MATTER OF DJ' ----
In DEPORTATION Proceedings
749.8
A-16547428
Decided by Board July 7, 1958 and March 10, 1959
Decided by Attorney General February 26, 1959
Act of September 11, 1957—Availability of waivers under section 5 and second
part of section 7 to aliens ineligible for preexamination.
(1) Aliens within the United States who are ineligible for preexamination
cannot be granted advance waivers of inadmissibility under section 5 and
the second part of section 7 of the Act of September 11, 1957 while they
remain in the United States.
(2) Native and citizen of contiguous territory, to whom preexamination procedures are inapplicable, must depart and apply for waivers at the time she
makes application to enter the United States from her home country.
CHARGES :
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Has engaged In prostitution.
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1) I—Not in possession of valid visa.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)7—Excluded
and deported; no permission to reapply.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Procured
visa by willfully mistevruseaLlug material racts.
BEFORE THE BOARD
(July 7, 1958)
Discussion: The Commissioner of Immigration and Naturalization asks that the Board certify its decision in this case to the
Attorney General for review.
The respondent, a 25-year-old married female, a native and citizen of Mexico, was admitted to the United States in February
1956. She is married to a United States citizen. She is deportable
on the grounds shown above. She is not eligible for suspension of
deportation because she lacks the required residence; respondent
must leave the United States. She will be barred from returning by
the provisions of the Immigration and Nationality Act applying to
those who were prostitutes and to those who have secured visas by
fraud. However, sections 5 and 7 of Public Law 85 -316 approved
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September 11, 1957 permit the Attorney General to waive the
grounds of inadmissibility. The question is whether the respondent
may make the application in the United States and remain here
until the application is decided, or whether she must go to Mexico
to make it and remain those until it is granted. We has, ruled
that the respondent may apply while in the United States. The
Service would require her to depart from the United States to apply
for the waiver. Then she would be required to submit the application for the waiver to the consul abroad and he would forward it
to the Service for action (8 CFR 7.1).
Under our ruling, the respondent may make the application for a
waiver while she remains in the United States and she need not
leave until the application is acted upon. If it is disapproved, she
must depart. If it is approved, she will go to Mexico to apply for
her visa. It is evident that if the respondent is permitted to remain
in the United States while her application is processed there will
be the minimum possible dislocation of family life and adjustment
of status will be accomplished at the minimum expense. Also, there
will be the best opportunity for correcting whatever deficiencies
may appear in the application.
The Service doss not desire to make all aliens leave the United
States to apply for the waiver. It would permit applications for
the waiver to be made in the United States by aliens who qualify
for preexamination—that is, applications could be made by all but
citizens of Canada, Mexico, or islands adjacent to the United States
(8 CFR 235a.1). This distinction between aliens eligible for preexamination and aliens ineligible is made by the Service on the
theory that the request for the waiver under Public Law 85-316
must be made in the court of an application for admission to the
United States; preexamination is considered an application for admission; there ie no other administrative device avellehla to slims
in the United States to make an application for admission. We do
not believe the Service position is correct. We see no connection
between the waiver and preexamination, and we find no requirement
that the request for the waiver must be made during an application
for admission to the United States.
The request for the waiver is not an application for admission.
It is a request that certain barriers which stand in the way of the
issuance of a visa and admissibility to the United Staes be waived.
Application for admission will be made only if the waiver Is granted
and only after the visa is issued. For many years, both under the
7th proviso to section 3 of the Immigration Act of February 5, 1917
(
39 Stat. 875) and under section 212(c) of the present act (8 U.S.C.
1182(c)), a similar relief was granted to aliens in deportation proceedings and to aliens in the United States who intended to depart
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for visits abroad and then return to the United States. (See Matter
of S—, 6 I. & N. Dec. 392.) A careful examination of the law
and of congressional and administrative history revealed no reason
for requiring natives of Canada, Mexico, or adjacent islands to leave
their families to make an application for the waiver while natives
of all other lands may apply while they are in the United States.
On the contrary, we found that congressional desire to prevent needless
family separation and administrative practice involving the grant of
similar relief required that all eligible aliens be permitted to apply for
the relief while they are in the United States.
The Service emphasis upon preexamination requires examination
of that procedure. Preexamination is an administrative device to
permit aliens who are distant from their homelands to enter a convenient contiguous foreign territory to apply for a visa. It was
created to prevent the hardships arising out of extended family
separation and to minimize the financial burden which would arise
if an alien had to return to his distant homeland to apply for a
visa. Preexamination merely puts an alien from distant lands in the
same position in regard to obtaining a visa as the alien from contiguous territory. A grant of preexamination does not remove the
necessity of applying for a waiver if one is needed. Preexamination
is available to aliens who are legally or illegally in the United States.
It is applied fur and passed upon while the. alien romaine in the
United States. Eligibility for preexamination is fixed not by law
but by the Attorney General who can and has varied the classes from
time to time. For administrative efficiency, and to make use of provisions of law relating to medical examinations, preexamination is
regarded as part of the admission procedure. This is a fiction.
Indulgence in the fiction is not called for by the nature of the application for a waiver under
Public Law 85-316. However, if it is
necessary to consider an application for a waiver under
Public Law
85-316 as part of the admission process, it would be no more and
no less difficult a task than to so consider an application for preexamination.
The Service motion states that the limitation it seeks to impose
in waiver cases is no more illogical than the limitation which now
denies citizens of Canada, Mexico and adjacent islands the right
to preexamination. An examination of the assertion requires that
it he rejected. Preexamination gives an alien the privilege of making application for a visa in Canada. There is no hardship in
denying this right to one who can at will readily enter Canada
(or a nearby foreign country) and apply for his visa. However,
there is a lack of logic in denying Canadians, Mexicans and natives
of adjacent islands the privilege of applying in the United States
for a waiver under
Public Law 85-316, because in their cases it will
impose a hardship. It will result in their being subjected to ex-
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tended family separations and being saddled with the expense of
maintaining separate establishments while these hardships will not
be incurred by natives of the other countries.
The fact that this respondent can freely enter a foreign contiguous territory to apply for a visa dues not justify saddling; her with
the expense of a foreign stay of uncertain duration and the heartache
of family separation when these evils can be avoided so easily.
Order: It is ordered that pursuant to the authority contained
in 8 CFR 6.1(h) (1) (iii) and at the request of the Commissioner of
Immigration and Naturalization, the decision of the Board in this
easy he certified to the Attorney General for review.
BEFORE THE ATTORNEY GENERAL
(February 26, 1959)
Order: The decision of April 14, 1998, by the Board of immigration Appeals remanding this case to the special inquiry officer
for investigation and decision concerning the alien's eligibility for
relief is reversed and the Board is directed to proceed to its decision
in the case.
This ease is before me grenrchrnext with the provisions of
CFR 3.1(h) (1) (iii) for review of the Board's decision.
Charges requiring deportation of the alien, a native of Mexico,
have been sustained but an unresolved issue concerns her eligibility
for relief under the provisions of sections 5 and 7 of Public Law
85-316, 85th Congress. In this connection, a decision rendered on
June 18, 1958, by the United States District Court for the Eastern
District of Michigan is dispositive. That Court held that the provisions of the law in question are available to aliens making application for admission to the United States, and as to aliens physically
with... the United Staten this means aliens eligible for pre...mination aminarata v. Sahli,
163 F. Supp. 125). See, to the same effect,
Chabolla-Delgado v. Hoy, D.C. Calif. S.D., Cent. Div., Civ. No.
361-58—BH, decided June 20, 1958; Puig p Garcia v. Murff, D.C.
N.Y. S.D., Civ. 131-393, decided Dec. 23, 195S.
The subject alien being a native of Mexico, a contiguous country
to which preexamination procedures are not applicable under the
regulations, is precluded from preexamination while she remains in
the United States. Accordingly, she is ineligible for the relief in
question except as she applies for it in connection with an application to enter the United States from Mexico.
BEFORE THE BOARD
(March 10, 1959)
Discussion: The facts have been fully stated in previous orders.
By order dated April 14, 1958, we found the respondent deportable
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upon the grounds stated above. We held that respondent must
depart from the United States since there is no administrative power
to adjust her status while she remained in the United States.
Iteepontient desires to return Le the United Stairs to make her home
here with her United States citizen husband. She is inadmissible
to the United States because she obtained a visa by fraud and
because she engaged in prostitution at one time. These grounds of
inadmissibility may be waived under sections 5 and 7 of Public
Law 85-316. We ordered reopening of proceedings to determine
whether respondent was eligible for relief under
Public Law 85-316.
This we did in the belief that an alien in the United States could
be given a waiver of the grounds of inadmissibility in deportation
proceedings so that the alien could depart and readily apply for a
visa. The Commissioner took issue with this ruling. ills position
is that the relief may be granted in advance in the United States
but only to an alien who is eligible for preexamination, and that
since respondent, a native of Mexico, a contiguous country, is not
eligible for preexamination, she cannot be given relief while she is
in the United States but must depart and apply for it outside the
United States.
At the Commissioner's request the issue was referred to the Attorney General for review. The Attorney General now has ruled
that respondent, a person precluded from preexamination, is ineligible for relief "except as she applies for it in connection with an
application to enter the, United States from Mexico." Our order
of April 14, 1958, remanding the case to the special inquiry officer
was reversed and we were directed to proceed to a decision in the
case. Respondent's deportability is established. She is ineligible
for administrative relief. Her appeal must be dismissed.
Order! It is ordered that the appeal of the respondent be and
the same is hereby dismissed.
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