QUAN

                                                    Interim Decision #1802




                              MATTER OF QUAN

                         In Section 246 Proceedings

                                 A-12776380

     Decided by Deputy Associate Commissioner October 12,1967
Since the Service may exercise discretion in determining whether rescission proceedings under section 240 of the Immigration and Nationality Act shall be in
           in any individual case, where respondent is the mother of two U.S.
  citizen children and there is no indication that she had knowledge of her husband's false claim to citizenship at the time of adjustment of her status under
  section 245 of the Act as a nonquota immigrant in 1963 or at any time prior to
  his confession of alienage in 1965, the District Director's order rescinding
  respondent's adjustment of status is vacated as improvident.

  The applicant is a 33-year-old native and citizen of Peru. She last
entered the United States as a temporary visitor on December 21,
1961. Her status was changed to that of a nonimmigrant student on
August 17, 1962. On November 7, 1962 she married QUAN Hong Seung
who claimed to be a citizen of the United States. On December 4, 1962
he submitted a visa petition on behalf of the applicant. The petition
was approved by the Service on December 30, 1962 to accord her nonquota classification as the spouse of a citizen of the United States. On
March 1, 1963 hor application under section 945 of the Immigration
and Nationality Act .was approved by the District Director of the
Service at New York City to accord her status as a permanent resident alien. The applicant has since given birth to two daughters, both
born in Brooklyn, New York, on November 21, 1963 and May 20, 1965
respectively.
   On November 23, 1965, the applicant's husband confessed that he
was not a citizen of the United States, that he was, in fact, a native and
citizen of China, and that he had entered the United States by falsely
claiming to be a United States citizen. On July 1, 1966 the District
Director notified the applicant that, pursuant to section 240 of the Act,
he intended to rescind her adjustment of status, on the ground that she
was not entitled to the nonquota immigrant status which had been
accorded her as the spOuse of a United States citizen. She was granted


                                     487
Interim Decision #1802
30 days from the date of the notice to submit representations against
the proposed rescission or to request a hearing before a special inquiry
officer. When she failed to respond, the District Director on March 20,
1967 ordered that the adjustment of status which had been granted the
applicant on March 1, 1963 be rescinded, in accordance with section
246 of the Act and 8 CFR 246.2.
  The matter is now before me on certification, for a determination
of whether the rescission order was properly entered and should be
allowed to stand. In that connection, consideration has been given to
the provisions of section 241(f) of the Act which 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 snail not
apply to an alien otherwise admissible at the time of entry who is the spouse.
parent, or a child of a United States citizen or of an alien lawfully admitted
for permanent residence.
   The applicant is the parent of two United States citizens. If she
had been permitted to enter the United States after applying for admission at a port of entry in possession of a nonquota visa fraudulently
obtained by misrepresenting herself to be the spouse of a United States
citizen, and if she were otherwise admissible at the time of such entry.
it is clear that she would be within the purview of section 241(f) and
would be saved from deportability.
   However, in the instant case the applicant acquired permanent resident status through adjustment of status under section 245 of the
Act rather than through admission os an immigrant. at a. port of entry.
 In Matter of Alernis, Interim Decision #1794, the Board of Immigration Appeals held that section 241 (f ) of the Act relates only to the
 question of deportability and does not relate to rescission proceedings
 under section 246 of the Act. The Board held, therefore, that section
 241(f) may not be invoked to bar rescission proceedings in the case
 of an alien whose status had been adjusted to that of a lawful permanent resident when it is discovered that the alien was ineligible
 for adjustment. It follows from the Board's holding in Alemis that,
 if rescission proceedings were properly instituted in the instant case,
they would not be barred by section 241(f).
    Pursuant to section 246 of the Immigration and Nationality Act
the Service has the authority to rescind an adjustment of status within
five years after the adjustment, when it appears that the alien was
ineligible therefor. However, the Service may exercise discretion in determining whether rescission proceedings should be instituted in any
individual case. In the instant case, the applicant is the mother of two

                                     488
                                             Interim Decision #1802
children who are citizens of the United States and there is no indication that she had knowledge of her husband's alienage at the time she
applied for adjustment of her status or at any time prior to his confession of alienage.
   Under these circumstances the expungement of adjustment of status
would be an excessively harsh consequence. Upon consideration of
all the factors involved, it is concluded that the District Director's
order rescinding the applicant's adjustment of status was improvident
and should be vacated, and that no action should be taken to disturb
the grant of adjustment of status in the instant case.
  It is ordered that the order of the District Director dated March 20,
1967 entered pursuant to the authority of section 246, Immigration
and Nationality Act, rescinding the applicant's adjustment of status
be, and hereby is, vacated.




                                 489