Matter of Quan

• Decision Date: 12 October 1967
• Docket Number: Interim Decision Number 1802,A-12776380.
• Parties: MATTER OF QUAN. In Section 246 Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

12 I&N Dec. 487

MATTER OF QUAN.

In Section 246 Proceedings.

Interim Decision Number 1802

A-12776380.

Board of Immigration Appeals.

Decided by Deputy Associate Commissioner October 12, 1967.

Since the Service may exercise discretion in determining whether rescission proceedings under section 246 of the Immigration and Nationality Act shall be instituted in any individual case, where respondent is the mother of two U.S. citizen children and there is no indication that she had knowledge of her husband's false claim to citizenship at the time of adjustment of her status under section 245 of the Act as a nonquota immigrant in 1963 or at any time prior to his confession of alienage in 1965, the District Director's order rescinding respondent's adjustment of status is vacated as improvident.

The applicant is a 33-year-old native and citizen of Peru. She last entered the United States as a temporary visitor on December 21, 1961. Her status was changed to that of a nonimmigrant student on August 17, 1962. On November 7, 1962 she married QUAN Hong Seung who claimed to be a citizen of the United States. On December 4, 1962 he submitted a visa petition on behalf of the applicant. The petition was approved by the Service on December 30, 1962 to accord her nonquota classification as the spouse of a citizen of the United States. On March 1, 1963 her application under section 245 of the Immigration and Nationality Act was approved by the District Director of the Service at New York City to accord her status as a permanent resident alien. The applicant has since given birth to two daughters, both born in Brooklyn, New York, on November 21, 1963 and May 20, 1965 respectively.

On November 23, 1965, the applicant's husband confessed that he was not a citizen of the United States, that he was, in fact, a native and citizen of China, and that he had entered the United States by falsely claiming to be a United States citizen. On July 1, 1966 the District Director notified the applicant that, pursuant to section 246 of the Act, he intended to rescind her adjustment of status, on the ground that she was not entitled to the nonquota immigrant status which had been accorded her as the spouse of a United States citizen. She was granted 30 days from the date of the notice to submit representations against the proposed rescission or to request a hearing before a special inquiry officer. When she failed to respond, the District Director on March 20, 1967 ordered that the adjustment of status which had been granted the applicant on March 1, 1963 be rescinded, in accordance with section 246 of the Act and 8 CFR 246.2.

The matter is now before me on certification, for a determination of whether the rescission order was properly entered and should be...