Interim Decision #1863
MATTER OF Worm
In Deportation Proceedings
A-14490364
Decided by Board May 23, 1968
The term "inspected" within the purview of section 245 of the Immigration and
Nationality Act, as amended, means that an alien presented himself before a
proper official of the Immigration Service for inspection as an alien or if he
presented himself as a United States citizen he honestly and truthfully believed
:he was a citizen [Matter of Wong, 11 I. & N. Dee. 712, reaffirmed]. Hence,
respondent, who was admitted to the United States upon a knowing false claim
to citizenship has not been "inspected and admitted" within the meaning of
section 245 of the Act and, therefore, is statutorily ineligible for adjustment of
status under that section.
CHARGE :
Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)3—Entered with
out inspection.
ON BVIVATV OF RESPONDENT: ON BEHALF or SERVICE:
Nathan T. Notldn, Esquire, Maurice Glover
11 South La Salle Street Trial Attorney
Chicago, Illinois 60603
(Brief filed)
The case is before us on appeal from the decision of the special
inquiry officer finding respondent deportable as charged, denying his
application for adjustment of status -under section 245, Immigration
:and Nationality Act, and granting the privilege of voluntary departure
with an alternative order of deportation to the Republic of China on
Formosa if respondent did not leave the United States as and when
directed. The appeal is from that portion of the order denying respond-
•nt's application for adjustment of status under section 245.
The respondent is a 34-year-old married male alien, a native and citizen of China, who wns admitted to the -United States at Honolulu,
Hawaii on or about July 14, 1962 upon a false claim to United States
citizenship. Respondent admitted the allegations of fact contained in
the order to show cause and 'he conceded that he is deportable as
'charged.
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Interim Decision #1863
After the original deportation hearing on December 7, 1966 the proceedings were reopened upon respondent's motion for consideration of
an application for adjustment of status under section 245 of the Act,
which application was denied by the special inquiry officer on January 15, 1968. The instant appeal ensued.
The special inquiry officer found that respondent was not statutorily
eligible for adjustment of status for the reason that he was not inspected and admitted to the United States as required by the provisions of section 245. He found that the respondent secured admission
to the United States when he first arrived on September 20, 1950 and
then later when he entered on July 14, 1962 upon the basis of a
knowing and willful false claim to United States citizenship. It is
settled law that one who enters the United States upon his knowing
false claim to citizenship has not been "inspected" pursuant to the
provisions of section 245 of the Immigration and Nationality Act, as
amended? In Matter of T V mg, II 1. & N. Dec. 712, we affirmed previous
decisions made by the Board dating back to 1946 that an alien who
honestly believed that he was a citizen and appeared before an immigrant inspector can properly be considered to have been inspected
within the meaning of the immigration laws but that if he knowingly
and willfully falsly claims United States citizenship he was not inspected. Counsel contends that we should at this time abandon this
position and hold that it should not make any difference whether
the alien believed or did not believe he was a citizen and that he
should in both instances be considered as having been inspected. We
will not deviate from our previous position in this matter but we
reaffirm our holdings that the term "inspected" in section 245 of the
Act can have no other meaning than that an alien presehted himself
before a proper official of the Immigration Service for inspection
as an ahem or if presenting himself as a United States citizen, he
honestly and truthfully believed he was a citizen.
The sole question of fact for determination is whether respondent
honestly believed that he was a citizen of the United States when he
entered or whether he knew that he was not a citizen but still gained
entry by elniming citizenship. A most careful review of the record
leads us to the conclusion reached by the special inquiry officer that
respondent was aware that he was not a citizen when he claimed
that he was upon entry. A personal history statement was given by
respondent on February 1, 1966 to the Immigration and Naturalization Service, (Ex. 4). This statement was given at a time when
2 Goon Mee Iteung v. Immigration and Notvranzagion Service,
280 F.2d 236
,
(1st Cir., 1967) Matter of
9 I. & N. Dec. 599
; Matter of Woo, 11 I. & N.
Dee. 706.
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Interim Decision #1863
respondent had surrendered for cancellation the Certificate of United
States Citizenship previously issued to him and was attempting to
regularize his immigration status. The statement was in the nature of
a confession as to respondent's true identity and immigration history
and in the statement he says he knew when he entered the United
States in 1950 and again in 1962 that his alleged "father" through
whom ho claimed United States citizenship was not in fact his father
(Ex. 4, pp. 10, 12). At the reopened hearing subsequently held respondent contradicted these statements and others made by him under oath
when he gave the personal history statement in February 1966. The
special inquiry officer found that respondent's testimony at the reopened hearing was not credible or worthy of belief. The hearing
.officer enjoys an inestimable advantage of seeing and hearing the
witness and judging his demeanor and is in the best position to determine the accuracy, reliability and truthfulness of his testimony. 2
There is no basis for overruling the decision of the special inquiry
officer. Accordingly we will dismiss the appeal.
ORDER: It is ordered that the appeal be and the same is hereby
-dismissed.
a Tedaro v. Pederson,
