REIMER

                                                    Interim, .uecision 4:p rivu




                             MATrEz or REEILER
                        In Deportation Proceedings
                                 A-11629955
                 Decided by Board September 18, 1967
Where respondent, a lawful permanent resident, following a few hours visit to
 Oast Berlin in February 2904 was advised by the American Consul in Berlin
  that his lifted Form 1-151 was no longer valid for return to the United States.
  but that he could apply for a new visa, a process which could take a year to
  complete, such advice is presumed to be correct and not to constitute a gross
  miscarriage of Justice in the absence of evidence of record that the consul
  erred.
Ones= :
 Order: Act of 1952—Section 241(a) (1) 18 U.S.C. 1251(a) (1)]—Exeludable
                        at time of entry—No immigrant visa or other valid
                        entry document.
 Lodged: Act of 1952—Section 241(a) (2) ES U.S.O. 1251(a) (2)3—Entered.
                           without inspection.
 Or BEHALF or RESPONDENT:                ON Beminr or &noun :
   David Oarliner, Esquire                 Irving A. Appleman
   Washington, D.O.                        Appellate Trial Attorney
   (Oral argument)                          (Oral argument)
   Z. B. Jackson, Esquire
   580 Washington Street
    San Francisco, California 94111
    (Counsel of record)

   Respondent, a 28-year-old male, a native and citizen of Germany
admitted to the United States for permanent residence in 1959, testified that he went to Germany in 1963 to visit his sick mother. _He expected to stay about six months. In January and February, 1964 he
visited East Berlin for a few hours. Upon his last return, he reported
to West German police that he had been asked to act as a spy. The
polies lifted his alien registration card (Form I-151) and forwarded
it to the American consul. The respondent testified that in February,
1964 the consul told him that the card was no longer valid for return,
to the United States, but that he could apply for a new visa, a process
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     321-854--69-80
 Interim Decision #1790
 which could take as long as a year to complete. Respondent took a visa
 application form but did not fill it out. A few months later, acting
 on the advice of a friend, he posed as a United States citizen, and applying at a different consulate, secured a United States passport in
 his own name. He reentered the United States as a United States
 citizen with the passport.
     The special inquiry officer held that the consul's advice to respondent constituted a gross miscarriage of justice which should be corrected
   by considering respondent as having been admitted to the United
  States as a returning resident when he last entered. The special inquiry officer did this and terminated proceedings.
     The Service contends that the record does not establish that the
  consul erred in advising respondent that his alien registration card
  could no longer be used to return because of the East Berlin visit. We
 believe this contention is correct. There is a presumption that a government official does his duty correctly. There is no evidence in this
  file to overcome the presumption. At the time of respondent's visit,
  the regulation (8 CF11 211.1) invalidated an alien registration card
  for use to return if the alien had traveled to "the Soviet Zone of Germany (`German Democratic Republic')." On the face of the regulation there is no exemption for a visit to East Berlin. (An informal
  inquiry with the State Department revealed that it was not until
 November 12, 1964 that the State Department issued instructions that
 East Berlin was not to be included in the term "Soviet Zone of Germany.") The presumption that consul acted properly in this matter
 is therefore not overcome by evidence of the record.
     The special inquiry officer assumed that the consul failed to advise
 respondent that he could have obtained a visa as a returning resident—
 a process the special inquiry officer assumed could have been completed
 in a relatively short time. Here again there is a failure to overcome
 the presumption that consul acted properly. When the consul spoke
 of a new visa, he could well have meant a visa as a returning resident.
 When he spoke of the time involved, he could well have had in mind
 the time which it would have taken to determine whether the respondent was a returning resident (it is to be noted respondent committed
a criminal act in the United States before his departure)—a determination which may have involved the advice of the Washington
 office. Consul might also have had in mind delay which could have
 been encountered because of administrative backlogs. We cannot on
this record find there was a gross miscarriage of justice in the advice
given to the respondent.
    As far as this record shows, he needed a visa to enter and did not
have one when he entered. The first charge is therefore sustained. It

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is clear respondent entered the United. States by representing himself
to be a citizen of the United States. The second charge must therefore be sustained.
   Respondent has applied for a waiver of documentary requirements.
Counsel points out that respondent voluntarily reported the attempt
to engage him in espionage. We shall return the case to the special ,
inquiry officer for reconsideration in light of what we have stated,
so that further evidence may be adduced if such is the desire of the
parties, and so that the respondent may pursue any application for
relief for which he believes he is eligible.
   ORDER: It is ordered that the special inquiry officer's order of
February 10, 1967 terminating the proceedings be and the same is
hereby withdrawn.
  It is further ordered that the proceedings be reopened for action
not inconsistent with what we have stated in our discussion. The order
of the special inquiry officer shall be certified to the Board.




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