aatvc1.1111 1.0V,40./LVII /rGOULd
MATTER OF GONZALEZ
In Deportation Proceedings
A-34297537
Decided by Board July 26, 1978
(1) Section 241(f) of the Immigration and Nationality Act, 8 U.S.C. 1251(0, is not effective
to relieve from deportation an alien who entered the United States in violation of
section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14).
(2) The familial relationship, prerequisite for relief under section 241(f) of the Act, need
not exist at the time of the alien's entry for lawful permanent residence.
(3) A native of the Western Hemisphere was not exempt at entry before December 31;
1976, from the labor certification requirements where he acquired the then exempting
familial relationship three months after entry.
(4) Section 241(f) in not operative where the alien is not "otherwise admissible" at the time
of entry for lack of a labor certification and was not exempt therefrom.
(5) Denial of an adjournment so as to allow the adjudication of a spouse visa petition is not
an abuse of discretion where the visa petition has not been filed and appears not to be
presently approvable on account of a prior undissolved manage.
CHARGES:
Order: Act of 1952—Section 241(a)(1) (9 U.S.C. 1251(a)(1)]—Excludable at entry under
section 212(a)(14)—not in possession of valid labor certification
nor exempt therefrom
Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)j—Excludable at entry under
section 212(a)(19)—secured visa by fraud or misrepresentation
of a material fact
Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under
section 212(a)(20)—immigrant not in possession of valid visa or
other document.in lieu thereof
ON BEHALF OF RESPONDENT: Timothy S. Barker,. Esquire
Legal Aid Society of San Diego
1760 Euclid Avenue
San Diego, California 92105
1E3Y: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
In a decision. dated June 21, 1977, an immigration judge found the
r-espondent deportable on the charges contained in the Order to Show
Cause, but granted him the privilege of departing voluntarily in lieu of
deportation. The respondent was found to be ineligible for the relief
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Interim Decision #2662
provided by section 241(f) of the Immigration and Nationality Act, 8
U.S.C. 1251(f). The immigration judge declined to grant a continuance
of the proceeding until the pending visa petition in behalf of the respondent is adjudicated by the District Director. The respondent has appealed from the immigration judge's decision with regard to relief under
section 241(f). He also alleges that the immigration judge's refusal to
grant a continuance was an abuse of discretion. The appeal will be
dismissed.
The respondent is a 35-year-old native and citizen of Melico. lie
married a Mexican national, Francisca Serrano-Hernandez, in April,
1967. Four children were born of this marriage. Without having obtained a divorce from his Mexican wife, the respondent married Olivia
Garza, a United States citizen, on September 29, 1973. Based on this
second marriage, the respondent applied to the American consul in
Guadalajara, Mexico, for an immigrant visa in 1974. The respondent
deliberately misinformed the American consul by telling Min that he had
no prior marriages. At the deportation hearing the respondent claimed,
in extenuation of his misrepresentation, that he believed that his attorney had obtained a divorce for him, but that he had received no divorce
document. He testified that he did not learn the truth, namely that there
was no record of his having been divorced, until April, 1977. He then
instituted a mutual consent divorce proceeding in Guadalajara (Ex. 4).
At the time of the immigration judge's decision, no divorce decree had
been obtained. Nor has such a decree been submitted to us on appeal.
On May 1, 1977, the respondent and Olivia Garza went through a
church marriage ceremony in San Diego. It is not clear what legal effect
this had, since the respondent apparently had not yet obtained a divorce
from his Mexican wife.
Based on his misrepresentation to the American consul, the respondent was admitted to the United States as a permanent resident on
March 22, 1974. About three months later, on June 26, 1974, the respondent's United States citizen wife gave birth to a United States
citizen child.
The respondent's deportability on the charges contained in the Order
to Show Cause was established by clear, convincing, and unequivocal
evidence. This is not contested in the respondent's appellate brief.
The respondent contends that he is saved from deportation by section
241(f) of the Act. The child born in 1974, issue of the bigamous marriage
with Olivia, is legitimate under the law of California, where the child
was born and where the respondent has been domiciled. See Matter of
Sczndin-Nava, 14 I. & N. Dec. 88 (BIA 1972). One element of section
241(f) is thus satisfied. The issue is whether section 241(f) was effective
to excuse excludability at entry under section 212(a)(14) of the Act, S
1182(a)(14), along with sections 212(0(19) and (20), or whether
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interim iieusion /F400,c,
the respondent was not "otherwise admissible," for lack of a labor
certification.
Counsel argues that the respondent is eligible for relief under section
241(f) of the Act despite the fact that, at the time he entered the United
States, he was inadmissible under section 212(a)(14), 8 U.S.C.
1182(a)(14), for lack of a labor certification. Counsel points out that the
birth of the respondent's United States vitizen son, three months after
the respondent's entry into the United States, had the effect of exempting him from the labor certification requirement. 1 He urges that it
should make no difference whether the exemption from the labor certification requirement existed at the time of the respondent's entry into the
United States or whether, as in this case, it arose subsequent to the
time of entry. Alternatively, he argues that the section 241(f) waiver
should be held to reach excludability under section 212(a)(14) as well as
sections 212(a)(19) and 212(a)(20), 8 U.S. C. 1182(a)(19) and (a)(20).
In Reid v. INS, 420 U.S. 619, 630 (1975), the Supreme Court stated:
.... Congress, in enacting section 241(f), . . . did not intend to arm the dishonest
alien seeking' admission to our country with a sword by which he could avoid the
numerous substantive grounds for exclusion unrelated to fraud, which are set forth in
section 212(a) of the Immigration and Nationality Act.
Subsequent to Reid, no court has held that the section 241(f) waiver
reaches excludability under section 212(a)(14). See Cacho v. INS, 547
F.2d 1057, 1062 (9 Cir. 1976); Guel-Parales v. INS, .
519 F.2d 1372 (9 Cir.
1975); Escobar-Ordonez v. INS,526 F.Zd 969 (5 Cir. 1976); Castro-Guerrero v. INS,
515 F.2d 615 (5 Cir. 1975); De Leon v. INS,
547 F.2d
142 (2 Cir. 1976); Pereira-Barreira v. INS,
523 F.2d 503 (2 Cir. 1975).
See also Jolley v. INS,
441 F.2d 1245 (5 Cir. 1971), cert. denied,
404
U.S. 946 (1971); de Vargas v. INS,
409 F.2d 335 (5 Cir. 1969), cert.
denied, 396 -U.S. 895 (1969); Velasquez-Espinosa v-. INS,
404 F.2d 54.4
(9 Cir. 1968). One circuit has left the issue open. Persaud v. INS, 53'
7
F.2d 776 (3 Cir. 1976).
Section 241(f) provides:
The provisions of this section relating to the deportation of aliens within the United
States on the ground that they were excludable at the time of entry as aliens who have
' Prior to its recent amendment, section 212(a)(14) of the Act provided, in pertinent
pa rt:
"The exclusion of aliens under this paragraph shall apply to special immigrants
defined in section 101(a)(27)(A) (other than the parents, spouses, or children of United
States citizens or of aliens lawfully admitted to the United States for permanent
residence), . . ."
'The effect of this provision was to create an exemption from the labor certification
-requirement for Western Hemisphere natives who had a child born in the United States.
"The provision was removed by the Immigration and Nationality Act Amendments of
Oetober20, 1976, Public Law 94-571, 90 Stat. 2703, which became effective on January 1,
1 9 77.
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Interim Decision #2662
sought to procure, or have procured visas or other documentation, or entry into the
United States by fraud or misrepresentation shall not apply to an alien otherwise
admissible at the time of entry who is the spouse, parent, or child of a United States
citizen or of an alien lawfully admitted for permanent residence. (Emphasis supplied.)
We stress the importance of the phrase "at the time of entry" which
modifies the words "otherwise admissible." 2 There is no reason to read
this modifying phrase out of the Act:
[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no
clause, sentence, or word shall be superfluous, void, or insignificant. Market Co. v.
Hoffman, 101 U.S. 112, 115-116. See erareeki v. G. D. Searle S., Cn.,
367 U.S. 303,
307-308. [United States v. Campos-Serrano,
404 U.S. 293, 301, n. 14 (1971).]
It is significant that the various provisions of the Act which authorize
discretionary relief from deportation have carefully defined limitations.
By contrast, the waiver provision of section 241(f) is mandatory and
unqualified. If section 241(f) covered aliens who become "otherwise
admissible" after entry, it would tend to preempt the discretionary
relief provisions of the Act, particularly adjustment of status under
section 245. It is a well-settled principle of statutory construction that
all sections of an act must be reconciled if possible so as to produce a
symmetrical whole. De Leon v. INS, supra, at 149; General Motors
Acceptance Corp. v. Whisnant,
387 F.2d 774 (5 Cir. 1968); Malaga) v.
United States,
302 F.2d 880 (D.C. Cir. 1962).
We conclude that section 241(1) of the Art is not effective to relieve
from deportation an alien who entered in violation of section 212(a)(14).
Counsel for the respondent also argues that the immigration judge
should have granted a continuance until a visa petition in behalf of the
respondent could be adjudicated by the District Director, so that the
respondent could, upon approval of the visa petition, file an application
for adjustment of status under section 245 of the Immigration and
Nationality Act, 8 U.S.G. 1255. 3
It is obvious that the immigration judge's refusal to grant the requested continuance did not involve any abuse of discretion. See Matter
of Ching, Interim Decision 2518 (MA 1976). We need not decide
whether, if an application for adjustment of status is properly filed, it
should be denied as a matter of discretion in the circumstances of this
case.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
2 It is clear that the phrase "at any time of entry" does not apply to the requirement,
also contained in section 241(f), that the alien be the spouse, parent, or child of a United
States citizen. See INS v. Errito,
385 U.S. 214, 217 (1966); Reid v. INS, supra., at 630.
3 It is not even clear from the record that a visa petition has been filed. The respondent's
mppcllatc brief, at p. 2, indicates that a visa petition will be filed after the Mexican divorce
decree is issued.
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interim Decision InbbZ
respondent is permitted to depart from the United States voluntarily
within 30 days from the date of this order or any extension beyond that
time as may be granted by the District Director; in the event the
respondent fails so to depart, the respondent shall be deported as
provided in the immigration judge's order.
568
