*1 ERRICO, Petitioner, Giuseppe AND
IMMIGRATION NATURALIZA- SERVICE, Respondent. TION
No. 19282. States Court
Ninth Circuit.
July
Rehearing Aug. 14, 1965. Denied *2 by a submitted motor com- tion been Portland, Oregon, sup-
pany of and was ported by representations, form of originating Italy, affidavits that petitioner specialized was a mechanic tune-up motor man on motors of Italian Eight days ar- manufacture. after City, petitioner rival in New York employment commenced his company. Portland motor The record assignment given reveals that he was performing on work German motors strange with tools to him. which were employment He remained according months, having failed, three finding Special Inquiry to a of the Of- ficer, up requirements “to measure to the specialized August mechanic.” On 29, 1960, employ entered the Vic- tory Plating Works, Inc., Portland, continuously and he has remained in such employment. the Im
On is and Naturalization Service sued an Order to Cause and Notice Show Proceedings Hearing Deportation In alleged petitioner it that specialized was “not a mechanic alleged. tune-up man as And on the foregoing *, basis of Robinson, Ierulli, Frank M. Gerald H. charged you subject deporta that Portland, Or., petitioner. following provi pursuant to the Poole, Atty., U. Cecil F. S. Charles sion^) of law: Collett, Atty., Elmer Asst. U. S. San 241(a) (1) of the Cal., Francisco, respondent. Nationality Act, that, at entry you one were within MERRILL, DUNIWAY, and Before ex- more the classes of aliens Judges. ELY, Circuit cludable the law at the entry, wit, Judge: time of such ELY, Circuit are not of Petitioner, thirty-one years of now quota specified under the in the im- emigrated age, Italy and, from his native migrant visa, 211(a) under Section wife, gained with his admission (4) of Act.” 17, 1959. His United States on October hearing followed, parents A and while and all of his and sis- brothers Italy, son, country, left ters shown that before he reside in and his employ- anticipation prospective citizen, an of his on American was born here petitioner August States, the ment in the United a 1960. He was admitted as unpaid an pref- for a months as worked few selected under the first garage, immigration apprentice there in an Italian erence of the Italian finding support ample a approved evidence to au- status was under the thority 203(a) (1) Officer (A) into time of his U. States, qualified peti- was not a (1) (A)). S.C. The visa specialist automobile mechanic admission into the United States:”. We parent motors of Italian manufacture. have seen that the is a of a United States citizen and the child relief from perma- of aliens admitted for of Sec nent residence. is also established (d) petitioner procured “visas or and 1181(c) of 1952 into the *3 effect, (d)), provide, which by misrepresenta- United States or fraud may, in his that the General Against tion.” the it has grant discretion, relief to an inadmis been contended that the Order to Show sible alien “if satisfied inad that such Cause, charged being was not with missibility was known not and could not provisions inadmissible because of the by been have ascertained the exercise of 212(a) (19) relating Section to aliens diligence immigrant” by reasonable such gained entry by who have fraud or mis- prior entry to his the United States. representation, inadmissibility but with petitioner’s application re this provisions 211(a) of Section ground lief was denied the that the Nationality of the qualifica knew of his lack of (8 1181(a) (4)) U.S.C. § which prior departure Italy tions to his from reads: consequently qualify could not “(a) No shall be ad- discretionary favorable action under the mitted into the United unless provisions 211(c). of Section It our at the time of for admis- opinion Special Inquiry that the Officer * * * (4) sion he of the properly applied Section that proper speci- status under the Section, the denial of * immigrant visa, in the ”. fied affirmed the Board contention, carefully considered Appeals, was correct. correctly Officer, the was stages proceedings, In all the follows: decision as treated petitioner has insisted that he is saved respondent “The has established deportation by 241(f), from Im- Section necessary relationship to come with- Act U.S.C. 241(f). provisions in the 1251(f)), provides: which however, questions, remain. Several provisions “The ing of this section relat- first, provisions of whether the deportation of aliens with- apply to his ground in the United States on the charged in- case because he is they that were excludable at admissibility provisions entry as aliens who have 211(a) (4) of the procure, procured or have visas or other or en- entry aliens who at were try into the United States fraud specified immi- in the shall not grant visa, under Sec- rather than to an alien otherwise admissible 212(a) (19), pro- aliens who entry spouse, the time of who is the willfully cured a parent, or a child of a United States misrepresenting a material fact. citizen or of an alien ad- Immigration Appeals, The Board of mitted for residence.” K-, in the I & N Dee. Matter of (Emphasis added) 589, March reaffirmed important It is previous to note that the italicized order in Matter of language adopted holding S-, has been from & 7 I N Dec. 212(a) (19) (19)), 1182(a) that the section of under which law many designating charge one of deportation sections classes im- is laid is ineligible of aliens Board, who “shall be to re- material. The in Matter of ceive are, however, visas and shall K-, be excluded from stated: ‘There pari materia 241(a) statutes lation to other other operative that it is deportable to the conclusion af- lead alien render an which deportation. spare charges from di- flow on ter pur- plain terms, rectly Under its ports fraud from grant charges aliens relief to absolute misrepresentation. The two Unit- familial ties who have close forth in Section set gained entry into category. ed States and who Since come within through or mis- “fraud general described representation”. are Its benefits terms aliens entry documentation whose dependent upon dis- exercise of or mis- was fraud opin- cretion representation, we any granting of a waiver or ion the intent Con- gress on manner. enacted save por- of a except 1961 and modified terms who were simultaneously statute, they had made the fact *4 provi- pealed, regardless similar which contained fraudulent of statements statute, previously provision sions. This of the statute 85-316, 640, sought.’ 8 U.S.C. Pub.L. 71 Stat. which their (not 1251(a)) 1251a was enacted It is concluded that the fact that the Upon repeal, portion in- its of charge, excludable at for corporated 1182 of Title into Section misrepresentation, fraud or is not (h). portion as conferred urged, disqualify re- upon discre- General the spondent from the of benefits Sec- tionary power admis- consent to the to 241(f).” States of certain sion to the United appear It would therefore general, upon conditions, certain “procured or as an visa] alien who [a (1) Aliens with certain close follows: or into the (2) already in relatives the United States misrepresenta- United States fraud or in extreme whose exclusion would result * * * parent, tion” and “who is the residing hardship to the relatives or or a child a United States citizen (3) to admission United States whose per- of an alien admitted for contrary would not residence”, de- manent is saved from safety, welfare, or se- portation to the national (8 1251(f)) curity (4) U.S.C. and who were excludable § his “otherwise admissible” at (9), paragraphs
entry. Officer con- (10), statutory cluded that since this issue of Nationality (8 Immigration U. Act and “presents question construction a novel (9), (10), 1182). Paragraphs and S.C. § Board”, not decided it would be of excludable define three classes Immigration “certified to the Board of aliens, have been convicted those who Appeals for and final review decision”. involving turpitude, those moral a crime petitioner’s The Board held that since the or more have been convicted of two who discretionary relief aggregate sen- for which the offenses waiver under actually imposed tences to confinement granted, he ad- could not be “otherwise years more, who and those five were entry” missible at the time of and prostitution. traffic in are concerned with Immigration “Section and (i) of Section Subsection Nationality applicability Act has no to Nationality U.S.C. § Act this case and need dis- not have been terms, 1182(i)), by present its cussed”. grants certain discretionary powers disagree with reference Board. with the We legislative has close alien who interpretation his the admission of an Fair tory terms, Section, in the United States and its relatives its procure has try or has en- U. 1251). misrepre- of who
documentation S.C. determination § requires ref- sentation. “excludable the law” erence Act, repealed of7 the 1957 1182). (8 U.S.C. § predecessor was the near many There, as ex- are defined classes presently existing 241(f) (8 U.S. including cludable, defined Sec- 1251(f) ). deporta- C. saved from (12), (9), (10), we to which tions tion aliens with close relatives already reference and gained entry States and who expressly discretionary relief is whom misrepresentations because of limited long light of the made available. In the respect nationality, place birth, legislative history indicating a course of identity, Section, or residence. The how- congressional apply “fair hu- intent to ever, expressly granting conditioned the standards”, it is not reason- manitarian of relief the consent the Attor- Congress, by its en- able to believe that ney General and the fact that alien’s 1961, in- actments and reenactments misrepresentations induced his were deny thereby tended relief persecution race, fear of because of reli- repealed an alien who had Section 7 to gion, politics. legislative history Its gained entry by misrepresenting na- congressional reveals the intent to birth, identity, tionality, place or resi- “fair humanitarian standards.” See expressly time dence and at the same Cong, Adm.News, p. U.S.C. specific provide classes three 1753, Besterman, Commentary on Im- *5 aliens, of of a crime in- those convicted Nationality Act, and 8 U.S. volving engaged turpitude, moral those page comparison pro- C.A. 1. A with the prostitution, of and those traffic visions of Section of the 1957 with upon at least were ex-convicts whom Act, those of the successor Section years had been five of confinement actu- (f), following: pre- reveals the The ally imposed. us, rea- To it seems more scribed United States relatives of the recognized Congress un- sonable the alien same, nameiy, “spouse, are the yielding temptation which nature of the parent, or a child of a United States might impel to make false mis- an alien citizen or of an alien admitted beyond representations and above residence”. The for- birth, pertaining nationality, place to of misrepresentations mer Act described only identity, hope to four in re- the of facts to which it residence was obvi- ously aimed, namely, nationality, place already siding of proximity dear ones to birth, identity, residence, whereas, the Further- resident in the United States. present 241(f) contains no limi- reasonable, more, entirely in view it is tation type as to the or nature of the broadening of the liberalization which the and the terms of the former Section 7 may alien perpetrated or made. provision to elimination of the (3) The former Section conditioned re- discretion, the absolute to assume upon lief the discretion the relief statute would save conferred the General, favorably exercised in favor of pro- aliens who such alien, whereas, the present entry fraud, cure their documents 241(f), provision there is no which con- either near relatives al- because their operation upon ditions its discretionary powers. the exercise ready resided in United or be- the sought cause, they entry, after were not present deported 241(f) passage to be until after the paragraph now the last time and the establishment of intimate deportable which relationships defines classes of familial with citizens class, Perhaps and describes as first “aliens the States. encourage responsible the law excludable officials entry”. 241(a) (1), greater scrutinize, time of such care and already entry, representations when course to fraud he advance support separate of im- would obtain a and others and valid visa the alien Immigration and, migrant applications. had is- Service visa documents, sued the select for two would court, in our In its brief presentation spurious argument, Service oral interpretation an two. Such of Sec- position that the has taken 241(f) would, judgment, strip in our admissible” “otherwise cannot be meaning pur- all substantial provisions of Section pose.1 thereby unless at the entitled relief foregoing considerations of his admission same time inde fraud he was that the obtained lead to the conclusion visa entry, not, different inad pendently under a of his at the time falling This would one or a different reason of within missible that Section defined Sec lead to the conclusion of the excludable classes alien, hence, operative 1182); he unless could never be tion 212 unquestionable was, except entitled to a visa of for which while for the fraud fraudulently validity, forgiven had nevertheless terms 241(f), another to base He does admissible”. “otherwise that Con admission. We cannot believe the excludable class de not fall within gress study paragraph (20) itself with concerned fined in prefatory paragraph’s of a statute which enactment ex because grant one, may ception if one can be said that our clause. It imagined, encourage may who would seek to obtain and seek conclusion aliens to country by would obtain an to our means fraudulent 1. The Board of amendment on (Nov. Slade, I&N., grants which, apart 241(f), Matter of 30, 1962), A-10296218 from Section disagreed. points discretionary power has Gen hypothetical perpetual in which it two situations eral to acquisition “this bar to the waive *6 241(f) may operate permanent sees that Section of lawful residence * * * the alien’s benefit. These are seen ”. As to situation, the Board’s comments as follows: of de second “termination required portation proceedings” would be “Does our conclusion section 241 make though 241 even (f) meaningless as counsel the Act (f) did not exist. See Duran-Garcia v. person A contends? deportable think We not. Neelly, (5th 246 F.2d Cir. having obtained a visa Barber, 1957) ; Herrera-Roca 150 F. v. fraud is barred from the States. United Supp. (N.D.Cal.1957); 492 In re Field’s legislation In the absence of such as (S.D.N.Y. Petition, F.Supp. 241(f) that contained section 1958) Moreover, quite appears . it obvi there could be no waiver this 241(f) language ous that perpetual acquisition bar to the of law- purpose was not drafted for the of re ful residence quiring the “termination of though States even ties with United proceedings” against guilty an alien legally States citizens or resident aliens misrepresentation as to “a matter which existed. Section Act is * ** did her ”. not make inadmissible require effective termination deportation proceedings where an alien “Except specifically provid- 2. as otherwise willfully misrepresented matter which a any immigrant chapter, ed at the did not make but her inadmissible for admission time material; i.e., which was nevertheless possession unexpired not in is immigrant a valid concerning name, a visa, reentry permit, border existence of a conviction of a crime crossing entry card, identification or other valid turpitude, which did not involve moral chapter, required by document (see, etc. Matter S-and fí-- unexpired passport, a or other and suitable travel valid 0-, 1168).” Int. Dec. document, or document of view, opinion identity nationality, In our fal- the Board’s is if such document situation, required regulations lacious. In the first assumed is issued (i) pursuant it overlooked Subsection sec- title;” 1182(1)), 1181(e) U.S.O. added of this gives indicates, then, haste, Ely some effect to sec- with all to establish that, 241(f). appears relationships Otherwise it citi- with American create true, shows, may opinion section but our as his well be zens. never, hardly ever, obligation perhaps apply could to reach is operative. the stat- most reasonable construction of construction, is our In this ute.3 duty weigh of na- all considerations policy, otherwise.
tional humanitarian or Deportation Order of vacated. is Judge:
DUNIWAY, Circuit foregoing opinion.
I concur in the I ground upon add the sole which it is here asserted that section SMITH, Bertel Administrator G. 241(f) does not is that Errico was Jacobson, deceased, Estate of Leo not “otherwise admissible” within Appellant, meaning subsection, because, of that but misrepresentation, for the cases). Appellee (two SHERMAN, Mike proper speci- status under the Nos. note, however, fied in the I visa. (a) section which it. States Court of deport him, qualifications contains five Eighth Circuit. admission, which are are follows: Aug. 13, 1965. * * * “(1) unex- valid pired immigrant *,
(2) chargeable properly
quota specified immigrant
visa, (3) nonquota immigrant ais
specified immigrant as such in the
visa, is of the status under quota specified
visa, and *7 is otherwise un- chapter.”
der this (Emphasis add-
ed.) phrase
It will be noted that here the
“otherwise admissible” refers mat-
ters other than matters of status. pari is in materia with 211(a),
section and I can think rea-
sonably be phrase said that the “other-
wise admissible” in section disqualifications refers than to This con-
struction,
opinion my
as Brother
(1948);
Gonzales,
Even if there is
as to
reasonable doubt
Barber v.
U.S.
proper interpretation
637,
(1954);
98 L.Ed.
74 S.Ct.
(f),
the doubt
must be resolved
favor
Nat
Garcia-Gonzales
Fong
Phelan,
Service,
(9th
alien.
Haw Tan v.
uralization