PON
CHARGES:
Warrant: Act of May 24—Immigrant—no visa
Act of May 22, 1918, as amended
Act of Feb. 5, 1917—Did not present unexpired passport.
ON BEHALF OF RESPONDENT: Joseph P. Fallon, Jr., Esquire
30 Hotaling Place
San Francisco, California 94111
(Brief filed)
The case has been certified to us by the special inquiry officer who denied respondent‘s motion to reopen proceedings for the purpose of applying for adjustment of status under section 245 of the Immigration аnd Nationality Act. Our careful study of the issues herein persuades us that the motion should be granted.
The respоndent originally entered the United States on November 29, 1951, as a nonimmigrant visitor pursuant to section 3 (2) of the Immigrаtion Act of 1924. At the time of entry, he presented a certificate of identity issued by the American Consul under section 503 of the Nationality Act of 1940, which certificate was obtained upon the respondent‘s fraudulеnt claim to United States citizenship. On January 8, 1953, the United States District Court for the Northern District of California denied respondent‘s claim to United States citizenship and dismissed his complaint with prejudice. Thereafter, on April 30, 1953 the re
The special inquiry officer, relying on Muslemi v. INS, 408 F.2d 1196 (9 Cir., 1969), concluded that the respondent was already a permanent resident by virtue of section 241 (f) and that an appliсation for adjustment would serve no purpose. The special inquiry officer noted a recent opinion of the Attorney General (Matter of Lee, Interim Decision No. 1960 (1969)), which he interpreted as being in direct conflict with the decision of the Ninth Circuit in Muslemi. He nevertheless determined that the ruling of Muslemi applied here since the instant matter arose in the same circuit.
At first blush, this conclusion apрears tenable. A careful reading of both Muslemi and Matter of Lee, however, leads us to conclude that there is no cоnflict between those cases since Muslemi in our view is not subject to the broad interpretation given it by the special inquiry officer. Muslemi dealt with the basic question of whether an alien, who entered as a nonimmigrant аnd is found deportable as an immigrant without visa, comes within the scope of section 241 (f) as construed by INS v. Errico, 385 U.S. 214 (1966). The court in Muslemi concluded that he did, but remanded the case for a determination of whether Muslemi was “otherwise admissible” within thе meaning of section 241(f). The issue of whether an alien who entered as a nonimmigrant, thereby evading the visa issuing process applicable to immigrants, is “otherwise admissible” within the meaning of section 241 (f) was never rаised or argued in Muslemi and we cannot broadly state that that issue has been decided by the Ninth Circuit sub silentio. To the extent that the latter issue was not resolved by Muslemi, it remains an оpen question in the Ninth Circuit and the Attorney General‘s opinion in Matter of Lee is dispositive of that issue.
In Matter of Lee, the Attorney General noted that section 241 (f) only encompassed fraud or misrepresentation committed by an alien in furnishing information in the coursе of being proc
The situation to which the Attorney General was alluding is precisely the one before us since the respondent entered as a nonimmigrant to prosecute a fraudulent claim to United States citizenship. The respondent‘s fraudulent claim to United States citizenship and entry as a nonimmigrant permitted him tо avoid inspection as an immigrant alien and consequently a determination of whether he was admissiblе as an immigrant was never made. We must hold, in keeping with the Attorney General‘s position that the respondent was not “otherwise admissible” at the time of entry and therefore cannot benefit from the relief grantеd by section 241 (f). As a result, the respondent must seek relief through adjustment of status and we order these proceedings reopened so that consideration may be given to this application under section 245.
ORDER:
It is ordered that the motion to reopen proceedings be and the same is hereby granted.