Matter of Connelly
| Citation | 19 I&N Dec. 156 |
| Decision Date | 08 August 1984 |
| Docket Number | Interim Decision Number 2976,A-23078346. |
| Parties | MATTER OF CONNELLY. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated January 21, 1983, an immigration judge found the respondent deportable as charged, denied an application from the respondent for relief from deportation under section 241(f) of the Immigration and Nationality Act, 8 U.S.C. § 1251(f) (1982), and ordered that he be deported to the Republic of Ireland. The respondent has appealed. The appeal will be dismissed.
The respondent is a native of England and a citizen of the United Kingdom. On July 21, 1978, he was admitted to the United States as a nonimmigrant visitor with authorization to remain until January 21, 1979. A month before the expiration of that period, he married a citizen of the United States. On the basis of that marriage, his status was adjusted to that of a lawful permanent resident on April 12, 1979, under section 245 of the Act, 8 U.S.C. § 1255 (1976). That marriage was subsequently annulled by his spouse on February 11, 1982, on the ground that it was bigamous. Apparently, the respondent is the one who had two marriages.
On September 21, 1982, an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) was issued which alleges, inter alia, that the respondent was convicted on September 17, 1982, in the United States District Court for the Northern District of California for violating section 266(c) of the Act, 8 U.S.C. § 1306(c) (1982),1 by making false statements on an application for alien registration, and, therefore, that he is deportable under section 241(a)(5) of the Act. The file contains a copy of the conviction record which indicates that the basis for the conviction was the fact that the respondent had omitted to state that he had been arrested, convicted, and confined in the United Kingdom.2 As a result of the conviction for violating section 266(c), he was sentenced to imprisonment for a period of 6 months. The sentence, however, was suspended except for a 15-day period, and he was given credit in that regard for a 15-day period of imprisonment prior to the disposition of his case.
At a deportation hearing before the immigration judge on September 28, 1982, the respondent admitted the allegations in the Order to Show Cause with the assistance of counsel, and then he applied for relief from deportation under section 241(f) of the Act. We are satisfied that the respondent's deportability has been established with evidence that is clear, unequivocal, and convincing.
The pertinent part of section 241(f)(1) states as follows:
(A) 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, whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in subsection (a)(19) of this section) who—
(i) is the spouse, parent, or child of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and
(ii) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such entry except for those grounds of inadmissibility specified under paragraphs (14), (20), and (21) of section 212(a) of this title which were a direct result of that fraud or misrepresentation.
(B) A waiver of deportation for fraud or misrepresentation granted under subparagraph (A) shall also operate to waive deportation based on the grounds of inadmissibility at entry described under subparagraph (A)(ii) directly resulting from such fraud or misrepresentation. (Emphasis added.)
The respondent argued that the deportability charge was based upon a conviction for committing a fraud during the adjustment of status process; that this fraud could also have been a ground for exclusion under section 212(a)(19) of the Act, 8 U.S.C. § 1182(a)(19) (1982);3 and, therefore, that he could be saved from deportation on the basis of the fraud by section 241(f). To satisfy the family relationship requirement, he testified that he was the father of a United States citizen child. The child is a product of the marriage which was annulled.
The immigration judge denied the respondent's application on the ground that he was not making an "entry" when he adjusted his status under section 245 of the Act and, therefore, that the provisions of section 241(f) would not apply to any frauds that were committed during that process. The immigration judge also held that section 241(f) would not save the respondent from deportation in any event, as that section does not apply to deportability based upon section 241(a)(5).
On appeal, the respondent contends that, in light of the strong humanitarian purpose of section 241(f) to provide relief from deportation in order to maintain the unity of families composed in part of a United States citizen, a distinction between an entry and an adjustment of status should not be dispositive. Rather than interpreting the provisions of section 241(f) literally, as the immigration judge did, the provisions of that section should be interpreted in a way that will effectuate its purpose. With this in mind, he notes that an alien who applies for adjustment of status is assimilated to the position of an alien seeking to enter the United States and such relief will be denied if he is excludable under any of the provisions of section 212(a) of the Act. He concludes that, therefore, adjustment of status is the equivalent of an entry...
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