Matter of Anabo
| Citation | 18 I&N Dec. 87 |
| Decision Date | 10 July 1981 |
| Docket Number | A-34164113,Interim Decision Number 2874 |
| Parties | MATTER OF ANABO In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent appeals from the August 14, 1979, decision of the immigration judge denying his application for termination of the proceedings pursuant to section 241(f) of the Immigration and Nationality Act, 8 U.S.C. 1251(f). The appeal will be sustained and the proceedings terminated.
The respondent is a native and citizen of the Philippines who was admitted into the United States as a lawful permanent resident on January 26, 1973, in possession of a first-preference immigrant visa as the unmarried son of a United States citizen. See section 203(a)(1) of the Act, 8 U.S.C. 1153(a)(1). On August 14, 1979, the immigration judge concluded that the respondent was deportable by virtue of being excludable at entry under sections 212(a)(19) and (20) of the Act, 8 U.S.C. 1182(a)(19) and (20). The basis for excludability was the fact that he had entered into a marriage ceremony prior to entering the United States as the unmarried son of a United States citizen.
On December 27, 1969, the respondent had married a Filipino woman at Tanag, Rezal, the Philippines, and had not terminated that marriage prior to immigrating into the United States as the first-preference unmarried son of a United States citizen instead of as a married son, entitled only to a fourth-preference immigrant visa pursuant to section 203(a)(4) of the Act, 8 U.S.C. 1153(a)(4) (Tr. pp. 1-3) (Ex. 1, 3, 4, 5). Deportability was clearly established that the respondent was excludable at entry under sections 212(a)(19) and 212(a)(20) since he immigrated with an invalid first-preference visa he obtained by concealing his marriage. This constitutes clear, convincing, and unequivocal evidence of deportability as required by Woodby v. INS, 385 U.S. 276 (1966) and 8 C.F.R. 242.14(a).
The respondent then claimed that he was entitled to a waiver of the charges of deportability pursuant to section 241(f) of the Act, 8 U.S.C. 1251(f). The Service responded by contending that the respondent was ineligible for section 241(f) relief because he was also excludable at entry under section 212(a)(14) of the Act, and lodged a charge under that section at the deportation hearing.
The respondent is listed as the father of a United States citizen in a Certificate of Live Birth issued by the State of California (Ex. 2). It states that on August 2, 1977, a female child was born to the respondent and a woman named Judy Jackson in Oakland, California. Such acknowledgement renders the respondent's daughter his child for immigration purposes. See Kaliski v. District Director, 620 F.2d 214 (9 Cir. 1980); Matter of Fulgencio, 17 I&N Dec. 471 (BIA 1980); 1976 Uniform Parentage Act, California Civil Code Sections 7000-7018. Consequently, the respondent sought a waiver of deportability pursuant to section 241(f) which reads as follows:
(f) The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence. (Emphasis supplied.)
The language of the section expressly covers the language of section 212(a)(19) of the Act, mandating a waiver of deportability for being excludable at entry for qualifying respondents. In addition, the waiver provision has been read liberally to reach evasion of quota restrictions in INS v. Errico, 385 U.S. 214 (1966), and excludability under 212(a)(20) for the entry with the invalid visa which results from the fraud. Matter of Da Lomba, 16 I&N Dec. 616 (BIA 1978); Matter of Agustin, 17 I&N Dec. 14 (BIA 1979).
However, when the respondent is also excludable under section 212(a)(14) of the Act, section 241(f) is ineffective to remove deportability because such a respondent does not meet the statutory requirement that he be "otherwise admissible at the time of entry for 241(f) relief." Reid v. INS, 420 U.S. 619 (1975); Chow v. INS, 641 F.2d 1384 (9 Cir. 1981); Matter of Gonzalez, 16 I&N Dec. 564 (BIA 1978). The respondent's position is that he was "otherwise admissible" because he was not excludable at entry under section 212(a)(14). He contends that he was exempt from the requirements of section 212(a)(14) because he was the son of a United States citizen and thus entitled to preference status under section 203(a)(4) of the Act. The immigration judge disagreed, concluding that the respondent was not entitled to be considered a fourth-preference immigrant for 212(a)(14) excludability purposes because such a preference had not been accorded him in a visa petition approved by the Attorney General pursuant to section 203 of the Act (i.j. dec. pp. 3-4). The respondent appealed to this Board.
Neither this Board nor the courts have previously addressed the question of whether an alien who would have been exempt from the labor certification requirement under another preference classification than the one improperly received, would be eligible for section 241(f) relief as being "otherwise admissible" at the time of entry into the United States. The great majority of cases involving a section 212(a)(14) charge as a result of material misrepresentation of marital status involve married sons or daughters of lawful permanent residents and sham marriages. Section 212(a)(14) operates as an alternative ground of inadmissibility for aliens concealing a marriage that precedes admission into the United States as the second-preference son or daughter of a lawful permanent resident pursuant to section 203(a)(2). Matter of Wong, 16 I&N Dec. 87 (BIA 1977); Matter of Agustin, supra. This results from the fact that there is no preference classification under the Act for the married sons and daughters of lawful permanent residents, therefore, upon marriage, such an alien becomes a nonpreference immigrant.
A similar outcome occurs when the alien sought entry as a spouse pursuant to a sham or invalid marriage. See Cacho v. INS, 547 F.2d 1057 (9 Cir. 1976); Matter of Montemayor, 15 I&N Dec. 353 (BIA 1975). That outcome, however, is not necessarily applicable when the respondent sought entry as a first-preference unmarried son of a United States citizen, despite having married. The language of section 212(a)(14) specifically limits its application to "preference immigrant aliens described under 203(a)(3) and (6) and to nonpreference immigrant aliens described in section 203(a)(8...
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