MATTER OF DeG— ET AL.
In EXCLUSION Proceedings
A-10644351 A-10847616 A-11404466 A-11007495 Decided by Board May 14, 1959 Commissioner‘s Motion June 15, 1959 Board Decision August 24, 1959 Decided by the Attorney General December 14, 1959
8 I. & N. Dec. 325
Advance waivers of inadmissibility under sections 5 and 7 of Act of September 11, 1957, are not authorized to facilitate future admission of aliens ordered excluded. Disposition of waiver requests must await return to foreign territory and compliance with procedure established by 8 CFR 212.7(a).
EXCLUDABLE:
(DeG—)—Act of 1952—Section 212(a)(12) [8 U.S.C. 1182(a)(12)]—Engaged in prostitution.
(DeV—)—Act of 1952—Section 212(a)(12) [8 U.S.C. 1182(a)(12)]—Engaged in prostitution.
Act of 1952—Section 212(a)(19) [8 U.S.C. 1182(a)(19)]—Visa by fraud or willful misrepresentation.
Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—No valid visa.
(DeR—)—Act of 1952—Section 212(a)(19) [8 U.S.C. 1182(a)(19)]—Procuring documentation by fraud or willful misrepresentation.
(R—)—Act of 1952—Section 212(a)(9) [8 U.S.C. 1182(a)(9)]—Convicted of a crime involving moral turpitude.
Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—No valid visa.
BEFORE THE BOARD
(May 14, 1959)
Discussion: This is a motion by the Assistant Commissioner, Inspections, requesting that the Board reconsider and withdraw that portion of the order entered in each case which granted the particular applicant certain discretionary relief under Public Law
Each of the applicants is excludable for the relating reasons stated in the caption. The facts in the individual cases have been fully set forth in previous orders. The situations are not too dissimilar. To simplify matters, we shall briefly relate the facts of only the first case (DeG—). DeG—, a 27-year-old female, is a native and citizen of Mexico. She is married to a citizen of the United States, and there is a United States citizen child of the union. The applicant was a prostitute in Mexico for periods of various duration from 1951 to 1953. On March 9, 1956, she received a nonquota visa. She was ineligible for the issuance of this visa because she had engaged in prostitution (
The Service position, while not stated so bluntly, is that the Board has no authority to grant advance waivers of grounds of inadmissibility under sections 5 and 7 of
The contention that the Board is without authority in exclusion proceedings to grant relief under
The Attorney General has conferred his authority under the immigration laws upon this Board to be used “as is appropriate and necessary for the disposition of the case” before the Board, except when there is a “specific limitation” on the Board‘s power (
The Commissioner‘s issuance of regulations concerning
Since in exclusion proceedings the Board has the power to grant or deny relief applied for under sections 5 and 7, and no specific reason for denying the applications of any of the individuals involved herein has been advanced, no change need be made in any of the orders.
The remainder of the Service contentions have nothing to do with the power of the Board to act but are general statements as to the desirability of the Board taking the action it did. We shall comment briefly upon these contentions. The Service believes that in granting relief in exclusion proceedings, the Board may overlook grounds of inadmissibility which the consul may find to exist. Of course, this possibility exists, as it does when the Service grants advance relief under sections 5 and 7 in preexamination proceedings in the United States. However, it is not an important consideration. Exclusion proceedings (preexamination is considered of this nature) are held before skilled employees who are interested in determining whether or not an alien is inadmissible. If some ground of inadmissibility escapes them which is discovered by the consul, the waiver may be enlarged by the Service or the Board to include the ground of inadmissibility discovered, if the ground is one covered by law and it is desirable to do so. If the ground of inadmissibility disclosed cannot be waived, then, of course, the consul will not issue a visa. One thing is clear. A grant of advance relief by the Board or by the Service does not compel the consul to issue a visa. That is a matter solely within his discretion. (A ground of inadmissibility may not be discovered until after the applicant has received his visa and appears before the Service; then, or in a case where no visa is required, the Service or the Board may grant nunc pro tunc relief under sections 5 and 7 (Matter of P—, 7 I. & N. Dec. 713)).
The Service is concerned with the thought that the Board may make decisions without information which may be in the possession of the consul. (All four of the applicants concerned here were issued visas by an American consul. Since they were given favorable consideration, it would appear extremely unlikely that he will be in possession of any derogatory information which would be of value in considering the advisability of granting waivers.) What is done by the Board in granting an advance waiver in an exclusion proceeding does not differ from the action of the Service itself in granting the same relief in preexamination proceedings. In each of the instant cases the usual Service neighborhood investigation and check of appropriate records have been made. The basis for the Service conclusion that the consul will do more than forward the
Extensive administrative experience using similar relief makes it clear that the Board‘s action is efficient, effective, and will not result in harm to the nation, or in the admission of undesirable aliens. An application granted in exclusion proceedings, just as one granted in preexamination proceedings by the Service, should reduce considerably the time involved in obtaining the issuance of a visa. Moreover, the individuals who are benefited by Board action in most cases would be persons who had considerable periods of residence in the United States and are under an order requiring their separation from their homes and families. The fear of permanent separation would be strong. It will undoubtedly do much to relieve this fear, if, in deserving cases, favorable action is promptly taken. The intent of the law is to reunite deserving families. The action of the Board speeds this end.
In summary, the practical reasons advanced by the Assistant Commissioner are no more potent here than if they were advanced in a preexamination proceeding. Basically, the Board has power to act; the action taken was in the exercise of sound discretion.
Order: It is ordered that the motion be and the same is hereby denied.
BEFORE THE CENTRAL OFFICE
(June 15, 1959)
Discussion: In each of the instant exclusion proceedings, the Board has affirmed excludability but has granted an advance waiver of sections 5 and 7 of the Act of September 11, 1957, if the alien applies for admission in possession of a valid visa issued within 6 months.
Involved is an interpretation of
In its order denying the Service motion to reconsider, the Board has taken the position that its authority to take any action necessary for disposition of a case before it,1 overrides the specific language
It will be noted that these aliens are all natives and citizens of Mexico. Their position in this respect is similar to that of the subject in Matter of DeF—, A-10547426, Int. Dec. No. 973 (Atty. Gen., Feb. 26, 1959). In that case the Board, in its original order, attempted to advance precisely the argument advanced here respecting separation of families and expediting the issuance of visas. The arguments have no more merit here than they did in that case, since, as in Matter of DeF—, supra, these aliens must apply to a United States consul for visas.
The Board has also attempted to draw an analogy to the procedure followed by the Service in preexamination proceedings. Under
The procedure followed by the Service in preexamination is in all respects consistent with the position urged in the instant case—namely, that it is improper for either the Service or the Board to make an unnecessary advance adjudication in connection with a matter which must initially be passed upon by another governmental agency.
For the reasons set forth in the Service motion of February 25, 1958, it is submitted that the decision is in error.
Request is hereby made that pursuant to the provisions of
(August 24, 1959)
Discussion: In each of the cases in question, the Board has granted under sections 5 and 7 of
Cases arising under the immigration laws present unusual and varied factual situations. The greatest degree of administrative flexibility is required to deal with such situations equitably and fairly. It is the freedom permitted to this Board that has enabled the Board to do its job of independent administrative review in a “fair and equitable” manner.3 It would seriously hamper the ability
Several collateral matters raised by the motion require comment. The motion appears to indicate that by the regulation there has been a redelegation to the Department of State of the power and responsibility to pass upon an application for a waiver under section 5 or 7 of
It may be desirable to have applications from those abroad filed through the Department of State. However, such action is not required by law, and it is not essential.5 At present it is routine to grant relief under the very law in question without any request being filed with the Department of State. Aliens who entered with visas issued after
In our opinion the motion in at least two aspects furnishes inaccurate information as to the procedure used in applying for section 5 or 7 relief. As we have indicated, the motion indicates that the
Matter of DeF—, A-10547426, Int. Dec. No. 973, decided by the Attorney General on February 26, 1959, is quoted in the motion in support of the Service view that its regulation as to procedure prevents the Board from acting as it normally could. We understand Matter of DeF—, supra, to be a statement by the Attorney General that section 5 or 7 is available to an alien making application for admission to the United States and that it is not available to an alien in the United States unless he is eligible for preexamination—a procedure contemplating the departure from and reentry of an alien into the United States. Since the aliens here are applicants for admission to the United States, obviously they are eligible in this proceeding to apply for the relief.
Perhaps we are not clear as to the manner in which the Service interprets Matter of DeF—, supra, since after it was decided the Service followed policies which in our opinion are contrary to the Attorney General‘s ruling. The Attorney General, relying upon several court cases, held that an application for relief under section 5 or the pertinent part of section 7 could be made only in exclusion proceedings. Nevertheless, after this finding was handed down the Service issued or continued in effect regulations permitting an alien in the United States to apply for relief although exclusion proceedings are not involved and the alien will never leave the United States to apply for a visa and will never apply for admission. The alien need not even be eligible for preexamination (
The Service action appears contrary to Matter of DeF—, supra, in another regard. Matter of DeF—, supra, states that it is the intent of Congress that sections 5 and 7 were to be applied prospectively only, i.e., to situations which arise after September 11, 1957.
Our discussion of the collateral matter should not obscure the fundamental issue. The Board acting in accordance with well-established precedents has exercised the Attorney General‘s power in matters properly before it. The Service is without authority to deprive the Board of this power either directly or indirectly.
Order: In accordance with provisions of
BEFORE THE ATTORNEY GENERAL
(December 14, 1959)
Order: The orders excluding the aliens in the above-described cases are approved, but that portion in each of the Board‘s orders which directs admission of the aliens pursuant to an exercise of the discretion contained in sections 5 and 7 of the Act of September 11, 1957, is hereby disapproved. Exclusion of the aliens is without prejudice to a further application for an exercise of discretion, in accordance with the terms of
The aliens in these cases have all obtained visas to enter the United States, but charges subsequently developed have been sustained against them. As a result they are now subject to exclusion. On the basis of the record presented, the Board has ordered the aliens excluded but has considered the cases appropriate for an advance waiver of the grounds of exclusion through an exercise of the discretion authorized by sections 5 and 7 of the Act of Septem-
The question presented by the cases involves the authority of the Board to grant a waiver in light of the provisions of
The Board‘s delegated authority, which is as broad as the Attorney General‘s in the areas which are under its jurisdiction, is at the same time subject to specific limitations and falls short of the authority it has attempted to exercise in these cases. The limits of the Board‘s jurisdiction are described in
It is true as urged that the Board‘s powers embrace “the exercise of such discretion and authority as is appropriate and necessary for the disposition of the case,” but these too are subject to the limitations prescribed by the regulations and are confined to the jurisdiction in which the Board is authorized to operate.
APPENDIX “A”
U.S. DEPARTMENT OF JUSTICE
BOARD OF IMMIGRATION APPEALS
DEC. 1—1955
File: A-4218988—El Paso
IN THE MATTER OF N—R—H—
IN EXCLUSION PROCEEDINGS
EXCLUDABLE: Section 212(a)(26)(B)—No nonimmigrant visa or border crossing card.
Section 212(a)(22)—Departed from the United States to avoid military service.
The appellant is a 29-year-old married male, a native and citizen of Mexico who applied for admission to the United States on June 2, 1955, as a visitor for the purpose of buying necessities for himself and his family. He was excluded on the ground that he was
We affirmed the excluding decision. However, we found that the appellant‘s need to enter the United States was sufficient to require the grant of relief to him. To meet these needs, admission for short visits over a period of one year was authorized, if he were otherwise admissible than as one who had departed from and remained outside the jurisdiction of the United States to avoid military service. This action was taken under the authority contained in
Motion is now made by the Service for a reconsideration of our action. It is asked that we withdraw the relief granted and dismiss the appellant‘s appeal. The motion states that it is improper to grant the alien discretionary relief because he had not applied for such relief; because he had not paid a $25 fee required of applicants for such relief and because the facts do not justify the granting of relief.
The alien could have properly applied, either orally or in writing, for relief under
Because he did not apply for the relief and pay the fee of $25.00 for filing the application,2 the Service desires that his case be returned to the field, with the bare notification to the alien that he was excluded. Apparently, he will then learn in some manner that he may make application for discretionary relief under section 212(d)(3) of the act; he will be required to submit an application for such relief and pay the $25 fee for filing it. The application will then be acted upon by the district director having administrative jurisdiction over the place where the examination is being conducted. If the district director denies the application, appeal may then be taken to this Board, upon payment of an appeal fee of $10.00. Such circuitous action is unnecessary and of benefit neither to the Government nor the alien, and in the circumstances before us, would be unworthy conduct.
Furthermore, under the circumstances of this case, to make the alien renew his efforts to enter the United States after having waited so long for a determination would not befit the government. An analysis of the facts before us reveals that when the alien applied for admission, he was interested not in gaining immediate entry, but in determining how he could enter the United States when the time came. The alien, who is a native and citizen of Mexico, would be admissible to the United States as a temporary visitor only if he were in possession of United States documents entitling him to enter as a visitor. He has no such documents and makes no claim to having such documents. He does not claim that he is not required to be in possession of documents. It is inconceivable that with the education possessed by the alien and the fact that he is a resident of a border town adjoining a port of entry, he would have made application for permission to enter the United States without being in possession of documents, unless he had some motive other than than in seeking immediate admission. The fact that under these circumstances the appellant submitted his case to a special inquiry officer reveals that he did not have the intention of attempting to enter the United States at the moment. His intention could have been only to determine what status he would have if he applied for admission in possession of appropriate documents. The appellant‘s need to enter the United States to purchase necessities reveals that his desire to know his status was not the result of a thirst for theoretical information by one who did not intend to enter the United States. His submission to the immigration authorities was a practical way (apparently often suggested by Service personnel) for determining his status as one who desired to enter the United States. Since it is obvious that the alien was primarily interested in determining how he could enter the United States to take care of the needs of his family, we believe it would have been most appropriate to inform this alien at his hearing of his right to apply for discretionary relief to waive the ground of inadmissibility which had been found to exist (
As to the failure to pay the $25 fee for filing an application for discretionary relief, this is a matter for the Service to take up with the alien. We do not act as a collection agent for the Service in these matters.
The Service contends that the reason for the alien desiring to enter the United States—to buy necessities for himself and his family—is not urgent or compelling. The Service and this Board have both, in the past, taken administrative notice that it would work an undue hardship upon the aliens residing in Mexico near the border if they were not permitted to enter the United States to obtain ordinary necessities. In answer to the Service motion, the alien has supplied the additional information that he will accompany his wife to a doctor in the United States as she cannot speak English well.
Order: It is ordered that the motion be and the same is hereby denied.
APPENDIX “B”
DEPARTMENT OF STATE,
Washington, July 17, 1959.
In reply refer to VO 150.1/6-2659
DEAR MR. FINUCANE:
In response to your letter of June 26, 1959 In re DeG—, File No. A-10644351, I am glad to provide you the following information:
1. In an ordinary case of an alien abroad who has been refused a visa by a consular officer and claims eligibility to a waiver, the consular officer provides the alien with a Form I-601 inserting in it the technical information regarding the visa refusal. The alien then completes the form and returns it to the consular officer who forwards it to the appropriate office of the Immigration and Naturalization Service without attachments or recommendation. The INS thereafter makes suitable arrangements consonant with the circumstances of the case to interview the alien and to consult such files concerning the alien as may be in the consular office.
2. In the case of an alien in the United States who has been admitted to the preexamination privilege, the consular officer on being notified by the INS or on ascertaining from some other source that the alien would be ineligible to receive a visa on grounds that could
It is hoped that the foregoing information is satisfactory for your needs.
Sincerely yours,
/s/ Robert J. Cavanaugh,
ROBERT J. CAVANAUGH,
Acting Director, Visa Office.
MR. THOMAS G. FINUCANE,
Chairman, Board of Immigration Appeals, Department of Justice.