MATrER OF F—
In SECTION 245 Proceedings
A-10490404
Decided by Regional Commissioner September 16, 1960
Approved by Assistant Commissioner October 7, 1960
Adjustment of status Section 245, as amended—Alien erroneously admitted
as United States citizen without false claim held eligible.
An alien who was erroneously admitted as a United States citizen but who
did not willfully make a false claim to citizenship meets the "inspected and
admitted" requirement for eligibility under amended section 245 of the Immigration and Nationality Act, The contrary rule obtains when the claim to
citizenship was made willfully and fraudulently.
BEFORE THE REGIONAL COMMISSIONER
(September 16, 1960)
DISCUSSION: This case comes forward on appeal from the order
of the district director denying the application on the ground that
the alien was not admitted as a bona fide nonimmigrant.
Applicant is a 37-year-old married female, a native and citizen
of the Philippine Islands. She was married to a native-born citizen
of the United States in Carson City, Nevada, on June 6, 1950. This
is applicant's first marriage and of this union two children were
born in the United States. Her spouse's two previous marriages
were terminated by divorce. All of applicant's immediate family
reside in the United States. Her father, formerly a citizen of Germany, and mother, formerly a citizen of the Philippine Islands,
were naturalized in San Francisco on May 25, 1934, and August 16,
1960, respectively. She has one sister who is a native - born United
States citizen. Her two brothers and other three sisters, all natives
and citizens of the Philippine Islands, are lawful resident aliens
whose status in the United States was adjusted through pre,examination proceedings
Applicant first entered the United States at San Francisco on
February 9, 1932, with other members of her family as nationals of
the United States. It was during this period of residence in the
United States that her father was naturalized on May 25, 1934. On
June 26, 1936, along with other members of her family, applicant
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returned to the Philippine Islands. On August 3, 1939, applicant
next applied for admission with her family at San Francisco as a
citizen of the United States. The Board of Immigration Appeals
ordered her excluded holding that she failed by one day to gain
United States citizenship wider section 2172 of the Revised Statutes
through her father's naturalization on May 25, 1934, and that she
lacked by about eight months completing the required five years
residence in the United States pursuant to a lawful admission to
gain citizenship through her naturalized father under the Act of
May 24, 1934. On March 24, 1940, applicant returned to the Philippine Islands under the exclusion order of the Board of Immigration
Appeals. Applicant last arrived in the United States on May 2,
1945, at San Pedro, California, with other members of her family
on board the United States Naval Transport Admiral F. herle, as a
wartime evacuee from the Philippine Islands. Upon this arrival,
applicant was inspected and erroneously admitted as a United States
citizen and has since resided continuously in the United States.
On April 18, 1956, applicant sought adjustment of her immigration status through preexamination, and although her application
was approved by the Service she was unable to proceed to Canada
and obtain her immigrant visa due to financial difficulties. Applicant subsequently applied under section 245 of the Immigration and
Nationality Act for status as a permanent resident. This application was submitted about September 8, 1959, and was denied on the
ground that she was not admitted as a bona fide nonimmigrant when
she last entered the United States on May 2, 1945. The denial was
timely appealed. Although the application in this case was filed,
considered, denied, and appealed under section 245 as that section
existed prior to July 14, 1960, the appeal will be considered under
present section 245.
In its present form, the Rtrd t 1- a ronfers discretionary authority
upon the Attorney General to adjust the status of an alien, other
than an alien crewman, to that of a permanent resident if such alien:
1. Was inspected and admitted or paroled into the United States;
2. Makes an application for adjustment;
3. Is eligible to receive an immigrant visa;
4. Is admissible to the United States for permanent residence; and
5. An immigrant visa is immediately available to him at the tune
his application is approved.
The requirement that an alien must have been admitted to the
United States as a 11 C17 14.4 fde nuninuuipaut Lu qualify fur adjustment no longer appears in the current statute. Therefore, if the
applicant meets the above-enumerated requirements, her application
may be granted.
A proper application has been Sled and the applicant has been
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found to be eligible to receive an immigrant visa and admissible to
the United States for permanent residence. A petition to accord
her nonquota status has been approved so an immigrant visa is immediately available to her. The only issue to be resolved is whether
she was inspected and admitted into the United States.
It is well established that aliens who knowingly Made a false
claim to United States citizenship for the purpose of evading inspection under the immigration laws gained entry without inspection
(Matter of C 17 , 1 385; Matter of
- — - 5-220 ; Matter of E—,
6 275). The courts also have so held. In the case of United States
ex rel. Volpe v. Smith., 62 F.2d 808, Judge Evans, in writing the
majority opinion, stated :
No other false or fraudulent representatlou could have accomplished Its uulawful purpose [entry] so effectively as the one appellant adopted. To assert
that he was a citizen of the United States and that his naturalization pLpers
were In Chicago wholly disarmed the inspector and terminated the inspection.
. . . In legal effect, there was no inspection. (Matter in brackets added.)
However, it has been held that where a, person presented himself
to an immigrant inspector and stated that he was a citizen of the
United States, honestly believing this to be the truth, that person
did not enter without inspection (Matter of S—, unreported, A-
5984855, B.I.A., Dec. 31, 1946; Matter of D—, unreported, A-
6768542, B.I.A., Oct. 19, 1949). With reference to the applicant's
erroneous admission as a United States citizen, the records disclose
that upon arrival she presented herself for inspection and did not
willfully make a false claim to such citizenship. Accordingly, the
applicant is considered to have been inspected and admitted. (See
Matter of K—B—N—, A-10825969, 9-50, Sept. 14, 1960.)
The applicant has resided in the United States for more than 20
years. She is married to a United States citizen and has two minor
United States citizen children. Evidence of her good moral character has been submitted. Therefore, it is concluded that the facts and
circumstances in this case merit favorable exercise of the Attorney
General's discretionary authority. The appeal will be sustained and
the application will be granted.
ORDER: It is ordered that the application be granted.
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