Interim Decision #2289
MATTER OF IDELS
In Deportation Proceedings
A-17800136
Decided by Board May 22, 197.4
Notwithstanding respondent committed no fraud in connection with her admission for permanent residence as the unmarried daughter of a lawful permanent resident father, who, in fast, was not a lawful permanent resident, her
innocent misrepresentations in that regard are sufficient to bring her within
the purview of the provisions of section 241(f) of the Immigration and
Nationality Act, as amended.
CHARGE:
Order: Act of 1952•Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time
of entry, not in possession of valid immigrant visa.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
K. Fred Ajluni, Esquire - Adolph F. Angelilli
2432 Guardian Building Trial Attorney
Detroit, Michigan 48226
The alien respondent is a native of Jerusalem and a citizen of
Jordan. She was admitted to the United States in January of 1968
as an immigrant on the basis of her status as the unmarried
daughter of an alien lawfully admitted for permanent residence.
Deportation proceedings were instituted when it appeared that the
respondent was not in fact entitled to the status upon which her
admission was predicated. In a decision dated July 31, 1973, the
immigration judge found the respondent deportable, but granted
her the privilege of voluntary departure. She has appealed that
decision. The appeal will be sustained.
The respondent's admission as an immigrant was based upon
her father's status as an alien lawfully admitted for permanent
residence. It was through her relationship to him that the respondent was accorded the preference which allowed her to immigrate to the United States in 1968. In August of 1972, however, the
respondent's father was found to be excludable and he was denied
admission as a returning resident immigrant. The respondent's
father was ordered excluded primarily because he was found not
to have been entitled to the immigrant visa which he had earlier
received, and, accordingly, never to have qualified as an alien
lawfully admitted for permanent residence.
The Service's contention that the respondent's father never
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properly had a status capable of according immigration benefits to
the respondent was an integral part of the case against the
respondent; and the respondent held the Service to its burden of
proof in this regard. In support of this portion of its case, the
Service introduced a copy of the immigration judge's decision in
the exclusion proceeding of the respondent's father. That opinion
fully sets forth the facts upon which the respondent's father was
found excludable. It is clear that the immigration judge there
found the respondent's father to have been improperly admitted
as a permanent resident.
Counsel for the respondent did not object to the introduction
into evidence of a copy of that decision. The respondent does assert
that she was denied due process of law because she was not
included as a party to the proceedings against her father, especially since the outcome of that case could have a material impact
upon her presence in the United States. The respondent's contention in this regard appears to be premised on the assumption that
the adjudication in the proceedings against her father is binding
on her. This assumption is incorrect.
The determination in the case of the respondent's father should
be accorded considerable wleght in this proceeding. The decision
there was similar to an adjudication of status; the opinion was not
a summary order, but instead set forth fully the law and the facts
upon which the result was predicated; except for the precise
parties, the interest to be protected by the respondent's father in
his case was identical to the interest which the respondent
presently is protecting; and, the immigration judge in the case of
the respondent's father imposed the same burden of proof on the
Service which it bears in this proceeding. Nevertheless, the decision regarding the respondent's father is only evidence of the
status to which he was entitled under the immigration laws; it is
not conclusive of that status as against the respondent. Cf. Jung
Yen Loy v. Cahill, 81 F.2d 809 (C.A. 9, 1936); Sanders v. Clark,
76 F.
Supp. 489 (E.D. Pa. 1948). The respondent is free to challenge the
accuracy of the determination in her father's case during these
proceedings; however she was not entitled to be made a party in
the case against her father.I
' Compare U.S. ex rel. Harrington v. Sehlotfelelt,
136 F.2d 935 (C.A. 7, 1943),
cert. denied sub nom., Krause v. United States,
327 U.S. 781 (1946), and
Rosenberg v. United States,
60 F.2d 475 (C.A. 3,1932) (in which the courts refused
to permit affected relatives to intervene in denaturalization proceedings), with
Battaglino v. Marshall,
172 F.2d 979 (C.A. 2, 1949), cert. den.,
338 U.S. 829 (1949)
(in which a child of a denaturalized citizen was found not be be a citizen himself,
but in which the court was careful to point out that the child did not claim his
father's denaturalization to have been erroneous).
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The respondent has only vaguely asserted that the decision in
her father's case was erroneous. She has failed to make a prima
facie showing that her father was in fact entitled to status as an
alien lawfully admitted for permanent residence. Accordingly, the
copy of the decision in her father's case is the only substantial
evidence bf record as to his proper status. The admissions of the
respondent together with the documentary materials submitted
by the Service constitute clear, convincing and unequivocal evidence that the respondent was excludable at entry as charged.
On appeal the respondent has argued that the provisions of
section 241(1) of the Immigration and Nationality Act prevent her
deportation on the charge contained in the Order to Show Cause.
We agree
Section 241(f) saves from deportation any alien who would have
been deportable for procuring entry or documentation by fraud or
misrepresentation, if the alien was otherwise admissible at entry
and is the spouse, parent or child of a United States citizen or of
an alien lawfully admitted for perrnanent residence. The respondent is the parent of two United States citizen children. The record
indicates that she was admissible at entry under the "qualitative"
provisions of the Act. The Service, however, argues that the
respondent has not satisfied the requirements of section 241(f),
because she had not committted the requisite fraud in obtaining
entry or documentation.
Although the record indicates that the respondent did not
commit fraud in obtaining either her visa or entry, it is clear that
she made an innocent misrepresentation in this regard. That
innocent misrepresentation is sufficient to bring the respondent
within the terms of section 241(1). Matter of Louie, Interim Decision No. 222.3 (BIA 1973); Matter of Lim, 13 I. & N. Dec. 169 (BLA.
1969); Matter of Torbergsen,
13 I. & N. Dec. 432 (BIA 1969).
A remand of this case appears unnecessary. Although the
respondent raised her section 241(f) claim on appeal, the record
adequately establishes the applicability of this provision. The
proceedings will be terminated.
ORDER; The appeal is sustained and the deportation proceedings against the respondent are terminated.
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