute does not set forth that factor for par-
ticular consideration . . . in making the epochal decision of whether to allow
an alien to remain legally with her family . . . the BIA must consider hard-
ship to the children of potential deportees along with all other relevant fac-
tors.” Id. The Ninth Circuit concluded that “[t]he inquiry into family ties,
however, must not be limited to noting the benefits of living near one’s
immediate or extended family. The BIA also must examine the impact of
‘untying’ the family ties Congress sought to safeguard.” Id.

IV. CONCLUSION

On the record before us, I conclude that the respondent’s misrepresen-
tations have not been shown to be other than innocent ones. Not only must
the innocence of these representations be taken into account on remand, but
the weighing and balancing of favorable and adverse factors must be exer-
cised, consistent with the purpose of the legislation underlying the repeated
enactment of section 241(a)(1)(H) of the Act, which is maintaining families.

433