ENG
CHARGE:
Order: Act of 1952—Section 241(a)(1) [
ON BEHALF OF RESPONDENT:
Samuel B. Waterman, Esquire
111 Broadway
New York, New York 10006
(Brief filed)
ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney
Emil M. Bobek
Trial Attorney
(Brief filed)
Respondent appeals from the special inquiry officer‘s order finding him deportable upon the ground stated in the caption. Voluntary departure was granted. Respondent claims (1) that he is not deportable because he was not properly convicted, and (2) that even if he were convicted, the provisions of section 241(f) of the Act remove him from liability to deportation. The appeal will be dismissed.
Respondent, a 39-year-old married male, a native of China and a citizen of the Republic of China on Formosa, was admitted for permanent residence on August 30, 1966, with an immigrant visa issued at Hong Kong on May 19, 1966. The Service charges he was excludable at the time of this entry because of his conviction in the Magistrate Court at Kowloon, Hong Kong, on February 24, 1956, for unlawful possession of dangerous drugs (heroin) in violation of section 10 of chapter 184 of volume IV of the Dangerous Drugs Ordinance (Ex. 2). (He was sentenced to pay $200 or serve two months at hard labor.)
Respondent contends that he did not have due process, because the special inquiry officer refused to permit him to present evidence that he was deprived of counsel at his criminal trial. He contends that his conviction was defective, because the act described by the conviction record fails to show that he violated the law under which he was charged.
The contentions must be rejected. It is well established that we are bound by the conviction record (Matter of Adamo, 10 I. & N. Dec. 593). If counsel wishes to attack the conviction on the grounds advanced, he must do so in the jurisdiction where it occurred. Furthermore, the record shows that respondent was charged with unlawful possession of heroin under a law which made it illegal to unlawfully possess a dangerous drug and which specifically named heroin as a drug to which the law applied (Ex. 3, p. 39, First Schedule, par. 3). Respondent‘s conviction made him deportable as charged (see Matter of Romandia-Herreros, 11 I. & N. Dec. 772).
Counsel contends that even if respondent comes within the terms of section 212(a)(23), he is nevertheless relieved from liability to deportation by section 241(f) of the Act.1
The short answer to counsel‘s contention is that section 241(f) applies only when the charge on which the Service seeks to deport an alien requires proof that fraud existed. Here the charge is one which does not require proof of fraud. It is, therefore, unnecessary to consider respondent‘s contention (Matter of Tsaconas, Int. Dec. No. 1759). Nevertheless, because similar contentions are often raised about section 241(f), we shall state our position on it.
The Service charges that respondent is deportable because he was inadmissible to the United States when he entered, since the law requires the exclusion of one convicted of violating a narcotic law. Some general information about what makes an alien inadmissible will be helpful in understanding the scope of section 241(f). An inadmissible
Qualitative restrictions provide that no undesirable alien shall receive a visa or be admitted. Undesirable aliens are those physically, mentally or morally disqualified; the subversives; and the violators of criminal, immigration, or narcotics laws (S. Rep. 1515, 81st Cong. 2d Sess. 66-71 (1950); Besterman, Commentary on Immigration and Naturalization Act, 8 U.S.C.A. pp. 18-34, 51-54 (1953)).
The Service charges respondent with being inadmissible on a qualitative ground—he was convicted of violating a narcotic law. He could have been charged with being inadmissible on another qualitative ground—he violated the immigration laws by obtaining entry by fraud (sec. 212(a)(19) of the Act). He could have been charged on a quantitative ground—he was one not in possession of a valid visa (sec. 212(a)(20) of the Act. A visa obtained by fraud is not a valid one.
The fact that an alien is inadmissible does not mean that he inevitably must be barred from entry. Waivers of specific grounds of inadmissibility exist. Under certain circumstances and in the discretion of the Attorney General, an inadmissible alien may be permitted to enter for permanent residence despite the fact that he is mentally retarded, afflicted with tuberculosis, had an attack of insanity (sec. 212(g)), has been convicted of crime,2 is a prostitute (sec. 212(h)), sought to enter by fraud or admits the commission of perjury (sec. 212(i)). If the alien succeeds in entering and is deportable because he secured entry by fraud, he is removed from liability to deportation on that ground under certain circumstances (section 241(f)). The Attorney General has the discretionary power to admit
Counsel contends that section 241(f) makes respondent nondeportable. We must reject the contention. On its face, section 241(f) contains three requirements: (1) a family relationship—respondent has this; (2) that the respondent be deportable for a fraudulent entry; counsel believes that respondent comes within the section because he did in fact obtain a visa by fraud since he did not reveal his conviction; (3) that the alien be inadmissible only because he made a fraudulent entry—respondent is inadmissible for a narcotic violation, and would for this reason be outside the reach of the section. Counsel contends the third requirement is met because section 241(f) waives any ground of inadmissibility which was concealed by misrepresentation. Thus, he contends, the ground of inadmissibility based on the narcotic conviction is waived, and respondent becomes “otherwise admissible” than by reason of the commission of fraud.
Counsel seeks support for his position in Immigration and Naturalization Service v. Errico, 385 U.S. 214 (1966), in which the Court interpreted section 241(f). Counsel believes the following language justifies the conclusion that section 241(f) provides a blanket waiver of the grounds of inadmissibility which an alien concealed:
The intent of the Act [Public Law 85-316, 71 Stat. 639 (1957), containing the section which later became section 241(f)] is plainly to grant exceptions to the rigorous provisions of the 1952 Act for the purpose of keeping family units together. Congress felt that, in many circumstances, it was more important to unite families and preserve family ties than it was to enforce strictly the quota limitations or even the many restrictive sections that are designed to keep undesirable or harmful aliens out of the country. (at 220, footnote omitted)
We believe that Errico fails to support counsel‘s contention. In fact, it supports the conclusion that an alien‘s inadmissibility as one convicted of a narcotic violation is a disqualifying factor which prevents the application of section 241(f).
Let us consider Errico and Scott, the companion case dealt with in the same opinion (Scott v. Immigration and Naturalization Service). Errico and Scott, immigrants barred from entry by numerical restrictions, both, by false misrepresentations, gained a status which enabled them to avoid these restrictions: Errico, by falsely representing that he was a skilled worker, gained an allocation under the quota to which he was not entitled; Scott, by falsely representing that she was the wife of a United States citizen, gained an exemption from quota limitations to which she was not entitled. Because the aliens did not
The question before the Court was whether section 241(f) which on its face waived only a qualitative ground—the bar to entry resulting from the obtaining a fraudulent visa, and conditioned its applicability on the alien being “otherwise admissible,” was meant to also waive the quantitative restriction which each alien had avoided.3 The Court, going to the history of the section for the answer, ruled that the quantitative restriction was also waived because the law had been passed to give relief to aliens who had evaded quantitative restrictions (or had avoided an investigation which would not have revealed a disqualifying factor)4 and it would be meaningless under such circumstances to hold that the alien had to be deported unless he complied with the quantitative restrictions by getting a valid visa. The Court did not rule that section 241(f) makes nondeportable an inadmissible alien who concealed a ground of disability not relating to numerical limitations.
When the quotation relied upon by counsel is considered in light of the issue before the Court and in light of the Court‘s ruling, it does not appear to be authority for the rule urged by counsel. When the quotation is read in context, it will be seen that it was not applied to section 241(f) or its predecessor. The Court directed these remarks to specific waivers concerning quotas, tuberculosis and conviction of crime that appeared in the 1957 Act. It is in the paragraph that follows the one from which the quotation is taken that the Court discussed the predecessor to section 241(f).
To adopt counsel‘s contention that whatever was lied about is waived would result in a situation where aliens who did not lie about their inadmissibility on criminal or prostitution grounds could obtain a waiver of their inadmissibility only in the discretion of the Attorney General under safeguards and a finding by the Attorney General that their entry would not be contrary to the national interest (secs. 212(h), (i)), but aliens inadmissible on the same grounds who lied about
In summary, we hold that section 241(f) relieves from liability to deportation the alien who entered fraudulently, if, the fraud being overlooked, he would have been admissible with the proper immigration document. Applying this rule to respondent‘s case we find he remains subject to deportation, for although his fraud is disregarded, and he is considered to be in possession of an immigrant visa, he remains inadmissible because his conviction of a narcotic violation bars his entry under section 212(a)(23) of the Act.
ORDER: It is ordered that the appeal be and the same is hereby dismissed.