Interim Decision #2761 

MATTER OF KOHAMA 

In Section 245 Proceedings 

A-21328027 

A-21323028 

Decided by Associate Commissioner, Examinations May 8, 1978 

(1) Notwithstanding that the courts have held Affidavits of Support to impose only a 

moral obligation on the affiant, the Service must give the affidavit due consideration 

consistent with affiants' ability to provide the promised support. 

(2) The Affidavit of Support in this case was accompanied by acceptable evidence of 

of lants' ability to provide the promised care sud support. The record also showed that 

they had done so for a number of years. The beneficiaries of the affidavit have never 

sought public assistance. This evidence sufficiently establishes that these applicants 

for adjustment of status under section 245 of the Immigration and Nationality Act, 8 

U.S.C. nob, will not become public charges under section 212(a)(16) of the Act, S 

U.S.C. 1182(a)(15). The applications are granted. 

(3) Platter of Harutunian,14 I&N Dec. 583 (R.C. 1974), distinguished. 

Or; BEHALF OF APPLICANTS: Eugene Tomine, Esquire 

370 Grand Avenue 

Oakland, California 94610 

This matter is before the Associate Commissioner, Examinations on 

certification as provided by 8 C.F.R. 103.4 for review of the District 

Director's decision denying the motion to reconsider his previous 

decision denying the applications for status as permanent residents 

under section 245 of the Immigration and Nationality Act, 8 U.S.C. 

1255, as amended. 

The applicants are husband and wife, natives and citizens of Japan, 

73 and 65 years of age. They last entered the United States as nonimmigrant visitors for pleasure on December 10, 1975, and were 

authorized to remain until March 16, 1976. 

On March 23, 1976, immediate relative visa petitions were filed in 

their behalf by their naturalized United States citizen daughter. Concurrent with these petitions, the applicants filed applications to adjust 

their status to that of permanent residents pursuant to section 245 of 

the Immigration and Nationality Act, as amended. Satisfactory 

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Interim Decision #2761 

evidence of the claimed daughter-parent relationship was presented 

and the petitions were approved May 1976. By virtue of their approved 

visa petitions and their admission to the United States as nonimmigrant visitors, they were statutorily eligible to file the application 

for adjustment of status. 

The applicants are unemployed and do not have savings or independent means of support. They rely, instead, on support from their 

daughter and son-in-law, both of whom are employed. As evidence of 

this support they presented affidavits executed by the daughter and 

son-in-law, along with evidence of their combined income of approximately $34,000 per year. 

Following interviews in connection with the pending applications 

for adjustment of status on June 22, 1976, the applicants were advised 

that it would be necessary for them to post bonds each in the amount of 

$5,000 in order to insure that they would not become public charges. 

The applicants' son-in-law advised the Service by letter dated 

September 15, 1976, that it would be difficult for him and his spouse to 

post the bonds doe to the charges imposed by the bonding company. In 

this letter the Service was requested to grant a period of 2 or 3 months 

to allow for the location of a suitable bonding company. 

The record contains no evidence that the bonds were posted, and on 

March 17, 1977, the applications were denied by the District Director 

on the grounds that the applicants were likely to become public 

charges, pursuant to section 212(a)(15) of the Act, 8 U.S.C. 1182(a)(15). 

In his decision the District Director concluded that the affidavits of 

support presented by the daughter and son-in-law were not acceptable 

and bases this conclusion on two court decisions, County of San Diego 

v. Diloria, 276 A.C.A. 437 and Department of Mental Hygiene of 

California v. Renal, 173 N.Y.S. 2d 231 (1957). The District Director 

states that these court decisions hold that the affidavit of support is a 

moral obligation and does not create any legal obligation to support 

the beneficiaries of the affidavit. The District Director also relied upon 

the Matter of Harutunian, 14 I&N Dec. 583 (R.C. 1974). This decision 

also related to an applicant for adjustment of status pursuant to 

section 245 who was of advanced age, without means of support and 

with no one responsible for her support. This decision set forth criteria 

to be taken into consideration in determining the applicability of 

section 212(a)(15). The alien's age, incapability of earning a livelihood, 

a lack of sufficient funds for self-support, and a lack of persons in this 

country willing and able to assure that the alien will not need public 

support. 

Following the denial of the applications, a motion to reopen and 

reconsider was filed April 22, 1977. The motion, which was prepared by 

the son-in-law set forth the following facts: He and his wife, the 

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applicants' daughter, have been responsible for virtually all the wife's 

family's support since 1961. The motion describes a closely knit family, 

each doing their portion to see that the others did not want for the 

necessities otlife. Three other children, one of whom is now married, 

are now employed and self-sufficient and also able to provide support 

to their parents. Attached to the motion are copies of numerous checks 

as well as bank records which reflect that the applicants' daughter and 

son-in-law have contributed several thousands of dollars to the 

parents' support over the last 10 or more years. 

The motion to reopen and reconsider was considered by the District 

Director on June 10,1977, who concluded that no new facts or evidence 

had been presented and accordingly affirmed his previous denial. 

Despite the two State court decisions cited by the District Director, 

it is not believed the affidavits of support, although not legal obligations, are without weight in determining whether a person is likely to 

become a public charge. 8 C.P.R. 103.2(b)(1), which sets forth the 

requirement of evidence in support of applications, states in part: 

"Worm I-24 may be used if an affidavit of support would be helpful in 

resolving any public charge aspect." In light of this regulation, the 

Service must give the affidavits due consideration consistent with the 

deponents' ability to provide the promised support. In the case at hand, 

the deponents have presented evidence of support over the past several 

years, as well as their ability to do so into the foreseeable future. 

In the matter of Harutunian, supra, cited by the District Director, 

the circumstances are not parallel to the case at hand. In Harutunian, 

supra, the applicant was without any evidence of support, either of her 

own or by another person. In addition, she had a 'history of being 

dependent on the State of California for old age assistance; in the 

contrast, the present applicants have not received public assistance. 

It is my conclusion that the applicants, although not self-supporting, 

have presented sufficient evidence that they will be supported if 

granted permanent resident status in the United States and are not 

likely to become public charges and are not, therefore, subject to the 

exclusion provisions of section 212(a)(15) of the Immigration and 

Nationality Act, as amended. 

- 

In view of the foregoing, it is determined that the record establishes 

the applicants' eligibility for the benefits sought under section 245 of 

the Act. Accordingly, the District Director's decision to deny the 

motion to reopen and reconsider is hereby withdrawn and the motion 

is granted. 

ORDERS The decision of the District Director is withdrawn, the 

motion to reopen and reconsider is granted and the applications for 

permanent status are approved. 

259