BILBAO-BASTIDA

11 I. & N. Dec. 615

• Court: Board of Immigration Appeals
• Decided: July 1, 1966
• Docket: 1586
• Status: Published

Opinion

Interim Decision #1586

MAITER or BUZ40-PASELDA In Deportation Proceedings . A-11343968 Decided by Board May 18, 1966 Since a permanent resident alien who, while ,visiting in Mexico in July 1961 made a two-week visit to Cuba reentering the United States through Mexico upon presentation only of his alien registration receipt card, wan excludable under section 212(a) (20), Immigration and Nationality Act, at the time of such reentry because under the regulation then in effect (8 CFR. 2111(b)(1)) an alien registration receipt card was not a valid document for reentry when presented by one who had been in Cuba, he is deportable under section 241(a) (1) of the Act. 0311A11010: Order: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)3—Immigrant .. • needing valid. entry document and 'not haying one (seetioll 212(a) (20) )-

This is an appeal from the order of the special inquiry -officer finding respondent deportable upon the ground stated -above and granting him voluntary departure. The appeal will be dismissed. The nets and law have been discussed in detail, by the special inquiry officer. Briefly,' respondent, a 31-yeEir-nld married male alien, a native and citizen of Spain, was admitted to the United States' for permanent residence in .1959. 'While hi Mexico on a visit in July 1961, he made a two-week visit to Cuba; he came back to Mexico and—from there reentered the United States as a returning resident by showing his alien registration receipt card. The Service contends -the card was not a valid entry document. The special inquiry officer sustained the contention. He found that the ' regulation . (S CFR 811.1(b) (1)), in effect *hen•the respondent entered -the 'United States, provided that an alien registration re- ceipt card was not a..valid a document for reentry when presented by one - who had been in Cuba. He ruled that the respondent had needed a valid immigrant visa- When he •reentered from Mexico and since he had none be. was deportable as charged.

615 -Interim Decision #1586 The respondent refused to testify at the hearing but in a, statement which had been taken from him under bath in connection with his petition for naturalization he said that he had no definite ideas about visiting Cuba when he -went to Mexico on his . vacation, that, in Mexico he met an individual who asked him to go to Cuba to make inquiry about the individual's sister, and that it was for this reason and just out of curiosity that he went; that he did not know, relations between Cuba and the United States had been broken, that he obtained-a passport from the Spanish consul in Mexico and a visa from the Cuban authorities before he left Mexico for Cuba, that he had not applied for permission to visit Cuba in the United States because he did not feel it was necessary since he had "read postcards about Cuba—traveling to Cuba * * * in the Agencies a long time ago" (p. 8, Ex. 4). In counsel's brief and at oral argu- ment;. however, it was conceded that -respondent visited 'Cuba and reentered on his alien registration receipt card. Counsel contends that since no statute makes an alien registration receipt card invalid for reentr-y merely because the holder is coming from Cuba, the regulation creating such a bar administratively is without authority and that a deportation charge which can be sustained only by reference to the regulation is not valid. The ,

simple, answer is that the regulation is binding upon this Board (cf. Swissair v. Kennedy, 327 F.2d 860 (D.C. Cir., 1963) ; Holz v. Da Guereio, 259 F.94 84 (9th Cir., 1958)). • • .Counsel contends that respondent is not deportable under section 212(a) (20) of the Immigration and Nationality Act which provides for the exclusioh of an immigrant "who at -the time of application for admission" was not in possession of the appropriate entry docu- ment. Counsel contending that the term "application for admission" contemplates. the admission of an alien applying for the first UM, concludes it does not apply to an alien who returns to the United States from a visit abroad. Section 101(a) (4) of the Act defines the term "application -for 'arlinigAion" as having "reference to the appli- cation for admission into the United States and not to the appli- cation for the issuance of an immigrant or nonimmigrant visa"; the term is not limited in any other manner and we know 'of no holding that prevents its application to a returning resident. Under the law respondent was required to submit a valid immigrant document before' his return to the United States could have been authorized (U. E. ex /lei, Polymerikv.Trudelt, 284 U.S. 279; Hole v. Del Cuerao supra; see Celesta vt United States, 280 F.2d 704, 707 (5th Cir., 1956)). Rosenberg v. Metal, 374 U.S. 449, cited by counsel is not ap- plicable. Neither the section of la jr the issue concerning "entry".

616 Interim Decision 44586

found in Fleuti is before us. In the instant case we have a regula- tion making a resident alien inadmissible if he has visited Cuba and does not have a visa. This regulation is binding upon us and the alien falls within its confines. Moreover, the fact that the respond- ent visited Cube in opposition to the policy reflected in the law would make the Fleuti rule inapplicable (see Matter of Koli.. Int.- Dec. No. 1443; Matter of Corral Fragoao, bit. Dec. No. 1549). -

Counsel contends that there is a lack of .due process in a procedure which results in issuance to respondent of an alien registration iden- tification card which states that he can. depart from the United States and reenter within one year and then makes the card invalid for reentry by a regulation promulgated after the issuance of the card. (The card was issued in 1959.) The alien registration receipt card contains the following pertinent statement: ' This card will be honored in lieu of a visa and passport on condition that the rightful bolder is returning to the United States after a temporary . absence of not more than one year and is not subject to exclusion under any provision of the immigration laws. ,. The regulation regarding Cuba came into effect on January 19. 19131 (26 F.R. 432) and was in effect both at the time of respondent's de- parture to Cuba and his return to the United States. The regula- tion is part of the immigration laws; the regulation requires the ex- clusion of a returning resident who has been in Cuba and who does not have a valid visa. The proviso on the card calls attention to the fact that it would not be valid under all circumstances. ORDER: It is ordered that the appeal be and the same is hereby disMissed.