BONILLA

Interim Decision #2048

MATTER OF BONILLA

In Deportation Proceedings A-17151187 A-17151408-10 Decided by Board May 13, 1970 Respondent, who entered the United States upon representations as the un- married child of a permanent resident father when in fact his father was not a permanent resident, and who, now married to a permanent resident, possesses the requisite family relationship, comes within the purview of section 241 (f) of the Immigration and Nationality Act, as amended, since he was "otherwise admissible" at entry notwithstanding the lack of a labor certification under section 212(a) (14) of the Act (Castillo-Godcry v. Rosenberg, 415 F.2d 1266 (C.A. 9, 1969)). [Muslemi v. I. & N.S., 408 F.2d 1196 (C.A. 9, 1969), and Matter of Tsaconas, 12 I. & N. Dec. 332, distinguished.] CHARGE:

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)]—Excluda- ble at time of entry as alien not of status specified in immigrant visa under section 203(a). (All al- iens) ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE: Hideki Nakamura, Esquire Donald B. Anderson 63 Merchant Street Acting Trial Attorney Honolulu, Hawaii 96813 (Brief filed) (Brief filed)

The respondents, four brothers, are natives and citizens of the Republic of the Philippines. Three of the brothers have been found deportable under the provisions of section 241 (a) (1) of the Immigration and Nationality Act in that, at the time of thier entry as immigrants at the port of Honolulu, Hawaii during Feb- ruary of 1966, they were excludable as aliens who were not of the status specified in their immigrant visas, inasmuch as they were not the unmarried sons of an alien lawfully admitted for perma- nent residence (section 203 (a) (2), Immigration and Nationality Act). An order entered by the special inquiry officer on April 8,

Interim Decision #2048

1969 granted those three brothers the privilege of voluntary de- parture, and provided for their deportation in the event they fail to depart when and as required. There was no appeal to this Board from the order entered against those respondents. The special inquiry officer in his order of April 8, 1969 termi- nated the deportation proceedings in the case of the fourth brother, Francio B. Bonilla (A-17151408), pursuant to the provi- ;ions of section 291 (f) of the Immigration and Nationality Act. The Service appeals from this order. The special inquiry officer in a supplemental decision certified he case to this Board for final decision. The special inquiry ,fficer states his reasons for certification as follows: .. . the very recent decision of the Ninth Circuit Court of Appeals on larch 19, 1969, in Muslemi v. INS, 908 F.2d 1196, in effect overruled the ecision by the Board of Immigration Appeals, in the Matter of Tsaconis, nt. Dec. 1759 and as it appears further that other decisions by the Board f Immigration Appeals were affected in the same manner, e.g., Matter of 'astillo-Godoy, Int. Dec. 1812; Matter of Becerra, Int. Dec. 1908; and Mat- r Senior, Int. Dec. 1898, I believe that it is advisable that this case be :rtified to the Board of Immigration Appeals insofar as the decision relates the respondent, Francio B. Bonilla. The facts pertinent to the respondent, Francio B. Bonilla, have !en fully set forth in the special inquiry officer's opinion of pril 8, 1969. Briefly, they establish that he as well as his three 'others secured second preference immigration visas from the ,nsul at Manila upon the representation that they were the un- arried sons of Romualdo Bonilla, a permanent resident alien. It is thereafter established that Romualdo Bonilla was not in fact permanent resident alien and deportation proceedings under :tion 241(a) were instituted. The respondent, Francio B. Bon- L, moved for a termination of the deportation proceeding iinst him on the ground that he is eligible for relief under see- n 241(f) of the Act because, after entry, he married a lawful ident alien in the County of Kauai, Hawaii on December 20, ;8 and that a visa petition executed by his wife has been ap- Ted by the District Director at Honolulu on April 8, 1969 (Ex.

Ve affirm the conclusion of the special inquiry officer that the pondent, Francio B. Bonilla, comes within the purview of sec- 241 (f) of the Act. The Supreme Court has held that section (f) "waives any deportation charge that results directly from misrepresentation regardless of the section of the statute er which the [deportation] charge was brought, provided that alien was 'otherwise admissible' at the time of entry." The

Interim Decision #2048 Court further held that quota restrictions could not preclude an immigrant from being considered "otherwise admissible," INS N. Errico, 385 U.S. 214, 217, 17 L. Ed. 2d 318 (1966). The trial attorney argues that the respondent, Francio B. Bon- illa, is not saved from deportation by the provisions of section 241(f) because he was not "otherwise admissible" at the time of his entry on February 25, 1966, since at that time he was re- quired to have a labor certification under section 212(a) (14) which he did not have. The trial attorney has relied on our deci- sions in Matter of Castillo-Godoy, 12 1. & N. Dec. 520 (BIA, 1967), and Matter of Becerra, Interim Decision No. 1908 (BIA, 1968). 1 However, since the trial attorney took that position, this Board's holding in the precedent cases cited has been rejected by the Court of Appeals for the Ninth Circuit, Castillo-Godoy v. Ro- senberg, 415 F.2d 1266 (9 Cir., 1969) ; Becerra Monje v. INS, 418 F.2d 108 (9 Cir., 1969) The court in Castillo-Goday held essentially that a labor certification at the time of entry was a quantitative requirement which, like the quota limitation, was intended to be waived by the application of section 241 (f) to aliens who entered the United States on the basis of fradulent misrepresentations, if they have the required familial relation- ship. The respondent, Francio B. Bonilla, meets this test. We next turn to a consideration of the special inquiry officer's statement in his supplementary opinion that the very recent deci- sion of the Ninth Circuit in the case of Muslemi v. INS, 408 F.2d 1196 (9 Cir., 1969), has "in effect" overruled our decision in Mat- ter of Tsaconas, 12 I. & N. Dec. 332 (BIA, 1967). Unlike the re- spondent in this case, both Muslemi and Tsaconas entered as non- immigrants. The court in Muslemi recognized this distinction and said, "We need not decide in general whether [section 241 (1)] save aliens who have fraudulently entered the country on nonim- migrant visas and who have the requisite family ties from depor- tation on any charge. We need decide only whether petitioner is saved from deportation on the specific charge entered against him in this proceeding," 408 F.2d at page 1199. The court found that the "no immigrant visa" charge laid under section 212(a) (20) re- sulted directly from Muslemi's fraudulent concealment of his in- tention to remain in the United States permanently and that he was accordingly, saved from deportation on the charge entered against him "if he were otherwise admissible for entry as an im- This E ,-)ard in the Castillo-Godcry and Becerra cases took the position that 'liens who entered without the required labor certifications were not "other- • ise admissible" within the meaning of section 241(f).

iterim Decision #2048 igrant at the time of his entry according to the Immigration id Nationality Act, 8 U.S.C. 1182." The Muslemi case was re- anded by the court for a determination of whether petitioner as "otherwise admissible" at the time of his entry. That issue is )w before us for determination in that case. In our view, the Ninth Circuit's Muslemi decision did not pur- ort to reject the rationale of our decision in Tsaconas. The tter has been sustained on judicial review, Tsaconas v. INS, 97 F.2d 946 (7 Cir., 1968). See also De Vargos v. INS, 409 .2d 335 (5 Cir., 1969). Since there was no appeal by three of the respondents, our rder will be limited to affirming the termination of the deporta- on proceedings in the case of the respondent, Francio B. Bon- la, and dismissing the Service appeal in his case. ORDER: It is ordered that the termination of the deportation roceeding by the special inquiry officer in the case of Francio Bonilla be and the same is hereby affirmed and the appeal by le Service in his case is hereby dismissed.