A-6323194.
Decided by Board February 15, 1954. Approved by Attorney General July 23, 1954.
Permission to reapply — Section 212 (a) (17) of Immigration and Nationality Act — May be granted nunc pro tunc.
Permission to reapply for admission after arrest and deportation pursuant to section 212 (a) (17) of the Immigration and Nationality Act may be granted nunc pro tunc in specialized situations, such as to remove a ground of inadmissibility caused by inadvertent failure to obtain such permission in advance.
BEFORE THE BOARD
(February 15, 1954)
Discussion: This case is before us on motion of the Assistant Commissioner dated September 21, 1953, for reconsideration of our order of September 15, 1953, granting the alien permission to reapply for admission after deportation nunc pro tunc.
Appellant, a 31-year-old native and citizen of Mexico, applied for admission to the United States for permanent residence on February 10, 1953, at El Paso, Tex. At that time he was in possession of a Mexican passport, valid to August 26, 1954, and an immigrant visa issued at the American consulate at Guadalajara, Jalisco, Mexico, on January 12, 1953, and valid for 4 months. Appellant requested permission to enter in order to join his United States citizen wife in San Juan Bautista, Calif. Appellant stated that he wished to live with and support his wife and year old child. According to the record, appellant was previously deported from Calexico, Calif., on August 2, 1946, and from San Ysidro, Calif., on October 10, 1947. He was permitted to depart voluntarily on January 6, 1948, August 23, 1949, and November 15, 1952. Appellant has admittedly not received permission to reapply for admission to the United States since his last deportation in 1947.
On March 4, 1953, the special inquiry officer excluded appellant under section 212 (a) (17) of the act of 1952 as an alien who had not received permission to reapply for admission after deportation. On September 15, 1953, this Board concluded that appellant was clearly excludable on this ground, but determined that the alien should be granted permission to reapply for admission nunc pro tunc. On that occasion the Board stated:
The appellant testified that when he applied for his immigration visa, he was not questioned concerning whether he had been deported but had presented to the Consul a letter he had received from the Service granting him permission to depart voluntarily in 1952. The appellant, when questioned by the primary inspector, appears to have voluntarily revealed the fact that he had been previously deported. Other than the ground of inadmissibility arising out of his failure to be in possession of permission to reapply, he appears to be admissible to the United States. It appears the failure to obtain permission to reapply was the result of inadvertence and failure to disclose the deportation was not fraudulent. Upon full consideration of all the circumstances in the case, in order to enable appellant to rejoin his wife and child, we will direct the nunc pro tunc grant of permission to reapply for admission after arrest and deportation and thus remove the ground of inadmissibility.
The main question posed by the present motion is the propriety of the Board's grant of permission to reapply nunc pro tunc in the instant case. Section 212 (a) (17) of the act of 1952 provides in the following way for exclusion of aliens in certain classes as ineligible to receive visas or excludable upon application for admission:
Aliens who have been arrested and deported, * * * unless prior to their embarkation or reembarkation at a place outside the United States or their attempt to be admitted from foreign contiguous territory the Attorney General has consented to their applying or reapplying for admission.
The Board's jurisdiction to determine the validity of grounds of exclusion set out by special inquiry officers is found in 8 C.F.R. 6.1 (b) (1) and (d). 8 C.F.R. 236.13 (b) gives the Board prospective power to grant permission to reapply for admission within one year after deportation. Since the Board's power and inclination to grant an alien permission to reapply nunc pro tunc has long been the administrative practice, this latter provision definitely does not negative the Board's right to grant permission to reapply nunc pro tunc ( Matter of P----, 56173/223, B.I.A., July 7, 1945; Matter of J---- S----, 56172/426, B.I.A., 1945; Matter of D----, 56172/426, B.I.A., July 12, 1945; Matter of Le B----, A-6014303, B.I.A., July 12, 1945; Matter of D----, A-9659848, B.I.A., May 6, 1946; Matter of B----, A-3089161, B.I.A., Jan. 5, 1948; Matter of B----, A-3456837, B.I.A., April 29, 1949; Matter of B----, 55823/840, B.I.A., May 26, 1949; Matter of A----, A-5529505, B.I.A., July 18, 1951; Matter of N----, A-8015669, B.I.A., July 2, 1951; Matter of F----, A-9502981, B.I.A., Sept. 30, 1952; Matter of D----, A-6722351, B.I.A., Sept. 25, 1952; Matter of A---- Z----, A-7361349, B.I.A., Oct. 14, 1952; Matter of E----, A-7842257, B.I.A., May 1, 1953; Matter of C---- M----, T-2742033, B.I.A., Sept. 18, 1953. Cf., Matter of L----, 56019/808, 1 IN Dec. 1, 6 (Atty. Gen., 1940)).
While these decisions occurred under the statutory predecessor of section 212 (a) (17), section 1 (a) of the act of March 4, 1929, the provisions of section 1 (a) were substantially the same as the present statute.
In addition, it is a basic concept of the Board's appellate jurisdiction that it must do complete justice for the alien in a given case and, therefore, must take any action necessary to dispose of the particular case. For these reasons, we will affirm our prior order, granting the alien permission to reapply for admission nunc pro tunc.
The other issue mentioned by the Assistant Commissioner relates to appellant's possible excludability under section 212 (a) (19) of the act of 1952. Although this basis of inadmissibility was not posed by the special inquiry officer, it was disposed of indirectly by the Board in its order of September 15, 1953. (See above-quoted excerpt.)
Section 212 (a) provides as follows:
Except as otherwise provided in this act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
(19) Any alien who * * * seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact.
Since the alien's failure to disclose his past deportation to the consular officer occurred through ignorance or inadvertence, appellant did not intentionally conceal these facts. Hence, any possible exclusion under section 212 (a) (19) is unfounded ( Matter of G----, 1403-17906, Int. Dec. No. 611 (B.I.A., April 9, 1953); Matter of G----, unreported, A-2510149 (B.I.A., Dec. 23, 1952); Matter of A---- V----, unreported, A-6899936 (B.I.A., July 7, 1953)).
It is noted in passing that the Assistant Commissioner has cited Matter of C----, A-4852428, 3 IN Dec. 662 (B.I.A., 1949), in support of the contrary view. However, we do not feel that this decision is controlling in the instant situation. Therefore, for the foregoing reasons, we will affirm our prior conclusion and deny the present motion.
Order: It is hereby ordered that the motion be denied.
Prior to the enactment of the Immigration and Nationality Act of 1952 it had long been the administrative practice to grant an alien, previously deported, permission to reapply for admission nunc pro tunc in a few well-defined instances. The wording of section 212 (a) (17) of the act of 1952 does not differ from section 181 of the prior law. I, therefore, find no reason to reverse the administrative practice that has grown up in these specialized situations.
The decision and order of the Board of Immigration Appeals dated February 15, 1954, are hereby approved.