WEST

Interim Decision #1850

MATTER OF WEST

In Deportation Proceedings

A-14221237

Decided by Board March. 27, 1968
Respondent, an alien who entered the United States es a temporary visitor upon
presentation of a legally obtained visitor's visa, who was subsequently
granted section 245 adjustment of status which was rescinded on the ground of
ineligibility therefor because based on a marriage to a U.S. citizen which was
not valid, is, notwithstanding the requisite familial relationship, ineligible
for relief from deportation under section 241(f) of the Immigration and Na-
tionality Act, as amended, since she is deportable solely on a remained longer
charge under section 211(a) (2) of the Act and the basis for deportability is
unrelated to excludability at entry for fraud or misrepresentation. Mrriso-
Sagt v. Immigration and Naturalization Service, 885 U.S. 214 (1968),
distinguished.)

CHARGE:

Order: 'Act of 1952—Section 241(a) (2) [8 U.S.0 1251(a) (2)7—Remained
longer—visitor.
ON BEHALF OF RESPONDENT: ON REMAIN of SEEVICE
Robert S. Bixby, Esquire Irving A. Applerolut
559 Washington Street Appellate Trial Attorney
San Francisco, Calif. 91111 (Brief filed)
(Brief filed) Stephen M. Suflin
Trial Attorney
(Brief filed)

The Immigration Service appeals from a decision of the special
inquiry officer dated September 15, 1967 terminating the above-cap-
tioned. proceedings pursuant to the provisions of section 241(f) of the
Immigration and Nationality Aot (8 U S.C.1251(f) ). A brief in sup-
port of the special inquiry officer's decision has been submitted by
counsel for the respondent.
The respondent, a native and citizen of Korea, last entered. the
United States as a visitor at the port of Honolulu, Hawaii on June 14,
1964. She was granted an adjustment of her nonimmigrant status to
that of a permanent-resident alien under section 245 of the Immi-
gration and Nationality Act (8 U.S.C. 1255) on March 1, 1965.

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Interim Decision #1850
The adjustment of her status was based on a visa petition filed
in her behalf by her citizen husband. Thereafter, in rescission proceed-
ings, the respondent stipulated that she was ineligible for adjustment
of status since her marriage to a citizen of the United States was not
bona fide and was entered into solely for the purpose of evading tht -
immigration laws. She denied, however, that her marriage -was fraud-
ulent and refused to stipulate that she had obtained her adjustment of
status through fraud.
The respondent's marriage to Glenn Alan Nunley, her first husband,
was annulled on February 24, 1965. She married David West, another
United States citizen, on the same day and on November 5, 1965 a citi-
zen child was born of this union. The child lives with the respondent
who is now separated from the child's father.
The respondent's permanent resident status was rescinded on Decem-
ber 1, 1966. She was granted until February 11, 1967 within which to
depart from the United States. She failed to depart and on. May 25,
1967 an order to show cause was issued charging that the respondent
was deportable under section 241(a) (2) of the Immigration and Na-
tionality Act in that after admission as a nonimmigrant under section
101(a) (15) of the said Act, she has remained in the United States
for a longer time than permitted.
The respondent, during the deportation hearing, moved for a ter-
mination of the proceedings on the ground that she was saved from
deportation by section 241(f) of the Immigration and Nationality Act
(8 U.S.C. 1251 (f) ). The respondent contends that her case is governed
by Err ico-Scott v. immigration and Naturalization Service, 385 U.S.
214 (1966). The Errico-Scott ease involved two aliens who obtained a
preferred immigration status by fraud and misrepresentation. The
issue before the Supreme Court was whether section 241(f) of the Im-
migration and Nationality Act saves an alien from deportation who
misrepresents his status for the purpose of evading quota restrictions,
if he has the necessary familial relationship to a United States citizen
or a lawful permanent resident alien. The respondent now has the
relationship required by section 241(f), supra.'
The special inquiry officer concedes in his decision that an alien who
fraudulently has her status adjusted to that of a permanent resident
under section 245 does not fall literally within the terms of section
Section 241 (t) of the Act reads as follows : "The provisions of this section
relating to the deportation of aliens within the United States on the ground that
they were excludable at the time of entry as aliens who have sought to procure, or
have procured visas or other documentation, 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 *mouse, parent, or a child of a United States citizen
or of an alien lawfully admitted for permanent residence."
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241(f) because section 241(f) by its terms deals with aliens who are
"excludable because they procured visas by fraud." He reasons, how-
ever, that in Errico and Scott the Court said that section 241(f) can-
not be applied with "strict literalness" and "even if there were some
doubt as to the correct construction of the statute, the doubt should be
resolved in favor of the alien." The special inquiry officer notes that if
the respondent had obtained a nonquota immigration visa on the basis
of a fraudulent marriage and then entered the United States, her case
would clearly fall within the ameliorating provisions of section 241
(f). The special inquiry officer also notes that in the case of Amarante
v. Rosenberg, 326 F. 2d 58, the court stated that when "an alien seeks
an adjustment of his status by the Attorney General under section 245,
the Attorney General performs the same functions as does a consular
officer when an alien is seeking to enter the country and applies for a
nouquota visa." The special inquiry officer concludes that, since the
situation of an alien who acquires permanent resident status by fraud-
ulently- obtaining an immigration visa from a consul is so closely anal-
ogous to the alien who acquires permanent resident status under the
provisions of section 245, they should be treated alike insofar as section
241(f) is concerned.
Counsel in his brief supports the reasoning of the special inquiry of-
ficer in terminating the proceeding. The Service on the other hand -
maintains that when the respondent's status as a permanent resident
alien was rescinded, she reverted to a nonimmigrant illegally in the
United States because section 246 (a) so provides 2 and the sole basis
for her present deportability is as a nonimmigrant who remained long-
er which has nothing whatsoever to do with excludability for fraud.
The Service relies upon our ruling in Matter of Tsaoonas, lat. Dec. No.
1759, B.I.A., July 27, 1967, which rejected the applicability of section
241(f) where the order of deportation was not based on any charge
of fraud and misrepresentation but was simply predicated on the fact
that after admission as a nonimmigrant temporary visitor for pleasure,
the alien remained for a longer period of time than authorized.
Furthermore, the Service argues that inherent in our decision in
Matter of Alemis, Int. Dee. No. 1794 (BIA, July 12, 1967) is a rejec-
tion of the concept that a section 245 adjustment is to be equated to
"entry" or "procurement of visa" within the meaning of section 241(f).
Alemis arose in rescission proceedings under section 246 of the Act.
Our decision noted that the issue before the Supreme Court in Errico-
Scott (supra) was whether section 241(f) saved from deportation
'The Service relies on that portion of section 246 (a) which reads ". . the
person shall thereupon be subject to all provisions of this Act to the same extent
as if adjustment of status had not been made."

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 nterim Decision 4acee
iliens who misrepresented their status for the purpose of evading
pots restrictions whereas the issue in Alemis was whether the alien
was "eligible" for adjustment of status which he had received and not
whether the adjustment had been fraudulently obtained. The Service
argues that by statute (section 246(a) ) the Attorney General must
rescind for ineligibility, not fraud, and once the status has been re-
scinded the alien in such a. case reverts to a "remained longer non-
immigrant" and by virtue of this fact section 241(f) relief is not
available because fraud is not in issue.
We are mindful of the fact that the Supreme Court in Erric ' o-Scott
stated that "the fundamental purpose of this legislation (241(f ) ) was
to unite families" and "even if there were some doubt as to the cor-
rect construction of the statute, the doubt should be resolved in favor
of the alien." There aro basic fundamental differences, however, which
distinguish Errico-Scott from the case before us. Both Errico and Scott
"entered" the United States with visas for permanent residence that
they had obtained by fraud or misrepresentation. The respondent on
the other hand "entered" the United States as a nonimmigrant visitor
for pleasure and presented a "temporary visa" which she had lawfully
obtained. The respondent's entry as a nonimmigrant visitor, by statu-
tory definition, was not for the purpose of family reunification, because
before such a visa may issue, the alien must establish to the satisfaction
of the consular officer that he has a residence in a foreign country
which he has no intention of abandoning and that he is visiting the
United States temporarily for business or pleasure (section 101(a)
(15) (B)). Furthermore, there is no need for a waiver comparable to
section 241(f) in the case of a nonimmigrant visitor because section
212(d) (3) permits the granting of discretionary waivers to aliens
excludable under section 212(a) (19).
Section 241(f) by its very terms applies to aliens who were exclud-
able at the time of their entry by reason of some fraud or misrepre-
sentation by which they effected their entry. The respondent now finds
herself subject to deportation not because of a fraudulent entry but
because she has remained in the United States longer than the im-
migration laws permit. Her status as a permanent resident alien was
rescinded, not for fraud in the procurement of entry documents, but
for the reason that she was not "eligible" to obtain the immediate issue
of an immigration visa because there was no valid marriage to a United
States citizen on which to predicate a petition for nonquota status.
When her status as a permanent resident alien was rescinded, she
reverted to a nonimmigrant in the United States illegally, a mandatory
requirement under section 246(a) of the Act. This is the sole basis
for her deportability, and it has nothing whatsoever to do with exclud-

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ability for fraud. The cases of Enrico-Scott are clearly distinguishable
from the case before us. Cf., Ferrante v. Immigration and Naturaliza-
tion Service, Nos. 16658-17854 (C.A. 6, February 7, 1968). We con-
clude on the basis of the foregoing that section 241(f) of the Immigra-
ti on and Nationality Act has no application to the respondent's case.
The respondent is the parent of a minor citizen child. She is now
tho sole support of this child, as she is separated from the child's
father. The Service has no objection to a remand of the case to the
special inquiry officer to afford the alien an opportunity to make appli-
cation for discretionary relief and for a full exploration of the possi-
bilities for adjustment and relief. An appropriate order will be entered.
ORDER: It is ordered that the decision of the special inquiry officer
terminating the above-captioned proceeding be and the same is hereby
set aside.
It is further ordered that these proceedings be remanded to the spe-
cial inquiry officer for the purposes set forth above.

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