DINIZ

                                                            Interim Decision #2428




                                 MATTER OF DINIZ
                           In Deportation Proceedings

                                      A-30329571

                     Decided by Board September 5, 1975
In the light of the Supreme Court decision in Reid v. INS,420 'U.S. 619 (1975), the waiver
 of deportability provisions of section 241(f) of the Immigration and Nationality Act, as
 amended, do not apply to a charge of deportability under section 241(a)(2) of the Act, even
 though the underlying basis for deportability is the failure to fulfill a marital agreement
 under section 241(c) of the Act (Matter of Montemayor; 

 adhered to;
 Matter of Marehisi, 121. & N. Dee. 132, overruled).
CHARGE:
  Order Act of 1952—Sections 241(a)(2) and 241(e) U.S.C. 1251(a)(2) and 1251(c)]—
                          Entry with visa procured by fraud —failed or refused to fulfill
                          marital agreement

ON BEHALF OF RESPONDENT:                               ON BEHALF OF SERVICE:
 John A. Mutter, Esquire                                Paul O. Vincent
 170 Westminster Street                                  Appellate Trial Attorney
 Providence, Rhode Island 02903


    In a decision dated April 30, 1974, the immigration judge ordered the
 respondent deported from the United States. The respondent has ap-
'pealed from that decision_ The appeal will be dismissed
   The respondent is a native and citizen of Portugal. The Service
 alleged, and the immigration judge found, that the respondent was
 deportable under section 241(a)(2) and section 241(c) of the Immigration
 and Nationality Act as an alien who has failed or refused to fulfill his
 marital agreement which was made for the purpose of procuring his
 entry as an immigrant. The respondent contests deportability, claiming
that he married in good faith.
   The facts are adequately discussed in the immigration judge's decision. The testimony of the respondent's wife squarely conflicts with the
respondent's version of his marriage, and the documentary evidence of
record supports the testimony of the respondent's wife. The immigration judge also found that the respondent was not a credible witness.
   We agree with the decision of the immigration judge. Deportability
has been established by clear, convincing and unequivocal evidence.
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   The respondent also argues that his deportation is prevented by
section 241(f) of the Act. The respondent evidently has married another
United States citizen and would therefore have the requisite familial
relationship for section 241(f). The question thus presented is whether
section 241(f) can be applied to waive deportability under section 241-
(a)(2) and section 241(c), if the underlying factual basis for deportability
involves a failure or refusal to fulfill a marital agreement within the
contemplation of section 241(c).
   Earlier Board decisions have treated section 241(c) as a separate
charge upon which deportability can be predicated. Matter of Mietus, 

 (BIA 1966); Matter of M—, 

 (BIA
1957); Matter of T—, 

 (BIA 1957); see also Matter of T—,

 (BIA 1959). We have also held that section 241(1)
could operate to prevent the deportation of an alien charged under both
section 241(a)(2) and section 241(c). Matter of Manehis, 

 (BIA 1967); cf. Matter of S—, 

 (BIA. 1958).
   We no longer believe this approach to section 241(f) to be sound law in
view of the Supreme Court's decision in Reid v. INS, 

(1975). We have concluded that section 241(f) cannot waive deportability under section 241(a)(2). Accordingly, it is not necessary for us to
consider the effect of section 241(f) on the section 241(c) charge, assuming that such a charge may stand alone.
   We recognize that section 241(c) refers, directly to both the fraud
provision of section 212(a)(19), and to section 241(a)(2). Furthermore, it
does not appear that the Supreme Court considered section 241(c) in
deciding Reid v. INS, supra. Nevertheless, in view of the clear pronouncements contained in Reid, we hold that section 241(f) is not available to an alien charged with deportability under section 241(a)(2), even
as it relates tc section 241(c).
   In Reid the Supreme Court held that section 241(f) could not benefit
an alien who has entered the United States under a false claim to United
States citizenship and who was charged with deportability under section
241(a)(2) as an alien who had entered without inspection. The Supreme
Court's opinion in Reid also indicates that section 241(f) only applies to
a section 241(a)(1) charge of deportability based on either section 212-
"(a)(19), or on section 211(a) as it appeared prior to its amendment in
1965. 1 See Castro-Guerrero V. INS, 

 (C.A. 5, 1975); Matter
of Montemayor, 

 (BIA'1975). This limitation on the
scope of section 241(f) precludes its extension to section 241(a)(2), even
though the underlying basis for deportability is the failure to fulfill a
marital agreement under section 241(c).
   The Supreme Court also indicated that section 241(a)(2) establishes a



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ground for deportation which is independent of whether the alien was
excludable vat the time of his entry. Reid. dealt with the "entry without
inspection" portion of section 241(a)(2). However, the portion of section
241(a)(2) which relates to presence in the United States in violation of
the Act, and which is in issue here, similarly is independent of excludability at entry. Accordingly, ". . nothing in the waiver provision of
§241(1), which by its terms grants relief against deportation of aliens 'on
the ground that they were excludable at the time of entry,' has any
bearing on the case." Reid v..INS, 

.
   Fraud is in fact present in this case. Fraud, however, is not an
essential element of deportahility either under the "entry without inspection" portion of section 241(a)(2) involved in Reid, or under the
portion of section 241(a)(2) involved here.
   We have interpreted Reid as very narrowly limiting the scope of
section 241(f). See Matter of Montemayor, supra. We adhere to that
interpretation. Matter of Manehisi, supra, is overruled.
   The decision of the immigration judge was correct.
   ORDER: The appeal is dismissed.
Irving A. Appleman, Member, Dissenting:

   I respectfully dissent.
   The literal application of Reid v. INS, 

 (1975) in this case
is troublesome. The alien has been found deportable under section
241(c), 8 U. S. C. 1251(e), of the Immigration and Nationality Act. As the
majority decision notes this has been held to be a separate and distinct
charge. The reference to section 241(a)(2) in the same paragraph in the
order to dhow cause may be regarded as surplussage.
   Section 241(c) is the specific fraud charge used in the case of an alien
who entered the United States by means of a fraudulent marriage. It
reads in pertinent part, "An alien shall be deported as having procured a
visa or other documentation by fraud within the meaning of paragraph
(19) of section 212(a), and to be in the United States in violation of this
Act within the meaning of subsection (a)(2) of this section, if . . . it
appears to the satisfaction of the Attorney General that he or she has
failed or refused to fulfill his or her marital agreement which in the
opinion of the Attorney General was hereafter made for the purpose of
procuring his or her entry as an immigrant."
   This is a charge completely founded in fraud, incorporating section
212(a)(19) by reference. By its very language one within the proscription "has procured . . . documentation by fraud within the meaning of
paragraph (19) of section 212(a)." As the Court pointed out in Reid v.
INS supra, at page 622, section 241(f), 8 U.S.C. 1251(f), I. & N. Act,
tracks the provisions of section 212(a)(19) dealing with aliens excludable
for fraud and waives deportation for those excludable at the time of
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entry by reason of the fraud specified in section 212(a)(19). In my
opinion the respondent is within this language and not barred from
relief by the holding in Reid. In relying on section 241(e) the Service
has, to all intents and purposes, established inadmissibility under section 212(a)(19) as shown by post-entry conduct. The waiver under section.2.41(f) is mandatory if he is now validly married to a United States
citizen as claimed_ I would therefore remand and reopen for proof of the
marriage.
Louisa Wilson, Member, Dissenting:
  I concur in the dissent of Board Member Irving A. Appleman:




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