Interim Decision #2009

MATTER OF REYES
In Visa Petition Proceedings
A-17859880
Decided by District Director September 26, 1969
Affirmed by Regional Commissioner October 28, 1969
'etitioner/beneficiary, who has a bachelor's degree, with a major in social
work, qualifies on the basis thereof as a member of the professions as a
social worker within the meaning of sections 101(a) (32) and 203(a) (3) of
the Immigration and Nationality Act, as amended. [Matter of Cruz, Int.
Dee. No. 1920, overruled.]

BEFORE THE DISTRICT DIRECTOR

The petitioner, a 30 year old native and citizen of The Philipnes, seeks third preference status as a professional social
orker. The petition was denied June 6, 1969, in the light of Matr of Cruz, Int. Dec. No. 1920, as the petitioner lacks a master's
.gree. On appeal the matter was remanded by the Regional
anmissioner for further consideration.
The petitioner possesses a Bachelor of Arts degree issued
Irch 22, 1960 by the Philippine Women's University. The Office
Education, United States Department of Health, Education
d Welfare has reviewed a transcript of her studies and found
petitioner's degree is the equivalent of a Bachelor of Arts de!e, with a major in Social Work, issued by an accredited college
the United States.
Ile Department of Labor has issued a labor certification for
ttry level" in Social and Welfare Work, following review of the
itioner's statement of qualifications, Form ES-575A and supting documents consisting of certified copies of the petitioner's
ege degree and transcript of studies. The petitioner has been
Toyed as a social worker since 1968 by the Department of SoWelfare, Manila, Philippines.
'he issue is whether possession of a Bachelor's degree, with a
or in Social Work, qualifies the holder, a social worker, as a

406

Interim Decision #2009
member of the professions within the meaning of the Immigration and Nationality Act. In Matter of Cruz, supra, it was held
that a Master's degree or its equivalent in training and experience, was required for professional status in that activity.
It is significant that the labor certification is for "entry level"
in Social and Welfare Work. Earlier editions of the Department
of Labor's Occupational Outlook Handbook contained a statement
that "full professional status requires two years of graduate
study in an accredited school of social work." The 1968-69 Edition of the handbook eliminated this statement. The 1968-69 Edition states that a bachelor's degree generally is the minimum educational requirement for beginning jobs in social work.
The Department of Labor has advised that its Occupational
Outlook Handbook lists minimum qualifications for an occupation
as well as optimum, and does not consider that optimum requirements must be met for certification for an occupation, professional or otherwise. The Department has further advised that it
considers persons who have bachelor's degrees in Sociology,
equivalent to a degree issued by an accredited school in the
United States, meet the criteria for certification as members of
the professions. We concur.
On the basis of the entire record, the petition will be approved.
However, because of the holding in Matter of Cruz, supra, certification will be made to the Regional Commissioner for final decision.
ORDER: It is ordered that the petition be, and the same is
hereby approved.
It is further ordered that the decision be certified to the Regional Commissioner for final decision.
BEFORE THE REGIONAL COMMISSIONER

The decision of the District Director approving the petition of
Estrella Calimba REYES, for third preference classification pursuant to section 203 (a) of the Immigration and Nationality Act
as a member of the professions on the basis of her possessing a
Bachelor of Arts degree, with a major in Social Work, is before me
by certification pursuant to 8 CFR 103.4 because such holding is
in conflict with Matter of Cruz, Int. Dec. No. 1920, which held
that a Master's degree, or its equivalent in training and experience, was the minimum requirement for such professional status.
I concur in the findings and conclusions of the District Director
in this case and his decision will be affirmed. Accordingly, to the

407

Interim Decision #2009
extent that Matter of Cruz, supra, is inconsistent with this holding, that decision is overruled.
ORDER: It is ordered that the decision of the District Director
be and is hereby affirmed.

408


MATTER OF G-

in DEPORTATION Proceedings
A-10808945
Doided by Board May 6, 1959
Crime involving moral turpitude-18 U.S.C. 1001—False writings in matter in
which U.S. is involved—Does not involve moral turpitude.
Moral turpitude will not be found in the offense defined by the second part of
18 U.S.C. 1001 (making false writings in a matter involving the United
States) while the conflict among Circuits remains unresolved as to whether
materiality is essential to support a conviction.
CHARGE:

Order: Act of 1952—Section 241 (a) (4) (8 U.S.U. 1251(a) (4) J--Uonvicted
of crime involving moral turpitude committed within five years
after entry and sentenced to confinement for a year or more—Conspiracy to make and use false writings.

BEFORE THE BOARD

Discussion: The Assistant Commissioner, Investigations, requests
that this Board reconsider its order of February 10, 1959, which
held that respondent was not deportable on the charge stated above.
The facts are fully set forth in previous orders. The issue is
whether mural turpitude is involved in a conviction under the second

part of 18 U.S.C. 1001 which, in brief, concerns the making of false
writings knowing them to contain false statements in a matter in
which the United States is involved.
In similar laws, even as to statements made under oath, moral
turpitude is not found unless materiality is an element (Matter of
, 1 I. &
S—, 2 I. & N. Dec. 353, 361, footnote 15; Matter of G
N. Dec. 73). Section 1001 does not require that the statement in-.
volved be under oath, and there is a "sharp conflict" between circuits
as to whether materiality is required (United States v. Quirk, 167
F. Stipp. 462. 464 (Ell. Pa., 1958) ). (The cases supporting the
different positions are listed in footnote 3 on page 464 of Quirk.
Four circuits require materiality (4th, 5th, and 6th) ; the Second
and Third Circuits hold that materiality is not an element.)
The conviction in the instant case occurred in the Fifth Circuit
where materiality is required to obtain a conviction under the second
315

part of section 1001. The Service is of the opinion that since
materiality is an element of the conviction involved here, we must
rule that moral turpitude is involved. As far as the immigration
laws go, it is immaterial that conduct of the respondent may have
involved moral turpitude, if the law under which he was convicted
does not inherently involve moral turpitude (Matter of S , supra,
pp. 360-362). So, it is with the law itself, not the respondent's
conduct, that we are concerned. Without materiality, we cannot
find that the law involves moral turpitude. There is a conflict in
the jurisdiction as to whether materiality is involved. A substantial
doubt exists as to whether the law does require materiality. Such
a doubt will exist until the matter is clarified by either the Supreme
Court or by legislation. Doubt must be resolved in favor of the
alien. Until clarification comes, we cannot hold that the Service
has borne its burden of establishing that the alien has been convicted of a crime involving moral turpitude.
Moreover, let us see where the Service view will lead. We shall
assume for the purpose of this discussion that moral turpitude is
involved if the law requires materiality. If the conviction oceure in

a jurisdiction requiring materiality, the alien will he deportable.
What should be done as to a person who had been convicted in the
jurisdiction where materiality is not required? Could it be held
that such a person has been convicted of a crime involving moral
turpitude? We think not. In the court where he was convicted
materiality is not an element; it need not be alleged nor proven.
This person has been convicted under a law which does not inherently involve moral turpitude. We would be required to find that
he was not deportable. Then we would be faced with the situation
that persons convicted of identical ulTelist0 under identical la wa
would be deportable if convicted in one jurisdiction but not deportable if convicted in another jurisdiction. This cannot be. A Federal law must be given a uniform interpretation for immigration
purposes. Until the conflict is resolved, the law can be interpreted
uniformly only by holding that a person convicted under the portion
with which we are concerned has not been convicted of a crime'
involving moral turpitude.
Order : It is ordered that the motion be and the same is hereby
denied.

316


Interim Decision #2508

MATTER OF M/T "DONA RITA"
In Fine Proceedings
NYC- 10/52.3953

Decided by Board July

30, 1976

(1) Alien crewman arrived in New York via British Airways and was inspected and
admitted into the United States as an alien in transit without a visa enroute to his vessel
which was do eked in Trinidad. Since his vessel was not in New York, he was taken into
custody there by the vessel's owners, and subsequently absconded. The Service then
instituted these fine proceedings against the vessel pursuant to section 254(a)() of the
Immigration and Nationality Act.
(2) Section 254(a)(2) of the Act is directed against the carrier which, having brought an
alien crewman to the United States, fails to detain him on board the vessel after he has
been refused a landing permit. Since the .M/T "Dona Rita" was not in the United States
and was not expected to be in the United States, the fine proceedings were unproperly
instituted anc the fine will be cancelled.
In re:

MIT "D )NA RITA% alien crewman involved: Asadulo Hogue

Basis for Fine: Act of 1952—Section 254(a)(2) [8 U.S.C. 1284].
ON BEHALF Or CARRIER:

John C. Lane, Esquire
Freehill, Hogan & Mahar
21 West Street
New York, New York 10006

The Acting District Director in New York imposed a fine of $1,000
upon the carrier, with regard to the vessel M/T "Dona Rita," for a
violation of section 254(a)(2) of the Immigration and Nationality Act,
and, in a decision dated October 14,. 19'75, he denied a request for
cancellation of the fine. The carrier has appealed from that decision. The
appeal will be sustained and the fine will be cancelled.
Section 2541(a)(2) of the Act provides in pertinent part as follows:
"The owner, agent, consignee, charterer, master or commanding officer of any vessel or
aircraft arriving in the United States from any place outside thereof who fails . . . (2)
to detain any alien crewman on board the vessel . . . after such inspection [as set out in
section 254(a)(1)] unless a conditional permit to land has been granted such alien
crewman . . . shall pay to the collector of customs of the customs district in which the
port of arrival is located or in which the failure to comply with the orders of the officer
',mum the sum of $1,00.0 for each alien crewman in respect of whom any such failure

occurs." (Emphasis supplied.)
718

Interim Decision #2508
The record shows that an alien, a citizen of Bangladesh, was hired in
Bangladesh as a crewman on the M/T "Dona Rita," which was docked in
Trinidad. A ticket was purchased for him from Bangladesh to New York
on British Airways. According to the carrier, the alien was to be flown
from New York to Trinidad where he would join the vessel. Upon
arrival in New York he was inspected and admitted as an alien in transit
without visa through the United States.
In his decision of October 14, 1975 the Acting District Director states
that it was the understanding of the Immigration and Naturalization
Service and British Airways that the MIT "Dona Rita" was in New
York. Upon learning that the vessel was, not in New York, British
Airways notified the carrier in New York, who thereupon took custody
of the alien. The alien subsequently absconded and the Service instituted these proceedings.
Section 254(a)(2) is directed against the carrier which, having brought
an alien crewman to the United States, fails to detain him after he is
refused a landing permit. Since the M/T "Dona Rita" was not in the
United States and was not expected to be in the United States, fine
proceedings under section 254(a)(2) were improperly instituted. Accordingly, the appeal will be sustained and the fine will be cancelled.
ORDER: The appeal is sustained; the fine is cancelled.

719


Interim Decision #1605

MATria

or MIZTIIS

In Deportation Proceedings
A-14019286
'Decided by Board June 16, 1966

Respondent's deportability under clause (2) of section 241(e), - Immigratlon
and Nationality-Act, is established since he has failed- and refused to fublU
his marital agreement which is deemed to have been made for the purpose
of procuring entry as al:Immigrant where be married his United States
citizen spouse by civil ceremony in Poland in 1983, a religious ceremony, be"ing then precluded by the recent death of her father, to be performed after
entry"; for some time before his proposal and marriage' he bad been •registered with the U.S. consul for an immigrant 'Ma, during which period, as
well as at the time of his arrival in this country in April 1984, the quota to
which he was chargeable was oversubscribed; on the same day of the marriage, his wife traveled to Warsaw for the purpose of petitioning to accord
him nonquota status; be has never lived with his wife; and he stated in
1985 he was not willing to main his wife in a religions ceremony and that
he was not willing to live-with her without a church wedding.
Osamu:
Order: Act of 1952—Section 241(e) [8 U.S.C. 1251(c)3—Pailed or refused
• _ to MIR marital agreement made.to procure entry
as immigrant.
•

This case is before us on. the appeal of the Service from a decision'
of a special inquiry officer terminating the proceeding.
Theliespondent is a 25-year-old married male, native and citizen.
of Poland, who entered the United States on April 10, 1964 at which .
time he was admitted as a nonquota immigrant. He had secured
nonquota status on the basis of his marriage to a United States citizen on November 6, 1963 in Poland. The Service takes the position
that the respondent's marital agreement with his -wife, Helen Ilietus,
was made for the purpose of procuring his entry as an immigrant
and that the respondent failed and refused to fulfill the marital
agreement The 'special inquiry of ficer concluded that the charge
stated in 'the order to show cause was not sustained and terininated
the proceeding. The sole issue is whether this action was correct.
679

Interim Decision #1605
Before discussing the evidence, we consider a comment necessary
concerning the burden of proof in cases under section 241(c) of the
Immigration Ind Nationality Act, particularly since .certain statements relating to the matter in the speCial inquiry officer% decision
and in the trial attorney% brief appear to be ambiguous and inn• curate. We discussed this burden of proof in Matter of
7L
N. Dec. 601, 606 (1:957), and held that, under clause (1) of Section
•241(c), the Government must prove alienage and that there exists the
contemplated relation, in point of time, concerning marriage, entry
and ammlment, and thereafter the - burden is on. the alien to es- •
tablish that the marriage was' not contracted for the purpose of
evading any . proviiions of the immigration laws; that this is because the alien is required to show that he comes within the statutory
exemption.; and that under clause (2)- the Government has the usual
burden of establishing deportability. Since this deportittion proceeding is based on the second clause of section 241(c), we hold that the
.-Government has the-burden of establishing deportability by reason• able, substantial and probative evidence in accordance with the requirements of section 242(b) (4).
.•
We have carefully reviewed the entire record. • The only evidence
is the respondent's statement of May 4, 1965 (Ex. 2) and his testis molly- and that of his wife at the hearing. certain facts are not
in dispute. • The respondents wife was born in.Poland on March 31,
1989 and acquired United States citizenship through her .parents.
She first came to the United States in February 1961 and returned
to Poland in August 1963 because of the illness of her mother. Her
father had died in May 1963. She had known the respondent since
childhood and part of the time they were in the same classes in school.
On her return to Poland in August 1963, she saw the respondent fre- ,
quently since she' was friendly with his-sister. Near the end of October, he proposed ,marriage. They were unable to .have a religious
Marriage ceremony because of the recent death of her father but it
was agreed that such a ceremony would be performed after he arrived in the United States, and they were married in Poland in a
civil ceremony on Noyember 6, 1963. On the evening of the same day,
the respondent's wife took the train for Warsaw to mike out an application for him [presumably a 'visa petition] at the American Embassy (Tr. pp. 52-53). During a short trip thereafter, they had
sexual intercourse on one' occasion. The respondent's wife left Poland on November 12, 1963 for the United States, and the respond- ent arrived in this country on April 10, 1964. The respondent's wife
and other relatives met the respondent at the airport upon his arrival and he spent that night at her apirtment. On the following.

-

680

Inter.itn Decision 4E1605
day, he Went to his sister's home. They-have not had sexual inter- .course since he-. came to the United States and have not lived to.•
gether. . .• •
•
The •respondent was questioned-on May.4,. 1965 (Ex. 2)... as. to why
no religious ceremony was performed after he .arriyed in. the United
States. lie. stated that, at the time of his arriyal, in this country in
April 1964, his'- Wife had a vacation of two weeks and wanted very
much to get married during that period but that he could not go
through with the ceremony because he felt that he did.not know her
well enough; that lie only liad $4.00 . when he cams to the United
States and wanted to defer the marriage until he had earned _some
money; that subsequently she threatened to have him deported if he
did not marry her in a 'religious ceremony; and that he heard from
his brother in Poland that his (the respondent's) wife was pregnant.
With reference to the alleged pregnancy of his wife, it has developed that she was not pregnant and has never been pregnant. She testified that she had not had sexual intercourse with anyone except on
the one occasion previously mentioned when slick had intercourse with
the respondent. The respondent's testimony (Tr. pp. 81-85) is to the
effect that about two months after his arrival iii the. United States
he received a letter from his brother in Poland to the effect that his
wife was pregnant. In his previous testimony on Miy E4, 1965, the
respondent stated that his_ brother in Poland had received this information from someone who had written to him but the respondent did
not know who it was. The respondent's wife returned to the United'
States in November 1963, a few dayi after her marriage to the respondent.- Since they had had sexual intercourse on one occasion, he
was asked why he believed he was not the :father of the child.
said that the letter stated that his wife was then four months pregnant. It seems a little pliculiar to us that on same unspeeifid date
from an unknown place (presumably in the - United States) an' unknown person wrote to the respondent's brother in Poland that the
respondent's wife was pregnant and that the.unknown individuatwee
even able to specify that she was four Months pregnant, partictilafly .
whenitasdvlop hewntrga.
There is some conflict in the testimony as to the events occurring
subsequent to the respondent's arrival in the United States: The testimony of the respondent's wife is to the effect that' she saw him
about four times during the period of abOut two months after his
arrival; that she saw him during the summer of 1964 at picnics but
he, avoided her; that she visited him when he was'44 the hospital
in the autumn of 1964; and that in April 1965 she saW ythe i.espondoat at a conference which had been arranged at the office of lkir.
681

Interim Decision *1805
Kowal'of the Immigrants Service League. The testimony of the respondent is to the effect that the meeting with Mr. Kowal took place
about June 1964; that, up to that point, he had seen his wife each
week on Saturdays and Sundays; that, at the meeting with Mr.
-

Kowal, his wife threatened to have him. deported; and that he then

decided he would not go through a religious ceremony nor Bye with
her.
The special inquiry officer stated that there did not appear to be
any discrepancy between the testimony of the respondent and his
wife, and lie did not make any finding regarding their credibility.
The Service urges that there are conflicts between their statements and
that the respondent is not credible_ Tn connection . with the contention that the respondent is not credible, the Service asserts that he
lied about the date of the meeting with Mr. Kowal and also falsely
stated on May 4, 1965 that the marriage had not been ,consummated
whereas he admitted at the hearino that he and his wife had had
sexual intercourse on one occasion iii Poland after the marriage. With
respect to the meeting at Mr. Kowal's 'office, we do not.believe that
the record is clear wiZethar the respondent saw him on only one occasion or whether he may have seen him more than once. In any
event, the respondent's wife stated that just before the :respondent
entered.the hospital [autumn of 1964j she had him go to Mr. Kowal
(Tr. p. 30). Insofar as concerns the respondent's testimony on
May 4, 1965 that the marriage was not consummated in Poland nor
in the United States, the respondent _subsequently testified that he
understood "consummated" to mean living together in one home (Tr.
p. 95). From an immigration standpoint, it would seem that .it
would hate been contrary to the respondent's interest to claim thal
lie and his wife did not have sexual intercourse after the marriage.
-

''

While consummation of a marriage is 'Usually understood to mean
-

that a marriage has been followed by sexual intercourse of the parties,
the term "consummate" also means "to complete". Under the ciremnstances, - we do not believe that either of the matters mentioned
by the Service would warrant a finding that the respondent is not
credible.
There is one other matter which does raise a doubt as to the respondent's credibility. His testimony on May 4, 1965 (Ex. 2, pp. 405)
is to the, effect that he first saw his wife after she returned to Poland
in the fall of 1963; that he did not know her before she left Poland
for the United States in 1961; that he knew she was living in the village where he lived but did not know her personally; and that he did
not know her during the period when they attended the same school.
- At the hearing, the respondent testified that he had known his wife
682

Interim Decision #1605
since childhood; that .they attended the same school; and that they
were in the same class from the fouith grade to the sixth grade (Tr.
p. 75). We do not find it necessary to make a determination concerning the respondent's credibility because the conflicts in testimony between the respondent and his wife relateto minor matters, and we will
base our decision on the•facts which are not in dispute. •
In his. statement of May 4, 1965 (Ex. 2)„tlie respondent stated
that he was then not willing to marry his wife in a religious ceremony; that he was not willing to live with her without a church wedding; that he had registered for an immigrant visa et the American
Embassy in Poland about 1962 or 1963; and that he was• permitted
to immigrate 'to the United States on the strength of his marriage to

his wife. When the respondent. applied for his immigrant visa in
1962 or '1965. prior to his marriage as well as at the time of his arrival in the United States, the Polish quota was oversubscribed. By
virtue of his marriage to a United States citizen, he was able to secure nonquota status and thus avoid the delay which he would have
encountered-if he had been forced to await his turn under the quota.

A comment is necessary concerning the meaning of "marital
agreement." Here, part of the agreement was that the parties would
be married in a religious ceremony after the respondent's arrival in
the United States. However, the civil marriage entered into in Poland on November 6, 1963. also included, as 'an essential element of
the marital agreement, that the parties took each other as hugband
and wife in a lasting relationship. This has been - the view, of the
courts. In G-kounov,lias v. Landon,'226 P.2d. 356, 359 (9th -Cir.,
1955), the court said "The 'marital agreement' as that term is used
in the statute, plainly means More than the mere indulgement in the
marriage ceremony. It means thit the contracting parties "at least
begin in, good faith to live together as husband and wife." In Lutwak

v. United States, 344 us. 604, 611 • (1953), the court had 'under con-

sideration another statutory provision which permitted the expeditious anti7 of the alien spouses of veterans of World War II and
made the following statement: "The common understanding of a
marriagi;'which Congress must.have had in mind when it'made provision for 'alien spouses' in the War Brides Act, is that the two parties have 'undertaken to establish a life together and assume certain
duties and obligations."
The'pertinent language of section-241(c) of -the" Immigration and

Nationality Act [8 U.S.C. 1251(e)) is as follows: "An alien shall be
deported * * if * *• (2) it appears to the satisfaction ofithe At- •
torney ainteral• that'he or she has failed or refused•to fulfill his -or
her nitwits' agreement which in the opinion of the Attorney General

683'

Interim 33Soision *1605

was hereafter made for the purpose of procuring his or her entry as ,
animgrt."8CFR31(d)}proviestha,ubjcnypecific limitation prescribed, this Board "shall exercise ouch discretion
slid' authority conferred upbn the Attorney Geieral by law as is
appropriate and necessary for the disposition of *c•ease?' In order
to sustain the deportation ,charge against this respondent, the following is necessary: (1) we must be of the opinion that the marital
agreement was made for the purpose of procuring the respondent's entry as an immigrant and (2) it must appear to our satisfaction ,
failed or refused to fulfill his marital agreement- thae'rspond
Some time before the respondent had proposed marriage to the
United States citizen who is now his wife, he had indicated his desire of immigrating to the United States by registering at the
American Embassy in Poland for an Immigrant visa. • On the same
day that the marriage ceremony was performed his wife traveled by
train to Warsaw for the purpose of executing a visa petition so that
he would be accorded 'nonquota status. It is our opinion that themarital agreement was made for the purpose of procuring the respondent's entry as an immigrant. On May 4. 1965, the respondent
stated that he was not willing to marry his wife in a religious ceremony and that he was not willing to live with his -wife without a
.chureh. wedding. 'We are satisfied that the respondent has failed.
,and refused to fulfill his marital agreement.
Insofar as concerns the respondent's attempt to excuse his failure
and refusal to fulfill the marital agreement, we held that this deportation charge was not sustained where the alien desired to fulfill the'
marital agreement and it was the United States citizen spouse who
was at fault for the failure to fulfill the agreement. Matter of M
,.
supra. 'With that exception, the statute does not indicate that them
may be circumstances which would warrant an alien's failure orrefusal to fulfill his marital agreement. This respondent's case is
clearly distinguishable.from Matter of M— because the respondent
has failed and refused to fulfill the marital agreement and his United'
States citizen spouse desired to fulfill the agreement. In view of
the foregoing, we conclude that the respondent is deportable on the
charge stated in the order to show cause, and the special inquiry officer's order will be withdrawn. I
'The special inquiry officer found that the marriage between the
respondent and his wife was bona, fide. We are inclined to believe.
that the respondent's wife entered into the marriage in. good faith ,
buthaerspondit.Hwevr,suncaytode—

termino whether the civil marriage in Poland was bona fide since the.
depOrtation charge is ikot dependent on that factor. , .The respond--

684

interim-Decision •*1605
ent applied for voluntary departure and designated Poland as the
country of deportation (Tr. pp. 98-88). We find the respondent statutorily eligible for voluntary departure and will grant that relief in.
the exercise of. our discretion.
ORDER: It is ordered that the special inquiry officer's order of
December 29,. 1965, terminating the proceeding, be withdrawn.
it is further ordered that the alien be permitted to depart, from the
United. States voluntarily without expense to the Government, to
any country of his choice, within such period of time, and under such
conditions as the officer-in-charge of the Distriet deems appropriate.
It is further ordered that, if the respondent fails to depart when
and as required, the.privilege of voluntary departure shall be withdrawn without further notice or proceedings and the following order
shall thereupon become immediately effective: The respondent shall
be deported from the United States to Poland on the charge contain- .
ed in the order to show cause.

•

685


Interim

incision

Km= or BUN
In Visa Petition Proceedings
A-17288881
Decided by Regional Comnniseianer September 6, .1967
An approved visa petition according third preference classification as an engineer to beneficiary who after entry intends to work part time in another field

in order to support his family while he is taking graduate work in his professional field, may be revalidated pursuant to 8 CFR 205.1(c) where he
intends to engage in his professional field in the United States upon obtaining
an advanced degree In that field.

This case comes forward on appeal from the decision of the District

Director, San Francisco, who on August 10, 1967, denied the request
for revalidation of petition previously approved for preference classification under section 203 (a) (B• of the Immigration and Nationality
Act on the ground that the petitioner no longer intended to engagt,
in the occupation of engineer for which the petition had originally
been approved.
The petition for preference classification under section 203(a) (d)
of the Act was originally filed on December 9, 1966 by the petitioner
in. his own behalf on the basis of his occupation as an "engineer". He
presented evidence of four years study at the Budapest Politechnical

University in the field of engineering and the award of an "Engineer's Diploma" on October 26, 1944 and evidence of employment as
a consulting engineer on a contract 'basis in. the field of civil and
electrical engineering for the period from 1958 to 1964 in Brazil,
South America.
The Service found his occupation ,to .be that of a civil engineer.
When the petition was originally filed on December 9, 1966, it was
accompanied by Form ES-575A, "Statement - of Qualifications of
Alien", and pursuant to section 212(a)(11) of the Act bore the certification of the Secretary of Labor dated June 10, 1966.
8 CFR 204.4 provides: "The approval of a petition to classify an
alien as a preference immigrant under section 203(a) (3) or (6) of the
Act shall remain valid for a period of one year from the date of any
-

765

Interim Decision #1873
individual certification issued by the Secretary of Labor pursuant to
section 212 (a) (14) of the Act; if a blanket certification has been issued.
covering the alien's profession. or occupation, the approval shell remain
valid for a period of one year from the date of approval."
At the time the petition was filed and the certification was issued by
the Secretary of Labor, the occupation of "civil engineer" was not
contained in the list of occupations under Group U, Schedule A of
29 CFR 60 for which the Department of Labor had granted a "blanket"
certification and an individual certification as obtained was required.
The petition was thereafter approved on April 10, 1967, with validity
of the approval to expire on June 10, 1967, one year from the Secretary of Labor's certification. The petitioner now seeks revalidation
of the petition. (Effective as of December 23, 1966 the Department of

Labor (31 Fed. Reg. 16412) added the occupation of civil engineer
to their list of occupations in 29 CFR 60, supra.)
8 CFR 205.1(c) provides for the revalidation of a petition previously approved for classification of preference under section 203 (a) (3)
of the Act if the petitioner/beneficiary is currently eligible for the
classification.
The District Director in his denial of the request for revalidation
states:
The petition was approved for third preference classification on the basis of
your statements in the petition that you are an engineer by profession and intend to engage in that profession in the United States, and documentary evidence submitted to establish your professional qualifications as an engineer. You
have now informed this office in writing, under date of July 31, 1967, that you
Intend to engage in the occupation of management consultant and investment
banker in the United States. Since this is not the profession or occupation for
which the petition was approved, the petition may not be revalidated.

()n appeal petitioner stated in part:
I am an Engineer and my Third Preference claim is based on this professional

status.

This is backed by my Engineer's Diploma and fourteen years of professional activity in engineering.
It is my endeavor to reenter the activity of engineering in the U.S. after a
thorough up-dating of my knowledge and capability for which purpose I have
sought and obtained admittance as a Graduate Student at Stanford University.
Since I am married and have three children, eventual assistantship or scholarship funds appear insufficient for my subsistence during the time required to
obtain my advanced degree. This is the only reason for which I envision the
investment banking profession, which may be exercised by me on a part-time
basis during this period, thus enabling me to provide for my own and my
family's subsistence.

The petitioner intends to follow the engineering profession. He still
has the academic preparation and experience qualifications on which
his original petition was approved. He now wants to do graduate work
766

1111.4711111 1.1CIAOLV11

1CP

at Stanford University to advance his engineering knowledge and to
improve himself in the engineering field. While attending graduate
school he still must support himself and family and will seek temporary employment as a management consultant and investment
broker. His intention to continue in the engineering field is established
by the fact that he has presented a, letter from the Office of Graduate
Admission, Stanford University, dated April 12, 1967 showing admission to the Graduate Division for work in the Department of Electrical
Engineering for the fall term of 1967 for work towards a Master's
degree. It should be noted that this letter from the University is dated
April 12, 1967 which was before his request for revalidation dated
July 31, 1967 and before the date of the District Director's denial on
August 10, 1967.
In the Hatter of Et , Int. Dec. No. 1627, it is stated : "The phrase 'for
purpose of performing' in section 212 (a) (14) clearly indicates that an
immigrant alien within the contemplation of section 212(a) (14) must
establish a bona fide intention to engage immediately or in the foreseeable future in his profession or a related field."; and "Since an applicant for a visa under section 203 (a.) (3) may be a member of a profession for which a license, or even citizenship, may be a prerequisite
before he may engage in his professional endeavor, we do not read into
the statutes or regulations a requirement that the applicant must be
able to engage in the qualifying profession immediately, if admitted to
the United States. It is sufficient if he can show a bona fide purpose or
intent to work in the United States in his qualifying endeavor. In determining whether the alien intends to engage in his profession or in a
—

field related thereto, consideration may be given to factors suoh as

whether he is presently so employed and, if not, the length of time he
has not been so employed and the reason therefor. Consideration may
also be given to the alien's own declaration regarding his intended
employment."
His intention to engage in the field of his academic preparation has
been established. He was originally found qualified as a civil engineer
on the basis of his undergraduate work and experience in civil and electrical engineering. Electrical engineering is certainly in a, field related
to civil engineering. Both civil engineering and electrical engineering
are occupations listed in Group II, Schedule A of 29 CFR 60 and covered by the blanket certification of the Secretary of Labor. Considering
all the facts in the case, it must be found that the petitioner is eligible
for the revalidation of his previously approved petition. The appeal

will be sustained.
ORDER : It is ordered that the appeal be sustained and revalidation
granted.
767


Interim Decision #2037

MATTER OF CAMPTON
In Deportation Proceedings
A - 11959846

Decided by Board April 3, 1970
Respondent, who is a crewman by occupation, and whose last entry was
sought and gained solely in pursuit of his occupation, having served on a
pleasure craft for which he was receiving remuneration but no regular
salary, is tatutorily incligible for adjustment of ctatus under section 245,
Immigration and Nationality Act, as amended, notwithstanding his admission as a temporary visitor for pleasure upon presentation of a valid nonimmigrant visa. [Matter of Rebelo, Int. Dec. No. 1926, distinguished.]

CHARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 12511—Nonimmigrant
(temporary visitor for
pleasure)—remained
longer.
ON BEHALF OF RESPONDENT: Robert 0. Wells, Jr., Esquire
Long, Mikkelborg, Wells & Fryer
912 Logan Building

Seattle, Washington 98101
(Brief submitted)

The 39-year-old respondent is a single male alien, a native and
national of Australia. He completed an apprenticeship course for
the trade of baker and pastry cook in his native land in 1951, and
for the next seven years operated his own bakery shop in Tasmania. He sold that business in 1958, and since then has centered
his life around racing and/or pleasure yachts.
The respondent's immigration record since 1958 shows many
entries into the United States as a crewman, as a transit alien,
and as a temporary visitor. But our concern here is limited to his
more recent entries.
On April 28, 1967, the respondent obtained a nonimmigrant visa
of the B-2 type (temporary visitor for pleasure) at the United
States Consulate in Mazatlan, Sinaloa, Mexico. That document
was valid for multiple application for admission at United States
535

Interim Decision #2037
ports until April 27, 1971. He was admitted to this country with
it on April 30, 1967, for a period of six months. He remained beyond the authorized period of his admission, but was given permission to depart voluntarily on or before January 2, 1968, and
he left for Canada on January 1, 1968.
The respondent last arrived in the United States at Blaine,
Washington, by automobile, on March 4, 1968. On September 20,
1968, these deportation proceedings were instituted against him
by the issuance and service of an order to show cause containing,
inter alia, the following factual allegations:
***
4. You were admitted as a nonimmigrant visitor for pleasure (B-2) to
March 4, 1968;
5. You failed to comply with the conditions of your nonimmigrant status by
accepting employment and you were directed to depart from the United
States on or before August 6, 1968;
6. You have remained after August 6, 1968;

and charging him, on the basis thereof, with being subject to deportation under section 241 (a) (2) of the Immigration and Nationality Act (8 U.S.C. 1251), in that:
After admission as a nonimmigrant under section 101 (a) (15) of said act (8
U.S.C. 1101) you have remained in the United States for a longer time than
permitted.

On September 30, 1968, a special inquiry officer granted the respondent the privilege of voluntary departure, but provided for
his deportation from the United States to Canada, alternatively
to Australia, on the above-stated charge, in the event of his failure to so depart. That decision became final for want of an appeal
but the respondent who, on July 31, 1968, had become the beneficiary of an approved sixth preference visa petition, did not depart as authorized.' Instead, on April 4, 1969, 2 he successfully
moved for a reopening of his deportation proceedings for the purpose of filing and prosecuting an application for adjustment of
his status to that of a permanent resident.
On September 18, 1969, a second special inquiry officer left undisturbed the order entered by the prior special inquiry officer a
year earlier, after finding that the respondent was a crewman
and, thus, ineligible for relief under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255), which reads:
The status of an alien, other than an alien crewman, who was inspected and
admitted or paroled into the United States may be adjusted by the Attorney

2

A visa number was not then available to him.
By this time a visa number had become available.

536

Interim Decision #2037
General, in his discretion and under such regulations as he may prescribe to
that of an alien lawfully admitted for permanent residence. *". (Emphasis
supplied.)

The appeal from this latter decision, 3 which brings the case before this Board for consideration, contains the basic contention
that the respondent does not fail within the statutory proscription.
Solution to the question thus raised requires reference to section 101 (a) (10) of the Immigration and Nationality Act (8
U.S.C. 1101), which defines a "crewman" as "a person serving in
any capacity on board a vessel or aircraft," and section
101 (a) (15) (D) thereof, which further characterizes a "crewman" as one "* * * required for normal operation and service on
board a vessel * * * who intends to land * * * in pursuit of his
calling as a crewman * * *." We must read these two provisions
of the law together with section 245 so that the statute will produce a harmonious whole. We conclude that, for the purposes of
this case, two. elements are required to constitute an alien a
"crewman":
(1) He must be serving aboard a vessel in a capacity required for its normal operation; and
(2) He must be seeking (and gain) admission to this country because of his
occupation in that role.

In our opinion, the following facts establish the existence of these
two essential requirements in this case.
The respondent's modus vivendi since 1958, a period of 12
years, has primarily, if not exclusively, resulted in his presence
and service aboard private vessels as skipper, mate, or cook and
deckhand. Since 1962, except for a five months' vacation in Australia in 1964 and a three months' sojourn in Canada in 1968,
supra, he has been connected with the yacht "Tatoosh," a pleasure craft of American registry based in Seattle. He does the general maintenance work on the vessel when it is in port (p. 33),
and does the deckhand work, takes care of the engines, etc., when
it is at sea (p. 34). He is the only deckhand, and in addition, does
the general cooking aboard (pp. 33, 34, 35). These factors convince us that the respondent is a crewman by occupation.
The respondent submitted in support of his visa petition, which
was approved on July 31, 1968, a labor certification issued by a
lawful representative of the United States Secretary of Labor.
We are unable to determine from this record why respondent did not
simply go to Canada and obtain his immigrant visa at the United States
Consulate in Vancouver, where his petition had been sent.

537

terim Decision #2027

ais document certified the respondent for employment aboard
e "Tatoosh" as a "specialty cook—able bodied seaman." The reondent stated in support of that document that for the preced,g five years he had managed the food buying for the "Tatoosh,"
in its galley, and done the catering for parties aboard it (SupLementary Statement B). These factors lead us to conclude that
ie respondent's last entry on March 4, 1968, was sought and
ained solely in pursuit of his occupation.
It is immaterial that the respondent was admitted as a nonimiigrant temporary visitor for pleasure (B-2). The reason is that
formal admission as a crewman is not required in finding that
espondent, upon arrival, intended to pursue his calling as a crew-tan aboard the "Tatoosh." In other words, it is substance rather
ran form which controls, and the former is adverse to the repondent. All we can add, in this connection, is that this case is
actually distinguishable from one where an alien crewman, servag and manifested as such, presents a B-2 visa and is admitted
Ls a temporary visitor upon a showing that he is not entering in
lursuit of his calling;* and that this respondent's ineligibility for
'elief stems from a specifically applicable statutory proscription
'ather than from an unsustained ground of deportability. 6
It is of no assistance to the respondent that he has been professionally trained as a cook and baker and has unchallenged
.redentials with respect to these occupations, or that his labor
:ertification shows clearly that his admission will not constitute
my infringement upon the job potential of any United States citzen. Even if he were employed only as the cook aboard the "Ta;oosh," he would still be a crewman. 6 Also, an affidavit sworn to
)y the respondent on February 1, 1968, apparently in connection
with his visa petition, to the effect that he intended to immigrate
;o the United States as a specialty cook, viewed in the light of the
fact that his home has been in the United States for the last 12
fears (p. 21) and the timing of his visa and labor certification
applications in relation to his last entry, might well militate
against favorable exercise of relief as to the respondent, as a
matter of discretion.'
We reject the contention that the respondent is not a "crewman"
within the contemplation of the law because he has never served
in the capacity of a merchant seaman aboard commercial vessels.
Matter of Rebelo, Interim Decision No. 1926 (BIA, 1968).
Cf. Matter of T , 5 1. & N. Dcc. 459 (BIA, 1953)
6 Norris, The Law of Seamen, sec. 3.
Matter of Vega, 11 I. & N. Dec. 337 (BIA, 1965).
4
5

—

538

Interim Decision #2037
Legally speaking, for administrative fine purposes under the Immigration and Nationality Act, we have held that the statute applies to "any vessel," including privately owned pleasure craft engaged in no commerce whatsoever, 8 and we see no reason to hold
otherwise here. This is particularly true in view of the fact that
section 101 (a) (15) (D) of the statute specifically exempts from
the term "a vessel" only a "fishing (commercial) vessel having its

home port or operating base in the United States."
Finally, we are not impressed by the assertion that the respondent was merely a guest aboard the vessels on which he
served, receiving only gifts, board and room, and no regular salary, until 1968 when, after his visa petition was approved, his employer started paying him wages of $500 a month. We agree with

the special inquiry officer that this arrangement would be most
unusual and unique, but would not affect the outcome of the respondent's case because, whatever he was getting, he was receiving some remuneration for the work he did. Our opinion in this
respect is in no way altered by the respondent's testimony that
for some time after he left Australia he received monthly payments from the sale of his business there for $4,000 (p. 32) .
Accordingly, and in view of the foregoing, no change will be
made in the special inquiry officer's order. All we need add is
that, as we have pointed out in Matter of Aguirre, Interim Decision No. 1940 (BIA, 1969), the execution of the special inquiry
officer's order has been stayed during the pendency of this appeal.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special
inquiry officer's order.

8

See Matter of HMS "Bounty," 10 I. & N. Dec. 391 (BIA, 1966).

539


Interim..Decisioti #1601.

•
Manx& o>= Bunoraof.-SALonno
In Exclusion Proceedings
A-12699434•
Rea/46d by Board May 81, 20619
The absence from the United States of applicant (a returning resident "commuter") for more than 6 months to care for her seriously-ill child, which
may be egualea with absence as a result or inoaPacitation by her own Illness, did not result in loss of "commuter" status; although her job was

fMed by another worker 'during her absence, since she-resumed employment
in this country within a short time after abatement of the circumstances
causing her absence, she is admissible as a returning resident alien "commuter" to continue her employment •
Brotrinairx: Act of 1052—Section P 212(a) (20) ES U.B.C. 1182(a) (20)3—Im, migrant without, a visa.

The special inquiry officer certified to the Board his order requiring -applicant's' eidusion 'upon the ground that she was an immigrant
without a visa. The applicant will be ordered admitted.
,An alien lawfully admitted for permanent residence and who is
regularly employed in the United States but-resides in foreign contiguous territory is known as a. commuter (Matter of Bailey, Int.
Dec. No. 1546). " Some background for the commuter stews" will help
determine the caie'before us.
For generations 'prior to the Immigration. Act of 1924, native and
foreign-born citizens of foreign contiguous territory living there
came daily to work in the United States and then returned to their
homes. Immediately 'before the passage of the Immigration Act
of 1924, they hid been admitted as visitors on the basis of visitor's
visas which were valid fora year and were good for Successive applications for temporary admission. Passage of thee• 1924 Act raised a
question as to whether a commuter was an immigrant rather than
a visitor. The Aet termed an alien an immigrant unless lie proved
he was a nonimmigrant. (An immigrant needed: an immigrant visa
it was good for one entry only and could be issued only under restrictions not applicable to the issuance of .nonimmigrant visas.)
665'

Interim Decision #1601
The nonimmigrant category pertinent to this discussion was that of
the alien coming as a temporary visitor for "business". In this category the commuter was administratively first placed; permitting him

to follow his regular employment in the United States and reside in
territory. Reluctance to disturb a long-standing
custom, and reluctance to affect the delicate balance which existed
between the United States and the contiguous countries dictated the
decision. However, the pressure of other factors soon brought a
change—there was a lack of specific law authorizing the_ entry of
commuters as nonimmigrants, foreign-born citizens of contiguous
territories who because of quota limitations could not obtain immigrant visas to enter the United. States were, nevertheless, entering
daily to work as commuters, and, there was rising unemployment in
the United States—these factors gave rise to an administrative ruling
that made the entry of commuters more difficult.
foreign contiguous

In 1927, it was administratively decided that under the 1021 Act
an alien coming to work in the United States must be considered as

an immigrant. (He could be admitted only if he had an immigrant
visa and applied for admission' for permanent residence.) Strict
enforcement of this ruling would have seriously affected the livelihood of many on both sides of the border, the functioning of border
cities, and the existence of friendly relations with the border nations.
A compromise arose which followed the form of the law yet permitted a limited continuance of the commuter status.• It was to treat
the commuter who obtained an immigrant visa as if lie lived in the
Unitrid States although he continued to live in the contiguous territory.

An alien lawfully admitted for permanent residence and domiciled
in the United States.could be issued a border crossing card which'
authdrizad'him to mike a temporary visit to foreign contiguous territory and to return to his home in the United States without presenting a_ new visa or other immigration document; therefore, why

not require the commuter to obtain an immigrant visa, admit him for
permanent residence, issue him a border crossing card, and then permit bim,.i.f.he did not desire to live in the United States, to return
to his home in foreign contiguous territory and to enter the United
States daily on his border crossing card on the theory that he was
returning from a •temporary visit to contiguous territory) This

arrangement 'was adopted in 1927.
There. *ere difficulties in treating a commuter as if he was a domiciled alien.. The alien- actually domiciled in the United States attempting to enter as a returning resident with a border crossing card
after a temporary visit outside the United States lost his right to
666

Interim Decision #1601
reenter unless he established that he at allAimes maintained the
intention 4 returning to his domicile in the 'United States. The
commuter did not have a domicile in tharnited States and in many
cases had no intention of moving here, was he therefore to be unrestricted in his right to reenter/ The administrative solution was to
equate employment with domicile. Then whether the commuter was
entitled to enter with his border crossing card as a returning resident
turned nn whether he was employed in the United States and
whether he had ever abandoned the intention- of working in the
United States. This equality of treatment of the commuter and
domiciled alien resulted in the ruling that since the domiciled alien
lost his right to reenter the United States on a border crossing <mod
if he was absent more than six months, the commuter lost hisaight
to reenter, on a border crossing card if he was unemployed form ore

•
than six months.
To treat the commuter as if he was a domiciled alien was a necessary if awkward fiction which permitted the practice to continue, but
it was at odds with the administrative desire to have commuters
make their homes in the United States. Soon rules' concerning inspection and entry arose which made the commuter realize that not

only would it be more convenient to live in -the' United States than
to commute, but that loss of the right to enter the United States as
a commuter could occur without his fault and even despite his intention to retain the right. Thus, the conclusive presumption arose that
a commuter unemployed in the United. States for more than six
months had abandoned his intention to enter as a commuter—he
could be readmitted to the United States to work only if he had a
new immigrant visa. This conclusive presumption, with one exception, applied. even though the commuter had retained the intention
to commute and even though he had entered. in the meantime to
search for employment. This treatment was in contrast to that given
the domiciled alien temporarily absent from the United States for .
more than six months; he, if he had not abandoned the intention to
return, could be readinitted as a returning resident upon a -waiver of
the documentary requireMents.

An exception to the conclusive presumption w as made iu the case
of the commuter 'outside the United States for more than six months
because of illness, accident, or pregnancy. With this background
in mind, we may consider the facts in the case before us and the precedent decisions.
In May 1961, the .applicant, a 35-year-old female alien, a native
and citizen of Mexico, was admitted to the United States for permanent residence; she took up residence in El Paso, Texas and became
667

Interim Decision #1601 '
employed us a domestic. In October 1961 her employer. left the
area; the applicant moved across the border to-Mexico but -found
another job in the United States and continued entering daily -to
work .as a domestic. In December 1964, she stopped working to care
for her two year old child who had become ill. In the early part
-

-

-

of the following month the child seemed to recover and the applicant
went back to work. A few days later the child became seriously
The applicant stopped working to care for the child, there being no
one else available. Her job was filled by another worker. The child,
afflicted, with bronchitis and later with hepatitis, was not free from
her afflictions until 'September 1965. In the following month, feeling that the child could be left in the care of others, the applicant

sought employment in the United States.. On DeceMber 14 1 1965 she
staffed working with Mrs. Allen ana thereafter came in daily to
employment as a doinestic. On December 22, 1965, she applied to
enter to work for Mrs. Allen, but was refused ,permission, by the
Service. On December 28, 1965, the special inquiry officer ruled in
an exclusion hearing that the applicant had lost her status as a commuter because she had been unemployed for more than six months.He held that the exception which saved the commuter status of an
alien unemployed because of illness did not .apply to the applicant
because, one, it had not been her own illness that incapacitated her
for:employment and, two, her employment had not been held open'
for her during the entire period that she had been unemployed.
The earliest published discussion touching the problem is. found
in an editor's note to Matter of 1)—C- 8 I. & N. Dec. 519, 526 7
(1949). The pertinent portion of the. note follows:
-

In Matter of
4-6778564, 0 0., Dec. 21, 1949, the Central Office stated:
"It is and has been the holding of this Service that an alien of the immigrant commuter ahem who has been out nf.employment in the United States
for 6 'months shall, notwithstanding temporary entries in the interim for other
than employment purposes, be deemed-, to have abandoned his status of residence in the United States (C. I. 110.6). It has been held, however, that 'In-'
tention'shall govern in such cases to the same extent that it governs in the
case of aliens who deiSart fiom the United States for other countries after
once havhig,been lawfully admitted' (O. 0. letter Nov. 16, 1927, 55470/637-A). 1
latile circumstances as serious ill- Thus,interpofwkd•uta.nciol
ness (Matter of B—, A-4089813 (0. a. June 26, 1946)), or because of pregnancy (-Matter of Mal—, 4-7687230 (0. 0. Sept 8,1948)), have been held•not,
to result in akandonment of" commuter's status. "
."In the• case nndei consideration, the appellant was not employed in the
United States since September 27, 1948, when he broke his arm, until August
,4, 1849, when be took up temporary employment In the United States with -his
'

•

•,

•

• .

'The L (Operation Instruction or antra Service memorandum) and the
O. 0. (Central Ofilde Of the Service). letter cited contain na additional pertinent information.

668

Interim Decision #1601
brother. He has, however, presented corroborative evidence that he was incapacitated during this period until march 0, 1949. Actually, thetefore, he
was employable only for a period subsequent to that date and the 6-month
period should begin to toll [sic] thereafter. Since be effected his admission
to the United States on September 4, 1949, .a period less than 6 months, it
is concluded that he liar not thereby lost or abandoned his commuter% status.
As be is in possession of a valid border-crossing identification card his appeal
will be sustained."
Matter of B , suprci, concerned a Canadian citizen who commuted
from 1920 to September 24, 1945 when he became ill; he was bed-.
ridden for about six months. Over seven months later (May 12,
1946) he applied for admission. as a commuter for the purpose of
—

resuming his employment. The Service relying on the two rules governing the cases of commuters (that a commuter out of employment

for six months, shall be deemed to have abandoned his status of residence in the United States and that intention governs to the same extent that it .governs in the case of domiciled aliens who depart for
other countries) held: '
* • * It is apparent, then, that when the appellant took ill in September

1045, nu did not lose his job with the Pere Marquette Railroad Company.
Having been granted."sick leave" [for the entire period of his illness], be has
remained in the employment of his company And can' return to active employment at any time within the limits of his leave of absence. Nor is there
anything in the record to show that it was the appellant's intention to abandon
his employment or his status as a commuter. Having been employed by the
same company for over 25 years, it is not' likely that he intended M make a
change. In fact, he testified that he•was kept from his employmept solely because of his illness. Upon a review of all the evidence in this case, -it may be
fairly • concluded that, despite his physical absence from his emploment,
the appellant did not lose his _ commuter's statute and that he is eligible to
resume the same.
,

Matter of MoM—, supra, concerned a Canadian citizen who was a
commuter from April 5, 1946 to about November 7, 1947 when she
stopped wailing because she was expecting the birth of a child. The
alien applied for admission on May 20, 1948 as a returning resident
to work; she was excluded on the ground she had.lost her commuter
status and required a new visa to enter the United States. On appeal,
the Service ordered her admitted as a returning resident if she obtained a 'waiver of docunientary requirements. The Service stated:

The facts presented establish that the appellant has not worked in the
United States since November. 7, 1947, a period of more then six months, during which time she has lived in Canada. However, the facts show that she
gave birth to a child on December 14, 1947 and has been receiving medical
attention for herself and child and could not resume employment although, at
all times, it appears she intended to return to the United States and resume
employment. In the situation; it is found-that the appellant did not abandon
hey legal residence in the -United States by her absence of more than six

669

Interim Decision #1601
months in Canada from November 1947 to about April or May 1949, as her
absences were due to her illness and the care of her infant child. Matter of
Williams, A-4235728 (C.O. 1947) ; Matter of lames, A-6388053 (BIA, 1947).' .

The next published decision touching upon the issues is Matter of
4 I. & IC. Dec. 454 (C. 0. 1951). 1, , 'working for one employer, commuted from 1927 to June 19, 1950 when he became ill;'
he recovered on December 7, 1950 and when he applied for admission
on December 26, 1950 to resume 'his employment was excluded as
having lost his commuter status by being out of work for more than
six months. On appeal the Service stated :
* * • The •salient points to be considered in determining abandonment of

1—,

—

commuter's status are intention and loss of employment. Thus it has been
held that a commuter remains entitled to -such classification, notwithstanding
an absence of 6 nionths from this country and interruption of his work here
for that long, if his employmentt job, or position has not been lost and if the
,

interruption 'was due to such =controllable circumstances as serious ill-.

ness.
* * * His position of employment has not been lost and according to evi-

dence submitted his job is still being held open for him. His absence from
this country from June 1950 was due to his serious illness and there was no
intention on his part to abandon his commuter's stet* The record therefore
establishes that applicant has had the status of a permanent resident of the
United States for at least seven consecutive years and that he has not abandoned such status. His absence was due to uncontrollable circumstances and
he is seeking to enter the United States as a returning resident to resume the
employment which is available to him.

The latest published decision is Matter of M—D—S-

&

8 I. .h N. Dec. 200 (1958). 311

D

—

—

S, a native and

national of Canada, whose case was considered with two`other unrelated cases, entering for permanent residence on November-26, 1957,
returned to 'Cinada and for two weeks commuted daily to employment in Detroit, Michigan. She stopped' working to be with her
husband who was seriously ill; he passed away a few days later. She
did not enter for the next nine months 'because she had lost the services of the housekeeper ,who cared for her child and was unable to
'Both opinions are very brief; neither discusses the law. In. Matter of
Williams, the alien commuted to his work from 1923'to October 1046 when a
heart attack confined him to his home in Canada. Be sought to reenter to
resume employment on June 1•, 1947. During the entire period of his illness
he was carried on sick leave. The Service without stating a reason found him
to be a returning resident. In Matter of James, the alien •ommuted to employment for live months to May 1040 then stopped for a reason not , 0110V711 but
perhaps dim to her pregnancy since the *order authorizing admission in January
1947 as a returning resident states, "It appears that her husband - has now
succeeded in finding living quarters in the United States. and the appellant
intended to join him during January IAA after the -birth of her child."
-

670

-

Interim Decision #1001

applied
for admission to take employment with either her former employer
or another individual, both having solicited her services. The clues- tion then arose as to whether she was still a cominiiter. Making a.
creneral review of the commuter situation, the Board citing Matter
*of D—C—, supekpointed out (at pp. 212-3) that there is a tolling
of the six-month period during the disablement of a commuter who
had not lost his job. The Board distinguished the cases before it
from Matter of L—, swpra,loy'pointing out that L— had not last
his job and the aliens had. However, the Board did.not treat the
aliens as disabled commuters biit in each case ordered the aliens excluded on the ground that they had lost commuter statue beep,use
they had been unemployed for more than six months.
We answer in the affirmative the question as to whether the illness of the applicant's child should excuse her absence from the United.
States. In the one case discussing the situation it is shown that the
illness of a child is an important factor. , In Matter of McM =,,
supra, the applicant who had given birth in December but had not
find another. A month, 'alter securing a housekeeper, she

applied for admission until the followine, May was ordered admitted
• as a commuter, although absent more than six months, on the finding

that she had "been receiving medical attention for herself and child"
and that her absence was "due to her illness and the care cf her infant child." (Emphasis supplied.) Indeed it is clear here that the
long and dangerous illnesses of the applicant's child, her duty, and.
her natural affection created a. situation which has effectively incapacitated her for employment as would have either a broken member
in her own body or the carrying of the child in pregnancy .(see
Mendelsohn v. Dulles., 207 F.2d 37 (D.C. Cir. 1953) ; Maher of M—,
5 I. & N. Dec. 598). The applicant should therefore be consideed
as though she were an alien incapacitated by her own illness.
We have seen that the rule as to the disabled commuter iithat intention governs to the same extent it does in the ease of a domiciled
alien (Matter of F— footnote at pp. 526-7,,3 I. & N. Dec.). Since
the test for the domiciled alien is.whether he intended to abandon
domicile, the test for the employed commuter who becomes disabled
is whether he intended to abandon his employment.
Applicant's admission should be ordered. Within a, short time
after the disabling•circumstances'which prevented her from continuing her employment were removed, she resumed employment in the
°Ikea States. She now desires to enter to continue with her employment.

ORDER: It is ordered that the admission of the applicant as a
commuter be authorized. .
671


Interim Decision #P1593

NUTTER OF GEE
In Deportation Proceedings
A-13705060
Decided by Board May 91, 1066
The requirement of section 244(b), - Immigration and Nationality Act, as
amended, of a minimum period of 24 months in an active-duty status in the
Armen Forces of the United States is satisfied by an applicant for suspension of deportation who served in an active-duty status in the Army following induction on February 3, 1956 until discharged January 31, 1958, and
whose military record, by direction of the Secretary of War, was subsequently corrected to reflect Continuous active duty until February 2, 1938.

Came:
Order: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)3—Excludable
at time of entry—no immigrant visa.

DISCUSSION AS TO DEPORTABILITY: The respondent,
a native and citizen of China has been found deportable under the
provisions of section 2d1(a) (1) of the Immigration and Nationality
Act (8 U.S.C. 1251(a) (1)) as an alien who at the time of entry
was within one or more of the classes of aliens excludable by the
law existing at the time of such entry, to wit, an alien immigrant
not in possession of a valid unexpired humigration visa,, reentry
permit, border crossing identification card. or other valid entry document and not exempted from the possession thereof by the said Act
or regulation made thereunder pursuant to section 212(a) (20) of
the said Act. An order entered by the special inquiry officer on
January 11, 1966 suspends the respondent's deportation under the
provisions of section 211(a).(1) ,of the Lnmigration and Nationality
Act, as amended, (8 U.S.C. 1254(a) (1)). The case has been certified to the Board of -Immigration Appeals for final decision because
it is one of first impression wherein the Department of the Army
has corrected a military record of service thereby enabling the respondent to avoid the seven years of continuous physical presence
in the United States for the period preceding the date of his appli639

Interim Decision *1593
cation for suspension of deportation as provided in section 244(a) (1)'
of the Immigration and Nationality Act (8 U.S.C. 1254(6)(1)).

The respondent was admitted to the United States at Honolulu,
Hawaii on October 13, 1952. He was admitted to the United States
upon a false claim of citizenship. He has lived in the United States
continuously since his entry with an exception of a, trip to Formosa
from June 14, 1960 to September • 9, 1960. He last entered in
September of 1960 to resume his residence in the United States but
did not posseSs an immigration visa. The evidence affirmatively
establishes the respondent's deportability as charged in the order
to show cause.
DISCUSSION AS -TO ELIGIBILITY FOR SUSPENSION
OF DE1101tTATION: The respondent was married in Formosa
on August 18, 1960: Upon 4i,s. return to the United States he executed a visa petition on behaTf of his wife in -which he falsely swam
that he was a citizen of the United States. The respondent's wife
was admitted to the United Stales on February 22, 1961. They
were divorced on march 2, 1965 and he testified that he does not
know her present whereabouts, but believes that she is now in
Formosa. The respondent traveled to Formosa on a United States

passport which he obtained by falsely swearing that he was a
United States citizen.
•
The character investigation conducted by the Immigration Service
reveals, nothing adverse to the respondent. The record contains
affidavits of two citizens of the United States who have known the
respondent since 1952 attesting to his good moral character. Local
police and Federal records do not disolose anything adverse to the

respondent.
The respondent is employed in a laundry and earns $75 a week.
He has assets totaling some $5,000. He supports his mother who
resides in Hong Kong. His father is deceased. •The respondent
served honorably in the United States Army from February 3, 1956
'midi midnight of February 2, 1958 at which time he ,was relieved
from active duty and transferred to the United States Army Reserve
to complete his reserve obligation.
The respondent maintains that his. deportation would result in

a. hardship to him because he came to this country when he was
18 years of age and has spent most of his adult life in the United '
States. He alleges that it would be very difficult for him to obtain
a job outside of this country and that he has become accustomed
to the way of life here. The special inquiry officer concludes that
the respondent's deportation would in fact result in extreme hardship to him and we affirm.
Section 244(a) (1) of the Immigiation and Nationality Ad pro640

Ihterzm Debision -*1593

of
deportation an -alieremust havebeen physically present in therUnited
States fora continnoui period of not less than seven years.' Section
244(b) provides, however, that the physical - presence requirement
shall not be 'applicable to an alien who has served for a minimal
period of 24 .months in an active duty status in the armed forces
of the United•States. When the case was originally considered by
the special inquiry officer, in July of 1965, the respondent's militaryrecord showed that he was drafted into the United States Army
On February 3, 1956 and served in an active duty status until 'he
was discharged. on January 31, 1958. Upon discharge he was transferred to the United States Army Reserve and attended reserve
*ides, =lung' other things, that•In be; eligible for suspension.

duty training meetings'on June 19 1 20, and 24, 1958 and on August
7, 21, and 28, 3.958 for three hour mighf sessions at which time he

The special inquiry officer noting
that the respondent's active duty in the Army was two days short
of the 24 months required by section 244(b) (supra) found him not
eligible for suspension of deportation.
was required to be in uniform.

Thereafter, upon consent of the resp'ondent's counsel and the trial

attorney, the special inquiry officer on January 10,' 1966 entered
an order which provided that the amended record of the respondent's military service be made a part of thee -record of the deportation proceedings. Tty.additional evidence which amends the record
of the respondent's military service is a decision by the Secretary
-of the Aimy which reads as follows:
"AG 20b—LEE, BRIAN H.
US 58 265 488
MEBIORANDUM FOR THE ADJUTANT GENERAL
"Raving =Droved the findings, conclusions and recommendation of the Army

Board for Correction of Military Records, and under the provisions or 1.0 u.s.c.
1552, it is directed:
"That all of the Department of the Army reecirdeof BRIAN H. LEE be
corrected to show:
"a. that his relief from active duty on - 31 January 1958 was, and is, void
and of no force or effect; and
"b. that be was continued on active duty unit' 2 February 195S, at which
time he was relieved from active duty and concurrently transferred to the
United States Army Reserve to eumplete his Reserve obligation.
(Signed) Stanley R. Resor
Stanley R. Resor
Secretary of the Army"

The_, additional evidence -which has been inserted in the record
affirmatively establishes that the respondent now meets the reqUirements for suspension of deportation under the provisions of section '244(a) (1) of the Immigration and Natidnality Act since he
641

Interim Decision #1593
qualifies for the exemption provided by section 244(b) of the same
Act. The special inquiry officer, however, states in his opinion
"by reason of the provisions of subdivision 244(b) he (respondent)
is not required to present evidence of good moral character for any
specified period" The 'specie' 1 inquiry officer notes the fact that
the respondent fraudulently obtained a United States passport and
fraudulently executed a visa petition on behalf of his wife. The
special inquiry officer found the respondent to be a person of good
moral character. Another factor warranting the grant of suspension of deportation is the respondent's honorable service in the
United States Army.
We affirm the grant of suspension of deportation in this particular case. However, we do not agree with the special inquiry officer
that section 244(b) relieves the respondent from the requirement
of establishing good moral character. This issue was before us in
Matter of Peralta, 10 I. Ss N. Dec. 300,

June 19, 1963. We

held that -whereas an applicant for suspension of deportation within
the provisions of section 244(b) may be exempt from establishing
good moral character for the period coextensive with the physical
presence exemption he nevertheless must establish good moral character between the ,date he filed his application and the date it is
finally adjudicated. Conduct prior to the date of filing may be

considered in determining whether good moral character has been
established during thit period.
On the basis of the entire record in this case, we are of the opinion
that a favorable finding as to the respondent's moral character is
warranted in accordance with the standard set forth in Matter of

The order entered by the special inquiry , officer
on January 11, 1966 will be affirmed. Cf. Matter of B —, 1 L &. N.
Dec: 611, B.I.A., November 23, 1943; Matter of T —, 1 L & N.
• Dec.
158, B.I.A., September 4, 1941.
ORDER: It is directed that the order entered, by the special
inquiry officer on January 11, 1966 be and the same is hereby
affirmed.
It is further ordered that the deportation of the respondent be
suspended under the provisions of section 244(a) (1) of the Immi- •
gration and Nationality Act, as amended. • ,
li is further ordered that if Congress takes no action adverse to
the order granting suspension of deportation, the proceedings be
cancelled, and that appropriate action be taken pursuant to section
Peralta, (supra).

244(d) of the Immigration and Nationality Act, as amended.
It is further ordered' that in the event Congress takes action
adverse to the order grhnting suspension of deportation these proceedings shall be- reopened upon notice to the respondent.

6t2


MATTER OF T—

In. DEPORTATION Proceedings
A-2819751

Decided by Board November 28, 1960
Subversive organization—Evidence of membership—Doctrine of Collateral
estoppel by judgment—Finding of membership in denaturalization proceeding
held conclusive in subsequent deportation proceedings
) Under doctrine of collateral estoppel, finding by denaturalization court
which was essential to its judgment that respondent was member of the
Communist Party from 1937 to 1945 is conclusive in subsequent deportation proceedings.
(2) Where denaturalization judgment (1955) indicates court found respondent's membership met definition contained in Galvan v. Press, 347 U.S. 522
(1954), subsequent decision in Rowoldt v. Perfetto, 355 U.S. 115 (1957),
does not require reexamination of finding re membership, since Rowoldt
affirms conclusions reached in Galvan.
Cluanou :

Order: Act of 1952—Section 241(a) (6) [8 U.S.C. 1251(a) (6) ]—After entry,
member of Communist Party of United States.
BEFORE THE BOARD

DISCUSSION: This case is before us on appeal from a decision
of a special inquiry officer directing the respondent's deportation.
The respondent is a 53 - year - old male, a native of Rumania, who

last entered the United States on June 7, 1923, and was apparently
admitted for permanent residence at that time. His present marital status is not shown by the record. He denies alienage and
claims to be a citizen of the United States. The special inquiry
officer found that the respondent was a member of the Communist
Party of the United States from at least 1935 until at least 1942.
We have carefully reviewed the entire record and have considered
the contentions of both sides at the oral argument. No briefs were
submitted. The issues to be determined are whether it has been
established (1) that the respondent is an alien, and (2) that he was

a member of the Communist Party of the United States after his
entry in 1923.
With respect to the first issue, the respondent was naturalized

as a citizen of the United States on October 24, 1941, but the order
127

admitting him to citizenship was revoked pursuant to a judgment
(part of exh. 2) entered on July 12, 1955. Exhibit 2 also contains
a copy of the court's findings of fact and conclusions of law, of
the opinion of the court, and of the Government's complaint in the
denaturalization suit. A copy of the court's opinion will also be
found in United StatoP, v. Title, 132 F. Supp. 185 (S.D.*Cal., 1955).

Exhibit 3, which is a copy of the opinion in Title v. United States,
263 F.2d 28 (C.A. 9, 1959), shows that the respondent filed a notice
of appeal from the judgment of July 12, 1955; that on February 27,
1956, the Court of Appeals ordered the appeal dismissed for lack
of prosecution; that in May 1958, this respondent filed two motions
in the District Court to vacate the denaturalization judgment and
dismiss the Government's complaint; that the District Court denied

the motions; and that this action was affirmed by the Court of
Appeals. A petition for certiorari was denied on May 18, 1959
(259 U.S 989)
A now motion by thp resprincipnt to vacate the
denaturalization judgment and dismiss the complaint was denied
by the United States District Court on July 27, 1960. Counsel
stated that an appeal from that judgment is now pending before
the Court of Appeals.
The Government's case consists of the respondent's concession
that he was born in Rumania an last entered the United States
about June 7, 1923, the papers previously mentioned relating to the

denaturalization suit, and counsel's stipulation that the respondent
has not been naturalized as a citizen of the United States subsequent to the denaturalization judgment of July 12, 1955. The Government relies on the doctrine of collateral estopped by judgment
as establishing the respondent's membership in the Communist Party
during the period stated above.
During the oral argument counsel contended that the respondent's
second motion, which is now pending in the Court of Appeals, differs from his first motion and that the respondent's case is similar
to Polites v. United States, 364 U.S. 426, recently argued before
the Supreme Court. The Supreme Court's decision on November 21,
1960, was adverse to Polites. Counsel urges that our decision be
deferred pending the decision of the Court of Appeals in the respondent's case. The Service representative contended that the
second motion raises the same issues as the first motion and that the
decision adverse to the respondent on his first motion is me judi'ata
as to the second motion. We deem it unnecessary to determine
whether both motions raise the same issues and whether the matter
is res judicator because of the decision adverse to the respondent on
his first motion, since, in any event, we do not consider it appropriate to defer action in his case upon the basis of some future con-

tingency. which may or may not arise. The important consideration
128

is that the judgment of July 12, 1055, revoked the order admitting

the respondent to citizenship. Unless the judgment of July 12, 1955,
should hereafter be set aside, its effect, under the doctrine of ma
judicata, is that the respondent was never a citizen of the United
States and must be considered an alien at the present time.
The second question is whether the Government has established
that the respondent was a member of the Communist Party during
the period mentioned above. The court's sixth finding of fact in
the denaturalization suit related to the respondent's membership in
the Communist Party and the seventh to twelfth findings were,
inter alia, that the respondent was an active member ; that he was
an organizer for the 44th Assembly District of the Party in 1939,
which was a position of leadership; and that he participated as a
delegate in the 1040 convention of the Communist Party. The sixth

finding of fact was as follows:
The" defendant [the respondent] was a member of the COmmunist Party of
the United States in Los Angeles County, California, continuously from at
least sometime during 1937 until at least sometime during 1942. The defendant actively participated as a member of the Communist Party during this
period and distributed its literature. The defendant's membership in the
Young Communist League and in the Communist Party of the United States
was not fortuitous, but was a matter of deliberate choice.

8-577, we discussed fully the doctrine of
In Matter of
collateral estoppel by judgment and held that a finding of the
court in a denaturalization suit that the defendant was a member of the Communist Party was conclusive on that factual issue
in a subsequent deportation proceeding. The respondent's case is
entirely analogous. We have carefully considered counsel's contention that the cases are distinguishable but we are not persuaded
that there is any material difference. Actually, Matter of 0—,
supra, presented factors uther than Communist Party memberShip

which might conceivably have formed a basis for denaturalization
and counsel there urged that the judgment in the denaturalization
suit rested on alternative findings and that no estoppel is created
in such cases. We rejected that contention for reasons stated in our
decision. However, that particular contention is not even present
in the respondent's case because the principal and only real issue
was whether the respondent had been a member of the Communist
Party. This is apparent from statements in the court's opinion in
United States v. Title, supra, 132 F. Supp. at the pages indicated :
"So the entire problem turns upon the question of the defendant's
Communist membership and affiliation" (p. 188), and "Se we are
back to the fundamental problems involved, the character of the.
Communist Party, the defendant's membership in it, his knowledge
129
654377-03---10

of its character and the concealment of the fact of membership in
the proceedings leading to naturalization" (p. 189).
Counsel asserts that the only question which the respondent was
asked concerning Communist Party membership was question 28
on the preliminary naturalization form,, and he contends that the
Supreme Court held in

Nowak v. United States, 356 U.S.'660 (1958) 7

that question 28 was not sufficiently clear to warrant the firm conclusion that Nowak should have known that it called for disclosure
of membership in the Communist Party. We have compared question 28, as quoted in the Nowak decision and as quoted in finding
of fact numbered 16 in this respondent's case. Taking into consideration the parts omitted in the latter as indicated by asterisks,
we are of the opinion that question 28 in the respondent's preliminary naturalization form contained the same language as question
28 in the Nowak case.
As the Service representative stated, this respondent was naturalized after the effective date of the Nationality Act of 1940,
whereas Nowak had been naturalized prior thereto at a time when
section 7 of the 1906 Act [8 U.S.C. 364] had merely prohibited the
naturalization of anarchists and certain other classes. On the other
hand, section 305 of the 1940 Act [8 U.S.C. 705] specifically prohibited the naturalization of a person who, during the preceding
.

ten years, had been a member of an organization that advocated the

overthrow of the Government of the United States by force or violence. However, a more important distinction between the two
cases is that the Nowak decision was rendered on his appeal from
the judgment in the denaturalization suit, whereas the judgment
against this respondent has not been set aside. It would seem that
it is now the law of the case as to this respondent that his answer
to question 28 was willfully false and fraudulent notwithstanding
the fact that a contrary conclusion was subsequently reached concerning Nowak's answer to question 28. In any event, under the
doctrine of collateral estoppel, the respondent cannot render ineffective the finding of Communist Party membership, which was
essential to that judgment, by merely averring that the judgment
was erroneously entered. Until and unless the judgment should
hereafter be set aside, we must accord it full validity and the finding of fact therein that the respondent was a member of the Communist Party from 1937 to 1942 is binding upon him.
With the exeeption of the question of alienage, which has been

previously discussed herein, the only other point in controversy in
this deportation proceeding is the same as the one we have con-

cluded was -the principal point controverted in the denaturalization
suit, that is, the respondent's membership in the Communist Party.
At the hearing and during the oral argument counsel referred to
130

the applicability of the decision in Rowoldt v. Perfetto, 355 U.S.
115 (1957). In Matter of C—, 811pra, we said that the word "member" in the deportation statute must be understood as it was judicially defined in Galvan v. Press, 347 U.S. 522 (1954), and in the
Rowoldt case. Rowoldt was decided subsequent to the 1955 judgment in the respondent's case. However, in Rowoldt the court
affirmed the conclusions it had previously reached in the Galvan
case. Although the court's opinion in the respondent's case does
not mention the Galvan case, we believe it is apparent that it took
cognizance of the judicial definition which had been given to the
word "member." In addition to the findings of fact six to twelve
relating to the respondent's activities in the Communist Party, finding numbered 15 specifically stated that the defendant had full
knowledge of the nature of the Communist Party of the United
States and approved of and accepted the doctrine, policy, and program of the Communist Party. Accordingly, we conclude that the
respondent was a member of the Communist Party as the word
"member" has been judicially defined, and we need not discuss the

contention of the Service that the Rowoldt case is inapplicable to
deportation cases involving 8 U.S.C. 1251(a) (6).
Although the special inquiry officer informed counsel that any
application for discretionary relief should be made at the hearing,
no such application was made. For the reasons stated above, the
appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

181