A-7124521
Decided by the Board August 6, 1953
Permission to return to unrelinquished domicile — Section 212 (c) of the Immigration and Nationality Act — Not to be used when ground of deportability is based upon entry without inspection.
The discretion contained in section 212 (c) of the Immigration and Nationality Act is limited specifically to the grounds of deportability enumerated therein. Deportability under the Immigration Act of 1917, as amended, as in the instant case, or under section 241 (a) (2) of the Immigration and Nationality Act by reason of entry without inspection-by false and misleading statements may not be waived by the exercise of the discretion contained in section 212 (c) of the latter act.
CHARGES:
Warrant: Act of 1917 — Entered without inspection — By false and misleading statements.
Discussion: The special inquiry officer in an order dated May 29, 1953, has ordered that the alien be regarded as having been readmitted to the United States for permanent residence at Nogales, Arizona, on August 31, 1952, conditioned upon a waiver of documents pursuant to the discretion contained in section 212 (c) of the Immigration and Nationality Act. The decision has been certified to this Board for review and final order.
The record relates to a native and citizen of Spain, 22 years old, female, who last entered the United States at the port of Nogales, Ariz., on August 31, 1952, after an absence of approximately half a day in Mexico. In a sworn statement made before an officer of the Immigration Service on September 3, 1952, the respondent testified that she gained admission by falsely representing herself to be a citizen of the United States, thereby entering without the inspection required of an alien. Although the respondent attempted to withdraw this statement at the hearing and sought to minimize the effect thereof, it is believed that the evidence establishes that respondent did effect her admission by falsely representing herself to be a citizen. The charge stated in the warrant of arrest is sustained.
The respondent was lawfully admitted for permanent residence at the port of New York on May 16, 1934. She testified that she has resided here continuously since that time except for her brief departure for a few hours to Mexico on August 31, 1952, the date of her last entry. The special inquiry officer has attempted to adjust the respondent's status and to remove the ground of deportability as one who entered by false and misleading statements, thereby entering without inspection in violation of the Immigration Act of 1917 by a nunc pro tunc exercise of the discretion contained in section 212 (c) of the Immigration and Nationality Act conditioned upon a waiver of documents for her last entry.
We are unable to perceive how the remedy proposed by the special inquiry officer eliminates the ground of deportability. The proposal of a waiver of documents appears to be superfluous inasmuch as there was in effect at the time of the respondent's last entry a blanket waiver for lawfully resident aliens returning from a temporary visit of less than 48 hours to Mexico (8 C.F.R. 176.202 (t)).
Section 212 (c) of the Immigration and Nationality Act provides that aliens lawfully admitted for permanent residence who temporarily proceed abroad voluntarily and not under an order of deportation and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted under the discretion of the Attorney General without regard to the provisions of paragraphs (1) through (25) and paragraphs (30) and (31) of subsection (a) of sec. 212. It accordingly appears that the form of discretionary relief embodied in sec. 212 (c) is no longer a discretion which may be used generally but is confined to the grounds of inadmissibility enumerated therein.
The charge contained in the warrant of arrest, to wit: That the respondent entered in violation of the act of February 5, 1917, in that she entered by means of false and misleading statements thereby entering without inspection, is not contained in paragraphs (1) through (25) or paragraphs (30) and (31) of subsection (a) of section 212 of the Immigration and Nationality Act. The "entry without inspection" ground of deportation appears in section 241 (a) (2) of the Immigration and Nationality Act. In view of the specification in section 212 (c) of the particular sections to which this discretion may be directed, we do not believe that a ground not enumerated therein can be the object of this form of discretionary relief. We therefore find that section 212 (c) is inappropriate to waive the ground of deportability set forth in the warrant of arrest, nor is the respondent helped in any way by the documentary waiver for which she would have been eligible if she had regularly presented herself for inspection. We find the ground of deportability still exists and we are therefore unable to terminate these proceedings.
Upon a full consideration of all the circumstances of the case, we shall however permit the respondent an opportunity to depart voluntarily without the entry of an order of deportation. Order: It is ordered that the outstanding order of the special inquiry officer dated May 29, 1953, be withdrawn and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of her choice, within such period of time, in any event not less than 90 days, and under such conditions as the officer in charge of the district deems appropriate.