Matter of Pendon
13 I&N Dec. 769
Decision date: 1971-10-21
MATTER OF PENDON
In Exclusion Proceedings
A-17230529
Decided by Board October 21, 1971
Applicant's motion to reopen the exclusion proceedings to permit her to apply for the benefits of section 241(f) of the Immigration and National- ity Act, as amended, based on the birth of a United States citizen child, is denied since the birth of a citizen child confers no benefits under section 241 (f) of the Act upon an alien in exclusion proceedings.
EXCLUDABLE: ACT of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)]— Immigrant without visa.
ON BEHALF OF APPLICANT: Lloyd A. Tasoff, Esquire
408 South Spring Street Los Angeles, California 90013
On December 5, 1969 we dismissed a joint appeal filed by the applicant, her husband, her sister, and her infant child, all aliens, from an order of a special inquiry officer excluding them from admission to the United States. The unopposed motion before us, filed by the above-named applicant alone, requests reopening in order that she may present evidence that on December 20, 1969, she gave birth to a child who is a United States citizen. She as- serts that as the mother of a citizen child, she is within the pur- view of section 241 (f) of the Immigration and Nationality Act and is saved from exclusion and deportation thereby. She also al- leges that she is the beneficiary of a visa petition filed April 1, 1968, which should now be considered under the third preference, under which visas are now available to aliens who filed on or be- fore November 16, 1968. The motion is unsupported, contrary to the requirements of 8 CFR 3.2 and 3.8, and could be denied for that reason alone. How- ever, even assuming the truth of the allegations now set forth, no case for reopening is made out. The motion will be denied. Section 241 (f) in terms renders inapplicable to qualified aliens the "provisions of this section," i.e., section 241 of the Act. That
December ;he Jisa, ender >elabored n iifferent ludable or lgs i action le tates" ?ction tterim Insofar Leng the exclusion admission deportability under even section United may May 242 Decision prescribes and provisions as 5, if sections here. of be concerns Ma 1969, that deportable 241 proceedings. States whose the ordered v. The of (f) were #2099 neither Barber, Act. 241 aliens the upon of who birth exclusion the the the grounds deported. and The classes an is within this claimed of fact As Act. 357 242. the alien applicant a Board we citizen it of U.S. has subject The on She the in The would pointed aliens availability exclusion which been distinction United 185 nor is procedure in child a of a not this has (1958), paroled ordered out special deportation aliens States confers warrant been case proceedings. in of between our for and alien "in under inquiry an is clearly is determining no not order set need immigrant the reopening applicant proceed- benefits entirely forth an the United officer stated not dated alien ex- in be 1
has power to adjudicate in exclusion proceedings a paroled alien's application for adjustment under section 245 of the Act.
One further item should be noted. The Service has informed us that on August 16, 1971, after the pending motion was filed, the applicant filed a petition in the United States Court of Appeals for the Ninth Circuit for review of our December 5, 1969 order. While the Service does not oppose the motion now pending before us, we see no point to granting the motion, for the reasons above-stated. Were we to grant the motion, we would of course condition our order on the approval of the court in which the pe- tition for review is pending. Since denial of the motion cannot in any way affect the court's jurisdiction, no such conditional order is called for.
ORDER: The motion is denied.