Interim Deeislon #1487
MATI211 OF EsTRADA-11/10y.ENA,
:131 Deportation ProCeedingi
• 'A-10551015
A-10551431a
Dookleelby ifocird June 11, 1966
The special inquiry Gower nag authority-in deportation proceedings to grant A.
mow pro tone waiver of the passihrt requirement under section. 211(e), 7.m,
migration and Nationality Act,
Onsium• •
Order: ACV of 1852—Section 241(6)(1) (8 17.8.d. 1251(a) (1)]—Excludable-
•• as immigrant not in possession of valid unexpired,
passport (ad to each respondent)
-;:
The respondents; a sister and brother, 18 and 11 years of age re-,
spectivelYiere natives and citizens of Mexico. They haiebeen found.
deportable se aliens who .were excludable at the time of their entry
as immigrants not in possession of valid unexpired passports and
not exempt from the possession thereof by said Act or regulations
made thereunder pursuant to section 212(a) (20) of the Immigration
and Nationality Act. An order entered by the special inquiry officer ,
on.April 7, 1965 grants a walver,of the passport requirement, 1111414,
pro tune, as of the time of their admission to the 'United S4tes.for,
permanent residents at El Paso, Texas, on April 23, 1956. "The order
terminated. the proceedings and certified the case to the Board of
Immigration Appeals for final decision.
The respondents were issued immigration visas in 1956 as a ie.sult
of a scheme evolved. by their parents to enter the United States for'
permanent residence. The mother of the respondents obtained. birth.'
records relating to one Micaela Moreno who was born in Ontario,
California. The American Consul•at Afarez, Mexico, issued the respondents and their father immigration visas for permanent residence and they were admitted as immigrants at El Paso, Texas On
4-p41•2a,.1956. The Piissport requirement was waived by the consul
in accordance with the proitisioos of 22 CFR 42.36.
249
interim 'Decision 4t1487
The evidence establishes that the two respondents were admitted
on April 23, 1956, as immigrants upon a. waiver of the passport requirement pursuant to 8 OFR 211.2, which waiver was granted to
them as a result of the misrepresentation that their mother was a
United States citizen when in fact she was not a citizen of the United
States. The evidence also establishes that the respondents were excludable on April 23, 1956, as aliens who were immigrants not in
possession of a valid unexpired passport or other suitable travel
document. We affirm the finding of the special inquiry officer that
the respondents are deportable as charged in their respective orders
to show cause.
The respondents have applied for a waiver, Irmo pro tune, of the
passport requirement (Exhs. 12 and 13). • Section 211(e) of the immigration and Nationality Act requires that every immigrant must
present a valid unexpired passport if such document is required.
under thi%-regulations issued by the Attorney 'General. These regulations are found in 8 CFR 211.2. The regulation provides among
other things that the district director in charge of the port of entry
may grant a passport waiver where there is good. cause for failure to
present the required documents. The application for a waiver may
be presented. to the special inquiry officer during an exclusion proceeding in the event the district director should refuse to grant a
waiver .of the passport requirement (8 CFR 235.7). Accordingly
under 8 CFR 235.7 the special inquiry officer does have authority to •
consider an application for a waiver of the passport requirement
where such application is made during the course of an. exclusion
hearing. -
The special inquiry officer is of the opinion that since a deportation charge under section 241(a) (1) of the Act is in effect a 'delayed
exclusion proceeding and reaches all those who manage to enter the
United States in violation of the excluding provisions of the law he
may entertain and consider an application for a waiver of the passport requirement, nuns pro tune, with reference to date when the
alien was admitted to the United States as an. immigrant and at
-.which time he was not in possession of the required passport. The
special inquiry officer relies upon 8 CFR 242.17(d),1 for the authority to grant said waiver. We agree with the special inquiry officer
that he has authority to grant the relief requested by the
respondents.
CFR 242.17(d) reads as follows: "Nothing contained herein is intended
to foreclose the respondent from applying for any benefit or privilege which he
believes himself eligible to receive in proceedings under this part."
250
Interim Decision #148T
The trial attorney is of the opinion that _the special inquiry officer
does not have authority to grant the waiver provided by section.
211(e), none pro tuna The trial attorney argues that since the respondents did not have the relationship to a United States citizen.
which would exempt them from presenting a passport this deficiency
cannot be cured by ii/UTIV pro how action. The trial attorney maintains that a Rune pro taw order should correct the record to state•
the facts as they existed at the time of the respondents' entry for
permanent residence in 1956. It is argued that the respondents are
unable to avail themselves of the benefits under the law which
existed at the time of their entry because they were excludable under
the' provisions of section 212(a) (15) as aliens likely to became a
public charge.
We find no basis for the exceptions raised by the trial attorney.
There is no evidence that the respondents were ineligible for nonquota immigration visas at the time of their entry in 1956. Con- .
cernigthaloferit'n3•haeywouldv
been inadmissible as aliens likely to become a public charge we note
that they have resided in the United States for nine years and have
not become public charges. 'Under 8 CFR 211.2(g) the burden is
upon. the respondents to establish that there is "good cause for failure to present the required document." Unfortunately the respondents were not children of a United States citizen but this misrepresentation on the part of their parents when they applied for the respondents' nonquota immigration visas should. not inure to the detriment of the respondents themselves. Under the regulations which
existed at that time 2 the consul did have the authority to waive the
passport requirment for a citizen of Mexico. We conclude that the
respondents have piesented good cause for failure to have obtained
the required Mexican passports and will affirm the grant of the
waivers of the passport requirement by the: special inquiry officer,
The regulation at that time read as follows:
"42.38 . . . (a) except as provided in paragraph (b) of this section, every
alien applying for an immigrant visa shall present to the consular officer a
Passport • • •
(b) . . . an immigrant within any of the following categories shall not be
required to present a passport in applying for an immigrant visa: . . .
(5) an immigrant who is the parent, spouse or unmarried son or daughter
under twenty one year's of age, of a 'United States citizen."
-
Following a requirement by Mexico that her antimatter have a passport when
departing from that country the regulation was amended in 1958 bg, adding the
following language to clause (5) :
"unless such immigrant is applying for a visa in the country of which he is a
national and the possession of a passport is required for departure from such
country."
251
Interim Decision #1487
Rune pro tune. The order terminating the proceedings will be affirmed (Cf. Matter of G—,
6 I. & N. Dec. 9
, 14.)
ORDER: It is directed that the order entered by the special inquitr•officer on April 7, 1965, granting the respondents a waiver of
the passport requirement viuno pro tune as of t14+ time of their admission at El Paso, Texas, on April 23, 1956 as nouquota immigrants
and terminating this proceeding be and the same is hereby affirmed..
252 •
