ESTRADA-MORENA

11 I. & N. Dec. 249

• Court: Board of Immigration Appeals
• Decided: July 1, 1965
• Docket: 1487
• Status: Published

Opinion

Interim Deeislon #1487

MATI211 OF EsTRADA-11/10y.ENA,

:131 Deportation ProCeedingi

• 'A-10551015 A-10551431a

Dookleelby ifocird June 11, 1966 The special inquiry Gower nag authority-in deportation proceedings to grant A. mow pro tone waiver of the passihrt requirement under section. 211(e), 7.m, migration and Nationality Act, Onsium• • Order: ACV of 1852—Section 241(6)(1) (8 17.8.d. 1251(a) (1)]—Excludable- •• as immigrant not in possession of valid unexpired, passport (ad to each respondent) -;: The respondents; a sister and brother, 18 and 11 years of age re-, spectivelYiere natives and citizens of Mexico. They haiebeen found. deportable se aliens who .were excludable at the time of their entry as immigrants not in possession of valid unexpired passports and not exempt from the possession thereof by said Act or regulations made thereunder pursuant to section 212(a) (20) of the Immigration and Nationality Act. An order entered by the special inquiry officer , on.April 7, 1965 grants a walver,of the passport requirement, 1111414, pro tune, as of the time of their admission to the 'United S4tes.for, permanent residents at El Paso, Texas, on April 23, 1956. "The order terminated. the proceedings and certified the case to the Board of Immigration Appeals for final decision. The respondents were issued immigration visas in 1956 as a ie.sult of a scheme evolved. by their parents to enter the United States for' permanent residence. The mother of the respondents obtained. birth.' records relating to one Micaela Moreno who was born in Ontario, California. The American Consul•at Afarez, Mexico, issued the re- spondents and their father immigration visas for permanent resi- dence and they were admitted as immigrants at El Paso, Texas On 4-p41•2a,.1956. The Piissport requirement was waived by the consul in accordance with the proitisioos of 22 CFR 42.36.

249 interim 'Decision 4t1487 The evidence establishes that the two respondents were admitted on April 23, 1956, as immigrants upon a. waiver of the passport re- quirement pursuant to 8 OFR 211.2, which waiver was granted to them as a result of the misrepresentation that their mother was a United States citizen when in fact she was not a citizen of the United States. The evidence also establishes that the respondents were ex- cludable on April 23, 1956, as aliens who were immigrants not in possession of a valid unexpired passport or other suitable travel document. We affirm the finding of the special inquiry officer that the respondents are deportable as charged in their respective orders to show cause. The respondents have applied for a waiver, Irmo pro tune, of the passport requirement (Exhs. 12 and 13). • Section 211(e) of the im- migration and Nationality Act requires that every immigrant must present a valid unexpired passport if such document is required. under thi%-regulations issued by the Attorney 'General. These regu- lations are found in 8 CFR 211.2. The regulation provides among other things that the district director in charge of the port of entry may grant a passport waiver where there is good. cause for failure to present the required documents. The application for a waiver may be presented. to the special inquiry officer during an exclusion pro- ceeding in the event the district director should refuse to grant a waiver .of the passport requirement (8 CFR 235.7). Accordingly under 8 CFR 235.7 the special inquiry officer does have authority to • consider an application for a waiver of the passport requirement where such application is made during the course of an. exclusion hearing. - The special inquiry officer is of the opinion that since a deporta- tion charge under section 241(a) (1) of the Act is in effect a 'delayed exclusion proceeding and reaches all those who manage to enter the United States in violation of the excluding provisions of the law he may entertain and consider an application for a waiver of the pass- port requirement, nuns pro tune, with reference to date when the alien was admitted to the United States as an. immigrant and at -.which time he was not in possession of the required passport. The special inquiry officer relies upon 8 CFR 242.17(d),1 for the author- ity to grant said waiver. We agree with the special inquiry officer that he has authority to grant the relief requested by the respondents. CFR 242.17(d) reads as follows: "Nothing contained herein is intended to foreclose the respondent from applying for any benefit or privilege which he believes himself eligible to receive in proceedings under this part."

250 Interim Decision #148T The trial attorney is of the opinion that _the special inquiry officer does not have authority to grant the waiver provided by section. 211(e), none pro tuna The trial attorney argues that since the re- spondents did not have the relationship to a United States citizen. which would exempt them from presenting a passport this deficiency cannot be cured by ii/UTIV pro how action. The trial attorney main- tains that a Rune pro taw order should correct the record to state• the facts as they existed at the time of the respondents' entry for permanent residence in 1956. It is argued that the respondents are unable to avail themselves of the benefits under the law which existed at the time of their entry because they were excludable under the' provisions of section 212(a) (15) as aliens likely to became a public charge. We find no basis for the exceptions raised by the trial attorney. There is no evidence that the respondents were ineligible for non- quota immigration visas at the time of their entry in 1956. Con- . cernigthaloferit'n3•haeywouldv been inadmissible as aliens likely to become a public charge we note that they have resided in the United States for nine years and have not become public charges. 'Under 8 CFR 211.2(g) the burden is upon. the respondents to establish that there is "good cause for fail- ure to present the required document." Unfortunately the respond- ents were not children of a United States citizen but this misrepre- sentation on the part of their parents when they applied for the re- spondents' nonquota immigration visas should. not inure to the detri- ment of the respondents themselves. Under the regulations which existed at that time 2 the consul did have the authority to waive the passport requirment for a citizen of Mexico. We conclude that the respondents have piesented good cause for failure to have obtained the required Mexican passports and will affirm the grant of the waivers of the passport requirement by the: special inquiry officer, The regulation at that time read as follows: "42.38 . . . (a) except as provided in paragraph (b) of this section, every alien applying for an immigrant visa shall present to the consular officer a Passport • • • (b) . . . an immigrant within any of the following categories shall not be required to present a passport in applying for an immigrant visa: . . . (5) an immigrant who is the parent, spouse or unmarried son or daughter under twenty one year's of age, of a 'United States citizen." -

Following a requirement by Mexico that her antimatter have a passport when departing from that country the regulation was amended in 1958 bg, adding the following language to clause (5) : "unless such immigrant is applying for a visa in the country of which he is a national and the possession of a passport is required for departure from such country."

251 Interim Decision #1487

Rune pro tune. The order terminating the proceedings will be af- firmed (Cf. Matter of G—, 6 I. & N. Dec. 9, 14.) ORDER: It is directed that the order entered by the special in- quitr•officer on April 7, 1965, granting the respondents a waiver of the passport requirement viuno pro tune as of t14+ time of their ad- mission at El Paso, Texas, on April 23, 1956 as nouquota immigrants and terminating this proceeding be and the same is hereby affirmed..

252 •