Interim Decision #2198 

MATTER OF DONOSO 

In Visa Petition Proceedings 

A-19368215 

A-19368216 

A-19368217 

Decided by Board April 27, 1973 

The preference classifications of section 203(a) of the Immigration and Nationality Act, as amended, are not available to a native of an independent country of 

the Western Hemisphere. Hence, beneficiaries, who were born in Ecuador, are 

ineligible for preference classification under section 203(a)(2) of the Act as the 

unmarried children of the lawful permanent resident petitioner. 

The lawful permanent resident petitioner filed applications to 

classify the status of the beneficiaries as his unmarried children 

under section 203(a)(2) of the Immigration and Nationality Act. 

The District Director denied the applications because the beneficiaries, who were all born in Ecuador, are natives of the Western 

Hemisphere and, consequently, not eligible for any preference 

under the Immigration. and Nationality Act. The petitioner appealed. His appeal will be dismissed. 

The preference categories established under section 203(a) of the 

Act are available to' aliens who are subject to the numerical 

limitations system specified in section 201(a) of the Act. Section 

201(a) specifically excludes "special immigrants" from its scope. 

According to section 101(aX27XA), persons born in an independent 

foreign country of the Western Hemisphere are "special inimigrants." Because of their birth in Ecuador, an independent country of the Western Hemisphere, there is no preference category 

available to the beneficiaries. Hence, the District Director's decision was correct. 

Even though,we must dismiss the petitioner's appeal, we feel we 

should point out that there are two possible courses of action that 

may be open to him. First, if he were to become naturalized, he 

could bring his unmarried children under the age of 21 years into 

the •United States as his "immediate relatives" under seetion 

201(b) of the Act. Immediate relatives who are otherwise qualified 

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Interim Decision #2198 

are admitted without regard to numerical limitations. We mention 

this possibility inasmuch as the record indicates that the petitioner was admitted as an immigrant in 1967, and the residence 

requirement for naturalization contained in section 316(aX1) of the 

Act is five years. Second, the petitioner could apply for special 

immigrant visas for his children. This would establish a priority 

date for them under the Western Hemisphere annual limitation of 

120,000. Pursuant to section 21(e) of the Act of October 3, 1965 (P.L. 

89-236, 79 Stat. 920), a special annual ceiling was established for 

Western Hemisphere special immigrants (other than those who 

qualify as immediate relatives under section 201(b)).. There are no 

preference classes within the Western Hemisphere quota, and 

Western Hemisphere special immigrants will be considered for 

entry, without priority, on a first-come, first-served basis. 

Petitioner's notice of appeal contains the contention that the 

District Director's decision was discriminatory. We regard this as 

an attack on the constitutionality of the statutory arrangement 

under which natives of independent countries of the Western 

Hemisphere do not come within the scope of the preference system 

set forth in section 203(a), but come under the Western Hemisphere annual ceiling as special immigrants instead. In Mcitter of 

Santana, 13 I. & N. Dec. 362 (BIA, 1969), we rejected a similar 

argument. We held in the Santana case that Congress has the 

absolute Sand unqualified power to prescribe the conditions under 

which an alien may enter the United States. We also reiterated 

the conclusion that we lack power to pass upon the validity of the 

statutes we administer: 

Therefore, despite the sympathetic aspects of this case, we have 

no alternative but to uphold the District Director's decision and 

dismiss the appeal. The following order will accordingly be entered. 

ORDER: The appeal is dismissed. 

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