Interim Decision #1908
MATTER or BECHRRA
In Deportation Proceedings
' A-14608640
A-14618914
Decided by Board September SO, 1988
(1) An alien who entered the United States ostensibly to attend school while
supported•by his father but who assumed joint responsibility with his father for support of his family and obtained employment shortly after
entry, is deportable as one who was excludable for lack of a Labor certification as required by section 212(a) (14) of the Immigration and Nationality Act, as amended, notwithstanding he was a minor (14 years of age) at
entry.*
(2) Notwithstanding the birth of a United States citizen child after entry,
an alien who fraudulently entered as the spouse of a 'U.S. citizen to evade
the Labor certification requirement is ineligible for the benefits of section
241(f) of the Act, since he was not otherwise admissible at entry because
excludable under section 212(a) (14) of the Act."
CHARGES:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable—visa procured by fraud or willfully misrepresenting material fact under section 212(a) (19)
[adult respondent].
Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251(a) (1)]—Immigrant
not in possession of valid visa under section
212(a) (20) [adult respondent].
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)]—Immigrant
seeking to enter the United States to perform labor
without Secretary of Labor certification, to wit,
section 212(a) (14) [both respondents].
ON BEHALF or RESPONDENTS: David C. Marcus, Esquire
215 West 5th Street
Los Angeles, California 90018
The cases come up on appeal from a decision of the special inquiry officer finding both respondents deportable. The record re-
" Remanded for further consideration, 4181'.2d 108.
" Overruled, see
(C.A. 9, 1989).
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Interim Decision #1908
lates to father and son, natives and citizens of Mexico. The adult
respondent obtained a special immigrant visa on December 27,
1965 on the basis of a marriage entered into with one Felicitas
Rios-Galaviz, a citizen of the United States. By the presentation
of a marriage certificate and a divorce certificate purporting to
show termination of a previous marriage the respondent was able
to circumvent the requirements of section 212 (a) (14), thereby
gaining entry on December 27, 1965 into the United States for
permanent residence. The minor male child procured entry into
the United States on February 15, 1966 on the basis that his father was an alleged lawful permanent resident. At the time the
boy was 141/a years of age and it was asserted that he would be
in attendance at a school in Oxnard, California; however, soon
after his entry he procured employment.
It was subsequently discovered that the adult respondent was
previously married to Paula Monje, a native and citizen of Mexico, and of that marriage were born seven children all of whom
resided in Mexico. The respondent then admitted in a prehearing
statement that he had paid $200 for the purpose of obtaining a
fraudulent divorce decree showing that his first marriage had
been terminated and a fraudulent marriage certificate purporting
to show marriage between the respondent and a United States
citizen with whom he had never lived in any kind of marital status. In that prehearing statement the respondent admitted that
these documents were false and were obtained for the sole purpose of procuring entry into the United States as an immigrant.
Subsequent to entry, an application was made for the wife to
enter the United States with the other children. The basis of her
entry was that she was the spouse of a lawful resident alien and
subsequent to her entry a United States citizen child was born to
her on December 10, 1967.
The special inquiry officer found that. the visa obtained by the
father was procured by fraud having been based on a fraudulent
marriage. As to the son the special inquiry officer concluded that
he also was not entitled to the status of a permanent resident
since he was required to obtain a labor certification under section
212(a) (14) in that his primary purpose for entering the United
States was not to go to school but to work.
Counsel for the respondents on appeal argues that the evidence
required to establish deportability as to the male adult respondent
is not clear, convincing and unequivocal and that under section
241 (b) the respondent was eligible for relief. We assume that the
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Interim Decision #1908
statute cited by the counsel is 241 (f) as opposed to 241(b). 3 As
to the minor child the counsel for the respondents asserts that the
evidence does not establish deportability by clear, convincing and
unequivocal proof. He further argues that there was error in
holding that the respondent, a minor, required certification by the
Department of Labor under section 212(a) (14) of the Immigration Act.
After a careful review of the evidence and the testimony we
are compelled to uphold the finding by the special inquiry officer
as to both respondents. Exhibit 2 relates to a visa issued to one
Pedro Pozos Becerra on December 27, 1965 and the visa application is attached thereto. In that visa petition the adult respondent
lists the name and address of his wife as Felicitas Rios Galaviz
residing in Los Angeles, California. He also states on that application he has three children, Victor, Agripina and Faustino residing in Mexicali, Baja California. Attached to the application and
the visa is a marriage certificate relating to one Pedro Pozos Becerra and Felicitas Rios Galaviz showing that on December 21,
1964 the named persons were united in matrimony. There is also
a divorce decree No. 673/69 relating to an absolute divorce between Pedro Becerra Pozos and Paula Monge-Flores which divorce appears to have been rendered August 19, 1964. These documents were the basis for which the visa was issued to the male
respondent. Exhibit 7 relates to a sworn statement made by the
adult male respondent alleging that he had procured a- marriage
certificate purporting the showing of marriage to one Felicitas
Rios Galaviz and a divorce decree purporting to show a divorce
between him and his first wife, Paula Monje. He admitted in the
sworn statement that he used this marriage certificate to immigrate so that he would not have to obtain Form 320 which we assume is the certification required under section 212 (a) (14). Exhibit 8 is an affidavit of support signed by both respondents
executed on behalf of Paula Monje de Becerra and their four children. Paragraph two recites that the person named in the affidavit is mother and wife to the affiants. Exhibit 10 relates to an immigrant visa issued to one Paula Monje de Becerra on March 17,
1967 and the application for the visa executed by her. Question
10 on the visa application answered by Paula Monje Becerra
states that she was married only once and that her purpose in entering was to live and reunite herself with her husband. By husband she referred on Question 18 to her husband, Pedro Pozos
2 Section. 241(b) relates to something completely inapplicable to the instant
case.
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Interim Decision #1908
Becerra. To the wife's application was attached a marriage certificate showing that the Paula Monje was married to Pedro Becerra on July 17, 1950 in Tecolotoan, Jal., Mexico. There was no
divorce decree presented in connection with that visa application
nor a subsequent marriage certificate. Therefore, it appears clear
that the wife of the respondent was relying on the first marriage
as a means to enter as an immigrant. Had the divorce and second
marriage been regarded valid by the adult respondent, there
would have ensued a third marriage. The admissions of the respondent together with this independent evidence clearly demonstrates that the deportation charge relating to the adult male respondent is supported by clear, convincing and unequivocal
evidence.
As to the minor male respondent, the record of hearing reveals
that since entry he has not attended school during the day. At the
hearing, the minor male respondent testified that he is in attendance at school two nights a week for three hours a night. He further stated that his earnings were used to furnish the house in
which his mother and the other children came to live. From the
facts of the case it appeared that the minor male respondent's
primary purpose in entering the United States was to enter the
labor market and under such circumstances a labor clearance was
required. Notwithstanding that the minor male respondent was
of tender years his primary objective for entering the United
States was not to be with his father and to be supported by him,
rather to assume joint responsibility with his father for the support of his family. Under the circumstances he would be found
excludable as one who failed to obtain a certification demanded by
the Department of Labor pursuant to section 212 (a) (14). We
find nothing that would disturb the conclusion reached by the
special inquiry officer.
The record shows that there is a United States citizen child
that was born to the adult male respondent and his wife. However the existence of a United States citizen child cannot cure the
fraud since the respondent has been found not to be otherwise admissible at the time of entry. The purpose for which the respondent entered the United States was to avoid the certification
requirement of the law; therefore, at the time of entry he would
have not been otherwise admissible.
ORDER; It is ordered that the appeal be and the same is
hereby dismissed.
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