MILLARD

Interim Decision #1466 •

MAT= OF Mumma)

In Exclusion Proceedings A-30728749

Decided by Board May .14, 1985 The special inquiry officer has authority in exclusion proceedings, in the exer- cise of discretion, to grant waivers of inadmissibility pursuant to sections 212(g) and (h), Immigration and Nationality Act, as amended, to a native and citizen of Mexico who is in possession of an otherwise valid visa and who qualities for such relict [Matter of DeF , 8 L st N. Dec. 68, and Mat- —

ter of Dea , 8 L & N. Dec. 325, distingaished.] —

Examaszta: Act of 1952--Section 212(a) (9) [8 II.S.C. 1182(a) (9)3—Admits having committed crime involving moral turpi- tude, perjury. Act of 1952—Section 212(a) (12) [8 U.S.C. I182(a) (12)3—En- ' gaged in prostitution. Act of 1952—Section 212(a) (19) [8 U.S.C. 1182(a) (19)3—Pro- cured visa or other documentation by willfully misrepresenting a material fzet.

The case comes forward pursuant to certification by the special inquiry officer of his order dated March 19, 1965 ordering that the applicant be granted a waiver under sections 212(g) and 212(h) of the Immigration and Nationality Act of the grounds of her excludability under section. 212(a) (12) as an alien who engaged in prostitution and under section 212(a) (9) as an alien who has ad- mitted having committed a crime involving moral turpitude, to wit, perjury, and under section 212(a) (19) as an alien who has procured a visa or other documentation by fraud or by willfully misrepresent- ing a material fact, and further ordering that the applicant. be admitted to the 'United States as a nonquota immigrant. The record relates to a native and citizen of Mexico, 30 years old, female, married, who arrived at the port of El Paso, Texas on December 7, 1961 in possession of a nonquota immigrant visa issued to the applicant on December 2, 1964 at the American Consulate, Juarez, Mexico.

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• • Interim Decision #1468 The special inquiry officer has set forth the facts in detail. The record establishes-that the applicant practiced prostitution in Juarez, Mexico from May until October 1959 voluntarily ,to support herself and her three young ehildien; that she obtained a. nonimmigrant local border crossing card at Laredo, Texas during the year of 1960 by concealing from the immigration officers that she had only the year before practiced prostitution in Juarez, Mexico, and was aware that she would have been refused . a local border crossing card g" she had revealed such Activity since she had been denied such a document the previous year in El Peso, Texas in October 1959 for the same reason. She also concealed the practice of prostitution when she executed an application. for a nonquota immigrant visa at the American Consulate on Decehiber 2, 1964. Concealment of the practice of prostitution was material to the issuance of the •onquota immigrant. visa and also to the issuance of the - nonimmigrant local ;herder .crossini card. Excludability under section 212(a)•(19) of The Immigration. and Nationality Act: as an alien who has procured - a visa or other documentation by willfully misrepresenting a material fact; -under section.212(a) (9) as an alien who has admitted having committed a crime involving moral turpitude, to wit, perjury 'in con- nection with the oath for the application for an immigrant visa on -December -2, 1964 before the American Consul in Juarez, Mexico.; and under section 212(a) (12) as an Slim who has engaged in pros- 'fitution,. is established by the evidence of record. The applicant executed. an application for a waiver under sections 212(g) and 212(h) of the Immigration and Nationality Act of the aforesaid grounds of her inadmissibility .to the United States. The ''applicant was married on April 9, 1960 to a United States citizen, her first marriage having been terminated by a divorce, decree rendered in Mexico on January 22, 1959. Three children, who are 'the issue- of the•first marriage, are lawful permanent residents of the United States- and two childre n, who are the issue of the -second marriage, are 'citizens of the United States. The evidence establishes :.that -thejexeltsion of the -applicant from _the -United; Stales • would resultin extreme hardship to her United States citizen husband, her two United States Citizen children and her three resident ' ,Alien chil- =dren. The evidence establishes that the applicant has' not practiced prostitution since October 1959 and has completely reha'bili'tated her- self since she met her husband and their present relationship is a happy and stable one, A report of investigation conducted by the Service Contains no derogatory information. There has been no evi- dence that the-presence of the applicant in the United States would be contrary to the national welfare, safety or security of this country.

Interim Decision #1468 . - The evidence establishes that the applicant is eligible for a waiver under sections 212(g) end. 212(h) of the Act. Such a waiver has been granted nano pro tune in deportation proceedingi to cure a ground of inadmissibility existing at the time of entry.' The basis for the certification of the decision of the apecial inquiry officer apparently rests upon the holdings in Matter of DeF—, 8 I: & N. Dec. 88, and Matter of D80—, 8 I. & N. Dec. 325. The former case held that aliens within the United States who are ineligible for preexamination cannot be granted. advance waivers of inadmissibility under sections 5 and 7 of the Act of September 11, 1957 while they remain in the United States and that natives and citizens of contiguous territory to whom preexamination procedures are in- applicable, must depart and apply for 'waivers at the time they make applications to enter the United States from their native country. The latter case involved the issue whether the Board had power to grant discretionary relief under sections .5 and 7. of the Act of September 11, 1957 (P.L. 85-316) to authorize the advance waiver of certain grounds which prevented the issuance of visas and which barred entry into the United. States. The Attorney General held that advance -waivers of inadmissibility under sections 5 and 7 of the Act of September 11, 1957 were not authorized to facilitate future admission of aliens ordered excluded and disposition of waiver requests must - await return to foreign territory and com- pliance with the procedure established by 8 CFR 212.7 (a). 2 here the applicant is actually in possession of a nonquota immi- grant visa, an entrant alien seeking admission to the United States. If the waivers of-sections 212(g) 'and (h) are exercised, no further action is required. Section 286(a) of the Immigration and Nation- ality Act authorizes a special inquiry officer to conduct a hearing and to determine whether an arriving alien who has been detained for further inquiry under section 235 shall be allowed to enter or shall be excluded and .deported. The applicable regulation, 8 CFR 236.1, provides that special inquiry officers shall have the powers and authority conferted upon them by the Act and this chapter, and subject to any specific limitation prescribed by the Act and this chapter, special inquiry officers shall also exercise the discretionary authority conferred. upon the Attorney General by the Act as it is • appropriate and necessary for the disposition of such cases.

'Matter of P , 7 L & N. Dee. 718. —

'Sections 5 and 7 of the Act of September 11, 1957 have been codified into the Immigration and Nationality Act of 1852 of sections 212(g) and 212(h) by the Act of September 20, 1961 (P.1,. 87 301). -

Interim Decision *1468 In the. present case the exercise of discretionary relief pursuant to sections 212(g) and 212(h) - of the Immigration and Nationality Act will effectively eliminate the grounds of inadmissibility and will concurrently render the visa valid." The instant ease differs in its facts from Matter of DeF—, and Matter of DeG—, supra. The former case involved an alien within the United States who was ineligible for preexamination and was required to depart and apply for a waiver at the time of making application,for a -visa. In the latter case there were involved a number of aliens who were physically present in the United States and were required to leave to obtain visas so that they might rejoin their families in the -United States and it was held that advance waiver request must await return to foreign territory and compliance with procedure established by 8 CFR 212.7(a). The order of the special inquiry officer will be approved. ORDER: It is ordered-that the order of the special inquiry officer dated March 19, 1965 granting the applicant -waivers under sections. 212(g) and 212(h) of the Immigration and Nationality Act and ordering the applicant admitted. to the United States as a nonquote immigrant be and the same is hereby approved. 'Compare Matter of CI — , 8 I. I N. Dee. M.

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