Interim Decision #1722 

MAIL or HUNG 

Application for Classification as Refugee 

A-12265468 

Decided by Regional Commissioner March 30, 1987 

Applicant, a 25-year old native of Hong Hong and British subiect who fled China 

in 1919 with her parents when the Communists took over their district, residing 

in Hong Kong 6 or 7 years immediately prior to coming to the United States 

where she has been physically present since her admission as a student in 

1960 while still a minor, whom parents and brothers and sisters have been 

paroled into this country from Hong Kong as refugees, and who is unable to 

obtain a visa to reside temporarily in Canada with her student husband, is 

a refugee who has not been firmly resettled in another country for the purposes 

of refugee classification under the proviso to section 203(a) (7) of the Immigration and Nationality Act, as amended. 

In BEBALIT OF APPLICANT Joseph S. Hertogs, Esquire 

680 Washington Street 

San Francisco, California 94111 

This case comes forward on certification by the District Director, 

San Francisco who on January 26, 1967 denied applicant's motion 

to reopen and reconsider her application for adjustment of status as 

a permanent resident pursuant to section 245 of the Immigration and 

Nationality Act, as amended. In his order of January 26, 1967 the 

District Director stated in part as follows : 

Title 8, Code of Federal Regulations, 103.5, requires that a motion to reopen 

or reconsider state new facts to be proved or the reasons for reconsideration and 

that they be supported by affidavits or other evidentiary material. The instant 

motion seems to be lacking in this respect. The facts show that the applicant did 

marry a Peter Chiang on May 5, 1966, who presently is a student in Canada. 

According to the record, the applicant's husband has no status in the United 

States. It has been established that this applicant was born in Hong Kong, B.C.O. 

and is now a citizen of Hong Kong. An applicant's nationality per se is not a basis 

for finding the applicant ineligible under the proviso on the ground that he is 

able to return to the country of nationality. However, the matter of nationality 

may be a pertinent consideration along with other factors in determining 

whether the alien has become firmly settled in a foreign country other than the 

one from which she lied. Since the applicant's husbanil is residing in Canada 

and the applicant is a British =Meet, it is doubtful she would encounter any 

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interim Decision #1722 

difficulty in taking up residence with her husband. Moreover, a marriage has 

been defined in law "as a contract by which a man and a woman, capable of 

entering into such contract, mutually engage with each other to live their whole 

lives together in -the state of union which ought to exist between a husband and 

wife.• - 

It is the view of this office that the applicant has been firmly resettled based 

upon the above facts, and is therefore not qualified for adjustment tinder the 

proviso of section 203(a) (7). 

The above view as to the applicant's being "firmly resettled" cannot 

rest on the factual basis asserted. Neither the belief that the applicant 

-could probably join her recently-married husband in Canada nor the 

obligations arising from a marriage contract, support such a finding. 

Thus, the District Director's holding must be rejected. 

The applicant, a 25-year-old married female, a native of Hong 

Kong, B.C.C., was admitted to the United States at Honolulu on September 4, 1960 as a nonimmigrant student to attend Napa Senior High 

School, Napa, California. She received several extensions of stay, the 

last expiring on June 2, 1966 with a voluntary departure date of 

November 15, 1966. On April 22, 1966 she filed an application fox 

status as permanent resident pursuant to section 245 of the Immigration and Nationality Act, as amended. 

On May 27, 1966 a petition executed in the applicant's behalf by 

her father was approved by this Service according her preference 

under section 203(a) (2) of the Act, as amended, as the unmarried 

daughter of a lawful-resident alien. Approval of the petition was 

revoked pursuant to 8 CFR 205.1 when the applicant subsequently 

informed this Service that on May 4, 1966, in Las Vegas, Nevada, she 

had married Peter Chiang also known. as Kai Leung Chiang, a native 

of Hong Kong. With this action, her status became that of a nonpreference immigrant. As no visa was readily available, her application 

for Oaths as a permanent resident was denied by the District Director 

on October 14, 1966. Concurrently with the denial, attorney of record 

was advised to have the applicant file an application for status as a 

refugee under the proviso to section 203(a) (7) of the Act as amended. 

Such an application was submitted on November 23, 1966. 

Section 203(a) (7) of the Immigration and Nationality Act, as 

amended, provides, so far as pertinent here: 

Conditional entries shall next be made available by the Attorney General, 

pursuant to such regulations as he may prescribe and in a number not to exceed 

6 per centum of the number specified in section 201(a) (ii), to aliens who satisfy 

an Immigration and Naturalization Service officer at an examination in any 

non-Communist or non-Communist-dominated country, (A). that (1) because 

of persecution or fear of persecution on account of race, religion, or political 

opinion they have fled (I) from any Communist or Communist-dominated 

country or area, . . . and (ii) are linable nr unwilling to return to snob emu179 
Interim Decision #1722 

try or area on account of race, religion, or political opinion, and (iii) are not 

nationals of the countries or areas in which their application for conditional 

entry is made; . . . Provided, That Immigrant visas in a number not exceeding 

one-half the number specified in this paragraph may be made available, in lieu 

of conditional entries of a like number, to such aliens who have been continuously physically present in the United States for a period of at least two years 

prior to application for adjustment of status. 

The record establishes that the applicant fled from Communist 

China with her parents. However, in Matter of Sun., Lit. Dec. No. 

1685, it has been held that an alien who fled from Communist China, 

but thereafter became firmly resettled is, by virtue thereof, ineligible 

for classification under the proviso to section 203 (a) (7). Thus, it must 

also be determined whether such resettlement has been effected in the 

present instance. 

In opposition to the District Director's denial of January 26, 1967, 

counsel submits that new facts and evidentiary material are set forth 

in the applicant's application for refugee status; that her parents, 

natives of China, and six brothers and three sisters, born in Hong 

Kong, were all documented under the Hong Kong Parolee Program 

and subsequently were granted adjustment of status pursuant to the 

proviso to section 208(a) (7) and section 245 of the Act, as amended. 

Conned further submits that the applicant was at no time "firmly 

resettled" in Hong Kong; that she has never been to Canada nor had 

any type of domicile or residence in that country; and that her husband upon completion of his studies in the United States proceeded 

to Canada only to further his education and was admittted to that 

country in a temporary student status. 

The entire record has been carefully reviewed and considered. One 

of the major refugee programs which has been administered by this 

Service was that of Chinese refugees in Hong Kong who fled from 

the mainland. On May 23, 1062, the President directed steps be 

taken to parole into the United States several thousand Chinese from 

Hong Kong under section 212(d) (5) of the Immigratioh and Nationality Act to assist in alleviating conditions in that colony caused by 

the influx of persons fleeing from Chinese tyranny on the mainland 

of China. (Press conference of May 23, 1962, Published Papers of the 

President of the United States, John F. Kennedy, 1962, p. 431). In 

discussing the use of parole authority, Representative Michael A. 

Feigha.n, Chairman of Subcommittee No. 1 of the House Judiciary 

Committee, observed "that the conditions of crisis and dire emergency 

were present when executive authority was exercised in the case 

of ... Chinese refugees in Hong Kong." (Study No. 1, House Judiciary Committee, 1964, page 92; Mr. Feighan's statements in announcing this report. Congressional Record of February 5, 1964, page 1877.) 

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Interim Decision #17,22 

The applicant is a. 25-year-old married female, a native of Hong 

Kong and according to her passport, a "British subject citizen of the 

United Kingdom and colonies", who fled China in 1949 with her parents when the Communists took over their district. She resided in 

Hong Kong six or seven years immediately prior, to coming to the 

United States in 1960 as a student. In support of counsel's statements 

that the applicant's parents, brothers and sisters were admitted to the 

United States under the Hong Kong Parolee Program and that their 

status subsequently was adjusted to that of permanent residents, the 

record evidences that the status of the applicant's father (Yue Hing 

Yee SIN, A18 684 413) was so adjusted by the District Director at 

San Francisco, March 28, 1966. The applicant was not documented as 

a refugee and did not enter the United States under the program 

along with her family as she previously had entered as a student. 

However, the record evidences that She was registered on the waiting 

list of intending immigrants at the American Consulate General, 

Hong Hong as of 1952, at which thus, and at the time of her entry into 

the United States, she was an unemancipated minor and member of 

the household of her parents, whose refugee status has been recognized. It does not appear from the record that the applicant now has 

any close family ties or equities in Hong Kong and would be separated 

from her parents, brothers and sisters should she have to return to 

that country. There is no evidence that she'held any official position in 

the Colony or that she otherwise reestablished herself there after fleeing China. Applicant's profession as indicated by her passport is 

"Accountant". The applicant has stated under oath to an officer of this 

Service that she has never lived in Canada and is unable to obtain a 

visa to reside temporarily with her student husband in that country. 

In view of the foregoing, we concluded that the applicant has not 

become firmly resettled within the meaning or intent of the 

either in Hong Kong or Canada and that, she qualifies for refugee 

classification. Her application for adjustment of status was denied 

solely because of the District Director's decision that a, visa number 

is not immediately available to the applicant. The approval of her 

application for refugee classification overcomes that ground. Accordingly, the following orders will be entered. . 

ORDER: It is ordered that the application for• classification as a 

refugee under the proviso to section 203 (a) (7) of the Immigration 

and Nationality Act, as amended, be approved. 

It is further ordered that the application for status as a permanent 

resident pursuant to the proviso to section 203(a) (7) and section 245 

of the Immigration and Nationality Act, as amended, be granted. 

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