FEREIRA

Interim Decision #2251

MATTER OF FEREIRA

In Deportation Proceedings

A-19909351-2

Decided by Board December 14, 1973
(1) Respondent, who maintains that he does not remember the eireumetaneeo
surrounding the time, place, and manner of his last entry into the United
States, has failed to sustain the burden of proof as to the nature of his entry
required under section 291 of the Immigration and Nationality Act. In the
absence of evidence in negate the presumption of unlawful status eatablishod
by section 291 of the Act, the presumption applies and supports deportation on
a charge of entry without inspection under section 241(a)(2) of the Act.
(2) An alien must bear the burden of proof in establishing the applicability of
section 241(f) of the Act, as amended, to his case. Since respondent has failed
to establish that his last entry was accomplished other than surreptitiously,
he has not carried his burden of proof to establish the applicability of the
provisions of section 241(f) to his ease.
CHARGES:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(aX2)I—Entered without
inspection (respondent No. 1).
Act of 1952—Section 241(aX2) [8 U.S.C. 1251(aX2)]—Nonimmigrant-
remained longer (respondent No. 2).
ON BEHALF OF RESPONDENTS: David C. Marcus, Esquire
215 West Fifth Street
Los Angeles, California 90013

The respondents have appealed from a decision of an immigra-
tion judge, dated September 11, 1972, which found them deporta-
ble, but granted them the privilege of voluntary departure. The
appeal will be dismissed.
The respondents are husband and wife. They are natives and
citizens of Mexico. The female respondent has admitted the truth
of the factual allegations contained in the Order to Show cause,
but has denied deportability. She contends that the provisions of
section 241(f) of the Immigration and Nationality Act exempt her
from deportation. By her own admission she entered as a nonim-
migrant. She has remained for a longer period than she was
authorized and it is on this basis that the Service alleges deporta-
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bility. Under these circumstances the benefit of section 241(f) is
not available to her. Cabuco-Flores v. INS, 477 F.2d 108 (C.A. 9,
1973); Matter of Mangabat, Interim Decision No. 2131 (B IA 1972).
We therefore conclude that her deportability has been established
by clear, convincing and unequivocal evidence.
The male respondent was charged with being deportable for
having entered the United States without inspection. At the
hearing, the Service contended that his last entry into this
country was effected surreptitiously. The male respondent admit-
ted that one of his three entries had been accomplished in this
manner, but asserted that he did not remember how he last
entered. The Service did not introduce independent proof in this
regard. In finding the male respondent deportable, the immigra-
tion judge relied on section 291 of the Act, which requires an
individual in deportation proceedings to prove the time, place and
manner of his entry into the United States. That section further
specifies that if this burden is not sustained, the person "shall be
presumed to be in the United States in violation of law."
The male respondent maintains that he does not remember the
circumstances surrounding the time, place and manner of his last
entry. He obviously has not sustained his burden of proof under
section 291. He has conceded that he is an alien, he has admitted
making a surreptitious entry and he has failed to prove that his
last entry was accomplished in any other manner. Consequently,
the presumption established by section 291 becomes operative.
Although that section of the Act does not specify the precise
nature of the presumed unlawful status, for it to have any
relevance the presumption must operate in conjunction with the
provisions of section 241(a) of the Act. See Matter of IA, 12 I. & N.
Dec. 293 (BIA 1967). We therefore conclude that the presumption
extends to a charge under section 241(a) which relates to the
"manner" in which an alien may have entered the country.
In this case, there exists significant evidence that the male
respondent entered surreptitiously. The Service was therefore
justified in charging him with being deportable as an alien who
entered without inspection. Since this charge relates to the "man-
ner" of an entry, we hold that the presumption applies, and the
male respondent, not having sustained his burden of proof, is
deportable as charged. See Alt Chia Pang v. INS, 368 F.2d 637
(C.A. 3, 1966), cert. denied, 386 U.S. 1037 (1967); Vlisidis v. Holland,
245 F.2d 812 (C.A. 3, 1957); Matter of Ortega-Mojaro, 13 I. & N. Dec.
838 (BIA 1970), affirmed, Ortega-Moharo v. INS, 441 F.2d 658 (C.A.
9), cert. denied, 404 US. 886 (1971); Matter of Wong, 13 I. & N. Dee.
820 (BIA 1971); Matter of R—S--- 3 7 I. & N. Dec. 271, 273 (A.G. 1956).
In the absence of any evidence to negate the presumption, the
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ilien is deemed to be here in violation of law, and we hold that this
statutory mandate is sufficient to satisfy the burden of proof
:.equirements set forth in Woodby v. INS, 385 U.S. 2'76 (1966).
The male respondent has also raised the issue of the applicabil-
ty of section 241(f) to his case. Section 241(f) is not a discretionary
^emedy. Instead, that provision mandates that an alien who meets
.ts conditions shall not be deported on any charge to which the
section applies. Basically, section 241(f) will save an alien from
leportation if: (1) the charge against the alien directly relates to
iris procurement of entry or documentation by fraud or misrepre-
sentation; (2) the alien was otherwise admissible at entry; and (3)
the alien has one of several family ties to a United States citizen
)r alien lawfully admitted for permanent residence.
To a large extent these criteria involve information which is not
readily available to the Government, but by its nature is known to
any alien in question. Thus, it is the alien, and not the Service,
who will be aware of any qualifying familial relationship he may
possess. It is the alien who will have information regarding his
past activities and residences, and therefore will know the facts
relevant to an inquiry regarding the "qualitative" provisions of
the Act. Since section 241(f) affords a benefit to aliens who would
otherwise be deportable, and since the Service in general would
not accurately be able to determine the applicability of this
provision in the absence of an alien's cooperation, it would be
inappropriate to require that the Service shoulder the burden of
proof on this issue. Consequently, we hold that it is the alien who
must bear the burden of proof in establishing the applicability of
section 241(f) to his case.
In this instance the male respondent's failure to establish that
his entry was accomplished other than surreptitiously is of pri-
mary importance from the standpoint of section 241(f). Its impor-
tance stems from the fact that the benefit of section 241(f) is not
available to one who entered surreptitiously. Monarrez-Monarrez
v. INS, 472 F.2d 119 (C.A. 9, 1972). Since the male respondent has
not resolved this major question regarding the nature of his entry,
we must conclude that he has not carried his burden of proof to
establish that he is entitled to the benefit of section 241(f).
Finally, the respondents have failed to direct our attention to a
single example of the other errors which they allege were commit-
ted by the immigration judge_ Moreover, we have found no
impropriety which could have had an impact on the decision in
this case. The decision of the immigration judge was correct.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the
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respondents are permitted to depart from the United States
voluntarily within 30 days from the date of this order or any
extension beyond that time as may be granted by the District
Director; and in the event of failure so to depart, the respondents
shall be deported as provided in the immigration judge's order.

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