Interim Decision #2818
MATTER OF PIMENTEL
In Deportation Proceedings
A-31263818
Decided by Board August 1, 1980 -
(1) Adjustment of status was denied as a matter of discretion to an alien who entered
into a bigamous marriage to avoid the effect of the immigration laws and to facilitate
his entry as a lawful permanent resident.
(2) Due to the evidence in the record of a bigamous marriage and the concealment of
information concerning his former marriages, the alien failed to meet the statutory
requirement of good moral character pursuant to section 244(a)(1) of the Act, 813.S_C_
1254(a)(1), in order to be eligible for suspension of deportation.
(3) Paragraph 5 of the Temporary Restraining Order of Silva v. Levi, made a permanent
injunction under the Revised Final Judgment Order in Silva v. Bell, No. 76-C4268 (N.D.
III. November 9, 1978), prohibits the. Board of Immigration Appeals from dismissing
an alien's appeal in> a deportation case in which the record of proceedings clearly
shows that the alien is a native of an independent country of the Western;Hemisphere
and has a priority date for the issuance of an immigrant visa between July 1, 1968, and
December 31, 1976, provided he entered the United States prior to March 11, 1977.
(4) An alien whose deportation is barred under Silva v. Bell, No. 76-C4268 (N.D. Ill.
November 9, 1978), still has the right to seek review on appeal to the Board of
Immigration Appeals of all issues involving relief from deportation.
(5) Notwithstanding a finding of ineligibility for suspension of deportation, discretionary denial of adjustment of status and refusal to terminate proceedings, the case will
be remanded since the alien comes within the protection of Silva v. Bell, No. 76-C4268
(N.D. III. November 9, 1978), and the question of a possible grant of voluntary
departure will be considered at a later date.
CHARGES:
Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under
see.212(a)(14)NUS.C.1182(a)(14)]-14e valid labor certification at time of entry
Sec. 241(a)(1) (8 U.S.C. 1251(a)(1))—Excludable at entry under
sec. 212(a)(20) (8 U.S.C. 1182(a)(20)]—Immigrant not in possession of valid immigrant visa
ON BEHALF OF RESPONDENT: Peter Hirsch for
Antonio C. Martinez, Esquire
3M. West 14th Street
New York, New York 10014
By: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
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Interim Decision #2818
In an oral decision dated June 28,1978,' the immigration judge found
the respondent deportable as charged and denied him various forms of
relief from deportation. The respondent has appealed. The case will be
remanded.
The respondent is a 37-year-old married male, native and citizen of
the Dominican Republic, who initially entered the United States for
lawful permanent residence on June 21, 1971. He gained admission
through an immediate relative immigrant visa as the spouse of a
United States citizen, Fidela Carmona. The respondent, through previous counsel, conceded deportability as charged and sought relief in the
form of adjustment of status, suspension of deportation, and voluntary
departure.
The respondent originally married Juana Estella Morillo, a citizen of
the Dominican Republic, on Apri118, 1968, and divorced her on July 10,
1970. He married his second wife, Fidela Carmona, on May 5, 1970.
After obtaining an immigrant visa through his second wife, he
divorced her and remarried his first wife. He then applied for an
immigrant visa for his first wife. The respondent did not report the
true number of his prior marriages when applying for his first wife's
immigrant visa. He also failed to disclose his previous marriage when
he applied for a marriage license and an immigrant visa through his
second wife. The respondent also admitted having conceived a child
with his first wife while still married to his second wife. The immigration judge concluded that the respondent's bigamous marriage to his
second wife and the events that followed were part of a plan to avoid
the effect of the immigration laws and to facilitate his entry as a lawful
permanent resident, which warranted denial of the adjustment in the
exercise of discretion.
The immigration judge determined that the respondent was
statutorily eligible to adjust his status pursuant to section 245 of the
Immigration and Nationality Act, 8 U.S.C. 1255, as a nonpreference
immigrant, based upon an approved labor certification with a priority
date of March 11, 1976. However, he denied relief as a matter of
discretion because he found adverse factors in the record surrounding
the respondent's marriages.
The immigration judge further determined that the respondent did
not meet the statutory requirements for suspension of deportation. See
section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1). The immigration judge
found that the respondent lacked the requisite good moral character
because of his previously described actions and that no extreme hardship had been shown. He further found that the respondent did not
The oral decision of the immigration judge appears to be incorrectly dated and
should read July 21, 1978.
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Interim Decision #2818
warrant relief in the exercise of his discretion.
The immigration judge also denied, on discretionary grounds, the
alternative relief of voluntary departure available under section 244(e)
of the Act, 8 U.S.C. 1254(e). He reached that result after weighing the
respondent's equity of residence in the United States for a period of
time against the adverse factors in the record.
On appeal, the present counsel for the respondent has brought to our
attention that the respondent, by virtue of his March 11, 1976 priority
date for an immigrant visa and his last entry into this country before
March 11, 197'7, is within the protected class of aliens described in the
Temporary Restraining Order in Silva v. Levi? See Matter of Zapata,
Interim Decision 2745 (BIA 1979). By the terms of that order, in cases
such as this, the Board is prohibited from dismissing the alien's
appea1.3 Paragraph 5 of the order provides in relevant part:
5. The Board of Immigration Appeals shall not dismiss an alien's appeal nor sustain
an INS appeal in a deportation case in which the record of proceedings clearly shows
that the alien is a native of an independent country of the Western Hemisphere and
has a priority date for the issuance of an immigrant visa between July 1, 1968, and
December 31, 1976, inclusive ....
There is no indication in this provision of the extent or the manner in
which the Board may review such an appeal. There Is authority for the
immigration judge to consider, as he did, the various forms of relief
advanced by the respondent. Specifically, paragraph 6 of the order
provides:
6. Nothing in this order shall prevent a deportation hearing from being held, nor a
decision from being rendered by a special inquiry officer (Immigration Judge) in any
case in which the alien seeks relief under either section 244(a) or section 245 of the
Immigration and Nationality Act, 8 U.S.C. 1254(a) or 1255, or seeks any other form of
relief from deportation. The enforcement of any resulting decision that may be
unfavorable to the alien is subject to the terms of this order.
We believe that it can be reasonably inferred from paragraph 5 that
a right to apply for relief permits a right of review to this Board if the
decision is adverse to the alien; otherwise, the denial would remain in
effect without further review until the Silva permanent injunction is
The Temporary Restraining Order in Silva v. Levi, No. 76-04268 (N.D. Ill. April 1,
1977) became a permanent injunction under the Revised Final Judgment Order in Silva
v. Bell, No. 76-C4268 (N.D. III, Nov. 9, 1979) enforcing 605 F.2d 978 (7 Cir. 1979). The order,
inter alia, provides that the INS shall not begin, continue, or conclude any efforts to
expel any alien who is a native of an independent country of the Western Hemisphere
and who has a priority date between July 1, 1968, and December 31, 1976, provided he
entered the United States prior to March 11, 1977.
'There are exceptions to this prohibition, but they are not present here. See paras.
5(1), 5(2), and 5(3), Temporary Restraining Order, Silva v. Levi, supra.
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Interim Decision #2818
dissolved.' Moreover, restricting our review would frustrate the purpose of the Silva order which is to quickly and fairly redistribute
immigrant visas to those who qualify for recaptured Cuban visa
numbers. Furthermore, neither party has obj ected to our consideration of the matter on this appeal. We, therefore, find no impediments to
our review of the denial of the respondent's applications for adjustment of status, suspension of deportation, and voluntary departure.
For the same reasons, we are not prevented from considering the
respondent's additional argument for termination of proceedings as a
"form of relief from deportation" within the meaning of paragraph 6
of the Silva order, supra..
The Silva alien should not, however, have to exercise his right of
review at his peril. Regardless of our findings today, the protection
from deportation under Silva still remains in effect. See Silva v. Levi,
para. 6, Temporary Restraining Order, supra.. Our interpretation of
the Silva order merely recognizes the right of review of all issues
involving relief from deportation. The Silva alien may seek review
without the consequences of deportation if he is unsuccessful, while
enabling him to take advantage of immigration benefits if he prevails.
Under this approach, the purposes of paragraphs 5 and 6 can best be
served and their interests reconciled.
We now turn to the merits of the respondent's arguments on appeal.
Initially, the respondent contends that the proceedings below must be
terminated for failure to sustain the charge under section 241(a)(1)
and 212(a)(14) of the Act, 8 U.S.C. 1251(a)(1) and 1182(a)(14), that he
was excludable at entry for failing to have an approved labor certification. Essentially, the respondent argues that he had a duly approved
labor certification upon his last entry, which he claims is the controlling entry under the statute.
The respondent, through previous counsel, had conceded deportability. Nonetheless, we have examined the respondent's argument and
find that it is without merit. The mandate of section 241(a)(1) to
exclude certain aliens at the time of entry applies to any entry into the
United States, whether it is an original entry or a reentry. lA Gordon
and Rosenfield, Immigration Law and Procedures § 4.7(b), at 4-46 (rev.
ed. 1979). Moreoever, "entry" as defined in the Act means "any coming." Section 101(a)(13) of the Act, 8 U.S.C. 1101(a)(13). The term
includes initial as well as subsequent entries. See United States ex. rel
Volpe v. Smith, 289 U.S. 422, 425 (1933); cf. Matter of Sanchez, Interim
Silva v. Soil, Revised Final Judgment Order, supra, at para. 6, prnvidev
(6) The Order of this Court of April I, 1977, is hereby 'made a permanent injunction.
This injunction shall dissolve with the issuance of the last recaptured visa number
or the processing of the last class member, or upon further order of this Court.
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Interim Decision #2818
Decision 2751 at 3 (BIA 1980). On each re-entry made by the respondent, he did not have a valid immigrant visa nor a labor certification. We
find, therefore, that deportability is supported by evidence which is
clear, unequivocal, and convincing. Wooclby v. INS, 385 U.S. 276, 286
(1966).
The respondent next argues that the immigration judge improperly
applied the presumption of fraud created by section 241(c) of the Act, 8
U.S.C. 1251(c), when evaluating the respondent's marriage to the
United States citizen, Fidela Carmona. On the contrary, the immigration judge's finding regarding the respondent's marriage was not
based upon any presumption under section 241(c), or otherwise. The
immigration judge drew reasonable inferences from the suspicious
sequence of events involved; namely, his bigamous marriage to the
United States citizen and acquisition of an immigrant visa through
her, the divorce from her and prompt remarriage to his first spouse,
and his subsequent filing of immigration papers for his first wife. In
addition, the respondent concealed information concerning his former
marriages. When considered together, these factors amply support the
immigration judge's conclusion that the respondent married the
United States citizen in order to facilitate his entry as an immigrant.
Under these circumstances, the denial of adjustment of status was
warranted as a matter of discretion. Matter of Blae,15 I&N Doc. 626 at
32 (A.G. 1976), ord,
556 F.2d 586 (9 Cir. 1977) (table). See Matter of
Arai,
13 I&N Dec. 494, 496 (BIA 1970).
Although the respondent contends that he has been in the United
States over 7 years, he has not shown that he has been a person of good
moral character during that time nor did he show how his deportation
would result in the required extreme hardship to himself or to qualifying family members designated in section 244(a)(1) of the Act. We
concur with the ruling of the immigration judge that the respondent
has failed to sustain his burden of establishing statutory eligibility for
suspension of deportation and that he does not warrant relief as a
matter of discretion. See Matter of Marquez,
15 I&N Dec. 200 (BIA
1975).
As to the immigration judge's denial of voluntary departure to the
respondent, the appeal will be sustained. Due to the remand under
Silva a decision of a grant of voluntary departure will be reserved for
further consideration by the immigration judge at an appropriate
future date.
The respondent finally contends that the immigration judge erred by
admitting into evidence the marriage and divorce certificates when
deportability was already conceded, citing 8 ("1_F_R. 242.16(h). That
regulation presents no such bar to the admissibility of these documents. The documents were admitted into evidence within the sound
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Interim Decision #2818
discretion of the immigration judge. Even if cumulative on the issue of
deportability, they provided original and probative information concerning the respondent's good moral character and his scheme to
circumvent this country's immigration laws, which formed the basis
for the immigration judge's denial of relief from deportation.
Having decided that the proceedings should not be terminated and
that relief from deportation should be denied, we must now dispose of
the case under the mandate of Silva v. Levi, supra. Accordingly, the
case shall be remanded to the immigration judge for further consideration under the terms of the Temporary Restraining Order, now made
a permanent injunction in Silva v. Bell, supra.'
ORDER, Relief in the form of termination of proceedings, adjustment of status, and suspension of deportation is denied.
FURTHER ORDER, The appeal from denial of voluntary departure is sustained.
FURTHER ORDER: The case is remanded to the immigration
judge for disposition under the court order, or modification thereof, of
Silva v. Bell, No. 76-C4268 (N.D. Ill. November 9, 1979).
The record shows that the respondent has no absences from this country since
January 1977, and has a nonpreference visa priority date of March 11, 1976. Ho does not
appear within the exceptions of paragraph 4 of the Silva Temporary Restraining Order.
See Matter of Zapata, supra, at 3-4, 4 n.3. Therefore, no action can be taken to effect his
deportation. Silva v. Levi, supra, Temporary Restraining Order at para. 4.
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