Petition for review of a final order of the Board of Immigration Appeals holding that § 241(f) of the Immigration and Nationality Act, 8 U.S.C. § 1251(f), did not permit waiver of deportation of petitioners, two aliens who entered the United States falsely posing as United States citizens and thereafter established a family here, and directing that they be deported pursuant to § 241(a)(2) of the Act as aliens who entered without inspection. Petition dismissed.
Lumbard, Mansfield and Mulligan, Circuit Judges. Mulligan, Circuit Judge (dissenting).
MANSFIELD, Circuit Judge:
Petitioners, Mr. & Mrs. Robert Reid, are natives and citizens of British Honduras who entered the United States at Chula Vista, California, which is on the Mexican border, falsely representing themselves to be United States citizens, with the result that they were not inspected as aliens by a United States immigration officer. Mr. Reid entered on November 29, 1968, and Mrs. Reid on January 3, 1969. Thereafter Mrs. Reid gave birth in the United States to two sons, one born on November 2, 1969, and the other on April 4, 1971, each of whom is a native born citizen of the United States.
On November 22, 1971, the Immigration and Naturalization Service ("INS") began deportation proceedings against the Reids, alleging that they were deportable under § 241(a)(2) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1251(a)(2)*fn1 as aliens who entered the United States without inspection as immigrants. At a hearing held on December 13, 1971, before a special inquiry officer the Reids conceded the essential allegations of the INS order to show cause, admitting that they had entered the United States by falsely claiming to be United States citizens and that upon entry they had not presented themselves to an INS officer for inspection as aliens. However, they contended that their deportation was precluded by § 241(f) of the Act, 8 U.S.C. § 1251(f), an ameliorative statute which waives deportation in the case of fraudulent entry by aliens otherwise admissible into the United States who have close family ties with United States citizens. The ties relied upon by them were their two children born in the United States after the Reids' illegal entry.
Holding that § 241(f) was inapplicable, the special inquiry officer sustained the charge that the Reids were deportable on the ground that they had entered the United States without inspection. By order entered on May 8, 1972, he granted them voluntary departure in lieu of deportation and directed that they be deported to British Honduras in the event that they did not depart. On appeal the Board of Immigration Appeals by order entered on December 12, 1972, affirmed the special inquiry officer's order and dismissed the appeal, holding § 241(f) to be inapplicable. This petition for review followed, our jurisdiction being invoked pursuant to § 106 of the Act, 8 U.S.C. § 1105a. For the reasons stated below the petition is dismissed.
The broad issue before us is whether § 241(f) of the Act, which concededly applies to aliens who gain entry as the result of fraud in obtaining immigrant visas or fraud upon being inspected as immigrants at the point of entry, see Immigration and Naturalization Service v. Errico, 385 U.S. 214, 17 L. Ed. 2d 318, 87 S. Ct. 473 (1966), also applies to aliens who enter by fraudulently posing as United States citizens. Section 241(f) provides in pertinent part:
"(f) The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen, or of an alien lawfully admitted for permanent residence."
On its face the language of the statute does not appear to limit the type of fraud or misrepresentation that will be waived or the status claimed by the entrant. Reading the statute literally, therefore, one might conclude that as long as the alien was "otherwise admissible" at the time of entry the species of fraud or nature of the entry is immaterial. But, as Learned Hand has wisely warned, "It is commonplace that a literal interpretation of the words of a statute is not always a safe guide to its meaning," Peter Pan Fabrics Inc. v. Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). Even more appropriate for present purposes are his remarks in Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (concurring opinion), where he stated:
"It does not therefore seem to me an undue liberty to give the section as a whole the meaning it must have had, in spite of the clause with which it begins. . . . There is no surer way to misread any document than to read it literally; in every interpretation we must pass between Scylla and Charybdis; and I certainly do not wish to add to the barrels of ink that have been spent in logging the route. As nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situation; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final." (144 F.2d at 624.)
See also Federal Deposit Ins. Corp. v. Tremaine, 133 F.2d 827, 830 (2d Cir. 1943) (L. Hand, C.J.). ("There is no surer guide in the interpretation of a statute than its purpose when that is sufficiently disclosed; nor any surer mark of over solicitude for the letter than to wince at carrying out that purpose because the words used do not formally quite match with it.") Apparently the Supreme Court had these principles of statutory construction in mind in Errico, supra, where it rejected a literal application of § 241(f), which would limit it to cases where an alien is charged with fraud in violation of § 212(a)(19) of the Act, 8 U.S.C. § 1182(a)(19),*fn2 concluding that it "cannot be applied with strict literalness," 385 U.S. at 217, since to do so would frustrate Congress' purpose in enacting it and would deny relief in cases where it was intended to be made available. There appears to be no reason for not using the same approach in determining whether a literal reading would expand the statute's application beyond that intended by its drafters.
The legislative history of § 241(f) reveals a desire on the part of Congress to avoid the tragic destruction of family unity that might occur where an alien who fraudulently entered the United States as an immigrant, either by procuring the issuance of an immigration visa through misrepresentation or by deceiving those charged with examination and inspection of immigrants upon entry, later became the spouse, parent or child of a United States citizen in the United States, with whom he then established a family. Prior to the adoption of the statute and its predecessor, § 7 of the Immigration Act of 1957, P.L. 85-316, 71 Stat. 640, our immigration laws*fn3 had mandated deportation of immigrants who gained admission through misrepresentation, even when made to escape persecution in the alien's country of national origin and even though, with the passage of time, the immigrant had established a family in the United States. The 1957 Act, which was incorporated into the current statute by §§ 15 and 16 of the Act of September 26, 1961, P.L. 87-301, 75 Stat. 650, alleviated the harshness of these earlier laws by relieving such immigrants of deportation charges based on entry gained by fraud provided they were otherwise admissible at the time of entry. See House Committee Report on the 1957 Act (H.R. Rep. 1199, 85th Cong., 1st Sess.) and H.R. Rep. 1086, 87th Cong., 1st Sess., p. 37.
Nothing in the text or history of § 241(f) indicates an intent on Congress' part to waive the essential substantive and procedural steps to which an alien must submit himself in order to obtain a visa and enter the United States. On the contrary the history and language of the statute disclose that Congress assumed that the waiver provision would apply only to immigrants who underwent the screening process. Its intent in this respect is evidenced by its direction to the INS in mandatory terms to inspect aliens seeking to enter the United States, 8 U.S.C. § 1225(a),*fn4 whereas no such mandate was enacted with respect to interrogation of returning United States citizens. This intent was further implied by Congressman Celler, Chairman of the Judiciary Committee of the House of Representatives, when, in commenting on the original waiver provision (later adopted as § 7 of the 1957 Act), he stated:
"This section also provides for leniency in the consideration of visa applications made by close relatives of United States citizens and aliens lawfully admitted for permanent residence who in the past may have procured documentation for entry by misrepresentation " (emphasis supplied) 103 Cong. Rec. 16301.
Similarly Senator Eastland, Chairman of the Senate Judiciary Committee, in commenting on those sections of the 1961 bill incorporating the previous waiver provisions in the current statute stated:
"Sections 13, 14, 15 and 16 of the bill also incorporate into the basic statute provisions which have been contained in separate enactments. Those provisions relate to the waiver of grounds of inadmissibility and deportability in the cases of certain close relatives of U.S. citizens and lawful permanent residents involving convictions of minor criminal offenses, fraudulent misrepresentations in connection with applications for visas or admission to the United States." (Emphasis supplied) 107 Cong. Rec. 19653-19654.
In short, Congress was concerned with fraud on the part of persons seeking to enter as aliens. An alien, whether seeking entry as an immigrant or as a non-immigrant (e.g., temporary visitor, temporary worker, foreign official, treaty alien, or the like) must first apply to the proper American authority abroad for a visa (immigrant or non-immigrant) or other prescribed documentary permission to enter. Next he must submit himself at the point of entry to an INS official for "inspection" as an alien. See Gordon and Rosenfield, Immigration Law and Procedure (1972) §§ 3.1 to 3.28, and 8 U.S.C. § 1225(a). Accordingly Congress, in enacting § 241(f), concerned itself with the two points in the immigration screening and inspection process where fraud might occur: (1) the procurement of "visas or other documentation" and (2) the "entry."*fn5
There is no evidence that Congress had in mind extending the waiver of deportation to an attempt to by-pass completely this immigration screening process and required "inspection" of aliens at the border. If petitioners had entered the United States as aliens and had not falsely claimed to be citizens they would have been required first to undergo a screening process designed to ascertain whether they were admissible and to have submitted to an "inspection" of them at the border. To attempt years later to reconstruct the information that would have been obtained from that ...