A-7451818
Decided by Board May 2, 1958
Act of September 11, 1957 — Termination of deportation proceedings under first sentence, section 7 — Alien deportable under Act of May 14, 1937, for failure to fulfill marital agreement.
(1) Deportation proceedings are terminated pursuant to the authority contained in the first sentence in section 7, Act of September 11, 1957, in the case of an alien previously found deportable under the Act of May 14, 1937, where the alien was otherwise admissible at the time of entry except for the fraud imputed to her for her failure subsequent to entry to fulfill marital agreement.
(2) The alien is found to have been "otherwise admissible" at the time of entry, since a valid marriage relationship existed at the time of the issuance of the visa and her entry into the United States.
CHARGE:
Warrant: Act of May 14, 1937 — Visa obtained by fraud — Failure to fulfill marital agreement.
BEFORE THE BOARD
Discussion: The special inquiry officer terminated proceedings and certified the case to this Board.
The facts have been fully stated in previous orders. Briefly, respondent, a 45-year-old married female, a native and citizen of Greece, entered the United States in 1950 as a nonquota immigrant. Respondent refused to assume the duties of normal marital life unless her husband would meet certain financial conditions which she imposed. She had not stated these conditions to him prior to the marriage. The respondent's husband felt he could not consent to these conditions. The respondent then secured a divorce in 1950. On June 3, 1956, she married her present husband, a citizen of the United States. Counsel asked that respondent be declared a lawful resident of the United States under the authority of the first sentence of section 7 of Public Law 85-316 (Act of September 11, 1957), which, in pertinent part, provides for the termination of deportation proceedings against certain aliens who had sought to procure documentation or entry into the United States by fraud or misrepresentation. To come within this provision, it is necessary that the alien had been otherwise admissible at the time of entry other than by reason of the existence of the fraud or misrepresentation.
The first issue is whether section 7 of Public Law 85-316 is applicable to the case of the respondent whose deportation is sought under the Act of May 14, 1937. Section 7 appears to provide for termination of proceedings brought under the provisions of section 241 of the Immigration and Nationality Act. However, we believe that a person whose deportation is sought under the 1937 act may come within the provisions of section 7.
Section 7 of Public Law 85-316 reveals that it is applicable to aliens who entered prior to the Immigration and Nationality Act and whose deportability is based upon laws in existence before the enactment of section 241 of the Immigration and Nationality Act. For example, the section speaks of aliens who entered the United States in 1945. At that time section 241 of the Immigration and Nationality Act was not in existence. Obviously, therefore, Congress did not intend to exclude from the provisions of section 7 those aliens who were deportable under laws in effect prior to the Immigration and Nationality Act (or who might become deportable under laws subsequently passed). It was the intent of Congress to eliminate from consideration the charge that a visa had been obtained by fraud and the charge that a visa had been ascribed to the wrong quota. The sections of the law under which the charges were laid are not important. We, therefore, rule that it is immaterial that the respondent's deportation is not sought under section 241 of the Immigration and Nationality Act.
Another question is presented in that section 7 appears to relate to aliens whose deportation is sought upon the ground that they were excludable at the time of entry. The respondent was not excludable at the time of entry. She was made deportable under section 3 of the Act of May 14, 1937, which provided that if an alien failed to fulfill his marital agreement after entry, he should be considered as if he had obtained a visa by fraud and as one who at the time of entry was not entitled to admission. Proceedings to deport such an alien were deportation proceedings, not exclusion proceedings. Even if section 7 related only to aliens who were excludable at time of entry, the direction of the 1937 law is that an alien such as the respondent must be regarded as if she had been excludable at time of entry and she would fall within the confines of the section. Moreover, as we have pointed out in the preceding paragraph, it is our belief that section 7 does not literally require proceedings to be under section 241 of the Immigration and Nationality Act. It was the intent of Congress to eliminate from consideration the charge that a visa had been obtained by fraud. The section of the law under which the charge is laid is immaterial.
We have now reached the point where we have agreed that the respondent is one who is deportable as having obtained a visa by fraud and that the provisions of section 7 apply to her. Section 7 cannot be used to terminate proceedings if an alien was inadmissible at the time of entry on grounds other than that she had obtained a visa by fraud. The question now is whether the respondent was inadmissible on grounds other than that she had obtained a visa by fraud. The special inquiry officer concluded that the respondent was admissible except for the fact that fraud had been committed. We agree with him. The respondent's marriage was not invalid in its inception. At the time she was issued a visa and at the time she entered, a valid marriage existed. She was entitled to the issuance of the visa and she was entitled to entry. Subsequent to her entry, she failed to fulfill the conditions of her marriage. This did not invalidate the marriage ab initio. An annulment of the marriage was not obtained. A court granted a divorce, thereby finding that a valid marriage relationship existed. We agree, therefore, with the special inquiry officer that the respondent was otherwise admissible at the time of her entry and that proceedings were validly terminated under the provisions of section 7. No change will be made in the order of the special inquiry officer.
Order: It is ordered that no change be made in the order of the special inquiry officer.