LIM

13 I. & N. Dec. 169

• Court: Board of Immigration Appeals
• Decided: July 1, 1969
• Docket: 1947
• Status: Published

Opinion

Interim Decision #1947

MATTER OF Lim

In Deportation Proceedings A-11422036 Decided by Bowrd March 13, 1969 Respondent, who innocently entered as a nonquots: immigrant without knowl- edge that her petitioning husband's representation to be a U.S. citizen was fraudulent, comes within the purview of section 241 (f) of the Immigration and Nationality Act, as amended, in the light of In re Yuen Lan Hon, 289 F. Supp. 204 (S.D. N.Y., 1968), holding that an innocent falsehood constitutes a "misrepresentation" within the meaning of the statute. [Mat- ter of Lint, 12 L We N. Dec. 671, superseded.] CHARGE: Order: Act of 1962—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)1--Excluda- ble at entry—not nonquota immigrant as specified in visa—section 211(a) (3). ON BEHALF or SERVICE: Sam I. Feldman Trial Attorney (Brief filed)

This case is before us on motion of the Immigration and Natu- ralization Service to reconsider and withdraw our prior orders and terminate these proceedings in light of the intervening deci- sion in In re Yuen Lan Horn., 289 F. Supp. 204 (S.D. N.Y., 1968). The motion will be granted and the proceedings terminated. The facts and pertinent legal principles were discussed in our prior orders, now reported in Matter of Lint, 12 I. & N. Dec. 671, and need not be repeated at length. The question is whether the respondent, who innocently achieved nonquota status on her hus- band's fradulent representation that he was a United States citi- zen, is saved from deportation by section 241(f) of the Immigra- tion and Nationality Act. In our prior decisions, we concluded that, anomalous as it might seem, the bounty of section 241(f) extended only to those guilty of fraud, and not to the innocent. In the Ham case, supra, the same issue was presented in a nat- uralization setting. The district court emphatically rejected our 169 Interim Decision #1947 reading of the statute and concluded that section 241 (f) applies to such a situation. The court held that a liberal construction was warranted by the underlying congressional intent to unite fami- lies ; and that, in any event, an innocent falsehood literally consti- tutes a "misrepresentation" within the meaning of the statute. The Government did not appeal. The fact that a lower federal court has rejected a legal conclu- sion of this Board does not of itself require us to recede from that conclusion. The Service's jurisdiction is nationwide and we hear appeals from Service decisions in all parts of the country. The contrary ruling of a reviewing court in one district is not necessarily dispositive of the issue; a conflicting view may be ex- pressed by a court in another jurisdiction. See, e.g., Errieo v. INS, 349 F2d 541 (9 Cir., 1965) and Scott v. INS, 350 F.2d 894 (2 Cir., 1965) . Similarly, the Government's failure to appeal from a lower court's adverse decision does not of itself indicate acquiescence. The determination not to appeal may be based on other considera- tions, such as the inadequacy of the record as a vehicle for appeal or factors outside the record which render an appeal undesirable. In the Horn case, however, it is clear from the Department's file that the decision not to appeal was based on the conclusion that the district court's reading of the statute is correct. We will, therefore, recede from the position we had heretofore taken in the instant case. Accordingly, we will grant the Service's motion, withdraw our prior orders, and sustain the order of the special inquiry officer terminating the proceedings. ORDER: It is ordered that the prior orders of the Board dated March 7, 1968 and December 13, 1967, respectively, and published as Interim Decision No. 1847 (now 12 I. & N. Dec. 671), be and they are hereby withdrawn. It is further ordered that the decision of the special inquiry 'of- ficer dated September 27, 1967, terminating the proceedings, be and it is hereby sustained.