S

                                   MATTER OF S—

                    In DEPORTATION Proceedings
                                    A-12662238
                     Decided by Board March 27, 1962
Adjustment of status—Section 245, as amended—Eligibility—Admission gained
  by false claim to citizenship.
An alien who gained admission_to the United States by a knowing false claim
 to United States citizenship has not been inspected as an alien. Therefore,
  he    uul eligible fur adjustment of status under section 245 of the Act, as
  amended, since he has not been "inspected and admitted" as required by
  that section. (Overrules Mailer of T , 9-478.)
                                        —



CHABGE :
  Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)3—Entered
           without inspection.

                            BEFORE THE BOARD

   DISCUSSION: The special inquiry officer ordered respondent deported on the ground stated above and certified the case for final
decision.
   Respondent, a 28-year-old divorced male, a native and citizen of
Germany, first entered the United States (October 1954), and on
several occasions thereafter, by willfully and falsely claiming that
he was a citizen of the United States. He last entered the United
States in January 1960 claiming to have been born in the United
States.
   After evidence had been presented at the deportation hearing to
establish that the respondent last entered by willfully and falsely
claiming birth in the United States, counsel moved for postponement
of proceedings so that he could file an application under section 245
of the Act (8 U.S.C. 1255) which provides for the adjustment of the
status of an alien "who was inspected and admitted or paroled into
the United States …." (Emphasis added.) The special inquiry
officer denied the request on the ground that the respondent was
ineligible for the relief because one who entered on a willful false
claim to birth in the United States avoided the inspection required
by the immigration laws and was, therefore, cleportaNe as an alien
who entered without inspection (Matter of E—, 6-275) . The special
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 inquiry officer considered two cases decided by the Service which dealt
 with the eligibility for adjustment of status of one deportable as having entered without inspection because the entry had been made upon
 a false claim to United States citizenship Matter of K—B—N--,
 9-50 (Oct. 3, 1960), held that an alien who obtained entry by falsely
 claiming United States citizenship had entered without inspection
 and, therefore, was not eligible under section 245 of the Act which
related only to aliens who had been "inspected" and admitted. Matter
 of T—, 9-478 (Sept. 8, 1961, Commissioner), overruled Matter of
  r —N , sup-a, insofar as it held that one who had gained admission by falsely stating to an immigration officer that he was a citizen of the United States had not been inspected within the meaning
of section 245 of the Act. However, the special inquiry officer ruled
CIA Matter of K—B—N—, supra, correctly interpreted the law and
refused to follow Matter of T—, supra.
   Counsel contends that Matter of T—, supra, correctly sets forth
the present views and should be accepted by the special inquiry officer. He further contends that since the respondent was questioned
and examined, he was inspected at the time of his last admission and
is, therefore, eligible for relief under section 245 of the Act.
   The special inquiry officer is bcand only by precedent decisions of
this Board (8 CFR 3.1 (g)). Normally, published decisions of the
Commissioner will be accepted initially concerning issues over which
the Commissioner formerly exercised final appellate jurisdiction ; but
ultimately, the weight a special inquiry officer should accord to published decisions of the Commissioner in an area in which the Commissioner does not make the final decision for the Attorney General,
depends upon the persuasive value of the reasoning therein. Hence,
we see no error in the action of the special inquiry officer.
   The immigration laws contemplate that an alien seeking admission
to the United States be inspected for the purpose of determining his
admissibility. The term "inspection" has been judicially defined as
it relates to one who entered upon a false claim to United States
citizenship. Concerning such an individual the court said:
  . .. The fact that the alien made himself visible to an officer of the immigration service at the time he crossed the line, and that he crossed with other
persons then entering the United States, is the basis for the claim that the
requirement as to inspection was satisfied. "Inspection," to my mind, as used
in the Immigration Act, means that the immigration officers are given the
opportunity to check the right of the alien to cuter the United States when
he presents himself as an alien.
  In the petitioner's case, he, with a pending examination before him, evaded
such examination, and by subterfuge and misrepresentation succeeded in passing into the United States. He did not, at the point of his entry, present
himself as an alien ready to submit proofs of his right to enter. By his misrepresentation alone he avoided the "inspection" which the act contemplates
every alien snail be subjecieu Le. .    (Ex. pal tc Caadi, 25 17 .2d 334, 330, Ord

, cert. den. 

)
   We have followed this rule consistently for a long period (Matter
cf            1-385 (1943) ). We are bound to follow this rule in the
 absence of a clear directive from Congress to the contrary. Section
241(a) (2) of the 1952 Act provides for the deportation of an alien
who "entered the United States without inspection or at any time or
place other than as designated …." This is a paraphrase of the
law as it existed prior to the Act of 1952 (Act of February 5, 1917,
section 19(a) (39 Stitt. 874) ). It is quite evident, therefore, that
Congress intended the term "inspection" to have the same meaning as
it had in previous laws. Since the term "inspected" in section 245 of
the Act can have ve no other meaning than that an alien presented himself before a proper official of the Immigration Service for inspection
as an alien and since the respondent did not do this, he is not eligible
for relief under section 245 of the Act.
   To the extent that Matter o f T—, 9-178, holds that admission of
an alien as a United States citizen upon a willful false claim to United
States citizenship constitutes an inspection, it is overruled.
   ORDER: It is ordered that no change be made in the order of the
special inquiry officer.




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