A-8915030
Decided by Board December 6, 1956
Procedure — Ineligibility for adjustment of status under section 249, Immigration and Nationality Act, should be challenged by rescission proceedings under section 246 of the act and should not be attacked collaterally in deportation proceedings.
Where an alien was not eligible for adjustment of status which she obtained under section 249 of the act and she subsequently entered the United States with a border-crossing card, issued to her pursuant to such adjustment, she will not be found deportable on the charge that she was not in possession of a valid entry document. The proper method of challenging her status is to institute rescission proceedings under section 246 of the act.
CHARGE:
Order To Show Cause: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1)) — Excludable at time of entry — Immigrant — No valid immigrant visa, reentry permit, border-crossing identification card, or other valid entry document.
BEFORE THE BOARD
Discussion: This case comes forward on appeal by the examining officer from a decision of the special inquiry officer dated July 12, 1956, ordering proceedings terminated.
The facts are fully set forth in the lucid and well-reasoned opinion of the special inquiry officer. Briefly, the record relates to a native and citizen of Mexico, a 41-year-old female, who last entered the United States at the port of Laredo, Texas, on June 30, 1955, upon presentation of Form I-151A, which was issued to her on December 8, 1954, pursuant to an application to create a record of admission for permanent residence under section 249 of the Immigration and Nationality Act. At that time she was returning to the United States after a temporary absence of three and one-half months, the Form I-151A being valid for border-crossing purposes less than six months, provided the bearer is not subject to exclusion under any provision of the immigration laws.
The respondent was the rightful person to whom the Form I-151A was issued and the card was apparently valid on its face. However, the respondent admitted that in connection with her application for the creation of a record of lawful admission for permanent residence she did not reveal her absence from the United States during the period between 1935 and 1947, deliberately with knowledge that if she revealed such absence her application for certificate of lawful entry would have been denied. The question presented is whether the charge can be sustained in view of the fact that the respondent at the time of her last entry presented an entry document which was then valid.
As pointed out by the special inquiry officer, the proper procedure in the instant case would have been to rescind the action taken granting an adjustment of status pursuant to section 249 in accordance with the provisions of section 246 (a) of the Immigration and Nationality Act, the pertinent part of which provides as follows:
* * * If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 245 or 249 of this Act or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and cancelling deportation in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this Act to the same extent as if the adjustment of status had not been made.
A similar situation would exist in regard to an adjustment of status under section 244 of the Immigration and Nationality Act for suspension of deportation, in which an administrative rescission procedure would likewise be necessary in accordance with section 246 (a) of the Immigration and Nationality Act. We conclude that the special inquiry officer was correct in terminating proceedings.
Order: It is ordered that the appeal from the order of the special inquiry officer dated July 12, 1956, terminating proceedings be and the same is hereby dismissed.