Interim Decision #2422

MATTER OF MOZEB, et al.
In Exclusion Proceedings
A-20104497
A-20097838-9
A-20105846--7
Decided by Board August RO, 1975 '
(1) Since the law applicable in the Yemen Arab Republic is Islamic law which does not
recognize the practice of adoption, relationships through claimed adoptions in Yemen
cannot be established for immigration purposes (Matter of Ashree, Ahmed and Ahmed,
14 I. & N. Dec. 305 reaffirmed). The informal relationship termed "adoption" in the
Yemen Arab Republic is merely in the nature of a charitable act to needy children and
does not c-eate a legal status comparable to that of a natural legitimate child.
(2) Hulce applicants are not entitled to immediate relative status on the basis of claimed
adoption in the Yemen Arab Republic, the Service is not estopped from excluding them
from admission under section 212(a)(20) of the Immigration and Nationality Act as
iinmigranti without valid immigrant visas, notwithstanding visa petitions according
them immediate relative status by virtue of the claimed adoption in the Yemen Arab
Republic were approved by an American consular officer, and immigrant visas issued to
two of the applicants, prior to the decision in Matter of Ashree, Ahmed and Ahmed,
supra. Not only is the Service empowered to make a redetermination of an applicant's
admissibility upon arrival at a port of entry with an immigrant visa, it is under an
absolute duty to do so (sections 204(e) and 235(b) of the Act).
EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant—no
visa (all applicants)

ON BEHALF OF APPLICANTS:
Omar Z. Ghobashy, Esquire
730 Fifth Avenue, Suite 2007
New York New York 10019

ON BEHALF OF SERVICE:
Paul C. Vincent
Appellate Trial Attorney

In a decision dated February 20, 1975, the immigration judge found the
five applicants inadmissible to the United States under section 212(a)(20) of the Immigration and Nationality Act and he ordered their
exclusion and deportation. All of the applicants have appealed from that
decision. The appeals will be dismissed.
The five alien applicants are natives and citizens of the Yemen Arab
Republic. The issues presented in these cases are substantially identical, and all of the applicants are represented by the same attorney.
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Interim Decision #2422
Each applicant claims to be an adopted child of a United States citizen
by virtue of an adoption that took place in the Yemen Arab Republic. In
each case, a Form 1-130, Petition to Classify Status of Alien Relative
for Issuance of Immigrant Visa, was filed with and approved by an
American consular officer in the Yemen Arab Republic pursuant to 8
CFR 204.1(a). Thereafter, on March 30, 1972, we rendered our decision
in Matter of Ashree, Ahmed and Ahmed, 14 I. & N. Dec. 805 . (13 TA
1973), holding that there was no system for legal adoption in either the
Yemen Arab Republic or the People's Republic of Southern Yemen
(now known as the People's Democratic Republic of Yemen).
Two .of the applicants had been issued immigrant visas prior to the
decision in Ashree, and all of the applicants arrived in the United States
with immigrant visas between April and June of 1973. The immigration
judge concluded, on the basis of Ashree, that none of the aliens were
entitled to the status which they claimed, and that therefore all of the
applicants were excludable under section 212(a)20 as immigrants without valid immigrant visas.
Counsel's primary contention is that there is no legal basis for our
decision in Ashree, and that adoption does in fact exist in Yemen.
Our decision in Ashree was based upon a 29-page report on the Yemen
Arab Republic and the People's Republic of Southern Yemen, prepared
by the Near Eastern and African Law Division of the Library of Congress, dated March 9, 1973. 1 The report states that there is a scarcity of
materials dealing specifically with Yemeni law, and' that therefOre the
best approach to understanding Yemeni law is through standard works
on Islamic institutions and legal procedures. The "selective bibliography" at the end of that report indicates that at least 26 sources pertaining to law in the Middle East and Islamic law had been consulted.
The report from the Library of Congress points out that the Constitution of the Yemen Arab Republic, adopted on December 30, 1970, stated
that Yemen was an Arab Islamic state, thatthe Islamic Shari'ah was the
source of all laws, and that no one should occupy judicial posts except
scholars of the Shari'ah law. 2 The sources of Islamic law, in the order of
their weight and priority are:
(1) The Qur'an (which is the word of God);
(2) The traditions or Swum of the Prophet (which is his behavior and sayings during his
lifetime);
(3) Ijm5', or consensus of opinion of scholars; and
(4) gigs, or analogy.
' There are several other published decisions in which we have held that there is no
system for legal adoption under Islamic law'. Matter of 131tegami, 15 L & N. Dec. 299 (BIA
1975); Matter of Boghdadi, 12 L & N. Dec. 666 (BIA 1968).
2 The report states that the word "Shadah" means "the Islamic way of life of a Muslim,
who must follow its precepts in his daily life."

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Interim Decision #2422
The report quotes the Qur'an's prohibition of adoption which is contained in verses 4 and 5 of Chapter- XXXIII, entitled al-Ahzab (the
• ..
Clans):
4. God has not made
For any man two hearts
In his (one) body; nor has
He made your wives whom
Ye divorce by Zih5r
' Your mothers: nor has He
Made your adopted sons ,
Yoursn.Schi(ly)
Your (mariner of) speech
By your tr ouths.But God
Tells (you) .the truth, and
• He shows the (right) way.
5. Call them by (the names
' of) their fathers: that is
Juster in the.sight of God.
But if ye inow not
Their,father's (names, call
Them) your Brothers in faith,
Or your Maulas.
Rut there is no blame

On you if :re make
A mistake therein:
(what counts is)
The intention of your hearts:

And God 13 Oft-Returning,
Most Merciful-3
, The report also quotes the following interpretation of the passages
quoted from the Qur'an:
If a man called another's son "his son," it might create complications with natural and
normal ,relatiosships if taken too literally. It is pointed out that it is only a facon de
parler in menu mouths, and should not be taken literally. The truth is the truth and

cannot be altered by men's adopting "sons." "Adoption" in the technical sense is not
allowed in Muslim law: Those who have been "wives of your sons proceeding from your
loins" are within the Prohibited Degrees of marriage; iv. 23: [footnote omitted] but this
dues nut apply to "adopted" sons.

Freedmen were often called after their master's name as the "son or [of .1] so and so."
When they were slaves, perhaps their fathers' names were lost altogether. It is more
correct to speak of them as the Maul3 [a freed slave] or [of ?] so and so. But Mania in
Arabic might also imply a close relationship of friendship: in that case, too, it is better to

use the right term instead of the term "son." ."Brother" is not objectionable, because
"Brotherhood" is used in a wider sinse than "fatherhood" and is not likely to be
misunderstood.
What is aimed at is to destroy the superstition of erecting false relationship to the
detriment or loss of true blood relations. It is not intended to penalise an unintentional
3 Abdullah Yousuf Ali. The Holy Qgr'an: Text, Translation and Commentary, Vol. II,
pp. 1102-1103 (Cambridge, Massachusetts 1940). •

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Interim Decision #2422
slip in the matter, and indeed, even if a man deliberately rails another his son or father,
who is not his son or father, out of politeness or affection, "God is, Oft-Returning, Most
Merciful." It is the action of mischievous parties which is chiefly reprehended, if they
intend false insinuations. A mere mistake on their part does not matter.*

The report indicates that a type of relationship loosely referred to as
"adoption" exists in the Yemen Arab Republic, but that this form of
relationship is merely in the nature of charitable aid to prphans. The
report states:
It appears that the practice of taking a child from an orphanage or from his natural
parents, with their permission, and giving him to others who prove capable of taking
care of him and giving him a better home is accepted. It is, however, a misnomer to call
it adoption for reasons discussed in this report. It is, instead, a charitable attitude, very
much encouraged according to the teaching of the Muffin religion. '

In response to the contentions raised in these and other recent cases
involving adoption under the law of the two Yemens, we consulted the
Library of Congress again for an updated report. That report, dated
August 4, 1975, informed us that although the Constitution of 1970 of
the Yemen Arab Republic had been repealed as' of June 19, 1914, the
provisions relating to the applicability of Islamic law were retained in
full in the new interim constitution. 5 The report also related that a new
and complete search of all available sources on. the law of the two
Yemens was undertaken and that such search disclosed no changes in
the law relating to adoption. 6
.
Counsel cites Matter of Peon, 14 I. & N. Dec. 155 (MA 1972), and
Matter of Rodriguez, 14 I. ,& N. Dec. 335 (BIA 1973), for the proposition
that customary adoptions are recognized under the immigration laws.
See also Matter of Ng, , 14 I. & N. Dec. 135 (BIA 1972). However, there
are material differences between the present situation and the ,cited
eases which all involved adoptions under Chinese law and custom in
Hong Kong.
In the latter decisions, we found that the law applicable to Chinese
domiciled in Hong Kong was Chinese law and custom. We further found
that there,pure two forms of adoption practiced under Chinese law and
custom, and we were satisfied that the "simple" form of customary
adoption created a legal status comparable, if not precisely identical, to
that of a natural legitimate child.
On the other hand, in the present cases we find that the law applicable
in the Yemen Arab Republic is Islamic law, that the practice of adoption
• •
,

,

,

* Id.
The pertinent provisions of the interim constitution are set forth in the Appendix.
The new research included an examination of a 987-page volume. in Arabic entitled
Compilation of Legislation of the Arabliepublie of Yemen, arranged under the Supervision a ths Office of Legal Adviser for the Presidential Council and Council of Ministers,
which contains all legislation passed in the Yemen Arab Republic through July 1972.
5

433

Interim Decision #2422
is not recognized under Islamic law, and that the informal relationship
sometimes loosely termed "adoption" in the Yemen Arab Republic does
not create a legal status comparable to that of a natural legitimate child.
We have on prior occasions declined to recognize for immigration purposes an alleged "adoptive" relationship that does not create a legal
status comparable to that of a natural legitimate child. Matter of Kong,
14 I. & N. •Bee. 649 (BIA 1974, motion to reconsider denied, Matter of
Kong, 15 I. & N. Dec 224 (BIA 1975); Matter of Chang, 14 I. & N. Dec,
720 (BIA 1974).
Counsel has submitted a translated copy of a doeument from the

Generil Mufti (Religious and Legal Authority) for the Yemen Arab
Republic ds.ted Stptemlier 4, 1973. That document states:
In response to a request by the Ministry of Foreign Affairs of the Yemen Arab ,
Republic to give a legal decision on 'Adoption' as practiced in Yemen,
I hereby decide that 'Adoption' means guardianship, custody, protection, care and
help of the effluent and Wealthy to the poor.
This is the Yemeni custom and the established usage of adoption which comply with
the Islamic Religion and does not confirm relationship, kinship or inheritance[.]

The foregoing document is consistent with the information contained in
the Librar3; of Congress report and further confirms that sueh "adoption" as exists in the Yemen Arab Republic is merely in the nature of

'charitable aid to needy children and does not create a legal relationship
comparable to that existing between a parent and his or_her natural
legitimate child. '
Our review of the entire record, including the information submitted
by counsel, satisfies us that our decision in Matter of Ashree, Ahmed
and Ahmed was correct. Consequently, we reaffirm that decision.
Finally, counsel claims that the Government is estopped from excluding the applicants because (1) the applicants' visa petitions were approved prior to our decision in Ashree, (2) with respect to two of the
applicants, :immigrant visas were issued prior to the decision in Ashree,
(3) the applicants arrived in the United States prior to general public
availability of the decision in Ashree, and (4) the Service does not have
authority to override the determinations of the Department of State.
Counsel's argument is not well taken. Congress specifically provided
for a system of dual checks under the Act. Section 204(e) provides:
Nothing in this section shall be construed to entitle an immigrant, in behalf of whom a
petition under this section is approved, to enter the United States as a preference
immigrant under section 203(a) or as an immediate relative under section 201(b) if upon
his arrival a: a port of entry in the United States he is found not to be entitled to such
classificatior.

Section 235`,b) of the Act provides, in pertinent part:
Every alien (other than an alien crewman), and except as otherwise provided in

subsection (c) of this section and in section 273(d), who may not appear to the examining

434

Interim Decision #2422
immigration officer at the port of arrival to be clearly and beyond a doubt entitled to
land shall be detained for further inquiry to be conducted by a special inquiry officer
[immigration judge) . .

Thus, the Service not only is empowered to make a redetermination of
an applicant's admissibility when he arrives at the border with an
immigrant visa, but it is under an absolute duty to do so. Under these
circumstances, the Government cannot be estopped from excluding the
applicants.
The immigration judge correctly ordered the applicants' exclusion
and deportation from the United States. The appeals will be dismissed.
ORDER: The appeals are dismissed.
.APPENDIX

.l•

RELEVANT PROVISIONS OF THE INTERIM CONSTITUTION
OF THE YEMEN ARAB REPUBLIC, EFFECTIVE FINE 19, 1974.
(Source: Library of Congress Memorandum, dated August 4„1975).
Art. 1. Yemen is an Arab Islamic and independent state enjoying full
sovereignty. Its system of government is republican.•
Art. S. Islam is the state religion of Arabic the Metal 'state -language.
Art. 4. The Islamic Sharrah is the source Of all .lawS.
Art. 17. The judiciary is independent, and there shall be no authority
over it except the law. Its verdicts shall be handed down and executed
in accordance with the principles of Sharrah: •
Art. 18. All the rules determined by the laws; by-laws and decisions
prior to the issuance of this constitutional declaxatiom shall remain in
force unless they conflict with the rules of this declaration or unless they
are amended or revoked:
•

('

5.

435


Interim Decision #2415

MATTER OF LEE

In Deportation Proceedings
A-19110844

A-20048328
Decided by Board July 28, 1975
(1) Respondent's promissory note to invest an additional $5,000 in a restaurant if his
status is adjt-sted may not be considered in computing the amount of an investment
under 8 CFF. 212.8(b)(4) for the purpose of obtaining an exemption from the labor
certification requirement of section 212(a)(14) of the Immigration and Nationality Act,
as amended, as an investor. Since he has actually invested only $5,000 in the business,
he is ineligible for exemption under existing regulations.
(2) In the absence of a showing that respondent's investment of $5,000 in a restaurant in

which he is working as a cook is actually employed in the operation of the business; has
tended to expand job opportunities; and is of an amount adequate to insure with
sufficient certainty that his primary function with respect to the investment, and with
respect to the economy, will not be as a skilled or unskilled laborer (when, on the

contrary, his present employment as a cook seems to place him in competition with
American labor), he has failed to establish that he is exempt from the labor certification
requirement of the Act, as an investor, under the provisions of 8 CFR 212.8 (b)(4) prior
to amendment in 1973.
CHARGE:
Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2)]—Nonimmigrant-remained longer (both respondents)

ON BEHALF OF SERVICE:
Stuart Shelby
Trial Attorney

ON BEHALF OF RESPONDENTS:
Albert C. Loa', Esquire
970 Hill Street, Suite 202
Los Angeles, California 90012

In a decision dated November 20, 19'72, the immigration judge found
the respondents deportable as charged, denied their applications for
adjustment 3f status under section 245 of the Immigration and Nationality Act, and granted them the privilege of departing voluntarily
from the United States in lieu of deportation. The respondents have
appealed from that decision. The appeal will be dismissed.
The alien respondents, husband and wife, are natives and citizens of
China. At th e hearing, they conceded deporLability. The only issue on

this appeal concerns the male respondent's application for adjustment of
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Interim Decision #2415
status as an alien who is exempt from the labor certification requirements of the Act by virtue of the "investor" exemption contained in 8
CFR 212.8(b)(4).
The male respondent formally presented his "investor" claim prior to
the 1973 amendment of 8 CFR 212.8(b)(4). His claim will therefore be
judged by whichever formulation of the regulation is more favorable to
him. Matter of Heitland, 14 I. & N. Dec. 563 (BIA 1974); Matter of Ko,
14 I. & N. Dec. 349 (Dep. Assoc. Comm. 1973).
The male respondent claims to have invested $10,000 in a Chinese
restaurant in which he is presently working as a cook. •He has submitted
a "general partnership agreement" stating that in return for an investment of $10,000 he will receive 25 percent of the profits of the business.
He has submitted a canceled check for $5,000 made out to the restaurant, and he also has presented what purports to be a promissory note
obliging him to pay an additional $5,000 within 120 days from the date of
signing of the "general partnership agreement.". At the hearing, however, the respondent indicated that the other partners have agreed that
the $5,000 covered by the note willnot become due unless and until his
status is adjusted to that of a lawful permanent resident of the United
States (Tr. pp. 5, 23).
Assuming arguendo that a promissory note may be considered in
computing the amount of an investment under 8 CFR 212. 8(b)(4), we do
not believe that this particular note constitutes part of the respondent's
investment. The note merely represents an intention by the respondent
to invest an additional $5,000 in. the restaurant if he has his status
adjusted. An alien who is deferring a portion of his capital investment
pending approval of his application for adjustment of status cannot be
said to be one who has "invested" or is "actively in the process of
investing" such capital. Matter of Lui, 15 I. & N. Dec. 206 (BIA 1975).
The respondent's investment in the restaurant business is, at best, the

$5,000 evidenced by his personal check to the restaurant. Consequently,
he does not meet the $10,000 requirement of the present regulations.
The remaining question is whether the respondent could qualify as an
"investor" under the earlier version of the regulations. In Matter of
Heitland, supra, we overruled our decision in Matter ofFinau, 12 I. &
N. Dec. 86 (BIA 1967), and held that in order to qualify for the "investor" exemption under the old regulations:
the investment either must tend to. expand job opportunities 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.
In Matter of Ahlru:sd, 15 I. & N. Dee. (BIA 1974), we noted that the
"investor" exemption should not become a means of circumventing the

409

Interim Decision #2415
normal labor certification procedures for skilled or unskilled labor. We
placed rigorous standards of proof upon the "investor" claimant, stating
that proof of the investment "must be unambiguous, and doubts should
be resolved against the 'investor' claimant."
The "general partnership agreement" submitted in the present case
merely states that the respondent "will deposit in the Chinese Palace

general bank account the cash sum of Five Thousand Dollars." The
unaudited financial records of the restaurant are dated January 1972,
prior to the respondent's alleged investment of $5,000 in July 1972.
There is nothing in the record to show that the funds the respondent
allegedly invested are actually employed in the operation of the business. See Matter of Ahmad, supra; Matter of Heitland, supra.
Taken as a whole, the record fails to establish that the respondent's
claimed investment has tended to expand job' opportunities. Nor does
the record establish that the respondent's claimed investment is of an
amount adequate to insure with sufficient certainty that the respondent's primary function with respect to the investment, and with respect to the economy, will not be as a skilled or unskilled laborer. On the
contrary, the respondent's present employment as a cook seems to place
him in competition with American labor. We are not satisfied that the
respondent's alleged investment is anything but "a mere conduit by
which the alien seeks to enter the skilled or unskilled labor market." See
Matter of Ileitland, supra.

The respondent has not established that he is exempt from the labor
certification requirements of the Act as an "investor." Consequently, he
has not established his eligibility for adjustment of status. Since the
female respondent's application was based on that of her husband, it
also must fail. The result reached by the immigration judge was correct.
The appeal will be dismissed.
ORDER: The appeal is dismissed.

Further order: Pursuantto the immigration judge's order, the respondents are permitted to depart from the United States voluntarily
within 20 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.

410


Interim Decision #2717

MATTER OF CARRILLO

In Deportation Proceedings
A-23006036
Decided by Board July 10, 1979
(1)The immigration judge's denial of a continuance did not result in a denial of a fair
hearing, as two continuances totaling 2 weeks had already been granted, counsel had
stated her readiness to proceed after the first continuance, and the request was based
upon the unsupported conjecture that the Service's evidence of deportability would
arise from the respondent's previous arrest.
(2) Where the respondent moves to continue the case for further preparation, an
immigration judge is entitled to make observations on the nature and complexity of
the case presented to him based upon his experience in similar cases, and such
observations do not necessarily imply prejudgment.
(3)It is not necessary to decide if the respondent was deprived of the right to counsel,
and thus due process, when his attorney voluntarily left the hearing room, because the
respondent had, before that point, with counsel present, admitted his alienage, and
this admission, with section 291, was sufficient to establish his deportability. Matter of
Gonzalez, 16 I&N Dec. 44 (BIA 1976).
(4)A respondent charged with entry without inspection, a federal criminal offense under
section 275 of the Immigration and Nationality Act, 8 U.S.C. 1325, could refuse to
answer, on Fifth Amendment grounds, any question he reasonably believed might

have a tendency to incriminate him or furnish proof of a link in a chain of evidence.
Matter of R—, 4 I&N Dec. 720 (ETA 1952).
(5)Neither the Service Trial Attorney nor the immigration judge is in a position to offer
immunity from criminal prosecution.

(6)A District Director's decision not to present a case for prosecution because, according
to his understanding, it belongs to a class which the United States Attorney has
judged not to warrant criminal prosecution, is not equivalent to a grant of immunity,
whatever the practical effects may be, and a respondent cannot be made to testify
after he has invoked his right against self-incrimination, simply upon the presentation of such an assurance.
(7)Where deportability has been established by the respondent's admission of alienage

before the invocation of his right against self incrimination, the respondent's testimony following the immigration judge's incorrect advice to the respondent that he
could not invoke this privilege is disregarded, and the respondent was not deprived .of
-

a fair hearing

CHARGE:

Order. Act of 1952—Sec. 241(a)(2) (8 U.S.C. 1251(a)(2)]—Entered without inspection

30

Interim Decision #2717
Ssavicc
Ingrid K. Hrycenko
Trial Attorney

ON BEHALF OF RESPONDENT:

ON BEHALF OF

William Blum, Esquire
Clinics. Legal del Pueblo
712 S. Grandview
Los Angeles, California Doom
BY:

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

In a decision dated June 9, 1978, an immigration judge found the
respondent deportable as charged and granted him the privilege of
voluntary departure. The respondent appeals from this decision: The
appeal will be dismissed.
On appeal, the respondent contends that for a variety of reasons he
was denied a fair hearing. He claims that the immigration judge
abused his discretion in denying a request of a reasonable continuance,
and in denying his right to counsel. He also asserts that he was denied
due process because he was coerced into abandoning his Fifth Amendment right against self-incrimination, and also because the immigration judge was prejudiced and had prejudged the case.
After reviewing the record, we have concluded that this latter contention of prejudgment is without merit. The immigration judge is
entitled to make observations on the nature of a case presented to him.
This is especially true when a request for a continuance is made, as in
this case, where the counsel for the respondent stated that the case
was legally and factually complex. It was not evident to the immigration judge, and is not evident to us, that there were 120 witnesses
whose testimony was necessary to an adjudication of the charge of
entry without inspection. Having handled numerous cases of the same
nature previously, the immigration judge was well-qualified to comment on the complexity of the case as it was presented to him. In
addition, he did indicate that he would be willing to adjourn the
hearing if it developed that difficult or complex issues were present in
the case (Tr. p. 15). We do not therefore find anything in the record to
indicate prejudgment on the part of the immigration judge.
We also do not agree that the respondent was denied a fair hearing
because the immigration judge denied the request for a continuance. In
the first instance, the assertion entirely ignores the fact that two
continuances were granted, stretching over a period of 2 weeks. It also
ignores the fact that the respondent's attorney stated that she would
be ready to proceed after the first continuance was granted. The fact
that she could provide statements from other attorneys detailing their
views as to the amount of time it would take to prepare the case is not
' We note that the Minim Legal del Pueblo was denied recognition by the Beard on
May 21. 1979, subsequent to the instant appeaL

31

Interim Decision #2717
highly persuasive, given the further fact that the respondent did not
know what evidence the Service was going to present. While the
respondent's attorney may have assumed that the evidence to be
presented on the question of deportability would arise from the respondent's previous arrest, at his place of employment, this assumption was highly conjectural. It was therefore not unreasonable for the
immigration judge to require the proceedings to go ahead as he did to
handle the issues as they developed, and this fact did not deprive the
respondent of a fair hearing.
The respondent also contends that he was denied his right to due
process when the deportation proceeding went ahead without the
respondent's counsel being present. This event is said to have occurred
during the course of the June 9, 1978, hearing, and followed the
voluntary departure of the respondent's attorney from the hearing
room after she had objected to the immigration judge's denial of the
fourth request for a continuance.
While in another context this argument possibly could have a valid
basis, we have concluded that this issue need not be addressed in this
particular instance. There is sufficient basis in the record to establish
the respondent's deportability through testimony freely given by the
respondent before the departure of the attorney representing him The

transcript indicates that the respondent admitted that he was not a
United States citizen (Tr. p. 24). This admission occurred when his
attorney was present. There is no indication that it was coerced. Such
an admission, in and of itself, is sufficient basis on which to ground a
finding of deportability. His admission established his alienage. Once
this fact was established, section 291 of the Immigration and Nationality Act, 8 U.S.C. 1361, requires that the respondent justify his presence
in the United States, or be presumed to be in the United States in
violation of law. The burden of proof is on the alien, and he cannot
avoid this burden by resting upon his Fifth Amendment rights. Matter
of Gonzalez, 16 I&N Dec. 44 (BIA 1976); De Lucia v. Flagg, 297 F.2d 58
(7 Cir. 1952), cert. denied, 369 U.S. 837 (1962). The respondent has
offered no proof to negate this presumption. We are therefore satisfied
that the respondent is deportable, and that this deportability was
established by clear, convincing, and unequivocal evidence.
We have come to this conclusion without relying upon the testimony
of the respondent which followed the departure of his attorney. We do,
however, believe that comment is necessary upon the point the respondent raises in his appeal concerning the testimony delivered by
the respondent after his attempt to invoke the Fifth Amendment right
to remain silent. We consider this testimony inadmissible. The respondent was charged with entry without inspection. This is a federal
criminal offense under section 275 of the Act, 8 U.S.C. 1325. The
32

Interim Decision #271?
respondent could therefore refuse to answer, on Fifth Amendment
grounds, any question he reasonably believed might have a tendency to
incriminate him or furnish proof of a link in a chain of evidence.
Matter ofR—, 4 I&N Dec. 720 (BIA 1952). Such a reasonable apprehension of danger could have existed here, despite the fact that the Trial
Attorney offered a memorandum for file dated June 9, 1978, from the
District Director which indicated that the respondent would not have
criminal charges brought against him by the Service. This is not an
effective grant of immunity which would foreclose the respondent's
ability to invoke the Fifth Amendment right against self-incrimination. We have previously held that neither the Trial Attorney nor the
immigration judge is in a position to offer such immunity. This is an
action which can only be authorized by the Attorney General or
certain officials designated by him. Matter of King and Yang, 16 I&N
Dec. 502 (BIA 1978); Matter of Exantus and Pierre, 16 I&N Dec. 382
(BIA 1977); 18 U.S.C. 6001-6005. It is therefore clear that a District
Director's decision not to present a case for prosecution because,
according to his understanding, it belongs to a class which the United
States Attorney has judged not to warrant criminal prosecution, whatever its practical effect may be, is not equivalent to a grant of immunity. A. respondent cannot therefore be made to testify after he has
invoked his right against self-incrimination simply upon the presentation of such an assurance. The immigration judge here was incorrect in
advising the respondent otherwise.
However, as we have pointed out, proof of deportability has been
established by the respondent's admission of alienage and his failure
to sustain his burden of proof in showing the time, place, and manner
of entry into the United States. Since his admissions following the
invocation of his right against self-incrimination do not form the basis
for our finding of deportability, and the other points raised on appeal
have not been substantiated, there exists no ground on which to
sustain this appeal. It will accordingly be dismissed.
ORDER= The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order,
the respondent is permitted to depart from the United States
voluntarily within 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 respondent shall be deported as
provided in the immigration judge's order.

33


Interim Decision #2114

MATTER OF ORTEGA-MOJARO

In Deportation Proceedings
A-19107467
Decided by Board October 2, 1970
Under the authority of section 287, Immigration and Nationality Act, the
immigration officer had the power without a warrant to detain and interrogate respondent on April 8, 1970, when he was a passenger in an automobile in Los Angeles County, California, as to his right to be or remain
in the United States. Further, under 8 CFR 287.1(a) (1) and (2), the immigration officer had authority to apprehend respondent within a "reasonable distance" of an external border of the United States, which is defined
by those regulations as 100 air miles from a border.*
CHARGE
Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Entry
without inspection.
ON BEHALF OF RESPONDENT:

David C. Marcus, Esquire
215 West Fifth Street
Los Angeles, California 90013

The respondent appeals the decision of the special inquiry
officer finding him deportable as charged, denying his application
for voluntary departure and ordering that he be deported to Mexico on the charge contained in the order to show cause. The appeal will be dismissed.
The respondent is a 45-year-old male alien, who testified at the
deportation hearing that he was not a citizen or national of the
United States but was a native and citizen of Mexico. The respondent, on advice of counsel, refused to furnish any information at the hearing as to the time, place and manner of his entry
into the United States. He did request the privilege of voluntary
departure, but this was properly denied by the special inquiry officer because the respondent refused to testify as to his eligibility
for such relief.
* Affirmed, Ortega-Mojaro v. INS, No. 26580, C.A. 9, May 11, 1971; cert.
den., No. 71-5014, Oct. 19, 1971.

838

Interim Decision #2114
The respondent admitted, as alleged in the order to show cause,
that he was not a United States citizen. Therefore, under section
291 of the Immigration and Nationality Act, 8 U.S.C. 1361, the
burden of proof is upon him to show the time, place and manner
of his entry into the United States. Since he has failed to do this
he is deportable under section 241 (a) (2) of the Act as an alien
who entered without inspection.
Counsel contends that the respondent's apprehension in the
United States was without probable cause and, therefore, the
order to show cause was invalid. In answer to this, we simply
point out that the respondent's deportability has been established
by evidence that is clear, unequivocal and convincing aside kom
any evidence adduced by the immigration officer who apprehended the respondent on April 8, 1970 when he was a passenger
in an automobile in Los Angeles County, California. Referring to
the respondent's arrest, we find that the officer was acting within
the authority granted to him by section 287 of the Immigration
and Nationality Act in that he had the power without a warrant
to interrogate any alien or person believed to be an alien as to his
right to be or remain in the United States. The officer further
had the right under 8 CFR 287.1 (a) (1) and (2) to apprehend the
respondent within a reasonable distance of an external border of
the United States which, under said regulation, is defined as 100
air miles from a border. The immigration officer's power under
said section 287 to detain a suspected alien for interrogation has
been fully discussed and defined in United States v. Miranda, 426
F.2d 283 (9 Cir., 1970) and Yam Sang Kwai v. INS, 411 F.2d
683 (D.C. Cir., 1969), cert. denied 396 U.S. 877.
Counsel's statement in the appeal that the respondent was denied a fair and impartial hearing is totally without foundation.
He was given every opportunity to offer evidence that he was legally entitled to enter and remain in the United States, but not
one shred of evidence in this respect was proffered.
Accordingly, the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.

839


Interim Decision #2151

MATTER

OF

CHIN

In Visa Petition Proceedings
A-19425410
Decided by Board May 25, 1972
As many Chinese adoption cases are not grounded upon a formal adoption
decree, the validity of such claimed adoptions must be determined bye careful
weighing of the evidentiary materiaL Certified copies of affidavits, photographs, evidence of support, letters, and other documents presented bearing
on validity should be made a part of the record. Photographs should be
positively identified and verified under oath. Affidavits submitted should state
(1) the nature of the affiant's relationship, if any, to the parties; (2) the basis of
afflant's knowledge, and (3) contain a statement of the facts affiant knows
regarding the adoption, rather than mere conclusory statements as to the
existence of an adoption. Information in an affidavit should not be disregarded simply because it appears to be hearsay; in administrative proceedings
that fact merely affects the weight to be afforded it. In addition, there is an

exception to the hearsay rule relative to statements as to pedigree and family
history made by relatives or members of the same, community. Affidavits
executed by counsel would have little, if any, probative value.
ON BEHALF OF PETITIONER:
Benjamin Gim, Esquire
21'7 Park Row
New York, New York 10038
(Brief filed)

ON BEHALF OF SERVICE:

R. A. Vielhaber
David L. Milhollan
Appellate Trial Attorneys
(grief tiled)

The United States citizen petitioner applied for preference

status for the beneficiary as his adopted married son under section
203(a)(4) of the Immigration and Nationality Act. The District
Director, evidently finding that an adoption had been established,
approved the petition on October 14, 1970. However, his initial
approval was revoked on June 21, 1971 on the basis of this Board's
decision in Matter of Yiu, 13 L & N. Dec. 624 (BIA, 1970). The
petitioner appeals from the revocation. The appeal will be sustained, but the case will be remanded.
The beneficiary is a married male who was born in China on
January 9, 1928. He was purportedly adopted on March 15, 1931.
Counsel urges that the validity of the adoption be gauged by the
150

Interim Decision #2151
provisions of the Civil Code of the Republic of China. We do not
accept this point of view, inasmuch as the provisions of the Civil
Code dealing with adoption were not put into effect until May 5,
1931. The validity of the adoption in the present case, therefore,
must be determined with reference to the adoption law in effect
prior to the Civil Code of Nationalist China. The relevant provisions were found in the Ching Code, which was the subject of our
decision in Matter of Yiu, supra.
At the time he made his decision to revoke, the District Director
was not incorrect in citing the Yiu case as authority. However,
since we rendered our decision in the Yiu case, we have had
occasion to reconsider the principles enunciated therein. As a
result, in Matter of Ng, Interim Decision No. 2147 (BIA, April 28,
1972), we receded from our ruling in Yiu. That case, therefore, no
longer serves as a bar to the approval of the present petition.
In Matter of Kwok, Interim Decision No 2145 (BIA, April 25,
1972), we rejected the Service's argument that Chinese adoptions
even though valid under the law of the place where the adoption
status was created nevertheless do not constitute "adoptions" for
immigration purposes if not created as a result of a "juridical act."
Shortly thereafter we receded from two precedent decisions that
had served as legal obstacles to the acceptance of many Chinese
adoptions. In Matter of Ng, supra, we receded from our decision in
Matter of Yiu, supra, and returned to our earlier position as
expressed in Matter of Yue, 12 I. &. N. Dec. 747 (BIA, 1968). In the
Yue case we had recognized the validity of both (1) the adoption of
females and (2) the adoption of males even though not related by
birth, not of the same clan and not with the same surname. In
Matter of Yee, Interim Decision No. 2146 (BIA, April 28, 1972), we
receded from our earlier decision in a case involving a Chinese
with the same family name, Matter of Yee, 13 I. & N. Dec. 620 (BIA,
1970). The first Yee case had ruled out the possibility of recognizing an adoption occurring in the People's Republic of China as
valid for immigration purposes.

Even though the legal impediments to the recognition of
Chinese adoptions have been removed, each petition based upon
an adoptive relationship still must be considered from a factual
point of view. In visa petition proceedings the burden of proof to
establish eligibility for the benefit sought under the immigration
laws rests with the petitioner, Matter of Brantigan, 11 I. & N. Dec.
493 (BIA, 1966). An application for preference classification must
be accompanied by evidence of the family relationship, 8 CFR
204.2(0(4
In any case where an adoption is claimed to have taken place it
goes without saying that the identity of the parties must be
151

Interim Decision #2151
established. The adoption paper which has been submitted refers
to the adoptive father as Mr. Chin Leung Suey of Ou Bing Village,
Konghoi. The petitioner's name is not Chin Leung Suey, but Kee
Yick Chin. An affidavit of the petitioner's wife executed on July 10,
1970, indicates that, at the time of the claimed adoption of the
beneficiary, the petitioner did not reside in China at all, but was
residing permanently in the United States. The name of the
petitioner's wife, who, in her affidavit of July 10, 1970, stated that
she had adopted the beneficiary with the consent of the petitioner,
likewise is not mentioned in the adoption paper. The case will have
to be remanded in order to enable the District Director to verify
that the petitioner and the adoptive father are indeed the same
person.
Inasmuch as many Chinese adoption cases are not grounded
upon a formal decree of adoption, it is necessary to determine the
validity of the claimed adption by means of a careful weighing of
the evidentiary material submitted. Certified copies of affidavits,
photographs, evidence of support, letters and other documents
bearing upon the issue of the validity of the adoption exhibited by
the petitioner should be made part of the record. Affidavits
submitted should (1) state the nature of the affiant's relationship,

if any, to the parties, (2) set forth the basis of the affiant's
knowledge, and (3) contain a statement of the facts the affiant
knows regarding the adoption, rather than mere conelnsory statements as to the existence of
adoption. Information contained in

an

an affidavit should not be disregarded simply because it appears to
be hearsay. In administrative proceedings that fact merely affects
the weight to be afforded such evidence. In addition, there is an
exception to the hearsay rule on behalf of statements as to
pedigree and family history made by (1) relatives or (2) members of
the same community. Along the same line, affidavits executed by

counsel would have little, if any, probative value. Photographs
should be positively identified and verified under oath.
The affidavits and photographs contained in the file before us
appear to be unobjectionable. We shall remand this matter to the
District Director, however, so that petitioner will be afforded an
opportunity to explain the discrepancies noted above and to
establish that there was, in fact, a valid adoption of the beneficiary, and so that a new order can then be entered by the District
Director.
ORDER: The case is remanded to the District Director for
further proceedings consistent with the foregoing decision.

152


Interim Decision #2877

MATTER OF AIYER
In Adjustment of Status Proceedings
A-22210207
Decided by Regional Commissioner June 17, 1981

(1) Since the dependent of a principal alien ,derives benefits from the principal alien,
an applicant for adjustment of status under section 13 of the Act of September 11,
1951 (71 Stat. 642), 8 U.S.C. 1255(b), is ineligible for section 13 benefits if he/she
is the dependent of a principal alien ineligible for such benefits.
(2) Where an applicant for adjustment of status under section 13 of the Act of September
11, 1957, was admitted under metiers 101(a)(15)(0)(i) of the luunigration and Nationality Act, 8 U.S.C. 1101(aX15)(G)(i), as the inunediate family member of a principal alien
admitted under section 101(aX15)(G)(0 of the Act, 8 U.S.C. 1101(a)(15)(G)(i), and the
principal alien is ineligible for section 13 benefits because he/she did not fail to maintain
his/her section 101(a)(15)(Glfi1 status while remaining in the United States, the appli
cant is ineligible for section 13 benefits.
-

ON BEIIALF OF APPLICANT: Pro as

This matter is before the Regional Commissioner on certification from
the District birector, who denied the application on the ground that the
applicant is ineligible for the benefits of section 13 of the Act of September 11, 195'7, since his status is dependent on the principal alien who is
not eligible for the benefits of section 13 of the Act of September 11,
1957.
The applicant is a 28-year-old native and citizen of India. He was
admitted to the United States on September 1, 1975, under the provision of section 101(a)(15)(G)(i) of the Immigration and• Nationality Act, 8
U.S.C. 1101(a)(15)(G)(i). The applicant's admission was based on the
fact that he was an immediate family member (son) of the First Secretary of the Permanent Indian Mission to the United Nations who was
the principal alien admitted pursuant to section 101(a)(15)(G)(i) of the
Act, S U.S. C. 1101(a)(15)(G)(i). The record indicates that the applicant's
father served as First Secretary to the Permanent Indian Mission to the
United States from the date of his admission to the United States on
April 15, 1973, until he was transferred in his employment with the
Indian Diplomatic Corps to the position of Indian Ambassador to Laos
on September 1, 1976.
98

Interim Decision #2877
The record of proceedings indicates that the applicant has remained in
the United States continuously since the transfer of his father, except
for two departures pursuant to the advance parole procedure of section
212(d)(5) of the Act during December 1977 and July 1978. The instant
application was filed on Decemb:r 28, 1976, accompanied by a Record of
Sworn Statement in support of the request for permanent resident status.
The sworn statement indicates that the applicant is a Ph.D. student at
the Wharton Applied Research Center, University of Pennsylvania.
The applicant stated that after he obtains his Ph.D. he expects to be
employed in an International Bank in New York City.
To qualify for the benefits of section 13 of the Act of September 11,
1957, the applicant must establish the following:
1. He is a person of good moral character.
2. He is admissible to the United States for permanent residence under the Inunigradon and Nationality Act.
3. He has executed and submitted the written waiver required by section 247(b) of the
Act, 8 U.S.C. 1257(b), and 8 C.F.R. 245.1(c).
4. He is prime fade ineligible for adjustment of status to that of a lawful permanent
resident under another provision of the law.
5. His adjustment to lawful permanent resident status would not be contrary to the
national welfare, safety, or security.
6. He must have been admitted to the United States under the provisions of either
section 101(a)(15XA)(i), or (ii), or 101(a)(15)(G)(i), or (ii) of the Act, 8 U.S.G.
1101(aH15XA)(i), or (ii), 8 U.S.C. 1101(a)(15)(G)(i), or (ii).
7. He must have performed diplomatic or semi-diplomatic duties or have been an framecliate family member of a principal alien who performed diplomatic or semi-diplomatic

duties. (Duties of a custodial, clerical, or manual nature are not qualifying).
8. He must have failed to maintain status under the provisions of either section
101(a)(15)(AXi), ar (ii), or 101(a)(15XG)0), or (ii) of the Immigration and Nationality
Act, 8 U.S.C. 1101(a)(15)(A)(i) or (ii), or 8 U.S.C. 1101(a)(15)(G)(i) or (ii).

In addition to the requirements set forth above, the Service is responsible for consulting with the Secretary of State and furnishing that office
the necessary information concerning the section 13 applicant. The Secretary of State will in turn furnish the Service information concerning
the applicant's classification and employment, and a statement whether
they have any objection to the granting of the alien's application for
adjustment of status under section 13.
The record indicates that the applicant has satisfied the requirements
of items one through seven above. We find that the requirement of item
eight above has not been met. The Secretary of State, upon consultation,
has indicated that he has no objection to the granting of permanent
resident status. However, in a letter dated January 28, 1978, the Secretary of State advised this Service of the following
According to information in this Department relating to INS regulations concerning adjustment under Sec. 13, a dependent is not entitled to consideration unicee the
principal is applying for adjustment under Sec. 13. From the information provided, Mr.
Srinivasan's father had departed the United States and did not apply for adjustment of
99

Interim Decision #287'7
status under Sec. 13. Therefore, we do not believe the applicant is entitled to apply
under this provision of the law. .
We concur in the conclusion reached by the Secretary of State. In the
instant case the applicant was admitted under the provisions of section

101(a)(15)(G)(i) of the Act, 8 U.S.C. 1101(a)(15)(G)(i), as an immediate
family member of the principal alien. 22 C.F.R. 41.1 defines the terms
"principal alien" and "immediate family" as follows:
Principal alien. "Principal alien" means an alien from whom another alien derives a

privilege or status under the laws or regulations.
Immediate family. "Immediate family", as used in sections 101(a)(15)(A), I01(a)(15)(G)

. means close relatives who are members of the immediate family by blood, marriage,
or adoption, who are not members of some other household and who will reside regularly in the household of the principal alien.
Prior to arriving at our conclusion, we reviewed each of the four
precedent administrative decisions relating to section 13 proceedings. A
similar Situation arose in Matter of Penaherrera,13 I&N Dec. 334 (BIA
1969). In Matter of Penaherrera, supra, the father of the applicants
officially terminated his position as Counsel General at San Francisco,
California, on July 8, 1953. He had been admitted to the United States
under the provisions of section 101(a)(15)(A)(i) of the Immigration and

Nationality Act, as amended, 8 U.S.C. 1101(a)(15)(A)(1). After his position was .officially terminated on July 8, 1053, he remained in the United
States until the summer of 1956 when he departed for San Salvador, El
Salvador. The applicants (daughters of the principal alien) remained in
the United States continuously since their admission and were found to
be eligible for the benefits of section 13 in that their status was dependent on the principal alien and the principal alien failed to maintain his
status from July 8, 1953, until his departure from the United States
during the summer of 1956.
The instant case is distinguished from the Matter of Penaherrera,
supra, in that the principal alien did not fail to maintain his status,
therefore, he was never eligible for the benefits from the principal alien,
he is ineligible for the benefits of section 13 of the Act of September 11,
1957. Accordingly, the decision denying the application will be affirmed.

IT IS ORDERED:

that the decision of the District Director be

hereby affirmed.

100


3iAtILR OF

C—M--

In DEPORTATION Proceedings
A-12637405
Decided by Board September 28, 1961
Conviction—Juvenile offender under California law.
Under California law there is no mandatory requirement that a minor under
18 years of age shall be tried in a juvenile court. Where the record establishes that in 1960 respondent was tried and convicted in the Superior
enTirt of California for the offense of kidnaming. committed prior to his
18th birthday, his "conviction" precludes his establishing good moral character under section 101(f) (3) of the Act.

Csesaz:
Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable
at time of entry, no immigration visa.

BEFORE THE BOARD

DISCUSSION: The respondent appeals from an order entered by
the special inquiry officer July 12, 1961, directing his deportation
as an alien excludable at the time of entry in that he did not possess
an immigration visa (8 U.S.C. 1251(a) (1) ; section 13(a) of the
Act of May 26, 1924). Deportahility on the stated charge is conceded. Exceptions have been taken to the finding that the respondent is statutorily ineligible for discretionary relief in that
he is precluded from establishing his good moral character under
the provisions of section 101(f) (3) of the Immigration and Nationality Act (8 U.S.C. 1101(f) (3) ).
The record relates to a national and native of Mexico, male, unmarried, 18 years of age, who last entered the United States through
the port of San Ysidro, California, on July 28, 1947. He was 4
years of age and accompanied his citizen mother. The citizen
mother testified that 3 of her minor alien children were permitted
to enter without documents with the understanding that their immigration status would be adjusted at a later date. The evidence
of record affirmatively establishes the respondent's deportability on
the charge stated in the order to show cause.
487

The respondent has applied for voluntary departure in lieu of
deportation. The special inquiry officer has denied the respondent's
application on the ground that he is precluded from establishing
good moral character under the provisions of section 101(f) (3)
of the Immigration and Nationality Act in that he _was convicted
of a crime involving moral turpitude on November 25, 1960, to wit,
kidnapping. The record establishes that the respondent, born on
November 7, 1942, was 17 years of age at the time the offense was
committed on August 20, 1960.He was committed to the California Youth Authority and was released on parole on March 29,
1961.
Counsel takes no issue with the finding that the offense of kidnapping, as defined by the California Penal Code, involves moral
turpitude. He does take issue with the finding that under the law
of California the respondent has been convicted of a criminal
offense. Counsel urges that since the respondent was under the age
of 18 years at the lime the uffeiise
euninillted lie was subject to
sections 825, 826 and 833 1 of the Welfare and Institutions Code
of the State of California, and that proceedings under these sections
are not criminal.
We agree with the special inquiry officer that "the case is an appealing one for the grant of the discretion requested." We find no
authority, however, for counsel's claim that the respondent was convicted in the instant case as a juvenile offender. The record establishes that the respondent was convicted in the Superior Court of

the State of California in and for the County of Santa Clara. The
judgment of conviction states, inter alia, that the respondent was
18 years of age when apprehended on November 21, 1960.
The California statutes here under consideration (see Appendix)
are not mandatory since they provide, in substance, that a defendant under the age of 18 years at the time the offense is committed
may be tried by a Superior Court, unless his age "is suggested or
appears to the judge" to be under 18 years. The California courts
have held that it is not a jurisdictional requirement of the statutes
that a minor under 18 years of age shall be tried in a juvenile court.
People v. Luzovich, 16 P.2d 144, 145; 127 Cal. 465, Nov. 14, 1932.
We find no merit to counsel's argument that the proceedings against
the respondent in the Superior Court of California should be regarded as one of a. noncriminal nature. The appeal will be dismissed
ORDER: It is directed that the appeal be and the same is hereby
dismissed.
Sections 825, 820 and 833 of the Welfare and Institutions

Code

or the

State of California are set forth in the Appendix, attached to this opinion.

488

APPENDIX

The Welfare and Institutions Code of the State of California :
Section 825. No court shall have jurisdiction to try the case of any person under the age of 18 years at the time of the alleged commission of a
public offense or crime unless the matter has first been submitted to the
juvenile court by petition as provided in Article 7 of this chapter, or by
certificate of any other court as provided in this Article, and said juvenile
court has made an order therein directing that such person be prosecuted
under the general law.
Section 826. Whenever a deposition, complaint, indictment or information
is filed in any court charging a person with a crime, and it is suggested or
appears to the judge, justice or recorder before whom such person la brought
that the person charged was, at the date the offense is charged to have been
committed, under the age of 18 years, such judge, justice or recorder shall
immediately suspend all proceedings against such person on said charge. He
shall examine into the age of such person, and if, from such examination, it
appears to his satisfaction that such person was at the date the offense was
alleged to have been comtidtted under the age of 18 years he shall forthwith
certify it to the juvenile court of the county • * S.
Section 838. Whenever a person is accused of crime in the Superior Court
by indictment or information, and it is suggested or appears to tee court mat
the person was under the age of 18 years at the time the offense is alleged to
have been committed, the Court shall suspend the proceedings on the charge
and shall recess as a criminal court and reconvene as a juvenile court. If
there are two or more judges in the same Superior Court, and the action is
brought before a judge other than a juvenile court judge, the case shall be
transferred from the department in which it is to the department of a juvenile
court judge. The juvenile court shall hear and dispose of the case In the
same manner and with the saint powers as if the case had been transferred
thereto from a court other flan the Superior Court.

489


Interim Decision #174&

MATors MoarmA

In Visa Petition Proceedings
A-17096264
Deoidedby Board June 20,1987
The mere recording of the name of a child born out of wedlock in the same
family register as that of the putative father does not constitute legitimation
in Japan since under Japanese law a child born out of wedlock can only be
legitimated by the subsequent marriage of the parents and the acknowledgment of parentage, with the entry of both the marriage and the acknowledgment into the official family register.
On BEE= or PLVITIONINI: Robert D. Beall, Esquire
622 Delaware Street

Leavenworth, Kansas 66048

The case comes forward on appeal from the order of the Officer in
Charge, Tokyo, Japan, dated March 15, 1967 denying the visa petition
for the reason that the beneficiary, the putative father of the petitioner,
and Tomoe Kato, the mother of the beneficiary, were never married,
the petitioner cannot qualify as a child under section 101(b) (1) (C)
and the petition must therefore be revoked.
The petitioner, a native of Japan, a naturalized citizen of the United
States, 87 years old, female, seeks immediate relative status on behalf
of the beneficiary as her parent. The beneficiary is a native and citizen
of Japan, 82 years old, male. The visa petition was originally approved.
for immediate relative status on July 12, 1986.
The file contains an adjudicated basis for decision dated March 15,
1967. An investigation was conducted in connection with the beneficiary's application for a waiver of the grounds of excludability for
convictions of abducting a minor for profit (prostitution) in 1987,
three convictions in 1952 and 1953 for introducing girls into prostitution as well as several other arrests. The application for the waiver of
the grounds of excludability was based upon the relationship of father and daughter between the beneficiary and the petitioner. Action
on the waiver was held in abeyance pending determination of the
true nature of the alleged relationship.
265

Interim Decision

4* 1 7 4 3

The beneficiary appeared for questioning at the Tokyo Immigration Office on March 2, 1967. He presented a corrected official Japanese
family register which shows him as the father of Kimilto the petitioner, born out of wedlock to an unwed mother, Tomoe kato. The
beneficiary admitted there was no marriage or official register of marriage to his daughter's mother, Toinoe Kato. He stated that he was
aware that common law relationships are not recognized as valid marriages under Japanese law and no marriage ceremony or common law
relationship is of any validity in Japan unless the marriage is formally
recorded in the official Japanese family register. Under both the old
and new Civil Code of Japan, a father's acknowledgment of a child
on the family register does not constitute legitimation. The Japanese
Ministry of Justice was consnited and advised that under Japanese
Civil Code (Law #222, amended 1917), a child born out of wedlock
can only be legitimated by the marriage of the parents with this marriage and the acknowledgment of parentage of the child being entered
in the Official family register.
This interrogation of the beneficiary was initiated by an interview
of the petitioner, at Fort Leavenworth, Kansas on February 7, 1967
during the course of which she stated that her parents were not married; that she started living with her paternal grandparents at the

time of her birth and that she actually never did live with her father
and mother. She believes the mother left her when she was about two
years old.
The record establishes that the petitioner was born out of wedlock
and is not the legitimate child of the beneficiary, her putative father.
The beneficiary has admitted that he was never married to the mother
of the petitioner. The fact that the petitioner's name is recorded in
the same family register as that of the beneficiary does not constitute legitimation. Under Japanese law there must be the subsequent
marriage of the parents, acknowledgment of parentage, and entry
into the official family register. The family register which was submitted by the beneficiary does not indicate that the petitioner's parents were ever married. Inasmuch as the beneficiary does not qualify
as a "parent" as defined in section 101(b) (2), since none of the cireumstances described in section 101(b) (1) of the Immigration and
Nationality Aot apply, he is not eligible for immediate relative status
as the parent of a United States citizen.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

266


Cite as 26 I&N Dec. 757 (BIA 2016)

Interim Decision #3864

Matter of M-H-Z-, Respondent
Decided June 9, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The “material support bar” in section 212(a)(3)(B)(iv)(VI) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2012), does not include an implied
exception for an alien who has provided material support to a terrorist organization under
duress.
FOR RESPONDENT: Anne Pilsbury, Esquire, Brooklyn, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Attorney

Anne Gannon, Senior

BEFORE: Board Panel: GUENDELSBERGER and MALPHRUS, Board Members;
GELLER, Temporary Board Member.
GELLER, Temporary Board Member:

This case was last before us on May 24, 2010, when we dismissed the
respondent’s appeal from an Immigration Judge’s July 28, 2006, decision.
We agreed with the Immigration Judge that the respondent was barred from
seeking relief from removal based on her claim of past persecution because
she had committed an act that she knew or reasonably should have known
afforded material support to a terrorist organization. On September 8,
2014, the United States Court of Appeals for the Second Circuit remanded
the case for us to determine whether the statutory bar contains an implied
exception for material support that was supplied under duress. Hernandez
v. Holder, 579 F. App’x 12 (2d Cir. 2014). Both parties have filed briefs in
response to the Second Circuit’s remand order. Upon consideration of this
question, we conclude that there is no duress exception to the “material
support bar.” The respondent’s appeal will again be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Colombia who entered the
United States in 2001 as a nonimmigrant visitor and subsequently sought
asylum. The basic facts of her case are not in dispute. The respondent
bases her claim for relief on her fear of the Revolutionary Armed Forces of
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Colombia (“FARC”) in Colombia. She was a successful businesswoman
who owned a hotel and a store in the town of El Bordo. In the early 1990’s
she began receiving notes and messages from the FARC demanding goods
and money. After the FARC made a number of threats, the respondent
acceded to the demands and began to provide merchandise from her store.
Every 3 months from 1997 to early 1999, she supplied foodstuffs and other
products that the FARC requested. She also housed government officials at
her hotel, which she believes resulted in more serious threats being made in
1999. On March 7, 2000, the FARC attacked El Bordo, and her store and
hotel were destroyed.
The respondent was admitted to the United States on June 22, 2001, and
applied for asylum in 2002. On August 22, 2002, the Department of
Homeland Security (“DHS”) issued a notice to appear, charging the
respondent with removability as an overstayed nonimmigrant.
At a hearing before the Immigration Judge, the respondent conceded
removability and applied for asylum and withholding of removal under
sections 208(a)(1) and 241(b)(3)(A) of the Immigration and Nationality
Act, 8 U.S.C. §§ 1158(a)(1) and 1231(b)(3)(A) (2000). She also applied
for withholding of removal and deferral of removal under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res.
39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708
(1984) (entered into force June 26, 1987; for the United States Apr. 18,
1988) (“Convention Against Torture”). The Immigration Judge denied her
applications for asylum and for withholding of removal under the Act and
the Convention Against Torture, finding that the respondent was barred
from relief because she had committed an act that she knew or reasonably
should have known afforded material support to a terrorist organization.
The Immigration Judge also determined that the respondent had not
established eligibility for deferral of removal under the Convention Against
Torture pursuant to 8 C.F.R. § 1208.17 (2006).
On appeal, we agreed with the Immigration Judge that the respondent
was subject to the mandatory material support bars to asylum and
withholding of removal in sections 208(b)(2)(A)(v) and 241(b)(3)(B)(iv) of
the Act and to withholding of removal under the Convention Against
Torture pursuant to 8 C.F.R. § 1208.16(d)(2) (2010). We also agreed with
the Immigration Judge that the respondent had not established eligibility for
deferral of removal under the Convention Against Torture. However, we
remanded the record for the Immigration Judge to make an explicit
determination whether, in the absence of the material support bar, the
respondent would otherwise be eligible for relief, which would allow her to
request a discretionary waiver of the material support bar from the DHS.
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In a decision dated December 13, 2010, the Immigration Judge held
that, but for the material support bar, the respondent would be eligible for
asylum based on her past persecution by the FARC. 1 The respondent filed
a petition for review with the Second Circuit, which issued a summary
order granting the respondent’s petition in part and denying it in part. In
particular, the court agreed that the support the respondent provided to the
FARC was “material” because it aided the terrorist organization in its fight
against the Colombian Government and that this support was not de
minimis. Therefore the question whether the respondent provided material
support to a terrorist organization is no longer at issue. However, the
Second Circuit has remanded for us to determine whether the statute
contains an implied exception to the material support bar for aliens whose
support was supplied under duress.

II. ISSUE
The question before us is whether the “material support bar” in section
212(a)(3)(B)(iv)(VI) of the Act, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2012),
includes an implied exception for an alien who has provided material
support to a terrorist organization under duress.

III. ANALYSIS
The respondent has not challenged the Immigration Judge’s factual
findings regarding the circumstances surrounding her support to the FARC,
but she argues that she was not accountable for her actions because she was
under duress, namely the threat of death. She therefore asserts that she
should be exempt from the provisions of the “material support bar.” We
disagree.
Section 212(a)(3)(B)(iv)(VI) of the Act defines the term “engage in
terrorist activity” to include a person who
commit[s] an act that the actor knows, or reasonably should know, affords material
support, including a safe house, transportation, communications, funds, transfer of
funds or other material financial benefit, false documentation or identification,
weapons (including chemical, biological, or radiological weapons), explosives, or
training [to a terrorist organization or for a terrorist activity.]

(Emphasis added.) An alien who has engaged in terrorist activity is
inadmissible under section 212(a)(3)(B)(i)(I) of the Act and is barred from
1

The DHS has not appealed that determination by the Immigration Judge.

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establishing eligibility for asylum and for withholding of removal under
the Act and the Convention Against Torture. Sections 208(b)(2)(A)(v),
241(b)(3)(B)(iv) of the Act; 8 C.F.R. § 1208.16(d)(2); see also Matter of
S-K-, 24 I&N Dec. 289, 290 (A.G. 2007; BIA 2006). Thus, under these
provisions, any alien who has provided material support to a terrorist
organization is subject to the “material support bar.” Ay v. Holder, 743
F.3d 317, 319 (2d Cir. 2014). However, a question remains whether the bar
includes an exception for aliens whose support was provided under duress.
The Federal circuit courts that have addressed this issue in a precedent
decision have all held that the material support bar does not include an
implied exception for aliens who provided material support to a terrorist
organization under duress. See Sesay v. Att’y Gen. of U.S., 787 F.3d 215,
224 (3d Cir. 2015) (holding that “the material support bar does not
distinguish between voluntary and involuntary support”); Annachamy
v. Holder, 733 F.3d 254, 267 (9th Cir. 2013) (stating that “the material
support bar does not include an implied exception for individuals . . . who
provide support under duress”), overruled on other grounds by Abdisalan
v. Holder, 774 F.3d 517, 526 (9th Cir. 2014); Alturo v. U.S. Att’y Gen.,
716 F.3d 1310, 1314 (11th Cir. 2013) (finding that because the material
support bar contains no express duress exception, the Board reasonably
declined to recognize one, and noting that “every circuit that has addressed
the issue has concluded that there is no implied exception to the material
support bar for support given involuntarily or under duress”); Barahona
v. Holder, 691 F.3d 349, 355 (4th Cir. 2012) (“Put simply, the terms of the
Material Support Bar encompass both voluntary and involuntary support
and, like those of the Crewman Bar, fail to provide for the [duress]
exception under which Barahona seeks relief.”). However, the Second
Circuit has remanded for us to decide the question “in the first instance in
light of [our] own expertise.” Ay, 743 F.3d at 320 (quoting Negusie
v. Holder, 555 U.S. 511, 517 (2009)).
As the Second Circuit observed in Ay, the Supreme Court addressed the
question whether the “persecutor bar” contains a duress exception in
Negusie, 555 U.S. at 518, and determined that statutory silence with respect
to duress is not conclusive of the issue. 2 According to the Second Circuit,
“Like the provision addressed in Negusie, the plain language of the material

2

In Negusie, the Supreme Court considered whether the “persecutor bar” in sections
208(b)(2)(A)(i) and 241(b)(3)(B)(i) of the Act prohibits a grant of asylum or withholding
of removal to a refugee who was compelled against his will by credible threats of death
or torture to assist or participate in acts of persecution. Whether a duress exception
applies to the persecutor bar is distinct from the issue we address in this case.

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support bar is inconclusive as to whether a duress exception is implicit in
its terms; the statute is silent on the question.” Ay, 743 F.3d at 320.
Because the statute is unclear in this respect, we look to “the language
and design of the statute as a whole” to determine its legislative purpose.
K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). In this regard, we
note that the statute renders inadmissible any alien “who is or has been a
member of or affiliated with the Communist or any other totalitarian party,”
but Congress created an explicit exception for an alien who establishes
that “the membership or affiliation is or was involuntary.” Section
212(a)(3)(D)(i)−(ii) of the Act. It is a well-known canon of statutory
construction that “[w]here Congress includes particular language in one
section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” INS v. Cardoza-Fonseca, 480 U.S. 421,
432 (1987) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). If
Congress intended to make involuntariness or duress an exception for aliens
who provided material support to a terrorist organization, it would
reasonably be expected to have enacted a provision similar to that in section
212(a)(3)(D)(ii) of the Act. See Sesay, 787 F.3d at 222−23; Annachamy,
733 F.3d at 260; Alturo, 716 F.3d at 1314. 3
The assertion that a duress defense should be read into the material
support bar in section 212(a)(3)(B)(iv)(VI) of the Act is also undermined
by the fact that Congress has created a waiver for deserving aliens to avoid
the consequences of the bar. 4 Specifically, the waiver provision at section
212(d)(3)(B)(i) of the Act provides in pertinent part:
3

The courts have also noted that Congress’s explicit exception to the material support
provision in section 212(a)(3)(B)(iv)(VI)(dd) of the Act for aliens who demonstrate a
lack of knowledge that the organization was a terrorist organization “is some indication
that it would have likewise expressly excepted involuntary support if it intended to do
so.” Annachamy, 733 F.3d at 260; see also Sesay, 787 F.3d at 222.
4
Although the waiver provision was enacted well after the material support bar, it is
evidence of earlier congressional intent. Annachamy, 733 F.3d at 262 n.8. The waiver’s
significance is reflected in Congress’s subsequent addition of annual reporting
requirements with respect to the number of duress waivers sought and the factors to be
considered when evaluating them. See id. at 263. Moreover, Congress demonstrated its
ability to distinguish between voluntary and involuntary conduct by adding a provision
preventing aliens who voluntarily supported or received training from certain terrorist
organizations from obtaining a waiver. See Sesay, 787 F.3d at 223−24 (“Given that the
2007 Amendments discussed duress waivers and voluntariness, and required reporting on
persons removed for having provided material support under duress, Congress clearly
legislated on the premise that the material support bar otherwise applied to support given
under duress.”).

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The Secretary of State, after consultation with the Attorney General and the
Secretary of Homeland Security, or the Secretary of Homeland Security, after
consultation with the Secretary of State and the Attorney General, may determine in
such Secretary’s sole unreviewable discretion that [section 212(a)(3)(B) of the Act]
shall not apply with respect to an alien within the scope of that subsection [subject to
various specified exceptions]. 5

We previously addressed this waiver in Matter of S-K-, 23 I&N Dec.
936, 941 (BIA 2006), where we held that there is no exception to the
material support bar for the use of justifiable force against an illegitimate
regime. We stated there that the inclusion of the waiver was a means of
balancing the harsh provisions of the material support bar and an indication
that Congress’s omission of ameliorative provisions in section 212(a)(3)(B)
of the Act was intentional.
Congress’s enactment of the waiver similarly indicates that the omission
of any duress exception was intentional. Thus, as we noted in Matter of
S-K-, the only remedy for an alien who has provided material support to a
terrorist organization “appears to lie in the waiver afforded by Congress for
this purpose.” Id. at 942. Congress’s decision to provide a waiver, but to
allow no exception for involuntariness or duress, should therefore be given

5

The Immigration Judges and the Board do not have the authority to adjudicate this
discretionary waiver, which was accorded to the Secretary of State to exercise prior to the
initiation of removal proceedings and to the Secretary of Homeland Security to exercise
at any time, but only upon consultation with the Attorney General. The United States
Citizenship and Immigration Services (“USCIS”) issued a fact sheet describing the
process by which the Secretary of Homeland Security exercises the authority to grant a
waiver. See USCIS Fact Sheet, “Department of Homeland Security Implements
Exemption Authority for Certain Terrorist-Related Inadmissibility Grounds for Cases
with Administratively Final Orders of Removal” (Oct. 23, 2008), https://www.uscis.gov
/sites/default/files/USCIS/News/Pre-2010%20-%20Archives/2008%20Press%20Releases
/Oct%2008/DHS_implements_exempt_auth_certain_terrorist_inadmissibility.pdf. This
guidance indicates that the Secretary has given the USCIS authority, in consultation with
U.S. Immigration and Customs Enforcement, to grant such waivers on a case-by-case
basis to aliens who fall within particular categories of cases.
For the USCIS to consider granting such a waiver, it must first be shown that the alien
is seeking an immigration benefit or protection for which he or she has been determined
to be otherwise eligible. See Interoffice Memorandum from Jonathan Scharfen, Deputy
Dir., Office of the Dir., to DHS officials (May 24, 2007), https://www.uscis.gov/sites/
default/files/files/pressrelease/MaterialSupport_24May07.pdf. Therefore, consistent with
this waiver scheme, Immigration Judges should ordinarily determine first whether an
alien is otherwise eligible for the benefit or protection sought. Only if it is determined
that the alien is otherwise eligible would it be necessary or appropriate to consider
whether the material support bar applies.

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deference. 6 See Annachamy, 733 F.3d at 264 (stating that “we should defer
to Congress’ chosen method to try to strike the correct balance between the
United States’ humanitarian obligations and national security”).
According to the respondent, a conclusion that no duress exception to
the material support bar exists would necessarily lead to results that are
inconsistent with our treaty obligations, including the duty of
nonrefoulement. While we agree that the provisions of the Act should
generally be read consistently with our international obligations to the
extent they are not in conflict with governing law, we are not persuaded
that any inconsistency exists here. See Annachamy, 733 F.3d at 266
(observing that under international law, “Congress is free to decide that an
alien who provided material support to a terrorist organization, even if
under duress, is a danger to the security of the United States”); Khan
v. Holder, 584 F.3d 773, 784 (9th Cir. 2009) (stating that the definition of
“terrorist activity” in the Act “not only does not violate the [1967 United
Nations Protocol Relating to the Status of Refugees], but adheres to its
specific non-refoulement exception”). 7
The respondent also asserts that because duress may be a defense to
negate culpability in the criminal context, an exception for duress should
similarly apply to the material support bar. We find this argument to be
misplaced because, unlike criminal proceedings, immigration proceedings
are civil in nature. See, e.g., Negusie v. Holder, 555 U.S. at 526 (Scalia, J.,
concurring) (stating that the duress defense in criminal cases is inapplicable
to the interpretation of the asylum statute’s persecutor bar, because an
“order of deportation is not a punishment for a crime”) (quoting Fong Yue
Ting v. United States, 149 U.S. 698, 730 (1893)). See generally Mehboob
v. Att’y Gen. of U.S., 549 F.3d 272, 277 n.3 (3d Cir. 2008) (stating that
immigration statutes need not “encompass separate statutory or common
law defenses that are available to a criminal defendant”); Dor v. District
Director, INS, 891 F.2d 997, 1003 (2d Cir. 1989) (observing that a
deportation proceeding “is not a criminal proceeding . . . and the full
trappings of legal protections that are accorded to criminal defendants are
6

The Second Circuit expressed concern about the lack of any “published process” for
seeking a waiver when discussing its reasons for remanding in Ay, 743 F.3d at 321.
However, the efficacy of the administration of the waiver does not bear on Congress’s
intent and is a matter outside of our authority.
7
Our treaty obligations under the Convention Against Torture are different from those
implicated in our assessment of the material support bar to asylum and withholding of
removal under the Act. The material support bar does not preclude deferral of removal
under the Convention Against Torture pursuant to 8 C.F.R. § 1208.17. However, we
previously affirmed the Immigration Judge’s denial of such protection in this case, and
the respondent has not further challenged that aspect of the Immigration Judge’s decision.

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not necessarily constitutionally required in deportation proceedings”).
Moreover, the argument that a duress exception must necessarily be
implied is undercut by the fact that, even in criminal cases, duress is not
always a defense. See Annachamy, 733 F.3d at 260 n.6 (stating that the
criminal law concept of “duress does not excuse the majority of acts listed
in the definition of ‘terrorist activity,’” such as murder).
In drafting the terrorism bar for providing material support, Congress
gave no indication that it intended to narrow the statutory definition by
including an implied exception for duress or coercion. See Matter of S-K-,
23 I&N Dec. at 941 (finding that “Congress intentionally drafted the
terrorist bars to relief very broadly, . . . and it did not intend to give us
discretion to create exceptions”). Accordingly, we hold that the material
support bar in section 212(a)(3)(B)(iv)(VI) of the Act includes no exception
for duress. See Sesay, 787 F.3d at 224 (“To read the statute in any other
way . . . would contravene unambiguous legislative intent.”). Therefore,
absent a waiver, an alien who affords material support to a terrorist
organization is inadmissible and statutorily barred from establishing
eligibility for asylum and for withholding of removal under the Act and the
Convention Against Torture, even if such support was provided under
duress.
The Second Circuit has affirmed our determination that the respondent
“provided material support to a terrorist organization” based on her credible
testimony that she supplied goods to the FARC. Because Congress did not
include an implied duress exception to the material support bar, we agree
with the Immigration Judge that the respondent is barred from eligibility for
relief from removal, even though she established that she did not
voluntarily provide material support to the FARC. Accordingly, the
respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

764


Interim Deeislon #1487

MATI211 OF EsTRADA-11/10y.ENA,
:131

Deportation ProCeedingi
• 'A-10551015
A-10551431a

Dookleelby ifocird June 11, 1966
The special inquiry Gower nag authority-in deportation proceedings to grant A.
mow pro tone waiver of the passihrt requirement under section. 211(e), 7.m,
migration and Nationality Act,
Onsium• •
Order: ACV of 1852—Section 241(6)(1) (8 17.8.d. 1251(a) (1)]—Excludable••
as immigrant not in possession of valid unexpired,
passport (ad to each respondent)

-;:
The respondents; a sister and brother, 18 and 11 years of age re-,
spectivelYiere natives and citizens of Mexico. They haiebeen found.
deportable se aliens who .were excludable at the time of their entry
as immigrants not in possession of valid unexpired passports and
not exempt from the possession thereof by said Act or regulations
made thereunder pursuant to section 212(a) (20) of the Immigration
and Nationality Act. An order entered by the special inquiry officer ,
on.April 7, 1965 grants a walver,of the passport requirement, 1111414,
pro tune, as of the time of their admission to the 'United S4tes.for,
permanent residents at El Paso, Texas, on April 23, 1956. "The order
terminated. the proceedings and certified the case to the Board of
Immigration Appeals for final decision.

The respondents were issued immigration visas in 1956 as a ie.sult
of a scheme evolved. by their parents to enter the United States for'
permanent residence. The mother of the respondents obtained. birth.'
records relating to one Micaela Moreno who was born in Ontario,
California. The American Consul•at Afarez, Mexico, issued the respondents and their father immigration visas for permanent residence and they were admitted as immigrants at El Paso, Texas On

4-p41•2a,.1956. The Piissport requirement was waived by the consul
in accordance with the proitisioos of 22 CFR 42.36.

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interim 'Decision 4t1487
The evidence establishes that the two respondents were admitted
on April 23, 1956, as immigrants upon a. waiver of the passport requirement pursuant to 8 OFR 211.2, which waiver was granted to
them as a result of the misrepresentation that their mother was a

United States citizen when in fact she was not a citizen of the United
States. The evidence also establishes that the respondents were excludable on April 23, 1956, as aliens who were immigrants not in
possession of a valid unexpired passport or other suitable travel
document. We affirm the finding of the special inquiry officer that
the respondents are deportable as charged in their respective orders
to show cause.
The respondents have applied for a waiver, Irmo pro tune, of the
passport requirement (Exhs. 12 and 13). • Section 211(e) of the immigration and Nationality Act requires that every immigrant must
present a valid unexpired passport if such document is required.
under thi%-regulations issued by the Attorney 'General. These regulations are found in 8 CFR 211.2. The regulation provides among
other things that the district director in charge of the port of entry
may grant a passport waiver where there is good. cause for failure to
present the required documents. The application for a waiver may
be presented. to the special inquiry officer during an exclusion proceeding in the event the district director should refuse to grant a
waiver .of the passport requirement (8 CFR 235.7). Accordingly
under 8 CFR 235.7 the special inquiry officer does have authority to •
consider an application for a waiver of the passport requirement
where such application is made during the course of an. exclusion

hearing. The special inquiry officer is of the opinion that since a deportation charge under section 241(a) (1) of the Act is in effect a 'delayed
exclusion proceeding and reaches all those who manage to enter the
United States in violation of the excluding provisions of the law he
may entertain and consider an application for a waiver of the passport requirement, nuns pro tune, with reference to
date when the
alien was admitted to the United States as an. immigrant and at
-.which time he was not in possession of the required passport. The
special inquiry officer relies upon 8 CFR 242.17(d),1 for the authority to grant said waiver. We agree with the special inquiry officer
that he has authority to grant the relief requested by the

respondents.
CFR 242.17(d) reads as follows: "Nothing contained herein is intended

to foreclose the respondent from applying for any benefit or privilege which he
believes himself eligible to receive in proceedings under this part."

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Interim Decision #148T
The trial attorney is of the opinion that _the special inquiry officer
does not have authority to grant the waiver provided by section.
211(e), none pro tuna The trial attorney argues that since the respondents did not have the relationship to a United States citizen.
which would exempt them from presenting a passport this deficiency
cannot be cured by ii/UTIV pro how action. The trial attorney maintains that a Rune pro taw order should correct the record to state•
the facts as they existed at the time of the respondents' entry for
permanent residence in 1956. It is argued that the respondents are
unable to avail themselves of the benefits under the law which
existed at the time of their entry because they were excludable under
the' provisions of section 212(a) (15) as aliens likely to became a
public charge.
We find no basis for the exceptions raised by the trial attorney.
There is no evidence that the respondents were ineligible for nonquota immigration visas at the time of their entry in 1956. Con- .
cernigthaloferit'n3•haeywouldv
been inadmissible as aliens likely to become a public charge we note

that they have resided in the United States for nine years and have
not become public charges. 'Under 8 CFR 211.2(g) the burden is
upon. the respondents to establish that there is "good cause for failure to present the required document." Unfortunately the respondents were not children of a United States citizen but this misrepresentation on the part of their parents when they applied for the respondents' nonquota immigration visas should. not inure to the detriment of the respondents themselves. Under the regulations which
existed at that time 2 the consul did have the authority to waive the
passport requirment for a citizen of Mexico. We conclude that the
respondents have piesented good cause for failure to have obtained
the required Mexican passports and will affirm the grant of the
waivers of the passport requirement by the: special inquiry officer,
The regulation at that time read as follows:
"42.38 . . . (a) except as provided in paragraph (b) of this section, every
alien applying for an immigrant visa shall present to the consular officer a

Passport • • •
(b) . . . an immigrant within any of the following categories shall not be
required to present a passport in applying for an immigrant visa: . . .
(5) an immigrant who is the parent, spouse or unmarried son or daughter
under twenty one year's of age, of a 'United States citizen."
Following a requirement by Mexico that her antimatter have a passport when
departing from that country the regulation was amended in 1958 bg, adding the
following language to clause (5) :
"unless such immigrant is applying for a visa in the country of which he is a
national and the possession of a passport is required for departure from such
-

country."

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Interim Decision #1487

Rune pro tune. The order terminating the proceedings will be afMatter of G—, 6 I. & N. Dec. 9, 14.)
ORDER: It is directed that the order entered by the special in-

firmed (Cf.

quitr•officer on April 7, 1965, granting the respondents a waiver of
the passport requirement viuno pro tune as of t14+ time of their ad-

mission at El Paso, Texas, on April 23, 1956 as nouquota immigrants
and terminating this proceeding be and the same is hereby affirmed..

252 •