A-8543460.
Decided by Board September 10, 1954.
Discretionary authority, section 211 (c) and (d) of Immigration and Nationality Act — May be exercised by special inquiry officer at warrant hearing where alien not entitled to preference status under which visa was granted.
(1) An alien who was admitted to the United States for permanent residence as the minor son of a legally resident alien but whose status under such preference was aborted prior to the issuance of the immigrant visa by the death of his father may be granted the benefits of section 211 (c) and (d) of the Immigration and Nationality Act nunc pro tunc in expulsion proceedings. In these circumstances, there is no deduction from the quota, the only question being with respect to the respondent's status under the preference.
(2) Under 8 C.F.R. 242.61 (c), the special inquiry officer has authority to consider and act on applications for the benefits of section 211 (c) and (d) of the act submitted during an expulsion hearing.
CHARGES:
Warrant: Immigration and Nationality Act — Section 241 (a) (1) — Excludable at time of entry — Quota immigrant without proper visa.
BEFORE THE BOARD
Discussion: This record relates to a 19-year-old single male, a native and citizen of Italy, whose only entry into the United States occurred at the port of New York on September 24, 1953, as a passenger on the SS. Independence. He was then admitted as a preference quota immigrant under the provisions of section 203 (a) (3) of the Immigration and Nationality Act as the minor child of an alien lawfully admitted for permanent residence.
The record indicates that the visa was issued to the respondent by the Consulate General, Naples, Italy, on July 17, 1953, as the minor unmarried son of an alien lawfully admitted to the United States on the basis of a petition approved March 2, 1953. The record further establishes that the respondent's father, through whom the preference was claimed, died in Italy on April 28, 1953. The respondent's testimony during the hearing indicates that there was no fraud on his part in obtaining an immigrant visa as the minor son of a resident alien. However, inasmuch as his father was no longer alive at the time of issuance of the immigrant visa, he was not entitled to the preferred status under which the visa was granted. He is therefore subject to deportation on the warrant charge.
During the hearing, counsel applied in respondent's behalf for relief under section 211 (c) of the Immigration and Nationality Act, to admit the respondent for permanent residence nunc pro tunc the date of his entry and terminate the proceedings. The special inquiry officer denied application for such relief on the basis that granting of such relief is beyond the scope of the authority of a special inquiry officer in expulsion proceedings. The alternative application for voluntary departure was granted.
Section 211 (c) of the Immigration and Nationality Act provides as follows:
The Attorney General may in his discretion, subject to subsection (d), admit to the United States any otherwise admissible immigrant not admissible under clause (2), (3), or (4) of subsection (a), if satisfied that such inadmissibility was not known to and could not have been ascertained by the exercise of reasonable diligence by, such immigrant prior to the departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory, or, in the case of an immigrant coming from foreign contiguous territory, prior to the application of the immigrant for admission.
Section 211 (a), referred to in the subsection quoted above, provides as follows:
No immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired immigrant visa or was born subsequent to issuance of such immigrant visa of the accompanying parent, (2) is properly chargeable to the quota specified in the immigrant visa, (3) is a nonquota immigrant if specified as such in the immigrant visa, (4) is of the proper status under the quota specified in the immigrant visa, and (5) is otherwise admissible under this Act.
The respondent is within the class of aliens to whom relief under section 211 (c) may be granted as he is within the category described by section 211 (a) (4), inasmuch as he was not of the proper status under the quota specified in the immigrant visa, his status as the minor son of a legal resident alien having been aborted prior to issuance of the immigrant visa, by the death of his father.
In determining whether the discretion contained in section 211 (c) may be exercised in respondent's behalf, the question remains whether the provisions of subsection (d) of section 211 proscribe such relief. Subsection (d) provides, in pertinent part, as follows:
No quota immigrant within clause (2) or (3) of subsection (a) shall be admitted under subsection (c) if the entire number of immigrant visas which may be issued to quota immigrants under the same quota for the fiscal year, or the next fiscal year, has already been issued.
Subsection (d) is inapplicable to the respondent, as he falls within the class specified in section 211 (a) (4), and not within clause (2) or (3) of section 211 (a). The alien has already been charged under the applicable quota to the remaining 20 per centum of the quota for the quota area pursuant to the provisions of section 203 (a) (3). We, therefore, conclude that the respondent is within the classes of persons who may be granted relief pursuant to section 211 (c).
The special inquiry officer denied the respondent's application for relief under section 211 (c) "since it is believed that it is beyond the scope of the authority of the special inquiry officer in expulsion proceedings to invoke the benefits of such section 211 (c) in behalf of an alien."
Proper determination of the appeal in the matter necessarily includes decision as to whether the special inquiry officer ruled correctly on his authority to act upon an application for relief under section 211 (c). Regulations governing the conduct of deportation proceedings and the authority of special inquiry officers in such proceedings are contained in Part 242 of Title 8, Code of Federal Regulations. Section 8 C.F.R. 242.61 applies to the preparation and entry of decision of a special inquiry officer. Paragraph (c) of that section provides in pertinent part:
The order of the special inquiry officer shall be * * * that such other action be taken in the proceedings as may be required for the appropriate disposition of the case.
Under the above-quoted regulation, a proper order in the case should have included a ruling upon the respondent's request for relief under section 211 (c).
The special inquiry officer specifically found in the instant case that there was no fraud on the part of the respondent in obtaining the immigrant visa with which he entered the United States. The respondent stated during the hearing that he did not know at the time of entry or at time of obtaining his immigrant visa that because of the death of his father, the visa petition was automatically revoked. He stated that his first knowledge that he was not entitled to enter as the minor son of a legal resident was brought to him when his brother N---- attempted to enter the United States at a later date, and was returned to Italy because of the death of his father prior to the issuance to him of an immigrant visa. It is, therefore, concluded that the respondent's inadmissibility was not known to and could not have been ascertained by the exercise of reasonable diligence by him prior to departure from the last port outside of the United States. In view of all the facts and circumstances recited above, it is concluded that the discretion contained in section 211 (c) should be exercised in behalf of the respondent, nunc pro tunc the date of his entry. It will be so ordered.
Order: It is ordered that the appeal be, and the same is hereby sustained.
It is further ordered that pursuant to the discretion contained in section 211 (c) of the Immigration and Nationality Act, the proceedings be terminated and the alien be considered as having been lawfully admitted to the United States for permanent residence at New York, New York, on September 24, 1953, notwithstanding his inadmissibility at that time as an alien who was not of the proper status under the quota specified in the immigrant visa.