Interim Decision #1898
MATTER OF SENIOR
In Deportation Proceedings
A-12357361
Decided by Bawd August 29,1968
Notwithstanding he now possesses the requisite familial relationship, an alien
who entered the United States with a nonqnota immigrant visa obtained on the
basis of his bigamous marriage to a U.S. citizen and a section 212(h) waiver
of criminal grounds of excludability under section. 212(a) (9) of the Immigration and Nationality Act, is Ineligible for the benefits of section 241(f) of the
Act since the section 212(h) waiver is null and void as he was not married
to a citizen at time of grant and, therefore, he was not "otherwise admissible"
at entry, as required by statute.
CHARGES •
Order: Act of 1952—Section 241(a) (1) [8 1251(a) (1)1—Excludable at
time of entry—immigrant—no visa.
Act of 1952—Section 241(a) (1) [81113.0. 1251(a) (1) ]—Excludable at
time of entry—alien who has procured visa by fraud.
ON BEHALF OF RESPONDENT: ON BUMF Or emus:
Joseph L. Andrews, Esquire R. A. Vielbaber
Sachs and Spector Appellate Trial Attorney
152 West 42d Street
New York, New York 10036
The case comes forward on appeal from the decision of the special
inquiry officer rendered on April 26, 1968, in which he found the
respondent deportable as charged but granted voluntary departure
with an. alternative order of deportation to England, or if not accepted
there, then to the respondent's native country of Jamaica. The special
inquiry officer denied the respondent's request to terminate the
proceedings.
The respondent is a 41-year-old married male alien, a native and
citizen of Jamaica, who last entered the United States at El Paso,
Texas on December 13, 1962, at which time he was reentering the
United States for the purpose of resuming his permanent residence
in this country. The respondent had initially entered the United States
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at New York on February 4, 1962, being admitted as a permanent
resident on the basis of a nonquota visa issued to him on February 2,
1962. At the time of applying for said visa, the respondent alleged
that he was then legally married to a United States citizen.
The record amply shows that at the time he applied for the visa he
was in fact still married to his first wife who was not a citizen of the
United States or an alien admitted for permanent residence. Also at
the time he received his immigrant visa, he was not otherwise admissible to the United States because he had been convicted of two crimes
involving moral turpitude and, therefore, was excludable under section 212(a) (9) of the Immigration and Nationality Act. He received
a waiver of this ground of inadmissibility under section 212(h), Immigration and Nationality Act, on the basis that his exclusion would
result in extreme hardship to his United States citizen spouse. The
crimes for which the respondent was convicted in Jamaica in 1948
consisted of petty larceny for which he was fined $35.00 and also nine
counts of obtaining money by false pretenses for which he was sentenced to two years' imprisonment, of which he served 16 months
Since these convictions were for crimes involving moral turpitude and
since there were two such convictions, the respondent, was clearly
excludable from the United States at the time of his entries on February 4, 1962 and December 13, 1962 unless he obtained a waiver under
section 212(h) of the Act, which as aforementioned he had.
The respondent's failure to reveal these crimes at the time he applied
for a nonimmigrant visa and the fact that he represented.that he was
the spouse of a United States citizen amounted to his obtaining the
visa by fraud and hence he was excludable under section 212(a) (19)
of the Immigration and Nationality Act. The respondent also
obtained a waiver of this ground of excludability pursuant to section
212(i) on the basis that he was the apouco of a United States citizen.
The thrust of the respondent's arugment that the proceedings should
now be terminated is based upon his contention that he should be
granted relief from deportation under section 241(f), Immigration
and Nationality Act, which provides in effect that the provisions of
section 212(a) (19) under which he would be excludable and deportable shall not apply if the alien is the spouse of a United States citizen,
and if otherwise admissible. The respondent cites the case of Scott v.
Immigration and Naturalization Service, decided by the United
States Supreme Court on December 12, 1966, and cited as
.
This case held in effect that the circumventing of quota restrictions by
misrepresentation and fraud would not render a person otherwise
inadmissible so as to preclude relief from deportation under section
241(f), Immigration and Nationality Act.
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In the instant case, it would appear that relief under section 241(f),
as interpreted in the Scott case (supra) would be available to the
respondent if he was otherwise admissible to the United States. We
concur with the conclusion of the special inquiry officer that the
`respondent was not otherwise admissible to the United States by reason of his two convictions for crimes involving moral turpitude, which
thus rendered him inadmissible under section 212(a) (9) of the Act.
It will not avail to argue that he obtained a waiver of this ground of
.exclusion under section 212(h) of the Act since such waiver was obtained itself on the basis that his exclusion would result in extreme
hardship to his United States citizen spouse. He was not married to a
United States citizen at that time and such waiver is, as held by the
special inquiry officer, completely null and void. The respondent was
not entitled to this nonquota immigrant visa because the person filing
the visa petition on his behalf was neither his wife nor a United States
citizen as alleged in the petition. The respondent had contracted a
marriage to a United. States citizen on August 5, 1961, but at that
time he was still married to his first wife whom he had married on
August 19, 1959 and by whom he had two children.
The respondent was clearly excludable on both occassions when he
entered the United States, on February 4, 1962 and again on December 13, 1962 when he entered the United States as a returning resident
alien. This being the case, the respondent is deportable as charged and
we will thus affirm the decision of the special inquiry officer and dismiss
the appeal. We will not disturb the grant of voluntary departure.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
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