Interim Decision #2099
MATTER OF PENDON
In Exclusion Proceedings
A-17230529
Decided by Board October 21, 1971
Applicant's motion to reopen the exclusion proceedings to permit her to
apply for the benefits of section 241(f) of the Immigration and Nationality Act, as amended, based on the birth of a United States citizen child, is
denied since the birth of a citizen child confers no benefits under section
241 (f) of the Act upon an alien in exclusion proceedings.
EXCLUDABLE: ACT of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)]—
Immigrant without visa.
ON BEHALF OF APPLICANT: Lloyd A. Tasoff, Esquire
408 South Spring Street
Los Angeles, California 90013
On December 5, 1969 we dismissed a joint appeal filed by the
applicant, her husband, her sister, and her infant child, all aliens,
from an order of a special inquiry officer excluding them from
admission to the United States. The unopposed motion before us,
filed by the above-named applicant alone, requests reopening in
order that she may present evidence that on December 20, 1969,
she gave birth to a child who is a United States citizen. She asserts that as the mother of a citizen child, she is within the purview of section 241 (f) of the Immigration and Nationality Act
and is saved from exclusion and deportation thereby. She also alleges that she is the beneficiary of a visa petition filed April 1,
1968, which should now be considered under the third preference,
under which visas are now available to aliens who filed on or before November 16, 1968.
The motion is unsupported, contrary to the requirements of 8
CFR 3.2 and 3.8, and could be denied for that reason alone. However, even assuming the truth of the allegations now set forth, no
case for reopening is made out. The motion will be denied.
Section 241 (f) in terms renders inapplicable to qualified aliens
the "provisions of this section," i.e., section 241 of the Act. That
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tterim Decision #2099
?ction prescribes the grounds on which aliens "in the United
tates" may be ordered deported. The procedure for determining
le deportability of aliens within the United States is set forth in
action 242 of the Act. The applicant in this case is not an alien
i the United States who is the subject of deportation proceedlgs under sections 241 and 242. She is a paroled alien applicant
or admission whose exclusion has been ordered under entirely
iifferent provisions of the Act. The distinction between the exludable and deportable classes of aliens has been clearly stated
n Leng May Ma v. Barber,
(1958), and need not be
>elabored here. The birth of a citizen child confers no benefits
ender section 241 (f) upon an alien in exclusion proceedings.
Insofar as concerns the claimed availability of an immigrant
Jisa, even if that were the fact it would not warrant reopening
;he exclusion proceedings. As we pointed out in our order dated
December 5, 1969, neither this Board nor a special inquiry officer
has power to adjudicate in exclusion proceedings a paroled alien's
application for adjustment under section 245 of the Act.
One further item should be noted. The Service has informed us
that on August 16, 1971, after the pending motion was filed, the
applicant filed a petition in the United States Court of Appeals
for the Ninth Circuit for review of our December 5, 1969 order.
While the Service does not oppose the motion now pending before
us, we see no point to granting the motion, for the reasons
above-stated. Were we to grant the motion, we would of course
condition our order on the approval of the court in which the petition for review is pending. Since denial of the motion cannot in
any way affect the court's jurisdiction, no such conditional order
is called for.
ORDER: The motion is denied.
