Interim Decision #2277
MATTER OP CRECA
In Deportation Proceedings
A-20514506
Decided by Board April 11, 1974
Respondent, who is charged with deportability under section 241(a)(1) of the
Immigration and Nationality Act for lack of the required immigrant visa at
entry, and who, on the facts, could equally have been charged with entry
without inspection under section 241(a)(2) of the Act, both independent
grounds for deportation, cannot qualify for the benefits of section 241(1) of the
Act, as amended.
CHARGE:
Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable as an
immigrant not in possession of valid documents under
section 212(a)(20).
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
David F. Aberson, Esquire Reese D. Robertson
1801 Avenue of the Stars, No. 900 Trial Attorney
Los Angeles, California 90067
This is an appeal from an order of an immigration judge finding
the respondent to be deportable, denying his request for termination of the proceedings, and granting voluntary departure. The
appeal will be dismissed.
Respondent is a 31-year-old married alien, a native and citizen of
Ecuador, who entered the United States for the first time on or
about December 24, 1972 for the purpose of working here and who
did not then possess or present the immigrant visa required of
intending immigrants. On December 30, 1972, an Order to Show
Cause was issued in deportation proceedings, charging that he was
deportable under section 241(a)(1) of the immigration and Nationality Act because he was inadmissible at entry under section
212(aX20) of the Act for lack of the required immigrant -visa. At a
hearing before an immigration judge on March 1, 1973, at which
he was represented by present counsel, respondent admitted the
truth of the factual allegations of the Order to Show Cause but
denied that he was deportable as charged.
Respondent, who understands little English, testified through a
Spanish interpreter that he had come from Ecuador to Mexico;
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that he was brought to the United States port of entry at San
Ysidro in a car driven by a Spanish-speaking stranger whom he
had met in Mexico; that he had not paid the stranger any money;
that at immigration inspection at the border, the immigrant
inspector had asked respondent if he was Mexican and respondent
had replied in English that he was an American citizen; and that
respondent had been admitted as such. Respondent's alien wife
had preceded him to the United States and had given birth on
September 17, 1972 to a child who is a United States citizen. On
the basis of respondent's visaless admission on an allegedly fraudulent citizenship claim and parentage of a United States citizen
child, counsel asserted that respondent is saved from deportation
by the terms of section 241(f) of the Act.
The immigration judge found respondent's account of the circumstances of his entry incredible and rejected it. The immigration judge found as fact that respondent had entered without the
required immigrant visa, as alleged in the Order to Show Cause,
and found it unnecessary to conjecture at the exact manner of
respondent's entry, e.g., as an alien who had been smuggled in or
who had effected surreptitious entry on his own by crossing the
border without inspection. Respondent was granted the privilege
of voluntary departure.
The charge that respondent entered -without a visa is sustained
by evidence which is clear, convincing and unequivocal Not every
such visaless entry by an alien with the requisite familial ties
triggers termination under section 241(1). In the absence of fraud,
the provisions of that subsection do not come into play. See
Cabuco-Flores v. INS,
(C.A. 9, 1973), ". . .
'However, the mere fact that the alien claims to have made a
misrepresentation at the time of entry does not excuse him from
deportation validly ordered on another charge, not related to the
misrepresentation.' " Here, the "no visa" charge is not dependent
on any finding of fraud. It would have been just as clearly established if the respondent had, as the immigration judge surmised,
entered surreptitiously without inspection. The two charges, entry
without inspection under section 241(aX2) of the Act and entry
without an immigrant visa in violation of section 212(a)(20) of the
Act, are independent grounds for deportation. Either one will support deportation. Respondent would have gained nothing if there
had been a charge and a finding that he entered without inspection,
for such an entry does not encompass the fraud which is an indispensable ingredient under section 241(1), Monarrez-Monarrez v.
INS,
(0.A. 9, 1972).
On this record, the immigration judge was amply warranted in
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rejecting as incredible respondent's account of his entry. Termination under section 241(0 was properly denied.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily within 15 days from the date of this order or any extension
beyond that time as may be granted by the District Director: and
in the event of failure so to depart, the respondent shall be
deported as provided in the immigration judge's order.
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