Interim Decision #1897
MALIArt of ENO
In Deportation Proceedings
A-13753885
Decided by Board .August B8, 1968
The benefits of section 241(f) of the Immigration and Nationality Act, as
amended, are not available to waive an alien's deportability based on a substantive ground of inadmissibility at entry under section 212(a) (23) of the
Act relating to conviction of illicit possession of narcotic drugs.
CHARGE:
Order: Act of 1952—Section 241(a) (1) [8 1251(a) (1)]—Exclndable at time of entry as within section 212(a) (28) of
the Act [S 1J.S.O. 1182(a) (28)] ( alien convicted under
law relating to the illicit possession of narcotic drugs).
ON BEHALF OF RESPONDENT ON BEHALF OF SERVICE :
Samuel B. Waterman, Esquire Irving A. Appleraan
111 Broadway Appellate Trial Attorney
New York, New York 10006 Emil M. Bobek
(Brief filed) Trial Attorney
(Brief filed)
Respondent appeals from the special inquiry officer's order finding
him deportable upon the ground stated in the caption. Voluntary
departure was granted. Respondent claims (1) that he is not deportable because he was not properly convicted, and (2) that even if he
were convicted, the provisions of section 241(f) of the Act remove
him from liability to deportation. The appeal will be dismissed.
Respondent, a 39-year-old married male, a native of China and a
citizen of the Republic of China on Formosa, was admitted for permanent residence on. August 30, 1966, with an immigrant visa issued
at Hong Kong on May 19, 1966. The Service charges he was excludable at the time of this entry because of his conviction in the Magistrate Court at Kowloon, Hong Kong, on February 2 1, 1966, for unlaw-
-
ful possession of dangerous drugs (heroin) in violation of section 10
of chapter 134 of volume IV of the Dangerous Drugs Ordinance (EL
2). (He was sentenced to pay $800 or serve two months at hard labor.)
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The special inquiry officer upheld the charge. He held that the conviction brought respondent within the section of the Immigration Act
which bars entry of an alien convicted for violating a law relating to
the illicit possession of narcotic drugs (section 212(a) (23) of the Act
(8 U.S.C. 1182(a) (23) ).
Respondent contends that he did not have due process, because the
special inquiry officer refused to permit him to present evidence that
he was deprived of counsel at his criminal trial. He contends that his
conviction was defective, because the act described by the conviction
record fails to show that he violated the law under which he was
charged.
The contentions must be rejected. It is well established that we are
bound by the conviction record (Matter of Adamo, 10 I. & N. Dec.
593). If counsel wishes to attack the conviction on the grounds advanced, he must do this in the jurisdiction where it occurred. Furthermore, the record shows that respondent was charged with unlawful
possession of heroin under a law which made it illegal to unlawfully
possess a dangerous drug and which specifically named heroin as a drug
to which the law applied (Ex. 3, p. 39, First Schedule, par. 3). Respondent's conviction made him deportable as charged (see Matter of
Romandia-Herreros, 11 &N Dec. 772).
COunsel contends that even if respondent comes within the terms
of section 212(a) (23), he is nevertheless relieved from liability to
deportation by section 241(f) of the Act. 1
The short answer to counsel's contention is that section 241(f)
applies only when the charge on which the Service seeks to deport an
alien requires proof that fraud existed. Here the charge is one which
does not require proof of fraud. It is, therefore, unnecessary to consider respondent's contention (Matter of Tsaconas Int. Dec. No.
1759). Nevertheless, because similar contentions are often raised about
section 241 (f) , we shall state our position on it.
The Service charges that respondent is deportable because he was
inadmissible to the United States when he entered, since the law requires the exclusion of one convicted of violating a narcotic law. Some
general information about what makes an alien inadmissible will be
helpful in understanding the scope of section 241(f). An inadmissible
'Section 241(f) of the Immigration and Nationality Act provides:
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
us aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall
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.
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alien is one immigration restrictions bar from entry. Immigration restrictions fall into two categories: (1) those which put a limit on the
number of aliens who shall enter (numerical or quantitative), and (2)
those which seek to provide that only the morally, mentally, and
physically fit shall enter (qualitative). Numerical control of entering
aliens is achieved through the requirement that an immigrant have a
visa to enter. Some factors in the allocation of visas under numerical
limitations are in alien's training, his place of birth, and his relationship to United States citizens or to legally resident aliens. Important
exemptions from the numerical limitations in the allocations of visas
depend upon the alien's relationship to a United States citizen and
his place of birth. One who obtains a visa without the proper qualifications is inadmissible_
Qualitative restrictions provide that no imdersirable alien shall
receive a visa or be admitted. Undesirable aliens are those physically,
mentally or morally disqualified; the subversives; and the violators of
criminal, immigration, or narcotics laws (S. Rep. 1515, 81st Cong.
bld Sess. 66-71 (1950)) ; Besterman, Commentary on Immigration and
Natura2ization Act, 8 U.S.C.A. pp. 18-34,51-54 (1953).
The Service charges respondent with being inadmissible on a qualitative ground—he was convicted of violating a narcotic law. He could
have been charged with being inadmissible on another qualitative
ground—he violated the immigration laws by obtaining entry by
fraud (sec. 212(a) (19) of the Act). He could have been charged on a
quantitative ground—he was one not in possession of a valid visa (sec.
212(a) (20) of the Act. A visa obtained by fraud is not a valid one.
The fact that an alien is inadmissible does not mean that he inevitably must be barred from entry. Waivers of specific grounds of
inadmissibility exist. Under certain circumstances and in the discretion of the Attorney General, an inadmissible alien may be permitted to enter for permanent residence despite the fact that he is
mentally retarded, afflicted with tuberculosis, had an attack of insanity
(sec. 212(g) ) , has been convicted of crime, 2 is a. prostitute (sec.
212(h) ), sought to enter by fraud or admits the commission of perjury
(see. 212(i)). If the alien succeeds in entering and is deportable
because he secured entry by fraud, he is removed from liability to
deportation on that ground under certain circumstances (section 241
(f)). The Attorney General has the discretionary power to admit
= Respondent's deportation is not sought on the ground that he was inadmissible under section 212(a) (9) or (10) of the Act as one convicted of crime
or crimes. His deportation is sought under other provisions, because he was convicted of the violation of a narcotic law (sec. 212(a) (23), sec. 241(a) (1) ).
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an alien convicted of a narcotic violation if he is returning to resume
a lawful domicile of seven consecutive years (sec. 212(c)). There
is no other provision authorizing the entry of, or making nondeportable, one convicted of violating narcotic laws.
Counsel contends that section 241(f) makes respondent nondeportable. We must reject the contention. On its face, section 241(f)
contains three requirements: (1) a. family relationship—respondent
has this; (2) that the respondent be deportable for 2. fraudulent entry;
counsel believes that respondent comes within the section because he
did in fact obtain a visa by fraud since he did not reveal his conviction; (3) that the alien be inadmissible only because he made
a fraudulent entry—respondent is inadmissible for a narcotic violation, and would for this reason be outside the reach of the section.
Counsel contends the third requirement is met because section 241(1)
waives any ground of inadmissibility which was concealed by misrepresentation. Thus, he contends, the ground of inadmissibility based
on the narcotic conviction is waived, and respondent becomes "otherwise admissible" than by reason of the commission of fraud.
Counsel seeks support for his position in Immigration and Naturalisation Service v. Errioo, 385 U.S.. 214 (1986), in which the Court interpreted section 241(f). Counsel believes the following language justifies the conclusion that section 241(f) provides a blanket waiver of the
grounds of inadmissibility which an alien concealed :
The intent of the Act [Public Law 85-316, 71 Stat. 689 (1957), containing
the section which later became section 241 (i)l is plainly to grant exceptions
to the rigorous provisions of the 1952 Act for the purpose of keeping family
units together. Congress felt that, In many arcumatancea, it was more important to unite families and preserve family ties than it was to enforce strictly
the quota limitations or even the many restrictive sections that are designed to
keep undesirable or harmful aliens out of the country. (at 220, footnote omitted)
We believe that Enrico fails to support counsel's contention. In
fact, it supports the conclusion that an alien's inadmissibility as one
convicted of a narcotic violation is a disqualifying factor which prevents the application of section 241(f) .
Let us consider Erric ' o and Scott, the companion case dealt with
in the same opinion (Scott v. Immigration and Naturalization Service). Enrico and Scott, immigrants barred from entry by numerical
restrictions, both, by false misrepresentations, gained a status which
enabled them to avoid these restrictions : Enrico, by falsely representing
that he was a skilled worker, gained an allocation under the quota to
which he was not entitled; Scott, by falsely representing that she was
the wife of a United States citizen, gained an exemption from quota
limitations to which she was not entitled. Because the aliens did not
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have valid visas, they were barred from entry on a quantitative
ground, and it was this ground the Service advanced for their
deportation.
The question before the Court was whether section 241(f) which on
its face waived only a qualitative ground—the bar to entry resulting
from the obtaining a fraudulent visa, and conditioned its applicability
on the alien being "otherwise admissible," was meant to also waive
the quantitative restriction which each alien had avoided.' The Court,.
going to the history of the section for the answer, ruled that the
quantitative restriction was also waived because the law had been
passed to give relief to aliens who had evaded quantitative restrictions.
(or had avoided an investigation which would not have revealed a disqualifying factor) 4 and it would be meaningless under such circumstances to hold that the alien had to be deported unless he complied
with the quantitative restrictions by getting a valid visa. The Court
did not rule that section 241(f) makes nondeportable an inadmissible
alien who concealed a ground of disability not relating to numerical
limitations.
When the quotation relied upon by counsel is considered in light
of the issue before the Court and in light of the Court's ruling, it does
not appear to be authority for the rule urged by counsel. When the
quotation is read in contest, it will be seen that it was not applied
to section 241(f) or its predecessor. The Court directed these remarks
to specific waivers concerning quotas, tuberculosis and conviction of
crime that appeared in the 1957 Act. It is in the paragraph that follows the one from which the quotation is taken that the Court discussed
the predecessor to section 241 (f).
To adopt counsel's contention that whatever was lied about is
waived would result in a situation where aliens who did not lie about
their inadmissibility on criminal or prostitution grounds could obtain
a waiver of their inadmissibility only in the discretion of the Attorney
General under safeguards and a finding by the Attorney General that
their entry would not be contrary to the national interest (secs. 212
(h), (i) ), but aliens inadmissible on the same grounds who lied about
'The Court pointed out that the "issue is whether the statute saves from
deportation an alien who misrepresents his status for the purpose of evading
quota restrictions … s." 385 US at 215.
The Court stated, "Congress meant to specify two specific types of fraud that
would leave an alien 'otherwise admissible' … (385 US at 223)." The two
types of fraud that the Court stated would leave an alien otherwise admissible are
"fraud for the purpose of evading quota restrictions" (385 US at 222) and "fraud
for the purpose of evading an investigation … if there were no other disqualifying factor" (385 U.S at 223).
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the disqualifying factors would be free from liability to deportation
without condition even if their continuous presence were contrary to
the national interest. (Section 241(f) is not discretionary but a matter
of right (see Matter of Manchisi, Int. Dec. No. 1711).) Moreover, an
administrative waiver of the narcotic ground of inadmissibility is only
available to an alien entering to resume a lawful domicile of seven
consecutive years. The grant of the waiver is a discretionary matter
for the Attorney General (sec. 212(c) ). Yet, under counsel's reasoning
an alien who entered by misrepresentation concerning the same ground
of inadmissibility would not be deportable even if he had no prior
residence in the United States and even if his record would not justify
a grant of relief, if relief were a discretionary power. We do not
believe that this was what Congress intended.
In summary, we hold that section 241(f) relieves from liability to
deportation the alien who entered fraudulently, if, the fraud being
overlooked, he would have been admissible with the proper immigration document Applying this rule to respondent's case we find
he remains subject to deportation, for although his fraud is disregarded, and he is considered to be in possession of an immigrant
visa, he remains inadmissible because his conviction of a narcotic
violation bars his entry under section 212 (a) (23) of the Act.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Still
