FilAm avoids deportation by having immigration regulation voided

by Atty. Emmanuel Samonte Tipon 

The U.S. Attorney General (Secretary of Justice in the Philippines) is the chief enforcer of immigration laws. He is authorized to prescribe regulations to interpret and implement the immigration statutes. These regulations have the force of law. It is very rare to get an immigration regulation invalidated by the courts. A Filipino American did it and avoided deportation.

Conchita, a Filipina, was admitted to the U.S. as a nonimmigrant treaty investor.  Rodolfo asked her if she knew somebody who might be able to help him get an extension of his visa. Conchita replied that she might. Later, Rodolfo cooperated with the Government in their investigation of a visa fraud scheme.

When Conchita re-entered the U.S., she was questioned by an immigration special agent about what she told Rodolfo. The agent said Conchita admitted that she had telephoned Cecilia, wife of a U.S. customs inspector, about Rodolfo’s immigration problem. The special agent reported that Conchita denied having told Rodolfo that she knew a person who could help him with an extension of stay for a fee of $250 to $300.

INS issued an Order to Show Cause, alleging that Conchita had violated the conditions of her nonimmigrant status pursuant to 8 C.F.R. § 214.1(f) by falsely stating to an INS special agent that she "had never told any alien that [she] could assist in obtaining an extension of nonimmigrant status for money." The OSC alleged that Conchita had told Rodolfo that she knew someone who could get him an extension for $200 to $300.

Rodolfo testified that Conchita had mentioned $300 to $400 or even more. The customs inspector’s wife said she spoke to Rodolfo about helping him fix his immigration papers and did not quote him a price, but asked him to take her to dinner.

The special agent testified that he was working with the Customs Service to investigate alleged corruption among customs officers in San Francisco. The customs inspector was the key target of the investigation. Conchita testified that she talked with Rodolfo about his visa problem, but did not tell him that someone would help him for money, although she referred him to the customs inspector’s wife.

The IJ ordered Conchita deported, finding that Conchita had made the false statement. The BIA held that Conchita gave false information to an INS agent in violation of 8 C.F.R. § 214.1(f), and was deportable under 8 U.S.C. § 1251(a)(9).

The Court of Appeals reversed, holding that the Attorney General exceeded his authority when he promulgated 8 C.F.R. § 214.1(f). It provides: “A condition of a nonimmigrant's admission and continued stay in the United States is the full and truthful disclosure of all information requested by the Service. Willful failure by a nonimmigrant to provide full and truthful information requested by the Service (regardless of whether or not the information requested was material) constitutes a failure to maintain nonimmigrant status under section 241(a)(1)(C)(i) of the Act.”

The regulation interprets 8 U.S.C. § 1251(a)(1)(C)(i) (Supp. V 1993). It provides: “Any alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 1258 of this title, or to comply with the conditions of any such status, is deportable.”

An agency's interpretation of a statute that it is entrusted to administer is entitled to considerable weight unless it is "arbitrary, capricious, or manifestly contrary to the statute." Congress did not intend to bestow unfettered discretion on the INS to request any information it desires, and then deport an alien for failing to deliver it truthfully. The truthful disclosure requirement must have some relevance to the alien's status.

Deportability or exclusion based upon misrepresentation is limited to willful misrepresentation of material facts. Congress did not intend to allow the INS to deport aliens for nonmaterial misrepresentations. The regulation is inconsistent with the statutory scheme.

The deportation order was based solely upon a finding that Conchita had made an untruthful statement to an immigration official. That statement was not material to her immigration status but related to a criminal investigation of other persons. Romero v. INS, 39 F.3d 977 (9th Cir. 1994)


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com, http://www.Hawaiimigrationattorney.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270 AM dial every Thursday at 7:30 a.m. This article is a general overview of the subject matter discussed and is not intended as legal advice. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)