Interim Decision #2695

MATTER OF WILLIAMS
In Deportation Proceedings
A-20201790
Decided by Board March 30, 1979
(1) Respondent applying for withholding of deportation to Haiti under section 242(h) of the
Act did not meet burden of proving probable persecution by a preponderance of the
evidence. Henry v. INS, 552 F.2d 130 (5 Cir. 1977).
(2) 1976 Amnesty International Report entitled "The Situation in Haiti" was not entitled
to more evidentiary weight than that accorded by immigration judge in view of the fact
that the report was not significantly probative on the likelihood of persecution to this
respondent_ Flanrinor v. INS ,5115 F 2c1 129 (5 Cir 197R)

(3) 1976 Amnesty International Report on Haiti does not establish probable persecution
by the Haitian Government against either all Haitians or any Haitian who left that
country without permission.
(4) Evidence presented by Service, including State Department reports submitted both to

the Service and to Congress, found more credible, probative, and timely as to current
conditions in Haiti than the 1976 Amnesty International Report.
CHARGE:
Order: Act of 1952—Section 241(a)(2) 18 U.S.C. 1152(a)(2))—Entered without inspection
ON BEHALF OF SERVICE:
Goerge W. Masterton
Appellate Trial Attorney

ON BEHALF OF RESPONDENT:
Dale Swartz, Esquire
Suite 427
733 – 15th Street, N.W.
Washington, D. C. 20005
Donald I. Bierman, Esquire
Bierman, Sonnett, Beiley &
Shohat, P.C.
Suite 500
200 S.E. First Street
Miami, Florida 33131

BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members. Board
Member Farb abstains.

This is an appeal from an immigration judge's decision of June 15,

1978, in which he denied, on reconsideration, the respondent's application for withholding of deportation under section 243(h) of the Immigra697

Interim Decision #2695
tion and Nationality Act, 8 U.S.C. 1253(h), but reinstated voluntary

departure.' The appeal will be dismissed.
The respondent is a 27-year-old native and citizen of Haiti. She
entered the United States without inspection in October 1973. An Order
to Show Cause was issued on September 25, 1975, but deportation
proceedings were delayed to give her the opportunity to apply to the
District Director for political asylum and temporary refuge in the
United States. Her request was denied by the District Director on

December 8, 1976.
At deportation proceedings held in February and April 1977, the
respondent conceded deportability under section 241(a)(2) of the Act, 8
U.S.C. 1251(a)(2), but applied for withholding of deportation to Haiti
under section 243(h). The evidence presented relating to the section
243(h) application included the respondent's testimony, her Request for
Asylum (Form 1-589) dated January 5, 1976, which included her own
affidavit of the same date, and a "Petition to Withhold Deportation" filed
by her counsel on February 11, 1977.
The respondent's testimony and her 1976 affidavit reflect the following

information: She was born in La Tortue, Haiti, in April 1951. She has 14
brothers and sisters, 11 of whom still reside in La Tortue. 2 When she was
16 years old, her father's brother was arrested by the Tontonmacoutes.
Be was jailed, mistreated, and then released, but later died from the
beatings received in prison. She did not know what problems her uncle
had with the macoutes because these events occurred when she was "a
kid." That same year (1968), someone filed a complaint against her father
accusing him of being against the government. The respondent stated
that that "wasn't true," but he was arrested and jailed for one month
before being released.

In 1970, some 18 months after her father's release, the respondent left
Haiti for Nassau because her father was constantly being threatened
with rearrest and she was frightened. She stated, however, that neither
The immigration judge's original order denying withholding of deportation, dated
April 1, 1977, was affirmed in a per curiam order of this Board on August 22, 1977. An
appeal was then taken to the United States Court of Appeals for the Fifth Circuit. In
November 1977, the respondent applied to the came court for leave to adduce additional
evidence in the administrative proceedings in light of Coriolan v. INS ,559 F.2d 993 (5 Cir97'7). That motion was granted on December 13, 1977, and by order of the Board, dated
April 27, 1978, the proceedings were reopened and the record remanded to the immigration judge to permit consideration of additional evidence concerning withholding under
section 243(h). The petition for review in the Fifth Circuit has been held in abeyance
P' ending disposition of the reopened proceedings.
The respondent's statements concerning her parents were inconsistent. In her 1976
affidavit she indicated that her parents were then living in La Tortue. In her testimony at

ttrie deportation hearing, she initially indicated that her mother was dead and her father
Wving in Haiti, but later testified that she believed that her father was also dead. She

sated, however, that she had not heard from her family for some time.
698

Interim Decision #2695
she nor anyone else in her family had problems with the Tontonmacoutes and that she had never been threatened by anyone while

living in Haiti. She did not know if her father had any more problems
with the macoutes after she left, nor whether her family had any
problems with the Haitian Government, as only her sister "used to
write" and she did not discuss the conditions in Haiti. The respondent
stated that she was afraid to return to Haiti because she might be
arrested or harmed because the authorities "know [she] left the country
[and] . . . because [she's] against them."
The Form 1-589 indicated that the respondent believed she would be
persecuted because of her political opinions. That form reflected, however, that she had never belonged to any organizations hostile to the
interests of Haiti, that she had never expressed any political opinions or
acted in a manner which was regarded by the Haitian authorities as
opposed to the interests of that country, that her family had never
suffered because of her absence, her actions, or her political opinions,
and that the then conditions in Haiti did not affect her freedom more
than the rest of the Haitian population. She farther submitted that the
Haitian authorities knew of her request fur aylinn because of a letter
she had written to her father and that she believed she would be killed if
returned to that country.' Except for these notations, the Form 1-589
included no explanatory matters in support of the application (other
than the previously discussed affidavit) and no further evidence or
documents in support of the claim were alleged to exist.
The final document included in the record at the initial deportation
proceeding regarding the persecution claim was the "Petition to Withhold Deportation" prepared by respondent's counsel and filed prior to
the April 1977 hearing. That petition alleged that certain factual matters would be shown, which in fact were not thereafter supported in the
record and which were in part inconsistent with both the respondent's
previous statement and her subsequent testimony. It was alleged, for
example, that the respondent's father and uncle were persecuted because they "expressed political opinions and beliefs contrary to those of
the existing government," that her uncle 11.7as killed because of his
statements, and that her father was jailed after his brother's death
because of his protests against the government's action. This conflicts
with the respondent's actual statement wherein she indicated both that
she did not know why her uncle was arrested and that her father was
arrested before her uncle's death because someone had falsely accused
him of being against the government. It was further alleged in the
As the record indicates that the respondent has received no correspondence from her
family in sun,e Lime, the claim that the government is aware of her asylum requeot

because of her letter to her father (whom she is uncertain is alive) apparently is based on
conjecture.
699

Interim Decision #2695
prisons' and that arrests for security or political reasons have declined
substantially. The International Commission of Jurists Report notes
that although the "regime [maintains] an authoritarian dictatorship .. .
the climate of repression [has] altered perceptibly!' A March 8, 1977,
letter prepared by the Department of State's Deputy Coordinator for
Humanitarian Affairs (ORM) terms the "more extreme charges" of
human rights abuses described in the 1976 Amnesty International Report "basically dated, being more descriptive of conditions as they were
at times in the 1960's in Haiti.. . . ."

The State Department further indicates that its Embassy in Portau-Prince has reported that "to the best of its knowledge the Haitian
government has not in recent years punished returning nationals because they may have left the country without proper documentation." It
is suggested that the Haiti= Government is not inclined to punish
economic refugees because it is "unofficially recognized" that those
leaving the country legally or illegally take some of the pressure off the
strained economy of that country. The materials reference at least three
instances where follow-up inquiries into the status of returned Haitians
had been made and in each case those deportees who were located were

doing well and reported no persecution. Further, the State Department
indicates that the United Nations High Commissioner for Refugees had
agreed to review a number of Haitian asylum requests and after reviewing some 175 cases had concluded that "merely departing Haiti and
requesting political asylum in the United States [was] insufficient
grounds to establish a prima facie claim to such asylum." 3 It is also
noted that in February 1977 the Haitian Government gave "explicit
written assurances" to the United States Embassy that returning Haitians would not be mistreated and the Embassy has heard no serious
allegations of harassment of returning Haitian nationals.

The April 1978 Department of State letter finally indicates that in
January 1978 the Haitian Government formally invited the InterAmerican Human Rights Commission to investigate human rights conditions in Haiti, that the government had received a mission of the
Inter-American Press Association, and that two members of the militia
who had beaten an independent journalist in late 1977 had been tried,
convicted, and sentenced to four months in prison for assault.
The State Department was investigating claims by some of those released during the
September 1977 amnesty that eight political prisoners remained in custody. It was,
however, noted that the 105 persons who were released that month had been presented to
the press and representatives of the diplomatic corps. This action apparently was taken as
a. result of doubts expressed by Amnesty International after the December 1976 amnesty
as to whether named persons had in fact been released.
8 As reported in an pi -Ai-mire to a letter from the Acting Assistant Secretary foT
Congressional Relations, Department of State, to Congressman Fraser, Chairman, Subcommittee on International Relations, US. House of Representatives.
702

Interim Decision #2695
We find this evidence significantly more credible and probative regarding the current treatment of returning Haitian nationals by the
government of that country than the information and allegations reflected in the 1976 Amnesty International Report. Considering the
entire record, we remain convinced that this respondent has failed to
meet her burden of establishing eligibility for withholding of deportation to Haiti.
Regarding the specific grounds of appeal cited in respondent's counsel's brief before this Board, for the reasons discussed above we do not
find that the immigration judge failed to give "proper weight" to the
1976 Amnesty International Report. Moreover, there is no merit to
respondent's claim that the immigration judge relied on matters outside
the record in his decision of June 15, 1978. Each of the matters that are
specifically alleged not to be supported in the record in fact appear in the
materials introduced into evidence by the Service on remand. 9
We do agree that the immigration judge was guilty of overstatement
in opining that "Haitians leave their country not because of political
conditions, but because of the economic conditions." That may well be
generally true, but the fact that since 1972 the Department of State has
recommended in over 240 cases that Haitian asylum seekers be allowed
to remain in the United States indicates that a significant number of
persona do leave Haiti because of the political conditions in that country.
Moreover, we do not find significant regarding the 'withholding application (as did the immigration judge) the fact that this respondent obtained entry into the United States "via the smuggler route." An alien
smuggled into this country may still establish a valid section 243(h)
claim to withholding of deportation to a given country. We find neither
of these conclusions of the immigration judge, however, sufficiently
significant to warrant a remand of the proceedings for further consideration in view of the evidence of record regarding the respondent's
withholding claim and our conclusions regarding the merits of that
application.

Also referenced in the respondent's brief on appeal is an August 17,
1978, statement by Amnesty International, titled "Possible Refoulement of Haitian Refugees in U.S.A." That apparent press release,
which was published after the immigration judge's decision of June 15,
1978, is not properly part of the record before the Board on appeal."
9 For example, the immigration judge indicated that 97 Haitians returned to their
homeland from the United States Naval Base in Guantanamo, Cuba, in 1977 were "given
twenty dollars and sent home." It is asserted that "Intone of this is supported by
evidence." That information, however, was extracted verbatim by the immigration judge
from the April 19, 1978, letter to the District Director in Miami from the Deputy Assistant
Secretary of State for Refugee and Migration Affair.) (Ex. R. - 1, p. 6)
'° A copy of the statement appears with photocopied materials in the record file, but it is
not clear when or by whom those materials were added to the record.

703

Interim Decision #2695
The statement notes certain initiatives in the field of human rights taken
by the Haitian Government, but concludes there are "still grounds for
serious concern regarding legal safeguards and other human rights in
cases of a political nature." That organization also states that it has
received reports that refugees returned to Haiti have not been seen by
relatives several weeks after their arrival and that it "appears that most
[returned refugees] have been detained in the military barracks
Casernes Dessalines, one of the two main political detention centres in
Port-an-Prince:'
Considering the record before us, however, even if this document
were properly part of the file, we would not find it sufficiently probative
regarding the likelihood of persecution of the respondent herein to
warrant either the granting of withholding of deportation or the return
of these proceedings to the immigration judge for further consideration.
The appeal will accordingly be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily
within such time and under Rich conditions as may be set by the District

Director; and in the event of failure so to depart, the respondent shall be
deported as provided in the immigration judge's order.

704


Interim Decision #1900

MATTER

or JANUS AND JANER

In Deportation Proceedings
A-14813095-6
.4-14805412
Decided by Board July 25,1968
11) In the exercise

or discretion, adjuSLment of status under section 245, Irurni

gration and Nationality Act, as amended, is granted an alien whose nonimmigrant entry was not intended to bypass the normal visa-issuing process ; who
has close family here ; who is eligible for visa issuance and who is unwilling
to return to his native Czechoslovakia where he has been convicted, in absentia,
of defection from the republic, sentenced to imprisonment, and his property
'confiscated.
(2) Applietitions for withholding of deportation under section 243(h) of the
Act alleging rear of persecution for political opinion are granted two natives
and citizens of Czechoslovakia who, although members of the Communist Party
at time of their nonimmigrant entry, by their uncontradicted testimony express
their long-standing opposition to the political regime in Czechoslovakia ; who
defected at the first opportunity, one repudiating his entrusted mission of proP•
agandizing for the Communist government In this country, the other overtly
making Ids criticism of conditions in Czechosolvaltia to agencies which could
disseminate It widely and effectively: and who have both been convicted, in
absentia, of defection from the republic and sentenced to imprisonment.
(3) The legal posture of an applicant for conditional entry under section 203(a)
(7) is not that of an applicant for withholding of deportation under section
243(h) of the Act and sued& standards of conduct cannot be set which will
guarantee, without more, inclusion in or exclusion from eligibility for either
benefit sought. An application under either section 203(a) (7) or 243(h) must
be decided individually, on all its facts.
CHARGES :
Order: (A11)—Act of 1952—Section 241 (a) (2) IS U.S.C. 1251(a) (2))—

Nonimmigrant visitors, remained longer.
ON BEHALF OF RESPONDENTS :
Charles Sternberg, Eequire
International Rescue Committee
888 Park Avenue Smith
New York, New York 10016

ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney

'

2 Because of their own activities with refugees and other immigrants, and their
interest in the subject mutter of this appeal, the following voluntary agencies

866

Interim Decision #1900'
This case is before us on appeal from the decision of the special
Inquiry officer : 2
Finding all three respondents deportable as charged;
Denying the application of respondent (1) for adjustment under
Section 245 upon the ground that he is statutorily ineligible
therefor;

Denying the application of respondent (2) for adjustment under
Section 245 as a matter of discretion;
Granting voluntary departure to all, with the provision that if
they do not depart when and as required, each will be ordered
deported, respondents (1) and (2), who made no designation, to
Czechoslovakia, respondent (3) to Sweden, the eounti.7 of designation, with provision that if Sweden does not accept him, that

he also be ordered deported to Czechoslovakia;
Denying to all a withholding of deportation to Czechoslovakia.

under Section 243(h) upon the ground that they have failed to
sustain their burden of establishing that they would be persecuted
because of race, religion or politics if returned to Czechoslovakia
I

We deal first with the case of Frantisek Janus, in which our disposition differs from that of the other two cases. Frantisek is a 42-year-old
married male alien, native and citizen of Czechoslovakia, whose only
entry to the United States was on July 7, 1966, as a nonimmigrant
visitor for pleasure; his authorized stay expired on August 31, 1986
and he remained beyond that date without authority. He concedes
that he is deportable as charged. At the deportation hearing held on
October 26, 1966, he learned that it was possible to apply for adjustment to permanent resident status in the United States (see Tr. p. 63)

and the hearing was adjourned to permit him and Jaroslav Janus, who
is his brother, to prepare and present such applications, based on
petitions for fifth preference quota status to be filed by one of their
two American citizen ;brothers. The petitions were filed and were
joined in a single Brief Amiens Curiae, and requested permission to be present at
oral argument : American Fund for Czechoslovak Refugees, Inc.; Church World
Service, Inc.; National Council of Churches of Christ, USA; Department of Immigration, United States Catholic Conference; Lutheran Immigration and Refugee Service, Lutheran Council USA; Polish American Immigration and Relief'
Committee, Inc.; Tolstoy Foundation, Inc.; United BIAS Service, Inc.
2 There were two sets of hearings held• one for the Janus brothers-together
and one for Janek. Reference to transcript pages and exhibits in the Janus file is
followed by the letter "3" ; for Janek, by the letter "K".

867

Interim Decision #1900
approved in January 1967; then and now ther was immediate quota
availability based on the priority date created by the filing of the
petitions.
The special inquiry officer, stating that Frantisek's application for
'adjustment had not been completely processed because of the decision
the special inquiry officer had decided to make, assumed Frantisek to
be statutorily eligible. The application and the record do not disclose
any basis of ineligibility. The special inquiry officer, in considering
the discretionary factor, referred to testimony by this respondent that
when he applied for his visa he was seriously considering remaining
here permanently, a fact which he did not tell the Consul for fear
that he would not be able to come to the United States. It was respondent's further testimony that although he then wished to stay here
permanently, he did not make the final decision to do so until after
his arrival in the United States. On this basis, the special inquiry
officer decided that respondent was not a bona fide nonimmigrant at
the time of entry, and, citing Matter of Ortiz Prieto. 11 1. & N. Dec.
'317, stated that there were no equities in the case which indicated that
the results of the application should be other than adverse, as in the
oiled case.
We do not believe that a denial of adjustment is warranted. Here,
as in Ortiz Prieto, a favorable factor is that respondent's entry on a
nonimmigrant visa was not made to bypass the normal visa issuing
processes. In this case, however, it was the special inquiry officer him-self, three and a half months after their entry, who first made the
Janus brothers aware that it was possible to apply for adjustment, and
that their citizen brothers could file petitions to secure quota preferences for them. Neither this respondent nor his brother began to
work in this country until after the deportation proceedings were instituted. Respondent has close family here (his two citizen brothel's) ;
his wife, who remained in Czechoslovakia, has not made any objection
to the application for adjustment. Respondent, who is clearly eligible
for visa issuance and has the requisite quota availability, cannot take
.advantage of these factors anywhere but in the United States. He has
no foreign country to which he can go to apply for a visa; he is understandably unwilling to return to Czechoslovakia, where he has been
convicted, in absentia, of "Defection from the Republic", sentenced to
a year's imprisonment, and has already had all of his property confiscated. Respondent has been working steadily since he took his first
Job in the United States and has been sending money to Czechoslovakia for the support of his wife and children; he has no criminal
record other than the above mentioned conviction.
-

-

868

Interim Decision #1900
The total picture justifies a favorable exercise of discretion on Frantisek Janus' behalf, and we will provide for a grant to him of adjustment to permanent resident status, under section 245, in our order at
the conclusion of this decision.
II

Vladimir Janek, who has nu family here, and no quota availability,
made no application for adjustment. He was a voluntary member of
the Communist Party who started doubting its goals in 1957, after the
Hungarian Revolution, and who, by 1963, considered himself its enemy
and had started thinking about ways to escape from Communist
Czechoslovakia. He has asked for political asylum here as a defector.
Jaroslav Janus made application under section 245, on the basis of
his brother's petition for fifth preference quota status, On the Form
1-485, he showed that he had been a member of the Communist Party
in Czechoslovakia from the summer of 1956 to the time of his departure in 1966. He stated that when he applied for a visitor's visa in
Prague, he was specifically asked by the American Consular Officer
whether he had ever been a member of the Communist Party, and he
denied it because he was afraid that if he told the truth, he would not
have been given a visa and would not have been able to come to the
"United States (Ex. 9B, J, p. 3J). The special inquiry officer, after
considering respondent's claim that his Party membership was involuntary, found that it had not been sustained, and that respondent was
precluded from establishing eligibility under section 212(a) (28) ; he
also found, using the standards of Matter of S
and B 0--, 9 X. 8: N.
Dec. 436, that respondent had made a material misrepresentation in
-

denying membership, and was thus precluded from establishing adjustment eligibility under section 212(a) (19). We accept the special
inquiry officer's holding that this respondent is statutorily ineligible
for adjustment of status under section 245.
Both of these respondents have applied for withholding of deportation to Czechoslovakia under section 213(h), claiming they would be
persecuted for political reasons if they were to return. Each already
has awaiting him a prison sentence on a conviction entered against
him in absentia under Article 109 of the Criminal Law of Czechoslovakia.' Article 109 is entitled: "Defection from the Republic". It
covers (1) a person who leaves Czechoslovakia without permission,
Jaroslav Janus testified that his wife bad advised him she had tried but was
unable to get a copy of his coiviction from the court, but that his proceedings
were the same as his brother's, were held a week or two later, and resulted in the
same conviction and sentence. A copy of the conviction of Franttsolt Janus is in
the file as Exhibit 11J.

869

Interim Decision #1900
(2) a Czechoslovak citizen who remains in a foreign country without
permission, and (3) one who organizes either of those acts or leads a
group or groups of people across the border, they being without permits to leave the country. Each respondent has been found a defector
from the Republic under the second category.
In Jaroslav Janus' case, the court sentenced him to a year's imprisonment and ordered all of his property confiscated. His uncontradicted testimony is that not only were all of his personal effects
taken, along with the automobile given jointly to him and his brother
Frantisek by their two United States citizen brothers, but half of the
property he owned is common with his wife as well (Tr. p. 49J). He
and she, among other things, owned a 50% interest in their family
home; the government did not sell or confiscate the home, but instead
made his wife pay 15,000 crowns for respondent's share. (The special
inquiry officer stated, at page 17, of the Janek record, that as of November 1, 1965, the exchange rate for the Czechoslovak crown was $.14 US.
Thus, as part of the confiscation Jaroslav's wife paid $2,100 to the
Czech Government.) Frantisek Janus was also sentenced to a year's

imprisonment and to confiscation of his property. The record of his
conviction characterized his crime as harmful to society because,

among other things, he had denigrated the good name of the Czecho-

slovak Republic (Ex. 11J, p. 2). It may be assumed that the same
characterization was made of Jaroslav Janus' acts.
Vladimir Janek was sentenced to eight months' imprisonment, with
no confiscation of property. The record of conviction .shows that
Janek's wife testified that after he had advised her by letter that he intended to remain in the United States, he began to write letters in
which he expressed homesickness, from which she assumed that he
would undoubtedly wish to return to Czechoslovakia (Janek testified
that this was a fabrication on his wife's part, Tr. p UK). From this,
and after a review of his background, the Court believed "that the
defendant committed a criminal act obviously at the instigation of
some other persons and without a thorough deliberation of his action"
(Ex. 31C, bottom of p. 8). The Court then specifically stated that it had
set the sentence at the lowest level of the legal schedule so that it would
offer the defendant an opportunity to return to Czchoslovakia. Janek
and his witnesses all believed that this attempt to get him back was to
counteract the harmful effect of his, and other people's defections, but
that once he was back he would be subject to considerably harsher
treatment.

Both Janek and Jaroslav Janus believe that if they were to return,
more would await them than the sentences now in effect. Each was
a member of the Communist Party and testified that this fact alone

870

Interim Decision #1900
would make the crimes more serious in the eyes of the government
(both witnesses who testified in Ja,nek's case agreed with this view).
Once they were actually in the custody of the Czech authorities, there
was no telling for how long they would be imprisoned. They claimed,
too, that punishment and ostracism would continue even after release
from prison, that they would thereafter be relegated to hard labor,
perhaps in the mines, and would never again be able to get jobs above

the menial level.
Respondent Janek cited additional reason for fearing dire consequences. Shortly after his arrival here, he gave a four-hour inte•view to the Federal Bureau of Investigation, in which he discussed
conditions in Communist Czechoslovakia as they actually were. He
was also interviewed on the same subject for Radio Free Europe,
and later by the Czech language press in the United States. Exhibits
10K is the front page of one such newspaper, containing the story
of his departure and conviction, and setting forth prominently the
fact that immediately upon his leaving the Czech tourist group
with which he came here, he contacted the newspaper and gave it
information about the actual state of affairs in Czechoslovakia. We
have little doubt that at least some, if not all, of these facts are

known to the Czech Government.
Janek testified. that he vocally differed with and criticized communist policy for at least ten years. His first disenchantment was
about .the Hungarian Revolution. He was then at officers' school,
scheduled to become an officer in the army. He stated that he spoke
out critically about those events and was dismissed from the school,
two or three months before the completion of his course (Tr. p. 12K).
He stated that when he first joined the Party, he had believed that
it really was working for the good of all, but :
• • gradually 1 came to the conclusion tnat everything the party stands
for is illogical and unacceptable for me. Gradually I saw for myself that the
words, that the leaders of the Communist State used, when they stated that
they were working for the benefit of the people and for the country, were not
based on any truth—that they were all lies—and that those leaders were committing crimes against the nation. When I found this out I spoke against
ft at the meetings of the Party and of the Labor Union about those facts. However, I found out that any position which I took against these facts were
completely in vain and to no avail. Moreover, I have been attacked on several
oecassions and that I was a reactionary and that I was speaking in the
spirit of the western ideology. Later I became discriminated against in my
work and people who once used to be my friends began to ostracize me. I
became so disgusted that from 1963 I refused to take any part in any activity
in public. (Tr. p. 13IL)

In a sworn statement made to a Service investigator, Janek named
at least five offices he had held in communist organizations before

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Interim Decision #1900
his cessation of activity in 1963 (Ex. 9K, p. 5). He also said he had'
been told that he had been denounced by the State Security in the
summer of 1964 because he had stated publicly, at a meeting of the
employees of the plant where he worked, that the methods by which
Khrushchev had been deposed were intolerable (Ex. 9K, 6) .
Testifying further about his reasons for becoming anti-Communist, be said it became obvious to him that many crimes had been

committed for which the perpetrators had never been brought to
justice—many, many people executed and afterwards "rehabilitated", but that nothing had been done about these executions, it
was just "as if somebody had shot a rabbit." Since he was in a lower
echelon of the Party, he could stand up and speak out against these
things, but his criticism was in vain. As he put it: "It was just like
throwing peas on the wall, they bounced back and nothing happened" (Tr. p. 78K).
He decided in 1963 that he would have to leave Czechoslovakia. He
twice tried to get permission to leave, once to West Germany, and
once to Austria, but was refused each time (Tr. p. 15K). It was then
that he decided to give up his skilled and well-paying job as a chemical worker (he testified that he had earned 2,800 to 3,000 crowns a
month—$392 to $420—a very high income by Czech standards—
Tr. p.17) and to go to work as a miner.
I went there—also the work is extremely difficult and most of the workers
there are sent for punishment—I just wanted to disappear from their eyes,
meaning the Party. I wanted to disappear from the eyes of the people whoknew what my convictions were because at that time I planned already for
a year that I would take a trip abroad to the west Bemuse all travel abroad
has to be approved by the communist party and by the worker's committee
I would never stand a chance that I could get such approval to travel west.
At my new place of work I received approval where they did not know me.
(Tr. p. 74r.)

Much of this material about Janek has been disregarded or glossed
over by the special inquiry officer, with the statement that Janek was
not subjected to persecution while in Czechoslovakia, and that generally speaking overt acts in the United States manifesting opposition to the country of possible deportation do not support an
application under section 243(h). It is his further holding that there
has been no showing that the conviction in absentia was politically
motivated. We feel that these criteria have been taken and used out of
context in this case.
While it is true that we have not regarded with favor an applicant
whose first indication of opposition to the political regime of the
country he left is made after arrival in the United States, that is not
what confronts us here. Janek's uncontroverted testimony is that he
872

Interim Decision #1900
started expressing opposition in 1957 in Czechoslovakia and was dismissed from the officers' school for it; that he continued to express his
dissenting views, although his criticism had no effect except to injure
him. The sincerity and strength of his opposition is shown by the fact
that his criticism here was not made in private to friends and acquaintances but to agencies which could best put it to use and could disseminate it most widely and effectively. We do not doubt that if he were to
return to Czechoslovakia, he would be punished for these acts under
Articles 102 (Defamation of the Republic, etc.), 103 (Defamation of
the President or other public representative, etc.), 104 (Defamation
of a state belonging to the world Socialist system), 106 (exposure of
State secrets—this respondent worked in uranium processing plants
and offered to share his knowledge with the United States Government), and 112 (violation of the interests of the Republic abroad) of

the Criminal Law, and we believe that under these circumstances such
prosecution would in effect be persecution for political opposition.
This is.a factor to be reckoned with, especially when the acts committed
in the United States are not the beginning but the continuation of a
year's long course of expression of opposition to the Communist Czech

regime.
It cannot be said, across the board, that every statute imposing criminal sanctions for unauthorized travel outside of a particular country
must be devoid of political implications. That will depend upon
provisions of the particular statute and the manner in which it is
administered. The one under which respondent was convicted is, by its
own denomination aimed at "Defection from the Republic." The act
of defection normally has political, rather than criminal, connotations.
Also, a conviction that concerns itself with the fact that the defendant
comes from a worker's family, that by his failure to return he took
advantage of the confidence shown in him, and that he did not act
as a good citizen when at the first available opportunity he defected
from his native country and remained abroad (Ex. 3K), does not, it
appears to us, have travel control as its prime concern.
On evaluation of all the material and testimony presented by Janek
and on his behalf, we conclude that he has so strongly shown the
likelihood of persecution for his opposition to the political system in
Czecholsovakia that it cannot be disregarded. We are mindful, too, of
the letter in Janek's file (Ex. 15K) from the State Department to the
District Director at New York, received by him on September 12, 1967,in which it is stated :
On the basis of the information contained in Mr. Janek's file, the Department
does not favor his deportation to Czechoslovakia * **.

We shall grant to Janek the requested withholding of deportation
under section 243 (h).
873

Interim the ism!' Woo
Returning to the case of Jaroslav Janus, he testified that he had
never believed in the tenets of communism and was opposed to the
regime from the time of its accession to power in 1948 (see Ex. 9AJ,
p. 7) ; he was the only member of his family to join the Communist Party. His brother Frantisek was approached but refused to join
(Ex. 10j, p. 4) ; his brother Jaromir was so opposed to the regime
that he tried to escape from Czechoslovakia illegally in 1965, was
.arrested and imprisoned 4-5 months (his wife obtained his release
from jail by a petition to the President), and since that time has been
unable to get a job as anything but a delivery man in a factory, de:spite the fact that he has been trained in certain skills (Tr. pp. 33.34J). Jaroslav testified that none of his four children is a member
-

of the Party: "I brought them up in a way to be opposed to the Communist Party" (Tr. p. 32J). His own membership in the Party was

passive; he held no office (Ex. 9AJ, p. 6) and did not always attend
-the monthly meetings (Ex. 9AJ, p. 8). He testified that he joined
the Party because he felt it was necessary to protect his family's financial security. He had broken his wrist in about 1955 and the bone

-

took more than a year to heal; even at the end of that time, the wrist
was inflexible so that he could not work, as he had before, on the assembly line. Although the union provided for a disabled worker to
the extent of establishing that he was entitled to 80% of his base

.salary during illness or injury for a period of up to one year, the
worker was nevertheless in financial straits because his salary was
normally augmented by overtime pay, and 80% of the base salary
was not sufficient compensation. Also, although the union offered
some job protection in that the worker after recovery was entitled
to get a job in the same plant, it did not have to be on the same level
as the prior job (Tr. pp. 36-37J). It was in this situation, after a considerable period of injury and materially lowered income and enough
-residual disability so that he could not return to any manually skilled
_job, that Jaroslav Janus was approached by the Party with the promise
-that if he joined he would get a foreman's job, but that if he did not,
he would get a lesser job than he originally had (he believed this might
have been on the level of a cleaning man or delivery man—Tr. p. 35J),
and he decided to join the Party (Tr. pp. 28J, 35-37J). He makes no
claim that he ever publicly denounced the Party or its goals, although
he was always opposed to communism, he apparently lived with his
membership as a necessary evil, doing no more than he had to to maintain that membership. He testified that he had no difficulty in obtaining his passport to come to the United States because his brothers had
-visited Czechoslovakia a short while before, and he was requesting the
passport to visit them in the United States_ He also stated that before

874

Interim Decision #1900
he left, he was visited by a representative of the Secret Police who told.
him that if he should meet people in the United States, especially immigrants• from Czechoslovakia, who criticized the Czechoslovak regime, he (Janus) should explain that the situation had improved very
much and should try to change the person's anti-Communist views
(Ex. 9AJ, p. 9).
Jaroslav Janus left Czechoslovakia because of his disagreement with
the Communist system (Tr. p. 29; p. 13 ; p. 25J, etc.) ; he left with the
intention of never returning (Ex. 9.14, p. 6). Nothing in the files indictates anything other than this political motivation for his renunciation of the country where he was born and lived for 47 years. He is
genuinely afraid of reprisals by the Czech Government if he should
be forced to return, not simply because he has remained away longer

than authorized, but because he, a member of the Communist Party in
good standing, entrusted with the mission of propagandizing for the
Communist government in the United States, showed his true political
sentiments by defecting. The punishment imposed upon him by the
Czech court under Article 109/2, including not only the sentence to
imprisonment but, on his very first offense of any kind, the confiscation
of all of his property; the severity with which that confiscation was

carried out, including the enforced contribution by his wife of $2,100 to
cover the value of his interest in their home; the concern, in the record
of his brother's conviction, with the defection from the Republic, and
with the denigration of the good name of Czechoslovak'Republic (Ex.
11J) ; all of these factors persuade us that what would await Jaroslav
_
Janek upon his return to Czechoslovakia would not be punishment for
violation of an ordinary criminal statute (the prosecution has already
taken place) , but persecution for the political offense he has committed
against the State. We hold that respondent has satisfied the requirements of section 243 , as amended by the Act of October 3, 1965, and
will grant to him also a withholding of deportation.
III
Counsel and the voluntary agencies that have interested themselves
in these cases contend that the special inquiry officers and the Board
continue to apply a far too stringent standard and impose a far too
heavy burden on the alien in these eases, ignoring the change made in
the law by the 1965 amendment, and ignoring, too, the equating by that
act of the standard necessary for a section 243(h) withholding with
the standard for establishing eligibility as a conditional entrant under section 203(x) (7). They contend that the special inquiry officers
and the Board do not recognize certain truths; i.e., that a man may
be fleeing from a country even though he does not cross its borders
821-654--89--57,

875

Interim Decision #1900
clandestinely but exits with proper documentation; that statutes restricting all travel outside of a country and punishing violations with
imprisonment or other criminal sanctions, are inherently political in
character and not analogous to provisions such as section 2151 Immigration and Nationality Act; that any person, therefore, who leaves an
Iron Curtain country and stays out of it longer than authorized,
faces political persecution on his return, and should not bo deported

back behind the Iron Curtain, etc.
The Board has recognized the changes made in section 243 (h) by the
1965 amendment and has not only shaped its own decisions to accord
to the changed standards but has often granted reopening and remanded eases so that an application for a stay heard under the older
and more stringest standard can be considered under the new. Special

inquiry officers have themselves reopened proceedings for the same
purpose. The Board recognizes, too, that flight may be made with legal
documentation, and has not restricted its rulings on 243 (h) eligibility
to persons who climbed under fences or swam rivers at night. We
are not persuaded, however, that an applicant for conditional entry
under section 203(a) (7) is in the same legal posture as an applicant
for a withholding of deportation under section 243 (h). Nor do we
believe that specific standards of conduct can be set which will guarantee, without more, inclusion in or exclusion from eligibility for the
benefit being sought. Both under section 203 (a) (7) and section 243(h)
cases must be decided individually, on all of their facts; the performance of a particular act or the following of a specified course of
conduct are no more than guidelines for arriving at a result on the
basis of an entire record. We are not convinced that every travel

restriction imposed by an Iron Curtain country and punished, in the
breach, by imprisonment, is political persecution; or that every person
who leaves such a country and subjects himself to the penalties provided under those laws by remaining outside of his country for longer

than permitted is a bona fide refugee, or a person who will be subject
to persecution on his return because of his political opinion. A person
whose departure from an Iron Curtain country is devoid of political
motivation, or whose decision not to return is unrelated to the politics
of that country (e.g., the person who finds better economic opportunity here, or enters into a marital relationship with a resident alien
or United States citizen) is not entitled to a section 243 (h) stay solely
on the basis that he may face criminal prosecution for overstay. Nor
is a person who has not expressed opposition to the political regime

before departure automatically excluded from relief, if he can show
that his departure was politically motivated and that any consequences
he faces on return are political in nature. Each case, as we have said
876

Interim Decision #1900
before, must be considered on all of its facts, each factor given its
proper weight. We are aware of the inherent nature and intended function of the 243 (h) stay provisions, and have shaped our decisions
accordingly.
IV
ORDER: It is ordered that the decision of the special inquiry officerheretofore entered be and the same is hereby set aside and that the
following order is entered in lieu thereof :
ORDER: Conditioned upon the usual processing, including an investigation by the Immigration Service and provided nothing adverse
to the respondent is developed in such processing and investigation,
it is ordered that respondent Frantisek Janus is granted adjustment

permanent resident status under the provisions of section 245 of
the Immigration and Nationality Act; and
It is further ordered that respondent Jaroslav Janus is denied adjustment of status under section 245 upon the ground that he is statutorily ineligible therefor; and
It is further ordered that respondent Jaroslav Janus be granted
to

voluntary departure from the United States, without expense to the

Government, within such time and under such conditions as may be
set therefor; and

It is further ordered that if respondent Jaroslav Janus should fail
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; respondent Jaroslav Janus shall be deported from the United States
to Czechoslovakia upon the charge contained in the order to show
cause; and

It is further ordered that respondent Vladimir Janek be granted

departure from the United States, without expense to the
Government, within such time and under such conditions as may be
set therefore; and
It is further ordered that if respondent Vladimir Janek should fail
to depart when and as required, the privilege of voluntary departure
shall be withdrawn without further notice of proceedings, and the following order shall thereupon become immediately effective; respondent
Vladimir Janek shall be deported from the United States to Sweden
upon the charge contained in the order to show cause; provided, however, that if Sweden advises the Attorney General that it is unwilling
to accept respondent Janek into its territory, or fails to advise the
Attorney General within three months following original inquiry
voluntary

877

Interim Decision #1900
whether it will or will not accept respondent into its territory, that
respondent shall be deported to Czechoslovakia; and
It is further ordered that the deportation of respondents Jaroslav
Janus and Vladimir Janek to Czechoslovakia be withheld, pursuant
to the provisions of section 243 (h) of the Immigration and Nationality
Act, for such period and under such conditions as the Attorney General
may deem appropriate.

878


Interim Decision 4t1899

MATTER OF KAWASAKI
In Section 912(e) Proceedings
A-13519058
Decided by Deputy Associate C ommissioner August 28, 1968
"Exceptional hardship" within the meaning of section 212(e) of the Immigration
and Nationality Act is established by an exchange visitor where his United

States citizen spouse's mother has had surgical treatment for cancer, the
condition recurred and cannot be eradicated, progressive disability is anticipated, the mother is dependent on her daughter for emotional support, and
the exchange visitor's required departure would cause great mental anguish
to his citizen spouse as would be latter's separation from her mother.

Discussion: The decision of the District Director on April 8, 1968,
denying the subject's application for a waiver of the two-year foreign
residence requirement of section 212(e) of the Immigration and Nationality Act, as amended, on the ground that exceptional hardship had
not been established has been certified to me for review, pursuant to 8
CFR 103.4.
The applicant, Masashi Kawasaki, a forty-year-old physician, is a
native and citizen of Canada. He was admitted to the United States to
participate in Exchange Visitor Program P—I-153 doing medical research at Washington University, St. Louis, Missouri. He is now an
Assistant Professor in the Department of Otolaryngology at Washington University. Dr. Kawasaki has never participated in a Government sponsored program.
Satisfactory evidence of Dr. Kawasaki's marriage on November 11,
1966 and of the birth of his wife in the United States has been submitted. He resides with his wife in St Louis, Missouri.
The mother of the applicant's wife is afflicted with cancer. She has
had surgical treatment, but the condition has recurred. Her physician
states that the cancer cannot be eradicated and that progressive disability is to be anticipated. As a result of her illness, Dr. Kawasaki's
mother-in-law has developed a severe depression, which has required
psychiatric treatment. Both the psychiatrist and the cancer specialist
have certified that the mother-in-law is quite dependent on Mrs. Ka864

Interim Decision #18991
wasaki for emotional support. Mrs. Kawasaki is the only source of aid
and comfort to her mother. The only other child, a son, is a captain in
the United States Army and is unable to be present. It is clear that a
separation of mother and daughter at this stage of the mother's illness
can only add to their already great mental anguish. It would be unreasonable to expect Mrs. Kawasaki to accompany her husband abroad
and deprive her mother of the care only she can provide. Also to require Dr. Kawasaki to depart the United States and leave his wife

behind to go through this trying period alone is equally unreasonable.
Section 212(e) provides, in part, as follows :
. . . upon the favorable recommendation of the Secretary of State, pursuant
to the request of an interested United States Government agency, or of the Commissioner of Inunigration and Naturalisation after he has determined. that departure from the United States would impose exceptional hardship upon the
alien's spouse or child (if such spouse or child is a citizen of the United States
or a lawfully resident alien), the Attorney General may waive the requirement
of such two -year foreign residence abroad in the case of any alien whose mambaWW1 to the United States is found by the Attorney General to be in the' public
interest .. .
In view of the foregoing, it has been determined that compliance

with the foreign residence requirement of section 212(e) would impose
exceptional hardship upon Dr. Kawasaki's United States citizen
spouse. The Secretary of State has recommended that the foreign residence requirement be waived. It is found that the admission of the
applicant would be in the public interest.
ORDER: It is ordered that the application of Dr. Kawasaki for a
waiver of the two year foreign residence requirement of section 212(e)
of the Immigration and Nationality Act, as amended, be granted..
-

865


Interim Decision #2896

MATTER OF SAUCEDA
In Visa Petition Proceedings
A-20724469
Decided by Board February 4, 1982
(1) At. the time of the petitioner's purported adoption of the beneficiary, Article 400
of the Civil Code of Tamaulipas, Mexico, provided for adoption only by persons "who
have no descendants."
(2) The United States citizen petitioner, who had a living natural child at the time of
the beneficiary's adoption, failed to shoW that the adoption in Tamaulipas, Mexico, was
in compliance with the Civil Code of that state, and, hence, did not establish that
beneficiary waned as a chid of petitioner under section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(I)(E). Matter of Espinosa, 16 I&N Dec.
199 (BIA 1917), and Mila v. District Director, 494 F.Supp. 998 (D. Utah 1980), distinguished.
ON BEHALF OF PETITIONER:

Br:

Milhollan,

Alma L. Lopez, Esquire
809 South Saint Mary's Street
San Antonio, Texas 78205

Chairman; Maidatis, Maguire, Morris, and Vacca, Board Members

The United States citizen petitioner has moved that we reopen the
above captioned case in order to reconsidek our decision of May 12, 1975,
in which we affirmed the decision of the District Director and denied the
petitioner's_ visa petition application. The motion will be denied.
In a per curiain order dated May 12, 1975, the -Board denied the
petitioner's appeal, citing Matter of Allman, 15 I&N Dec. 165 (BIA
1975). In that case the beneficiary was adopted in Matamoras, Tamaulipas, Mexico. Article 400 of the Civil Code of Tamaulipas provides for
adoption only by persons "who have no descendants." The petitioner
had two natural children. Therefore, the adoption was not valid and the
petition was properly denied because the beneficiary did not qualify as
the child of the petitioner under section 101(b)(1)(E) of the Immigration

and Nationality Act, 8 U.S.C. 1101(b)(1)(E).
In suiport of his present motion, the petitioner makes the following
contentions: (1) That recurrent trends in Mexican Civil Law no longer
consider the "no descendants" requirement mandatory for a valid
adoption. The petitioner points out that the Mexican State of Coahuila
in its Civil Code, contained a section which, in pertinent part, was
199

Interim Decision #2896
exactly the same as Section 400 of the Tamaulipas Code and that in
1977, the Civil Code of Coahuila discarded the "no descendants" requirement at the time of adoption. (2) That the Mexican adoption court specifically declared that all "requisite legal demands were complied with, by
the proper procedure. . . ." The petitioner argues that the Mexican Court,
"waived" the "no-descendant" requirement and prkeeeded to declare the
adoption in full compliance with the law. (3) That the Board's decision in
Matter of Espinosa, 16 I&N Dec. 199 (BIA 1977), "clearly indicated that
the District Director could not declare invalid the action of a Mexican
Court, merely because of an alleged non-compliance with Mexican law."
The petitioner contends that the District Director's declaration of
"invalidity" was improper and submits that "Allmon can no longer be
considered as a viable precedent and the decision in the case at hand,
should be considered in light of Espinosa [sic]." (4) That Mila v. District
Director, 494 F.Supp. 998 (D. Utah 1980), concludes that the Service
and Board have been unduly restrictive. Petitioner contends that if a
bona Me parent-child relationship exists, then the important inquiry
must be the reality of the relationship and not the manner in which it
arises. (5) That the equitable doctrine of adoption by estoppel should be
applied in this case. Petitioner cites section 16.01 of the Texas family
code. (6) Petitioner argues that the beneficiary is eligible for "discretionary relief available pursuant to section 244(a) and (d) of the Act, 8 U.S.C.
1254(a) and (d), known as suspension of deportation." (7) That the
circumstances of this case "would also allow the exercise of the remedy
known as waiver of excludability, based on 212(c) of the Act, 8 U.S.C.
1182(c)." (8) Finally the petitioner contends that "under O.I. 242(a)(21)
the District Director may withhold or cancel deportation proceedings
against an alien who is seeking to enroll, or has carolled, in a course of
academic study, Under circumstances which would be applicable in this
cause; and under O.I. 103. 1(a)(i)(ii) the District Director may withhold
or cancel deportation -pro ceedings in compassionate cases under the
deferred action program."
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefits sought. Matter of Brantigan, 11 I&N
Dec. 493 (BIA 1966). In such proceedings, the law of a foreign country is
a.question of fact which must be proved by the petitioner if he relies on
it to establish eligibility fox an immigration benefit. Matter of Annang,
14. I&N Dec. 502 (BIA 19'73).
The immigration laws that we administer do provide for a United
States citizen parent to colder status on an adopted 'child under section
201(b) of the Act, 8 U.S.C. 1151(b). To establish that a beneficiary in
eligible for immediate relative status as an unmarried son or unmarried
daughter under section 201(b), the petitioner must show that the beneficiary once qualified' as his "child"-within the meaning of section 101(b)(1)
200

Interim Decision #2896
of the Act. Matter of Coker, 14 I&N Da. '521 (BIA 1974). The term
"child," as defined by that section, includes an adopted child, section
101(b)(1)(E).
In this case, the petitioner, has failed to establish that the beneficiary
had been lawfully adopted. Article 400 of the Civil Code of Tamaulipas
in effect at the. time of the alleged adoption authorized only persons
"who do not have natural descendants" to adopt minor children. The
beneficiary's adoption was not in compliance with controlling law as the
petitioner and his spouse had a natural child living in May 1972.
The petitioner alleges that current trends no longer consider Allmon

as a viable precedent. However, he has not supported this allegation
with evidence that the Civil Code of Tamaulipas has amended its "no
descendants" requirement. ConseqUently, we find that Allmon is still
controlling. See. also Matter of Garcia-Rodriguez, 16 I&N Dec. 488
(BIA 1978).
Petitioner contends that "it is reasonable to conclude that the Mexican Court, in passing on the adoption in question, considered the requirements of [article] 400 and, having decided that the purpose of the
no-descendant requirenient was not applicable here, waived that
requirement." We fmd no indication that the Mexican adoption court
was made aware of the facts of this case.

Petitioner's reliance on Espinosa is misplaced. We stated in Espinosa
that the issue was "whether the state of Texas would recognize the
mutual consent divorce [decree before the Civil Registrar of Coahuila,
Mexico] as valid." The decree was improperly entered and subject to
possible annulment under Mexican law. However,' the Civil Code of
Coahuila explicitly provided that any such divorce decree would be
considered valid until such time as it otherwise might be declared . void
by court action. In reliance on this express statutory presumption of
validity, we found that Texas courts would accept the decree as valid.
There is no indication here that the Civil Code of Tamaulipas contains a
similar statute recognizing invalid adoptions as presumptively valid. On

the contrary, the Civil Code of Tamaulipas, on which we must rely,
expressly provides for adoptions only by persons "who have no descendants." Accordingly, the petitioner has not met his burden of establishing the fact of the foreign law. Matter of Annang, supra.
Petitioner's reliance on Mile is also misplaced. The court in Mile held
that the Board must recognize customary adoptions in foreign countries,
when such countries have no law governing adoptions and when the
courts of such countries would enforce customary adoption. Here the
Civil Code of Tamaulipas expressly provides for adoptions; Tamaulipas
is not a legal system or which only recognizes adoptions by
custom. Under section 101(b) of the Act, the Civil Code of Tamaulipas is
determinative of whether a qualifying relationship exists. Matter of
201

Interim Decision #2896

Allman, supra; Matter of Garcia Rodriguez, supra. Petitioner has not
-

established a qualifying relationship under that law.
As to estoppel, we do not find the Texas doctrine of adoption by
estoppel applicable to Mexican adoptions.
Finally, in reference to petitioner's arguments on appeal regarding
suspension of deportation, waiver of excludability and withholding or
cancellation of deportation proceedings, we notethat these matters are
not relevant to these visa petition proceedings.
' Accordingly, the motion to reopen will therefore be denied.
ORDER The motion is 'denied.

202


Interim Decision #2232

MATTER OF MEHTA

In Deportation Proceedings
A-18488770

Decided by Board August 17, 1973
A nonimmigrant student's 23-day incarceration resulting from conviction for the
crimes of profanity in public and breach of peace was inconsistent with the
purpose for which he was admitted and constituted a violation of his nonimmigrant student status where such incarceration meaningfully interrupted the
pursuit of his academic studies (as evidenced by his lack of satisfactory progress
toward his degree). Therefore, he is deportable under section 241(a)(9) of the
Immigration and Nationality Act for failure to comply with the conditions of
nonimmigrant (student) status under which admitted. [Matter of C—, 9 I. & N.
Dec. 100, distinguished.]
CHARGE:

Order: Act of 1952 —Section 241(a)(9) [8 U.S.C. 1251(a)(9)1 —Failed to comply
with conditions ot nonimmigrant (student) status under
which admitted.

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:
Bernard P. Becker, Esquire
Legal Aid Society, Inc.
501 Park Avenue
Minneapolis, Minnesota 55415

John W. Bowser
District Director

(Brief filed)

This is an appeal from a decision of an immigration judge
Ending the respondent deportable as charged and ordering his
deportation. During the pendency of the appeal the Service has
filed a motion to reopen the proceedings and remand to the
immigration judge for further hearing. The Service motion will be
denied and the appeal will be dismissed.
The respondent is a 26-year-old unmarried male alien, a native
and citizen of India, who entered the United States on or about
September 3, 1968 as a nonimmigrant student for a temporary
period. At a hearing before an immigration judge, at which he was
represented by present counsel, respondent denied the truth of
allegations 7, 8, and 9 of the order to show cause and. denied
deportability.
451

Interim Decision #2232
At the hearing the respondent admitted.that he was convicted
in Hennepin County, Minnesota for the crimes of profanity in
public and breach of the peace (Tr. p. 22 and Ex. 5). The record
indicates that he was sentenced to serve 90 days in jail as a result,
that he actually was incarcerated in the Minneapolis City Workhouse, Wayzata, Minnesota from February 14, 1973 to March 9,
1973 (Ex.5), and that he was released on parole for the balance of

the term (Ex. 6). The immigration judge concluded that the
respondent had violated the conditions of his nonimmigrant student status in that Ms imprisonment was inconsistent with the
purpose for which he was admitted. The immigration judge found
the respondent deportable under section 241(a)(9) of the Immigration and Nationality Act.
We agree with the immigration judge that the respondent's 23day incarceration constitutes a substantial violation of the terms
of his student status.' Counsel's contention that the respondent's
studies were not meaningfully interrupted thereby is contradicted
by evidence that the respondent was not in fact making satisfactory progress toward his graduate degree, as of March 5, 1973 (Ex.
The present case is distinguishable from Matter of C—, 9 1. & N.
Dec. 100 (BIA, 1960), upon which counsel relies. In that case the
alien was convicted for disorderly conduct but was not incarcerated,
and he continued his course of study and school attendance
without interruption.We recognized this very distinction in Matter
of C—, supra, wherein we rejected the Service's contention that
Matter of A—, 6 I. & N. Dec. 762 (BIA 1955) should control. Matter
of A—, supra, involved a nonimmigrant visitor who was convicted
and imprisoned for disorderly conduct. We held there, as we hold
today, that incarceration for a substantial period for a criminal
offense constitutes a violation of nonimmigrant status, in that the
respondent is no longer pursuing the purpose for which he was
admitted.
We have reached the same conclusion in a case where a
nonimmigrant visitor was not incarcerated for the offense, Matter
of Neely and Whylie, 11 I. & N. Dec. 864 (BIA 1966). In that case we
commented on Matter of C — , supra, to emphasize that respondent
C's studies had not been meaningfully interrupted as a result of

1 While we do not rely on any facts asserted in the Service motion to reopen,
we note in passing that it alleges that on June 26, 1973 the respondent's parole
was revoked and he was committted to serve the remaining 67 days of his 90-day

sentence. Respondent's representative deco not deny that he is at present in

detention.

452

Interim Decision #2232
his conviction, whereas a visitor's conviction of a criminal offense
is clearly inconsistent with his pursuit of pleasure.
Our review of the facts and the applicable law therefore
satisfies us that deportability has been established by clear,
convincing, and unequivocal evidence. We concur in the findings of
the immigration judge and his decision will be affirmed.
ORDER: The Service motion to reopen is denied and the appeal
is dismissed.

453


.11.411.,G111./.1

MATTER OF KALIA

In Section 248 Proceedings
A-20061003

Decided by Regional Commissioner January 16, 1974
An application for a change of nonimmigrant classification under section 248 of
the Immigration and Nationality Act from that of a student under section
101(a)(15)(F)(i) of the Act to that of an exchange visitor under section
101(aX15XJ) of the Act, for the purpose of enabling the applicant to acquire
additional practical training, is denied, in the absence of unusual circumstances, where the applicant has already been granted a total of 18 months'
employment for practical training purposes while in student status.

This matter is before the Regional Commissioner on appeal from
the denial of the application for change of nonimmigrant status.

The appellant is an unmarried 28-year-old native and citizen of
India who was admitted to the United States on October 1, 1969 as
a nonimmigrant student until September 30, 1970 pursuant to
section 101(a)(15)(FXi) of the Immigration and Nationality Act. He
subsequently received extensions of his temporary stay in F-1
status until February 1, 1973, which included three periods of
practical training aggregating 18 months. In accordance with his
request for additional time, he was given until April 30, 1973 to
depart from this country. The instant application for change of
nonimmigrant classification to that of an exchange visitor was
filed by him on April 16, 1973. In connection therewith, he has
submitted a Form DSP-66, Certificate of Eligibility for Exchange
Visitor Status, dated April 10, 1973 which reflects that he has been
accepted into Exchange Visitor Program No. P—I-737 under the
sponsorship of Rutgers-The State University, New Brunswick,
New Jersey; that he will serve as Science Bibliographer and
Reference Specialist at the school's Dana Library, Newark, New

Jersey at a salary of $9,971 per year. The alien has stated that
such employment will accord him two more years of practical
training in his field; that he is aware of the two-year foreign
residence provision and knows that he will be subject to such
requirement if he is granted exchange visitor status.
The District Director denied this application on the grounds that
the alien has been given the maximum 18-month period allowable
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ttibertin

1Jet;mitn1

for practical training; that there is no basis for according him
exchange visitor status to permit him to engage in two additional
years of practical training; that he is not a bona fide nonimmigrant. It was pointed out that a letter dated January 24,1973 from
Rutgers University reflects that the appellant intends to apply for
permanent residence in the United States. The alien has asserted
on appeal that he has changed his mind about applying for
permanent residence; that he wishes to fully familiarize himself
with current theories and techniques in his field before returning
to India to engage in his profession. In support of this appeal,
there have been furnished two additional letters from Rutgers
University advising that the applicant is seeking to gain experience, training, and knowledge in his field so he may return home
to properly perform in his profession; that he will have gained
sufficient knowledge and experience by June 1975; that there are
good possibilities for his employment in the developing library
systems in India, particularly the newly-established Indian Institutes of Technology.
The entire record in this case has been very carefully reviewed
in the light of the representations made on appeal. It is provided
in 8 CPR 2142(0(6) that a nonimmigrant student may be granted
permission to accept or continue temporary employment to obtain
practical training in increments of not more than six months each
for a maximum period of not more than 18 months in the
aggregate. In view of the foregoing, it is concluded that the
maximum period of time granted to an F-1 student for permission
to engage in employment for practical training purposes should
not exceed 18 months, regardless of whether the employment is in
F-1. or J-1 status. The applicant in this case has already been
allowed the maximum time permitted under Service regulations
for practical training of an F-1 student. To accord him a change to
another nonimmigrant classification at this juncture to enable
him to continue such training, would be, in the absence of most
unusual circumstances, contrary to the intent of those regulations.
No such circumstances have been found to be present in this case
to justify an exception to the general rule. Accordingly, this appeal
will be dismissed.
It is ordered that the appeal be and same is hereby dismissed.

560


Interim Decision #2506

MATTER OF KU
' ' In Deportation Proceedings
A-15857820

Decided by Board July 22, 1976
(1) Notwithstanding the fact that a final order of deportation had been entered against the
respondent, the subsequent order of the immigration judge which reopened the proceedings for the purpose of determining whether respondent was entitled to a new
grant of voluntary departure, was an interlocutory order because the factual issues
underlying tt e subsequent order involved an entirely new question. Therefore, the
Board was without jurisdiction to entertain an appeal of the subsequent order, and the
Service's motion seeking reconsideration was denied.
(2) Matter of Rangel-Cantu, 12 I. & N. Dec. 74, overruled in part, to the extent it is
inconsistent with the Board's position respecting its jurisdiction over interlocutory
appeals announced in this decision.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]--Nonimmigrant
crewman—remained longer
ON BEHALF OF RESPONDENT:
James J. Orlcw, Esquire
Wasserman, Orlow, Ginsberg & Rubin
636 Public Ledger Building
Philadelphia, Pennsylvania 19106

ON BEHALF OP SERVICE:

Sam Bernsen
General Counsel
George Indelieato
Appellate Trial Attorney

In a deci sion dated February 24, 1976, the immigration judge
reopened these deportation proceedings in order to permit the respondent to apply for a new grant of voluntary departure. The Immigration
and Naturalization Service took an appeal from that decision, although

no hearing hid yet been held to determine whether or not the respondent actually merited the relief sought. We deemed the appeal interlocutory in nature, and pursuant to our decision in Matter of Sacco, 15 I.
& N. Dec. 109 1974), we dismissed the Service's appeal for lack of
jurisdiction. The Service has now submitted a motion seeking reconsideration of our May 10, 1976 dismissal of the appeal. The motion will be
de/lied.

In order to avoid the piecemeal review of the many questions which
may arise it a deportation proceeding, we have held that we lack
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Interim Decision #2506
jurisdiction to entertain appeals from interlocutory orders of inunigradon judges. Matter of Sacco, supra. On occasion, we may assume
jurisdiction by certification if an interlocutory order raises a significant
issue involving the administration of the immigration laws. See Matter
of Seren, 15 I. & N. Dee. 590 (BIA 1976). In addition, certain orders,
although interlocutory in form, may be far-reaching in effect and have a
sufficient degree in finality to warrant appeal jurisdiction. See Matter of
Fong, 14 I. & N. Dec. 670 (BIA 1974).
The Service does not contend that the immigration judge's order
reopening these proceedings raises any significant issue regarding the
administration of the immigration laws. Instead, the Service merely
asserts that on the facts of this case reopening is not warranted. The
Service does, however, disagree with our characterization of the immigration judge's order as interlocutory," and therefore contends that we
should address the merits of the appeal
The Service contends that only those orders which precede the entry
of a final order of deportation are "interlocutory" within the contemplation of Matter of Sacco, supra. According to the Service, the immigration judge's present order is not an interlocutory order because there
has once been a final order of deportation entered in this case. We reject
this construction of what constitutes an interlocutory appeal
It is true that a final order of deportation was rendered by the
immigratiom judge. The factual issue underlying this case, however,
involves an entirely new question, namely, whether or not the respondent now deserves a new grant voluntary departure. See generally
Matter of Young, 13 I. & N. Dec. 528 (BIA 1970); Matter of Onyedibia,
15 I. & N. Dec. 37 (BIA 1974); Matter of Ozcan, 15 I. & N. Dec.
301 (BIA 1975). The immigration judge's order reopening these proceedings does not dispose of the merits do the respondent's request for
such relief. The immigration judge's order merely resolves the preliminary question of whether or not to hold a hearing at which evidence
going to the merits may be presented. This. is not a final disposition of
the respondent's request for voluntary departure anew. For example, it
is possible that the Service may persuade the immigration judge that
the respondent does not merit such relief at the reopened hearing.
The Service also relies on Matter of Ranget-Cantu, 12 I. & N. Dec. 73
(BIA 1967), in arguing that it may take an appeal from an immigration
judge's grant of a motion to reopen an alien's immigration case. Matter
of Rangel-Cantu, supra, involved the question of an immigration
judge's jurisdiction to reopen an exclusion proceeding after the execution of the order of exclusion and deportation. The presence of that issue
would have justified our taking jurisdiction by certification in accordance with 8 CFR 3.1(c). However, we did not.review the case pursuant

to that authority, and instead we stated that ". . . the Service has the
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Interim Decision #2506
right to app sal [an immigration judge's] order on a motion to reopen an
exclusion case." Matter of Rangel-Cantu, 12 I. & N. Dee. at 74.
The language used in Matter of Rangel-Cantu, supra, does support
the Service's position. However, as we have indicated, subsequent
Board decisions have taken a much narrower view of our jurisdiction to
entertain appeals from interlocutory order of immigration judges. We
therefore overrule Matter of Rangel-Cantu, supra, to the extent that it
is inconsistent with our present position on our jurisdiction over interlocutory appeals.
We have no jurisdiction to entertain the Service's appeal in this case,
and we can perceive no reason for taking the matter on certification. The
immigration judge has ordered the proceedings reopened. He will presumably entertain evidence and enter a final order on the respondent's
request for voluntary departure anew. After that, both sides will have
the opportmity to take an appeal to us from the immigration judge's
decision.
ORDER: The motion to reconsider is denied.
Irving A_ Appleman, Member, Concurring:

The Service motion for reconsideration argues with some persuasiveness, that a deportation order had already vested in this case, and that
accordingly, we were not confronted with an interlocutory order, but, in
effect a revival of completed proceedings.
The definition of interlocutory action is necessarily subject to varying
interpretaticns. Normally, the issue is presented to us in the framework
of a ruling prior to, or as part of, the primary deportation proceedings.
Matter of Sacco, 15 I. & N. Dec. 109 (BIA 1974). Here, when the
proceedings are reopened by an immigration judge, the deportation
order is without force and the outcome undecided until the conclusion of
the reopened hearing. As the majority points out, fragmented appeals
are undesirable and contrary to the intent of the Immigration and
Nationality Act (Section 100, Section 5, Act of September 26, 1961, 75

Stat. 651). T:ie immigration judge entered the last order in the case; the
motion was properly addressed to him; and he had the authority to
entertain it. Matter of Yeung 13 I. & N. Dee. 52S (BIA 1970)_ It rests in
his sound discretion to accept or reject it. We have had no abuse pointed
out to us in this case, nor has the Service pointed to any general area of
difficulty that will be occasioned by our holding.
While it is unnecessary to our holding to reach the merits, it should
perhaps be noted that the Service has chosen a singularly poor vehicle
for raising the issue. Subsequent to the original grant of voluntary
departure by the immigration judge the alien was granted administrative extensions of the voluntary departure privilege, allegedly to allow

him to proceed abroad to Toronto, Canada to receive his immigration
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Interim Decision #2506
visa. The warrant of deportation did not issue until May 13, 1975.
Thereafter deportation was stayed by reason of Senate consideration of
a private bill. By October 1975 consular processing was finally completed and a visa number was made available for issuance of a visa the
following month. The motion to reopen was filed on November 18, 1975,
and the immigration judge directed reopening of the proceedings.
In his decision granting the motion, the immigration judge commented as follows:
Copies of letters sent by counsel to the Service, and an affidavit by the respondent,
show that the Service had misplaced respondent's file and that the United States Consul
in Toronto had two or three separate files on the respondent; only after considerable
delay were these files consolidated, but until such consolidation had occurred, the visa
application could not be processed . . . it appears that the failure to depart may have
been caused by circumstances beyond respondent's control...

Following the order of the immigration judge directing reopening of
the proceedings, the district director moved for reconsideration and
requested an opportunity to file a brief. The immigration judge
reaffirmed on February 24, 1976. An appeal was taken by the Service
which arrived here April 16, 1976. On May 10, 1976, we dismissed the
Service appeal; whereupon the Service requested, and was granted, a
stay of execution, and on June 11, 1976, filed a motion for reconsideration of our order. It is now over seven months since the original order of
reopening.

In all this time not only has no significant issue been raised concerning
the administration of the immigration laws, as the majority points out,
but the unusually vigorous efforts of the Service in this case, have been
devoted to impeding exploration of a situation which may possibly have
been brought about, at least in some part, by government derelictions.
One would normally expect the Service to desire a close scrutiny of this
possibility, and to welcome appropriate corrective action, if warranted.

I concur in the vote of the majority and add the further thought that the
zeal shown in prosecuting this particular appeal might have been better
used in bringing the matter to a speedy conclusion on the merits.

715


Interim Decision #2029

MATTER OF OLIVEIRA

In Deportation Proceedings
A-14678566
Decided by Board March 6, 1970
In a finding of deportability under section 241(c) of the Immigration and
Nationality Act, the Woodby burden of proof is met by clear, unequivocal
and convincing evidence that the alien's marriage took place less than 2
years prior to his entry, and that the marriage was judicially terminated
within 2 years after entry.

CHARGE:
Order: Act of 1952—Sections 291 (a) (2) and 241 (c) [8 U.S.C. 1251 (a) (2)
and 1251 (c) ]—Entered with visa procured through
marriage fraud.
ON BEHALF OF RESPONDENT'
Arlin W. Hargreaves, Esquire
30 Hotaling Place
San Francisco, California 94111

ON BEHALF OF SERVICE:
R. A. Vielhaber
Appellate Trial Attorney
Stephen M. Suffin
Trial Attorney
(Brief filed)

Robert S. Bixby, Esquire
(Brief filed)

The case comes forward on appeal from the decision of the special inquiry officer who found respondent deportable as charged
and ordered that he be deported to Portugal. There was no request for voluntary departure.
The respondent is a 32-year-old divorced male alien, a native
and citizen of Portugal, who entered the United States at New
York on February 27, 1965, being then admitted as a nonquota
immigrant upon presentation of an immigrant visa issued to him
as the spouse of a United States citizen. His marriage, which took
place at Lisbon, Portugal on December 18, 1964, was to one Rose
Marie Vasquez, a native born citizen of the United States. Both
testified that the marriage was consummated and that the day
following the wedding she returned to the United States. Respondent followed ten weeks later. They never lived together in
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Interim Decision #2029
the United States. The marriage was terminated by divorce on
October 7,1966.
The special inquiry officer found respondent deportable under
sections 241 (a) (2) and 241 (c) of the Act as one who entered the
United States with a visa procured through a marriage fraud.
The applicable portion of section 241 (c) is as follows:
An alien shall be deported as having procured a visa or other documentation by fraud within the meaning of paragraph (19) of section 212(a), and
to he in the United States in violation of this Act within the meaning of
subsection (a) (2) of this section, if (1) hereafter he or she obtains any
entry into the United States with an immigrant visa or other documentation
procured on the basis of a marriage entered into less than two years prior
to such entry of the alien and which, within two years subsequent to any
entry of the alien into the United States, shall be judicially annulled or terminated, unless such alien shall establish to the satisfaction of the .4 ttorney
General that such marriage was not contracted for the purpose of evading
any provisions of the immigration laws. (Emphasis supplied.)

An initial question was raised by counsel as to what standard
of proof must be met by the Service in finding respondent deportable under section 241 (c) of the Act. Counsel argues that the
standard enunciated by the Supreme Court in the case of Woodby
v. INS, 385 U.S. 276 (1966) (where deportation was predicated
on section 241 (a) (2) of the Act), that no deportation order may
be entered unless it is found by clear, unequivocal and convincing
evidence that the facts supporting deportation are true, is equally
applicable to the deportation proceedings in the instant case
under section 241 (c) . 1 With this we agree.
The Government in the case before us has met its burden of
proof by showing by clear, unequivocal and convincing evidence
that: (1) respondent's marriage took place less than two years
prior to his entry, and, (2) the marriage was judicially terminated within two years after entry. This being the case, the respondent then has the burden under section 241 (c) of coming forward with evidence sufficient to rebut the statutory presumption
of said section that the visa was procured by fraud, by proving to
the satisfaction of the Attorney General by a preponderance of
evidence that the marriage was not entered into for the purpose
of evading the immigration laws.
The special inquiry officer has set forth in his opinion an exhaustive, chronological statement of the facts relative to respondFollowing the Woodby case, 8 CFR 242.14 (a) was promulgated, which is
as follows:
"A determination of deportability shall not he valid unless it is found
by clear, unequivocal and convincing evidence that the facts alleged as
grounds for deportation are true."

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Interim Decision #2029
ent's marriage, and he concluded that respondent had failed to
show by a preponderance of the evidence that the marriage was
not entered into in order to evade the immigration laws. We
reach the same conclusion. We do not deem it necessary to again
detail all of the facts and circumstances surrounding this marriage, but state that we are in full agreement with the excellent
analysis by the special inquiry officer that clearly shows that the
respondent has failed to establish that the marriage was not for
the purpose of evading the immigration laws.
Accordingly, we will dismiss the appeal.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.

505


Interim Decision #1641

MATTER

or

BEM

In Visa Petition Proceedings
A-14974695

Decided by Acting District Director July 98, 1966
Since beneficiary lacks the equivalent of a baccalaureate degree in engineering
as conferred by accredited United States colleges or universities and no
evidence of any experience by him in mechanical engineering has been
submitted, be does not qualify for professional status as a , mechanical
engineer ; therefore, a visa petition to accord him preference classification
under section 203(a) (3), Immigration. and Nationality Act, as amended by
89 230, as a mechanical engineer, is denied..
-

The petition was filed by the beneficiary, for third preference
classification as a member of the professions based upon his qualifications as a mechanical engineer.
He is a single, native and citizen of India, born March 20, 1942,
presently residing in Canada. He attended the Sri GUru Tech
Bahadur Kbalsa College, Delhi, India, where, in April 1961, he
obtained a bachelor of science degree, with honors in mathematics,
On July 81, 1962, in England, he was awarded a diploma in refrigeration. following a full time course of study during the 1961 62
session, by the National College for Heating, Ventilating, Refrigeration and Fan Engineering. As a result of this diploma, he was
elected a member of the Institute of Refrigeration on August 28,
1962. On. July 16, 1964, he was awarded a Higher National Certificate in Mechanical Engineering, in London, England, This
Certificate attests that the beneficiary hid satisfactorily completed.
an approved part-time course at North-West Sent College of Technology, Dartford, England, in. the following subjects: First Year—
Strength of Materials; Theory of Machines; Heat Engines: Second
Year—Strength of Materials; Theory of Machines; Heat Engines.
(Assessed). No other evidence of recognition by a national or international society was submitted, nor was evidence of lie,ensure as a
mechanical-engineer submitted. No evidence of employment in the
-

-

4e1d of mechanical engineering was submitted.

802 -

Interim Decision #1641.
Under section 208 (a) (3) of the Act, third preference quota status
may be accorded to "qualified immigrants who are members of the
professions."
Recognition of professional status normally is attained through
completion of high education, followed by licensure or other similar official permission to practice a profession. Section 101(a) (32)
of the Act, states the term "profession" shall include but not be
limited to, architects, engineers, lawyers, physicians, surgeons and
teachers in elementary or seconda
ry schools, colleges, academies or
seminaries.
The Secretary of Labor has issued a list of categories of employment in Schedule A, Section 60, Title 20, Code of Federal Regulations, for which he has certified. pursuant to section 212(a) (14) Of
the Immigration and Nationality Act, as amended, that there are
not sufficient workers who are able, willing, qualified and available
for employment, and that the employment of aliens in such categories will not adversely affect the wages and working conditions
of workers in the United States similarly employed. Schedule A
reflects that the Secretary of Labor has granted such "blanket"

certification to a person whose education or experience is equivalent
to the baccalaureate degree conferred by accredited United. States
colleges and universities in mechanical engineering.
Inclusion in Schedule A does not necessarily mean that a particular occupation is classifiable as a profession, inasmuch as Schedule A includes nonprofessional as well as professional occupations.
However, section 101(a) (32) of the Immigration and Nationality
Act, as amended, states specifically that the term "profession" shall
include "engineers". It is 'concluded that, if the beneficiary has an
education or experience equivalent to a baccalaureate degree in engineering conferred by accredited United States colleges or universities, he is not only entitled to the "blanket" certification of the
Secretary of Labor pursuant to Schedule A, 29 CFR 60, but is also
classifiable as a member of the professions within the meaning of
section 208(a) (8) of the Immigration and Nationality Act, as
amended.
No evidence of any experience by the beneficiary in mechanical
engineering has been submitted. Since his education was not clearly
equivalent to a baccalaureate degree in engineering conferred by an
accredited college or university in the United States, the evidence of
his educational qualifications was referred to the Office of Education, Department of Health; Education, and Welfare for an advisory

opinion in terms of its equivalency to as education in the United
stated that the beneficiary has

States_ In their reply, that Office

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Interim Decision #1641
the approximate-equivalent of high school education, plus two years
of college credit in engineering. The reply noted further that upon
departure from India, the beneficiary had the general equivalent
of high school graduation, plus 1 year of college credit; that his
further education is England added an additional year of college
credit.
Because of his lack of the equivalent of a baccalaureate degree
as conferred by United States colleges or universities, it can only
he concluded that the beneficiary does not qualify for professional
status as a mechanical engineer, and the petition to accord him
third preference classification must necessarily be denied.
Examination of the evidence establishes that the beneficiary is
qualified for work involving a high degree of skill. Section 203(a)
(6) of the Act, as amended, provides for sixth preference classification for aliens capable of performing skilled or unskilled labor,
not of, a temporary or seasonal nature, for which a shortage of
employable and willing persons exists in the United States.
The denial of the petition for third preference classification is
without prejudice to determining his qualifications for sixth preference, if a petition to accord him that classification, supported by
the required Department of - Labor certification, is submitted in his
behalf by an actual' or prospective employer. •
ORDER: It is ordered that the petition to hecord the beneficiary
third preference classification be and hereby is denied.

804