Matter of S----

• Decision Date: 27 March 1962
• Docket Number: A-12662238.
• Citation: Matter of S----, 9 I&N Dec. 599 (B.I.A. 1962)
• Parties: MATTER OF S---- In DEPORTATION Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

9 I&N Dec. 599

MATTER OF S----

In DEPORTATION Proceedings.

A-12662238.

Board of Immigration Appeals.

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 is not eligible for 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 Matter of T----, 9-473.)

CHARGE:

Order: Act of 1952 — Section 241(a)(2) [8 U.S.C. 1251(a)(2)] — 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, deportable as an alien who entered without inspection (Matter of E----, 6-275). The special 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 K---- B---- N----, supra, 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 that 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 bound 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...