Interim Decision #2432
MATTER OF TADENA
In Deportation Proceedings
A-31363405-6-7-8
Decided by Board September 16, 1975
An alien admitted to the United States upon the presentation of an immigrant visa who in
subsequent deportation proceedings is the recipient of the benefits of section 241(f) of
the Immigration and Nationality Act, as amended, is an alien lawfully admitted for
permanent residence.
CHARGE:
Order: Act o:' 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable as immigrant
without valid immigrant visa (all respondents).
ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE:
Victor Agma:a, Jr., Esquire Paul C. Vincent
15 South Hine Street Appellate Trial Attorney
Honolulu, Hawaii 96813
On December 12, 1973, the immigration judge rendered his decision
concerning a husband and wife and their four children. The immigration
judge found that the adult aliens, the husband and wife, were not
deportable by virtue of section 241(f) of the Immigration and Nationality Act. The immigration judge, however, concluded that section
241(f) did not benefit the four children because they did not have the
qualifying relative required for the section 241(f) waiver. The immigration judge certified his decision involving the children to us for final
disposition; counsel for the minor respondents also appealed their eases.
The record will be remanded for further proceedings.
The four minor respondents, whose eases alone are before us, were all
under ten years of age at the time of the immigration judge's decision.
They, along with their parents, are natives and citizens of the Philippines. The minor respondents were admitted to the United States as
immigrants in April of 1972. Their admissibility depended upon their
father's stat-is as an alien lawfully admitted for permanent residence. It
is conceded that their father made certain misrepresentations in obtaining his immigrant visa. The minor respondents only contest deportability on the basis of section 241(f).
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The immigration judge found that section 241(f) prevented the deportation of the parents of these minor respondents in part because of the
subsequent birth of a United States citizen child to the parents. The
immigration judge, however, concluded that the minor respondents had
no qualifying relative for section 241(f) purposes. We concur with the
immigration judge's ultimate holding that section 241(f) does not benefit
the minor respondents, although we disagree with his conclusion that
the parents are not now aliens lawfully admitted for permanent residence.
The minor respondents have been charged with deportability under
section 241(a)(1) as aliens who were excludable at entry under section
212(a)(20). In Matter of Montemayor, 15 L & N. Dec. 353 (BIA 1975),
we held that the interpretation of section 241(f) adopted by the Supreme
Court in Reid v. INS,
(1975), precluded its application to
the precise charge of deportability alleged against these children.
Therefore, they are not benefited by section 241(f), and they are deportable as alleged by the Service.
The parents of the minor respondents, however, were not found
deportable by virtue of section 241(f). This determination was correct
under the ease law applicable at the time of the immigration judgP's
decision. The Service did not appeal the decision in the cases of the
parents. That decision is final and will not be disturbed.
Contrary to the immigration judge's view of this ease, the parents of
the minor respondents are now aliens lawfully admitted for permanent
residence. The immigration judge's finding that the parents are not
lawful permanent residents was based on court cases dealing with the
effect, for naturalization purposes, of section 241(f) on aliens who had
entered the United States under false claims to United States citizenship. See e.g. Yik Shuen Eng v. INS,
(C.A. 2 1972). The parents of the minor respondents, however, obtained their admission to the United States upon the
presentation of immigrant visas.
If adopted, the immigration judge's approach to section 241(f) would
leave any beneficiary of section 241(f) in limbo. The section 241(f)
recipient would be nondeportable, but he would not have any immigration status. However, the Act generally contemplates that an alien
lawfully in the United States will have a status permitting him to
remain. Cf. Matter of Loo,
15 I. & N. Dec. 127
(BIA 1974).
The Supreme Court's decision in Reid v. INS, supra, has resolved
most of the questions with respect to the interpretation of section 241(f).
We note that the Service would also consider the parents of the minor
respondents to be aliens lawfully admitted for permanent residence. See
Immigration and Naturalization Service Operations Instruction 241.2.
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Interim Decision #2432
As lawful permanent residents, the parents of the minor respondents
are qualified to petition for second preference status on behalf of their
children. See section 203(a)(2), Immigration and Nationality Act. In
view of the peculiar facts of this case, the immigration judge's erroneous
conclusion, and the intervening decision in Reid v. INS, supra, we shall
remand the record to the immigration judge in order to afford the
parents of the minor respondents the opportunity to begin action which
may ultimately permit the minor respondents to receive adjustment of
status under section 245 of the Act.
ORDER: The record is remanded to the immigration judge for
further proceedings.
460
