Matter of D-C-

Cite as 7 I&N Dec. 525

MATTER OF D - C

In SECTION 211 (c) and (d) Proceedings A-10424265 A-10424266

Decided by Regional Commissioner July 26 , 1957 Approved by Central Office August 19, 1957

Waiver-Section 211 (c) and (d), Immigration and Nationality Act-May be granted by Regional Commissioner without institution of deportation or exclusion proceedings. The Regional Commissioner has authority, pursuant to 8 CFR 9.5a ( zz) , to grant relief under section 211 (c) and (d) of the act without the institution of deportation or exclusion proceedings.

BEFORE THE REGIONAL COMMISSIONER (July 26, 1957)

Discussion: These cases have been referred to this office from the Chicago office for consideration of such amendment of the records of admission of applicants as may be permissible under the Immigration and NationalityAct. Applicants, R — D — C— and F— D--C , were born in Italy on December 9, 1909, and December 6, 1912, respectively. Their parents were F S and G— B-, natives of Italy. On December 16, 1921, their mother was married in the United States toAV- who had been naturalized as a United States citizen on March 31, 1919. The applicants were admitted to the United States at New York, New York, on August 19, 1926, at which time they were in possession of nonquota immigration visas Nos. 175 and 174, respectively, issued at theAmerican Consulate at Palermo, Italy. They had been classified as nonquota immigrants under subsection (a) of section 4 of the Immigration Act of 1924 as the minor daughters of their American citizen mother. Presumably, the American consul who issued the visas was of the opinion that a valid marriage had taken place between applicants' mother and their stepfather, AV , so that their mother had derived United States citizenship pursuant to section 4 of the Act of March 2, 1907, by her marriage prior to September 22, 1922, to an American citizen. Applicants submitted applications on Forms N-600 for the purpose

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of obtaining certificates of citizenship based on their derivation of United States citizenship through their mother. However, it was concluded by the District Director at Chicago that the applicants had failed to produce adequate evidence to show that there had been a termination of the marriage relationship between applicants' parents prior to the marriage of applicants' mother to A V. Appli cants were advised by the District Director at Chicago on February 11, 1957, of the denial of their applications for certificates of citizenship. No appeals were taken from such determinations. Applicants have failed to establish that they derived or acquired United States citizenship in any manner. They have also failed to to establish that a valid marriage took place between their mother and their alleged stepfather,AV , and consequently it follows they have failed to establish that they were the daughters of an American citizen. Therefore, their entries into the United States in 1926 as the minor children of an American citizen were not proper. Section 211 (c) of the Immigration and Nationality Act provides as follows :

(c) The Attorney General may in his discretion, subject to subsection (d) , admit to the United States any otherwise admissible immigrant not admissible under clause ( 2 ) , ( 3 ) , or (4) of subsection ( a) , if satisfied that such inadmissibility was not known to and could not have been ascertained by the exercise of reasonable diligence by, such immigrant prior to the departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory, or, in the case of an immigrant coming from foreign contiguous territory, prior to the application of the immigrant for admission.

Section 211 (a) , referred to in the subsection quoted above, provides as follows :

(a) No immigrant shall be admitted into the United States unless at the time of application for admission he ( 1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such immigrant visa of the accompanying parent, ( 2) is properly chargeable to the quota specified in the immigrant visa,

(3) is a nonquota immigrant if specified as such in the immigrant visa, (4) is of the proper status under the quota specified in the immigrant visa, and (5) is otherwise admissible under this Act.

Applicants are within the class of aliens to whom relief under section 211 (c) may be granted as they are within the category described by section 211 (a) (3), inasmuch as they were not nonquota immigrants as specified in their immigrant visas. In determining whether the discretion contained in section 211 (c) may be exercised in behalf of applicants, it must be determined whether the provisions of subsection (d) of section 211 proscribe such relief. Subsection (d) provides, in pertinent part, as follows : (d) No quota immigrant within clause (2) or (3 ) of subsection (a) shall be admitted under subsection (c) if the entire number of immigrant visas which

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may be issued to quota immigrants under the same quota for the fiscal year, or the next fiscal year, has already been issued. If such entire number of immigrant visas has not been issued, the Secretary of State, upon notification by the Attorney General of the admission under subsection ( c) of a quota immigrant within clause ( 2) or (3 ) of subsection (a) , shall reduce by one the number of immigrant visas which may be issued to quota immigrants under the same quota during the fiscal year in which such immigrant is admitted, or, if the entire number of immigrant visas which may be issued to quota immigrants under the same quota for the fiscal year has been issued, then during the next following fiscal year.

Similar provisions as section 211 (c) and (d) were contained in the former sections 13 (d) and (e) of the Immigration Act of 1924. Under such act it was held that a charge could not be made against a quota number after the expiration of the fiscal year in which the alien was admitted to the United States (Matter ofF , A-6371634, 5, I. &. N. Dec. 525 (B. I. A. , Nov. 17, 1953) ) . However, under the present act it has been held that the fiscal year that is determinative of the issue as to whether section 211 (d) may be used is that fiscal year in which the notification by the Attorney General is received in the Department of State or the fiscal year following the submission of such notification (Matter of R , A-8789196, Int. Dec. No. 832 (B. I. A., Aug. 16, 1956) ) . Relief, therefore, may be afforded applicants pursuant to the subsections of section 211 mentioned, if the Attorney General is satisfied that the inadmissibility of applicants was not known to and could not have been ascertained by the exercise of reasonable diligence by such alien immigrants prior to their departure from their last port outside the United States. In the proceedings before this Service, it was established that applicants had been of the opinion that their father had died prior to the marriage of their mother to their stepfather, AV , since they had been so informed by their mother. It was not until after their admission into the United States and possibly only during their proceedings for certificates of citizenship that they learned of the fact that their father may have been living at the time of the marriage of their mother to the stepfather. They were only 16 and 13 years of age, respectively, at the time of their entries into the United States and were not aware of the fact that they were not minor children of an American citizen. Their inadmissibility to the United States as children of an American citizen was not known to and could not have been ascertained by them by the exercise of reasonable diligence prior to their entries into the United States. Consequently, they are eligible for the relief set forth in the subsections of section 211 of the Immigration and Nationality Act as mentioned heretofore. The next question to be determined is whether such relief may be afforded without the institution of deportation or exclusion proceed

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ings. It has been held that the relief afforded by these subsections may be exercised by the Board of Immigration Appeals, as was done in the Matter of R , supra. It has also been held that such action may be taken by a special inquiry officer under certain conditions (Matter of N-, A-8543460, 6, I. & N. Dec. 321 (B. I. A. , Sept. 10, 1954) ) . 8 CFR 9.5a (zz) confers the following power upon the Regional Commissioner :

(zz) Admission of immigrants pursuant to the provisions of section 211 (c) and (d) of the Immigration and Nationality Act.

It, therefore, appears that the Regional Commissioner has the power to authorize such relief, as well as the Board of Immigration Appeals or a special inquiry officer. Cf. Matter of A-, A-3372659, Int. Dec. No. 820. In view thereof, the following order will be entered. Order : It is ordered that pursuant to the provisions of section 211 (c) and (d) of the Immigration and Nationality Act, the Department of State be notified to reduce the quota of Italy by 2 during the current fiscal year if quota numbers are available, otherwise during the next following fiscal year, and that the applicants be deemed to have been lawfully admitted for permanent residence as of August 19, 1926, upon notification from the Department of State that action pursuant to section 211 (d) of the Immigration and Nationality Act has been taken.

BEFORE THE CENTRAL OFFICE (August 19, 1957)

The decision and order of the Regional Commissioner, which come before this office on certification, are hereby approved.

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