(A)  Elements of the Ground of Deportation.  Any noncitizen is deportable who, at the time of entry, was within one or more classes of noncitizens inadmissible under the law at the time of entry.[1400]  NOTE: No conviction is required to establish this ground of deportation.

 

      The decision by a consul or immigration officer to admit a noncitizen is not binding upon the United States.  If the officer made a mistake, or was deceived, the immigrant may be deported at any subsequent time when the existence of the ground of inadmissibility is discovered.[1401]  Res judicata does not preclude the government from reconsidering a grant of admissibility,[1402] and the government is not estopped from later questioning an improper entry or admission, in the absence of affirmative misconduct of its officers.[1403]  The government may deport the noncitizen on this ground even though s/he could have been lawfully admitted at the time of admission if s/he had complied with the prescribed requirements.[1404]

[1400] INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A).

[1401] Vajta v. Watkins, 179 F.2d 137 (2d Cir. 1950).  See also Lazarescu v. United States, 199 F.2d 898 (4th Cir. 1952).

[1402] Mannerfrid v. Brownell, 238 F.2d 32 (D.C. Cir. 1956); Matter of LaRochelle, 11 I. & N. Dec. 436 (BIA 1965) (approval at entry by medical officers does not preclude reexamination in deportation proceeding of medical inadmissibility at entry); Matter of Khan, 14 I. & N. Dec. 397 (BIA 1973) (not entitled to preference); Matter of Polanco, 14 I. & N. Dec. 483 (BIA 1973) (not entitled to exemption from labor certification as child of resident, because of intervening marriage, no estoppel). See Charles Gordon, Finality of Immigration and Nationality Determinations, 31 U. Chi. L. Rev. 433 (1964); Asimow, Estoppel Against the Government: The Immigration and Naturalization Service, 2 Chicano L. Rev. 4 (1975).

[1403] Santiago v. INS, 526 F.2d 488 (9th Cir. 1975); Angeles v. District Director, INS, 729 F. Supp. 479, (D. Md. 1990) (government not estopped from excluding or deporting noncitizen although each time she left or returned to the United States, immigration officers wrongfully told her that as long as she did not remain out of United States for more than one year, her permanent residence status would remain valid; noncitizen had failed to show affirmative misconduct beyond negligence or mere mistake, and officers did not know all material facts regarding the noncitizen’s circumstances).

[1404] Marty v. Nagle, 44 F.2d 695 (9th Cir. 1930); McCandless v. Murphy, 47 F.2d 1072 (3d Cir. 1931). See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.04[3] (unlawful presence in the United States) (2004).

Second Circuit

INADMISSIBILITY BASED UPON AN ADMISSION - ADMISSIONS INSUFFICIENT PRE-1990
Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (government failed to show noncitizen deportable for being inadmissible at entry or adjustment, under INA 237(a)(1)(A), on the basis that he admitted commission of a controlled substances offense, under current INA 212(a)(2)(A)(i)(II), since this ground of inadmissibility was not triggered by an admission of commission of the offense until IMMACT 1990, effective November 29, 1990, and noncitizen adjusted status prior to that date).

DEPORTABLE BECAUSE INADMISSIBLE AT TIME OF ENTRY OR ADJUSTMENT - COURT MUST LOOK AT LAW AS IT EXISTED AT TIME OF ENTRY/ADJUSTMENT
Francis v. Gonzalez, __ F.3d __, 2006 WL 768549 (2d Cir. Mar. 27, 2006) (to determine whether a noncitizen is deportable for being inadmissible at entry or adjustment under INA 237(a)(1)(A), the court must look to the law as it existed at the time of entry or adjustment, not current law).