Interim Decision #1947
MATTER OF Lim
In Deportation Proceedings
A-11422036
Decided by Bowrd March 13, 1969
Respondent, who innocently entered as a nonquots: immigrant without knowledge that her petitioning husband's representation to be a U.S. citizen was
fraudulent, comes within the purview of section 241 (f) of the Immigration
and Nationality Act, as amended, in the light of In re Yuen Lan Hon,
289 F. Supp. 204 (S.D. N.Y., 1968), holding that an innocent falsehood
constitutes a "misrepresentation" within the meaning of the statute. [Matter of Lint, 12 L We N. Dec. 671, superseded.]
CHARGE:
Order: Act of 1962—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)1--Excludable at entry—not nonquota immigrant as specified
in visa—section 211(a) (3).
ON BEHALF or SERVICE: Sam I. Feldman
Trial Attorney
(Brief filed)
This case is before us on motion of the Immigration and Naturalization Service to reconsider and withdraw our prior orders
and terminate these proceedings in light of the intervening decision in In re Yuen Lan Horn., 289 F. Supp. 204 (S.D. N.Y., 1968).
The motion will be granted and the proceedings terminated.
The facts and pertinent legal principles were discussed in our
prior orders, now reported in Matter of Lint,
12 I. & N. Dec. 671,
and need not be repeated at length. The question is whether the
respondent, who innocently achieved nonquota status on her husband's fradulent representation that he was a United States citizen, is saved from deportation by section 241(f) of the Immigration and Nationality Act. In our prior decisions, we concluded
that, anomalous as it might seem, the bounty of section 241(f)
extended only to those guilty of fraud, and not to the innocent.
In the Ham case, supra, the same issue was presented in a naturalization setting. The district court emphatically rejected our
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Interim Decision #1947
reading of the statute and concluded that section 241 (f) applies
to such a situation. The court held that a liberal construction was
warranted by the underlying congressional intent to unite families ; and that, in any event, an innocent falsehood literally constitutes a "misrepresentation" within the meaning of the statute.
The Government did not appeal.
The fact that a lower federal court has rejected a legal conclusion of this Board does not of itself require us to recede from
that conclusion. The Service's jurisdiction is nationwide and we
hear appeals from Service decisions in all parts of the country.
The contrary ruling of a reviewing court in one district is not
necessarily dispositive of the issue; a conflicting view may be expressed by a court in another jurisdiction. See, e.g., Errieo v.
INS, 349 F2d 541 (9 Cir., 1965) and Scott v. INS, 350 F.2d 894
(2 Cir., 1965) .
Similarly, the Government's failure to appeal from a lower
court's adverse decision does not of itself indicate acquiescence.
The determination not to appeal may be based on other considerations, such as the inadequacy of the record as a vehicle for appeal
or factors outside the record which render an appeal undesirable.
In the Horn case, however, it is clear from the Department's
file that the decision not to appeal was based on the conclusion
that the district court's reading of the statute is correct. We will,
therefore, recede from the position we had heretofore taken in
the instant case. Accordingly, we will grant the Service's motion,
withdraw our prior orders, and sustain the order of the special
inquiry officer terminating the proceedings.
ORDER: It is ordered that the prior orders of the Board dated
March 7, 1968 and December 13, 1967, respectively, and published
as Interim Decision No. 1847 (now 12 I. & N. Dec. 671), be and
they are hereby withdrawn.
It is further ordered that the decision of the special inquiry 'officer dated September 27, 1967, terminating the proceedings, be
and it is hereby sustained.
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