On Petition for Review of an Order of the Board of Immigration Appeals.
Van Dusen and Weis, Circuit Judges and Stern, District Judge. Stern, District Judge, concurring.
A variation on the problem of prosecutorial discretion underlies this appeal from a deportation order. The Immigration and Naturalization Service filed two charges against an alien, each based on the same misrepresentation. On the more serious of the charges, a statutory forgiveness provision may be available but the Service refused to consider it, maintaining that the relief was not applicable to the other charge, a lesser included offense. We conclude that the Immigration Service was led into error by an unduly restrictive reading of Reid v. INS, 420 U.S. 619, 95 S. Ct. 1164, 43 L. Ed. 2d 501 (1975), and, accordingly, we vacate and remand.
On April 11, 1972, the Service preliminarily approved petitioner Persaud's application for permanent resident alien status based on his marriage to an American citizen. However, the approval was conditioned upon his re-entry to the country after obtaining a visa from the United States Consulate in Toronto, Canada. Petitioner's wife died in November, 1972, and some months later he went to Toronto in order to obtain the visa. He submitted to a full alien entry inspection, supplied all of the requested documentation, but did not reveal that his wife had died. In April, 1973, Persaud received his visa and re-entered the United States.
In June, 1974, INS ordered the petitioner to appear at a deportation hearing. The order to show cause alleged he had entered the United States as an immediate relative of a United States citizen, but that he had failed to disclose at the time he obtained the visa that his wife was deceased. He was charged with being deportable under Section 241(a)(1) of the Immigration and Nationality Act because at the time of his entry he was excludable (1) for having procured a visa, or other documentation, by fraud or by willfully misrepresenting a material fact in violation of Section 212(a)(19) of the Act, and (2) for not being in possession of a valid unexpired immigrant visa, re-entry permit, border crossing identification card, or other valid entry document in violation of § 212(a)(20) of the Act. In August, 1974, the immigration judge found that petitioner was deportable on the basis of the charges set forth in the order to show cause, and granted the privilege of voluntary departure. Petitioner took no appeal from that determination.
On April 11, 1975, Persaud was notified that arrangements had been made for his departure to Trinidad. Eleven days later he again married an American citizen and thereafter applied to re-open his deportation proceeding. Persaud contended that his second marriage made him eligible for relief under § 241(f), but the immigration judge denied the motion. The Board of Immigration Appeals affirmed, holding that because Persaud was excludable on entry under § 212(a)(20),*fn1 he was not entitled to benefit under § 241(f).
Congress enacted § 241(f) of the Immigration and Nationality Act, 8 U.S.C. § 1251(f), as a humanitarian measure to ease the plight of aliens who had entered the country by fraud but who had close family ties with American citizens or permanent resident aliens. This provision was intended to keep families united by relaxing some of the rigorous provisions of existing law. Once the alien qualifies under the provisions of § 241(f), he will not be deported. 1 C. Gordon and H. Rosenfield, Immigration Law and Procedure § 4.7(c) (1975).
The Supreme Court has considered the provisions of the statute twice within the past decade, INS v. Errico, 385 U.S. 214, 17 L. Ed. 2d 318, 87 S. Ct. 473 (1966), and Reid v. INS, supra. In Errico, the Court read the statute broadly, but in Reid, narrowed its scope considerably.
An analysis of § 241(f) is helpful for an understanding of its operation. It reads in pertinent part:
"(f) The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen . . . ."
Thus, in order for the statute to apply, the alien must have been:
1. excludable at the time of entry because he sought by fraud or ...