FARIAS

                                                                     Interim Decision #3269


Interim Decision #3269



            In re Rosalva FARIAS-Mendoza, Respondent

                            File A92 716 636 - El Centro

                      Decided by Board March 12, 1996
                 Decided by Attorney General March 28, 1997
                  Decided by Board on Remand May 7, 1997

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) The waiver provisions of section 241(a)(1)(E)(iii) of the Immigration and Nationality Act,
  

(a)(1)(E)(iii) (1994), were amended to limit availability to aliens who had
  the required familial relationship to the smuggled alien at the time the smuggling act
  occurred.
(2) The amendments to the smuggling waiver provision apply to applications filed before, on,
  or after the date of their enactment, but only if no final determination on the application had
  been made prior to that date.
(3) Because the decision of the Board of Immigration Appeals was pending review before the
  Attorney General on certification on the date of enactment of the waiver amendments, no
  final determination had been made under 

(d)(2) (1996), and the amended version of the waiver applies to the respondent.
(4) The respondent was not married to her current husband at the time she assisted him to enter
  the United States and therefore is ineligible for a waiver under the amended version of section 241(a)(1)(E)(iii) of the Act.

FOR RESPONDENT: Rudy Cardenas, Esquire, El Centro, California

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: William J. Flynn, General Attorney



                             BEFORE THE BOARD
                                (March 12, 1996)

Before: Board En Banc: SCHMIDT, Chairman; VILLAGELIU, FILPPU, MATHON, and
GUENDELSBERGER, Board Members. Concurring Opinions: HOLMES, Board Member,
joined by ROSENBERG, Board Member; COLE, Board Member. Dissenting Opinion:
DUNNE, Vice Chairman, joined by VACCA, HEILMAN, and HURWITZ, Board Members.

MATHON, Board Member:

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   In a decision dated March 14, 1995, the Immigration Judge found the
respondent deportable under section 241(a)(1)(E)(i) of the Immigration and
Nationality Act, 

(a)(1)(E)(i) (1994), for having engaged in
alien-smuggling activity. However, the Immigration Judge granted the
respondent’s application for a waiver of deportability pursuant to section
241(a)(1)(E)(iii) of the Act. The Immigration and Naturalization Service
appeals from the Immigration Judge’s decision granting of this waiver. The
appeal will be dismissed.
             I. FACTS AND PROCEDURAL HISTORY
   The respondent is a 26-year-old native and citizen of Mexico, who
adjusted her status to that of lawful permanent resident on June 12, 1992. She
was apprehended at a border patrol checkpoint upon her return to the United
States from Mexico on January 11, 1993. At a deportation hearing held on
July 13, 1994, the Immigration and Naturalization Service presented evidence, including a Record of Deportable Alien (Form I-213) and a Record of
Apprehension, Investigation or Seizure (Form G-166), which were admitted
without objection by the respondent. In addition, the Service presented testimony from the border patrol agent who prepared the Form G-166.
   The respondent did not dispute that the events occurred essentially as set
forth in the investigative reports and the agent’s testimony. Based on the evidence submitted by the Service, the Immigration Judge concluded that the
respondent’s deportability had been established by clear, unequivocal, and
convincing evidence. See Woodby v. INS, 

 (1966); 

(a) (1995).
   The circumstances of the respondent’s apprehension are as follows: The
respondent and her boyfriend, who was residing illegally in the United
States, traveled to Mexico in December 1992 to visit relatives. After a stay of
approximately 22 days, they contacted the respondent’s mother in the United
States to help arrange their return. The respondent’s mother, together with
another friend, drove to Calexico, California. The respondent’s mother
waited and the friend accompanying her crossed into Mexicali, Mexico,
where he met the respondent and her boyfriend. They discussed how they
would each cross into the United States and reassemble in Calexico. The
respondent and her mother’s friend crossed legally through the port of entry,
into the United States. The respondent’s boyfriend crossed illegally. All three
joined the respondent’s mother at the meeting place and then headed north.
   The group was subsequently apprehended in their vehicle at a border
patrol checkpoint. The respondent’s boyfriend, who was in the United States
without authorization, elected to return voluntarily to Mexico. Four months
later, he again crossed illegally into the United States to join the respondent.
They were married in November 1993.
   At the time of the hearing, the respondent had three children from a previous relationship. She testified that all three of these children, then ages 7, 6

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and 3, were United States citizens. In addition, she testified that she and her
husband were expecting a child.

                 II. IMMIGRATION JUDGE’S DECISION
   After finding the respondent deportable as charged, the Immigration
Judge informed her of the potential availability of a waiver of deportability
under section 241(a)(1)(E)(iii) of the Act, which applies to aliens who
engaged in smuggling activity with respect to their spouse, parent, son, or
daughter. However, he directed the parties to brief the issue of the respondent’s eligibility to apply for this waiver. In particular, he noted that the law
is not clear in this area. Ultimately, in his March 14, 1995, decision, the
Immigration Judge was persuaded by the respondent’s interpretation of the
waiver. He noted that it would be more in keeping with the promotion of
family unity to recognize the respondent’s husband as such at the time she
applied for her waiver. Further, the Immigration Judge, in granting the
waiver, concluded that the respondent’s marriage was bona fide.

                                         III. ISSUE
   The issue in this case is whether the familial relationship requirement
under section 241(a)(1)(E)(iii) of the Act must be extant at the time the smuggling occurs, or whether it is sufficient that the relationship exist at the time
of application for the waiver.

   IV. STATUTORY HISTORY OF SECTION 241(a)(1)(E)(iii)
   The waiver under section 241(a)(1)(E)(iii) of the Act was created by section 602(a) of the Immigration Act of 1990, 

 Stat.
4978, 5078 (“1990 Act”). Before its amendment in 1990, the section of the
Act that made smuggling aliens a ground of deportation required the smuggling to be “for gain.” The 1990 Act removed gain as an element of alien
smuggling and created a discretionary waiver of deportability, designated as
section 241(a)(1)(E)(iii) of the Act, for lawful permanent residents who
attempted to smuggle certain members of their immediate family, i.e., a
spouse, parent, son, or daughter, into the United States.
   Section 241(a)(1)(E)(iii) of the Act provides:
   The Attorney General may, in his discretion for humanitarian purposes, to assure family
   unity, or when it is otherwise in the public interest, waive application of clause (i) in the case
   of any alien lawfully admitted for permanent residence if the alien has encouraged, induced,
   assisted, abetted, or aided, only the alien’s spouse, parent, son, or daughter (and no other
   individual) to enter the United States in violation of law.




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               V. SERVICE’S APPELLATE POSITION
   The Service argues that the plain meaning of the language in section
241(a)(1)(E)(iii) supports the proposition that the familial relationship had to
exist at the time the smuggling occurred. In particular, the Service states that
the language used to delineate the qualifying relationships under the statute is
exclusive and limiting. In addition to setting out the specific family members,
the exclusive nature of these relationships is emphasized by the word “only.”
Further, the parenthetical phrase, “and no other individual,” is added to
underscore the specific relationships that qualify. Speculative categories, i.e.,
fiances, are not included.
   Further, the Service contends that to interpret the terms of the waiver as
applying to family members acquired subsequent to the smuggling would be to
encourage “illicit marriages, rushed marriages, and illegal re-entry” of smuggled aliens “who are normally voluntarily returned to Mexico after arrest.”

           VI. RESPONDENT’S APPELLATE POSITION
   The respondent also contends that the plain language of the statute supports her position. In her view, the language clearly states that a waiver is
available where an alien has smuggled only her spouse, parent, son, or
daughter. The respondent agrees with the Immigration Judge that family
unity is served by extending a waiver to include a relationship arising after
the act of smuggling and in existence at the time of application, particularly
where the marriage creating the relationship is valid. The respondent notes
that any concern about sham marriages can be resolved in the discretionary
aspect of the waiver application.

                              VII. ANALYSIS
   The starting point in statutory construction generally is the language of the
statute. See INS v. Cardoza-Fonseca, 480 U.S 421, 431 (1987); INS v.
Phinpathya, 

 (1984) (stating that the starting point in cases
involving statutory construction must be the language employed by Congress, and it is assumed that the legislative purpose is expressed by the ordinary meaning of the words used). We disagree with both of the parties to the
extent that they view the plain language of section 241(a)(1)(E)(iii) to be
clear. The plain language of the statute merely sets forth the qualifying family relationships. The statute is silent as to when the specified familial relationship had to come into existence.
   The legislative history of the Immigration Act of 1990 also sheds no light
on the purpose behind the revisions to the ground of deportation for alien
smugglers. However, we have previously construed the parallel waiver in
exclusion, under section 212(d)(11) of the Act, 

(d)(11)
(1994), which was also created by the 1990 Act. Matter of Compean, 

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Dec. 51 (BIA 1995). As with deportation, the element of “gain” was removed
from the alien-smuggling ground for exclusion, and a discretionary waiver
was added, which related to the same family members. In Compean, we noted
the intent of Congress to expand the class of offenders subject to penalty under
the immigration laws, as reflected by its removal of the element of gain, without eviscerating the protection against deportation accorded in cases involving certain family members, where gain was not the motivating factor.
    In the absence of direct statutory language or legislative history on point,
we will look to the context in which the 1990 Act was enacted. INS v. Errico,

 (1966). The Immigration Act of 1990 was fashioned, among
other reasons, to preserve family unity. An excerpt from a section of the legislative history of the 1990 Act entitled “Summary and Purpose” states that
one of the objectives of the amendments was “to ease current U.S. immigration law restrictions that . . . hinder the reunification of nuclear families.” H.
R. Rep. No. 723(I), 101st Cong., 2nd Sess., reprinted in 1990 U.S.C.C.A.N.
6710, 6711.
    The 1990 Act recognized the harsh consequences of deportation for
undocumented immediate family members of legalized aliens. To alleviate
this concern, section 301 of the Immigration Act of 1990, 104 Stat. at 5029,
codified an informal policy of the Immigration and Naturalization Service
through which immediate family members of legalized aliens were allowed
to remain pending the processing of their immigrant visas. See H.R. Rep. No.
723(I), supra, at 6721; see also 

 (1995).
    In addition to legislative history that highlights the theme of family unity,
the waiver provision for smuggling aliens under section 241(a)(1)(E)(iii) of
the Act explicitly refers to family unity as a purpose for which the waiver is to
be applied. We will read the smuggling waiver provision under section
241(a)(1)(E)(iii) of the Act, as applied to the instant matter, within this context, and we will interpret it accordingly.
    This line of reasoning is furthered by reference to the statute in juxtaposition to its former incarnations. As noted above, prior to the 1990 Act, the
smuggling provisions for exclusion and deportation included the element of
gain. The requirement that the smuggling must have been “for gain” inherently emphasized commercial smuggling rather than the smuggling of family
members. By revising the smuggling provisions to eliminate the necessity of
establishing gain, while creating an exception for specific immediate family
members, Congress retained a more commercial focus to the statute.
    Moreover, the revisions to the smuggling provisions contribute to
improved deportation of commercial smugglers to the extent that criminal
judgments for alien smuggling that do not include “gain” as an element of the
offense now constitute res judicata in deportation proceedings under section
241(a)(1)(E)(i) of the Act. Previously, a criminal conviction for alien smuggling would not necessarily be sufficient to establish deportability because
the criminal statutes for alien-smuggling activity do not include “gain” as an

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element. Cf. Larios-Mendez v. INS, 

 (9th Cir. 1979) (stating that
conviction for aiding and abetting illegal entry based on a guilty plea to a
properly admitted criminal complaint, which set forth gain as an element,
was adequate to support deportation).
   The revised smuggling provisions now comport with the criminal penalty
provisions under section 274 of the Act, 

 (1994), which do
not require proof of “gain.”1 See, e.g., Matter of Tiwari, 

(BIA 1989) (holding that conviction under section 274(a) is not prima facie
evidence of an alien’s deportability under former section 241(a)(13), 

(a)(13) (1988), since the deportation ground requires an additional showing that the alien acted “for gain” in assisting aliens to enter the
United States illegally). Thus, a criminal conviction for alien-smuggling
activity now allows the Service to proceed against the same party in civil
deportation proceedings without an additional element of proof.
   In addition to interpreting the statute in light of its historical context and
recurring themes expressed in the legislative history, our interpretation of the
statute takes other applications for discretionary relief into account. Generally, in considerations of discretionary forms of relief under the Act, e.g., a
waiver under section 212(c) of the Act, with the exception of nunc pro tunc
waivers that inherently involve retrospective examination, the alien’s circumstances at the time of application for a waiver are evaluated. Cf. Matter
of Caudillo-Villalobos, 

 (BIA 1965) (holding that respondent was ineligible for nunc pro tunc waiver under former section 212(g) of
the Act, 

(g) (1964), based on hardship to United States citizen
wife and child because marriage did not exist at time of last entry).

                               VIII. CONCLUSION
    When confronted with statutory ambiguity, courts have held that doubts
should be resolved in favor of the alien. INS v. 

. We find
this approach particularly appropriate here in light of the congressional mandate to assure family unity and the heightened interest by Congress in commercial smuggling. We also note that a more generous construction of this
limited waiver is warranted in light of the fact that deportation for alien smuggling under section 241(a)(1)(E)(i) of the Act, which is retroactive, results in
lifetime exclusion from the United States.2 We recognize the possibility
raised by the Service of manipulation of the law, in terms of sham marriages
or adoptions. However, we view the opportunities for such manipulation to be

  1 For example, section 274(a)(1)(A)(iv) of the Act provides criminal penalties for any person

who “encourages or induces an alien to come to, enter, or reside in the United States, knowing
or in reckless disregard of the fact that such coming to, entry, or residence is or will be in
violation of law.”
  2 An alien excludable for alien smuggling may seek a waiver under section 212(d)(3) of the

Act, 

(d)(3) (1994), to enter the United States in a nonimmigrant capacity.

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limited. Scenarios in which an alien will have smuggled in only individuals
who are subsequently transformed into a son, daughter, parent, or spouse in
contemplation of litigation are rare. Further, as noted by the Immigration
Judge, these issues can be addressed in the exercise of discretion.
   Based on the foregoing, we agree with the Immigration Judge that the
respondent is eligible to apply for a waiver of deportability under section
241(a)(1)(E)(iii) of the Act. Further, we find no reason to alter his determination that she merits the waiver as a matter of discretion. Accordingly, the Service’s appeal of the Immigration Judge’s decision will be dismissed.
   ORDER:           The appeal of the Immigration and Naturalization Service is dismissed.

CONCURRING OPINION: David B. Holmes, Board Member, in
which Lory D. Rosenberg, Board Member, joined
    I respectfully concur.
    There is no dispute in this case regarding the rules of statutory construction. If the language of the statute is clear, that is the end of the matter. Both
the Board and the courts “must give effect to the unambiguously expressed
intent of Congress.” Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 

 (1984). Moreover, it is assumed that the
legislative purpose is expressed by the ordinary meaning of the words used.
INS v. Phinpathya, 

 (1984). And, in ascertaining the “plain
meaning” of the statute, the Board “must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.”
K Mart Corp. v. Cartier, Inc., 

 (1988).
    The Immigration and Naturalization Service and the dissenting Board
Members view the language of section 241(a)(1)(E)(iii) of the Immigration
and Nationality Act, 

(a)(1)(E)(iii) (1994), as clear on its face
and amenable to only one reading. However, the fact that the Immigration
Judge, in a thoughtful decision, and now a majority of the Board conclude
that this same language can be read in either of two ways makes it difficult for
me to resolve the issue before us simply by a citation to the “plain meaning”
of the words in section 241(a)(1)(E)(iii). While the dissent may be correct in
its reading of this statutory provision, I cannot find that the interpretation
advanced by the respondent, and ultimately accepted by Immigration Judge
Bennett and the Board majority, does violence to the language of section
241(a)(1)(E)(iii).
    Moreover, the legislative history provides no clear guidance regarding the
intent of Congress concerning the specific issue before us, and looking to the
statutory scheme (i.e., “the design of the statute as a whole”) provides little
help. I agree with Board Member Cole that the majority overemphasizes
commercial smuggling in its discussion of the amendments made by the
Immigration Act of 1990, 

 Stat. 4978. The scope of

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the changes to the smuggling provisions in 1990 went far beyond addressing
the problem of commercial smugglers. For example, an alien who smuggles
in his younger sister is both deportable and ineligible for a waiver under section 241(a)(1)(E)(iii) of the Act, as would be a grandmother who smuggles in
a grandchild. However, looking for guidance in the overall statutory scheme
does not much help in answering the question before us, because the waiver
provision in section 241(a)(1)(E)(iii) obviously is as much a part of that
scheme as any other provision of the Act. The arguments related to the statutory scheme become somewhat circular (i.e., one seemingly has to start with
the answer to the question before one can decide which of the twin statutory
concerns of promoting family unity and discouraging alien smuggling is the
more relevant to the matter at hand).
    As the majority notes, the Supreme Court has long held that doubts as to the
proper construction of sections of the Immigration and Nationality Act such
as the one before us “should be resolved in favor of the alien.” INS v. Errico,

 (1966); see also Fong Haw Tan v. Phelan, 

(1948). That being the case, I concur in the decision of the majority.
    I note that the Service argues that the Immigration Judge’s interpretation
of this waiver provision, which the Board majority has now adopted, could
provide a “loophole” for even professional smugglers. However, as noted by
the majority, the scenarios in which an alien could even attempt to manipulate the statute in this regard are extremely limited. For example, an adult
alien who smuggles in just one adult alien of the same sex, or any two adult
aliens, could not create “after the fact” eligibility for a waiver under section
241(a)(1)(E)(iii). Moreover, the Service has available all of its statutory tools
for combating fraud. And, perhaps most significantly, this is a discretionary
waiver, not a mandatory one. The approach taken by the majority today
should allow for a uniform nationwide interpretation of this section of law
without resulting in any dire consequences.
    Finally, I concur in Immigration Judge Bennett’s exercise of discretion in
this case, particularly given the express concern in section 241(a)(1)(E)(iii)
of the Act of assuring “family unity.”This respondent has resided lawfully in
the United States since 1988 and is the mother of four young United States
citizen children. The evidence presented by the Service reflects that she has
no criminal record and no prior history of immigration violations. The Immigration Judge found the respondent’s present marriage to be bona fide, and
the Service has not challenged this finding on appeal. In fact, the Service
would appear to acknowledge that the marriage is bona fide. On these facts, I
find a favorable exercise of discretion clearly warranted.
CONCURRING OPINION: Patricia A. Cole, Board Member
   I respectfully concur.
   I concur in the result reached by the majority that the qualifying family
relationship exist only at the time the waiver of exclusion/deportation is

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requested. I write separately because there is too much emphasis on commercial smuggling in the decision. While I agree with the majority that the revisions to the smuggling provisions of the Immigration and Nationality Act
improve deportation of commercial smugglers, I would also note that the
alien-smuggling problem involves more than the commercial, for fee smugglers. An additional problem the 101st Congress was addressing in the Immigration Act of 1990, 

 Stat. 4978 (“1990 Act”), was
the illegal aliens who “made it” to the United States and then encouraged or
smuggled family and friends to enter illegally.
    The 1990 Act revisions included eliminating the commercial focus to the
smuggling grounds, i.e., gain is not a motivator in all smuggling to be an
offense under the Act. In fact, the 1990 Act did three things to the smuggling
grounds: it expanded the classes of aliens subject to exclusion/deportation
by eliminating the “gain” requirement, see sections 212(a)(6)(E)(i),
241(a)(l)(E)(i) of the Act, 

(a)(6)(E)(i), 1251(a)(1)(E)
(i)(1994); it provided exceptions to exclusion/deportation for certain smuggled “family unity” beneficiaries, see sections 212(a)(6)(E)(ii), 241(a)(1)(E)
(ii) of the Act; and it created a new discretionary waiver provision for aliens
who smuggled only a spouse, parent, son, or daughter into the United States,
see sections 212(a)(6)(E)(iii), 241(a)(1)(E)(iii) of the Act.
    The majority decision seems to emphasize that this smuggling waiver provision was to promote family unity. However, the 1990 Act had many purposes, and the primary focus of that legislation was the permanent legal
immigration system. With the foreseeable backlogs in the second preference,
it can hardly be said that family unity or the reunification of nuclear families
was a primary objective. In fact, family unity for the 1986 legalized aliens
was just one purpose of that legislation. By definition this waiver provision
promotes family unity. However, I would postulate that the 1990 Act smuggling revisions did not provide protection against deportation in cases involving certain family members, but rather provided for the first time an
opportunity to apply for a discretionary waiver of deportation/exclusion for a
limited group of aliens. A point to emphasize is that this exception for specific family members is not automatic, but rather is a discretionary waiver for
humanitarian, public interest, or family unity purposes.
    The dissent mischaracterizes the facts in implying that the respondent and
Raul married in order to qualify for the alien-smuggling waiver. The cited
transcript language was the respondent’s testimony regarding her efforts to
secure an attorney for the proceedings. The respondent stated that she had
tried to get an attorney and “they would tell me that I would either have to be
married or that even to start the case I would have to pay them Five Hundred
Dollars.” During this same testimony the respondent indicated that at her last
hearing the Immigration Judge informed her to “bring a marriage certificate
if I should marry because I was engaged to the person at the time.”


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   Further, the record does not “clearly establish that the respondent married
Raul in an attempt to prevent her deportation.” In fact, the record establishes
that this is a viable marriage. The respondent testified that she and Raul were
boyfriend/girlfriend when they went to Mexico together and had considered
marrying there. She also testified that she and the respondent were to have a
child, and on appeal her attorney advises that in fact, a child was born to them
on December 9, 1994.
DISSENTING OPINION: Mary Maguire Dunne, Vice Chairman, in
which Fred W. Vacca, Michael J. Heilman, and Gerald S. Hurwitz,
Board Members, joined
    I respectfully dissent.
    The respondent, a native and citizen of Mexico who is a lawful permanent
resident, made a trip to Mexico in late 1992 to visit her family. A male friend,
Raul Tapia-Luquin (“Raul”), who had been living in the United States without lawful status, accompanied her on the visit to Mexico. When they wanted
to return to the United States in January 1993, the respondent arranged for her
mother to meet her in the United States border town of Calexico. The respondent passed through the border checkpoint by presenting her alien registration card and was admitted as a returning lawful permanent resident. Raul
entered the United States also, separately from the respondent, and met the
respondent in Calexico. They were apprehended by the border patrol at a California highway checkpoint in the company of the respondent’s mother and
another person. The respondent was placed in these deportation proceedings
and Raul elected to return voluntarily to Mexico.
    Raul reentered the United States without inspection about 4 months later.
He married the respondent on November 20, 1993. This was done on the
basis of legal advice received by the respondent. In particular, the respondent
was advised that she could possibly qualify for the alien-smuggling waiver
under section 241(a)(1)(E)(iii) of the Immigration and Nationality Act, 

(a)(1)(E)(iii) (Supp. V 1993), if she married Raul. She
informed Raul of this development and he agreed to marry her.
    On the basis of the marriage, the respondent sought and was granted a
waiver of deportability under section 241(a)(1)(E)(iii) of the Act. The Immigration and Naturalization Service has appealed from the Immigration
Judge’s decision to grant the waiver and has raised two issues: (1) whether a
qualifying relationship acquired by means of a marriage entered into after the
smuggling act occurred renders an alien smuggler eligible for the waiver, and
(2) if such a marriage did render the respondent eligible for such a waiver, did
the Immigration Judge err in granting the waiver in discretion.
    Unlike the majority, I find that the language of the statute is clear on its
face and without ambiguity and would conclude that the after-acquired relationship does not render the respondent eligible for the waiver. In my view,
the plain meaning of the operative terms in section 241(a)(1)(E)(iii) of the

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Act does not contemplate relationships acquired after the occurrence of the
smuggling act. The limited legislative history provides no guidance as to the
intention of the drafters of the statute. Therefore, the language of the statute
becomes determinative. See INS v. Phinpathya, 

 (1984); American Tobacco Co. v. Patterson, 

 (1982).
   The statute is clear and precise in its definition of those persons who qualify for the waiver and what the specific relationship must be. The language
used to delineate the qualifying relationships under the statute is exclusive
and limiting. In addition to setting out the specific family members, the
exclusive nature of these relationships is emphasized by the word “only.”
The parenthetical phrase, “and no other individual,” is added to underscore
the exact relationships that qualify.
   Furthermore, the construction of the statutory language makes it clear that
the qualifying relationship must exist at the time of the smuggling because it
states that the smuggler “has encouraged. . . only the alien’s spouse . . . to enter
the United States in violation of law.” Section 241(a)(1)(E)(iii) of the Act. The
terms used have ordinary and obvious meanings and must be read as drafted.
   The language contained in the waiver points to the state of the relationships as they existed at the time the smuggling occurred, since it is the act of
smuggling a particular family member itself that is sought to be waived.
Thus, the waiver presupposes the existence of a family relationship that is
sought to be preserved, rather than the protection of a relationship that may or
may not arise at an unspecified time in the future.
   The Act clearly contemplates a waiver for a lawful permanent resident
alien who has been found deportable for smuggling certain specified relatives with the required relationship to the smuggler at the time of the act of
smuggling. To read the statute otherwise because of Congress’ stated desire
to maintain family unity only leads to the result found in this case. Here no
family existed to keep united at the time of the smuggling and there would
have been no family to keep united but for the waiver. The record clearly
establishes that the respondent married Raul in an attempt to prevent her
deportation by applying for the waiver. By its reading of the statute, the
majority permits the respondent to achieve such a result. Requiring the relationship to be in existence at the time of the smuggling is not inimical to family unity; rather, the impetus for the act of smuggling would be to preserve an
intact family unit.


              BEFORE THE ATTORNEY GENERAL
                      (March 28, 1997)

   I have reviewed the decision of the Board of Immigration Appeals
(“BIA”) in this matter at the request of the Commissioner of the Immigration
and Naturalization Service (“INS”) pursuant to the provisions of 8 C.F.R.

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§ 3.1(h)(1)(iii). In its decision, the BIA upheld the Immigration Judge’s rulings that Respondent Farias-Mendoza was eligible for waiver of
deportability under the provisions of section 241(a)(1)(E)(iii) of the Immigration and Nationality Act (“INA”) and that such waiver should be granted.
For reasons explained below, I am directing that the matter be remanded to
the BIA for reconsideration in light of the provisions of section
241(a)(1)(E)(iii) of the INA, 

(a)(1)(E)(iii), as amended by the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 

Division C, 

 (1996) (“Reform Act”).1
    Prior to its amendment by the Reform Act, section 241(a)(1)(E) of the
INA, 

(a)(1)(E), provided as follows:
       (i) In general. Any alien who (prior to the date of entry, at the time of any entry, or
   within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is
   deportable.
       ....
       (iii) Waiver authorized. The Attorney General may, in his discretion for humanitarian
   purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) in the case of any alien lawfully admitted for permanent residence if the
   alien has encouraged, induced, assisted, abetted, or aided only the alien’s spouse, parent,
   son, or daughter (and no other individual) to enter the United States in violation of law.
    The primary issue in this proceeding is whether Respondent Farias-Mendoza is eligible for waiver of deportation under the latter provision. The
INS contends that the waiver provision is available for marital relationships
only if the assisted alien was married to the assisting alien at the time of the
illegal entry. The respondent contends, and the BIA ruled, that the waiver
provision is available as long as the marital relationship is established by the
time a waiver determination is made.
    On September 30, 1996, Congress passed the Reform Act. The Reform
Act amended section 241(a)(1)(E)(iii) of the INA, to clarify that the family-relationship waiver is available only if the alien’s relationship with the
person assisted into the United States existed at the time the illegal entry
occurred. The waiver provision now reads (new language in bold type):
       (iii) Waiver Authorized. The Attorney General may, in his discretion for humanitarian
   purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) in the case of any alien lawfully admitted for permanent residence if the
   alien has encouraged, assisted, abetted, or aided only an individual who at the time of the
   offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter
   the United States in violation of law.
INA § 241(a)(1)(E)(iii), 

(a)(1)(E)(iii).


  1 Pursuant to the Reform Act, section 241 of the INA will be redesignated as section 237 of

that Act, effective April 1, 1997. Reform Act, Title III, §§ 305(a)(2) and 309(a), 

-598, 625.

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   Pursuant to section 351 of the Reform Act, this amended version of the
waiver provision is to apply in the case of “waivers filed before, on, or after
the date of the enactment of [the Reform Act], but shall not apply to such an
application for which a final determination has been made as of the date of
enactment of [the Reform Act].”2
   Because the BIA has not had the opportunity to consider the effect of the
quoted provisions of the Reform Act on this case, I remand this matter to the
BIA for reconsideration, taking into account the provisions of section
241(a)(1)(E)(iii) of the amended INA and section 351 of the Reform Act.

                 BEFORE THE BOARD ON REMAND
                          (May 7, 1997)
BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; HEILMAN,
HOLMES, HURWITZ, FILPPU, COLE, MATHON, and GUENDELSBERGER, Board
Members. Concurring Opinions: VACCA, Board Member; VILLAGELIU, Board Member;
ROSENBERG, Board Member.

SCHMIDT, Chairman:

   This case is before us on remand from a decision of the Attorney General
dated March 28, 1997. Our original decision in this case dismissed the appeal
of the Immigration and Naturalization Service from an order of the Immigration Judge granting the respondent’s application for a waiver under section
241(a)(1)(E)(iii) of the Immigration and Nationality Act, 

(a)(1)(E)(iii) (1994). Matter of Farias, 

 (BIA 1996).
The Attorney General agreed to review our decision on certification at the
request of the Commissioner of the Service pursuant to 

(h)(iii)
(1996). On September 30, 1996, while this case was pending before the
Attorney General, Congress amended section 241(a)(1)(E)(iii) to limit the
availability of the waiver to only those aliens who have smuggled “an individual who at the time of the offense was the alien’s spouse, parent, son, or
daughter.” See Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Division C of 

 351(b),(c), 

- 546, 3009-640 (effective Sept. 30, 1996) (“IIRIRA”).3 The legislative
history of that amendment shows that its specific purpose was to overrule the
Board’s precedent decision in this particular case. See H.R. Rep. No. 104-828
(1996), available in 

 and 142 Cong. Rec. H10,841-02 (daily
  2 With respect to appeals from decisions of an Immigration Judge to the BIA, 

(d)(2) provides:
         (2) Finality of decision. The decision of the Board shall be final except in those cases
       reviewed by the Attorney General in accordance with paragraph(h) of this section.
  3 Section 241(a)(1)(E)(iii) of the Act was redesignated effective April 1, 1997, as section

237(a)(1)(E)(iii) of the Act (to be codified at 

(a)(1)(E)(iii)). See IIRIRA
§§ 305(a)(2), 309(a), 110 Stat. at 3009-598, 3009-625.

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ed. Sept. 24, 1996). The Attorney General therefore remanded the record to
this Board for reconsideration of the respondent’s eligibility for a waiver.
   As the Attorney General noted in her decision, the amended version of the
waiver provision applies to “waivers filed before, on, or after the date of the
enactment of [the IIRIRA], but shall not apply to such an application for
which a final determination has been made as of the date of enactment of [the
IIRIRA].”). IIRIRA § 351(c). However, as the Attorney General also pointed
out, under 

(d)(2) (1996), a decision of this Board is not final
while pending review before the Attorney General on certification.
   Section 101(a)(47) of the Act, which sets forth the definition of an “order
of deportation” and states when it becomes final, was added by the
Antiterrorism and Effective Death Penalty Act of 1996, 

 Stat. 1214 (“AEDPA”). This new provision does not modify or supersede 

(d)(2), but merely defines when an order of deportation
entered by the Board shall be deemed final for judicial review purposes. See
H.R. Rep. No. 104-518 (1996), available in 

. Section
101(a)(47) does not alter the fact that under 

(d)(2) there is no
enforceable order of the Board, for any purpose, while such order is pending
review before the Attorney General on certification. Consequently, inasmuch
as there has been no “final determination” of this case by this Board, the
amended version of the waiver applies to the respondent.
   At the time the respondent assisted her current husband in entering the
United States in violation of law, she was not married to him. Therefore, the
respondent is ineligible for a section 241(a)(1)(E)(iii) waiver under the
amended law. Consequently, we will vacate our previous order in the case,
sustain the Service’s appeal, and remand the record to the Immigration Judge
for further proceedings.
   ORDER:          Our order of March 12, 1996, is vacated. The appeal of
the Immigration and Naturalization Service is sustained, and the record is
remanded to the Immigration Judge for further proceedings in accordance
with this order.
CONCURRING OPINION: Fred W. Vacca, Board Member
   I respectfully concur.
   While I concur with the result reached by the majority, I am compelled to
point out that the former section 241(a)(1)(E)(iii) of the Immigration and
Nationality Act, 

(a)(1)(E)(iii) (1994), expressly limited the
availability of a waiver of deportability to aliens who had smuggled an individual who, at the time of the smuggling, was either the alien’s spouse, parent, son, or daughter, and no other person. Nonetheless, this Board, in an
eight to four decision, failed to interpret the plain language of section
241(a)(1)(E)(iii) as such. Accordingly, the Board’s decision was both certified to the Attorney General by the Immigration and Naturalization Service
and expressly overruled by Congress’ amendment of section 241(a)(1)

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(E)(iii) by section 351 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of 

 Stat.
3009-546, 3009-640 (“IIRIRA”).
    The former section 241(a)(1)(E)(iii) of the Act was both clear and precise
in its definition of those persons who qualified for the waiver, as well as its
specification of the required relationships between the alien smuggler and the
individual smuggled. The exclusive nature of these relationships was further
emphasized by Congress’ use of the words “only” and “no other individual.”
As noted by the dissenting opinion in the original decision of this case, the
waiver provisions of section 241(a)(1)(E)(iii) logically presupposed the existence of a family relationship that was sought to be preserved, rather than the
protection of a relationship that may or may not arise at an unspecified time in
the future. The current amendment to section 241(a)(i)(E)(iii) simply spells
out that the relationship between the alien smuggler and the individual smuggled must exist at the time of the smuggling event.
    When this case was first before us, our task was to interpret the scope and
breadth of the plain language of section 241(a)(1)(E)(iii) in a fashion that was
both reasonable and logical. However, the majority elected instead to engage
in a course of statutory construction that led to an unreasonably broad interpretation that was out of step with the will of Congress. Had the former
majority followed the plain meaning interpretation of the original statute as
expressed by the dissenters, neither the certification to the Attorney General
nor the amendment of the statute by Congress would have been necessary. It
is interesting to note that this Board made a similar error of overreaching in
interpreting, not only a statute, but our own Board precedent and controlling
case law in Matter of Soriano, 

 (BIA 1996). Our decision in
Matter of Soriano was also certified to the Attorney General and was overruled in a decision dated February 21, 1997.
    In my opinion, we must exercise restraint when interpreting the plain language of statutes. Deference to the supremacy of the Legislature, as well as
recognition that members of Congress typically vote on the language of a
bill, generally requires us to assume that the legislative purpose underlying a
statute is expressed by the ordinary meaning of the words used. United States
v. Locke, 

 (1985). Accordingly, I concur in the result reached by
the majority.
CONCURRING OPINION: Gustavo D. Villageliu, Board Member
   I respectfully concur.
   While I concur with the result reached by the majority, I am compelled to
write separately to join the concurring analysis of Board Member Vacca and,
belatedly, express my agreement with the views of the dissenters when this
case was last before us. I then joined the majority believing that the language
of section 241(a)(1)(E)(iii) of the Act, 

(a)(1)(E)(iii) (1994),
was ambiguous and, thus, that doubts were to be resolved in favor of the

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alien. INS v. Errico, 

 (1966). Upon reconsideration, it is my
view that my previous interpretation was incorrect, and the language of the
statute was not ambiguous. The words, “alien has encouraged, induced,
assisted, abetted, or aided,” preceding the smuggled relative, were in the past
tense, referring to the time when the smuggling occurred, as explained by the
original dissenters in this case. The language of the statute was unambiguous,
and thus, the rules regarding ambiguous statutes were inapplicable.

CONCURRING OPINION: Lory D. Rosenberg, Board Member
   I respectfully concur.
   Originally enacted in the Immigration Act of 1990, 

 Stat. 4978, “for humanitarian purposes, to assure family unity, or when it
otherwise is in the public interest,” section 241(a)(1)(E)(iii) of the Immigration and Nationality Act, 

(a)(1)(E)(iii) (1994), contained no
express limitation on the time at which the qualifying relationship came into
being. Matter of Farias, 

 (BIA 1996). The statute was
amended, however, by section 351 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Division C of 

 Stat. 3009-546, 3009-640 (“IIRIRA”).
   Although the ostensible purpose of the waiver has not changed, the scope
of its applicability as we had construed it in Matter of Farias, supra, has been
restricted.1 Its terms now expressly limit eligibility for the waiver to an individual who, “at the time of the offense,” had a qualifying relationship.2 See
section 237(a)(1)(E)(iii) of the Act (to be codified at 

(a)(1)(E)(iii)). This provision applies to waivers filed “before, on, or
after the date of the enactment of [the IIRIRA],” but, notably, not to final
  1 In Matter of Farias, supra, we considered the absence of specific congressional direction

as to the scope and application of section 241(a)(1)(E)(iii) of the Act. We noted that at that time
Congress was concerned with family unity, and that, in amending the smuggling provisions to
eliminate the factor of gain as a necessary element of the offense, Congress remained sensitive
to those family situations which were specified under the specific language of the statute.
   2 I note that the Joint Explanatory Statement of the Committee of Conference emphasizes

that Congress’ stated purpose was “to override the recent contrary holding by the Board of
Immigration Appeals.” H.R. Rep. No. 104-828 (1996), available in 

, and 142
Cong. Rec. H10,841-02 (daily ed. Sept. 24, 1996). The Joint Explanatory Statement reads,
“The amendment clarifies that the family relationship must exist at the time of the act of
smuggling.” 

 (emphasis added). Contrary to my concurring colleagues’ insistence that the
prior language was plain and unambiguous, Congress appears, by amending the statute, to
acknowledge the need to specify an express intent to limit the waiver to relationships in
existence at the time of the violation, rather than at the time of the waiver adjudication.
Furthermore, with perhaps the exception of the canon which cautions that ambiguous
provisions in deportation statutes are to be construed in the alien’s favor, the canons of
construction are applicable in giving meaning to the plain language of a statute. See INS v.
Cardoza-Fonseca, 

 (1987); see also Moskal v. United States, 

 (1990) (recognizing that words are to be given their ordinary meaning, in context of the
statute overall).

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determinations which have been made as of the date of enactment. IIRIRA
§ 351(c).
   Normally, we apply the law in effect to the situation existing at the time of
the adjudication. See Ziffrin v. United States, 

 (1943).3 If we
accept that the decision in the respondent’s case is not a final one, the respondent cannot benefit from the waiver unless she can establish that “at the time
of the offense,” she had a relationship described by the statute. Furthermore,
although the man the respondent was charged with assisting to enter the
United States was her boyfriend, the couple, who now are husband and wife,
were not married at the time of the offense.
   The crux of our decision rests on whether or not there has been a final
determination in this case, and I must agree with the majority that 

(d)(2) (1996) controls our conclusion that no such determination has
been made in this case.4 Consequently, I concur in the result reached by the
majority, i.e., that according to the law in effect today, the respondent is not
now eligible for a “smuggling waiver” under section 241(a)(1)(E)(iii) of the
Act to overcome deportability under section 241(a)(1)(E)(i) (smuggling
aliens).5
   I write separately to address both the individual circumstances of the
respondent and the legal posture of her case. To begin, I believe it is important to put a human face on the respondent and her situation. In addition to the
fact that the respondent’s involvement in bringing her boyfriend into the
United States unlawfully constitutes smuggling and is a violation of law,
there is more to be said about the respondent. She has resided in the United
States since 1981 when she was 11 years of age. On April 28, 1988, she
became a lawful temporary resident of this country. She became a lawful permanent resident on June 12, 1992, when she was 22 years old.
   Now, at age 27, she has lived in this country for 16 years. She has been a
lawful permanent resident of the United States for 7 years, and has been

   3 Congressional enactments will not be read to have retroactive effect unless their language

specifically requires this result. Bowen v. Georgetown Univ. Hosp., 

 (1988);
see also Landgraf v. USI Film Products, 

, (1995).
   4 The Board is bound by the regulations promulgated by the Attorney General, Matter of

Ponce de Leon, 

 (BIA 1996), and I concur with the majority on that basis.
However, I must take issue with the reasoning contained in the majority decision concerning
the applicability of section 101(a)(47) of the Act (codified at 

(a)(47)) to the
finality of our decision in Matter of Farias, supra, as certified to the Attorney General. The
majority reads section 101(a)(47) as pertaining only to finality of deportation orders for
purposes of judicial review. The statutory language does not contain such a limitation, however,
and I see no reason why orders of deportation issued by the Board should be final for purposes of
federal court review, but not final for purposes of review by the Attorney General. Assuming this
provision is applicable equally to either party appellant, in an impartial quasi-judicial system,
the regulation we invoke to determine this appeal may be of questionable force.
   5 Redesignated as section 237(a)(1)(E)(i) of the Immigration and Nationality Act by section

305(a)(2) of the IIRIRA, 110 Stat. at 3009-598.

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Interim Decision #3269


lawfully domiciled in this country for at least 9 years. And, she was married
on November 20, 1993, to the individual she has been charged with smuggling into this country. She is the mother of five children, all citizens of the
United States. The youngest, born of her marriage, is nearly 3 years of age.
    For purposes of a “smuggling waiver,” under the statute as it presently
exists, neither the respondent’s residence in the United States of more than 16
years, nor her five children, nor her marriage of 4 years, makes any
difference.
    Finally, I believe it important to note that although enforcement objectives
apparently were foremost in Congress’ mind when it enacted section 351 of
the IIRIRA to limit the applicability of the waiver provision, the legislative
history is devoid of any evidence of abuse of the waiver.6 The record before
us is similarly clear of any specific intent on the part of the respondent to take
advantage of the waiver as previously interpreted.7
    Furthermore, the immigration violation for which the respondent is
deportable is a civil offense. The respondent is not an aggravated felon and
she has not been convicted of any crime.
    As these proceedings were pending before the effective date of the
removal provisions of the IIRIRA, unless the IRIIRA provision is applicable
to proceedings initiated before, on, or after April 1, 1997, the respondent’s
case is governed by the statute previously in effect. See IIRIRA § 309(c), 110
Stat. at 3009-625. There exist other forms of relief that may be available to
the respondent and allow her to keep her family unit together in the United
States. See 

 (1996) (providing that an Immigration Judge
shall inform a respondent of his or her apparent eligibility for any of the benefits referenced in that section).
    On remand, the respondent, a long time lawful resident with significant
family ties and other equities, and no record of immigration violations other
than that giving rise to the instant change, may be eligible to seek certain
forms of discretionary relief from deportation, including certain waivers of
deportability. See, e.g., section 212(c) of the Act, 

(c) (1994),
as amended by Antiterrorism and Effective Death Penalty Act, 

(d), 

, 1277 (waiver of inadmissibility and
deportability); section 244(e)(1) of the Act, 

(e)(i) (1994)
(voluntary departure).

   6 As noted in Matter of Farias, supra, (Holmes, Rosenberg, concurring), under the

pre-amendment law, not only were the number of persons who could qualify for a waiver extremely
limited, but it would be easy to identify and differentiate any efforts to abuse the system.
   7 I note that any suggestion that abuse of our immigration system was the sole motivating

factor in the respondent’s marriage is belied by the fact that the respondent had no history of
immigration violations, that her purpose in assisting her boyfriend to enter was personal (and
most probably romantic), and, as noted by her counsel in papers filed below, that the respondent
was over 5 months pregnant by her husband at the time of the 1993 adjudication of her case
before the Immigration Judge.

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