Interim Decision #2325 

MATTER OF BRAND! * 

In Deportation Proceedings 

A-20324237 

A-20324239. 

Decided by Board September 17, 1974 

(1) Respondents, natives and citizens of Mexico are parents of two United States citizen 

children. They are not ineligible foi special immigrant visas under any of the provisions 

of section 212 of the Immigration and Nationality Act. They are not eligible for 

suspension of deportation under section 244(a)(1) of the Act, as persons who. are 

ineligible to obtain a nonquota immigrant visa merely because visas are not immediately 

available. 

(2) The legislative history of the Act shows that within the context of section 244(0(3) of 

the Act the term "non-quota immigrant' and "special immigrant" are synonymous. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitors, 

remained longer than permitted. 

ON BEHALF OF RESPONDENTS: 

Joseph S. He rtogs, Esquire 

Jackson & H•rtogs 

580 Washington Street 

San Francisco, California 94111 

ON BEHALF OF SERVICE: 

Paul C. Vincent, Esquire 

Appellate Trial Attorney 

This is an appeal from an order of an immigration judge, finding the 

respondents deportable on the above-stated charge, denying their applications for suspension of deportation under section 244(a)(1) of the 

Immigration and Nationality Act, but granting them voluntary departure. The appeal will be dismissed. 

The respondents are husband and wife, both 30 years of age. They are 

aliens, natives and citizens of Mexico, who entered the United States at 

Los Angeles, California on or about June 17, 1965 as nonimmigrant 

visitors for a temporary period. Thereafter, they were authorized to 

remain until August 20, 1966. They failed to depart within the time 

specified. 

They admitted the truth of the factual allegations in their respective 

orders to show cause and conceded deportability. We find that deportability has been established by evidence which is clear, convincing and 

unequivocal. 

116 
Interim Decision #2325 

To be eligible for suspension of deportation under section 244(a)(1) of 

the Act, the respondents must establish, inter alia: (1) physical presence 

in the'United States for a continuous period of not less than seven years 

immediately preceding the date of application; (2) good moral character 

during all that period; and (3) extreme hardship to the respondents or 

other specified family members, which would result from deporta.tion -. 

Under section 244(0(3) of the Act, the provisions of section 244(a) 

shall not be applicable to an alien who is a native of any country 

contiguous to the United States or of any adjacent island named in 

section 101(b)(5): Provided, That the Attorney General may in his dis- 

. eretion agree to the granting of suspension of deportation if the alien 

establisheeto the satisfaction of the Attorney General that he is ineligible to obtain a nonquota immigrant visa, Mt- of October 24, 1962 (76 

Stat. 1247). 

. We agree with the conclusion of the immigration judge that the 

respondents are not eligible for suspension of deportation since they did 

not establish that they were ineligible to obtain special immigrant visas 

as required under section 244(f)(3) for natives of a' country contiguous to 

the United States. As parents of United.States citizen children, they are 

exempt from the labor certification requirements of section 212(a)(14) of 

the Act. The various grounds of ineligibility for immigrant visas are set 

out in the separate paragraphs, (1) through (31), of section 212(a) of the 

Act. There is no evidence in this record to demonstrate that these 

respondents are ineligible under any of the aforesaid paragraphs. The 

contention that the respondents are ineligible for special immigrant 

visas because visas are unavailable at the present time and will be 

unavailable for a substantial period of time was rejected by us in Matter 

of Najar, 13 I. & N. Dec. 737 (BIA 1971). In that case we stated: 

". . . We concur with the special'inquiry officer's opinion that the nonavailability of an 

immigrant quota number under the Western Hemisphere, and the need to wait some 

fourteen months for the assignment of a number, is an element of extreme hardship and 

is to be distinguished from the matter of being ineligible to obtain an immigrant visa." 

Relying' on Matter of Najar, we concur with the immigration judge's 

decision that the respondents are not eligible for suspension of deportation under 'section 244(a)(1) of the Act. 

Counsel contends that on the basis of our unreported decision in 

Matter of Ka Mei Lam, A44702549 (BIA' December 13, 1973), we 

should sustain his position that the respondents are ineligible for immigrant visas within the 'meaning of the proviso to section 244(0(3) of the 

Act. We do not agree. Although in Matter of Ka Mei Lam, supra, we 

found the alien ineligible for a visa, that conclusion was grounded on the 

fact that the alien was a citizen of who had failed to establish her 

birth in Mexico; 

117 
Interim Decision *2325 

The main objection raised by counsel is that the proviso to section 

244(f)(3) of the Act pertains, as specified by the language, to ineligibility 

to obtain a nonquota immigrant visa and not to ineligibility to obtain a 

special immigrant visa as indicated in a footnote in the publication of the 

Immigration and 'Nationality Act, printed for the use of the Committee 

on the Judiciary, House of Representatives. 

Under section 101(a)(27) of the Immigration and Nationality Act, 

approved June 27, 1952, provision is made for the admission without a 

quota charge of an immigrant who is a native of an independent Western 

Hemisphere country, 'U.S. Code Cong. & Adm. News, 82d Cong., 2d 

Sess. (1952), p. 1692.. The term "nonquota immigrant" was defined to 

mean, inter elia: "(C) an immigrant who was born in Canada, the 

Republic of Mexico, the Republic of Cuba, the Republic of Haiti, the 

Dominican Republic, the Canal Zone, or an independent country of 

Central or South America, and the spouse or the child of any such 

immigrant, if accompanying or following to join him. PS 

By the Act of October 3, 1965 (70 Stat. 911) the definition of "special 

immigrant" was substituted for the definition of "nonquota immigrant." 

Section 101(a)(27) of the Act now defines "special immigrant" to mean, 

inter alia: "(A) an immigrant who was born in any independent foreign 

country of the Western Hemisphere or in the Canal Zone and the spouse 

and children of any such immigrant, if accompanying, or following to 

join him: Provided, That no immigrant visa shall be issued pursuant to 

this clause until the consular officer is in receipt of a determination made 

by the Secretary of Labor pursuant to the provisions of section 212 

(a)(14)." By section 21(e) of the Act of October 3, 1965 (79 Stat. 911), 

provision was made for a numerical limitation of 120,000 annually on 

special immigrants within the meaning of section 101(a)(27)(A), exclusive of special immigrants who are immediate relatives of the United 

States beginning July 1, 1968 unless the Congress enacted legislation 

providing otherwise prior to that date. See U.S. Code Cong. & Adm. 

News, 89th Cong., 1st Sess. (1965), p. 3344. 

- After careful analysis of the statutory changes made to section 101 

(a)(27) of the Act, we are convinced that it was the intent of Congress to 

substitute the term "special immigrant" for the term "nonquota immigrant," since the quota limitation for special immigrants was to begin in 

1968 and then only if no legislation was enacted by the Congress prior 

thereto. The failure on the part of Congress to change the language in 

the proviso to section 244(f)(3) of the Act from "nonquota immigrant" to 

"special immigrant" when the Western Hemisphere quota limitations 

took effect in 1968 did not in any way alter the Congressional intent with 

respect to aliens from Western Hemisphere countries. Our decisions 

interpreting section 244(f)(3) indicate that within the context of this 

section "nonquota immigrant" and "special immigrant" are synonymous. 

118 
Interim Decision #2325 

See Matter of Najar, supra; Matter of Longsworth, 13 I. & N. Dee. 225 

(BIA. 1969); Matter of Valesquez-Hernandez, 11 I. & N. Dec. 781 (BIA 

1966); Matter of Padilla-Munoz, 11 I. & N. Dec. 836 (BIA 1966); and 

Matter of Reeves, 11 I. & N. Dec. 618 (BIA 1966). 

We are satisfied that the respondents have not established that the 

relief of suspension of deportation under section 244(a)(1) of the Act is 

available to them. Voluntary departure is the only discretionary relief 

for which the respondents are eligible and they were afforded this relief. 

Since execution of the immigration judge's order has been stayed during 

the pendency of this appeal, we will provide for voluntary departure for 

the respondents in accordance with the time fixed in the order. 

ORDER: The appeal is dismissed. 

Further order: Pursuant to the immigration judge's order, the respondents are permitted to depart from the United States voluntarily 

within 30 days from the date of this order or any extension beyond that 

time as may be granted by the district director; and in the event of 

failure so to depart, the respondents shall be deported as provided in the 

immigration judge's order. 

119