Interim Decision #2617
MATTER OF SANCHEZ
In Deportation Proceedings
A-31185072
Decided by Board September 27, 1977
(1) On April 20, 1971, respondent was convicted of a violation of 18 U.S.C. 1546 for fraud
and misuse of visa, permits, and other entry documents. He was deported from the
United States on April 22, 1971, under section 241(a)(1) of the Immigration and Nationality Act on the ground that at the time of entry he was not in possession of an
immigrant visa.
(2) On November 22, 1971, respondent was admitted to the United States as a lawful
permanent resident but had failed to obtain advance permission to reapply for admission, and was found deportable under section 241(a)(1) of the Act on October 30, 1972, as
an alien excludable at tune of entry under section 212(a)(17) of the Act. However, on
September 22, 1975, the Acting Regional Commissioner granted him nuns pro tune
permission to reapply, eliminating the section 212(a)(17) ground of excludability. The
Service then lodged a Charge of deportability under bevtimi 241(a)(5) Weed on reapondent's previous conviction for violation of 18 U.S.C. 1546.
(3) An alien previously deported under section 241(aX5) of the Act will not again ,be
deportable on the same ground by reason of the same acts if he returns to the United
States. This is so even though this respondent was previously deported under section
241(a)(1) of the Act.
(4) Matter of R—G—, 8 I. & N. Dec. 128 (BIA 1958), reaffirmed.
CHARGE:
Order Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]--Excludable at time of
entry, previously deported, no permission to reapply.
Lodged: Act of 1952—Section 241(a)(5) U.S.C. 1251(a)(5)].--Convicterl under section
1546 of Title 18 of the United States Code
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Donald L. Ungar, Beguile George Indelicate
517 Washington Street Appellate Trial Attorney
San Francisco, California 94111
BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, BoantIMembers
In a decision dated December 18, 1975, we granted the respondent's
rn otion to reopen and remanded the record to the immigration judge for
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Interim Decision #2617
further proceedings. In an order dated November 8, 1976, the immigration judge terminated proceedings. The Service has appealed. The appeal will be dismissed.
The respondent, a 26-year-old native and citizen of Mexico, was
convicted on April 20, 1971, in the United States District Court for the
Northern District of California of violating 18 U.S.C. 1546 (fraud and
misuse of visa, permits, and other entry domments). He was thereafter
deported from the United States on April 22, 1971, on the ground that at
the time of his entry he was not in possession of an immigrant visa. An
application for permission to reapply for admission into the United
States after deportation was denied by the District Director on June 7,
1971, and an appeal from that decision was dismissed by the Regional
Commissioner on August 24, 1971.
Nevertheless, the respondent gained atdmission into the United
States on November 22, 1971, as a lawful permanent resident. On October 80, 1972, the immigration judge found. the respondent deportable
under section 241(a)(1) of the Act as an alien who was excludable at the
time of entry, under section 212(a)(17). We dismissed an appeal from
that decision on March 8, 1973.
In our order dated December 18, 1975, Ive granted the respondent's
motion to reopen on the basis of an Acting Regional Commissioner's
order of September 22, 1975, according the respondent retroactive
permission to reapply for admission as of November 21, 1971, a date
prior to his last entry into the United States. Although this nunc pro
tune grant of permission to reapply for admission eliminates the basis
for the section 212(a)(17) charge of deportability, we remanded the
record to the immigration judge to allow the Service to lodge an additional charge of deportability under section 241(a)(5) of the Act based on
the respondent's conviction for violating 18 U.S.C. 1546.
In view of the Supreme Court's decision iii U.S. v. Campos Serrano,
-
444 U.S. 293 (1971), holding that possession of a fraudulent Alien
Registration Receipt Card was not an act punishable under 18 U.S.C.
1546, the immigration judge terminated proceedings. We need not ad-
. dress the issue of whether the ruling in Canu)os Serrano, supra, should
-
b e given retroactive effect to reach the same result. We reaffirm our
precedent decision in Matter of R G , 8 1. & N. Dec. 128 (BIA 1958),
— —
and hold that an alien deportable under section 241(a)(5) would not again
become deportable when, following departure, he had been lawfully
admitted for permanent residence —any of our decisions to the contrary
notwithstanding.
We recognize the Service argument that b eeause the alien in this case
was originally deported under a section 241(a)(1) charge as opposed to a
section 241(a)(5) charge, that Matter of R—G is not necessarily diapositive. However, we take this opportunity to clarify that holding.
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In Matter of R G--, we discussed Matter of S , 7 Is & N. Dec. 536
— —
(BIA 1957), wherein we held that following the lawful admission of an
alien for permanent residence, he would not again be deportable by
reason of the acts which had previously formed the basis for the deportation under section 241(a)(5). In Matter of S , the aliens were deportable
—
under the first clause of section 241(a)(5), whereas. in Matter of
R G--, the alien's deportability was dependent on the last clause of the
—
same section. Nevertheless, no reason was found for applying different
rules, and in Matter of R G the alien was admitted into the United
— —
States. We thus read Matter of R G-- as applying the rule, first
—
enunciated in Matter of S , that an alien previously deported under
—
section 241(a)(5), will not again be deportable on the same ground by
reason of the same acts which he has committed, if he returns to the
United States. '
The ease before us is like Matter of S in that it arises within the
—
context of deportation proceedings. Matter of R G is applicable — —
because a conviction under 18 U.S.C. 1546 was the basis for exclusion
there and is the present basis for deportation here. As noted in Matter
of S--, "Congress contemplated the lawful entry of a person previously
deported under section 241(a)(5)." Thus, an alien previously deported
under section 241(a)(5) is not forever barred from reapplying for admission to the United States .
Similarly, an alien previously deported under any section of the Act is
not forever barred from reentering the United States, if the proper
waivers are obtained, 2 simply because of conduct which would have
rendered him deportable under section 241(a)(5) prior to his deportation. Thus, the fact that the respondent in this case vas not actually
deported under section 241(a)(5) is an insufficient reason for applying a
different rule from that described in Matter of R - Matter of
R — G--, therefore, is applicable and will be given binding recognition.
Inasmuch as the respondent was lawfully admitted to the United States
' This rule was apparently adopted to avoid the harsh results that might occur if the rule
set forth in Matter of V—, 1 I. & N. Dec. 293 (BIA 1942) had been blindly applied. In
Matter of V—, we held that an alien could be excluded on the basis of conduct which would
be a ground d for deportability, but not a ground of excludability. The reasoning behind that
rule, was that it would be futile to admit someone, only to have him immediately become
subject to deportation upon entering the United States. See Matter of 0,
8 I. & N. Dec.
292, 293 (Asst. Comm. 1959; BIA 1959) and cases cited therein.
2 In Matter of R—G—, we held that an alien "will not be deportable under section
241(a)(5) following her lawful admission for permanent residence." No mention was made
of any other ground of deportability because the alien in that case had not been previously
deported. In the case before us, the only other ground for deportability, under section
241(a)(1), was removed by the Regional Commission's nuns pro tune grant of permission to
reapply for admission to the United States. Thus, the only charge of deportability before
us is under section 241(a)(5).
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as a permanent resident, he will not• be deportable under section
241(a)(5) based upon an earlier conviction.
The immigration judge found that although the respondent stated in
his application for an immigrant visa that he had never been deported,
he did show that he had been pardoned for illegal entry. Moreover, he
revealed to the consul that he had used a "mica" to enter the United
States, although he also stated that ke had never been convicted of any
crimes. The immigration judge, therefore, concluded that although the
statements contained in the application were conflicting, they were also
revelatory. Because the respondent completed the application without
assistance, the immigration judge found that he was incapable of
properly executing the document and thus, had no intention of deceiving
the consul or anybody else. As the immigration judge is given primary
responsibility for judging the credibility of witness, 3 we will not overturn his determination that the respondent was lawfully admitted to the
United States as a permanent resident on November 22, 1971. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed,
3 See Matter of Teng, Interim Decision 2452 (BIA 1975); Matter of T—, 7 1. & N. Dec.
417 (BIA 1957).
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