11AunLE or DeG-- cr AL.
In EXCLUSION Proceedings
A-10644334
A-10847616
A-11404156
A-11097105
Decide Board Stay 14, 1959
Comtni9sionet's Motion ,Inne 15, 1959
Board. Decision Angit9t 24, 1950
Decided by the Attorney General December 14, 1059
Waiver of excludabillty—Adrunce exercise of sections 5 and 7, Act of September
11, 1957, not authorized in exclusion proceedings rihcre progent excludability
is established.
Advance svaircrr of inadmissibility under sections 5 and 7 of Act of September 11, 1057 are not authorized to fccnitate future admission of aliens
ordered excluded. Disposition of waiver requests must await room to foreign territory and compliance with procedure established by 8 CFI; 212.7(a).
EXCLUDABLE:
(DeG (—Act of 1552--Sentiou 212(a(12) [t U.S.C. 1182(a)(22)1—Em
gaged ln prostitution.
(DeV—)--Act of 1992 - goction 212(a) (12) [8 U.S.C. 1182(a) (12)1—Engaged in prostitution.
Act of 1952—Section 212(0 (19) [8 U.S.C. 1782(0) (10) (—Visa
by fraud or willful misrepresentation.
Act of 1 1352--Section 212(a) (20) [8 U.S.C. 1182(a)(20)j—No
valid visa.
(DeR—)—Act of 1552—Section 212(a) (19) (8 U.S.C. 1182(a) (19)1—Procuring documentation by fraud or willful misrepresentation.
(11—) —Act of 1552—Section 212(a) (9) [8 U.S.C. 1182(a) (0)1—Convicted of a crime involving moral turpitude.
Act of 3952—Section 212(a) (20) [8 U.S.C. 1382(a) (20)I—No
valid visa.
BEFORE TAE BOARD
(Slay 14, 1059)
Discussion : This is a motion by the Assistant Commissioner,
Inspections, requesting that the Board reconsider and withdraw
that portion of the order entered in each case which granted the
particular applicant certain discretionary relief under Public Law
325
85-316 (Act of September 11, 1957). In each case the applicants
are physically in the United States and must leave to obtain visas
so that they may rejoin their families in the United States. The
discretionary relief was granted to expedite the issuance of visas
and the consequent return to the United States. The issue is
whether the Board had power to grant the discretionary relief.
Sections 5 and 7 of Public Law 85 - 316 authorize the waiver of certain grounds which prevent the issuance of visas and which bar
entry into the United State.. The motion will 1, denied.
Each of the applicants_ is_ excludable for the relating reasons
stated in the caption. The facts in the individual cases have been
fully set forth in previous Orders. The situations are not too dissimilar. To simplify matters, we shall briefly relate the facts of
only the first case (DeG—). DeG , a 27-year-old female, is a
native and citizen of Mexico. She is married to a citizen of the
United States, and there is a United States citizen child of the
union. The applicant was a prostitute in Mexico for periods of
various duration from 1951 to 1953. On March 9, 1956, she received
nunquota visa. She was ineligible for the issuance of this visa,
because she had engaged in prostitution (section 212(a) (12), Immigration and Nationality Act; 8 U.S.C. 1182(a) (12)). Her unfortunate employment was known neither to the consul when ho issued
the visa nor to the Service when she was admitted for permanent
residence on March 9, 1956. After her admission, the applicant
made her home in the United States. She left for a short visit to
Mexico. She is now reapplying for admission. She was found
excludable because she had engaged in prostitution. She applied
for discretionary relief under Public Law 85-316. The special inquiry officer considered the following matters: Applicant had been
a resident of the United States for several years; her husband and
child are citizens of the United States; her husband, an honorably
discharged veteran, had served in the army four years; the family
is buying a home; extreme hardship would result if the applicant
were excluded; and a check of appropriate government records
failed to reveal any derogatory information. The special inquiry
officer found that the applicant's admission Would not be contrary
to the national welfare, safety or security of the United States. He
ordered her admission as a returning re ,,irlent nmlor section 5 of
Public Law 85 - 316, waiving the inadmissibility arising out of the
fact that she had been a prostitute. The special inquiry officer certified the case to this Board for consideration. The Board found
that the visa issued in 1956 could not be validated because it had
been issued prior to September 11, 1957, when
Public Law 85-316
had been enacted; that applicant had never been lawfully admitted
for permanent residence and that she needed a valid visa to enter.
326
The Board used Public Law 85-316 to grant the applicant an advance waiver of the ground of inadmissibility so that when she applied again for a visa, expeditious action could be taken upon her
application for the vie,
The Service position, while not stated so bluntly, is that the Board
has no authority to grant advance waivers of grounds of inadmissibility under sections 5 and 7 of
Public Law 85-316 (8 U.S.C. 1182b,
1251a, 1959 Pocket Part), for to do so is contrary to regulations
(8 CFR 212.7) and the intent of the statute.
The contention that the Board is without authority in exclusion
proceedings to grant relief under
Public Law 85-316 is new. It
was not advanced when these cases were previously before us.
The Attorney General has conferred his authority under the immigration laws upon this Board to be used "as is appropriate cud
necessary for the disposition of the case" before the Board, except
when there is a "specific limitation" on the Board's power (8 CFR
3.1(d) (1)). There is no specific limitation preventing the Board
from exercising relief under sections 5 and 7 in an exclusion proceeding. It has always been considered appropriate and necessary
in the disposition of a case to Give all relief possible to expedite the
return of an alien in a proper case (see orders in Matter of 0
0—, 4 I. & N. Dec. 211 (exclusion proceedings); Matter of
B—,
3 I. & N. Dec. 343 (application for advance exercise of
relief) ; Matter of H—, 3 1. & N. Dec. 784 (preexaminatiort proceedings) ; Matter of A , 2 1. & N. Dec. 459 (deportation proceedings)). The instant cases were properly before the Board on
appeal. We believe that the Board had authority to act (Matter of
B , N. Dec. 1; Matter of S N 6 I. & N. Dee. 73;
Matter of N ,
6 I. & N. Dec. 321; Matter of M , 5 I. & N.
Doo. 595).
The Commissioner's issuance of regulations concerning
Public
Law 85-316 (8 CFR 212.7) should not confuse the issue. The Attorney General has delegated authority under immigration laws to
the Commissioner and has authorized the Commissioner to issue
regulations to carry out his responsibilities. However, the delegation of authority states that the Commissioner has no authority to
divest the Attorney General or the Board of its power, privileges,
and duties (S CFR 2.1). Under his authority, the Commissioner
has issued S CFR 212.7 providing that persons living abroad should
submit applications for relief under motions 5 and 7 to the, ennRul
who is to forward the applications to the Service for decision.
Bearing in mind the extent of the grant of power to the Board and
the restrictions upon the Commissioner's power, it is clear that the
regulation issued by the Commissioner should no more be read to
divest the Board of authority than it should be read to divest the
Attorney General of authority. The regulation should be read in
327
its natural meaning as governing relations between applicants for
relief and the Service. Otherwise, it is being construed as giving
only the Service the right to give relief under sections 5 and 7.
Since in exclusion proceedings the Board has the power to grant
or deny relief applied for under sections 5 and 7, and no specific
reason for denying the applications of any of the individuals involved herein has been advanced, no change need be made in any of
the orders.
The remainder of the Service contentions have nothing to do with
the power of the Board to act but are general statements as to the
desirability of the Board taking the action it did. We shall comment briefly upon these contentions. The Service believes that in
granting relief in exclusion proceedings, the Board may overlook
grounds of inadmissibility which the consul may find to exist. Of
course, this possibility exists, as it does when the Service grants
advance relief under sections 5 and 7 in preexamination proceedings
in the United States. However, it is not an important consideration.
Exclusion proceedings (preexamination is considered of this nature)
are held before skilled employees who are interested in determining
whether or not an alien is inadmissible.. If some ground of inadmissibility escapes them which is discovered by the consul, the
waiver may be enlarged by the Service or the Board to ;tiebacdo the
ground of inadmissibility discovered, if the ground is one covered
by law and it is desirable to do so. If the ground of inadmissibility
disclosed cannot he waived, then, of course, the consul will not issue
a visa. One thing is clear. A grant of advance relief by-the-Board
or by the Service does not compel the consul to„issue. visa. That
IS a matter solely within his discretion. (A ground of inadmissibility may not he discovered until after the applicant has received
his visa, and appears before the Service; then, or in a case where no
visa is required, the Service or the Board may grant nine pro tune
relief under sections 5 and 7 (Matter of I. St N. Dec. 713)).
The Service is concerned with the thought that the Board may
make decisions without information which may be in the possession
of the consul. (All four of the applicants concerned here were
issued visas by an American consul. Since they were given favorable, consideration, it would appear extremely unlikely that he will
be in possession of any derogatory information which would be of
value in considering the advisability of granting waivers.) What
is done by the Board in granting an advance waiver in an exclusion
proceeding does not differ from the action of the Service itself in
granting the same relief in preexamination proceedings. In each
of the instant cases the usual Service neighborhood investigation
and check of appropriate records have been made. The basis for the
Service conclusion that the consul will 'do more than forward the
328
application to the Service, which the regulations require him to do,
is not set forth.
Extensive administrative experience using similar relief makes it
clear that the Board's action is efficient, effective, and will not result
in harm to the nation, or in the admission of undesirable aliens. An
application granted in exclusion proceedings, just as one granted in
preexamination proceedings by the Service, should reduce considerably the time involved in obtaining the issuance of a visa. Moreover, the individuals who are benefited by Board action in most
cases would be persons who had considerable periods of residence in
the United States and are under an order requiring their separation
from their homes and families. The fear of permanent separation
would be strong. It will undoubtedly do much to relieve this fear,
if, in deserving cases, favorable action is promptly taken. The intent of the law is to reunite deserving families. The action of the
Board speeds this end.
In summary, the practical reasons advanced by the Assistant Commissioner are no more potent here than if they were advanced in a
preexamination proceeding. Basically, the Board has power to act;
the action taken was in the exercise of sound discretion.
Order: It is ordered that the motion be and the same is hereby
denied.
BEFORE THE CENTRAL OFFICE
(June 15, 1959)
Discussion: In each of the instant exclusion proceedings, the
Board has affirmed excludability but has granted an advance waiver
of sections 5 and 7 of the Act of September 11, 1957, if the alien
applies for admission in possession of a valid visa issued within
6 months.
Involved is an interpretation of 8 CF11 212.7(a) which states, in
pertinent part: "An alien who is excludable and seeks a waiver
under section tl or 7 of the Act of September 11, 1957, shall file an
application on Form 1-601 at the consular office considering the application for a visa for transmittal to the Service for decision. The
applicant shall be notified of the decision and if the application is
denied of the reasons therefor and of his right to appeal in accordance with the provisions of Part 103 of this chapter." (Emphasis
supplied.)
In its order denying the Service motion to reconsider, the Board
has taken the position that its authority to take any action necessary
for disposition of a case before it,' overrides the specific language
8 CFR 3.1 Board of Immigration Appeals— * (d) Powers of the
Board—(1) Generally. Subject to any specific limitation prescribed by this
chapter, in considering and determining cases before it as provided in this
part the Board shall exercise such discretion and authority conferred upon
the Attorney General by law as is appropriate and necessary for the disposition of the case …. (Emphasis supplied.)
329
562713-51-23
of the regulation; that the regulation can only govern relations
between the applicants and the Service, and has no applicability to
the Board. The Service, on the other hand, asserts that the Board
action is in no way necessary to disposition of the cases before it
since in any event, as the Board has recognized, the aliens must
proceed to the United States consul for visas. The Skrvice takes
the view that an orderly process has been evolved with concurrence
of the Department of State whereby an application for section 5 or
esetiun 7 relief is first received at the consulate and, if naeassary, is
forwarded to the Service for action on the basis of all available
information; that the ruling of the Board not only is unnecessary
to disposition of the sass, and contrary to the regulation, but, for
reasons set forth in the Service motion to reconsider, may actually
inconvenience the alien, the Service, and the Department of State.
It will be noted that these aliens are all natives and citizens of
Mexico. Their position in this respect is similar to that of the subject in Mato. of , A 10517426, Int. Dec. No. 978 (Atty.
Gen., Feb. 26, 1959). In that case the Board, in its original order,
attempted to advance precisely the argument advanced here re -
specting separation of families and expediting the issuance of visas.
The arguments have no more merit here than they did in that case,
since, as in Matter of Da? , dUpy'CG, these aliens must apply to rt
United States consul for visas.
The Board has also attempted to draw an analogy to the procedure followed by the Service in preexamination proceedings.
Under 8 CFR 235a, the Service makes a finding only as to prima
facie eligibility for section 5 or 'section 7 relief in connection with
granting an application for the privilege prearaminneican This
enables the United States consul in Canada to entertain the initial
application for a visa. If eligible in all other respects, the alien is
required to file with the consul the application called for by 8 CFR
212.7. This application is forwarded to the Service and considered
and passed upon at such time as the alien is actually preexamined.
The procedure followed by the Service in preexamination is in all
respects consistent with the position urged in the instant case—
namely, that it is improper for either the Service or the Board to
make an unnecessary advance adjudication in connection with a matter which must initially be passed upon by another governmental
agency.
For the reasons set forth in the Service motion of February 25,
1959, it is submitted that the decision is in error.
Request is hereby made that pursuant to the provisions of 8 CFR
3.1(h) (1) (iH), the instant cases be referred to the Attorney General
for review.
330
BEFORE THE BOARD
(August 24, 1959)
Discussion: In each of the cases in question, the Board has
granted under MCI-101W 5 and '7 of Public LOW C5-316 discretionary
relief of a nature it has as a practice of long standing granted under
similar circumstances.' The Service is of the opinion that the Board
is shorn of its usual power because of the regulation found at S CFR
212.7. This regulation of the Service concerns the manner of transmitting applications for relief under section 5 or 7 by one whose
application for a visa is being considered at a consular office. 2 -We
rejected - the Service construction of its regulation feelpg theiit it
would invade the province of the Attorney General who alone has
administrative power to restrict and change functions of the Board.
The Board nuts for the Attorney - General. The deci sions of this
Board are binding precedents upon the Service. The Service cannot
by regulation take away or change the functions of this Board, or
nullify its precedents. Otherwise, independent administrative review of actions vitally affecting aliens who are closely related to
United States citizens or lawfully resident aliens could be jeopar
dized or seriously curtailed.
Cases arising under the immigration laws present unusual and
varied factual situations. The greatest degree of administrative
flexibility is required to deal with such situations equitably and
fairly. It is the freedom permitted to thin Boned that has enabled
the Board to do its job of independent administrative review in a
"fair and equitable" manner.° It would seriously hamper the ability
So normal is the exercise of such power and so well established is the
practice that the special inquiry slicer who considered the issue of advance
relief granted it without even discussing the right to exercise relief. (Two
special inquiry officers terminated proceedings after improperly granting waivers. one 011lber tletantl relief. on the gronnel that the applicant sot eligible since her visa had not been issued after September 11, 1057. He did not
consider the availability of advance relief.)
a The aliens in the instant rases do sot have applications for visas pending.
They were issued visas before September 11, 1957. They applied for relief
-under Public Law 85-316 in the exclusion proceedings on the proper form.
a Comment of Committee on the Judiciary, H.R. No. 1365, 82d Cong., 2d Sees.,
pp. 35-6, February 14, 1952; C.S. Code Congressional and Administrative News,
1952, pp. 1687-8;
Board of Immigration ppeofs.—In the course of activities conducted in
pursuance of section 136 of the Legislative Reorganization Art of 1946 (
60
Stat. 832), the committee gained good knowledge of the practices, procedures,
and decisions of the Board of Immigration Appeals established in the Department of Justice. It is believed that the Board has wen served its purpose
and has greatly contributed to a fair and equitable administration of justice
in immigration, nationality, and naturalization cases. Refraining at this time
from proposing to change the status of the Board into a statutory body, the
committee is of the opinion that the Attorney General should not niter in any
way the structure and functions of the Board.
-331
of the Board to minimize hardship if its hands were tied by rigid
concepts?
Several collateral matters raised by the motion require connnent.
The motion appears to indicate that by the regulation there has
been a redelegation to the Department of State of the power and
responsibility to pass upon an application for a waiver under section
5 or 7 of Public Law 85-316 (see, penultimate paragraph of discussion of the Service request for certification). A review of the
administrative practice of the Department of State reveals that it
does not contemplate the making of recommendations or joint action
with the Attorney General. Therefore, contrary to the implications
of the motion the Department of State does not page upon the request. It assists the alien who is an applicant for a visa to fill out
the form asking the Service to grant a waiver, and then without
making a recommendation, forwards the form to the Service. (See
letter from Department of State, Appendix "B.")
It may be desirable to have applications from those abroad filed
through the Department of State. However, such action is not
required by law, and it is not essential.° At present it is routine to
grant relief under the very law in question without any request
being filed with the Department of State. Aliens who entered with
visas issued oiler Public Low 85-310 became effective need not file
applications for relief under sections 5 and 7 with the consul. They
apply directly to the Service in exclusion proceedings. Aliens who
apply for adjustment of status under section 215 of the Immigration and Nationality Act apply directly to the Service. Aliens who
apply for creation of record of lawful entry under section 249 of
the Immigration and Nationality Act apply directly to the Service.
Aliens in preexamination proceedings file directly with the Service!'
Many applications for similar relief have been granted under the
7th proviso to section 3 of the Immigration Act of 1917 and under
section 212(c) of the Immigration and Nationality Act on the basis
of requests made directly to the Service.
In our opinion the motion in at least two aspects furnishes inaccurate information as to the procedure used in applying for section
5 or 7 relief. As we have indicated, the motion indicates that the
4 We have previously rejected a Service contention that its regulation as to
a procedural matter can abate the authority of the Board sitting in independent review of Service action in cases properly before it (unreported Matter of
A-4218988, Dec. 1, 1955, Appendix "A").
5 Service investigations were made in each case involved here. Information
of any importance which is available to the Department of State would have
been available to the Service in its investigation.
Preesamination, abolished as of June 30, 1959, was a device which enabled
an alien in the United States to enter Canada to apply for a United States
immigrant visa.
332
Department of State passes upon an application. In fact, the Department merely transmits the application without recommendation.
We believe the motion is also inaccurate in regard to what occurred
in a preexamination proceeding. The motion explains that in preexamination proceedings an alien in the United States who desires
to apply for relief under sections 5 and 7 is required to file an
application with the consul abroad and that the consul in turn sends
the application to the Service for consideration. An examination
of the pertinent regulations (8 CFR 235a) fails to reveal a reference
to such a round-about procedure. The Department of State does not
know of euch a practice (Appendix "B"). Ea sed upon review of
the cases which have been brought before us, it is quite clear to us
that an applicant for preexamination who applied for the benefits
of section 5 or 7 applied to the Service and to the Service only, and
that the Service approved or denied the application without any
intervention by the Department of State.
Hatter of DeF , A - 10547426, Int. Dec. No. 978, decided by the
Attorney General on February 26, 1959, is quoted in the motion in
support of the Service view that its regulation as to procedure
prevents the Board from acting as it normally could. We understand dira66er of Do , supra, to bo e statement by the Attorney
General that section 5 or 7 is available to an alien making application for admission to the United States and that it is not available
to an alien in the United States wrileRc he is eligible fnr preesainina.
tion—a procedure contemplating the departure from and reentry of
an alien into the United States. Since the aliens here are applicants
for admission to the United States, obviously they are eligible in
this proceeding to apply for the relief.
Perhaps we are not clear as to the manner in which the Service
interprets Matter of DeF , supra, since after it was decided the
Service followed policies which in our opinion are contrary to the
Attorney General's ruling. The Attorney General, relying upon
several court cases, held that an application for relief under section
5 or the pertinent part of section 7 could be made only in exclusion
proceedings. Nevertheless, after this finding was handed down the
Service issued or continued in effect regulations permitting an alien
in the United States to apply for relief although exclusion proceedings are not involved and the alien will never leave the United
States to apply for a visa and will never apply for admission. The
alien. 'need not even be eligible for preevanninatton (8 CFR. 945;
8 CFR 249.1, 24 F. R. 4906, June 17, 1959).
The Service action appears contrary to Matter of DeF , supra,
in another regard. Matter of DeF—, supra, states that it is the
intent of Congress that sections 5 and 7 were to be applied prospectively only, i.e., to situations which arise after September 11, 1957.
333
This is so because it was found that Congress contemplated the
making of an application for a visa and that the application was
to be made alter Ihe date of Public Law 61-010. The Service, however, by its regulations makes possible the grant of relief to an alien
in the United States who entered long before September 11, 1957,
and who may even have entered without a visa (Matte.e of M
A-10216535, Int. Dec. No. 990). If the Service is correct in its
actions, then Matter of Deg—, supra, unfairly prevents the same
relief being given to the instant aliens. If the Service is correct in
its actions, proceedings should be terminated in each of these cases,
for the sole barrier to the eligibility for relief in the instant cases is
holding in Matter of DeF—, supra, that the law contemplates the
making of an application for a visa titter September 11,1967 -. Were
it not for this interpretation, each of these aliens who already has
obtained a visa could be granted a waiver under section 5 or 7 and
admitted for permanent residence.
Our discussion of the collateral matter should not obscure the
fundamental issue. The Board acting in accordance with wellPstahlished precedents has exercised the Attorney General's power
in matters properly before it. The Service is without authority to
deprive the Board of this power either directly or indirectly.
Order: To accordance with provisions of 8 CFR 3.1(h) (1) (iii),
these cases are refrred to the Attorney General for review.
BEFORE THE ATTORNEY GENERAL
(December 13, 1959)
Order: The orders excluding the aliens in the above-described
cases are approved, but that portion in each of the Board's orders
which directs admission of the aliens pursuant to an exercise of the
discretion contained in sections 5 and 7 of the Act of September 11,
1957, is hereby disapproVed. Exclusion of the aliens is without
prejudice to a further application for an exercise of discretion, in
accordance with the terms of 8 CFR 212.7(a), provided an application for admission is made with a valid visa issued within 6 months
from the date of this order or the date of any extensions authorized
by the appropriate district director.
. The aliens in these cases have all obtained visas to enter the
United States, but charges subsequently developed have been sustained against them. As a result they are now subject to exclusion.
On the basis of the record presented, the Board has ordered the
aliens excluded but has considered the cases appropriate for an
advance waiver of the grounds of exclusion through an exercise of
the discretion authorized by sections 5 and 7 of the Act of Septem-
334
her 11, 1957 (Public Law 85-316) and has so ordered. I have concluded that the latter orders should be overruled.
The question presented by the cases involves the authority of the
Board to grant a waiver in light of the provisions of 8 Chili 212.7
(a), which requires that an application be made with the Service in
accordance with established procedures.
The Board's delegated authority, which is as broad as the Attorney General's in the areas which are under its jurisdiction, is at the
same time subject to specific limitations and falls short of the
authority it has attempted to exercise in these cases. The limits of
the Board's jurisdiction are described in 8 CFR . Decisions
involving an application for an exercise of the discretionary authority contained in sections 5 and 7 of the Act of September 11,
ore not among the desiqinns titers listed to which its appellate juris
diction extends. Accordingly, the jurisdiction of the Board is not
established, and it must therefore be said Pi - re:tide in the Commis-
"'Sioner of the Immigration and Naturalization Service pursuant to
the delegation made by 8 CFE 2.1. Disposition of the request for
a waiver in the instant cases must, therefore, proceed in accordance
with the provisions of S CPR 212.7(a).
It is true as urged that, the Board's powers embrace the exercise
of such discretion and authority as is appropriate and necessary for
the disposition of the case," but these too are subject to the limitations prescribed by the regulationo and tiro confined to the jurisdiction in which the Board is authorized to operate.
APPENDIX "A"
U.S. DEPARTMENT OF JUSTICE
BOARD Or IMMIGRATION APPEALS
Dec. 1-1955
File: A-1218988—E1 Paso
IN THE MATTER or N R
IN EXCLUSION PROCEEDINGS
EXCLUDABLE: Seetio6 212(a) (26(B)—No nonimmigrant visa or
border crossing card.
Section 212(a) (2) —Departed from the United States
to avoid military service.
The appellant is a 29-year-old married male, a native and citizen
of Mexico who applied for admission to the United States on June
2, 1955, as a visitor for the purpose of buying necessities for himself and his family. He was excluded on the ground that he was
335
without nonimmigrant documents and on the ground that he had
departed from the United States and remained outside the United
States to avoid training or service in the Armed Forces (section
212(a) (22) of the Immigration and Nationality Act),
We affirmed the excluding decision. However, we found that the
appellant's need to enter the United States was sufficient to require
the grant of relief to him. To meet these needs, admission for short
visits over a period of one year was authorized, if he were otherwise
admissible than as one who had dapart,1 from and remained outside
the jurisdiction of the United States to avoid military service. This
action was taken under the authority contained in section 212(d) (3)
of the Immigration and Nationality Act.
Motion is now made by the Service for a reconsideration of our
action. It is asked that we withdraw the relief granted and dismiss
the appellant's appeal. The motion states that it is improper to
grant the alien discretionary relief because he had not applied for
such relief; because he had not paid a $25 fee required of applicants
for such relief and because the facts do not justify the granting of
relief.
The alien could have properly applied, either orally or in writing,
for relief under section 212(d) (3) before the special inquiry officer
(5 crp. 912R9) TTe would have paid a $25.00 fee when he made
his application for relief and then if he were ordered excluded and
relief was denied, he could have filed an appeal which would have
brought before us, both the issue of his admissibility and the request
for discretionary relief.'
Because he did not apply for the relief and pay the fee of $21.00
for filing the application,' the Service desires that his case be returned to the field, with the bare notification to the alien that he was
excluded. Apparently, he will then learn in some manner that he
may make application for discretionary relief under section 212
(d) (3) of the act; he will be required to submit an application for
such relief and pay the $25 fee for filing it. The application will
then be acted upon by the district director having administrative
jurisdiction over the place where the examination is being conducted. If the district director denies the application, appeal may
then be taken to this Board, upon payment of an appeal fee of
$10.00. Such circuitous action is unnecessary and of beheld neither
to the Government nor the alien, and in the circumstances before
us, would be unworthy conduct.
1 The alien did pay a $25 fee for Oling his appeal from the excluding
decision.
:There is no showing that he has ever been asked to pay this fee or advised at the hearing of his right to ask for relief.
336
The action in remanding this case to the field to apply formally
for relief is unnecessary because we have the power to grant all
relief that is necessary to make disposition of this case (8 CFR 6.1
(d) see Matto. of S—A7 6 I. S..- N. Dec. 73).
Furthermore, under the circumstances of this case, to make the
alien renew his efforts to enter the United States after having
waited so long for a determination would not befit the government.
An analysis of the facts before us reveals that when the alien applied for admission, he was interested not in gaining immediate
entry, but in determining how he could enter the United States
when the time came. The alien, who is a native and citizen of
Mexico, would be admissible to the United States as a temporary
visitor only if he were in possession of United States documents
entitling him to enter as a visitor. Ha has sea meals doonanznta and
makes ass claim to having such documents. He does not claim that
lee is not required to be in possession of documents. It is inconceivable that with the education possessed by the alien and the fact
that he is a resident of a border town adjoining a port of entry, he
would have made application for permission to enter the United
States without being in possession of documents, unless he had some
motive other than in seeking immediate admission. The fact that
wider these circumstances the appellant submitted his case to a
special inquiry officer reveals that he did not have the intention of
attempting to enter the United States at the moment. Fiis intention
could have been only to determine what status he would have if he
applied for admission in poSsession of appropriate documents. The
appellant's need to enter the United States to purchase necessities
reveals that his desire to know his status was not the result of a
thirst for theoretical information by one who did not intend to
enter the T_Inited States. His submission to the immigration authorities was a practical way (apparently often suggested by Service
personnel) for determining his status as one who desired to enter
the United States. Since it is obvious that the alien was primarily
interested in determining how he could enter the United States to
take care of the needs of his family, we believe it would have been
most appropriate to inform this alien at his hearing of his right to
apply for discretionary relief to waive the ground of inadmissibility
which had been found to exist (8 CFR 212.82). In the absence of
such advice to the alien, under the circumstances existing here, we
do not believe that either he or the Government should be compelled
to go through the formalities the Service requires to bring this
matter to the attention of the Board. We rule, therefore, that the
alien's action in submitting himself to the authorities for a determination of his immigration status, under the circumstances here
found, carried with it a request for such relief as might be neces-
337
sary to make his admission possible. The failure of the Government
to inform him that an express application was required and that a
special fee had to he petit will not deprive him of his right to have
a ruling upon his application which was submitted so many months
ago.
As to the failure to pay the $25 fee for filing an application for
discretionary relief, this is a matter for the Service to take up with
the alien. We do not act as a collection agent for the Service in
these matters.
The Service contends that the reason for the alien desiring to
enter the United States—to buy necessities for himself and his family—is not urgent or compelling. The Service and this Board have
both, in the pant, taken administrative notice that it would nosh, an
undue hardship upon the aliens residing in Mexico near the border
if they were not permitted to enter the United States to obtain ordinary necessities. In answer to the Service motion, the alien has
supplied the additional information that he will accompany his wife
to a doctor in the United States as she cannot speak English well.
Order: It is ordered that the motion be and the same is hereby
denied.
APPENDIX "B"
DEPARTMENT OF STATE.
TV (mh.ingtoh,, July 17, 1959.
In reply refer to TO 150.1/6-2659
DEAR Mu. FINUCANE
In response to your letter of June 26, 1959 In re Defh----, File No.
A-10644351, I am glad to provide you the following information:
I. In an ordinary case of an alien abroad who has been refused a
visa by a consular officer and claims eligibility to a waiver, the consular officer provides the alien with a Form 1-601 inserting in it the
technical information regarding the visa refusal. The alien then
completes the form and returns it to the consular officer who forwards it to the appropriate office of the Immigration and Naturalization Service without attachments or recommendation. The INS
thereafter - makes suitable arrangements Cl.111,j/1,4111 with the circum
stances of the case to interview the alien and to consult such files
concerning the alien as may be in the consular office.
2. In the case of an alien in the United States who has been admitted to the preexamination privilege, the consular officer on being
notified by the INS or on ascertaining from some other source that
the alien would be ineligible- to receive a visa on grounds that could
338
be overcome by a waiver under section 5 or I makes an appointment
for formal application by the alien subject to the extension of a
waiver by the INS. Where the consular officer has the information,
he rues provide the rdion with a Form T-501 in which the technical
data are filled out. Such form is then completed by the alien and
submitted direct to the INS. In other cases, the alien obtains :a
Form 1-601 from the INS and submits it direct to the INS. The
consular officer learns that a waiver has been granted the alien
when he receives a copy of the order embodying the waiver. Such
orders are sometimes mailed to the consular officer and sometimes
are brought by the alien along with his other documents when he
comes abroad to the consular office. When there is a refusal of the
waiver by the INS, the consular officer learns of that refusal sometimes by written communication from the INS end oomatimes merely
because the alien fails to appear for his appointment.
It is hoped that the foregoing information is satisfactory for your
needs.
Sincerely yours,
/s/ Robert J. Cavanaugh,
ROBERT J. CAVANAUGH,
Acting Director, Visa Office.
Mr. THOMAS G. FE■TITCANE,
Chairman, Board of Immigration Appeals,
Department of Justice.
339
