Aliens Without Documents or With Improper Documents

We have previously referred to the documents that must be presented by all entrant aliens. One who comes without the prescribed documents or with def ective documents may be subject to exclusion. And if he succeeds in entering, he may be aenable to deportation.

The documentary exclusions arise in a variety of situa­tions, and frequently are the basic grounds on which orders of exclusion or of deportation are issued.

A person who comes without any documents patently falls under the statutory proscription.

Since the law requires a “valid” visa, “properly” issued to an “eligible” person, it concomitantly forbids the entry of a person who has been issued a visa in a classification to which he is not entitled. This concept is underlined by a statutory prescription barring any immigrant whose visa was not issued in compliance with statutory requirements. Good faith may not remedy the defect.

In addition, the general rule is that a document obtained by deception is equivalent to no document at all. This rule is most significant in connection with immigration visas which have been obtained through fraudulent misrepre­ sentations.

Aliens Without Documents or With Improper Documents

Nature of requirements
We have previously referred to the documents that must be presented by all entering aliens. One who comes without the prescribed documents or with defective documents may be subject to exclusion.1 And if he succeeds in entering, he may be aenable to deportation.

Application of requirements

The documentary exclusions arise in a variety of situa­ tions, and frequently ·are the basic grounds on which orders of exclusion or of deportation are issued.

A person who comes without any documents patently falls under the tatutory proscription ..a Since the law requires a "valid" visa, "properly" issued to an "eligible" person, it concomitantly forbids the entry of a person who has been issued a visa in a classification to which he is not entitled.

This concept is underlined by a statutory prescription barring any immigrant whose visa was not issued in compliance with statutory requirements.' Good faith may not remedy the defect.

In addition, the general rule is that a document obtained
by deception is equivalent to no document at all. This rule
is most significant in connection with immigration visas
which have been obtained through fraudulent misrepre­ sentations.

Aliens Who Have Made Willf ul Misrepresentations in Seeking Entry
(1) Statutory provisions. The Act of 19521 bars from entry :
''Any alien who seeks to procure, or has sought to pro­ cure ·a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact."

t Santarelli v. Hughes, 116 F.2d 613 (3d Cir. 1940).
3 Lehmann v. Carson, 353 U.S. 685, 77 s.ct. 1022, 1L.Ed.2d 1122 (1957). a Sec. 211(a), Act of 1952, 8 U.S.C. 1181(a).
4 Sec. 212(a) (21), Act of 1952, as amended, 8 U.S.C.1182(a) (21).
s Ex parte Soucek, 101F.2d 405 (7th Cir. 1939). Bee f B.30d(S ).
6 Fink v. Reimer, 96 F.2d 217 (2d Cir. 1938) ; Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957).
t Sec. 212(a) (19), Act of 1952, 8 U.8.C. 1182(a) (19).
(Pub.334)

§ 2.33a What Aliens May Enter United States 2-59

The Attorney General has held that the first part of the 1952 Act, relating to fraud in documents, is both prospective and retr6spective, but that the second portion, relating to misrepresentations in seeking entry, is prospective only.2 Thus a misstatement in connection with an entry not related to the procurement of documents, will invalidate only that entry and will not preclude a subsequent entry otherwise regular. Moreover, it is the administrative view that the first portion of the statute relates only to fraud in the issuance of documents and not to fraud in their acquisition.3
(2) ) Waiver of exclud ability. The perpetual bar to the entry of one who has misrepresented may be waived by the Attorney General for an alien who is the spouse, parent, or child of an American citizen or of an alien lawfully admitted for permanent residence:"

• Exclusions Related to Personal Qualifications •
§ 2.33 Physical and Mental Defectives
§2.33a Mental defects or disabilities
(1) M ental disord ers. In a series of edicts the statute bars aliens who are mentally retarded, who are insane, who have had one or more attacks of insanity, or who are aff licted with psychopathic personality, or sexual deviation, or a mental defect.1
The 1952 Act retained the bar against entry of those who had experienced one or more attacks of insanity at any previous time, even though the derangement had since been cured. This exclusion sometimes results in distressing difficulties for returning residents, particularly alien wives of persons residing in the United States.

2 Matter of M., 6 IN 149 (A.G. 1954) ; Matter of M., 6 IN 752 (1955).
3 Matter of L.L., 9 IN 324 ( 1961) .
4 Secs. 212 (i) and 24l (f ) , Act of 1952, 8 U.S.C. 1182(i), and 1251(f).
1 Sec. 212(a) (1), (2), (3), and (4), Act of 1952, 8 U.S.C. 1182(a) (1),
(2), (3), and (4).

(Pub.334)

2-60 Immigration and Nationality Law § 2.33b

(2) Waiver of excludabilit y. Before 1965 there was no provision for waiving the mandatory exclusion of those afflicted with mental disorders. However, the. 1965 amend­ ments2 authorized the waiver of excludability and admission und er appropriate safeguards of certain aliens in this category who have close relatives in the United States.
(3) ) Other disabilities. The 1aw3 also directs the exclusions of aliens suffering from chronic alcoholism and narcotic drug addiction.

§2.33b Physical defects or disabilities
Exclusion is commanded for the following physical afflictions :
(1) Any dangerous contagious disease:1. It should be noted that the statute5 now authorizes the issuance of an immigrant visa and the admittance for permanent residence of any otherwise admissible alien afflicted with tuberculosis who is the spouse, the unmarried son or daughter, or parent of a United States citizen or an alien lawfully admitted for permanent residence. The statute specifies that the ad­ mission of such an alien shall be under terms, condition s, and controls, including the giving of a bond, prescribed in regulations issued by the Attorney General in bis discretion, after 1>nsultation with the Surgeon General of the United States 1 ublic Health Service.
(2) Other physical afflic tions impairing earning capacit y . Any alien with a physical disability, other than the specific physical afflictions previou sly enumerated, that may affect his ability to earn a living is excludable unless be satisfies the consular or immigration officers that be will not have to earn a livin.g.6 Persons affected by this exclusion may be

2 Sec. 212(g), Act of 1952, 8 U.S.C. 1182(g).
s Unless otherwise indicated, statutory references in this section are to
Sec: 212, Act of 1952, 8 U.S.C. 1182. ·
4 Sec. 212(a) (6). See also 12 CFR 34.2 (b).
s Sec. lll2{g), Act of 1952, 8 U.S.C. 1182(g).
6 Sec. 212(a) (7).

(Pub.334)

§ 2.34b What Aliens May Enter United States 2-61

admitted in the discretion of the Attorney General, by furnishing a bond guaranteeing that they will not become a public charge.7

§ 2.34 Aliens Likely to Become a Public Charge
§2.34a Statutory provisions
The statute announces a number of injunction s against the admittance of economic undesirables.
In the first place, it specifically bars paupers, prof essional beggars and vagrants.1 This pronouncement has survived, although it is of little importance today.
Secondly, as previously noted the law proscribes persons afflicted with various mental or physical diseases or disabilities, which may affect their ability to earn a liveli­ hood.
Finally, the law2 commands the exclusion of :
''Aliens who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission, are likely at any time to become public charges.''
It is noted also that a person likely to become a public charge who succeeds in gaining entry may be amenable to deportation, particularly if his indigence occurred within five years after entry.

§2.34b Administrative discretion
The designation of aliens likely to become public charges obviously is ambiguous. However, the consular and immi­ gration officers do not have unlimited authority. Their exercise of this discretion cannot rest on mere speculation

1 Sec. 213, Act of 1952, 8 U.S.C. 1183.
1 Sec. 212(a ) (8), Act of 1952, 8 U.S.C. 1182(a) (8).
2 Sec. 212(a) (.15), Act of 1952, 8 U.S.C. 1182(a) (15).

(Pub.334)

2-62 Immigration and Nationality Law § 2.34c

and must be based on some tangible evidence which pro­ duces probability that the alien will become a charge upon the public after entry.3

§2.34c Standards for determination
No regulations adequately defining the likelihood of be­ coming a public charge have been promulgated by the De­ partment of State or the Department of Justice. State Department regulations merely preclude a finding of ineligibility on this ground unless it is ''predicated on circumstances which indicate that the alien probably will be­ come a charge upon the public after entry".'Moreover, the regulations also recognize that the public charge require­ ment may be satisfied by prearranged employment and specify that when the alien seeks to meet this requirement solely on the basis of his personal income, such income must exceed the official poverty guidelines announced by U.S. government agencies."
In a leading case the Supreme Court overruled an immi­ gration officer 's determination that an alien was excludable as a prospective public charge because he was destined to Portland, Oregon, where the labor market was over­ crowded.6 However, changing economic, social, and popula­ tion patterns have generated ever tighter restrictions, which have entailed · proof of financial responsibility, such as affidavits of support, specific offers of employment, and evidence of personal assets and income.
There is thus no fixed standard for determining whether an alien is likely to become a public charge. The evaluation usually will take into account, among other things the alien 's age, mental and physical condition, the presence of

a 22 CFR 42.91(a) (15) (i) ; Gabriel v. Johnson, 29 F.2d 347 (1st Cir.
1928) ; Berman v. Curran, 13 F.2d 96 (3d Cir. 1926).
4 22 CFR 42.Sl(a) (15).
s Id.
6 Gegiow v. Uhl, 239 U.S.3, 36 S.Ct. 2, 60 L.Ed. 114 (1915).

(Pub.334)

§ 2.35a What Aliens May Enter Un ited States 2--63

friends or relatives in this country, and his willingness to find usef ul employment.

§2.34d Proof of financial responsibility
Since 1930 American consuls have required that an immi­ grant supply evidence of his own financial worth or sponsor­ ing affidavits from residents in the United States assuring that the applicant for entry will be supported in this coun­ try. The latter documents, commonly known as affidavits of support, usually are required unless the immigrant can prove his financial dependability by showing that he has sufficient funds or has a satisfactory job awaiting him. How­ ever, the nature and adequacy of the proofs is determined by the consul.

§2.34e Public charge bonds
The law permits the admission, in the discretion of the Attorney General, of an alien found likely to become a public charge, if a bond or undertaking is furnished on his behalf indemnif ying the United States as well as States and localities against his becoming a public charge.7

§ 2.35 Aliens Coming to Perform Labor

§2.35a Present statutory provisions
The present statute I excludes:
"(14) Alien s seeking to enter the United States, for the purpose of performin g skilled or unskilled labor, unless the Secretary of Labor has determined and certi­ fied to the Secretary of State and the Attorney General that (A) there are not sufficient workers who are able, willing, quali:fiecl. (or equally qualified in the case of aliens who are member s of the teaching prof ession or who have exceptional ability in the sciences or the arts),

7 Sec. 213, Act of 1952, 8 U.S.C. 1183.
I Sec. 212(a) (14), Act of 1952, 8 U.S.C. 1182(a) (14) .
(Rel.2-6/82 Pub.334)

)

2-64 Immigration and Nationality Law § 2.35b
and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and ( B) the employment of such aliens will not ad­ versely aff ect the wages and working conditions of the workers in the United States similarly employed. The exclusion of aliens under this paragraph shall apply to pref erence immigrant aliens described in section 203 ( a) (3) and (6), and to nonpreference immigrant alien described in section 203(a) (8)".

§2.35b Applicability of labor exclusion
(1) Immigrants entering labor market. Under its terms, the labor exclusion discussed in this section generally is applicable only to those whose primary purpose in coming here is the performance of labor. Consequently, a labor certification is not required by an applicant for entry or
adjustment of status who establishes that he will not per­
form skilled or unskilled labor.2 In addition, the regula­
tions3 declare that certain classes of immigrants are not subject to the labor certification requirement. The most important exempt category relates to the so-called business investor-on e coming to engage in a commercial or agricul­ tural enterprise in which he has invested, or is actively in the process of investing, capital totaling at least $40,000 in an enterprise in the United States of which he will be 1-1 principal manager and which will employ a person or per­ sons in the United States who are American citizens or lawf ul resident aliens, exclusive of the alien, his spouse and children.4 Since such investors were chargeable to the non­ pref erence portion of the quota which has been unavailable since 1976, this category is currently obsolete. A 1981 amendmen t granted residence benefits to certain investori;; whose applications for adjustment of status were pending· on or before ,June 1, 1978.6 Note that aliens seeking entr?

2 8 CFR 2.12.S(a) ; Matter of Caralekas, 15 IN 142 (I.D. 2333, 1975).
4 8 CFR 212.S(b) (4) ; 22 CFR 42.91 (a) (14).
6 Sec.19, Act of Dec. 29, 1981, P.L. 97,116, 9:'i Stat. llfil.
(Rel.2-6/82 Pub.334)

§ 2.35c What Aliens May Enter United States 2-65

as refugees to obtain political asylum are not coming to perf orm labor and are not subject to the labor certification requirement. 6
(2) Preference and nonpre ference im1nigrants. The stat­ ute excludes from its operation those entitled to exemption or pref erence on the basis of relationship to an American citizen or resident alien, expressly confining its impact to the third and sixth preference and the nonpreference groups.
(3) Svecial immigrants and noninimigrants. Also re­ moved from the operation of the statute are special immi­ grants and nonimmigrants.

§2.35c Impact of statutory requirement
Certain aspects of the statutory directives should be mentioned. In the first place, the statute specifies that a certification by the -Secretary of Labor can be issued if he finds that "there are not sufficient workers who are able, willing, qualified . . ., and available" f or the employment in question . This req uirement manifestly cannot be satisfied by a :finding that workers are qualified but not available, or available bu t not qualified. Moreover, a special requirement relating to teachers and applicants specially skilled in the sciences or arts, added in 1976, specifies that in such cases the available workers must be "equally qualified."7 In addi­ tion, the statute declares that the American worker's avail­ ability mu st be at the place where the alien is to be em­ ployed and at the time of the application for a visa and admission to the United States. The Secretary of Labor also must certify that the employment of the alien will not affect the wages and working conditions of the aliens in the United States similarly employed.
Like the other exclusions prescribed in the statute, the labor certification requirement must be satisfied at the time admission to the United States is sought.

6 See 9&.f2!JAa ; Pierro v. U.S., 525 F.2d 933, 935 ( 5th Ci!'. 1976) .
7 Sec. 5, Act of Oct. 20, 1976, P.L. 94-571, 90 Stat. 2703, 2705.

(Rel.2-6/82 Pub.334)

2-66 Immigration and Nationality Law § 2.36

§ 2.36 Illiterates
The Act of 1952 with a number of specified exception s, bars aliens "over SL"'\:teen years of age, physically capable of reading, who cannot read and understand some lang11age or dialect."'
An alien who is not exempt from the literacy requirement is examined in any language or dialect he designates.

§ 2.37 Aliens Accom panying Excluded Aliens
An alien who is not himself inadmissible may be barred from entry if he is accompanying another excluded alien who requires his protection and guardianship because the excluded alien is helpless from sickness or mental or physi­ cal disability or infancy. 1

§ 2.38 Foreign Medical Graduates
Until 1976 the immigration laws were hospitable to foreign doctors who wished to study, work, or settle in the
United States.
A marked change in policy was announced in 1976, when Congress imposed rigid restrictions on th e immigration opportunities of foreign doctors.1
The 1976 Act, as amended in 1977,2 provides for the ex­ clusion from the United States of aliens who are graduates of a medical school not accrer1ite

I Sec. 212 (a) (25 ), Act of 1952, 8 U.S.C. 1182 (a) (25) .
I Sec. 212 (a) (30), Act of 1952, 8 U.S.C. 1182(a) (30) .
I Act of Oct. 12, 1976, P.L. 94-484, 90 Stat. 2243.
2 Sec. 212 (a) (32), Act of 1952, 8 U.S.C. 1182(n) (!12).

(Rel.2-6/82 Pub.334)

§ 2.38 What Aliens May Enter United State 2-67

international renown in the field of medicine."3 The statu­ tory bar is inapplicable to graduates of medical schools in the United States and Canada.
Exempted from the statutory bar are aliens who have passed parts I and II of the National Board of Medical Examiners Examination ( or an equivalent examination as determined by the Secretary of HEW). A foreign medical graduate is considered to have passed Parts I and II, above, if he was fully and permanently licensed to practice in a State on January 9, 1978, and was practicing medicine in a State on that date.4 The Secretary of HEW has announced approval of an "equivalent" examination for foreign medi­ cal graduates, which will enable them to qualif y for immi­ gration ben efits. This is known as the Visa Qualifying Ex­ amination (VQE) . It is a special two-day examination, developed by the National Board of Medical Examiners (NBME) and administered by the Educational Commission for foreign Medical Graduates (ECFMC) , in cooperation with NBME.
The statutory exclusion is specifically made applicable only to nonpref erence immigrants, third preference immi­ grants, and sixth preference immigrants. It therefore is inapplicable to aliens who qualify as immediate relatives or as preference immigrants on the basis of relationship to a citizen or resident alien, under the first pref erence, second preference, fourth preference, and fif th pref erence.
The statutory exclusion is applicable only to medical graduates who are coming- to this country "principally to perform services as member s of the medical profession." Thus a medical graduate who establishes that this is not his principal purpose for coming to the United States is not barred from entry under the pro-.;-ision discussed in this sec­ tion.

3 Sec. lOl (a) (41), Act of 1952, 8 U.S.C. llOl (a) (41) .
4 Sec. 5(a) , Act of Dec. 29, 1931, P.L. 97-116, !lfi Stat. 1161.

(Rcl.2-6/ 82 Pub.334)

2-68 Immigration and Nationality Law § 2.39

• Exclusions Related to Misconduct •
§ 2.39 Criminals
2.39a Statutory exclusions
Two sections of the 1952 Act proscribe criminals. The first bars aliens who have been convicted, or who admit the commission, of a crime involvin g moral turpitude, or who admit committing acts which con stitute the essential ,ele­ ments of such a crime. 1
The second basic directive of the statute prohibits the entry of aliens who have been convicted of two or more off enses, "regardless of whether the conviction was in a single trial or whether theoff enses arose from a single sch eme of miscondu ct and regardless of wheth er the of ­ fenses involved moral turpitude for which the aggregate sentences to confinement actually imposed were five years or more."2

§2.39b Admission of crime involving moral turpitude
Because of the seriou s consequences of such admissions, they have been circumscribed by tbe following limitations designed to insure their reliability and validity.3
(1) It must be clear that the conduct in question was a crime under the law of the place where it was committed.
(2) Tbe alien mu st have been clearly advised of the es­ sential elements of th e crime.
(3) The alien mu st admit all the acts constituting the
(1'cxt continued on vagc i?-69 )

' Sec. 212(a) (9), Act of 1952, 8 U.S.C. ll82(a ) (9) .
2 Sec. 212(a ) (10), Act of 1952, 8 U.S.C. ll 82 (a ) (10 ) .
3 Matter of .J., 2 IN 28:'i (1945) ; Matter of G.Jlf ., 7 TN 40 (A .G. 1956).

(Rcl.2-6/82 Pub.334)

§ 2.39c What Aliens May Enter United States 2-69

essential elements of the crime. It is important to note that in the absence of a conviction a finding of guilt cannot be based on inferences of facts which the alien has failed or refused to admit.4

(4) The admission must be unequivocal and unqualified.5 Moreover, the admission must be freely and voluntarily made.6

As we have stated, a person may be barred by ad­ mission of a crime for which he has not been and never will be prosecuted. 7 However, extrinsic circumstances may affect the acceptability of the admission. Thus, if the alien was prosecuted for the crime and acquitted, the subsequent admission of guilt would be ineffectual.

§2.39c Exemptions and waivers
As we have stated, excludability for criminal grounds may now be waived in some situations.
(1) Thl,s, excludability cannot be premised on purely political off enses.'1
(2) A foreign pa rdon does not avert excludability for crime.9 Such pardons are rejected apparently because of the ancient apprehen sion that certain governments might amnesty their convicts in order to enable them to migrate to the United States. But when the crime was committed in the United States a pardon10 or jud icial recommendation

4 Matter of G.M., 7 IN 40 (A.G. 1956) ; Matter of E.N., 7 IN 153 (1956).
s Matter of L., 2 IN 486 (A.G. 1946).
6 Matter of G., 1 IN 225 (1942) ; Matter of M.C., 3 IN 76 (1947). Sec also Jclic v. District Director, 106 F.2d 14 (2d Cir. 1939) ; omcs v. Tillinghast, 37 F.2d 935 (D. Mass. 1930).
7 Matter of P., 4 IN 252 ( A.G. 1951).
a Sec. 212(a) (9) and (10), Act of 1952, 8 U.S.C.1182(a) (9) and (10).
9 Palermo v. Smith, 17 F.2d 534 (2d Cir. 1927) ; Wcedin v. Hempel, 28 F.2d 603 (9th Cir. 1928) ; Mercer v. Lenee, 96 F.2d 122 ( 10th Cir. 1938), cert. den. 305 U.S. 611; Sohaiby v. Savoretti, 195 F.2d 139 (5th Cir.1952).
10 Perkins v. Malesevic, 99 F.2d 255 (3d Cir. 1938) ; Matter of H., 6 IN 90
(1954) ; Matter of E.V., 5 IN 194 (1953).

(Pub.334)

2-70 Immigration and Nationality Law § 2.39c

against deportation,11 if it complies with the requirements prescribed for deportation cases, will extinguish the offense as a cause for exclusion.
(3) The Act of 1952 permits the entry of an alien who committed a single crime involving moral turpitude while under the age of 18, provided more than five years have elapsed since the date the crime was committed or, if confinement resulted, more than five years have elapsed from the date of release from confinement.•• The terms of this statute are mandatory· and not permissive and auto­ matically waive excludability for those who come within its terms.18
The statute 's benefits specifically are limited to those who have committed a single crime involving moral turpitude, and a dual offender is barred from entry.14 Juvenile delin­ quency is not a crime, and the commission of an offense for which the alien was prosecuted as a juvenile off ender need
not be taken into account in assaying eligibility f or this waiver.115

(4) ) Another measure alleviating hardships resulting from the exclusion of criminals declares16 that ''any alien who would be excludable because of the conviction of a misdemeanor classifiable as a petty offense under the provision of Section 1 (3) of Title 18, United States Code, by reason of punishment actually imposed, ...may hereaf ter
be granted a visa and admitted to the United States if other­ wise admissible." 18 u.s.c. 1, referred to in this enactment,
defines a felony as an offense punishable by death or by imprisonment exceeding one year, designates all other offenses as misdemeanors, and stipulates that a petty of­ fense is any misdemeanor, for which the penalty does not

11 Rasmussen v. Robinson, 163 F.2d 732 (3d Cir. 1947).
i:a Sec. 212 (a) (9), Act of 1952, 8 U.S.C.1182(a) (9).
1a Matter of H., 6 IN 738 (1955) ; Matter of Jensen, 10 IN 747 (1964).
14 Matter of A., 5 IN 639 (1954).
IS Matter of C.M., 5 IN 327 ( 1953).
16 Sec. 212(a) (9), Act of 1952, 8 U.S.C. 1182(a) (9).

(Pob.334)

§ 2.39c What Aliens May Enter United States 2-71
exceed six months imprisonment, or a fine of not more than $500, or both.
The waiver of excludability afforded by this statute is
t mandatory and not permissive, and automatically benefits
.. those who come within its terms.17 In order to qualify for this dispensation the following conditions must be met.
First : The alien must be exclud able because of a crime
. involving moral turpitud e. It has been held that one barred
t for a narcotics violation does not qualify.18
l Second : The crime must be a misd emeanor.By definition, this means that the maximum penalty that could have been
• imposed was one yea r or less.19
Most of the situations in which this statute was invoked
/ have involved petty . larceny or petty thef t. Difficulties en­
t countered in assessing foreign crimes have been resolved by
: an administrative ruling that they will be evaluated under t the law of this country, and that their classification as a felony or misdemeanor will be determined in the light of the

1\'

maximum punishment imposable for an equivalent crime

) described in Title 18 of the United States Code, or, if the equivalent offense is not found there, in Title 22 of the District of Columbia Code.20
Third : The punishment actuall y imposed upon conviction must have been six months or less, or a fine of $500 or less, or both.
Fourth: Only a single such off ense must have been in­ volved .21
Fifth: The alien must be otherwise admissible.22

17 Matter of H., 6 IN 738 (1955).
1e Metter of G.A., 7 IN 274 (1956).
19 Matter of G.A., 7 IN 274 (1956) ; Giammario v. Hurney, 311 F.2d 285
(3d Cir. 1962) ; Matter of Awaijane, 14 IN 117 (1972). .
20 Matter of T., 6 IN 508 (A.G. 1955) ; Giammario v. Hurney, 311 F.2d 285 (3d Cir. 1962).
21 Matter of F.G., 8 IN 447 (1959).
22 Matter of C., 8 IN 611 (1960) ; Matter of M.C., 9 IN 280 (1961).

(Pub.334)

2-72 Immigration and Nationality Law

§ 2.40

Two facets of this statute mitigate exclusions on criminal grounds for close relatives of American citizens and resident aliens.
(5) The first23 authorizes the Attorney General, in his discretion, to waive excludability and permit entry for permanent residence in the case of an alien excludable on criminal grounds or for identification with prostitution, who is the spouse, child or parent of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the alien's expulsion would result in extreme hard­ ship to the American citizen or resident alien, and that his
admission would not be detrimental to the national interest. 1
The second phase of this legislation,u authorizes the At­
torney General, in his discretion, to waive excludability based on fraud or misrepresentation or on an admission of perjury in seeking, or in having sought, entry into the United States and to permit admittance for permanent residence in the case of an alien who is the spouse, parent, or child of a United States citizen or of an alien lawfully admitted to the United States for permanent residence.
In each instance the statute specifies tha the alien must be ''otherwise admissible.''

§ 2.40 Immoral Aliens

§2.40a Polygamists

The law proscribes polygamists and those who practice or advocate polygamy.1 This exclusion is inapplicable to any alien who is good faith is seeking to enter the United States as a nonimmigrant.2

2s Sec. 212(h), Act of 1952, 8 U.S.C. 1182(h) .
u Sec. 212( i), Act of 1952, 8 U.S.C. 1182(i).
1 Sec. 212 (a) (11), Act of 1952, 8 U.S.C. 1182(a)(11).
2 Sec. 212(d) (1), Act of 1952, 8 U.S.C. 1182(d) (1).

(Pu.334)

§ 2.41 What Aliens May Enter United States 2-73

§2.40b Prostitutes and like immoral aliens
The statute3 directs the exclusion of aliens who have engaged in prostitution and related activities.
The mandates for the deportation of those identified with prostitution in the United States are quite similar, and the discussion in Chapter 4 should be consulted.
Although the 1952 Act added language barring aliens coming to engage in any immoral sexual act4 it has been held that this change does not alter the previous rule,5 that persons living in an irregular marital relationship are not excluded, since their primary objective in coming was to work and reside in this country.8
The 1952 Act also added language shutting out aliens coming to engage in any other unlawful commercial vice, whether or not related to prostitution. This is a catchall phrase, which obviously does not include all crime. It refers to vices such as gambling, prostitutio, and narcotics, and does not encompass a loan shark.7
'
! As we have noted, Congress in 1957 granted relief to those suffering excessive hardships because excludable on grounds related to prostitution by permitting waiver of this ground of exclusion when the excludable alien is the spouse, child, or parent of a United States citizen or of an alien lawfully admitted for permanent :residence.8

§ 2.41 Narcotics Violators
As amended, the 1952 Act bars any alien convicted of a violation related to the illicit traffic in narcotics, any alien who the consular or immigration officer had reason to believe was or had been an illegal trafficker in such narcotic ·drugs, those convicted of illicit possession of narcotic drugs or of conspiracy to
3sec. 212(a) (12), Act of 1952, 8 U.S.C. 1182(a) (12).
4sec. 212(a) (13), Act of 1952, 8 U.S.C. 1182(a) (13).
5Hansen v. Haff, 291 U.S. 559, 54 S.Ct. 494, 78 L.Ed. 968 (1934).
8Matter of B., 5 IN 185 (1953); Matter of R., 6 IN 444 (1954).
7 Matter of B., 6 In 98 (1954).
8 sec. 212(h), Act of 1952, 8 U.S.C. 1182(h).
·(Rel.3-9183 Pub.334)

2-74 Immigration and Nationality Law § 2.42

violate any of the narcotic laws relating to illicit traffic or possession of narcotics, and those convicted for violations relat­ ing to narcotic drugs or marihuana. 1 While the statute 's refer­ ence to marihuana is undefined, it apparently applies to hashish and the various types of cannabis.2 In addition as we have noted, narcotic addicts also are amenable to exclusion.
The statute 's edicts for the deportation of violators of narcotics laws in the United States are quite similar and the discussion of such deportation grounds in Chapter 4 should be consulted.
Amelioration of excludability is not granted to narcotics violators, except under the general dispensations available to returning residents, and temporary entrants. Even a pardon or a judicial recommendation against deportation apparently does not extinguish this cause for exclusion. However, 1981 amend­ ments permit the Attorney General to waive inadmissibility for an alien with a spouse, parent, or child who is a United States citizen or permanent resident alien, for a single conviction of
simple possession of 30 grams or less of marihuana. 3 ·

§ 2.42 Smugglers of Aliens
A special sanction bars any alien ''who at any time shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of the law. ''1 This exclusion, which reaches past infractions and does not depend upon a conviction for crime, is virtually identical with a directive for the expulsion of alien residents of the United States who engage in like misconduct.
1Sec. 212(a) (23), Act of 1952, 8 U.S.C. 1182(a) (23).
2 Matter of Lennon, 15 In 9 ( I.D. 2304, 1974), revd. on other grounds in
Lennon v. INS, 527 F.2d 187 ( 2d Cir. 1975); Hamid v. INS, 538 F.2d 1389
(9th Cir. 1976).
3Sec. 212( h ), Act of 1952, 8 U.S.C. 1182(h), as amended by Sec. 4(3), Act of Dec. 29, 1981, P.L; 97-116, 95 Stat. 1161.
1Sec. 212(a) (31), Act of 1952, 8 U.S.C. 1182(a) (31).

•(Rcl.3-9183 Pub.334)

§ 2.43a What Aliens May Enter United States 2-74. l

§ 2.43 Subversives
§2.43& Statutory provisions
The Act of 1952 has three separate provisions dealing with the exclusion of the subversive aliens. Two of these are
( Text continued on page 2-75 )

"(Rel.3-9183 Pub.334)

§ 2.43c What Aliens May Enter United States 2-75

quite similar and shut out aliens who in the judgment of the consular officer or the Attorney General are coming to the United States to engage in activities prejudicial to the public interest or safety1 or who would probably engage in such activities after entry.2 The third series of restrictions includes aliens who are or at any time have been members of various Communist and totalitarian parties.3
The 1952 Act defines "totalitarian party" as one which advocates totalitarianism in the United States.4 '11hus it · does not exclude adherents of any other non-Communist totalitarian regimes of Latin America, Europe, the Middle East, Africa, or Asia.5 It is concerned almost exclusively with membership or affiliation with the various Communist Parties and their satellites.

§2.43b Membership in or affiliation with Communist Party
At this point we merely summarize various important features of the exclusion statute. First, it proscribes both past and present members of the Communist Party and its various sections, affiliates, and successors. Second, it specifically reaches the Communist Party of any f oreign state or any political or geographical subdivision of such foreign state. A third facet of the statute is its requirement that the membership or affiliation must have been volun­ tary.6

§2.43c Defectors
The 1952 Act introduced a new escape clause for a former subversive, who is not otherwise inadmissible, by authoriz­ ing his admission if he establishes to the satisfaction of the consular officer and the Attorney General that he has ter­ minated his subversive activities and associations ; that he

1 Sec. 212 (a) (27), Act of 1952, 8 U.S.C. 1182(a) (27).
2 Sec. 212(a) (29), Act of 1952, 8 U.S.C. 1182(a) (29).
s Sec. 212(a) (28), Act of 1952, 8 U.S.C. 1182 (a) (28).
4 Sec. 101 {a)(37) , Act of 1952, 8 U.S.C. llOl(a) (37).
s Matter of B., 5 IN 255 (1953).
6 Sec. 212{a) (28) I, Act of 1952, 8 U.S.C. 1182(a) (28) I.

(Pub.334)

2-76 Immigration and Nationality Law § 2.44

ha een actively opposed to the program of the subversive party for at least five years; and that his admission to the Uited .States· would be in the public interest.7

§ 2.44 Draft Evaders
The Act of 1952 excluded aliens who departed from the United States to avoid or evade military service, or who re­ mained out of the United States for this purpose.1
The only exemption recorded in the statute is that aliens who were nonimmigrants at the time of their departure are not barred from entry as nonimmigrants. An alien who was not liable f or military service at the time of his departure may not be encompassed by this exclusion.2
The termination of compulsory military service lessens the current importance of the exclusion discussed in this section. Even more significant are two Presidential dispen­ sations. The first of these was a limited amnesty issued by President Ford for certain draf t evaders and deserters during the Vietnam episode (August 4, 1964 to March 28, 1973).3 But a more comprehensive "full, complete and un­ conditional pardon'' subsequently was proclaimed by Presi­ dent Carter for ''all persons who may have committed any off ense" during the same period (August 4, 1964 to March 28, 1973) in violation of the selective service statute, rules or regulations.4 The accompanying Executive Order 5 di­ rected that any person who is or may be precluded from reentering the United States under the statute discussed in this section ''shall be permitted as any other alien to enter the United States." The Attorney General has ruled that the Presidential Proclamation and Executive Order re-

., Sec. 212(a.)(28)(I), Act of 1952, 8 U.S.C. 1182(a)(28)(I) ; 22 CFR 42.91(a).
1 Sec. 212(a) (22), Act of 1952, 8 U.S.C. 1182(a) (22).
2 See Matter of R.A., 2 IN 282 (1945) ; Matter of J., 2 IN 401 (1945).
s Pres. Proc. 4313, 39 FR 33293 (1974) ; Exec. Order 11803, 39 FR 33297
(1974).
4 Pres. Proc. 4483, 42 FR 4391 (1977).
s Exec. Order 11967, 42 FR 4393 (1977).

(Pub.334)

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez