CHAN

                                                   Interim Decision #1799




                             MATTER OF CHAN

                      IN DEPORTATION PROCEEDrN08

                                 A-18786380

                   Decided by Board October 4, 1967
The provisions of section 241(f) of the immigration and Nationality Act, as
 amended, do not encompass the ease of an alien who entered the United States
 surreptitiously, without making any fraudulent misrepresentation to an immigration officer (having been smuggled in the rear of a delivery track). [Matter
 of Cordero Santana, Int. Dec. No. 1694, and Hatter of K—, 

,
            -


 distinguished; Errico v. L & Y. Service, 

 (1966), inapplicable.]
CHARGE :

  Order : Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)3—Entered
                       without inspection.
ON BEHALF OF RESPONDENT: Ernest J. Hover, Esquire
                       409 Semler Building
                       621 S.W. 8rd Avenue
                       Portland, Oregon 97204


   The respondent, a native and citizen of China, appeals from an
 order entered by the special inquiry officer on June 80, 1967 directing
his deportation on the charge that he last entered the United States
without inspection (section 241(a) (2), Immigration and Nationality
Act; 8 U.S.C. 1251(a) (2) ). Counsel on appeal urges error on the part
of the special inquiry officer in denying a waiver under the provisions
of section 241(f) of the Immigration and Nationality Act and for
denying the respondent's application for voluntary departure in lieu
of deportation.
   The respondent, a married male alien, 47 years of age, last entered
the 'United States at the port of Detroit, Michigan on July 12, 1962.
He was smuggled into the United States in the rear of a delivery truck
from Windsor, Ontario to Detroit, Michigan. He did not present himself for inspection by an immigration officer and is deportable as
charged in the order to show cause.
  The respondent seeks a waiver of his deportability under the provi-


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Interim Decision #1799
sions of section 241(f) of the Immigration and Nationality Act. He
cites the Board's decision in the case of Cordero-Santana (Int. Dec.
No. 1694) as authority for his eligibility for a waiver under section
241(f) (supra). The special inquiry officer finds that the respondent is
ineligible for relief under the authority of the Cordero-Santana case
 (supra) because unlike Cordero-Santana the respondent is not charged
with being deportable under section 241(a) (1) of the Immigration
and Nationality Act as an alien excludable at the time of entry who
procured a visa or document or entry into the United States by fraud
or misrepresentation. The special inquiry officer reasons that the respondent is an alien not otherwise admissible at the time of entry
because he never satisfied the documentary requirements of the Act.
   We agree with the special inquiry officer that the respondent's case
is distinguishable from that of Cordero-Santana (supra). Furthermore, we are of the opinion that our decision in Matter of K—, 

, does not support counsel's claim that the principle set forth
in Errioo v. Immigration and Nagundiection Service, 385 'U.S. 214
 (1966), is applicable to the respondent's case. K— was found deportable under the provisions of section 241 (a) (1) as an alien excludable
at the time of entry under section 212(a) (9), to wit, an alien convicted of crime and under sect ion 241 (a) (2) as an alien who entered
                                -


without inspection. Relative to the entry Without inspection charge.
K— entered by falsely claiming to the immigration officer that he was
a citizen of the United States. His entry, therefore, was by fraud in
that he misrepresented his true nationality. We held that section 241 (f)
required the termination of the deportation proceeding since the alien
would have been admissible except for the fact that he made a misrepresentation to secure entry and he became an "otherwise admissible
alien" pursuant to waivers under sections 211(b) and 212(c) of the
Let
   The respondent's case, however, is distinguishable from Matter of
K—. While it is true that he entered "without inspection" nevertheless
he entered surreptitiously and made no fraudulent misrepresentation
to an immigration officer. The Supreme Court's decision in Enka
 (supra) held that section 241(f) waived any deportation charge that
resulted directly from the misrepresentation regardless of the section
of the statute under which the charge was brought provided that the
alien was "otherwise admissible" at the time of entry. Since the deportation charge here under consideration did not result from any
misrepresentation on the part of the respondent because he entered
surreptitiously, we conclude that the Supreme Court's decision in
Errko is not applicable here.
  The respondent applied for the privilege of voluntary departure

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under the provisions of section 244(e) of the Immigration and Nationality Act. The special inquiry officer denied the respondent's application on the ground that he (respondent) made no assurance that he
would depart promptly from the United States as required by 8 CFR
244.1.
   We have carefully reviewed the record with regard to this finding.
The respondent when questioned as to whether he would comply with
an order granting voluntary departure replied, " I hope the Government will allow me to stay." The special inquiry officer intervened and
informed the respondent, "You are not answering the question." The
respondent replied, "This question I do not know how to answer." The
trial attorney then stated for the record, "We will drop that inquiry.
We submit there is no intention on the part of this respondent .to
depart from the United States, and that he will not go" (pp. 25, 26).
  The respondent has a wife and seven children who are lawful residents of the United States. They entered as refugees on December 26,
1962. It is alleged that he operates a restaurant business which has a
volume of $10,000 annually. His father has resided in the United
States at Portland, Oregonlor many years. We are of the opinion that
on this record the grant of voluntary departure in lieu of deportation
is warranted. An appropriate order will be entered.
  ORDER: It is ordered that the outstanding order of deportation
be withdrawn and the alien be permitted to depart from the United
States voluntarily without expense to the Government, to any country
of his choice, within such period of time, and under such conditions as
the officer in charge of the District deems appropriate.
         -   -


   It is further ordered that if the alien does not depart from the
United States in accordance with the foregoing, the order of deportation be reinstated and executed.




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