Interim Decision #2215
MATTER OF KHAN
In Deportation Proceedings
A-30593139
Decided by Board July 26, 1973
The fact an alien was inspected and erroneously admitted to the United States
by a Service officer does not operate to estop the Service from deporting the
alien.
CHARGES:
Order: Act of 1952—Section 241(a)(1) U.S.C. 1251(a)(1)]—Excludable at time
of entry—Not of status specified in immigrant visa
under section 203(a)(9) of Act.
Act of 1952 — Section 241(aX1) [6 U.S.C. 1261(a)(1)] Excludable at time
of entry (section 212(a)(20) of Act)—immigrant, not in
possession of a valid immigrant visa.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
A. W. Hargreaves, Esquire Bernard J. Hornbach
Fallon, Hargreaves, Bixby & McVey Trial Attorney
30 Hotaling Place (Brief filed)
San Francisco, California 94111
(Brief Filed)
Donald L. Ungar, Esquire
Phelan, Simmons & Ungar
617 Washington Street
San Francisco, California 94111
The respondent moves us to reconsider our decision of April 17,
1972 dismissing his appeal from the order of the immigration
judge, which found the respondent deportable and granted him
voluntary departure. The record relates to a male native and
citizen of Pakistan, 22 years of age, who was admitted to the
United States for permanent residence on March 1, 1971, classified
for visa issuance purposes as the accompanying son of a fifth
preference immigrant. In fact, the alien whom he was supposed to
accompany never came to the United States and died before the
respondent's arrival here. In our previous decision we held that
the terms "accompanying or following to join" in section 203(a)(9)
of the Immigration and Nationality Act do not encompass preeed-
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Interim Decision #2215
ing the principal beneficiary of the visa preference classification to
this country..
Counsel now puts forth a different theory. He contends that the
Government is estopped from deporting the respondent, because
the Government admitted him into the United States in the first
place. The Immigration and Naturalization Service, however, is
not bound by an error committed by an immigrant inspector at the
time of admission, Pearson v. Williams,
MIA, 1952; and A.G., 1952). Section 241(aX1) of the Act
presupposes that the situation will arise where the alien's excludability at entry will be discovered only after his admission. Counsel's contention would limit enforcement of section 241(aXl) to
cases involving fraud by the alien. That provision, by its terms,
reaches all those who manage to enter the United States in
violation of the legislative edict barring them. This is true even if
the aliens were examined and passed by an immigration officer.
Under the pattern of the statute, if the officer erred, or was
deceived, the alien may be ordered deported at any subsequent
time.
Notwithstanding the original decision to admit him, the respondent's admissibility can be challenged in later deportation
proceedings. He was clearly not admissible. The immigrant inspector had no authority to admit him. That officer's error does not
operate to estop the Immigration and Naturalization Service from
deporting the respondent once the error has been discovered.
ORDER: The motion is denied.
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