Matter of Loza-Bedoya

• Decision Date: 19 November 1964
• Docket Number: A-7985292,Interim Decision Number 1412
• Citation: 10 I&N Dec. 778
• Parties: MATTER OF LOZA-BEDOYA In DEPORTATION Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

10 I&N Dec. 778

MATTER OF LOZA-BEDOYA

In DEPORTATION Proceedings

Interim Decision Number 1412

A-7985292

Board of Immigration Appeals

Decided by Board November 19, 1964

(1) Respondent, who did not have pending on the effective date of the Immigration and Nationality Act an application for seventh proviso relief, is now ineligible for a nunc pro tunc waiver of such relief since the seventh proviso to section 3 of the Immigration Act of February 5, 1917, as amended, neither conferred status nor conveyed rights and, therefore, did not come within the savings clause (section 405(a)) of the 1932 Act.

(2) Respondent, who, following deportation in 1962, was absent from the United States for two weeks during the statutory period of required continuous physical presence, broke the continuity of such physical presence and, therefore, is ineligible for suspension of deportation under section 244(a)(1) of the 1952 Act, as amended.

CHARGE:

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

This is an appeal from the order of the special inquiry officer finding respondent deportable on the ground stated above and denying his applications for relief except the one for voluntary departure. The appeal will be dismissed.

Respondent, a 35-year-old married male, a native and citizen of Mexico, believes he is eligible for the legalization of his entry because of his long residence in the United States. His residence, started by illegal entry in 1944, was interrupted by his deportation in July 1953; it was resumed by his illegal return about August 1953, and except for a short visit to Mexico in 1955 and in 1957 was maintained until he was deported on March 8, 1962. About two weeks later he again entered illegally. His wife, a United States citizen residing in the United States whom he married in 1961, sought her Congressman's help in obtaining legal residence for the respondent. In August 1962, the Congressman advised her by telegram to have respondent proceed immediately to the American Consulate in Mexico. Respondent apparently followed the advice and for about the next eight months stayed in Mexico apparently in the hope of obtaining a visa. The American Consul ultimately denied respondent's application for a visa, apparently finding that his conviction in 1951 for assisting the unlawful entry of Mexican nationals brought him within section 212(a)(31) of the Act which makes ineligible for the issuance of a visa, an alien who for gain encouraged another alien to come to the United States illegally; the respondent returned illegally on May 3, 1963 to join his family. On November 19, 1963 he was convicted for having entered the United States without permission after having been deported. In the present deportation proceedings, respondent is charged with being deportable as one who had entered the United States without inspection on May 3, 1963.

Respondent admitting that he is deportable as charged, but pointing to his domicile in the United States since 1944, to the extreme hardship deportation would bring to him, his wife and his children who are all dependent upon him, and pointing to the fact that he is a responsible self-employed member of the community, urges that his stay be legalized. He believes several laws exist under which this legalization can be accomplished.

We do not believe the respondent is eligible for relief under any of the laws relied upon. The first contention couples section 212(c) of the Act and its predecessor, the 7th proviso to section 3 of the Act of February 5, 1917. Section 212(c) of the Act authorizes the admission of an inadmissible alien returning to a lawful residence; the 7th proviso authorized the same relief (except as to documentary grounds) to an alien with seven years' residence whether the residence was lawful or not. Counsel contends that respondent had been eligible for relief under the 7th proviso, that he, therefore, had a right which was saved by section 405 (a) of the Immigration and Nationality Act and that the 7th proviso can now be used to legalize his residence as of December 24, 1952 when the Immigration and Nationality Act took effect. The contention continues: Respondent's residence having thus been legalized, he is eligible for relief under section 212(c) of the Act and by virtue of its provisions can be considered as having been lawfully admitted upon the occasion of each of his returns from Mexico and, therefore, considered not deportable. The contention must be rejected. Even if 7th proviso relief could be granted nunc pro tunc, it would not be of avail to respondent because it could not cure the lack of documents which made him inadmissible to the United States on the occasion of each of his entries (Matter of L----, 4 I. & N. Dec. 463). Moreover, respondent had no application pending under the 7th proviso during the time it was in existence; the 7th proviso itself conveyed no rights and conferred no status; it, therefore, did not come within the savings clause (Cadby v. Savoretti, 256 F. 2d 439 (5th Cir., 1958)). Since respondent is not a...