Interim Decision #2094
MATTER OF RODRIGUEZ
In Deportation Proceedings
A-18090257
Decided by Board August 3, 1,971
Respondent, a native and citizen of the Dominican Republic, was admitted
for permanent residence on August 10, 1968, upon presentation of an immigrant visa issued July 31, 1968, with a waiver of a labor certification as
the unmarried child of a lawful permanent resident alien. In connection
with the visa application, he signed State Department Form FS-548 indicating awareness that he would be subject to exclusion if he married prior
to entry. He was married on August 8, 1968, and, therefore, is deportable
as an alien excludable at entry under section 212(a) (14) of the Immigration and Nationality Act, as amended, for lack of a valid labor certification, since he was not an unmarried child as defined by section 101(b) (1)
of the Act at the time of entry.
CHARGE
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)]—Excludable by law existing at time of entry (section 212 (a)
(14) ; 8 U.S.C. 1182)—immigrant, no valid labor
certification.
)N BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Antonio C. Martinez, Esquire Martin J. Travers
77 Seventh Avenue Trial Attorney
New York, New York 10011 (Brief filed)
(Brief filed)
The special inquiry officer, in a decision dated April 6, 1971,
enied the respondent's application for termination of the proeedings; granted him the privilege of voluntary departure; and
rovided for his deportation from the United States to the Doiinican Republic, on the charge contained in the order to show
cruse, in the event of his failure so to depart. The appeal from
la decision, which brings the case before this Board for considration, will be dismissed.
The record relates to a 21-year-old male alien, a native and citin of the Dominican Republic, who last entered the United States
1 August 10, 1968. He was then admitted for permanent resi-
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dence upon presentation of an immigrant visa issued to him on
July 31, 1968, by the American Embassy, Santo Domingo, Dominican Republic, with a waiver of a labor certification under section
212(a) (14) of the Immigration and Nationality Act, as the unmarried child of a lawful permanent resident alien of the United
States. However, he had married Amparo Rosario on August 9,
1968, at Santo Domingo, Dominican Republic.
Section 212 (a) (14) of the Immigration and Nationality Act
renders ineligible to receive visas and excludable from admission
into the United States aliens seeking to enter this country for the
purpose of performing skilled or unskilled labor, unless they are
in possession of a certification from the Secretary of Labor. The
statute specifically provides that the exclusion of aliens thereunder shall apply to special immigrants, defined in section
101 (a) (27) (A) of the statute as meaning an immigrant born in
any independent foreign country of the Western Hemisphere or
the Canal Zone. It does provide for an exception to the exclusion
provision in the cases, inter (ilia, of children of aliens lawfully admitted to the United States for permanent residence (in this case
respondent's mother enjoyed such status). However, section
101(b) (1) of the Act defines the term "child" as meaning an unmarried person under 21 years of age.
The pertinent facts of this case recited above, viewed in the
light of the pertinen s a u ory provisions just enumerated, compel concurrence in the special inquiry officer's conclusion that the
respondent's deportability on the above-stated charge is established. The contentions to the contrary advanced by counsel in the
course of the hearing before the special inquiry officer have been
adequately answered by said official in his comprehensive opinion,
and need no repetition here. On appeal, however, counsel has
come forward with a somewhat ingenious argument which, while
rejected, requires a detailed response.
Counsel points out that 22 CFR 42.122 (d) requires the visaissuing officer abroad to warn the alien clearly and unequivocally
that he will be inadmissible to the United States if he is not unmarried at the time of his application for admission to this country.
He argues that the alien, in order to be warned, must understand
and appreciate the consequences of what will happen if he does
not remain single. He asserts that the consular officer does not
discharge his duty to warn by having the alien merely sign a
form at a time when the alien signs more than half a dozen other
forms. He urges that the only reasonable explanation why this respondent did get married in the light of the danger to his pre-
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ferred status is that he did not know or understand the contents
of the Form FS-548, infra, which he signed and the evidence
shows that no one informed him that he could not get married
without destroying his preferred status. He concludes that the
consular officer who issued this respondent his visa clearly failed
in his duty to warn the respondent, and that thus the latter is not
the author of his own misfortune but is being punished for failure of the consular officer to carry out his mandated duty.
This Board has consistently taken the position in cases of this
type that the alien is deportable even if he practices no fraud or
concealment, Matter of C—, 8 I. & N. Dec. 665. Specifically, this record contains a mimeographed, one-page document, FS-548, dated
July 31, 1968, signed by the respondent and attached to his visa.
This declaration states, "I understand that I shall lose my special,
immediate relative or preference status or right to benefit from
the immigrant status from my accompanying parent if I marry
prior to my application for admission at a port of entry into the
United States and that I would then be subject to exclusion therefrom." This declaration appears both in English and Spanish,
and is signed by the respondent on the blank line for signature at
the beginning of the paragraph in Spanish. The record shows
that the respondent attended school for nine years, and that he
was completely literate in the Spanish language. Also as pointed
out by the special inquiry officer (p. 6), the respondent testified
that the United States consul told him he was being granted an
immigrant visa on the basis of being the unmarried son of a legal
resident alien.
Moreover, there is a presumption of official regularity which
attaches to the consular officer's issuance of the visa in question,
including his compliance with the provisions of 22 CFR
42.122(d). The fact that the respondent did sign the Form
FS-548 is corroborative of the presumption. The respondent's
testimony supports the foregoing and indicates that he was
knowledgeable of the fact that if he did marry, he would lose the
benefit derived as a result of his allegation that he was the unmarried son of a legally resident alien. Finally, in this connection,
it is not incumbent upon the Government to establish that the respondent willingly and knowingly signed the Form FS-548 in
order to sustain the charge contained in the order to show cause.
In conclusion, counsel advanced the contention that these proceedings deprive the respondent of his right to due process of law
under the Fifth Amendment to the Constitution of the United
States, and also constitute cruel and unusual punishment to him
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in violation of the Eighth Amendment to the Constitution of the
United States. Technically speaking, these arguments properly
rest with the courts rather than this administrative tribunal.
Substantively, however, as pointed out by the Service trial attorney, who has cited appropriate authority, these questions have
been considered and found wanting by the courts on several occasions. Further comment on this aspect of the case is unnecessary.
All we need add is that the execution of the special inquiry'
officer's order has been stayed during the pendency of this appeal.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special
inquiry officer's order.
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