Interim Decision #1273

Mamma or lititnnrso
. In DEPORTATION Proceedings
A-11499121
Decided by Board October Ed, 196$ and February 11, 1963
Where conspiracy indictment does not contain an allegation that the alien
procured a visa by fraud his conviction under the indictment will not under
the doctrine of collateral estoppel establish his deportability under section
212(a) (19) of the Immigration and Nationality Act.
CHARGES :
Order: Act of 1952—Section 241(c) [8 U.B.C. 1251(0)17–Failed or refused
to fulfill marital agreement nialle to piocure entry
as immigrant.
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable
at entry under 8 U.S.C. 1182(a) (19)—Visa procured by fraud or misrepresentation.
Act of 1952—Section 241(a) (1) [8 U S.O. 1251(a) (1)3—Excludable
at entry under 8 U.S.O. 1182(a) (20)—Immigrant
visa not valid.
BEFORE

THE BOARD

This case is before us on appeal from a decision of a special inquiry
'officer directing the respondent's deportation.
The respondent is a 30-year-old married male, native and citizen
of Portugal, who last entered the United States on June 27, 1958 at
which time he was admitted as a nonquota, immigrant on the basis
of his marriage on April 14, 1958 to Mary McCabe, a United States
citizen. He was previously in the United States from September 1956
to May 1958. The Service takes the position that the respondent's marriage was not a bona fide one and that its only purpose was to secure
n.onquota status for him. On January .10, 1962 he was

convicted e

conspiracy to violate 8 U.S.C. 1325. The Government abandoned
. the charge stated in the order to show cause and the second lodged
charge and relied solely on the first lodged charge (p. 11) . The special

inquiry officer concluded that this charge was sustained. The only
214

Interim Decision #1273
issue to be determined is whether the respondent is deportable on the
charge mentioned.
The examining officer stated (p. 17) that the Government would rely
on the doctrine of collateral estoppel, and the special inquiry officer
based his decision on that theory, citing Matter of C , 8 I. & N. Dec.
577 (1960), and Matter of T—, Int. Dee. No. 1115 (1960). There the
courts had made specific findings of fact which precluded relitigation
of the same facts in the deportation proceedings. The record before
us does not show that the court made findings of fact in the criminal
proceeding, and the special inquiry officer has not referred to any
specific findings as having been made in that proceeding. Accordingly, the two cases upon which the special inquiry officer relied are not
—

analogous.
The two cases mentioned above were cited by the examining officer
as well as the unreported case of Sifuentes v. Rogers (S.D. Cal., 1960) ;

United States v. Rangel-Perez, 179 F. Supp. 619 (S.D. Cal., 1959) ;
and Matter of Z—, 5 1. & N. Dec. 708 (1954). We do not believe that
the Sifuentes case has any applicability. In the Rangel-Perez case,
the question in the second criminal proceeding was whether the doctrine of collateral estoppel could be invoiced against the defendant
as to the issue of alienage because of an earlier conviction, and the
court specifically said (p. 626) that it was beyond dispute that a finding

of fact that the defendant was then an alien had been made in the first
criminal proceeding and that this finding had been necessary to a
judgment of guilt. We have already indicated. that the record in
the respondent's case does not show what findings of fact were made in
the criminal proceeding. With respect to Matter of Z—, supra, that
case is distinguishable because the alien had been convicted under 18
U.S.C. 1546 which relates inter Oa to receiving an immigrant visa
knowing that it was procured by means of any false claim or statement,
whereas the respondent was convicted of conspiracy to violate an
entirely different statutory provision.
There is included in Exhibit 3 the court's judgment of January 19,
1962 showing that the respondent was convicted "of the offense of conspiracy (making false statement to Immigration and Naturalization
Service)". Count one of the indictment also shows that the respondent was not convicted of violating 8 U.S.C. 1325 but that he and Mary
McCabe Marinho were charged with conspiracy under 18 U.S.C. 371
to violate 8 U.S.C. 1325. There are statements in count one that it
was part of the plan and purpose of the conspiracy that the two

defendants would do certain acts but it was not stated that the acts
were actually done except insofar as concerns the overt acts which were
set out. One of these is that the respondent entered the United States
215

Interim Decision #1273
on June 27, 1958. However, the indictment does not specifically
charge that he procured an immigrant visa.
8 U.S.C. 1325, which the defendants conspired to violate, applies
to obtaining entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, but it
does not relate to procurement of a visa. Exhibit 2 shows that the deportation charge on which the Service relies is based on that part of
8 U.S.C. 1182(a) (19) which refers to an alien who has procured a visa
by fraud or by willfully misrepresenting a material fact. Under the
circumstances, we conclude that the doctrine of collateral estoppel is
not applicable to the respondent's case and that his conviction standing
alone is insufficient to meet the requirement of 8 U.S.C. 1252(b) (4)
that a decision of deportability must be based upon

reasonable,

substantial and probative evidence.
Under 8 CFR 242.18(a), a formal enumeration of findings is
not required but it is provided that the decision of the special inquiry
officer shall include findings as to deportability. Such findings were
not made in the respondent's case, and it is impossible to determine
from this record whether the special inquiry officer found that the
respondent procured his visa by both fraud and misrepresentation, by

fraud only, or by misrepresentation only. If the latter, there should
be set forth the specific statement in the visa application which constituted a misrepresentation. The immigrant visa was not made
part of the record.
In his notice of appeal, counsel contended that the marriage between
the respondent and Mary McCabe was consummated and that it is
an existing legal and valid marriage. In his statement of November
5, 1959 (Ex. 5, pp. 14, 22-23), the respondent stated that he had had
sexual relations with his wife. On April 3, 1962 (Ex. 4, p. 5), he
stated that he "never lived with her as a wife". At the hearing on
June 27, 1962 (p. 26), the respondent answered affirmatively when
asked whether he ever had sexual intercourse with this woman after
their marriage. No further questions were asked as to when this
occurred or whether it occurred on more than one occasion. This may
or may not have a bearing on the question of whether the visa was
procured by fraud or misrepresentation, but we believe this matter
should be developed.
8 CFR 3.1(d) (2) provides that the Board may return a case to
the Service for further action without entering a final decision on the
merits. In view of what we have said above, we consider it appropriate to reopen the hearing and remand the case to the Service for further
development of the record.
ORDER: It is ordered that the outstanding order of deportation
be withdrawn; that the hearing be reopened for further action in
216

Interim Decision #1278
accordance with the foregoing; and that the case be remanded to the
Service pursuant to 8 CFR 3.1(d) (2) .
BEFORE THE BOARD

On October 22, 1962 we directed that the hearing be reopened and
that the case be remanded to the Service. The case is now before us

pursuant to a motion of the Service requesting reconsideration.
The respondent is a 30-year-old married male, native and citizen of
Portugal, who last entered the United States on June 27, 1958 at which
time he was admitted as a. nonquota immigrant on the basis of his
marriage on April 14, 1958 to Mary McCabe, a United States citizen.
He was previously in the United States from September 1956 to May
1958. The special inquiry officer held that the first lodged charge
was sustained on the basis of the respondent's conviction on January

19, 1962 and under the doctrine of collateral estoppel by judgment.
The Service asserted (motion, p. 2) that the respondent was convicted of a violation of 8 U.S.C. 1325. However, it is apparent from

the court's judgment of January 19, 1962 (part of Ex. 3) that he was
actually convicted of conspiracy under count one of the indictment.
Count one shows that the respondent and Mary McCabe Marinho were
charged with conspiracy under 18 U.S.C. 371 to violate 8 U.S.C; 1325.
In Pinkerton v. United States, 328 U.S. 640, 643 (1946), it was said
"It has been long and consistently recognized by the Court that the
commission of the substantive offense and a conspiracy to commit it
are separate and distinct offenses." Under the circumstances, we
do not believe it can be said that the respondent was convicted of violating 8 U.S.C. 1325. In addition, although fraudulent procurement

of a visa appears to be within the purview of 18 U.S.C. 1546, it is
clear that 8 U.S.C. 1325 does not relate to procurement of a visa.
At the hearing (pp. 11-12), the examining officer stated that the
Government wished to abandon charges #1 (stated in the order to show
cause) and #3, and would rely solely on charge #2 (the first lodged
charge). The special inquiry officer sustained, the latter charge and
did not discuss the other two charges in his decision. In our previous
order, we mentioned this but we observe that the Service now asserts
(motion, pp. 6 and 7) that all the charges are sustained. With the
exception of this general statement, however, the motion contains no

specific argument that charges #1 and #3 have been established. Since
these two charges were not even considered by the special inquiry

officer, we deem it appropriate to limit our discussion to the first lodged
charge. If the Service desires to reinstate the two charges which it
abandoned, such R. request may be made to the special inquiry officer
during the reopened hearing.
217

Interim Decision #1273
In our previous decision, we stated that the special inquiry officer
failed to make findings as to deportability; that it was impossible to
determine from this record whether the special inquiry officer found

that the respondent procured his visa by both fraud and misrepresentation, by fraud only, or by misrepresentation only; and that, if it
was the latter, there should be set forth the specific statement in the
visa application which constituted a misrepresentation. We indicated
that the visa, showing the misrepresentation, should have been included in the record. The Service stated that it did not object to a
remand of the case to the special inquiry officer for appropriate findings of fact and conclusions of law but suggested that the Board hold
that the charges are sustained and make its own findings. While this
Board has authority- to make findingo of fact and oonelusions of law,

we do not consider that it would be proper to do so in this case since
8 CFR 242.18(a) contemplates that this shall be clone by the special
inquiry officer in the first instance, and Bridges v. lirimon, 326 U.S.
135, 153 (1945), indicates the necessity for officers of the Service to
comply with its regulations.
After stating in its motion that it did not object to a. remand of
the case for the limited purpose stated above, the Service said that it
was opposed to any full scale reopening of the hearing for exploration
of issues which it asserts are foreclosed by the pleadings and under
the doctrine of collateral estoppel. The Service does not claim that
the pleadings alone would be sufficient, and that appears to have been
the view also of the special inquiry officer who relied on the doctrine
of collateral estoppel. We shall indicate later herein why the doctrine
of collateral estoppel cannot be utilized in this case and why there is
a doubt as to whether the respondent admitted the ninth factual allegation. Accordingly, we shall permit the Service and the respondent to
present any pertinent evidence at the reopened hearing. We believe
there should be a clarification at that time concerning exactly what
the respondent admits and denies and with respect to his conflicting
testimony on November 5, 1959, April 3, 1962 and June 27, 1962 as to
-whether he did or did not have sexual intercourse with his wife. The
Service asserts that the alien's statements (Ex. 4) sustain the charges.
The special inquiry officer did not discuss nor even mention Exhibit

4 in his decision but this can be done when he reconsiders the case.
The factual allegations particularly important in the respondent's
case are allegations seven and nine which are part of the two charges
lodged on May 22, 1962. At that time, the special inquiry officer
stated (p. 7) that, since the respondent denied deportability on these
charges and the factual allegations, he would not be asked to plead
to the truth or falsity of the allegations. At the reopened hearing,
counsel stated that he denied deportability on the first lodged charge
218

Interim Decision #1273
and was then asked to examine factual allegations seven through.
twelve and state which he was prepared to admit or deny. He stated
(p. 13) that allegations seven and twelve were denied and the other

allegations were admitted. There is some inconsistency in the denial
of allegation seven concerning the asserted agreement for a fraudulent
marriage, and the admission of allegation nine relating to the application for an immigrant visa which also contains an allegation that the
marriage was fraudulent.
After counsel had indicated which factual allegations were admitted
and denied, the special inquiry officer thereafter explained factual
allegations seven to twelve to the respondent, and we observe that
the respondent had difficulty understanding the explanation of the
ninth factual allegation but finally said (p. 10) "I understand that,

but—" at which point the special inquiry officer interrupted and said
that he had not asked the respondent to deny it.
Subsection (d) of 8 CFR 242.16 relates to the lodging of additional
charges and provides that the special inquiry officer shall read the
additional factual allegations and charges to the respondent and
explain them to him in nontechnical language. Thereafter, the provisions of subsection (b) of that regulation apply, and this provides
that the respondent shall plead to the charges by stating whether he
admits or denies the factual allegations and his deportability. As we
have indicated above, the charges were not explained to the respondent
until after his counsel had been requested to state what factual allegations were admitted or denied. Allegation nine, containing 12 typewritten lines, is long and involved and some of the assertions are not
controverted by the respondent. Inasmuch as the regulations were
not strictly complied with and in view of the thwarting of the respondent's attempt to explain his position concerning factual allegation nine, we are not satisfied that there was a valid admission of the
truth of all assertions contained in this factual allegation.
In our previous decision, we pointed out certain deficiencies in the
record and we concluded that, pursuant to 8 CFR 3.1(d) (2), the case
should be returned to the Service for further action without the entry
of a. final decision by this Board on the merits. Under the circumstances, we shall not at this time determine whether the first lodged
charge might be sustained on some basis other than that of collateral
estoppel, as for example, the pleadings, admissions of the respondent in this proceeding or in the criminal proceeding, or inferences to be
drawn from the respondent's conviction. We shall, however, dispose
of the contention of the Service relating to collateral estoppel.
In connection with this contention, the only cases cited by the Service were: Yates v. United States, 354 U.S. 298 (1957) ; Lutwak v.
United States, 344 U.S. 604 (1953) ; United States v. Award°, 113 F.

219

Interim Decision *1273
Supp. 788 (D.N.J., 1953), aff'd 208 F. 2d 632, cert. den. 347 U.S. 952;
Matter of B—, Int. Dec. No. 1221 (1962) ; and Matter of C—, 8 I. & N.
Dee. 577 (1960). Yates, as we shall later indicate, is actually adverse
to the postion of the Service.
Lutwak did not involve collateral estoppel. The quotation from
that decision (motion, p. 7) related to the contention of those petitioners that their marriages were valid. The court declined to pass on
the validity of the marriages, stating that this was not material. On
page 5 of the motion, the Service quoted from a sentence in. the Lutwak
decision which reads, in part, as follows : "There is an abundance of
evidence in this record of a conspiracy to contract spurious, phony
marriages * "." We shall not at this time consider the validity
of the respondent's marriage, but the fact that there was an abundance
of evidence that the Lutwak marriages were spurious is of no assistance
in determining whether there is such evidence in the respondent's case.
The language which the Service quoted from the Amax& decision
simply means that, after Accardo had been convicted of conspiring to
operate an unregistered still, he could not deny his guilt of the
conspiracy in the subsequent denaturalization suit. This respondent
makes no claim that he was innocent of the offense for which he was
convicted, and the Aceardo decision is of no value in sustaining the
argument of the Service.
Matter of 8— did not involve collateral estoppel. There, we held
that the alien was excludable because he had been convicted of a crime
involving moral turpitude—conspiracy to commit, among other
offenses, the crimes of forgery and uttering a forged instrument. He
contended that he had actually pleaded guilty only to that portion of
the conspiracy count relating to gambling. His exclusion was directly
predicated on the conviction, whereas this respondent is not charged
with being deportable by reason of the conviction itself. S— was
attempting to controvert the conviction record; this respondent has
made no effort to attack the conviction nor does he claim that he intended to plead guilty to only part of the conspiracy count. For the
reasons mentioned, Matter of B— is not analogous to the respondent's
case.
The remaining case cited by the Service is Matter of C—, supra.
There, we held that the court's finding in a denaturalization suit that
the naturalized person had been a member of the Communist Party
was conclusive, under the doctrine of collateral estoppel, in a subsequent deportation proceeding against that person based on his Communist Party membership. In the similar case of Matter of 71—, Int.
Dec. No. 1115 (1060), we reached the same conclusion. In those two
cases, the records in the denaturalization suits established that the

220

Interim Decision 4fr1273
courts had made the findings concerning Communist Party membership. As we pointed out in our previous order, the record relating
to the respondent's conviction does not show what specific findings of
fact may have been made in that proceeding, and the special inquiry
officer's decision does not clarify that matter. We do not mean that
there must have been formal findings of fact in the first action providing that it can be determined definitely what facts or issues were
actually decided by the court.
Our decisions in Matter of 0— and Matter of T—, supra, were predicated on the principles stated in Cromwell v. Cownty of Sac, 94 U.S.
351 (1876) and Southern Pacific Railroad Co. v. United States, 168
U.S. 1 (1897). In the former, at page 353, it was said: "* * * where
the second action between the same parties is upon a different claim or
demand, the judgment in the prior action operates as an estoppel only
as to those matters in issue or points controverted, upon the determi-

nation of which the finding or verdict was rendered." Under the doctrine of collateral estoppel, the point or question to be determined in
the second action must be the same as that litigated in the original
action and it must have been a fact which was essential to the first
decision.

Tait v. -Western Maryland Railiway Co., 289 U.S. 620, 623

(1933). If there is any uncertainty as to the precise question determined in the first suit and the uncertainty is not removed by extrinsic
evidence, no estoppel is created. De Sollar v. Hanscome, 158 U.S. 216,
221 (1895) ; .11'084 v. Place, 94 U.S. 606, 608, 610 (1877).
There appears to be no dispute between the parties concerning the
fact that the respondent last entered the United States on June 27,
1958 and that he was then admitted as a nonquota, immigrant on pres-

entation of an immigrant visa which had been issued on the basis
of his marriage to Mary McCabe. As a matter of fact, the third and
fourth factual allegations are to that effect and these were admitted
by the respondent. However, the crucial question is whether he procured his immigrant visa by fraud or misrepresentation.
Although there are allegations in count one of the indictment that
it was part of the plan and purpose of the conspiracy that the respondent, Mary McCabe Marinho and two other persons would do certain
acts, including allegations that the respondent would execute an application for immigrant visa and that the State Department would
issue a nonquota visa to the respondent, the indictment does not specifically state whether these acts were or were not performed except
insofar as concerns the five overt acts which were set out. None of
the overt acts relates to the respondent's procurement of his immigrant

visa, and there is no specific allegation in. the indictment that the respondent procured his immigrant visa by fraud or misrepresentation
or even that he procured a visa. Hence, if we accepted every allega221

Interim Decision

#1273

tion of the indictment as having been proved, that would still not establish that an issue actually litigated and determined in the criminal
case was whether the respondent procured his immigrant visa by fraud
or misrepresentation, nor that this issue was essential to the judgment
in that proceeding. In view of the foregoing, those elements which
are prerequisites to the application of the doctrine of collateral estoppel do not exist in the respondent's case.
The ultimate fact which must be determined in this deportation proceeding is whether the respondent procured his immigrant visa by
fraud or misrepresentation In Yates v. United States, supra, which
was cited by the Service, the following statement was made at page
338: "The normal rule is that a prior judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in
issue in the subsequent proceeding. So far as merely evidentiary or
`mediate' facts are concerned, the doctrine of collateral estoppel is
.inoperative." We believe this statement of the Supreme Court makes
it abundantly clear that the doctrine of collateral estoppel is inapplicable in this respondent's deportation case. For the reasons indicated above, the motion of the Service will be denied.
ORDER: It is ordered that the motion of the Service for reconsideration, except as reconsidered herein, be and the same is hereby denied.

222


Interim Decision #2546

MATTER OF RUANGSWANG
In Deportation Proceedings
A-20549199
A-2054910S

Decided by Board December 27, 1976
(1) Respondents who are husband and wife have conceded deportability and seek adjustment of status under section 245 of the Immigration and Nationality Act as nonpreference immigrants who are exempt from the labor certification requirement of section
212(a)(14) of the Act as provided in 8 C.F. R. 212.1(b)(4), based on the wife's investment of
$13,000 in a dry cleaning establishment. The husband's eligibility depends on that of his
wife.
(2) Respondent wife does all of the work necessary in conducting the dry cleaning business
in which she has invested, assisted only by her husband who works as a part-time
employee_ Under these circumstances, and notwithstanding respondent's monetary
investment, respondent does not qualify for exemption from the labor certification
requirement as an Investor because her investment does not expand job opportunities in
the United States; respondent's labor with respect to her investment places her in
direct competition with United States citizens Nvho are dry cleaning operators; and
respondent is actually engaged in full-time labor for which it has not been shown that a
shortage of able, willing, qualified and available -workers exists in the area.
CHARGE:
Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2)1—Nonimmigrant—remained
longer
ON BEHALF OF RESPONDENTS: Bert D. Greenberg, Esquire
8484 Wilshire Boulevard, #730
Beverly Hills, California 90211

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

This is an appeal from the immigration judge's denial of the respondents' applications for adjustment of status. In his decision, which was
entered on August 18, 1975, the immigration judge found the respondents deportable and granted them the privilege of voluntary departure.
The respondents, a husband and wife, are both natives and citizens of
r_iliailand_

The husband is 21 years of age; the wife is 30 years of age.

They were both admitted to the United States on August 14, 1971, the
76

Interim Decision #2546
husband as a nonimmigrant student, the wife as the spouse of a nonimmigrant student. They were authorized to remain until January 31,
1975, but remained thereafter. They conceded deportability.
The respondents seek adjustment of status as nonpreference aliens'
who are exempt from the provisions of section 212(a)(14) of the Act
under 8 C.F.R. 212.8(b)(4) on the basis of the wife's investment in a dry
cleaning establishment. The male respondent's case is dependent upon
the female respondent's. (Hereafter, the female respondent will be
referred to as the respondent.)
The immigration judge concluded that the respondent had not established eligibility for investor classification; he further decided that even
if she had, he would deny the applications in the exercise of discretion,
because the respondents had been employed in violation of their nonimmigrant status. The immigration judge considered that this adverse
factor was not outweighed by the favorable factor that they are the
parents of a United States citizen child. We agree with the conclusion of
the immigration judge regarding eligibility and shall not reach the
question regarding discretion.
The provisions of S C.F.R. 212.8(b)(4) were amended effective October 7, 1976, but we shall consider this case under the prior version of

the regulation, the one which was in effect when the respondent first
applied for consideration thereunder. The amendment was accompanied
by a statement that Forms 1-526 (Request for Determination that
Prospective Immigrant is an Investor) properly filed before the effective date of the amendment are to be processed in accordance with the
regulation as it existed prior thereto. 41 Fed. Reg. No. 174, p. 37566
(9-7-76). The respondent submitted her Form 1-526 on June 17, 1974.
The applicable version of the regulation provides:
The following persons are not considered to be within the purview of section 21240(14)

of the Act and do not require a labor certification:... (4) an alien who establishes on
Form 1-526 that he is seeking to enter the United States for the purpose of engaging in
a conunerdal or argicultural enterprise in which he has invested, or is actively in the
process of investing, capital totaling at least *10,000, and who establishes that he has
had at least 1 year's experience or training qualifying hire to engage in such enterprise.

The respondent testified and submitted evidence that she has invested more than $13,000 in her dry cleaning- business. As evidence of
her qualifying experience or training she submitted a translation of a
document certifying that she had received a bachelor's degreein accountancy from Chulalongkoni. University on April 16, 1969, and a statement
from the Siam Motor Company, Ltd., Bangkok that she was employed
by them from June 1969 until July 1971 doing budgeting and financial

review.
Nonpreference numbers are currently available for natives of Thailand, according to
the Visa Office Bulletin on Availability of Immigrant Visa Numbers for November 1976.
77

Interim Decision #2546
The Service does not contest the amount of the respondent's investment or her qualificationS to run the business. She testified that she

operates the business alone and that her husband assists her about 28
hours per week. Her net income from the business was about $7,500
during 1974 (Tr. 8). Her profit or loss statement as of June 30, 1975, for
the first six months of 1975 shows $9,094.31 total sales and a net
operating profit of $6,038.85. She testified that she was making about
$1,000 per month net profit during 1975 (Tr. 8).
At the time that section 212(a)(14) was originally enacted, the drafters of the Immigration and Nationality Act stated that the purpose of

the provision was to provide strong safegdards for American labor, to
provide American labor protection against an influx of aliens entering
the United States for the purpose of performing skilled or unskilled
labor where the economy of individual localities is not capable of absorbing them at the time they desire to enter this country. H.R. Rep. No.
1365, 82nd Cong. 2nd Sess. (1952), reprinted in [1952] U.S. Code Cong.
& Ad. News 1705.
The 1965 amendment was designed to strengthen the controls even
more. S. Rep. No. 748, 89th Cong. 1st Seas. (1965), reprinted in [1965]

U.S. Code Cong. & Ad. News 3328, 3333. Section 212(a)(14) requires
that each alien seeking to enter the United States for the purpose of
performing skilled or unskilled labor to establish that "(A) there are not
sufficient workers in the United States who are able, willing, qualified,
and available . . . and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the
United States similarly employed."
The certification requirement applies to the nonpreference category,
which is the category applicable to the respondent. The desired effect of
the requirement is to exclude an intending immigrant who would be
likely to displace a qualified American worker or whose employment

would have an adverse impact on the wages and working conditions of
workers similarly employed in the United States.
The implementing regulation on which the respondent relies,• 8
C.F.R. 212.8, was designed to be consonant with the language and
purposes of the Act; accordingly, we must construe the regulation in a
manner which would be consistent therewith. It was not designed to
provide a method of circumventing the normal labor certification requirements, Matter of Lee, Interim Decision 2415 (BIA 1975), Matter of
Ahmad, Interim Decision 2316 (BIA 1974). The nature of the investment must be such that it tends to guard against the possibility that the
alien will compete with American labor for available skilled orunskilled
p ositions, Matter of Takayanagi, Interim Decision 2472 (BIA 1976),
II after of Ifettland, 14 I. & N. Dec. 563 (BIA 1974).
Thus, notwithstanding that an alien has invested $10,000 or more in a
78

Interim Decision #2546
commercial or agricultural enterprise and has the requisite experience
to engage in that enterprise, the alien is not exempt from the labor
certification requirement if he or she is likely to displace an American
worker or if his or her employment would have an adverse impact on
wages or working conditions. See Matter of Chiang, Interim Decision
2488 (BIA 1975), Matter of Takayartagi, supra, Matter of Lee, supra,
Matter of Yang, Interim Decision 2335 (R.C. 1974). The nature of the
respondent's investment is such that her employment in the business
appears likely to displace an American worker_
The respondent testified that she does all the work connected with her
dry cleaning business (Tr. 9). She tags, wets, and pre-spots the clothes,
and puts them in the machines; when the clothes are dry, she removes
them from the machines, presses them if necessary, and hangs them up.
She does the counterwork: receiving orders and payments, and delivering the finished work to the customers. The business is open from 9:00
a.m. to 6:00 p.m. on weekdays, and from 9:00 a.m. to 5:00 p.m. on
Saturdays. The only assistance that she has is that of her husband. In
order to become a licensed dry cleaner operator, she, ook a course at a
dry cleaning institute. Her certificate of training is in the record.
In a previous case which dealt with an owner-operated one-person
business, Matter of Heitland, supra, we observed that the alien's position essentially involved skilled or unskilled labor, in that his employment (delivery service driver) did not differ significantly from other taxi
or delivery jobs. The respondent's employment as a dry cleaning
operator is not unlike that of dry cleaning operators who work for
others. No allegation is made that there is a shortage of such workers.
In Heitland, supra, we developed a "test concerning substantial investments":
The investment either must tend to expand job .upportunities and thus offset any
adverse impact which the alien's employment may have on the market for jobs, or must
be of an amount adequate to insure, with sufficient certainty, that the alien's primary
function with respect to the investment and with respect to the economy will not be as a
skilled or unskilled laborer.

That case was decided pursuant to language in a former regulation
which exempted aliens who were investing a "substantial amount of
capital" from the labor certification requirement. We consider the
criteria applicable as well to the regulation before us in this case (which
specified that the investment must be of At least $10,000).
To qualify for investor status, the nature of the investment must be
such that the investor is spending his energies in the management of the
investment, rather than in performing labor which can be performed by
a. worker already in the United States, unless the business expands job
opportunities thereby offsetting any adverse impact of the alien's own
employment.
79

Interim Decision #2546
The respondent's investment does not tend to expand job -opportunities. In fact, it has done the opposite, for under the prior owner,
there was a job opportunity for an American worker (which the respondent illegally filled), which was eliminated when the respondent purchased the business and commenced doing all the work herself.
Furthermore, the nature of the respondent's labors in regard to her

investment put her in direct competition with United States citizens
who are dry cleaning operators. She does not fit the concept of an
investor. She is actually engaged in full-time labor for which it has not
been shown that there is a shortage of workers in the area who are able,
willing, qualified and available. The respondent's labor is not merely
incidental to her business, but is her primary function; it consumes most
of her time. Furthermore, she is not making a true profit from her
investment, for what she labels as "net profit" is actually payment for
her own labor.
We are aware of language in prior cases that an investor's employment in his own business is not the "job competition" which the Congress wishes to protect against, Matter of Ko, Interim Decision 14 I. &
N. Dec. 349 (Dep. Assoc. Commr. 1973) and that a bona fide investor
may properly be able to engage in activities of a skilled or unskilled
nature, Matter of Ahmad, supra. We would limit those statements to
situations in which the investor is not performing labor of a skilled or
unskilled nature which might be performed by an American worker, or
else in which the investment has a tendency to expand job opportunities.
Having resolved the case on the basis of eligibility, it is not necessary
for us to address the question of whether the respondents would merit
the relief of adjustment of status in the exercise of discretion if they
were eligible for it.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
respondents are permitted to depart from the United States voluntarily
within 30 days from the date of this order or any extension beyond that

time as may be granted by the District Director; and in the event of
failure so to depart, the respondents shall be deported as provided in the
immigration judge's order.

80


MATTER OF V-

In SECTION 245 Proceedings
A-11370672
Decided by Assistant Commissioner November 24, 1959

Adjustment of status—Section 245 of 1952 act—Failure to present documents
at time of admission as member of armed forces not considered unforeseen
emergency for purpose of nunc pro tune waiver under section 212(d)(4)(A)
of act.
(1)

Alien's arrival no member of United Statee Armed Forces without entry

documents and without presenting himself for inspection did not constitute
lawful admission as bona fide nonimmigrant qualifying him for adjustment
of status under section 245 of the 1952 act.
(2) Where applicant in 1953 voluntarily enlisted in the United States Navy
in the Philippines, could reasonably have expected to be sent to this country
for training or duty, and had ample opportunity to obtain documents, his
failure to present documents upon arrival in 1956 cannot he considered to
have been the result of unforeseen emergency so as to warrant a 711171C pro
tune documentary waiver under section 212(d) (4) (A) of the 1952 act.
BEFORE THE ASSISTANT COMMISSIONER

Discussion: This case has been certified to the Central Office by
the Regional Commissioner at St.. Paul, Minnesota.
The applicant is a 27 - year - old male, a native and citizen of the

Philippines. He enlisted in the United States Navy in the Philippines August 21, 1953. His last entry into the United States occurred on October 26, 1956, on the U. S. Naval Vessel Navarro at
San Siego, California, as a member of the United States Navy. He
married a citizen of the United States July 16, 1957, thereby becoming eligible for a nonquota immigrant visa. He was honorably discharged from the Navy August 1, 1957.
On September 24, 1958, the applicant applied for adjustment of
status to that of a permanent resident under section 245 of the Immigration and Nationality Act, as amended. Eligibility in all other
respects having been established by the applicant, the only question
presented for determination is whether he may be regarded as having been admitted to the United States as a buiut fide uuuin:mi runt
at the time of his entry, described above, on October 26, 1956.
Section 284 of the Immigration and Nationality Act provides that
485

an alien member of the Armed P'orces of the United States is not
subject to inspection when entering the United States under military
orders, but nothing in that section gives or confers upon such alien
any other privilege, right, benefit, exemption or immunity which is
not specifically granted by the Act. When in possession of appropriate documents, however, such an alien may present himself for
inspection at the time of entry, and if found admissible, his admission may be recorded in the usual manner. If applying as a nonimmigrant, he may be admitted as a visitor for bu§iness for the duration of his military service. The applicant had no entry documents
and did not present himself for inspection at the time he arrived
in the United States on October 26, 1956. Consequently, there is no
r: Word of his lawful admission at any time.
Even though he had no entry documents, he could have presented
himself for inspection at the time of his arrival, and, if found otherwise admissible, he could have requested a waiver of the passport
and nonimmigrant visa, requirements as provided for in section 212
(d) (4) (A) of the Immigration and Nationality Act. However,
under that provision of la w he would have been required to establish that his failure to present the required documents resulted from
an unforeseen emergency. If the waiver were granted, a record could
have been made of the applicant's admission as a nonimmigrant..
The district director has utilized that procedure in this application.
The applicant was examined and was found admissible as a nonimmigrant as of the date of arrival in the United States. He filed
an application for a nuns pro tune waiver of the passport and nonimmigrant visa requirements under the provisions of section 212
(d) (4) (A) of the 1952 act. The waiver was granted and the applicant was considered to have been lawfully admitted as a bona fide
nonimmigrant on October 26, 1956. On the basis of that presumptive lawful admission as a nonimmigrant, the application for status
as a permanent resident in the United States was approved and the
case came forward on certification.
In order for such a procedure to stand, it must be found that th
applicant's failure to present a valid passport and a valid non
immigrant visa at, the time of his arrival on October 26, 1956, we
the result of an unforeseen emergency. The facts in this case d
not sustain such a finding. The applicant voluntarily enlisted
the United States Navy in the Philippines. In the normal course
events he could reasonably expect to be cent to the United Stat
for such training or duty as might be required in line with 1
duties in the Armed Forces. He had ample opportunity, in s
vance, to secure the necessary documents. He has not establish
that his failure to have the required documents at the time he
rived in the United States was the result of emergent circumstan
486

which he could not have foreseen. Since his failure to present the
necessary documents cannot be held to be the result of an unforeseen
emergency, the record of lawful admission as a nonimmigrant created on that basis will be set aside.
Since the applicant was not lawfully admitted into the United
States as a bona fide nonimmigrant at the time of his entry on October 26, 1956, the application will be denied.
Order : It is ordered that the application be denied on the ground
that the applicant was not lawfully admitted into the United States
as a bona fide nonimmigrant.

487


Interim Decision #2715

MATTER OF SALVAIL
In Deportation Proceedings
A-21137490
Decided by Board July 3, 1979
(1) A conviction under Article 296 of the Criminal Code of Canada for possession of
stolen goods is a conviction for a crime involving moral turpitude, as it specifically
requires knowledge of the stolen nature of the goods.
(2) A conviction under Article 296 of the Criminal Code of Canada is a conviction for a
felony, as the Maximum prison term that can be imposed exceeds one year, and the
mandatory misdemeanor/petty offense waiver of section 232(e)(9) of the Immigration
and Nationality Act, 8 U.S.C. 1182(a)(9), is inapplicable, regardless of the punishment
actually imposed.
(3) The respondent is excludable under section 212(a)(9) of the Act because he was
convicted in 1965 for two violations of Article 296 of the Criminal Code of Canada, and
the conviction record shows that an element of this charge was his knowledge of the
stolen nature of the goods.
CHARGE:

Orden Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of entry
under sec. 212(a)(9) 18 U.S.C. 1182(a)(9)1—convicted of crime
prior to entry
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE

Robert Lee Erwin
Trial Attorney

Henry H. Held, Esquire
The Held Building
1900 S.W. 3rd Avenue
Miami, Florida 33129

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

In a decision dated January 17, 1979, an immigration judge found the
respondent deportable as charged and ordered him deported. The
respondent appeals. The appeal will be dismissed.
The respondent is a 37-year-old native and citizen of Canada. He last
entered the United States on October 27, 1978. On November 2, 1978, an
Order to Show Cause was issued charging him with deportability
under section 241(a)(1) of the Immigration and Nationality Act, 8
U.S.C. 1251(a)(1), as one excludable at time of entry for having been
convicted of a crime involving moral turpitude under section 212(a)(9)
19

Interim Decision #2715
of the Act, 8 U.S.C. 1182(a)(9). The specific offenses alleged involved
conviction on two charges in Canada for possession of stolen goods,
knowing that the goods were stolen. The immigration judge found that
the offenses committed involved moral turpitude under United States
standards. Ile also found that the respondent was ineligible for a petty
offense waiver under section 212(a)(9) of the Act because he had been
convicted of two crimes involving moral turpitude and the petty offense exemption was not available to him. He also denied his application for voluntary departure because he found him to be statutorily
ineligible under section 101(f)(3) of the Act, 8 U.S.C. 1101(f)(3), which
barred a finding of good moral character under section 244(e) of the
Act, 8 U.S.C_ 1254(e).
On appeal, the respondent claims that the convictions arose out of a
single act and therefore did not constitute two convictions. He also
claims that the first conviction was for possession of stolen goods
without knowledge and that this conviction was therefore not an
offense involving moral turpitude. The final claim is that the second
conviction was for a petty offense. Although the respondent concedes
that a conviction was had for knowing possession of stolen goods, he
asserts that the Board should evaluate the circumstances of the convictions, but without going behind the convictions.
After reviewing the record, we have concluded that the respondent is
deportable as charged. The "Affidavits of Culpability" which have been
provided show that the respondent was convicted on two charges of
violation of Article 296 of the Criminal Code of Canada. This article
states:
Everyone commits an offense who has anything in his possession knowing that it was
obtained
(a) by the conimission in Canada of an offense punishable by indictment, or
(b) by an act or omission anywhere that, if it had occurred in Canada, would have
constituted an offense punishable by indictment.
The "Affidavits of Culpability" both state that the respondent "illegally had in his possession" certain goods of a total value of approxi-

mately $450 and $170, knowing that the goods "had been obtained by
means of theft." The respondent pleaded guilty to the charges and was
sentenced to one day in jail and a total fine of $600.
Conviction under this statute is a conviction for a crime involving
moral turpitude, as it specifically requires knowledge of the stolen
nature of the goods. Wadman v. INS, 329 F.2d 812 (9 Cir. 1964) (England); Matter of G—, 2 I&N Dec. 235 (BIA 1940) (Canada, predecessor
statute). Although the respondent now contends that, at least in the
first instance, there was no knowledge on his part, this issue has been
resolved by the conviction and the Board will not in essence re-try his
case where the record of conviction amply shows that the necessary
elements of possession and knowledge of the stolen nature of the goods
20

Interim Decision #2715
were alleged and found to have been proven, establishing that the
convictions were for crimes involving moral turpitude.
Under Section 297 of the Criminal Code of Canada,
Everyone who commits an offense under section 296 is guilty of an indictable offense
and is liable
(a) to imprisonment for ten years, where the property that comes into his possession
is a testamentary instrument or where the value of what comes into his possession
exceeds fifty dollars, or
(b) to imprisonment for two years, where the value of what comes into his possession
does not exceed fifty dollars. (Amended 1972, to $200;1972 Can. C. 13, S. 28.)

In light of the sentence that can be imposed for the offense, the
points raised by both the respondent and the Service concerning the
petty offense exemption and whether or not the conviction arose from
a single act are rendered irrelevant. Under section 212(a)(9) of the Act,
if the maximum prison term that can be imposed exceeds one year, the
crime is considered a felony and the mandatory misdemeanor/petty
offense waiver of this section is inapplicable, regardless of the amount
of punishment actually impcised. This conclusion also renders any
discussion of the number of convictions irrelevant, as only one conviction is sufficient to bar the respondent from admission under section

212(a)(9) of the Act. The record is abundantly clear that there has been
at least one such conviction and the respondent is therefore excludable
and deportable on this charge.
The only relief from deportation for which the respondent has
applied is voluntary departure. Under section 244(e) of the Act, in
order to qualify for this relief, he must establish that he has been a
person of good moral character for at least 5 years preceding his
application for voluntary departure. The immigration judge found him
statutorily barred from this relief under section 101(f)(3) of the Act as
a result of his convictions. The offenses were committed in 1965, and
the application for voluntary departure was made on November 16,
1978, over 13 years later. Section 101(f)(3) is therefore not a statutory
bar to voluntary departure because of the time that has lapsed since
the offenses. Because there is no other evidence in the record that the
respondent does not warrant such relief, we shall grant him voluntary
departure.
ORDERS The appeal is dismissed.
FURTHER ORDER: The outstanding order of deportation is
withdrawn and, in lieu of an order of deportation, the respondent is
allowed to depart voluntarily, without expense to the Government,
within 30 days from the date of this order or any extension beyond that
time as may be granted by the District Director and under such
conditions as he may direct. In the event of the respondent's failure to
so depart, the order of deportation will be reinstated and executed.

21


Interim Decision *1484

MASTER

or MENDOZA.

In Deportation: PrOceedings
A-10852584

Decided by Board Ante ER, 1986
Since respondent, a native and citizen of Eferico, is not ineligible for a MOD •
quota immigrant visa because of his conviction of receiving stolen property
(of the value of $49) in violation of paragraph 492, Chapter 38, Illinois Revised Statutes of 1945, as amended Inly 5, 1937, _which , is classifiable as a
petty offense within the purview of section 212(a) (9), Immigration and Nationality Act, as mewed by section 13, Act of September 20, 1801, be is
barred by the provisions of section 244(f) (8) of the Act from the discretionary relief of suspension of deportation.
Queers:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)7—Entered
without inspection (withdrawn).
1251(a) (1)1—Excludable
Lodged: Act of 1952—Section 241(a) (1) [8
no visa.

The ease comes forward on appeal from the order of the special
inquiry officer entered April 5, 1965 debving the respondent's application. for suspension of deportation under the provisions of section
244(a) (1) as amended, granting voluntary departure in lieu of deportation and further ordering that if the respondent failed to
depart when and as required,. he be deported to Mexico solely on
the lodged charge.
The record relates to a native and citizen of Mexico, 39 years old,
male, married, who last entered the United States on or about July
1949 for the purpose of working and residing in the United States although not then in possession of a valid unexpired immigrant
visa, reentry permit, border crossing identification card or ()flier

valid entry. document. The trial attorney did not"press the charge'
stated in the order to show cause.. Deportability solely on the lodged
charge is established. •
The.. respondent hai applied• for suspension. of deportation pursuant
239

Interim Decision #1484
to section 244(a) (1) of the Immigration and Nationality Act, as
amended. The evidence establishes that the respondent merits the
discretionary relief of suspension of deportation except for the provisions of section 244(f) of the Immigration and Nationdlity Act
which prohibit the application of section. 244(a) "to an alien who
* * * (3) is . a native of any country contiguous to the United States".
However, section 244(f) will• not prevent the grant of suspension
of deportation -if the respondent can establish that he comes within
the proviso thereto which readi that the Attorney General may in
his discretion agree to the granting of suspension of deportation to
an alien specified in clause (3) of this subsection if such alien
establishes to the satisfaction of- the Attorney- -General that he is
ineligible to obtain a nonquota immigrant visa.
The question of the ineligibility of the respondent to obtain a
nonquota immigrant visa rests upon whether he is excludable under
'section 212(a) (9) of the Tinmigration and Nationality Act because
of conviction of a crime involving moral turpitude; and, if excludable, whether such well dability is forgiven under the petty offense
provision of section 242(a) (8), as amended by section 13 of the Act
of September'26, 1961,V, such offense is classifiable as-a misdemeanor
under the provisions reftection 1(3) of Title 18, U.S.C., by reason
of the punishment actually imposed.
The,respondent was convicted in the Municipal Court of Chicago,
Illinois on August 28, 195'7 of the offense of receiving stolen prop-

erty and was placed on one year's probation. The information
states that on August 2, 1957 the respondent did unlawfully and willfully buy in order to prevent, the owner from again possessing her
property, knowing the same to have been stolen, said property 'being
-of the value of $49 in violation of paragraph 492, Chapter 38,
Illinois Revised Statutes of 1945. The Illinois Revised Statutes of
1945 read as follows:
Every person, who for .his own gain, or to prevent the owner from again
possessing his property, shall buy, receive or aid in concealing stolen goods, or
any thing, the stealing of which is declared to be larceny, or. property, obtained by robbery or burglary, knowing the same to have been so obtained,
shall be imprisoned in the penitentiary not less than one or more than ten
gears, or if such goods or other property or thing does not exceed the value of
$15.00, shall be 'fined not exceeding $1,000 and confined In the county jail not
exceeding one year.

However, the latter' part of paragraph 492, Chapter 38, Illinois
Revised Statutes was amended on July 5, 1957 to provide that if
such goods or other property or thing does not exceed the value of
240

Interim Decision #1461
$50.00, he shall be fined not exceeding $1,000 and confined in the
county jail not exceeding one year.
Section 1, Title 18, U.S.C.A., classifies offenses in three categories:
(1) any offense punishable by death or imprisonment for a term exceeding
one year is a felony.
(2) any other offenses a misdemeanor.
(3) any misdemeanor, the penalty for which does not exceed imprisonment
for a period of six months or a fine of not more than MO, or both, is
•
a petty offense.
Inasmuch as at the time of the commission of the offense on
August 2, 1957 as well as at the time of the conviction on August 28,

1957, the amendment of July 5, 1957 to paragraph 492, Chapter 38,
Illinois Revised Statutes was in effect, the respondent could have
been convicted only under the amendatory Act of July 5, 1957, since
the prior act was no longer in existence. Seddon 1(2) of Title 18,
U.S.C.A., makes the offense for which respondent was convicted a
misdemeanor, and as a result of the penalty actually imposed,, the
conviction is a petty offense as classified in 18 U.S.C.A. 1(3). The
test of a petty offense under the amendatory provisions of section 13 .
of the Act of September 26, 1961 (75 Stet. 655) 'as well as the like
predecessor statute, the Act of September 3, 1954 (Public Law 83—
770), is that the statutory penalty must not exceed one year and
that the actual punishment meted out by the court shall not be more
than six Months' imprisonment or $500 fine? The exculpatory benefit of the petty offense provision of section 13 of the Act of September 26, 1961 is mandatory and automatic, not discretionary?
The respondent is a native of. Mexico but is not ineligible to
receive a nongunta immigrant visa because he is a beneficiary of
the petty offense provision of section 212(a) (9) of the Immigration
and Nationality Act. He, therefore, cannot be granted suspension of
deportation because of the bar of section 244(f) of the Immigration
and Nationality Ad. The respondent has been granted the privilege
of voluntary departure in lieu of deportation. He should have no
difficulty in obtaining the issuance of a visa inasmuch as his 1957
conviction is a conviction for a petty offense. The appeal will be
dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

'

' Natter of 0-0—, L & N. Dec. 488; Matter of If—, 6 L & N. Dee. 614;
Matter of T—,, 0 L & N. Dec. 508 (A.G., 1955).
'
'Matter of
L & N. Dee. 738.

241


Interim Decision #2849

MATTER OF TESSEL, INC.
In Visa Petition Proceedings
A-23107366
Decided by the Acting Associate Commissioner of Examinations
January 9, 1981
(1) The words "same international corporations and organizations" include "an affiliate
or subsidiary thereof' within the meaning of 20 C.F.R. 656.10 for Schedule A, Group
IV, labor certification. Companies are "affiliated" within the meaning of section
101(a)(15XL) of the Act where there is a high degree of common ownership and
management between the two companies, either directly or through a third entity.
(2) An unsalaried appointed chairman of a corporation is an employee in a managerial
or executive position for Schedule A, Group IV, labor certification purposes.
(3) The fact that a petitioner for admission to the United States qualifies for a nonpreference status, does not preclude the petitioner's qualification for a preference
status.
(4) The corporation is a separate legal entity from its stockholders, able to employ them
and to file a petition on their behalf.
ON BEHALF OF PETITIONER:

Sam Bernsen, Esquire
Fired, Fragomen, Del Rey, Bernsen and
O'Rourke, P.C.

Street, N.W., Suite 511
Washington, D.C. 20036
100016th

This case is before the Commissioner on certification from the
Regional Commissioner, Western Region. The District Director in San
Diego denied the petition. The Regional Commissioner ordered the
case to be certified to him and in turn certified it to the Commissioner.
The petitioner is seeking to classify the beneficiary under section
203(a)(6) of the Immigration and Nationality Act, based upon his
occupation as vice-president and export director. The petitioner is
further claiming blanket labor certification under 20 C.F.R.
656.10(d)(2) as Schedule A, Group IV. In order to qualify for this
Schedule A certification the petitioner must demonstrate that the
beneficiary has been employed by the same international corporation
or organization abroad for the year immediately prior to the beneficiary's admission. This employment must have been in a managerial or

Interim Decision #2849
executive position and it must be intended that he continue in the
United States in a similar capacity.
If the beneficiary is found qualified for the blanket labor certification, the only remaining determination is whether he possesses the
minimum requirements for successful performance of the job duties as
outlined on the Job Offer for Alien Employment form.
In his decision the Acting District Director found that the beneficiary was not qualified for blanket labor certification. The basis for this
finding was a failure to demonstrate that the petitioner and the
beneficiary's South African company are the same corporation, or that
either is the subsidiary or affiliate of the other. The Director found
further that the beneficiary could not qualified for sixth preference
classification because he is not an employee. The Director found him to
be an entrepreneur or investor in his relationship to both the United
States company and the South African company.
The Regional Comniissioner found that the issue over affiliate or
subsidiary relationship was not on point. He interpreted the plain
language of the Labor Department regulation to limit qualification of a
beneficiary to the situation where he would be continuing employment
within the same international corporation or organization. The Regional Commissioner further found that there was no evidence in the
record to establish that the beneficiary was ever employed by the
South African company in a managerial or executive position.
The Attorney or record states in his brief that the blanket labor
certification for Group IV encompasses more than the "same international corporation" concept of the Regional Commissioner. He further
states that the required relationship under both the intracompany
nonimmigrant definition and the Schedule A provision is established
through the common ownership and control (management) or the
companies involved.
The interpretation of the Labor Department regulation used by the
Regional Commissioner is inaccurate_ The Department's handbook on
20 C.F.R. 656.10 on page 656-A-21 states: "The words 'same international corporations or organizations' used in the regulations are intended to include 'an affiliate or subsidiary thereof' as provided in the
Act"
The Regiobal Commissioner's second reason for denial has been
overcome through the submission of a document which indicates that
the beneficiary was appOinted chairman of the South African company
on March 1, 1976. While he does not receive a salary as chairman he is
nonetheless an employee of the company.
The District Director's finding that the beneficiary fails to qualify

for the preference sought because he is a business investor and would
more properly be classified as such under nonpreference is without
632

Interim Decision #2849
basis in law. The fact that one qualified for a particular status does not
preclude qualifying for another status.
The Director's holding (in which the Regional Commissioner also
concurs) that an employer/employee relationship cannot exist
between the petitioner and beneficiary because they are one and the
same, fails to consider the precedent established in Matter of M, 8 I&N
Dec. 24 (BIA 1958; A.G. 1958), wherein it was held that a sixthpreference petition could be approved where the petitioner was a
corporation seeking the employment of even its sole stockholder. The
corporation is a separate legal entity from its stockholders and able to
file a petition and employ them.
The question of relationship between the two companies is the most
crucial matter involved in the instant case. The beneficiary owns 93%
of the South African company and is its chairman. He owns 60% of the
petitioner and will be a manager of the corporation (Vice-President
and Export Director). It has previously been held that mere stock
ownership and an informal arrangement to do favors between companies does not constitute the requisite relationship for qualification
under section 101(a)(15)(L) of the Act, (Matter of Del Mar Ben, 15 I&N
Dec. 5 (R.C. 1974)). But, Del Mar Ben is distinguishable because the
stock ownership was minimal and there was no degree of control or
joint management. The instant case has a high percentage of common
ownership and common management, vesting effective control over
both companies in their owner/manager. Where there is a high
percentage of ownership and common management between two companies, either directly or through a third entity, those companies are
"affiliated" within the meaning of that term as used in section
101(u)(15)(L) of the Act.

Therefore, the instant companies are affiliated. The beneficiary has
been employed for the preceding year as an executive or manager of
the foreign company and will be so employed by the United States
company. The beneficiary is qualified to be an "L-1," and, therefore,
does have a Schedule A, Group IV, labor certification. The following
order shall be entered.
IT IS ORDERED that the visa petition to classify the beneficiary
under section 203(a)(6) be approved.

698


Interim Decision #2231,

MA iTbR OF HERMOSA

In Deportation Proceedings
A-14839916
Decided by Board September 28, 1973
The Philippine Islands have never been deemed part of the United States

within the purview of the citizenship clause of the Fourteenth Amendment of
the Constitution of the United States; hence, respondent's claim to United
States citizenship under the provisions of section 1 of the Immigration Act of
February 5, 1917, as amended, and the Fourteenth Amendment to the Constitution by virtue of her birth in the Philippine Islands on March 27, 1943, is without
merit.
CHARGE:

Order: Act of 1952—Section 241(aX2) [8 U.S.C. 1251(aX2)]—Nonimmigrantremained longer.
ON BEHALF OF RESPONDENT:

William II. Marsh, Esquire
225 Broadway
New York, New York 10007

The respondent, who was born in the Philippines on March 27,
1943, entered the United States in December of 1966 as a nonimmigrant student. She remained longer than authorized and as a
result deportation proceedings were commenced. The respondent's

basic contention during these proceedings had been that, although
a citizen of the Philippines, she is also a national of the United
States. This contention was rejected by the immigration judge and
his ruling was affirmed on appeal by this Board. The respondent
now moves for reopening and reconsideration of her case on the
basis of a claim to United States citizenship. The motion will 'be
denied.
In 1899 the United States acquired the Philippine Islands from
Spain under the Treaty of Paris.' That document granted Congress the power to determine "[title civil rights and political status
of the native inhabitants. ..."of the Islands. 2 Commencing in 1902,
!Treaty of Peace Between the United States and Spain, 30 Stet. 1754 (1899).
2

1d., Article IX, 30 Stat. at 1759.
447

Interim Decision #2231
Congress exercised this power through a series of acts which
conferred Philippine, but not United States, citizenship on the
peoples of the Islands. See Act of July 1, 1902, 32 Stat. 691; Act of
March 23, 1912, 37 Stat. 76; Act of August 29, 1916, 39 Stat. 546.
Several decades later, Congress provided for the eventual independence of this possession. The Philippine Independence Act, 3
4 stated that "citizens of the Philippine efctivMay1,934
Islands who are not citizens of the United States shall be considered as if they were aliens" for purposes of immigration, exclusion
and expulsion under the Immigration Acts of 1917 and 1924.
Section 8(a), Philippine Independence Act, footnote 3, supra. This
legislation also provided that full independence would be granted
to the Islands approximately ten years after the inauguration of a
new constitutional government in the Philippines. However, the
Presidential Proclamation establishing independence was delayed
by World War II until July 4, 1946. Presidential Proclamation
No. 2695, 3 CPR p. 86 (1943-48 Comp.). In the interim, which covers
the respondent's date of birth, Filipinos retained their United
States nationality, yet were deemed aliens for the above described
purposes. See Matter of Peralta, 11 I. & N. Dec. 321, 322-23 (BIA
1965). Upon complete independence, those Filipinos who were not
United States citizens became aliens for all purposes, thus losing
every aspect of their United States nationality. Section 14, Philippine Independence Act, footnote 3, supra; Rabang v. Boyd, 353 U.S_
427 (1957).
Nevertheless, the respondent contends that she is both a Filipino and a citizen of the United States by virtue of her birth in the
Philippines. She maintains that the Islands were deemed part of
the United States for purposes of the citizenship clause of the
Fourteenth Amendment. While this claim is squarely in conflict
with the clear thrust of the foregoing enactments, its resolution
will require examination of provisions dealing specifically with
citizenship and nationality.
The Fourteenth Amendment specifies that "[a]11 persons born
or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States,...." This language of
the Constitution is quite similar to some earlier legislation; 5
nevrthls,i natueorhcsinal
provision attempted to define the term "United States."
In 1940 Congress passed the first comprehensive legislation
dealing with nationality and citizenship at birth. Section 101(d) of
3

Act of March 24, 1934, 48 Stat. 456.

° Matter of V

7 I. & N. Dec.242 (ETA, 19M)
s Section 1992,, Revised Statutes, Act of April 9, 1866, 14 Stet. 27.

448

Interim Decision #2231
the Nationality Act of 1940,6 applicable at respondent's birth,
stated: "The term 'United States' when used in a geographical
sense means the continental United States, Alaska, Hawaii,
Puerto Rico, and the Virgin Islands of the United States." From
this provision, and section 201(a) of the 1940 Act which substantially reiterated the relevant portion of the Fourteenth Amendment, it is clear that the respondent did not acquire United States
citizenship by reason of her birth in the Philippines. Congress,
over the course of several years, had determined that the Philippines would be an independent nation and their peoples treated as
citizens of that nation and not as citizens of the United States.
The respondent, however, relies upon section 1 of the Immigration Act of 1917,7 which provides in part:
That the term "United States" as used in the title as well as in the various
sections of this Act shall be construed to mean the United States, and any
waters, territory, or other place subject to the jurisdiction thereof....

This seemingly broad language does not, in fact, support the
respondent's claim to citizenship.
Initially it should be noted that Congress was limiting itself to
matters of immigration and not nationality when it enacted this
provision. Indeed, the definition itself confines its application to
the 1917 Act, which dealt exclusively with matters of immigration.
Moreover, as previously summarized, Congress on numerous occasions has specifically addressed itself to the question of Philippine
citizenship; in each instance it declined to confer United States
citizenship on Filipinos.
The decision in United States v. Ganey, 54 F. Supp. 755 (D. Minn.
1944), affirmed 149 F.2d 788 (C.A. 8), cert. denied 326 U.S. 727,
rehearing denied 326 U.S. 810 (1945), which concerned a claim
essentially similar to respondent's, supports our conclusion as well.
While the provision of law relied upon by the respondent was not
directly in issue there, the holding in that case is germane. The
court held that an idividual born in the Philippines did not become
a citizen of the United States by virtue of the Treaty of Paris, 6 and
further remarked that "Congress has never conferred citizenship
upon the inhabitants of the Philippine Islands." United States v.
Gamy, 54 F. Supp_ at 756_

It is thus abundantly evident that the Islands were never
deemed part of the United States within the purview of the
citizenship clause of the Fourteenth Amendment. See also Matter

6

Act of October 14, 1940, 54 Stat. 1137.

7

Act of February 5, 1917, 39 Stat. 874.

See footnote 1, supra.

449

Interim Decision #2231
of M—, 6 I. & N. Dec. 182 (BIA 1954). The respondent's claim is
without merit, and accordingly the motion will be denied.
ORDER: The motion is denied.

450


Interim Decision #2897

-MATTER OF HALL
In Deportation Proceedings
A-22103%3
Decided by Board February 4, 1982
(1)"The respondent, who engages in fund-raising activities as part of his missionary work
for the Unification Church, is employed within the contemplation of section 245(c)(2) of
the Immigration and Nationality Act, 8 U.S.C. 1255(c)(2), and, therefore, his employment without the permission of the Inunigration and Naturalization Service bars him
from adjusting his status in the United States to that of a lawful permanent resident
(2) Where the respondent receives MR support in return for his.inissionary duties, he
is not an unpaid volunteer in the service of the Church even though he receives no fixed

salary or remuneration in an amount propOrtional to his success in his work
(3) In the absence of a clear expression of legislative intent, the Board will not conclude that detriment to the American labor force was Congress' sole or even primary
concern in enacting section 245(c)(2) of the Act: however. where the respondent's activities as a fund-raiser could successfully be performed by persons or business enterprises
outside the Church and involve the sale of goods, an entrepreneurial undertaking which
places the Church in competition with other sellers of such goods, it nay not be said that
those activities are without adverse impact on the United States labor market.
(4) In considering the applicability of section Z45(c)(2) of the Act, the Government does
not improperly dictate to the Unification Church the permissible scope of its missionaries' duties by isolating the respondent's fund-raising activities from his purely
ministerial duties; determining the status or duties of an individual within a religious
organization is a distinct question from determining whether that individual qualifies
for status or benefits under our immigration laws and authority over the latter determination lies not with any ecclesiastical body but with the secular authorities of the United
States.
CHARGE:
Order: Act of 1952—Sec. 200(2) (8 U.S.C. 1251(a)(2)] –Nonimmigrant—remained
longer than permitted
ON BEHALF. OP RESPONDENT:

ON RENALPOPSERVICE!

Gerald S. Hdrwitz
Appellate Trial Attorney

David Carliner, Esquire
#931 Investment Building
1511 K Street, N.W.
Washington, D.C. 20005

By: Milhollan, Chairman; Menials, Maguire, Morris, 'and Vacca, Board Members

At a deportation hearing conducted on December 19, .1978, an immigration judge found the respondent deportable as an overstayed nonim203

Interim Decision #2897
migrant pursuant to section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), and statutorily ineligible for adjustment of
status under section 245 of the Act, 8 U.S. C. 1255, by reason of the

unauthorized employment bar of section 245(e)(2), 8 U.S.C. 1255(c)(2),
but granted him the privilege of voluntary departure in lieu of deportation. The respondent concedes deportability but contests the denial of
section 245 relief.
At the conclusion of the deportation hearing, as the immigration judge
was stating his decision, the respondent through counsel made an oral
motion to reopen the proceedings to permit further development of the
record with respect to his eligibility for adjustment of stains. The immigration judge declared the hearing closed .and refused to entertain the
respondent's motion to reopen: 1 Subsequent to the hearing, on December 26, 1978, the respondent submitted a formal, written motion to
reopen which the immigration judge denied in a decision dated February 14, 1979. The respondent -appealed from that decision and oral argument in the case was heard by the Board on May 1, 1980.
In seeking to reopen deportation proceedings, it is incumbent upon
the alien to make a prima facie showing of eligibility for the relief sought.
Matter of Rodriguez, 17 I&N Dec. 105 (BIA 1979). The respondent has
not sustained his burden. Upon careful consideration of the arguments

advanced by the respondent since the hearing, we are satisfied that
section 245(c)(2) operates to bar adjustment in his case. As no purpose
would be served by reopening, the respondent's appeal from the denial
of his motion to reopen will be dismissed.
The record reflects that the respondent, a 36-year-old single male, a
native and citizen of Guyana, entered the United States at New York in
May 1976 upon presentation of a nonimmigrant visitor visa. He came to

the United States for the purpose of attending a rally sponsored by the
Unification Church at Yankee Stadium. In July 1976, the respondent
departed New York for Puerto Rico to "work . . . as a missionary" for
the Unification Church (Tr. p. 9),a pursuit in which he is apparently still
engaged.
According to the respondent, his duties as a missionary consist of
holding and attending seminars, witnessing, visiting houses and teaching people on the street the word of God, distributing literature, helping
' Prior to the deportation hearing, the District Director had denied the respondent's
application for adjustment of status on a ground other than that cited by the immigration
judge, i.e., section 212(a)(15) of the Act, 8 U.S.C. 1182(a)(15). The respondent contends
that the Service did,not raise the unauthorized employment bar of section 245(c)(2) as a
possible basis for denial when he renewed his application at the hearing and that he was
therefore denied an opportunity to show that the bar did not apply in ilia case. Despite this
objection, the immigration judge ruled that the respondent had had adequate opportunity
to demonstrate eligibility for the relief sought.

204

• Interim Decision #2897
people financially under Church auspices, and visiting churches. Those
duties also include selling toys, jewelry and trinkets as a means of
raising funds for the Church. The respondent, estimates that he spends
from one-third to one-half of his time fund-raising.
The respondent testified that the proceeds of his fund-raising efforts
are turned over to the Director of the Church in Puerto Rico with whom
he shares a rented house. In return, the respondent receives full support from the Church which includes housing, food, clothing, medical
expenses, transportation, entertainment, toiletries, and other personal
expenses. In addition, the respondent is given approximately $25 in
cash each month for "walking around" money, enough to ensure that he
has -$10 in pocket money at all times.
The unauthorized employment bar of section 245(c)(2), added by the

1976 Amendments to the Act, 2 renders ineligible for adjustment of status aliens (other than immediate relatives) who, after the effective date
of the bar, continued in or accepted authorized employment prior to
filing an adjustment application_ The respondent continued his activities

of the Unification Church, which he does not contend were
authorized by the Service, after the Jaimary 1, 1977, effective date of
the bar. His adjustment application, based upon his status as th•beneficiary of an approved second-preference visa petition Submitted by his
lawful permanent resident mother, was not filed until May 1977. The
dispositive question, then, is whether those activities constitute "em 7
on behalf

ployment"wihcplaonfseti245().Thmgration judge answered that question in the affirmative, concluding that
the respondent was employed as a fund-raiser for the Church.
The respondent contends that the activities in question may not properly be characterized as employment so as to bar him from the benefits
of section 245. He describes his position with the Church as an unpaid
volunteer, not an employee, arguing that he labors for no salary. He
' submits that his service as a missionary is not the type of pursuit Congress contemplated in enacting section 245(c)(2). Finally, the respondent argues that his fund-raising efforts and his teaching, proselytizing,
and other religious duties are integral, indivisible parts of his missionary work and that it is not within the province of the Immigration and

Naturalization Service or the immigration judge to determine what constitutes missionary work for any. particular chureh.
The respondent's contention that he is an unpaid volunteer in the .
service of the Church is not persuasive. He clearly receives compensation in return for his efforts on behalf of the Church. By his own account,
he is provided the wherewithal to cover both necessary and nonessential
2 1976 Amendments to the Immigration and Nationality Act, Pub. L. 94-571, 90 Stet.
2703 (effective January 1, 1977).

205

Interim Decision #2897
expenses, such as entertainment and recreation. He is, in addition,
given discretionary funds as needed: The respondent's relationship with
the Church in effect guarantees him a standard of living similar to that
of many moderate-income wage earners. The fact that he receives no
fixed salary or remuneration in an amount proportional to his success as
a fund raiser is, in our view, immaterial.
The respondent insists that his work on behalf of the Unification
Church is not the sort of undertaking Congress intended to discourage
with the imposition of the unauthorized employment bar inasmuch as his
activities have no adverse impact on the -United States labor force. As
the respondent acknowledges, however, the legislative history of sec• tion 245(c)(2) provides little guidance as to the specific end or ends
sought to be served by the bar. Congress' sole statement of purpose,
contained in the House Judiciary Committee report to the 1976 Amendinents,3 reads as follows:
-

. . . [under the proposed legislation,] aliens who are not defined as immediate relatives
and who accept unauthorized employment prior to filing their adjustment application

would be ineligible for adjustment of status. The Committee believes that this prevision
would deter many nonimmigrants from violating the conditions of their admission by
obtaining unauthorized employment. Similar provisions were included in legislation

which passed by the House of Representatives during the 92d and 93rd Congresses.
(Emphasis added.)

Concern over the impact of a nonimmigrant's unauthorized employment upon the American labor force may well have been a motivating
factor underlying the enactment of section 245(c)(2). However, Congress did not so indicate, either indirectly in the legislative history of
the proposal ultimately enacted or directly in the express language of
the statute. 4 Absent a clear expression of legislative intent, we are
unwilling to conclude that detriment to American labor was Congress'
sole or; for that matter, primary concern..
Manifest in the report language quoted above is-Congress' substantial
apart from its arguable interest in protecting the domestic
interest
,labor market — in the enforcement of our immigration laws with respect
to nonimmigrant aliens within our borders. Cf. Matter of Yazdani,
17 •I&N Dec. 626 (BIA 1981). 5 Correlatively, by penalizing nonimmiH.R. Rep. No. 94-1553, 94th Cong. 2d Sess. (September 15, 1976), reprinted in 1976
U.S. Code Cong. & Ad. News 6073, 6084.
4 Congiess could have, but did not, exempt from the bar nonimmigrants engaged in
employment determined to be of benefit to the United States. Cf. Matter of Raot, 16 l&N
Dee. 466 (BIA 1978). Our reluctance to read a limitation into the statute not placed there
by Congress is bolstered by the fact that-an alien within the ambit of section 245(c)(2) is
deprived of no ultimate right under the immigration Jaws since he remains free to apply to
a United States-consul abroad for an immigrant visa.
Pursuant to those immigration laws, a nonimmigrant is forbidden to work in this
country unless he has been accorded a nonimmigrant classification which authorizes employ204

Interim Decision #2897
grants who work in violation of the terms of their admission, Congress
may well have sought to discourage aliens admitted to the United States
for a temporary purpose from acquiring a source of funds to support a
prolonged unlawful stay in this country.
In any event, we are not persuaded that the respondent's activities as
a fund-raiser are without adverse impact on the United States labor ,
market. Unlike the purely ministerial duties carried on by the respon
dent, we consider the raising of funds a secular function which could
successfully be performed by persons or business enterprises outside
the Church. We note, moreover, that the respondent does not merely
solicit donations in the name of the Unification Church but engageS in
the sale of goods, an entrepreneurial undertaking which places the Church
in competition with other sellers of such goods.
Under the circumstances here presented, were the institution or
organization for which the respondent performs his fund-raising services not a church, we would have no difficulty in finding the' section
245(c)(2) bar applicable. We find no basis in the language or history of
the statute for carving out an exception to the bar in the case of a
church, at least with respect to the secular activities of its adherents.
We reject the respondent's suggestion that the Government, by isolating his fund raising activities, improperly seeks to dictate to the Unification Church the permissible scope of its missionaries' duties. Determining the status or the duties of an individual within a religious organization
is one thing; determining whether that individual qualifies for status or
benefits under our immigration laws is another. Authority over the
latter determination lies not with the Unification Church or any other
ecclesiastical body but with the secular authorities of the United States.
See Matter of Rhee, 16 I&N Dec. 607 (BIA 1978).
In stun, we conclude• that the respondent, through his fundraising
activities, engaged in employment without Service permission in contravention of section 245(c)(2) and consequently is not eligible to adjust his
status in this country to that of a lawful permanent resident. His motion
to reopen the proceedings to permit consideration of his application for
adjustment of status under section 245 was, therefore, properly denied.
The appeal will be dismissed.
ORDER: The appeal is dismissed.

-. -

-

meat or has'been granted specific work autluirization from the Service; a nonimmigrant
who is permitted to work may engage only in such employment as has been authorized. 8
C.F.R. 214.1(e); 8 C.F.R.109.1(a).
,

207


Interim Decision #2603

MATTER OF CORTEZ
In Visa Petition Proceedings
A-22273811

Decided by Board August 3, 1977
(1) The United States citizen petitioner filed visa petitions to accord his parents who are
Mexican aliens, classification under section 201(b) of the Immigration and Nationality
Act. The petition filed in behalf of petitioner's mother was granted, while that filed in
behalf of his father was denied.
(2) Petitioner, who was born out of wedlock became legitimated under Michigan law
(MCLA section 702.83), when he was 28 years of age, by virtue of the marriage of his
parents.
(3) Although the Michigan legitimation statute provides that a child legitimated by the
sohgeriopnt rnarriage of his parents is considered legitimate from birth, the conferral of
this status is a matter quite apart from the age of the child at the time the act of
legitimation takes place. The age of the child at the time the act of legitimation takes
place is controlling.
(4) In order for petitioner to ennfer immigration benefits on beneficiary as his father, he
must first qualify as beneficiary's "child" under section 101(b)(1)(C) of the Act. He must
have been legitimated by an act of legitimation which took place before petitioner
reached his 18th birthday. Since petitioner was 28 years of age when the act of
legitimation occurred, petitioner did not qualify as beneficiary's "child," under the Act,
and the visa petition was properly denied.
(5) Matter of Obando, Interim Decision 2600, (BIA 1977), followed.
ON BEHALF OF P

IoNER: Richard Feferman, Esquire
Michigan Migrant Legal Assistance Project
102 South Mechanic
Berrien Springs, Michigan 49103

BY: Milhollan, Chairman; 'Minna, Maniatis, Appleman, and Maguire, Board Members

The United States citizen petitioner filed a visa petition seeking to
classify the beneficiary as his parent under section 201(b) of the Immigration and Nationality Act, so that his father might obtain an immigrant visa as an "immediate relative" of a United States citizen. The
District Director denied the petition on the ground that the petitioner
had not been legitimated before he reached the age of 18, and therefore
could not be considered the beneficiary's "child" within the definition of
section 101(b)(1)(C) of the Act. The petitioner has appealed. The appeal
will be dismissed.
The facts in this case are not disputed. On December 13, 1976, the
289

Interim Decision #2603
petitioner submitted two Form 1-130 visa petitions for his mother and
father, who are Mexican aliens. The petitioner was born out of wedlock.
He was not legitimated until he was 28 years old, when his parents
married. The District Director approved the petition in behalf of the
petitioner's mother, but denied the petition in behalf of the father.
The petitioner has challenged the District Director's decision on several grounds.

I.
In order to qualify the beneficiary as his "parent" under section
101(b)(2), the petitioner must show that he was at some time the
beneficiary's "child."
Under section 101(b)(1), a "child" is defined as an unmarried person
under 21 years of age who is a legitimate or legitimated child, a stepchild, an adopted child, or an illegitimate child seeking preference by
virtue of his relationship with his natural mother.
The petitioner contends that he is the beneficiary's child within the
definition of section 101(b)(1)(C), which provides:
(G) a child legitimated under the law of the child's residence or domicile, or under
the law of the father's residence or domicile, whether in or outside the United States, if
such legitimation takes place before the child reaches the age of eighteen years and the
child is in the legal custody of the legitimating parent or parents at the time of such
legitimation.

The petitioner is a resident of Michigan. Under Michigan law, "upon
the intermarriage of the parents of a child born out of wedlock . . . such
child shall be legitimate with the identical status, rights, and duties of a
child born in lawful wedlock, effective from its birth. . . ." (MCLA
section 702.83)
The petitioner's legitimation took place when he was 28 years old. It

thus would seem clear that he could not be considered the beneficiary's
"child" within the definition of section 101(b)(1)(C). However, the petitioner fastens on the language of the Michigan statute which legitimizes
the child "effective from its birth." The argument is fallacious. Generally, when a child is legitimated, the child is deemed legitimate from the
time of its birth. This is, however, something quite apart from the age of
the child at the time when the act of legitimation takes place. Matter of
Obando, Interim Decision 2600 (B IA July 20, 1977).

II.
The petitioner argues, in the alternative, that sections 101(b)(1)(C)
and 101(b)(1)(D)I of the Act violate the equal protection principles
2 Section 101(b)(1)(D) defines a "child" as an illegitimate child, by, through whoa, or on
voliose behalf a status, privilege, or benefit is sought by virtue of the relationship of the
aild to its natural mother." (Emphasis supplied.)

290

Interim Decision #2603
embodied in the Due Process Clause of the Fifth Amendment, by
discriminating irrationally on the basis of gender, legitimacy and age at
the time of legitimation.
The petitioner argues that it is not simply the invidious classifications
that make the statute vulnerable to constitutional attack. The statute is
also said to interfere with constitutionally protected familial interests.
The petitioner cites Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Roe
v. Wade, 410 U.S. 133 (1973); Stanley v. Illinois, 405 U.S. 645, 651
(1972) and Griswold v. Connecticut, 381 U.S 479 (1965), in this regard.
The statutory provisions are also challenged on the ground that they
create an unwarranted irrebuttable presumption that an illegitmate
child and his father never have the kind of close relationship which
illegitimate children are presumed by the statute to have with their
mothers. Here the petitioner cites Weinberger v. Wiesenfeld, supra;
Jiminez v. Weinberger, 417 U.S. 628 (1974); Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).
All of these arguments were rejected by the majority of the Supreme
Court in the case of Polio v. Bell, 430 U.S. 787 (April 26, 1977). 2 The
Court based its decision on the long line of eases holding that the power
to expel or exclude aliens is "a fundamental sovereign attribute exercised by the Government's political departments largely immune from
judicial control_" The Court cited Hampton v. Mow Sun Wong, 426 U.S.
88 (1976); Matthews v. Diaz, 426 U.S. 67 (1976); Kleindienst v. Mandel,
408 U.S. 753 (1972); Galvan v. Press, 347 11
U.S. 522 (1954); Shaughnessy
v. Mezei, 345 U.S. 206 (1953); Harisiades v. Shaughnessy, 342 U.S. 580
(1952); Lem Moon Sing v. United States, 158 U.S. 538 (1895); Fong Yue
Ting v. United States, 149 U.S. 698 (1893); The Chinese Exclusion
Case, 130 U.S. 581 (1889).
-

III.
Lastly, the petitioner argues that this case is analogous to Lau v.
410 F. Supp. 221 (S.D.N.Y. 1975), appeal docketed, 2 Cir., and
that his visa petition ought therefore to be approved. We fail to see the
analogy. In Lau, the court was confronted with a "unique situation,
since it appears that the terms 'legitimate child' and 'illegitimate child'
are meaningless in the context of the Chinese legal system." 410 F.
Supp. at 224. There are apparently no provisions in Chinese law prescribing a method for "legitimation" of children born out of wedlock. In
these unique circumstances, the court ruled that it was sufficient for the

Kiley,

2 In any event, we have no power to declare unconstitutional the statutes which we
achninibtel. Matter of Chem and Hasan, Interim Pierisinn 2405 (BIA 1975): Matter of
Lennon, Interim Decision 2204 (BIA 1974); Matter of Wong, 13 L & N. Dec. 820, 823 n. 2
(BIA 1971); Matter of ,Santana, 13 I. & N. Dec. 362, 365 (BIA 1969).

291

Interim Decision #2603
petitioner in that ease to prove the requisite family relationship "as a
matter of fact." 3
The petitioner's argument is that Michigan law does not distinguish
between children legitimate at birth and children legitimated by the
subsequent marriage of their parents. This argument overlooks the fact
that Michigan law still retains the concept of illegitimacy and prescribes

a procedure by which illegitimate children may be legitimated. Section
101(b)(1)(C) requires that the legitimating act occur before the child
reaches the age of 18. The purpose of this requirement is obvious. It is

to insure that a real family relationship did exist between the father and
his child born out of wedlock. The fact that the legitimated child has the
same rights as a legitimate child under Michigan law, and indeed under
the law of every state, as far as we know, is quite irrelevant to the
concern which induced Congress to prescribe the age limitation contained in section 101(b)(1)(C).
The petitioner is not without a remedy in his quandary. Once his
mother becomes a lawful permanent resident, she can submit a second
preference visa petition in behalf of her husband.

ORDER:

The appeal is dismissed_

The court relied upon our decision in Matter ofG-, 9 1. & N. Dec. 518, 520 (BIA 1961),
whese we stated that since Hungarian law had dispensed altogether with the terms "born
in -wedlock" and "born out of wedlock," "there are no legitimate or illegitimate children in
Hungary any more, only children of equal status."
292