Interim Decision #1348

MATTER OF AWADALLA

In VISA PETITION Proceedings
A-12935982

Decided by Board May 98, 1984
An unauthenticated Jordanian judgment of divorce obtained in aesenvki by the
wife in Jordan while the husband was in Colombia lacks essential proof of
due process for recognition as valid in Puerto Rico for the purposes of a
subsequent marriage in that jurisdiction since neither party was before the
court, there were no witnesses, and the court apparently considered no evidence except the es parts statements of Iplaintiff/wife's attorney and assumed
defendant/husband's concurrence because of his absence. Consequently, the
subsequent- marriage of the husband in Puerto Rico to a native and citizen
thereof is not valid for immigration purposes and does not serve to confer
nonquota status.

The district director denied this visa petition on the ground that the
evidence fails to establish sufficiently that petitioner and beneficiary
are validly married. He certified the case to us for final decision.
Except for one point, the reasons underlying our decision differ completely from those on which the district director relies. We reach the
same conclusion, however. Therefore we affirm the district director's
order.
Beneficiary is a 43-year-old native and national of Jordan 'of the
Islamic faith. He entered the United States on June 14, 1961, at
San Juan, Puerto Rico as a visitor. Prior to that entry he resided in
Colombia for about a year and a half.
Beneficiary was married in Jordan. He says that in October of
1960 he was divorced in Jordan from his Jordanian wife. Six children of that marriage—four girls and two boys—live in Jordan.
Petitioner married the beneficiary at San Juan, Puerto Rico, on September 29, 1961. She is a native of Puerto Rico, 50 years old, who has
not been previously married.
The petition was filed on December 20, 1961, and has been before
us twice prior to this certification. Originally, petitioner submitted a
declaration by beneficiary's Jordanian wife_ That declaration states

in Arabic and English that beneficiary has been declarant's lawful
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Interim Decision #1348
husband, that he divorced her on the 11th day of October 1960, that he
left her from that date, and that there has been no relation between
them at all after that date. Both the Arabic and English versions
contain an obvious erasure in the year of divorce.
The district director had the Federal Bureau of Investigation's
laboratory examine the document. The laboratory on March 14, 1962,
reported that the original date on the English version has been
changed from 1961 to 1960 and that the "1" on the typewriter making
the change differed from the "l's" on the document. The laboratory
also reported that the last digit in the year in the typewritten Arabic
text. has been erased and an Arabic "0" written in ink. The laboratory
could not determine the erased character.
Apparently the Service either had checked on the document before
submitting it to the Federal Bureau of Investigation or had information on the results of the laboratory findings before receiving the
formal report. Tri a sworn statement taken almost two months before
the Federal Bureau of Investigation's report, a Service officer confronted beneficiary with the information that the declaration had
been altered. The officer said experts on documents had determined
the year of the divorce had been changed from 1961 to 1960. Beneficiary denied any changes had been made in the document.
The district director initially held petitioner had failed to establish
that her marriage to beneficiary occurred subsequent to his divorce.
He based his conclusion on the evidenee that the date of petitioner's
marriage, September 29, 1961, preceded the date October 11, 1961,
originally given for the divorce on the declaration. Petitioner appealed from that decision, but offered nothing to rebut the evidence
of the erasure and alteration on the declaration. Our decision of
September 28, 1962, upheld the district director's analysis of the
evidence.
Subsequently petitioner submitted directly to us a "Court Notice in
Absentia" by the Qadi of Ramallah, a religious judge, which confirmed
that beneficiary divorced his Jordanian wife on October 11, 1960. On
October 26, 1962, we certified the case to ourselves, withdrew our order
of September 28, 1962, reopened the proceedings, remanded the case to
the district director for consideration of the new evidence, and directed
the district director to certify the case to us for review if his decision
were adverse. The district director again denied the petition bringing
the ease to its present posture.

The district director contends that the later evidence of the court
notice does not alter the fact that the year of divorce was changed
from 1961 to 1960 on the declaration originally submitted. Ho asserts
that the court notice, issued on September 9, 1962, granted a retroactive
divorce to the wife. He concludes, therefore, that beneficiary and his
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Interim Decision *134b
Jordanian wife were not finally divorced until September 9, 1962,
because the retroactive effect of that divorce should be disregarded.
Thus, he argues that the divorce granted by the Qadi of Ramallah
failed to cure the invalidity of petitioner's marriage to the beneficiary.
Counsel for petitioner, in his brief in opposition to the district director's decision, argues that the change in the date on the declaration
merely corrected. a clerical error. In any event, he contends, the
judgment of the Court of Ramallah establishes that beneficiary was
divorced in October of 1960.
The district director and petitioner's counsel each recognize the
basic issue—the validity of the marriage performed on September 29,
1961, at San Juan, Puerto Rico, between petitioner and beneficiary.
In this proceeding petitioner has the burden of establishing the validity of the relationship upon which the petition is based. Therefore,
the rule presuming validity of the most recent marriage has no applicability hero? Ordinarily, we follow the general rule that the validity
of a marriage depends upon the law of the place where the marriage
was contracted? We shall consider the validity of the marriage here
under the law of Puerto Rico wherever that law is applicable.
Several questions arise under the primary issue here, however. We
shall consider first the one which has primarily occupied the parties
up to this point.
L The effect of the alteration of the date of divorce in beneficiary's Jordanian
wife's declaration

Close examination of the declaration executed before the Mukhtar
of Ein Yabroud village by beneficiary's Jordanian wife reveals that
the Service's theory of this ease has been erroneous from the beginMatter of
7 I. & N. Dec. 582, cf. Petition. or Sam Soo, 06 F. Sapp.

439 (N.D. Calif., 1945) ; Petition. of Lu)an, 144 P. Supp. 150 (Guam, 1956).
A second marriage has been presumed valid in a deportation proceeding in which
the burden of proof was on the Government. The Government charged deportability on the ground of bigamy. U.S. ex rel. Kazanos v. Murff, 170 F. Sapp.
182 (S.D. N.Y., 1959). (Matter of T—S—Y—, supra, arose in deportation
proceedings but the issue was respondent's eligibility for preexamination.)
The Supreme Court of Oklahoma has held that where the right of a party
to the relief sought depends upon a marriage, either ceremonial or common law,
the burden is upon that party to establish the facts essential to constitute the
marriage. Hawkins v. Hitchook, 365 P. 2d 971 (1961)—petition for letters of
administration.
'The Acting Attorney General so ruled in Matter of P—, 4 I. & N. Dee. 010.
That decision arose under prior law but also applies to the Immigration and Nationality Act. Matter of Hoehne, Int. Dee. No. 1282.
Circumstances under which we have departed from this rule are not present
here. See, for example, Hatter of 0—, 6 I. & N. Dec. 337; Matter of Napello,
Int. Dec. No. 1303.

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Interim Decision #1348
ning. The declaration bears on its face evidence which demonstrates
conclusively that the - divorce to which the document refers could not
have occurred in October of 1961. A rubber stamp impression in
Arabic, which authenticates the signature of the district governor,
bears the date of February 22 and a year which, although somewhat
indistinct, is either 1960 or 1961. The revenue stamp affixed to the
document distinctly bears the date February 22, 1961, written upon
it. Thus, the declaration was executed prior to beneficiary's marriage
in Puerto Rico. Obviously, when the document was originally prepared, the year in which the document was executed was used erroneously for the year of the divorce. Later, the dates in the Arabic and
English texts were changed to correct that error.

Although there is actually no conflict as to the date of divorce between the declaration and beneficiary's testimony, the record does contain serious conflicts. The district director's opinion says that whether
beneficiary renounced his first wife at all is highly questionable. That
is the one point in his opinion with which we agree. Certainly,
beneficiary's own testimony casts doubt upon the fact of his divorce.
IL Effect of evidentiary conflicts in beneficiary's testimony, his Jordanian wife's
declaration, and the Court Notice in Absentia, taking such evidence at face
value

According to beneficiary's Jordanian wife's declaration—confirmed
by the Qadi's court notice—beneficiary exercised his right under
Moslem law to divorce his wife unilaterally, by declaring to her that
she was divorced from him.' Appa
rently he made a single statement,
which, under certain conditions, he could revoke.' Apparently, also,
there were no witnesses to the divorce. Moslem law does not require
witnesses or any particular procedure, although the husband may, if
he desires, declare his divorce under more formal circumstances than
in beneficiary's case. Jordan recognizes Moslem law as the personal
law of a Moslem.
The district director notes that, although petitioner presented the
declaration of the Jordanian wife and the Court Notice in Absentia
as evidence that beneficiary divorced his first wife, beneficiary says
that his Jordanian wife divorced him. 5 The immigration officer who
3 The wife evidently made the declaration to comply with the Palestinian Law
of Marriage and Divorce Registration, of July 23, 1919, which is in force in

beneficiary's area in Jordan.
See Appendix "A."
'Petitioner's counsel refers to the declaration and court notice as evidence
that the beneadury was divorced from his first wife but does not discuss the
discrepancy between beneficiary's statements that his wife divorced him and

the statement in the documents that beneficiary divorced his wife.

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Interim Decision #1348
took beneficiary's statement had the declaration before him at the time
but failed to call beneficiary's attention to his wife's statements that
he divorced her.
The question who divorced whom ordinarily would not be important
to us so long as we were satisfied a divorce occurred. That question,

however, becomes important to the issue whether a divorce under Moslem law occurred at all. A wife in Jordan may divorce her husband
if he delegates to her the right of divorce. In the absence of such
right, she can, in certain circumstances, request a divorce from a
religious judge.
There is no evidence that the wife received a judicial divorce on
October 11, 1960—the date both parties say the divorce occurred.°
Therefore, unless beneficiary had specifically delegated to his Jordanian wife the right of divorce, he would have had to be the moving party
in a divorce which occurred in the manner here set forth. There is
also no evidence here of any such delegation. In these circumstances,
beneficiary's denial that he divorced his wife raises a serious question
whether the divorce occurred at all.
Beneficiary's Jordanian wife's declaration does not show whether
beneficiary was in the village at the time of the divorce. The language
in both the Arabic and English versions is consistent with either his
presence or absence.
•
The court notice does indicate that beneficiary came to this hemisphere after divorcing his wife.' The judge, however, appears to have
merely repeated what the wife's lawyer told him. Therefore, it is possible the statement of fasts in the court notice does not accurately
reflect all of the details.
Beneficiary's sworn statement of January 26, 1962, contains confusing information. Aceording to that statement, beneficiary was in
Colombia for a year and a half before entering Puerto Rico in June
° Beneficiary says that his wife sent him "a paper from the court," referring
to the declaration. The declaration became an official record under Jordanian
law through registration. It is not a judicial document, however.
The translation given in the record reads in part :
Since the claimant Amira claimed through her lawyer that the accused Awadallah in absentia, whose place of residence is unknown and whom has been decided
to be judged in the courts in absentia, was her husband and carried with her
marital relations, according to the Islamic Religion, and divorced her at her
village, Ein Yabroud, on the 11th of October 1960, by telling her (You are divorced
from me) and abstained thereafter from marital relations, and departed to an
unknown destination in the United States, requested the confirmation of divorce.
(Emphasis supplied.)
This version of the Arabic text is somewhat ambiguous, since it is not clear
• whether "thereafter" modifies "departed" as well as "abstained." The critical
portion of the original text may be translated more accurately, however, to read :
* * After he divorced her, he left for an unknown place * * *.

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Interim Decision #1348
of 1961. On that basis, he would have left Jordan. in about December
of 1959 or January 1960. The immigration officer who took the statement referred to beneficiary's presentation of an air line ticket from
Avianca (Colombian Airlines) for round-trip transportation from
Beirut to San Juan. and return. The record does not show where or
when the ticket was issued or whether any of the transportation covered thereby had been used. Thus, the possibility arises that beneficiary had returned to the Near East after he took up residence in
Colombia!'
The evidence that the declaration was executed in February of 1961
conflicts with beneficiary's testimony that he received that document
six, seven, or eight months after he arrived in Colombia, or about June
to August 1960, if his statement about 18 months' residence in Colombia
is accurate. Thus, either some of beneficiary's statements are in error
or the facts are not as he represents them.
As the record now stands, however, we find that beneficiary was in
Colombia at the time the divorce is said to have occurred. Under Jordanian law beneficiary could have divorced his wife by a unilateral
pronouncement of divorce in Colombia. Beneficiary, of course, denies
that he divorced his wife at all, but the record otherwise discredits
that statement. As we have seen, both the documentary evidence and
the circumstances here refute beneficiary's statement that his Jordanian wife divorced him. Therefore, the evidence is inconclusive on
the question whether an absentee divorce occurred. •
In view of the discrepancies in the record and the highly informal
circumstances under which the alleged divorce occurred, however, the
possibility arises that beneficiary did repudiate his Jordanian wife
after coming to this hemisphere and then arranged with her to pre8 The record does not contain any information from beneficiary's passport showing where and when he obtained his Colombian visa, departures from or entries
into any country, or the place and date of issuance of his nonimmigrant visa
for this country. Avianca operates to Europe via San Juan. Perhaps the officer
misstated the information on the ticket. It may have read Bogota to Beirut
( with a connecting carrier) via San Juan and return or simply Bogota to San
Juan and return. Either of these situations would lit more logically into
beneficiary's testimony. Moreover, beneficiary also presented a reentry permit
issued on May 4, 1961, by the "Ministerio de Relaciones Exteriores." The immigration officer did not note the country of issuance, but presumably it was
Colombia. Thus beneficiary's round-trip ticket could be expected to provide
transportation to that country.
Although we think It unlikely, the ticket may have covered the beneficiary's
initial trip from the Near East to this hemisphere. In that event the destination instead of Puerto Rico should have been Colombia. Another possibility,
but one which we also think unlikely, is that beneficiary had previously returned
to the Near East and in June of 1961 had traveled from Beirut to San Juan
with a ticket providing for return transportation to Beirut.

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Interim Decision #1348
pare the declaration showing their status as divorced. 9 On the basis
of this record, we believe that if the divorce occurred at all it probably
occurred under these circumstances.

If by any chance, however, beneficiary divorced his wife by a single
pronouncement of repudiation while he was in the village in Jordan,
the record also raises a question on the finality of the divorce under
Jordanian law. Beneficiary said in his sworn statement that he wrote
to his Jordanian wife, presumably from Colombia, asking her to join
him. Attempts by beneficiary at reconciliation, if they occurred during the idela period, would nullify such a repudiation. 10
Thus, this highly unsatisfactory record does not establish that a
divorce under Moslem law occurred at all. If, however, such a divorce
did occur, we find that it was an absentee divorce pronounced in Colombia. A. Moslem divorce pronounced in a jurisdiction which does not

ordinarily apply Moslem law raises a serious question of its validity.'t
In the unlikely possibility a divorce occurred while beneficiary was
in Jordan, the record does not establish that the divorce is final and
valid under Jordanian law.
Moreover, for reasons other than conflicting, statements, we accord
little or no weight to the Jordanian wife's declaration and no weight
to the court notice. Deficiencies in those documents further strengthen
our conclusion that the record fails to establish a valid divorce.
III. Evaluation of the documentary evidence of divorce

We have shown that beneficiary's testimony conflicts in certain
particulars with documentary evidence submitted by petitioner. We
now consider the effect of that documentary evidence apart from any
such conflict. Solely for purposes of discussing that effect, we shall
assume that Puerto Rico would recognize a divorce pronounced under
the circumstances alleged here.
Regardless of objections which might be raised against beneficiary's
Jordanian wife's declaration as unsworn, hearsay, or lacking proper
authentication, we may accept it for our purposes for whatever probative value we might attach to it. We should then consider it simply
as a statement by the wife, divesting it of any official character.
That document would probably not be acceptable under Puerto
Rican law, however. Apart from any question of lack of proper
° The Palestinian Law of Marriage and Divorce Registration, adopted by Jordan, does not prescribe any particular formalities for the registration. Supra'
" See Appendix "A." (Idda is the period during which a woman is prohibited
from remarrying after dissolution of a marriage, i.e., the period of waiting for
ascertainment of pregnancy.)
"Compare Matter of If—, 7 I. & N. Dee. 556. See also Slaikoh v. Mutt', 257
F. 2d 306 (C.A. 2, 1958).

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Interim Decision #1348
authentication and hearsay, the Code of Civil Procedure of 1933 contains specific provisions for conditions under which affidavits may be
used." The use for which petitioner offers the declaration is not included.13 In all cases not covered by the provisions for use of affidavits, a written declaration under oath must be a deposition as prescribed by the Code." The Puerto Rican Rules of Civil Procedure
of 1958 have preserved the provisions of the Code of Civil Procedure
of 1933 pertaining to affidavits and depositions.
The Court Notice in Absentia handed down on September 9, 1962,
by the religious court at Ramallah has in Jordan the effect of a judgment. The district director, as we have seen, contends that, even
assuming beneficiary divorced Ms Jordanian wife on October 11, 1960,

beneficiary was not free to marry petitioner at the time of their marriage because the divorce did not become final until the court's action
hi 1962. The district director believes that the court attempted to
grant a retroactive divorce to beneficiary's first wife. He argues that

the retroactive effect of the judgment should be disregarded. On
the other hand, petitioner's counsel argues that the judgment of the
Qadi is similar to an appellate court's judgment affirming a decree
of divorce. He says the decree would become final as of the time the
lower court decision would be final in absence of an appeal.
Neither of -these views correctly applies Jordanian law. The judgment is not in any way a judgment or decree of divorce and does not
attempt to grant a retroactive divorce. It merely confirms a divorced
status which. it recognizes already exists. Taking the facts as the
court found them, the divorce became final as to both parties when the
idda period elapsed without a resumption of the marital status. Assuming that the divorce could be satisfactorily established, it already
bad full legal effect in. Jordan.

Therefore, petitioner's counsel's contention that the Qadi's judgment
does not affect the date upon which the divorce became final is correct,
although his analogy to an appealed judgment of divorce is inappropriate. There has never been any decree of divorce here. The reli" Sec. 490, 32 L.P.R.A. Sec. 2001. That provishin derived from the Act of
March 9;1905 and 'Calif. Code of Civil Proc., See. 2009.

Although the declaration registers the divorce under Jordanian law, it is, for
our purposes, more in the nature of an affidavit. Even though unsworn the
document might be given the effect of an affidavit, if its official character were
recognized.
" California law at the time of adoption of the Puerto Rican Code provided
that Sec. 2009 applies only to matters of procedure and has no relation to proof
of facts necessary to establish a fact in sustaining a cause of action. Leerabere v. Wise, 141 Cal. 554, 75 P. 185 (1904). This case still represents California
law.
" Code of Civil Proc., 1933, Sec. 406, 32 L.P.R.A. See. 2081. (Calif. Code of
Civil Proc., Sec. 2019.

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Interim Decision #1348
gious court did not review any divorce proceedings, but merely determined for its purposes that a divorce had occurred as alleged.
We consider the authenticity of the Qadi's judgment has not been
established sufficiently for us to consider it as official evidence of beneficiary's status as a divorced person." The judgment of the religious
judge has not been authenticated in a manner acceptable in Federal
judicial proceedings." The certification of our vice consul in Jerusalem is merely an aclmowledgment of execution of the translation of
the document. It serves to identify the translator. There is nothing
to authenticate the signature of the judge or to certify that he is the
official custodian of the record. Although the Federal Rules do not
control our proceedings, we may be guided by them.
The Puerto Rican Rules of Civil Procedure of 1943 contained a Rule
44 identical, except for one slight variation, with Federal Rule 44.
That rule was not continued in the 1958 edition of the Puerto Rican
Rules. Section 431.8 of the Code of Civil Procedure remains in effect,
however.' That section prescribes a form of authentication similar
to the provisions of Rule 44. Thus the evidence of the judgment of the
religious court in Ramallah is unacceptable in its present form for
our purposes and probably would be unacceptable as evidence in a
judicial proceeding in Puerto Rico."
Even if the evidence of this judgment were in proper form, however,
more fundamental objections to its evidentiary value arise. Neither
of the parties were before the court. Beneficiary's Jordanian wife
appeared only by her attorney. The judgment itself is described as
a notice in absentia as to the defendant and recites that he had departed
to an unknown destination in the United States. Service of the defendant was by publication only, probably by posting a notice at the
Of. Ohms, Young vnetv v. Boyd, 809 F. Id 05T (0.A.. 0, 1082) ; Voich v_ r R.,
283 F. 2d 613 (C.A. 9, 1960) ; U.S. v. Grabina, 118 F. 2d 803 (CA. 2, 1941) ;
Botazinski v. Lebi4, 65 N.J. Super. 483, 168 A. 2d (1961).
Our order which, because of petitioner's submission of the Court Notice in
Absentia, remanded these proceedings antedated the decision in Olotng Young
Chow.
F.R.O.P. Rule 44. 28 CSC 1741.
3. * *
Documents of any other class in a foreign country by the original or
by a copy, certified by the legal keeper thereof, under, his seal if he has one, with
a certificate of the minister or ambassador, or a consul, vice consul, or consular
agent of the United States in such foreign country, to the effect that the document is a valid and subsisting document of such country, and that the copy is
duly certified by the officer having the custody of the original. 89 See.
1803.8.
"We might consider evidence of this type, however, even though not properly
authenticated, if it was accepted without objection into the record in adversary
proceedings before a special inquiry officer. Mutter of OlEfuliivan., znt. Dec. No.
1294.

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Interim Decision #1348
court or by inserting a notice in the local press. Moreover, no witnesses appeared. The court apparently considere.d no evidence except
the ex parte statements of plaintiff's attorney. The court assumed defendant's concurrence because of his absence.
Under these circumstances, minimum standards of due process of
law have not been met. Generally, before extending recognition to
foreign judgments, our courts require the judgments to reflect satisfaction of such minimum standards. Even jurisdictions which authorize service by publication in their own proceedings generally require personal service upon a party as a condition for recognition of a
foreign judgment?' Recognition and enforcement of foreign judgments on the basis of international comity are subject to much stronger
inhibitions than applications of foreign law in genera1. 2°
Even if there is no question about the propriety of the judgment
here, proceedings of the type underlying that judgment may he conducive to fraud or collusion. For our purposes—irrespective of formal requirements—the judgment adds little or no probative force to
the other evidence of record bearing upon beneficiary's status as a
divorced person.

The Puerto Rican Code of Civil Procedure—after providing specifically for foreign courts of admiralty and judgments against a specific
thing—provides that in all other cases the judgment of any tribunal
of a foreign country, having jurisdiction to pronounce the judgment,
is presumptive evidence of a right between the parties and their successors in interest by a subsequent title, and can only he repelled by
evidence of want of jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact. 21 This provision derived from
the California Code of Civil Procedure. 22 Such provisions indicate
a legislative policy in favor of recognizing foreign judgments. Courts,
however, in determining whether a particular judgment will be recognized, are apt to be guided by fundamental legal principles and
to give effect to the legislative policy where application of the statutory directive would not conflict with those principles. 23 Moreover,
"People v. Baker, 76 N.Y. 78 (1870)—decree of divorce. Hilton v. Gupot, 159
U.S. 113 (1895). See also 3 Freeman, Judgments Secs. 1497-98 (5th Ed., 1925).
2° Cheatham, Dowling, Goodrich, Cams on Conflict of Laws 274 (1936).
2' Sec. 428, 32 L.P.R.A. Sec. 1800.
12 Calif. Code of Civil Proc. Sec.1915.
Cf. Lichtic v. Ziehtip, 81 P.R.R. 718 (1800) ; Pence v. F. Badrena and Hijos,
74 P.R.R. 210 (1952).
See also, R. B. Perez Mercado, .Reconociniiento Validez y Medios pare hewer
Electives Bentencias Extranjeras en Puerto Rico, 20 Rev. Jun U.P.R. 345 (1951) ;
Comment, "Recognition of Foreign Country Divorces : Is Domicile Really Necessary?" 40 Calif. L. Rev. 93 (1952) ; Nete, "Recognition of Foreign Country
Divorce Decrees in California," 2 Hastings L.S. 86 (1950).

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Interim Decision #1348
the statutes recognize lack of jurisdiction and want of personal service as grounds for possible nonrecognition. We believe a court in
Puerto Rico, regardless of any question of compliance with formal
requirements of authentication and certification, would not give effect
to the Qadi's judgment.
IV. Validity of the Puerto Rican marriage

Generally, the Supreme Court of Puerto Rico relies upon the principle of nationality, rather than domicile or place of marriage, in
choosing the law to be applied to determine the effect of a marriage. 24
The nationality rule applies most clearly where both spouses are citizens or both are noncitizens of Puerto Rico." Moreover, the cases
we have found applied the national law of tho noncitizens not to the
marriages themselves, which occurred outside Puerto Rico, but to the
controversy's subject matter—located within Puerto Rico.
Apparently the application of the nationality principle where one
spouse is a citizen and the other a noncitizen of Puerto Rico has not
been authoritatively decided. Ordinarily, in such a situation we
would expect the court to follow the husband's law—except for Puerto
Rican requirements for the form of celebration of the marriage if the
marriage occurred there. Quite clearly, however, a Puerto Rican
court would not apply beneficiary's national substantive law, which
recognizes polygamy.
We are positive, therefore, that, regardless of beneficiary's alien
status, and regardless of his domicile, Puerto Rico would apply its
own substantive law to the marriage which occurred there, especially
since petitioner is Puerto Rican.
Marriage in. Puerto Rico is a social institution, regulated and controlled by public authority." Puerto Rican statutory provisions exa Cabana v. Nadal, 23 P.R.R. 691 (1916) ; Antongiorgi v. Registrar of Property, 6 P.R.R. 493 (1904) ; Cothran r. Registrar of Arecibo, 25 P.R:R. 602 (1917) ;
Los Ooniiictos De Leyes En Materia De Matrimonio, Inmuebles Gananciales V
Divorcio Begun La Doctrine Puertorriguena, 9 Rev. Jur. U.P.R. 95 (1939). For
nationals of the United States the court applies a modified nationality doctrine
referring to citizens of Puerto Rico or of the individual states.
In our jurisprudence the rule that the place of marriage governs the marriage's validity applies particularly to the celebration of the marriage whereas
the law of the domicile frequently affects the validity of the resulting marital
status. Er parte Suzanne, 295 F. 713 (Mass., 1924) .
a Cases cited supra".
a U.S. v. Vega, 3 P.R. Fed. 480 (1908) ; Bravo v. _Franco, 1 D.P.U. 242 (1902) ;
Perez v. Leon, 52 P.R.R. 496 (1938), appeal dismissed 99 F. 2d 851 (1938) sub nom.
Leon v. Tomcats.
Sec. 68, Civil Code, 1930, 31 L.P.R.A. Sec. 221, provides:Marriage is a civil institution, originating in a civil contract whereby a man
and a woman mutually agree to become husband and wife and to discharge toward

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Interim Decision #1348
pressly declare that a marriage not contracted and solemnized in
accordance with the provisions of law is invalid." The Civil Code of
Puerto Rico also specifically provides that a marriage is invalid if
contracted by a person who is already legally married. 28
Moreover, the public attorney may bring an action for a declaration
of nullity of a marriage.29 The Puerto Rican Law of evidence contains a presumption that a man and woman deporting themselves as

husband and wife have entered into a lawful contract of marriage,
but that presumption may be overconle. 3° In any event, as we have
seen, such a presumption is inapplicable here. A certified copy of a
record of the civil registry constitutes only prima facie evidence of
its contents and may be rebutted. 31
Although the Puerto Rican Code provisions declaring the invalidity
of marriages not complying with the statutory requirements are express and in mandatory terms, the courts have determined whether
noncompliance with particular requirements of the statutes renders a
marriage void ab initio or merely voidable. The Supreme Court of
Puerto Rico, has held, however, that a marriage contracted by a person
already legally married is void and not merely voidable. 32
The Puerto Rican legislature and Judiciary have each expressed a
strong public policy against marriage without termination of a prior
marriage. Petitioner has not established that beneficiary has the legal
capacity to contract marriage with her. Therefore, on the evidence
here, the marriage between petitioner and beneficiary is not valid in
Puerto Rico.
The petition depends upon the validity of that marriage. Therefore, it must fail. For the reasons discussed herein, we approve the
district director's order denying the petition.
ORDER: It is ordered that the order of the district director denying the petition be, and hereby is, approved.
each other the duties imposed by law. It is valid only when contracted and
solemnized in accordance with the provisions of law ; and it may be dissolved
before the death of either party only in the cases expressly provided for in this
title.
2T Among the requisites for validity of a marriage the Civil Code prescribes :
* * * authorization and celebration of a matrimonial contract according to
the forms' and solemnities prescribed by law. Civil Code, 1930, Sec. 69(3), 31
L.P.R.A. Sec. 231(3).
When a marriage has not been contracted according to the requirements of this
title, the same is null and void. Civil Code, 1930, Sec. 110. 31 L.P.R.A. See. 411.
Civil Code, 1930, Sees. 69 and 70, 31 L.P.R.A. Sees. 231 and 232.
Civil Code, 1930, See. 111, 31 L.P.R.A. Sec. 412.
3° Code of Civil Pros., 1933, Sec. 464 (29), 32 L.P.R.A. Sec. 1887(29).
"Code of Civil Pros., 1D33, Sec. 433, 32 L.P.R.A. Sec. 1805; Rotate of Felix

Halos, 63 P.R.R. 72 (1244).

Cruz v. Ramos, 70 P.R.R. 681 (1949).

591

'Interim Decision #18=18
APPENDIX A

Jordanian Law No. 92 of 1951 on. Faimly Rights provides in part:
Art. 66—A husband of sound mind has the right to divorce his wife.
Art. 67—During a valid marriage, or during the idda period, a wife is sub- .
ject to divorce. The wife whose marriage has been annulled is not subject
to divorce even during the idda -period.
Art. 68—A divorce pronounced under the influence of intoxication or compulsion is not valid.
Art. 69—Every husband is entitled to three pronouncements of divorce
against his wife.
Art. 70—A contingent revocable repudiation conditioned on performing an
act or refraining from performing such act is not valid.
Art. 71—A divorce is not valid unless the pronouncement of repudiation is
addressed or directed to the wife.
Art. 72—Any pronouncement of repudiation made by number or number sign
in excess of one shall be considered as one pronouncement only.
Art. 78—A wife may return to her husband after the first or second pronouncement, but after the third pronouncement she becomes irrevocably
divorced.
Art. 74—Every divorce is revocable except : the one where repudiation has
been pronounced three times ; one made before consummation of marriage;
one conditioned on a payable sum of money; and every divorce mentioned
1in this law as irrevocable.
Art. 76—A conditional divorce is valid.
Art. 76—A divorce pronouncement conditioned to become effective in the
future is valid.
Art. 77—A complaint by the husband seeking a judicial divorce cannot be
entertained unless the divorce is registered with the religious judge.
However, any evidence presented to the court by the wife related to a
divorce not initiated in the presence of the religious judge is accepted.
Art. 78—The revocable divorce does not dissolve the marriage tie immediately. The husband is entitled to his martial rights which can be displayed by statement or action during the idda. This right is irrevocable.
Art 79--If a husband returns to his repudiated wife during her idda period,
he preserves his marriage and his returning is not contingent on the wife's
consent or on a new dower.
Art. 80—Any return intended for the future or made subject to a condition
will not be valid.
Art. 81—The irrevocable repudiation terminates immediately the marital
life. However, if the irrevocable repudiation was made by one or two
pronouncements, the renewal of the marriage contract is not prohibited.
If it was made after the third declaration, the prohibition is final.
Art. 82—The irrevocable divorce can be ended by the wife observing the
idda, being lawfully married to another man, and the marriage consummated.

592


Interim Decision *1467

MAT=

or Sus

In Exclusion Proceedings
A-8731121
Decided 0 Board' May 6, 1965
Appellant, who was admitted to the United States for permanent residence in
31054 when W years or age; who was immediately returned by bar father to
Mexico where she has since continuously resided except for temporary visits
to this country when 12 years old, was inadmissible under section
212(a) (20), Immigration and Nationality Act, at the time of her application
for admission as a returning resident on November 2, 1964, upon presentation of Form 1-151 issued to her 'shortly after her 1954 entry, since she was
not returning to an unrelinquished lawful permanent residence. after a temporary absence abroad.
Mrca.rmanis• Act of 1952—Section 212(a) (20) [8
1182(a) (20)]—Immigrant not in possession of valid immigrant visa
or similar entry document.

The case comes forward on appeal from the order of the special
inquiry officer dated December 30, 1964, finding the appellant inadmissible on the ground . stated above and ordering that she be excluded and deported. from the United States.
The record relates to a native and citizen of Mexico, born. May 20,
1947, who is presently applying for admission to the United. States as
returning resident alien. She presented a Form 1-151, Alien
Registration Receipt Card, also known as a. resident alien's border
crossing . card, showing that she was admitted for permanent residence on August 24, 1954, at E1 Paso, Texas. The appellant re•calved this card. shortly after she immigrated to the United States
and has not since that time applied for or received any other entry
document of any kind from the Service: or from the American
'Consulate in Mexico.
The record establishes that the appellant's lather is a native and
'citizen of Mexico and her mother is a. native-born citizen of the
United States. The mother married. the father in Mexico in 1940.
The mother had moved. to Mexico when she was five years old. On.
,

-

171

Interim Decision t#1467
August '21, 1954, the father and the five children, including the
appellant, were admitted to the United. States for permanent residence. Inasmuch as the father did not have a place to reside in
the United States, was not steadily employed, and could not afford
to remain in the United States, he sent the children, including the
appellant, back to Mexico in a, taxi to reside with the mother. The
appellant has resided. in Mexico continuously since then except for
visits of two or three months each with relatives when 12 years old.
She married a United. Siite.s citizen on February 22, 1964 when she
was 16 years old, lived with her husband for about a month until
he enterci the service, then lived with his mother in El Paso, Texas
and returned to Mexico in. September 1964 after birth of her baby
in El Paso, Texas on September 6, 1964. At the time she applied •
for admission - into the United' States on November 2, 1964 and was
held for a hearing before a special inquiry officer under the provi-

sions of se
. dim 2;35(b) of the Immigration. and Nationality Act, as
amended, the appellant intended to go to El Paso, Texas to wash
clothes and intended to resume her residence in El Paso as soon as
possible since it is her husband's desire that she live with his
mother during his absence in the armed forces.
Counsel contends that an infant, such as the appellant who Was
then seven years old, who secures an immigration visa, and is thereafter absent because of the will and domination of the parents, has
not voluntarily departed and, has net lost the rights obtained under
an immigration visa, if she returns at the first opportunity after
emancipation, since she was theretofore under legal compulsion to
accompany and be subject to parental authority. He. cites a number
of cases which hold that an unemancipated minor who was absent
from the United States in company with his parents does not make
an entry upon his return from such departure and is not subject

to exclusion as.a' member of a criminal class under 8 U.S.C. 1251(a)
(4) or under the predecessor statute, 8 U.S.C.
What we are concerned ._ with in this case is not whether or not
the appellant' is making an entry into the United States 2 •but
whether she qualifies as an immigrant who is returning to an unre- '
linquished lawful permanent residence after a temporary absence
letting Valenti v. Karnallt, 1 F. Supp. 370 (N.D., N.Y. 1932) ; Matter of
Dauer, Int. Dee. No. 1291 (The latter decision was cited and followed in Mat.
ter

-

of Degree, A-8258660 (March Eli

loss) ).

CT. Fleet! v. Rosenberg, 374 U.S. 449 in which the Valenti case was cited as
an instance in which a district court refused to hold that an alien who had
been absent only briefly had made an entry upon his return to the United
States.
2

172

Interim Decision 4t1167
abroad.• The appellant Wa8 lawfully admitted for permanent resi-.
dence on August 24, 1954. The term "lawfully admitted for permanent residence" is defined, in section. 101(a) (20) of the Immigration
and Nationality Act as meaning the status o1 having been lawfully
accorded the privilege of residing permanently in the United States
as an immigrant in accordance with the immigration laws, such
status not having changed. (Emphasis supplied.) Section 101(a)
(33) states that the term "residence" means the place of general
abode; the place of general abode of a person means his principal,
actual dwelling place in fact, witho;it regard to intent. (Emphasis
supplied.)
Section 211(a) provides that no immigrant shall be admitted into
the United States unless at the time of application for admission he
has a valid unexpired immigrant visa. The pertinent regulation,
8 CFR 211.1 provides that a valid unexpired immigrant visa shall
be presented by each arriving immigrant alien except an immigrant'
who * * * (c) is returning to an unrelinquished. lawful permanent
residence after a temporary absence•abroad * * * (1) not exceeding

one year and presents a Form 1-151, Alien Registration Receipt
Card, duly issued to him.
The_ appellant and the other children were sent back to Mexico
by her father on the same date that she entered the United States
for permanent residence on August 24, 1954. She continued to reside in Mexico, except fat' temporary visits when 12 years old, and
has not applied for admission for permanent residence for ten years.

The regulation, 8 CFR 211.1 requires an immigrant be returningto
an unrelinquished lawful permanent residence after a temporary
residence abroad not exceeding one year, in which case she May
present a Form 1 151, Alien Registration Receipt Card, as an
acceptable document. The appellant's absence does not come within
the terms of the regulations since she is not returning to an unrelinquished lawful permanent residence iriathe United States after a
temporary absence abroad not exceeding one year.
The record establishes that the appellant never secured permanent
residence in the ,Unifed States after her admission on August. 24,
1954 for permanent residence but immediately was returned by her
father to Mexico where she has since resided for a period of ten
years. Her place of residence or general abode after her return in
1954 was in Mexico. Under the definition of the term "residence"
in section 101(•) (33) of the Immigration • and Nationality Act,
intent is not a factor' It was therefore properly found .that the
-

The case of Ileuti v. Rosenberg, 874 U.S. 449, which Involved an innocent,

casual and brief absence is clearly. inapplicable.
173

Interim Decision #1467
Form 1-151 which she presented at the time of her last application
to enter the United States was not a valid entry document or at the
time she entered the United States to become married in February
1964. The appeal will be dismissed. However, as the wife of a
citizen member of the armed forces and a native of a nonquota
country, she should have no difficulty in obtaining an immigrant

visa.

ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

174


Interim Decision #1252

MAI-iiat OF SZAJLAI

In SECTION 341 Proceedings
.A.-13081544
Decided by Assistant Commissioner October 5, 1962
Subject's absence abroad in the United States armed forces during the period
of physical presence required by section 301(b) of the Immigration and Nationality Act, as amended, for retention of United States citizenship, is regarded
as constructive physical presence in the United States within the meaning
of that section.

The subject has applied to this Service for a certificate of citizenship,

claiming to have acquired United States. citizenship at birth abroad
to a citizen mother and an alien father. The District Director and
the Regional Commissioner have concluded that the application should
be granted, a conclusion in which this office concurs.
Applicant's mother was born in the United States on January 23,
1917, and lived in this country until 1921. On September 30, 1934,
she was married to applicant's father, an alien, and the applicant
was born in Hungary on May 14, 1936. He was admitted to the United
States for the first time on July 22, 1958, as a citizen of the United
States in possession of a United States passport. Thereafter, he was
inducted into the Armed Forces of the United States on May 13, 1960
and, under military orders, served overseas on foreign duty from
October 5, 1960 until May 12, 1962, when he was returned to the United
States.
It is conceded that under Section 1993 U.S.R.S., as amended May 26,
1934 (48 Stet. 797) the applicant became a citizen of the United
States at the time of his birth. It is also undisputed that under section
301(b) of the Immigration and Nationality Act (66 Stat. 163), 2 his
arrival in the United States in 1958, at which time he was over 16
but under 28 years of age, was timely for the purpose of permitting
him then to be recognized as a citizen of the United States (Lee You
Fee v. United Mates, 355 U.S. 61; Matter of lf—,7 I. & N. Dec. 646).
,1

a

See Appendix I.
See Appendix IL

103

Interim Decision #1252
A question arises, however, with regard to whether he may still be
considered a citizen in view of the factual interruption of his physical
presence in this country by his absence abroad in the service of the
Armed Forces of the United States.
Under section 301(b) of the Act, the applicant, in order to retain
his United States citizenship, is required to complete five years' continuous physical presence in the United States before reaching 28
years of age. Section 16 of the Act of September 11, 1957 (71 Stat.
644),' permits temporary absences from the United States during
the period of required physical presence without a break in its continuity, provided these absences in the aggregate are less than 12
months.
As the applicant's absence abroad totaled more than 12 months,
section 16 is ineffective to preserve the continuity of the period of
physical presence in the United States which began to accumulate with
his 1958 entry and, in view of his age when factually he resumed
physical presence in the United States, he is not in a position to accumulate a new five-year period of continuous physical presence here
before he becomes 28 years old. Under section 301(b), therefore, his
service abroad in the Armed Forces of the United States will have
had the extraordinary effect of depriving him of his United States
citizenship, unless his physical presence may be regarded as having
continued to accumulate in the United States during the time he was
serving abroad. Forfeiture of citizenship under such circumstances
would be so palpably an absurd and inequitable result that resort may
be had to the legislative history of the Act for any light it may shed.
The legislative history of section 301(b), as well as related sections,
is of no assistance in determining the Congressional intent concerning
the effect of absence abroad in the Armed Forces of the United States
upon the period of physical presence being accumulated as compliance
with the conditions for retention of citizenship. The original provisions of that section were found to be harsh and unduly restrictive,
however, and section 16 was enacted to alleviate the hardships imposed.
As to this ameliorative legislation, the reports on the bills which preceded its enactment (Senate Report No. 1057 on S. 2792 and House
Report No. 1199 on H.R. 8123, 85th Congress, 1st session) indicate that
there were then in contemplation only the results which would follow
from voluntary absences from this country, as in the cases of students
in the United States who might proceed abroad for the purpose of
spending summer vacations with their parents residing there:
The amendment to section 1 will permit nationals and citizens of the United
States at birth, born outside the geographical limits of the t'nited States and
3

See Appendix III.

104

Interim Decision #1252
its outlying possessions of parents, one of whom is an alien and the other a
citizen of the United States, to comply with the residential (sic) requirements
of section 301(b) of the Immigration and Nationality Act, notwithstanding the
fact that within the 5 years during which they are required to be continuously
physically present in the United States, they may leave the United States for
short periods. This proposal is predicated on the fact that many persons,
Particularly children, falling within the purview of the above-cited section of
the law, spend the requisite 5 years in the United States while attending school.
Under the present wording of the law, they are prevented from leaving the
United States during that time even for the purpose of spending their vacation
with their parents residing abroad. Realizing that there is hardship involved,
the committee proposes to authorize a certain degree of statutorily limited
leniency in the administration of that section of the Immigration and Nationality
Act (House Report No. 1190, supra, p. 6).

Section 301(a) (7) of the Act shows also that legislative foresight
was exercised to insure that honorable service in the Armed Forces
of the United States would be taken into consideration in computing
the period of physical presence required of a parent to transmit citizenship to a child born abroad. But these are the only areas in which
a Congressional intent is clearly shown.
It would be patently erroneous to infer from the failure on these
two occasions to provide legislatively for the problem in the instant
case that Congress intended the performance of military service
abroad in the Armed Forces of the United States to work forfeiture
of United States citizenship. Rather, the Congressional inaction must
be viewed in the light of the fact that constructive residence and physical presence in the United States are concepts regularly given effect
in the field of immigration and nationality law, and that the concepts are manifestly applicable to section 301 (b).
Thus, in Matter of L—B—D—(4 I. 85N. Dec. 639 (1952) ), in considering the question of whether United States citizenship was retained under a statute which required the child to take up residence
in the United States before 16 years of age, the Attorney General ruled
that the retention requirements were satisfied although factually
residence was not taken up until after that age because of conditions
beyond the control of the child.
Similarly in Matter of J—M—D— (I I. & N. Dec. 105 (1956) ), the
Board of Immigration Appeals had under consideration a section of
the Immigration and Nationality Act authorizing suspension of deportation if an alien, among other prerequisites, had "been physically
present in the United States for a continuous period of not less than
seven years." (Section 244.) 4
In that case the alien factually for a time had been abroad in the
Armed Forces of the United States. The Board drew a distinction
See Appendix IV.

105

Interim Decision #1252
between such an absence, which was under the compulsion of military
orders, and a voluntary absence such as that stemming from service as
a seaman on merchant vessels. In reaching its conclusion that the

alien should be regarded as continuously physically present in the
United States and hence eligible for suspension of deportation, the
Board during its discussion made some comments that are particularly
apposite to the present applicant's situation:
It is a well-settled rule of statutory construction that a case may be within the
meaning of a statute and not within its letter, and within its letter and not
within its meaning ; and that a statute should be construed so as to carry out
the intent of the legislature, although such construction may seem contrary to
the letter of the statute (Stewart v. Kahn, 78 U.S. 493, 504 (1870) ; Chard& of
the Holy Trinity v. United States, 143 U.S. 457, 459, 472 (1892) ). We believe it
is inconceivable that Congress could have intended teat one wno risked Lis life
in active combat duty in a foreign country would thereby be barred from suspension of deportation whereas another alien, who performed no military duty
and who was thus able to remain in the United States, would be entitled to the
benefits of section 244(a) (1) of the Immigration and Nationality Act. It Is our
considered opinion that an alien who, while residing in the United States, is
inducted into the Armed Forces of this country and serves honorably is to be regarded as being physically present in the United States during such service even
though part or all of his tour of duty is in a foreign country. (p. 1.07)

After the reopening as directed in the published decision and submission of the case to Congress later in 1956 under the procedure required
by the statute where the granting of suspension of deportation is approved, the record of lawful admission for permanent residence was
created, the deportation proceedings were canceled, and in due time
the alien was naturalised (Matter of Jump, AS 951 834)

In two other eases (Matter of 8—, 8 L & N. Dec. 221, and Matter
of 8—, 8 1. & N. Dec. 226 (1958) ), the Board of Immigration Appeals
had under consideration section 301(b), the identical section of law
involved in the present case. In those two cases, factually the coming to the United States and consequently the beginning of physical
presence in this country were not in sufficient time to permit a full five
years' physical presence to accumulate before 28 years of age. The
Board nevertheless concluded. that the applicants were to be regarded
as having constructively complied with the provisions of section 301
(b), basing its conclusions upon the fact that failure to take up timely
physical presence was due to circumstances beyond the control of the
children.
Additionally, in a number of unreported cases, aliens who factually
at some time during the statutory period had been temporarily absent
from the United States in the Armed Forces of the United States were
nonetheless regarded by the courts as continuously resident and physically present in the United States during the time they were so abroad
and as having met those statutory qualifications for naturalization.
106

Interim Decision #1252
In all of the foregoing cases, there was the common factor—as there
is in the instant one—that literal compliance with the letter of the
law was presented by the action of the Government itself.
Based on the foregoing and in the absence of a clear legislative
directive that under circumstances such as those in the instant case
the concept of constructive physical presence in the United States is
inapplicable to section 301(b), this Service adheres to the view that
his physical presence in the United States within the meaning of section 301(b) has not been interrupted and he has not forfeited his
United States citizenship. His application for a certificate of citizenship will, therefore, be granted.
The conclusion that the applicant has not been divested of United
States citizenship by reason of his absence from this country pursuant

to military orders is consistent with the well-settled principle of law
that no conduct results in expatriation unless it is engaged in voluntarily (Ni,shikaiwa v. Dulles, 356 U.S. 129). To hold that the applicant was voluntarily outside the United States within the contemplation of section 301(b) loses sight of the obligations inherent in military
service.
ORDER: It is ordered that the action of the Regional Commissioner
in granting subject's application for a certificate of citizenship be
approved.
APPENDIX I

Section 1993 U.S.R.S., as amended May 26, 1931:
Any child hereafter born out of the limits and jurisdiction of the United States,
whose father or mother or both at tne time or the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but
the rights of citizenship shall not descend to any such child unless the citizen
father or citizen mother, as the ease may be, has resided in the United States
precious to the birth of such Child. in cases wnere one or the parents is au
alien, the right of citizenship shall not descend unless the child comes to the
United States and resides therein for at least five years continuously Immediately previous to his eighteenth birthday, and unless, within six months after
the child's twenty-first birthday, he or she shall take an oath of allegiance
to the United States of America as prescribed by the Bureau of Naturalization.
APPENDIX II

IMMIGRATION AND NATIONALITY ACT
Section 301. (a) The following shall be nationals and citizens
of the United States at birth:.

. -

(7) a person born outside the geographical limits of the United States and
its outlying possessions of parents one of whom is an alien, and the other a
citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or
periods totaling not less than ten years, at least five of which were after attain-

107

Interim Decision #1252
lag the age of fourteen years: Provided, That any periods of honorable service
in the Armed Forces of the United States by such citizen parent may be included
in computing the physical presence requirements of this paragraph.

(b) Any person who is a national and citizen of the United States
at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United. States
prior to attaining the age of twenty-three years and shall immediately
following any such coming be continuously physically present in the
United State[s] for at least five years: Provided, That such physical
presence follows the attainment of the age of fourteen years and
precedes the age of twenty-eight years.
(e) Subsection (b) shall apply to a person born abroad subsequent
to May 24, 1934! Prnvided, however, That nothing contained in this
subsection shall be construed to alter or affect the citizenship of any
person born abroad subsequent to May 24, 1934, who, prior to the
effective date of this Act, has taken up a residence in the United
States before attaining the age of sixteen years, and thereafter,
whether before or after the effective date of this Act, complies or shall
comply with the residence requirements for retention of citizenship
specified in subsection (g) and (h) of section 201 of the Nationality

Act of .1940, as amended.
APPENDIX III

Section 16 of the Act of September 11, 1957:
In the administration of section 301(b) of the Immigration and Nationality
Act, absences from the United States of less than twelve months in the aggregate, during the period for which continuous physical presence in the United
States is required, shall not be considered to break the continuity of such.
physical presence.
APPENDIX IV

IMMIGRATION AND NATIONALITY ACT
Section 244. (a) As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust
the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who—
(1) applies to the Attorney General within Jive years after the effective date
of this Act for suspension of deportation; last entered the United States more
than two years prior to the date of enactment of this Act; is deportable under
any law of the United States and is not a member of a class of aliens whose
deportation could not have been suspended by reason of section 19 (d) of the
Immigration Act of 1017, as amended; and has been physically present in the
United States for a continuous period of not less than seven years immediately
preceding the date of such application, and proves that during all of such period:
he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and
extremely unusual hardship to the alien or to his spouse, parent or child, who'
is a citizen, or an alien lawfully admitted for permanent residence; or

108


interim Decision 9162226

MATTER OF MACCAUD

In Deportation Proceedings
A-13497481

Decided by Board September 7, 1973
(1) An immigration judge cannot make a conclusive judgment of citizenship from
a passport (Irish).
(2) Where the country of deportation designated by the alien did not unconditionally accept him for admission, the immigration judge was correct in
designating an alternate country of deportation in accordance with step 2 of
section 248(a) of the Immigration and Nationality Act.
(3) Where an applicant for withholding of deportation under section 243(h) of the
Act was afforded ample time (amounting, in the aggregate, to several months)
to set forth the bases of his claim, yet he produced nothing beyond his original
outline statement, which did not make a prima facie showing of persecution,
refusal of the immigration judge to allow a full hearing was not an abuse of
discretion nor was his denial of further adjournment in error.*
(4) Applicant has not established that because he aided some fellow prisoners
(who were members of the Quebec Liberation Front) to become aware of and
exercise their right under Canadian law, he would be subject to persecution
within the meaning of section 243(h) of the Act, if deported to Canada, the
country from which he entered the United States.*
CHARGE:

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time
of entry under motion 212(a)(1!7) as an alien who had
previously been arrested and deported, no consent to
reapply for admission having been granted.
ON BEHALF OF RESPONDENT:
Daniel J. Weinstein, Esquire
Legal Aid Bureau of Buffalo, Inc.
205 Walbridge Building
Buffalo, New York 14202
(Brief filed)

ON BEHALF OF SERVICE:

David L. Milhollan
Appellate Trial Attorney
Gordon W. Sacks
Trial Attorney
(Brief filed)

The respondent appeals from the December 27, 1972 decision of
the immigration judge in which he ordered that the respondent be
deported. The immigration judge specified Canada as the place of
• Reaffirmed, 500 F.2d 355 (C.A. 2, 1974).

429

Interim Decision #2226
deportation, unless the Republic of Ireland should advise the
Attorney General of its willingness to accept the respondent into
its territory before deportation to Canada could be effected. In
that case, deportation would be to the Republic of Ireland. He also
denied the respondent's application for withholding of deportation
to Canada under section 243(h) of the Immigration and Nationality
Act.• We agree with the immigration judge; the appeal will be
dismissed.
The respondent, a native and citizen of Canada, conceded deportability on the charge contained in the Order to Show Cause at
his original deportation hearing on January 31, 1972, and was

permitted to designate the country to which he should be deported, "... if that country [was] willing to accept him into its
territory . . .," section 243(a), Immigration and Nationality Act. 1
HedsignathRpublcofIrend,asihlgewa
a citizen of that country and had an Irish passport, the immigration. judge did not at that time specify an alternate country of
deportation in hopes of obviating, if possible, an extended hearing
on the claim of persecution under section 243(h) which the respondent was prepared to make if ordered deported to Canada.
Following the deportation hearing, the respondent was convicted

under section 276 of the Act for entering the United States
without the consent of the Attorney General after previously
having been deported.
When the Republic of Ireland did not accept the respondent, the
Service moved to reopen the proceedings so that the immigration
judge might specify an alternate country of deportation. It is from
the decision rendered at the conclusion of the reopened hearing
that the respondent appeals.
In his appeal the respondent contends that: (1) the immigration
judge should have found him to he a citizen of Ireland; (2) the

Attorney General did not make a proper inquiry of Ireland and
therefore has not received a refusal to accept the respondent; (3)
Ireland is willing to accept him; (4) if Ireland is not willing to
1 Sec. 243. (a) The deportation of an alien in the United States provided for in
this Act, or any other Act or treaty, shall be directed by the Attorney General to
a country promptly designated by the alien if that country is willing to accept
him into its territory, unless the Attorney General, in his discretion, concludes
that deportation to such country would be prejudicial to the interests of the
United States .... If the government of the country designated by the alien fails
finally to advise the Attorney General within three months following original
inquiry whether that government will or will not accept such alien into its
territory, such designation may thereafter be disregarded. Thereupon deportation of such alien shall be directed to any country of which such alien is a subject
national, or citizen if such country is willing Lo accept him hitt; its Le/Litt/1y....

430

interim Decision #Vati

accept the respondent, the Attorney General should impose sanctions against Ireland pursuant to section 243(g) of the Act; (5) the
immigration judge abused his discretion in not allowing a full
hearing, as required by 8 CFR 242.17(c), on the respondent's claim
that he would be persecuted if returned to Canada; (6) the
immigration judge erred in not granting an adjournment for the
respondent's attorney to prepare his presentation of the persecution claim; and (7) the immigration judge erred in not granting
withholding of deportation to Canada under section 243(h). We find
these contentions to be without merit and shall dispose of each in
turn.

With reference to contention (1), we agree with the immigration
judge's analysis of the issue (Decision of immigration judge, p. 10).
While possession of a United States passport may be some evidence of United States citizenship, it is not conclusive proof

thereof, and may be overcome by sufficient evidence that the
holder of the passport is not a citizen, Urtetiqui v. D'Arcy, 34 U.S.
692, 699 (1835); Peignand v. INS, 440 F.2d 757, 760 (C.A.1, 1971); In
re Gee Hop, 71 F. 274, 276 (N.D. Cal. 1895); Matter of Rocha, 10 I. &
N. Dec. 770, 772-73 (BIA, 1964); Matter of H H and H M ,
3 I. & N. Dee. 680, 683 (BIA, 1950). Thus, he may be refused
admission despite his possession of a passport, In re Gee Hop,
supra; Matter of H-H- and H-M, supra. Nor is a passport a
judgment of citizenship, Matter of H-H-and H-M-, supra at 688.
The law of Ireland appears to be the same as United States law
on this point, and may be presumed to be the same in the absence
of any evidence tending to show otherwise, C. McCormick, Handbook of the Law of Evidence § 326 (1954). Therefore, the immigra-

-

-

-

tion judge was in no position to make a finding as to the
respondent's Irish citizenship.

Regarding contentions (2) and (3), the statute does not require a
refusal by the country designated by the respondent. If the
Attorney General is not notified that the designated country is
willing to accept the deportee within three months, the respondent
is to be deported to the alternate country specified by the immigration judge, section 243(a), Immigration and Nationality Act.
The record contains several letters bearing on the question of
acceptance of the respondent by the Irish Government (Exs. 3, 4, 5,

6, and 7, statement of August 28, 1972, and letter of November 2,
1972 from the Department of Justice, Dublin). The Immigration
and Naturalization Service request, made on February 17, 1972, is
part of the record as Exhibit 4. The reply chiefly relied on by the
Service is Exhibit 3, dated September 21, 1972, which states: "The
Irish authorities have confirmed their refusal to accept Mr. MacCaud on deportation." It also characterizes the August 28, 1972
431

Interim Decision #2226
statement from the Department of Foreign Affairs (upon which
the respondent bases his contention that there has been no
refusal) as a background note for press releases and not a formal
statement of the Irish government. That statement said that all
Irish citizens have the right to enter Ireland subject to normal
immigration procedures and checks at the port of entry, and that a
decision not to supply a special travel document does not involve a
denial of entry into Ireland. The last letter on the subject, on
stationery of the Department of Justice, Dublin, dated November
2, 1972, signed illegibly by an unidentified signer, restates what
was said in the unofficial background note of August 28, 1972. This

is not an unconditional acceptance as required by the statute, U.S.
ex rel. Tom Man v. Murff, 264 F.2d 926, 928 (C.A. 2, 1959); U.S. ex
rel. Wong v. Esperdy, 197 F. Supp. 914, 917 (S.D.N.Y. 1961); Du v.
Rogers, 164 F. Supp. 320, 321 (D.D.C), aff'd 262 F.2d 471 (D.C. Cir.
1958). Ireland ordinarily issues a special travel document to deportees to that country whether or not they have Irish passports.
The refusal to issue a special travel document may be due to the
fact that, while the respondent indicated that his Irish citizenship
rests upon his father's birth in Dublin (Tr. p. 8), two documents
executed by the respondent on April 30, 1963 (Form 1-217, Information for Travel Document or Passport, Ex. 4; and the respond-

ent's affidavit, Ex. 8) show that his father was born in Scotland.
Since Ireland has not unconditionally accepted the respondent for
admission and he will be subject to ordinary immigration inspection, and since there may be some doubt as to the validity of his
claim to Irish citizenship, we agree with the immigration judge
that Ireland has not demonstrated willingness to accept the
respondent and therefore find that the immigration judge was
correct in designating an alternate country of deportation in
accordance with step 2 of section 242(a).

Concerning contention (4), the respondent petitioned the United
States District Court for the District of Connecticut for a writ of
mandamus ordering the Attorney General to invoke sanctions
against the Republic of Ireland, pursuant to section 243(g) of the
Act, for its refusal to accept the respondent upon deportation. The
request for mandamus was denied on the merits, MacCaud v.
United Stutes, 354 F. Supp. 872 (D. Conn. 1972), and the respondent

has filed an appeal with the Second Circuit Court of Appeals. Until
the Court of Appeals acts, the District Court's decision stands.
With regard to contentions (5) and (6), 8 CFR 242.17(c) allows the
respondent in deportation proceedings 10 days to apply for withholding of deportation pursuant to section 243(h) and provides: ".
The application shall consist of respondent's statement setting
forth the reasons in support of his request. The respondent shall
432

Interim Decision #2226
be examined under oath in his application and may present such
pertinent evidence or information as he has readily available. The
respondent has the burden of satisfying the [immigration judge]
that he would be subject to persecution on account of race,
religion, or political opinion as claimed ... ."
As early as January 31, 1972 at the original hearing, the
respondent expressed an intention to apply for withholding of
deportation under section 243(h) if deported to Canada. When
Ireland would not accept the respondent, the Service moved to
reopen so that the immigration judge might specify an alternate
country for deportation. The motion was granted on July 17, 1972

over the respondent's opposition.
The reopened hearing was first set for October 1972 in Connecticut, where the respondent was imprisoned after his conviction
under section 276 of the Act. The respondent objected to the place

of the hearing in a letter dated September 24, 1972, since his
witnesses were nearer to the Buffalo area. In an October 18, 1972
letter he objected to a proposed bipartite hearing, part in Connecticut and part in Buffalo. Finally the Government notified him that
the reopened hearing would take place in Buffalo on November 6,
just three days after the respondent's release from prison. The
respondent replied that he needed more time to hire an attorney
to prepare his case, but he submitted a seven-page outline of his
claim. He wrote in ink at the end of the statement: "This is an
outline only. Witnesses will be called to substantiate and elaborate
these facts," (Ex. 10, p. 7).
At the reopened hearing, almost four months after the motion to
reopen was granted, the respondent again requested more time.
The hearing was adjourned till the following day, when the immigration judge found that even if witnesses did testify and prove
that all of the facts alleged in the respondent's persecution claim
were true, the respondent would not be eligible for relief under
section 243(h). However, he granted the respondent three additional weeks to amplify his claim with documents, affidavits of
witnesses, and additional grounds. The respondent submitted
nothing beyond his original claim.
We agree with the immigration judge that it would be futile and
wasteful to hold a further hearing on this claim of persecution.

The respondent had ample time, amounting to several months, to
set forth the bases of his claim, yet he produced nothing in all that
time beyond . his original outline, which in our opinion does not
make a prima facie showing of persecution.
The regulation should not be interpreted to require fruitless
proceedings. Further proceedings to prove the facts alleged in the
respondent's outline of his claim would not change the outcome.
433

Interim Decision ozzzo
The immigration judge did not abuse his discretion by refusing to
allow a full hearing, and further adjournment was not necessary.
As for contention (7), the respondent avers that when he was in
jail in Canada before his last entry into the United States, he
aided some fellow prisoners to become aware of and exercise their
rights under Canadian law. Some of these fellow prisoners were
members of the Quebec Liberation Front (FLQ). He alleges that
because of this he was beaten by prison guards and will be subject

to similar ill treatment if returned to Canada. There is nothing in
the record which shows that the respondent has been or will be
persecuted because of this tenuous association with the FLQ.
We agree with the immigration judge's analysis of the persecution claim on pages 6-10 of his decision. While there is no precise
definition of persecution in the statute, it has been defined in the
courts as "the infliction of suffering or harm upon those whb differ
(in race, religion, or political opinion) in a way regarded as
offensive," Kovae v. INS, 407 F.2d 102, 107 (C.A. 9, 1969). Criminal
prosecution is not persecution unless it is politically motivated,
Sonic V. INS, 346 F.2d 360, 361 (CA. 7, 1965); Kazuo v. INS, supra
at 104; Matter of Janus and Janek, 12 I. & N. Dec. 866, 876
(BIA,1968). The respondent has not adequately shown that he was
politically motivated in leaving Canada or that he has a reasonable fear of being persecuted upon his return. If he is prosecuted
when he returns to Canada, it apparently will be for escaping from
jail or breaching parole. Such prosecution does not seem to be
politically motivated. In fact, the respondent has stated that prior
grievances have been redressed by parliamentary enactments,
that the prison guards alleged to have beaten him have been
prosecuted (albeit they were acquitted), and that he was transferred at his request to different institutions for his protection.
Furthermore, persecution must be at the hands of the government, unless the government cannot control the persecutors,Rosa
v. INS, 440 F.2d 100 (C.A. 1, 1971); Matter of Tan, 12 I. & N. Dec.
564, 568 (BIA, 1967); Matter of Eusaph, 10 I. & N. Dec. 453,
455 (B1A,1964). We are satisfied that the respondent has failed to
show a well-founded fear that his life or freedom will be threatened in Canada on account of his race, religion, nationality,
membership in a particular social group, or political opinion. See
Matter of Dunar, Interim Decision No. 2192 (BIA,1973). We therefore conclude that the respondent will not be subject to persecution
if he is deported to Canada.
In view of the foregoing we shall affirm the decision of the
immigration judge and dismiss the appeal.
ORDER: The appeal is dismissed.
434


Interim Decision #2095

MATTER OF HOFFMAN-ARVAYO

In Exclusion Proceedings
A-14206689
Decided by Board September 7, 1971
(1) The term "commuter" encompasses the "seasonal commuter" who enters
to perform seasonal work for extended periods, but whose annual stay in
the United States is for less than 6 months. However, the "seasonal commuter" must not be confused with the resident alien physically present in
the United States for more than 6 months in the aggregate during the
past year, who is not within the commuter category.
(2) Where appellant, a native and citizen of Mexico, following admission for
permanent residence resided in the United States from 1964 until August
1969 when he returned his family to Mexico, and thereafter (from August
1969 up until he was detained for hearing on March 2, 1970) resided and
was continuously employed in Tucson, Arizona, during which period he
visited his family in Mexico on intermittent weekends, he did not acquire
commuter status by reason of such intermittent weekend visits with his
family. Hence, his absence to visit his family in Mexico on the weekend
immediately preceding his application for entry as a returning resident on
March 2, 1970, was an innocent, casual, and brief excursion within the
meaning of Rosenberg v. Pleuti, 347 U.S. 449 (1963), and his return therefrom does not constitute an entry upon which to predicate a ground of
exclusion.
EXCLUDABLE: Act of 1952—Section 212(a) (9) [8 U.S.C. 1182(a) (9)1—Admits having committed crime, or acts which
constitute the essential elements of crime, involving moral turpitude, to wit, bigamy.
ON BEHALF OF APPLICANT: NO ONE

The applicant, a native and citizen of Mexico, was admitted to
the United States for permanent residence on March 26, 1964. He
applied for admission as a returning resident alien at the port of
Douglas, Arizona on March 2, 1970. He was detained for an exclusion hearing since he appeared to be inadmissible under the
provisions of section 212 (a) (9) of the Immigration and Nationality Act as an alien who admits the commission of a crime involving moral turpitude or acts which constitute the essential ele750

Interim Decision #2095
ments of such a crime, to wit, the crime of bigamy. After a
hearing, the special inquiry officer ordered the applicant admitted
to the United States. The special inquiry officer certified the case
to the Board of Immigration Appeals for final decision. The issue
before us is whether the applicant, an alien admitted for permanent residence who maintains living quarters in the United States
while gainfully employed for five days each week, acquired
"commuter" 1 status by reason of his intermittent weekend departures to visit his family in Mexico, thereby precluding a finding that his departures were not "meaningful" within the purview of Rosenberg v. Fleuti, 347 U.S. 449 (1963).
Briefly, the facts concerning this issue are as follows: The
applicant married Francisca Gonzalez Caballero at Lowell, Arizona on September 19, 1963. He testified that he believed that
Francisca was born in the United States (p. 13). He was admitted as a non-quota immigrant on March 26, 1964 pursuant to the
provisions of section 101(a) (27) (C) of the Immigration and Nationality Act. He resided with Francisca in Tucson, Arizona until
she left him in May or June of 1965 (pp. 13 and 14). The applicant testified that his marriage to Francisca Gonzalez Caballero
has not been terminated and that she now resides hi Douglas, Arizona with another man (pp. 14, 16, 18 and p. 2 of Ex. 4). He
supports the two children born of this marriage by paying $100
monthly under an order entered by a court in Douglas, Arizona.
The applicant married Rosa Marie Chavez-Garcia at Agua
Prieta, Mexico on March 21, 1966. She resided with the applicant in Los Angeles, California for approximately eight months
between December 1968 and August 1969 (p. 17). The applicant,
his wife Rosa Maria and their two children then returned to
Agua Prieta, Sonora, Mexico (p. 10). The applicant testified that
he resumed his employment with a painting contractor in the
United States "about a week" after the family returned to Mexico (p. 11). He has had continuous employment with this painting
contractor in Tucson, Arizona from August 1969 up until March
2, 1970 when he was detained for an exclusion hearing.
An alien admitted for permanent residence is classified as a "commuter"
when he actually lives in a contiguous foreign country but enters the United
States periodically to work. Such an alien by the very nature of his residence in a foreign contiguous territory makes an entry within the meaning
of the immigration laws each time he returns to his employment in the
United States, Gooch v. Clark, 433 F.2d 74 (9 Cir., 1970), cert. denied sub
mini. Gooch v. Mitchell, 402 U.S. 995; Cermeno-Cerna v. Farrell, 291 F.
Supp. 521, 529 (C.D. Cal., 1968) ; Matter of Estrada-Pena, 12 1. & N. Dec.
429, 430 (BIA, 1967).

751

Interim Decision #2095
During this period, the applicant resided and worked in Tucson
for five days of the week and visited his family in Agua Prieta,
Sonora, Mexico on intermittent weekends. He testified that on a
majority of the weekends, he had to work or help his brother who
resides in Tucson, and would visit his family in Mexico biweekly.
He further testified that he was always admitted as a returning
resident alien on the occasion of his periodic returns from Agua
Prieta, Mexico to Tucson, Arizona until his application for admission on March 2, 1970.
The applicant's excludability under section 212 (a) (9) as a
criminal alien depends upon whether he was seeking to make an
entry on March 2, 1970 within the purview of section 101 (a) (13)
of the Immigration and Nationality Act when he returned from
Mexico after visiting his family over the weekend. The question of
whether the applicant was seeking to make an entry on this occasion depends in turn on whether, during the weekend prior to March
2, 1970, he made a "meaningful departure" to Mexico as contemplated by the Supreme Court's interpretation of the quoted term in
the case of Rosenberg v. Fleuti, supra. If the applicant had acquired the status of a commuter alien, then his departure to his
home in Mexico on the weekend preceding March 2, 1970 was a
"meaningful departure" and, therefore, his return to the United
States on March 2, 1970, when he applied for admission at Douglas, Arizona as a returning resident alien, would constitute an
entry, Gooch v. Clark, supra footnote 1; Cermeno-Cerra v. Farrell, supra footnote 1 at p. 529; Matter of Estrada-Pena, supra
footnote 1.
The special inquiry officer concludes that the applicant did not
acquire the status of a "commuter" during the period of August
1969—March 1970 when he resided and worked in Tucson Arizona from Monday to Saturday of each week, usually departing
to Mexico for biweekly visits with his family and occasionally departing for intervening weekends. The special inquiry officer in
reaching this conclusion refers to a comment by the court in the
case of Cermeno-Cerna, v. Farrell, supra, footnote 1 at p. 529,
which quotes counsel for the defendant Immigrant Service as
stating that the "amiable fiction" 2 of a commuter "is more re2 Present statutory law requires commuter aliens residing abroad who have
been admitted as immigrants for permanent residence to obtain reentry documents for every entry. The term "amiable fiction" refers to the fact that
despite the statutory requirement they are now permitted to reenter upon
presentation of their alien registration card (Form 1-151) based upon the
fiction that their presence in the United States while employed amounts to
permanent residence in the United States.

752

Interim Decision #2096
cently being extended beyond border town employment to seasonal workers staying for longer periods of time." The special inquiry officer is of the opinion that this is a novel extension of the
commuter concept which should be considered by the Board of
Immigration Appeals. He certified the case for this purpose.
An immigrant alien who has been lawfully admitted for permanent residence may commence or continue to reside in foreign
contiguous territory and commute to his United States place of
employment. The authority for such an arrangement is derived
from an administrative interpretation of section 211 (b) of the
Immigration and Nationality Act which provides in substance
that returning resident immigrants may be readmitted without
documentation in the discretion of the Attorney General and
under such conditions as he may prescribe by regulations, Gooch
v. Clark, supra footnote 1. There are two types of commuters,
those who commute regularly, normally entering at least twice
weekly, and those who enter to perform seasonal work for extended periods, but whose annual stay in the United States is for
less than six months. The latter are referred to as "seasonal commuters" or "seasonal workers." The seasonal commuter must not
be confused with the resident alien who has been physically present in the United States for more than six months in the aggregate during the past year. Such resident alien is not considered to
be within the commuter category.
The applicant has been physically present in the United States
for more than six months in the aggregate during the one year
period immediately preceding his application for entry on March
2, 1970. He resided and was employed in the United States at Tucson, Arizona and Montebello, California from the time of his
original entry for permanent residence on March 26, 1964 until
he returned his family to Mexico in August of 1969. He returned
to the United States within one week of this departure and has
had continuous employment with a painting contractor in Tucson,
Arizona up until he was detained for a hearing on March 2,
1970. During this period, he maintained a residence in Tucson,
visiting his family intermittently on weekends (p. 2 of Ex. 5).
Furthermore, there is no showing that the applicant was ever issued a commuter status card (Form 178). We affirm the conclusion reached by the special inquiry officer that the applicant did
not acquire the status of a commuter prior to his departure from
the United States on the weekend he visited his family in Mexico
immediately preceding March 2, 1970.
753

Interim Decision #2095
We have reviewed the evidence relied upon by the special inquiry officer and affirm his conclusion that the applicant's departure on the weekend in question to visit his family in Mexico was
an innocent, casual and brief excursion which was not disruptive
of his resident alien status within the principle stated by the Supreme Court in Rosenberg v. Fleuti, supra. The applicant's marriage with his second wife, although bigamous on his part, has
been a subsisting relationship since it was entered into on March
21, 1966. He has been supporting this wife, the child which is the
issue of this marriage and a child born to his wife prior to her
marriage to the applicant. The applicant's bigamous marriage did
not break up a valid subsisting marriage as his former wife had
left him to reside with another man.
The case is distinguishable from those cases 3 in which we have
held that the departure of a lawful permanent resident alien
amounts to a "meaningful departure" when the purpose of leaving the country was to accomplish some object which was itself
contrary to some policy reflected in our immigration laws. The
applicant testified that he was not aware that his second marriage, without prior divorce, amounted to bigamy under the laws
of Mexico (p. 3 of Ex. 4).
Since the applicant was not making an entry on March 2, 1970,
the issue of whether he is excludable as a criminal alien under
section 212(a) (9) of the Immigration and Nationality Act becomes moot. An appropriate order affirming the special inquiry
officer's order will be entered.
ORDER: It is directed that the order entered by the special inluiry officer on July 6, 1970 providing for the alien's admisson as
returning resident alien be and the same is hereby affirmed.

3 Matter of Corral-Fragoso, 11 I. & N. Dec. 478 (BIA, 1966) ; Matter of
,herbank, 10 I. & N. Dec. 522 (BIA, 1964).

754