Interim Decision #2292
MATTER OF VALIYEE
In Section 246 Proceedings
A-11923802
Decided by Special Inquiry Officer
Decided by Board June 3, 1974
(1) The provisions of section 246 of the Immigration and Nationality Act are
retroactive, notwithstanding the rights of a third party beneficiary not privy
to the orrginal action, are involved_
(2) As a result of section 246 proceedings, the permanent resident status of
respondent's wife was rescinded ab initio, thereby rendering respondent ineligible for preference classification as the spouse of a permanent resident alien,
and likewise ineligible for adjustment of status under section 245 of the Act on
December 1, 1962, on the basis of that classification, since an immigrant visa
was not available to him at that time. Accordingly, his permanent resident
status is rescinded.
(3) Rescission proceedings against respondent are not premature by reason of
the fact rescission proceedings against his wife, through whom he derived
permanent resident status, are pending before the Board of Immigration
Appeals on a motion for reconsideration, since under 8 CFA 3.8 the filing of a
motion to reconsider does not stay execution of any decision made in the case,
and execution of such decision shall proceed unless a stay is specifically
granted.
IN BEHALF OF RESPONDENT: IN BEHALF OF SERVICE:
Mas Yonemura, Esquire Stephen M. Suffin
405-14th Street, Suite 1015 Trial Attorney
Oakland, California 94612
DECISION OF THE SPECIAL INQUIRY OFFICER
The Service seeks to rescind under Section 246 of the Immigration and Nationality Act the permanent resident status which was
granted to the respondent under Section 245 of the Act on
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December 1, 1962. 1 The respondent contests the Service's attempt
to rescind his status.
The respondent is a 35-year-old male alien, a native citizen of
Iran. He entered the United States at the port of New York on
February 29, 1959, after having been admitted as a nonimmigrant
student. On April 2, 1962, at Reno, Nevada, he married Mahviz
Ettlinger nee Daneshforouz, a native citizen of Iran, who had been
accorded permanent resident status under Section 245 on October
6, 1961. (Exh. 8) On June 8, 1962, on the basis of a petition filed by
Mahviz Valiyee nee Dancshforouz, he was accorded third preference status under then Section 203(a)(3) of the Act as the spouse of
a lawful permanent resident alien. (Exh. 4)
On September 13, 1962, the respondent applied for permanent
resident status under Section 245, claiming immediate availability
to him of an immigrant visa on the quota for Iran on the strength
of the third preference status which had been accorded him. (Exh.
5) On December 1, 1962, his application was granted. (Exh. 7) On
that date numbers under the, nonpreference portion of the quota
for Iran were unavailable. (Exh. 9)
On August 17, 1966, at Sall Francisco, T ordered rescission under
Section 246 of the permanent resident status that had been
granted to Mahviz Ettlinger on October 6, 1961, under Section 245.
(Exh. 8) On December 1, 1966, the Board of Immigration Appeals
dismissed her appeal from my decision (Exh. 8) A motion to
reconsider its decision of December 1, 1966, is pending before the
Board.
The rescission ground charged is that the respondent was not in
fact eligible for adjustment of his status under Section 245 "because he was not entitled to status under Section 203(a)(3) of the
Immigration and Nationality Act as the spouse of a lawful permanent resident alien, and a visa under the quota for Iran was not
available to" him. (Exh. 1)
The theory of the Service's case is that rescission of a permanent resident status under Section 246 has ab initio effect. Thus,
as the respondent's wife's status has b -een rescinded, the respond-
Section 246 provides in pertinent part:
"(a) ... If, at any time within five years after the status of a person has been
otherwise adjusted under the provisions of section 245 or 249 of this Act or any
other provision of law to that of an alien lawfully admitted for permanent
residence, it shall appear to the satisfaction of the Attorney General that the
person was not in fact eligible for such adjustment of status, the Attorney
General shall rescind the action taken granting an adjustment of status to such
person and canceling deportation in the case of such person if that flreurred and
the person shall thereupon be subject to all provisions of this Act to the same ,
extnasifhdjumotsanbemd."
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Interim Decision #2292
ent was not in fact eligible on December 1, 1962, for third preference status. As the nonpreference portion of the quota for Iran
was unavailable on that date he was ineligible for adjustment
under Section 245, which required that an immigrant visa be
immediately available to the applicant. The status accorded him on
December 1, 1962, was subject to rescission, therefore, on the
ground he was ineligible for it, the only ground for rescission
specified in Section 246. (Exh. 1; trial attorney's brief of 11-9-67)
The respondent's first contention is that this proceeding is
premature as there is pending before the Board of Immigration
Appeals a motion for reconsiderition of the Board's order of
December 1, 1966, which dismissed Mahviz Ettlinger's appeal from
the rescission order of August 17, 1966. The trial attorney replies
that 8 CFR 3.8 disposes of counsel's prematurity argument.
8 CFR 3.8 provides that the filing of a motion to reconsider shall
not stay the execution of any decision made in a case and that
execution of such decision shall proceed unless a stay of execution
is specifically granted. Thus, the motion to reconsider has not
disturbed the administrative finality of the Board's order of
December 1, 1966. The motion was not an essential step on the
road to exhaustion of administrative remedies, a prerequisite for
judicial review. Even the right to judicial review of a deportation
order under Section 106 of the Act does not stay execution thereof,
and although service of a petition for review thereunder stays
deportation of alien pending determination of the petition by the
Court, the Court may direct otherwise. Similarly neither the right
to judicial review nor filing of an action under Section 10 of the
Administrative Procedure Act results in automatic stay of execution of an administrative order.
Accordingly, the first contention of counsel for the respondent is
rejected.
The respondent's second contention is that Section 246(a) is not
retroactive, particularly where the rights of a third party beneficiary are involved. He argues that use of the term "thereupon" in
Section 246, which provides that the person whose status has been
rescinded "shall thereupon be subject to all provisions of this Act
to the same extent as if the adjustment of status had not been
made" can only mean "that immediately following the action
taken in rescission the person . .. [whose status has been rescinded] shall be subject to all the provisions of the Act." He compares
the language of Section 246 with that of Section 340 of the Act,
which provides for revocation of naturalization, and also provides,
"[S]uch revocation and setting aside of the order admitting such
person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and
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certificate, respectively." He argues that in section 340 the retroactive effect of a denaturalization order is expressly spelled out,
whereas section 246 is silent, and that as Congress considered both
sections at the same time the difference in wording is significant.
He continues that under Supreme Court decisions doubts regarding construction of a statute should be resolved in favor of the
alien?
But there is no doubt here. Agreed that section 340 is clearer
than section 246 on the matter of ab initio effect. It is permissible
in a statute as lengthy, complicated, and diversified as the Immigration and Nationality Act to use more than one mode of
expression to achieve the same result. "[S]hall thereupon be
subject to all provisions of this Act to the same extent as if the
adjustment of status had not been made" (emphasis added) can only
mean in my judgment "that immediately following the action
taken in rescission the person shall be subject to all the provisions
of the Act," as contended by counsel for the respondent, with one
addition he conveniently omitted—as though the adjustment of
status had not been made. In other words, the person whose
status has been rescinded is in the same position he would have
been in had he never been adjusted.
Counsel contends further that as rescission of the respondent's
status would make him automatically deportable, the clear, unequivocal, and convincing burden of proof imposed on the Government in deportation proceedings by the Supreme Court in Woodby
v. I. & N. Service, 384 U.S. 904 (1966), should apply to section 246
proceedings. I fail to see how adoption of the Woodby standard of
proof would benefit the respondent because the facts alleged as
ground for rescission have certainly been established by clear,
unequivocal, and convincing evidence.
Brancato v. Lehman,
239 F.2d 603 (CA. 6, 1956), cited by counsel
for the respondent, is not pertinent as it dealt with interpretation
of the term "entry" and whether Brancato, who in fact had worn
the mantel of citizenship when he last entered, could be treated as
having been an alien at that time, as a result of the revocation of
his naturalization thereafter, and found deportable on the ground
he had been convicted of a crime committed within five years after
his entry. The Court, which had had no difficulty in giving a
retroactive effect to the denaturalization order, declined to give a
relation-back construction to the deportation statute. Brancato v.
Lehman, supra at 666. The Supreme Court of the United States
2 The cases cited by counsel for the respondent in support of this principle are
1. & N. Service v. Errico,
225 U.S. 214 (1566); Fong Haw Tan v. Phelan,
333 U.S. 6
(1948).
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acted similarly in Costello v. I. & N. Service, 376 U.S. 120 (1964). It
had been asked to find deportable a denaturalized person who had
been convicted of two crimes involving moral turpitude while he
was a naturalized person. It refused to do so, because to apply a
relation-back construction to Section 241(a)(4) of the Act, the
deportation statute under consideration, would have rendered
nugatory Section 241(b)(2), which it was not prepared to do in the
absence of a clear expression from Congress. In the instant case,
however, we are dealing with the effect on the respondent's status
of revocation of the status of his wife, from whose status, while she
had it, he had derived a benefit. The Government is not trying
here, as it had tried in Brancato and Costello, to strip him of his
status and then subject him to disabilities arising from occurrences while he had the status, with which he was unable to cope
because of its existence. True, if the respondent was a deportable
alien before he acquired permanent resident status and his status
is revoked, he will most likely be deportable on the same basis as
before. But that is considerably different from saying that a
person whose citizenship has been revoked is deportable for
occurrences while he wore the mantle of citizenship. Brancato and
Costello are not analogous, therefore, to the situation of the
respondent who is and to date always has been an alien.
Counsel for the respondent urges that the respondent's status
should not be disturbed under the "well established principle _
that regardless of the express retroactive provisions of a statute or
a rule of law applicable to a party or parties who are in privity,
such a law will not be mechanically applied nuns pro tune to a
third party beneficiary who was not in privity in the original
transaction." (Counsel's brief, p. 9) He cites as illustrations of the
principle Matter of F—,
1 I. & N. Dec. 84, BIA 5-7-41, approved by
the A.G., Matter of P—,
5 I. & N. Dec. 218, BIA 5- 7- 53, and Matter of
G— ,
5 I. & N. Dec. 517,11-13-53. Matter of F—, supra, held that an
alien who had been admitted to the United States as a nonquota
immigrant, the spouse of a naturalized citizen, whose naturalization was subsequently cancelled on the ground of fraud, is not
deportable in the absence of evidence that the naturalization had
been obtained for the purpose of procuring the wife's admission or
that she was a party to the fraudulent transaction. The case was
decided, however, on the basis of a departmental policy set forth in
a letter quoted in the opinion.
Matter of P—, supra, and Matter of G—, supra, decided that a
person who had been admitted into the United States as a citizen
thereof at birth through his father under an erroneous administrative view of the effect of cancellation of his father's citizenship
would be regarded as having been lawfully admitted to the United
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States for permanent residence as an alien unless he had knowingly participated in the unlawful naturalization or had had
knowledge thereof prior to his admission into the United States.
The result in both cases was an application of an "administrative
view" formulated, after a court had ruled that the child had lost
his citizenship claim upon revocation of his father's naturalization,
to alleviate the hardship resulting to persons who had been
admitted to the United States as citizens under the erroneous
administative interpretation. Again, this policy was limited to
entirely innocent parties who had been placed in their predicament through no fault of their own.
I know of no policy similar to those described above in favor of
one who acquired permanent resident status on the basis of
marriage to an alien whose permanent resident status was subsequently rescinded. But if there were such a policy it would most
certainly apply only to innocent third parties who had obtained
their status before revocation of their spouse's status and who
established they had been placed in their predicament through no
fault of their own. It can hardly be contended with probity that
the respondent was the innocent beneficiary of the status which
Mahviz Ettlinger enjoyed from October 6, 1961, to December 1,
1966, and that his predicament has arisen through no fault of his
own. Both the majority and dissenting opinions of the Board of
Immigration Appeals in her case, which were entered in evidence
as Exhibit 8 herein without objection or restriction, amply illustrate the contrary.
Counsel's contentions regarding third party beneficiaries is,
therefore, rejected.
Likewise, counsel's attempt to assimilate the respondent's situation to that of a child of a void marriage who has been held on the
basis of the legitimacy statute to be entitled to rights of a
legitimate child under the Workmen's Compensation Law of California, or to a third party beneficiary of a voidable contract who
had acted in good faith are not persuasive.
Accordingly, I conclude that there is outstanding a final order of
revocation of the permanent resident status which had been
granted to Mahviz Ettlinger, that revocation thereof wiped out
her status ab initio, and that at the time the respondent was
granted his permanent resident status under Section 245 on the
basis of a third preference on the quota for Iran, there was not
immediately available to him a quota immigrant visa. He was
therefore, ineligible for Section 245 relief. His permanent resident
status, which had been granted thereunder, is revoked on that
ground.
It is ordered that the respondent's status under Section 245 of the
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Immigration and Nationality Act, which had been granted to him
on December 1, 1962, be revoked under Section 246 of the Act.
BEFORE THE BOARD
This is an appeal from an order of an immigration judge
rescinding the respondent's permanent resident status previously
granted under section 245 of the Immigration and Nationality Act.
The appeal will be dismissed.
The facts are not in dispute. The respondent is an alien, a native
and citizen of Iran, who was admitted to the United States on
February 26, 1959 as a nonimmigrant student. On April 2, 1962, he
married Mahviz Ettlinger, a native and citizen of Iran who had
been accorded permanent resident status under section 245 of the
Immigration and Nationality Act on October 6, 1961. Thereafter,
the respondent was accorded preference status under section
203(a)(3) of the Act as the spouse of a lawful permanent resident
alien.
On December 1, 1962, the respondent's application for permanent resident status under section 245 of the Act was granted. On
that date numbers under the nonpreference portion of the quota
for Iran were unavailable. Thereafter, on August 17, 1966, the
immigration judge ordered rescission pursuant to the provisions of
section 246 of the Act, 8 U.S.C. 1256, of the adjustment of status
granted to Mahviz Ettlinger. Having accomplished this the Service then proceeded against the respondent on the theory that as
the respondent's wife's status had been rescinded, the respondent
was not in fact eligible on December 1, 1962 for a third preference
status. As the nonpreference portion of the quota for Iran was
unavailable on that date, he was ineligible for adjustment of
status under section 245, which specifically requires that an
immigrant visa be immediately available to the applicant.
On appeal counsel argues: (1) that the rescission proceedings
against the respondent are premature and cannot be sustained
while the related rescisson proceedings of Mahviz Ettlinger are
pending before this Board on a motion for reconsideration; (2) that
section 246 is not retroactive particularly where the rights of a
third-party beneficiary are involved; and (3) that section 246 does
not apply nuns pro tune to a third-party beneficiary not in privy to
the original transaction.
In a well-reasoned decision, the immigration judge has succinctly set forth the facts and applied the pertinent legal principles
and case law. He concluded that as a result of rescission proceedings, the permanent resident status granted to Mahviz Ettlinger
had been nullified ab matzo and rendered the respondent ineligible
for relief under section 203(a)(3) of the Act as the spouse of a lawful
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permanent resident alien, and a visa under the quota for Iran was
not then available to him. Accordingly, his permanent resident
status was revoked.
We reject counsel's argument that this rescission proceeding is
premature because Mahviz Ettlinger had filed a motion to reconsider the decision ordering rescission of her permanent resident
status. The answer to this contention is found in 8 CFR 8.8 which
states that the filing of a motion to reconsider shall not stay the
execution of any decision made in the case, and the execution of
such decision shall proceed unless a stay of execution is specifically
granted by the Board or the officer of the Service having administrative jurisdiction over the case.
We also reject counsel's argument that section 246 does not
operate retroactively. It is clear that Congress intended to authorize the Attorney General, after voiding thew alien's permanent
resident status, to subject the alien to such provisions of the Act
as were appropriate prior to the grant of section 245 relief. The key
to this problem is found in the following language: "... and the
person shall thereupon be subject to. all provisions of this Act to
the same extent as if the adjustment of status had not been
made." Inasmuch as an immigrant visa was not readily available
to him at the time he was granted his permanent resident status
under section 245, he was ineligible for section 245 relief. The
immigration judge properly revoked the respondent's permanent
resident status. Accordingly, we affirm his decision and dismiss
the appeal.
ORDER: The appeal is dismissed.
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