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Caddali v. Immigration and Naturalization Service

filed*fn*: December 23, 1991.

LUBELYN CADDALI, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition to Review a Decision of the Immigration and Naturalization Service. INS No. A23-120-578.

Before: Alfred T. Goodwin, Otto R. Skopil, Jr. and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Noonan.

Author: Noonan

NOONAN, Circuit Judge:

Lubelyn Caddali appeals the denial of her petition for a waiver of deportability under section 241(f)(1) of the Immigration and Naturalization Act, 8 U.S.C. § 1251(f)(1), repealed by Pub.L 101-649, § 602(b)(1), Nov. 29, 1990. We reverse and remand.

FACTS

Lubelyn L. Caddali, a citizen of the Phillipines, was born in Banna Ilocos Norte, Philippines on July 28, 1964. She became engaged to David Alan Paa, a citizen of the United States, who filed a petition that a visa be granted her to enter the United States to marry him. The visa was issued. She entered the United States on February 26, 1983.

Unknown to Lubelyn Caddali, David Paa had been killed on February 18, 1983. Instead of a marriage, she attended his funeral.

On March 11, 1983 she entered into a marriage, now conceded by her to have been fraudulent, with Bienvenido Aspili, a United States citizen. On the basis of this marriage she adjusted her status to that of a permanent resident alien. The fraudulent character of her marriage came to the attention of the Immigration and Naturalization Service (the Service), which brought proceedings to deport her. Her father and her three-year-old daughter are citizens of the United States.

PROCEEDINGS

The immigration judge ruled that she was deportable and denied her application under 8 U.S.C. § 1251(f)(1) for waiver of deportability as the mother of a United States citizen and the child of a United States citizen.

Caddali appealed to the Board of Immigration Appeals (the Board) which ruled as follows:

According to 8 C.F.R. § 214.2(k)(5), the approval of a nonimmigrant fiance petition is automatically terminated when the petitioner dies before the beneficiary arrives in the United States. Since the respondent's fiance died prior to her arrival, her visa petition was automatically revoked upon his death and she was no longer entitled to the status accorded by her visa. See Matter of Alarcon, 17 I. & N. Dec. 574 (BIA 1980). Her nonimmigrant visa was therefore invalid at the time she sought admission to the United States, so the immigration judge properly found her to be deportable as charged.

The Board went on to say:

Caddali appeals to this ...


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