Interim Decision #1991

MATTER OF PENAHERRERA
In Adjustment of Status Proceedings
A-18497411
A-18497413
Decided by District Director. July 29, 1969
Since it has been established that applicants' father, because of his class of
admission and 11.i duties, would have been eligible for the benefits of section 13-of the Act of September 11, 1957 following termination of his diplomatic status, his loss of eligibility for such relief (having last entered
the United States as a visitor) does not disturb nor in any way affect the
eligibility for the benefits of section 13 of the Act of applicants, who have
remained in this country since their admission on January 25, 1953 under
section 101 (a) (15) (A) (i) of the Immigration and Nationality Act, as
amended, as his accompanying minor Children.

The applicants are two sisters, one twenty three and one
twenty five, both natives and citizens of Ecuador. They were last
admitted to the United States on January 25, 1953 under the provisions of section 101 (a) (15)A) (i) of the Immigration and Nationality Act, as amended, as the accompanying minor children of
Cesar F. Penaherrera, then Ecuadoran Consul General at San
Francisco, California.
The father of the applicants officially terminated his position as
Consul General at San Francisco, California on July 8, 1953. Mr.
Penaherrera left the United States for San Salvador in the summer of 1956. He was issued an immigrant visa by the American
Consulate in San Salvador, El Salvador on August 17, 1956 and
admitted to the United States for permanent residence on October 2, 1956. On May 2, 1958 the American Embassy, Guatemala
made a determination that he had lost his residence status in the
United States. Mr. Penaherrera was next admitted to the United
States at Miami, Florida on January 13, 1962 as a visitor for
pleasure until March 12, 1962. He left the United States to return to El Salvador on December 20, 1962 and the record does
not indicate that Mr. Penaherrera has ever returned to the
United States since his last departure.

334

Interim Decision * 1992

It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special.
inquiry officer's order.

PgQ


Interim Decision #2405

MATTER OF CHERY AND FIASAN
In Deportation Proceedings
A-20187285
A-19653626
Decided by Board July 2, 1975
Orders to show cause charging respondents with deportability wider section 241(a)(2) of
the Inunigrat.on and Nationality Act for having remained longer than permitted after
admission as nonimmigrant visitors were not defective for failure to include a reference
to 8 CFR 214.1(a). The orders to show cause, which concisely set forth the specific
nonimmigrant classification under which respondents were admitted to the United
States, the specific period(s) of authorized admission, the acts or conduct in violation of
law and a description of the statutory provisions(s) alleged to have been violated, were
sufficiently explicit to inform respondents so as to enable them to mount a defense.
CHARGES:
Order: Ad if 1952 -Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—nonimmigrant visitor-remained longer than permitted (both respondents)

ON BEHALF OF RESPONDENTS:

ON BEHALF OF SERVICE:

Brian R. Hersh, Esquire
Allan Seserman, Esquire
602 Biscayne Building
19 West Flag er Street
Miami, Florida 33130

Henry J. Scroope, Jr.
Trial Attorney
Paul C. Vincent
Appellate Trial Attorney

These cases present an appeal by the Service from a decision of the
immigration judge on August 26, 1974, ordering the charges therein be

dismissed without prejudice The appeal will be sustained and these
cases remanded to the immigration judge for further consideration.
We have carefully reviewed the contentions of both parties on appeal
and conclude that the decision below was not correct in holding the
orders to show cause defective for failure to include a reference to 8
CFR 214.1(a;•. We have no quarrel with the immigration judge's exposition (pp. 4-6) of the legal principles involved in this matter. It is with the
application of these principles to these eases that we differ.
8 CFR 242.1 provides, inter alia, that every proceeding under the
immigration laws "to determine the deportability of an alien in the
United States is commenced by the issuance and service of an order to
380

Interim Decision #2405
show cause by the Service." The order to show cause states "Upon
inquiry conducted by the Immigration and Naturalization Service, it is
alleged that:" and informs the alien of the nature of the proceedings and
the legal authority under which the proceedings are conducted. It sets
forth a concise set of factual allegations of the acts or conduct in violation
of the law, and a description of the statutory provision(s) alleged to have
been violated. Its purposes are to obtain direct jurisdiction over the
person of the alien, to advise him of his alleged violation with sufficient
precision to allow him to defind himself, and to set in motion and inquiry
in which the Service must establish that a violation occurred, and the

alien has a opportunity to defend himself. See Matter of Ho, 12 I. & N.
Dec. 516 (BIA 1967); aff'd sub nom. Ho Yeh Sze v. INS, 389 F.2d 978
A. 2,.1968); cert. denied 390 U.S. 1040 (1968).
The order to show cause in the case of Andre Chery states that he is a
native and citizen of Haiti, that he entered the United States at Miami,
Florida, on or about May 13, 1973; that he was admitted as a nonimmigrant visitor for pleasure until May 16, 1973, without authorization of
the Service. The order to show cause in the case of Mahmudul Hasan
states that he is a native of Malaysia and a citizen of Pakistan; that he
entered the United Staes at New York on or about January 10, 1970;
that he was admitted as a nonimmigrant student until June 29, 1970 and
was thereafter authorized to remain in the United States until October
10, 1978; and that he has remained in this country beyond October 10,
1973 without authorization of the Service. In each instance the order to
show cause then informs the alien that on the basis of these allegations
he is charged with being in the United States in violation of the Immigration and Nationality Act (Section 241(a)(2)) and hence deportable,
specifically for having entered as a nonimmigrant under section 101(a)(15) of that Act and having remained longer than permitted.
We regard these allegations as sufficiently explicit to inform the alien
in each instance what actions were in violation of the law, and what law
he violated, so as to enable him to mount a defense. It tells him that,
according to the government, he came as a nonimmigrant for a specific
period of time. Common sense would dictate that a visitor to this
country is not allowed to remain here forever, even apart from the
statutory references in the order to show cause or the provisions of the
published regulations (8 CFR 214.1(a)). The Act contemplates that an
alien who is legally entitled to remain in the United States will have a
status permitting his presence here (Section 291). Each alien was informed of the time periods in question. If they were erroneously stated,
or if authorization for longer stays existed, then each had notice sufficient to allow him to clarify his position. We see no "vagueness" in this,
as found by the immigration judge.
In reaching this conclusion we are bolstered by the fact that in

(c..

381

Interim Decision #2405
thousands of cases in which these basic factual allegations, and charge
have been used, since the Act of May 19, 1921 (42 Stat 5) recognized a
nonimmigrant category, not once, to the best of our knowledge, has any
substantial c:aallenge along these lines come to the attention of this
Board. Not only is this long standing administrative practice entitled to
weight, (Nazareno et al., v. Attorney General of the United States, 512
F.2d 936, 940 (CADC 1975)), but, more importantly, in this instance, it
is a clear indication of an absence of confusion or misunderstanding. We
are satisfied that the orders to show cause were clear and specific and
termination on this ground was not warranted, cf. Matter of Loo, 15 I. &
N. Dec. 127 (BIA 1974).
Further, in response to the contentions of counsel that the respondents were denied due process and that section 241(a)(2) of the Immigration and Nationality Act, as amended, is void for vagueness and
overbreadth, we find satisfactory compliance with procedural due process requirements, and neither this Board nor the immigration judge
may rule on the constitutionality of the statutes which we administer.
See Matter of Chavarri—Alva, 14 I. & N. Dec. 298 (BIA 1973); Matter of
Santana, 13 & N. Dee. 362 (BIA 1969); Matter of
4 I. & N. Dec.
556 (BIA 1951).

The respondents have admitted all the factual allegations contained in
the order to show cause. They are nonimmigrants; they have remained
longer than authorized; and they are here without authorization.

Deportability has been established by clear, convincing and unequivocal
evidence. The appeal is sustained and the cases remanded for further
consideration of applications for discretionary relief.
ORDER: The appeal of the Service is sustained.
Further order: These cases are remanded to the immigration judge
for further proceedings consistent with the foregoing opinion.

382


Interim Decision #1730

MATTER

OF

TONGA

In Deportation Proceedings
A-14674907

Decided by Board May 8. 1967
.-Notwunstaumne

the presence here of a citizen child and brother. respondent's

application for adjustment of status under section 245, Immigration and Nationalty Act, as amended, is denied as a matter of discretion in view of his
preconceived intent to remain in the United States permanently at the time he
obtained his nonimmigrant visitor's visa in 1904, as evidenced by the sale
shortly thereafter of his business in Tonga and the arrival in this country of
his alien wife and alien child as visitors approximately 2 months following
his entry.
CHARGE :
Order : Act of 1052—Section 241 (a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant (temporary visitor)—Remained longer.
Os

BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE

Harold b. Kline, Esquire
580 Washington Street

Stephen M. Snifin
Trial Attorney

San Francisco, California 94111

t Brief Sled)

(Brief filed)
On November 26,1965, the special inquiry officer denied the respondent's application for adjustment of status to that of a permanent resi-

dent, as a matter of administrative discretion; granted his alternative
request for voluntary departure; and provided for his deportation
from the United States to Tonga, on the charge contained in the
order to show cause, in the event of his failure to so depart. On May 23,
1966, this Board dismissed the appeal from that order of the special
inquiry officer, but solely on the ground that the respondent was not
statutorily eligible for the relief under consideration. On September 2,
1966, we ordered the proceedings reopened for reconsideration of the
question of adjustment of the respondent's status, on the basis of a

primary showing of statutory eligibility therefor. On November 18,
1966, the special inquiry officer reinstated his original decision in the
case. The respondent's appeal from that latter decision of the special
212

Interim Decision #1730
inquiry officer, which again brings the case before this Board for
consideration, will be dismissed.
The record relates to a 27-year-old married male alien, a native
and citizen of Tonga, who last entered the United States on or about
October 12, 1964. He was then admitted as a temporary visitor, for
a period until April 12, 1965. On July 26, 1965, his application for
adjustment of status to that of a permanent resident was administratively denied. He was then granted until August 22, 1965, to depart
from the United States voluntarily. On August 6, 1965, the respondent
having indicated that he did not desire to depart but, rather, to
renew his application for adjustment of status in deportation proceedings, the privilege of voluntary departure was revoked. These
proceedings followed.

The foregoing establishes the respondent's deportability on the
charge contained in the order to show cause, which was conceded in
the course of the hearing before the special inquiry officer and stands
unchallenged here. The special inquiry officer has already granted the
respondent the privilege of voluntary departure, and the record before
us supports said official's action in this respect. The only question
remaining for our consideration is whether the special inquiry officer
has properly denied the respondent's application for 'adjustment of
his status to that of a permanent resident, as a matter of administrative
discretion.
The facts and circumstances on which respondent's request for
adjustment of his status are predicated have been adequately discussed
in the prior opinions in this case and need not be restated here in their
entirety. Briefly, the respondent's wife and their alien child cams to
the United States as visitors on December 28, 1964, approximately two
months after respondent's arrival. They also now have a native-born
citizen child of tender years. One of the respondent's brothers is a
naturalized citizen of the United States. The respondent is presently
employed by Trans World Airlines at a salary of $417 a month, and
appears to be able to support his family properly.
Before proceeding to a disposition of the case on the merits, brief
comment is required concerning our original decision herein, which.was
made a precedent (Int. Dec. No. 1588). Apparently, a misunderstanding of the intent and effect thereof. has arisen in the minds of the
special inquiry officer, the trial attorney and counsel for the
respondent.
The sole basis for our initial decision was the respondent's then
statutory ineligibility for relief. Obviously, therefore, any discussion
in our opinion at that time as to the question of whether or not favorable exercise of relief was warranted was of secondary importance
213

Interim Decision #1730
and not decisive. We did discuss that aspect of the case, but only because it was then apparent to us that the special inquiry officer had
concluded his inquiry along those lines with the establishment of the
fact that the respondent had formed a "preconceived intent" to remain
in the United States and, thus, to circumvent the normal visa issuing
process, infra. We merely pointed out that there were other factors
which had to be considered, to wit, intervening equities. We did not
then decide, because we were not called upon to do so, that the factors
in this case were of such an unusually meritorious nature as to call for
favorable exercise of discretion.
The record reflects that this respondent had applied to the United
States Counsul in Fiji for an immigrant visa in 1961. When he applied
for the visitor's visa with which he gained admission to the United
States in 1964, he sent a letter to that Consul stating that he wished to
come to this country as a visitor, and that he would have to return to
Tonga because he was employed and his wife and child were there.
However, as soon as the respondent received a nonimmigrant visa, he
sold his business in Tonga. About two months after his arrival in the
United States, his alien wife and child came to this country—likewise
as visitors.. Also, the respondent has testified that when he 'came here
he intended to remain permanently, if he could.
We agree with the special inquiry officer that the foregoing factors
establish that the respondent had a preconceived intent to remain in
the United States permanently. The fact that his alien wife and child
followed him here so closely is clearly indicative of an overall scheme
for the entire family to circumvent the normal consular visa issuing
process. In our opinion, the misrepresentations to the consul abroad
thus established constitute unfavorable factors which outweigh the
favorable ones, to wit, the presence here of a citizen child and brother.
Accordingly, we conclude that the special inquiry officer has properly

denied respondent's request for this extraordinary form of discretionary relief. His decision, therefore, is affirmed.
ORDER : It is ordered that the appeal be dismissed.
I His wife has also applied for adjustment of status, and a decision thereon is
being held in abeyance pending a decision in this case.

214


MATTER OF M---Y—C

In DEPORTATION Proceedings
A-11721430
Decided by Board May 4, 1959
Presumption of lawful admission-8 CFR 101.1(3)—Amendment of April 3,
1959, applies to cases arising prior thereto.
The April 3, 1939, amendment to 8 CFR 101.1 (3), accompanied by the Commissioner's statement that it was intended to express the exact intention of
this regulation as originally published on November 20, 1958, is given a
binding effect. Bence, the presumption of lawful admission conferred by
8 CFR 101.1(3) will not apply to the case of an alien admitted in 1950 at
the age of 13 who never was the child of a United States citizen.

CHARGE:
Order: Act of 1952 — Section 241(a) (1) [8 U.S.C. 1251(a) (1)1 — Excludable
at tuna of entry —No immigrant visa.
APPLICATION; That respondent be regarded as having been lawfully admitted

for permanent residence pursuant to 8 CFR 101.1(j).

BEFORE THE BOARD

On March 6, 1959, the special inquiry officer denied
the application and directed respondent's deportation from the
United States in the manner provided by law ass the charge set
forth in the order to show cause. The appeal will be dismissed.
The record relates to a 21 - year - old male alien, a native and national of China of the Chinese race, whose only entry into the
Discussion;

United States occurred on September 7, 1950. He was then in possession of a travel affidavit, a document in lieu of a passport, executed before a Vice-Consul of the United States at Hong Kong. He
was admitted as a United States citizen upon a claim to have derived such citizenship from one J W S--. He has testified
woo not his blood father; that his parents
W
S
that J
died in China when he was 6 years of age; that he has never been a
citizen of the United States; and that at the time of his entry he
was not in possession of an immigrant visa. Accordingly, his deportability on the above-stated charge, which is uncontested here,
is established.
313
513271A-61--22

The special inquiry officer's denial of the application is predicated
on a finding that the respondent's case does not come within the
scope of 8 CFR 101.1(j) because the issuance of the travel document
which he presented on arrival was induced by fraud. Counsel,
however, claims that fraud or misrepresentation cannot be imputed
to this respondent who was only 13 years and 10 months of age at
the time of his arrival in the United States, citing la, we Tekaisalian's Petition, 116 F. Supp. 501 (1956). He also contends that
the conclusions of the special inquiry officer concerning this regulation (8 CFR 101.1(j)) appear contradictory to the unreported deci(A-8110659;
sion of this Board in the case of L TV If
Jan. 27, 1959).
8 CFR 101.1(j) was amended effective April 3, 1959. This amendment was accompanied by a statement of the Commissioner, as
follows:
The amendment to §101.1(j), which clarifies an existing rule, is designed
to express the exact intention of this regulation as originally published on
November 25, 1018, in 23 F.R. 9119.
The respondent cannot meet the requirements of the amended
regulation, which is binding herein.
The evidence of record clearly establishes that the respondent is
not now and never was the child of a United States citizen parent.,
which is one of the requirements contained in the regulation. Also,
the only document he was issued was a "travel affidavit," and that
is not a "passport" as specified in the regulation. These two factors
adequately answer the arguments advanced by counsel and render
inapplicable the cases cited in support thereof.
Order: It is ordered that the appeal be and the same is hereby
dismissed.

eta


Interim Decision 4t1509

MATTER Or

PERAVTA

In Deportation Proceedings
A-4/62365
Decided by Board October 4, 1965
As respondent, a native and citizen of the Philippine Islands who was admitted
to the Vatted States for permanent residence in 1928, last his r. a nationality on July 4, 1946 when The Philippines became an independent country, he
is deportable from the United States under section 241(a) (1), Immigration
and Nationality Act, as amended, since at the time of his last entry in 1950
as a returning resident he was an alien excludable under section 3 of the
Immigration Act of 1917, as amended, because of his conviction in 1936 of
the crime of robbery in the first degree. Although a II. S. national at the
time of his conviction in 1936, pursuant to section 8(a) (1) of the Philippine Iniependence Act of March 24, 1934, respondent was to be considered
as if he were an alien for the purposes of the Immigration Act of 1917.
Crtencis:
1251(a) (1)1—Excludable
Order: Act of 1952—Section 241(a) (1) (8
at entry under sorties 3, Immigration Act of 1917
II.S.C. 186(e), 1946 Ed.]—convicted of crime—
robbery in the first degree.

This case is before us on the appeal of the trial attorney from the
special inquiry officer's order of April 19, 1965, terminating the deportation proceeding.
The respondent is a 56-year-old married male, native and citizen of
the Philippines, who was admitted to the United States for permanent residence on September 19, 1928. He. last entered the United
States on January 15, 1950 at which time he presented a reentry
permit. Ile was convicted of robbery in the first degree on May 8,
1936 and was sentenced to a term of five years to life, being paroled
on February 5, 1940.
On October 0, 1958, a special inquiry officer concluded that the
respondent was deportable ton the charge stated above and directed
his deportation. Subsequently, we dismissed his appeal. In 1961
the respondent applied for adjustment of his immigration status
under 8 U.S.C. 1255 but the application was denied by the District
301

Interim Decision #1509
Director, the denial being affirmed by the Regional Commissioner on
appeal. Thereafter, counsel submitted a motion for the purpose of
securing reconsideration of the respondent's' application under 8
1255. On March 17, 1965, we reopened the deportation hear-

Following the reopened hearing, the special inquiry officer
entered his above-mentioned order of April.19, 1965 terminating the
proceeding. The sole issue is whether this action was correct.
In his decision (pp. 2 and 3), the special inquiry officer stated that
the respondent was 'a national of the United States when he last
entered the United. States and that he is charged with deportability
on the ground that he was wrelndable under section 212(a) (9) of
the Immigration and Nationality Act [8 U.S.C. 1182(a) (9)]. In
quoting from the latter statutory provision, .the special inquiry officer emphasized the language reading "Aliens who have been convicted." Actually, the respondent last entered the United States.=
January 15, 1950. He lost his United States nationality on July 4,
1946 when the Philippines became an independent country. Hence,
it is clear that he was an alien at the time of his last entry. In addition, deportability is not based on. excludability under 8 U.S.L.
1182(a) (9) but on excludability under section 3 of the Immigration
Act of 1917 which employs the language "persons who have been
convicted."
As a basis for terminating the deportation proceeding, the special
inquiry- officer cited. 1?ab -ang v. Boyd, 353 U.S. 427 (1957) , and Costello v. Immigration and Naturalization Service,
376 U.S. 120
(1964). In the first case, it was held that a person who was a national of the United. States, by virtue of birth in the Philippine
Islands, became an alien on July 4, 1946 regardless of the fact that
ing.

he had permanent residence in continental United States on that

date. The court concluded that Rabang was deportable, on the basis
of a narcotic conviction in 1951. The Costello case involved a deportation proceeding under 8 U.S.O. 1251(a) (4) based on. two convictions after entry. The court held that this statutory provision
did not apply to a person who was a naturalized citizen of the
United States at the time he was convicted but -svho was later denaturalized.
There is an important distinction between the Costello case and
that of tint respondent in view of section, 8(a) (1) of the Philippine
Independence Act of March 24, 1934 [48 Stet. 456; 48 U.S.C. 1238,
1940 ed.], which became effective on May 1, 1934: It was there provided as follows: "For the purposes of the Immigration Act of
1917, the Immigration Act of 1924 (except section. 13(c) ), this section, and all other laws of the United States relating to the immi322

'

Interim Decision 44509
gration, exclusion, or expulsion of aliens, citizens of the Philippine
Islands who are not citizens of the United States shall be considered
as if they were aliens." This statutory provision was in effect when
the respondent was convicted. on May 8, 1936. At that time he was
actually a national of 'the United. States. For the purpose of the
Immigration Act of 1917, however, he was to be considered 'as if he
were an alien. For that reason,' the Costello decision is not controlling in the respondent's case.
We have also considered the possible applicability to the respondent's case of Mangaoang v. Boyd, 205 F.2d 553 (9th Cir., 1953), cert.
den. 346 U.S. 876. When that case was before this Board; we had
held that ho was deportable under the Act of 1918, as amended by
the Internal Security Act of 1950, upon a finding that he had been
a member of the Communist Party from about February 1938 to
December 1939. Hatter of ill—, 4 I. &r. N. Dec. 569 (1051). Mangao-

ang arrived. in continental United States for permanent residence in
1926 and hail never left this country. In concluding that Mangaoang was not deportable, the Court of Appeals was of the opinion
that it was necessary, under the Act of 1918 as amended in 1950,
for membership iii the Communist Party and alienage to exist
simultaneously. Howevei, the decision was also based on other factors, that is, the possible doubt as to whether the referen& in ,the
Act of March 24, 1934 to all other immigration laws would apply
to the legislation enacted in 1950; the fact that the 1934 legislation
became completely obsolete on. July 4, 1940; the question of whether
the word "aliens" in the 1950 Act was broad enough to include persons who were actually nationals of the United States but who were
to be considered as if they were aliens under the Act of March 24,
1934; and did fact that Mangaoang's arrival in continental United
States in 1926, being prior to the 1931 Act, did not constitute an'
"entry" for immigratiii4 purposes since he was not then an. alien for
any purpose but was iihational of the United States. In view of
these other factors involved in the Mangaoang case, we do not consider that case to be analogous to that of the respondent.
When the respondent last entered. the United States on January
15, 1950, he was an alien for all purposes and he was then excludable
under section 3 of the Immigration Act of 1917 as a person who had
been convicted of a crime involving moral turpitude. Accordingly,
we adhere to the conclusion. in our order of January 29, 1959 that
the respondent is deportable on the charge stated above. In that
order, we statecrihat the respondent met the statutory requirements
under 8 U.S.C. 1182(c) but that relief was denied in the exercise of
discretion. Counsel's motion, seeks reconsideration of the respond. 323

Interim Decision #1509
ent'a application under 8 U.S.C. 1955. In view of the foregoing, we

will withdraw the special inquiry officer's order terminating the deportation proceeding and will reopen the hearing in order that the
respondent may be afforded a further opportunity to submit such
applications as appropriate for relief from deportation. The Service and the respondent may present any pertinent evidence.
ORDER: It is ordered that the special inquiry officer's order of
April 19, 1965, terminating the deportation proceeding, be
withdrawn.
leis further ordered that the hearing,be reopened for further proceedings in accordance with the foregoing and that the case be remanded to the special inquiry officer.

324


Interim Decision #1427

MATTErt or ILIDDALA
In Section 212(e) Proceedings
A-14220335
Decided by District Director December 9, 1964
Application for waiver of the two-year-foreign-residence requirement of section 212(e), Immigration and Nationality Act, as amended, is granted an
exchange visitor alien, a research economist in the held of economic statistics and econometrics, whose continued presence in the United States is
. deemed in the public interest since the loss of his services through compliance with the requirement would be detrimental to a research program of
official interest to the Department of Defense.

The subject, a single male, is a native and citizen of Thrlio and his
last foniign residence was in that country. He entered the United
States on June 22, 1960 as an exchange visitor, sponsored by the
University of Chicago under Exchange Program P4-100, and was
granted extensions of stay as a participant in that program to March
30, 1965. Under the provisions of section 212(e) of the Immigration
and Nationality Act, as amended, he is not eligible to apply for an
immigrant visa or permanent residence in the United Stites until
he has resided in the country of his nationality or last residence, or
in another acceptable foreign country, for two years following. departure from the United States, or has been granted a waiver of the
two-year period of foreign residence.
The subject is a research economist in ;the field of economic statistics and econometrics. He received his bachelor's degree in mathematics in 1955 from the University of Andhra in India, his master's
degree in statistics in 1951 from the University of Bombay, and his
doctor's degree in economics in 1963 from the University of Chicago.
He has been emiiloyed as an assistant professor of economics at Stanford University sine September 1963 under a practical training
program. The university is anxious to retain his services for an
important teaching and research position in the Department of Economics, where he devotes a substantial portion of his time to research
on an Office of Naval Research project on "efficiency of decision mak82

Interim Decision #1427
ing in economic systems," a program of work concerned with several
questions of considerable importance for Department of Defense
planning and programming in research and engineering, and in procurement, and for the operation of the United States economy. His
research bears particularly on the measurement of productivity
growth and on the effects of technological progress and change on
the expansion of employment opportunities and income distribution.
In leis teaching assignments he will be concerned with courses in
economic statistics and econometrics and supervising the work of
graduate students in econometric techniques. Operations researeh
analysts trained in these fields are in critically short supply and
greatly in demand'by Defense offices and Defense contractors.
The Department of Defense is requesting that the subject be granted a waiver of the foreign residence requirement on the ground that
the loss of his services through compliance with the requireinent
would lie clearly detrimental to a research program of great official
interest to that Department. The Secretary of State has reviewed
the request and recommends that the waiver be granted. From the
record it is concluded that the subject's continued presence in the
United States is in the public interest. Eligibility for the waiver
has been established.
ORDER: It is ordered that the two-year period , of foreign residence required by section 212(e) of the Immigration and Nationality
Act, as amended be waived.

. 38

.


Interim Decision #2425

MATTER OF ALADIN
In Visa Petition Proceedings
A-20814137
Decided by Board August 29, 1975
Since under the law of Haiti adoption must occur when the child is less than 6 years of age,

and since beneficiary was 18 years old at the time of adoption in Haiti, the adoption is
invalid for immigration purposes. Hence, beneficiary is ineligible for immediate relative
status under section 201(h) of the Immigration and Nationality Act, as amended, as the
adopted child or the United States citizen petitioner.
ON BEHALF OF PETITIONER: Pro se

The United States citizen peititioner applied for immediate relative
status for the beneficiary as her adopted child under section 201(b) of the
Immigration and Nationality Act. In a decision dated May 23, 1975, the
district director denied the petition, and the petitioner has appealed
from that decision. The appeal will be dismissed.
The beneficiary, born on April 21, 1961, is a native and citizen of
Haiti. In support of the petition, the petitioner presented an extract

from the Births Register in the Republic of Haiti which states that the
beneficiary was adopted by the petitioner on January 21, 1974. The
district director denied the petition on the ground that the two-year
legal custody requirement of section 101(b)(1)(E) of the Act had not
been met.
In order to establish the eligibility of the beneficiary as the petitioner's adopted child for the purpose of conferring immigration benefits, the petitioner must show thk existence of a valid adoption. The
Haitian law o:a adoption, as set forth in a 1966 decree issued by Presi- •
dent Duvalier and provided by the Library of Congress, states, in

pertinent part:
1. Adoption is the act by which a person takes a child (a son or daughter) who is not
his natural issue. This act is authorized to the benefit of any child of less than six years of
age

Inasmuch as the beneficiary was thirteen years old at the time of the
adoption, the adoption is invalid for immigration purposes. We need not
address the question of whether the legal custody requirement of the
Act has been met.
The appeal will be dismissed.
ORDER: The appeal is dismissed.
442


Interim Decision #2737

MATTER OF KONG

In Visa

Petition Proceedings
A-22165175

Decided by the Board October 24, 1979
(1) In order to qualify as brothers or sisters under section 203 (a)(5) of the Act, a
petitioner must establish that both he and the beneficiary once qualified as children of
a common parent and that parent is still a parent of each of them at the time the visa
petition is adjudicated.
(2) The "once qualified" rule has been applied to give effect to the time limitations set
uut in the Act's definition of "child". while recognizing that the circumstances creating the relationship are unaffected by the passage of time, marriage of the child, or
even death.
(3) Adoption in accordance with section 101(b)(1)(E) of the Act creates a parent-child
relationship under the Act.

(4) Termination of an adoption accomplished in accordance with section 101(b)(1XE) of
the Act terminates the parent-child relationship which the adoption created.
(5)An adopted child who has gained immigration benefits through a natural parent by
virtue of the termination of the adoption cannot confer immigration benefits on Or
through the adoptive parents.
(6) Child whose adoption was formally terminated when she came to the U.S. upon the
petition of her natural mother, no longer had a common parent with the beneficiary,
her former adoptive brother, and visa petition in his behalf denied.
ON BEHALF OF PETITIONER: Donald Paragon, Esq.
94 Bayard Street
New York, NY 10015

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

The United States citizen petitioner applied for visa preference
status for the beneficiary as her brother under section 203(a)(5) of the
Immigration and Nationality Act, 8 U.S.C. 1153(a)(5). In a decision
dated June 30, 1978, the District Director denied the petition. The
petitioner has appealed. The appeal will be dismissed.
The petitioner was born on November 2, 1950, in Macao, Portuguese
China. When she was approximately nine months old, she was adopted
by the beneficiary's mother and father. The beneficiary was born on
November 4, 1962, in Macao.
151

Interim Decision #2737
The petitioner's natural mother immigrated to the United States in
1962. The petitioner's adoption was terminated by a STATUTORY
DECLARATION dated July 16, 1967, so that her natural mother could
petition for her to enter the United States. On July 28, 1967, her
natural mother filed the visa petition, which was ultimately approved,
and the petitioner arrived in the United States on April 6, 1969.
The petitioner lived with her adoptive parents from the time of her
adoption 111 1951, and after the adoption was terminated in 1967, until

she came to the United States in 1969. Her adoptive father died in 1977
and her adoptive mother resides with her in Philadelphia, Pennsylvania. On May 18, 1977, the petitioner filed the instant petition on
behalf of her adoptive brother.
The District Director denied the petition on the ground that the
claimed relationship did not then exist as the petitioner's adoption had
been terminated.
On appeal, the petitioner contends that the beneficiary is still her
brother by virtue of Article 1083 of the Code of the Republic of China
which, according to the petitioner,' provides:

From the time of the termination of adoptive relationship, the adoptive child resumes
his original surname and his relation to his parents by birth. The existing rights of
third parties, however, are not affected thereby.

She argues that the sibling relationship between herself and the
beneficiary falls within the "existing rights of third parties" which are
protected by the last sentence of Article 1083.
The issue in this case is whether a sibling relationship created by an
adoption survives for immigration purposes the termination of that
adoption. We hold that it does not, based on our interpretation of the
Immigration and Nationality Act and irrespective of the law of the

jurisdiction where the adoption was terminated.
The Act does not define "brother" or "sister", but does define the
terms "child", "parent", "father", and "mother". The relevant portions
of section 101(b)(1)(E) of the Act, 8 U.S.C. 1101(b)(1)(E) provide:
(1) the term "child" means an unmarried person under twenty-one years of age who

is—
(A) a legitimate child; or
•'"
(E) a child adopted while under the age of fourteen years if the child has thereafter
been in the legal custody of, and has resided with, the adopting parent or parents
for at least two years; Provided, That no natural parent of any such adopted child
shall thereafter, by virtue of such parentage, be accorded any right, privilege, or
status under this Act

' The record file does not contain a certified translation of Article 1083. Our files do not
contain such a translation either.

152

Interim Decision #2737
Section 101(b)(2) provides that the term "parent", "father", or
"mother" means a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in section
101(b)(1) of the Act.
This Board has held that in order to qualify as brothers or sisters
under section 203(a)(5) of the Act, the petitioner must establish that
both he and the beneficiary once qualified as children of a common
parent. See Matter of Ferreira, 16 I&N Dec. 495 (BIA. 1978); Matter of

Clahar,16 I&N Dec. 484 (BIA 1978); Matter of Bourne,16

I&N Dec. 367
(BIA 1977); Matter of Gur, 16 I&N. Dec. 123 (BIA 1977); Matter of
Rehmas, 16 I&N Dec. 512 (BIA 1975); Matter of Garner, 16 I&N Dec.
215 (BIA 1975) and cases cited in footnote 2 thereof; Matter of Heung,
16 I&N Dec. 145 (BIA 1974).
The "once qualified" rule has been applied to give effect to the time
limitations set out in the Act's definition of "child", while recognizing
that the circumstances creating the relationship are unaffected by the
passage of time, marriage of the child, or even death. Thus, in construing the term "parent" we have said: "While for immigration purposes
a 'child' ceases to be a child even if it fits into the various categories
when it reaches the age of twenty-one or becomes married, the parent,
once the required relationship has been established, always remains a
parent." Matter of G—, 8 I&N Dec. 355 (BIA 1959); see also Matter of
Hassan, 16 I&N Dec. 16 (BIA 1976). This statement is overly broad in
that it suggests that the status of "parent," once established, cannot be
terminated.
Neither Matter of Hassan, Matter of G—, nor any of the "once
qualified" cases, cited above, involved the termination of an adoption
or the question of the effect of termination of an adoption on family

relationships created by it. Therefore, none of those cases is dispositive
of the issue here.
In the instant case, the petitioner once qualified as a child of the
beneficiary's natural parents because she was adopted by them in
accordance with section 101(b)(1)(E). 2 However, the petitioner's adoption was terminated in 1967 so that she could come to the United States
on the petition of her natural mother. Thus, at the present time, her
adoptive parents are not her "parents" because the relationship
between them and the petitioner has been severed. Cf. Matter of
Simicevic, 10 I&N Dee. 363 (BIA 1963). As the petitioner and the
beneficiary do not now have a common parent, they cannot qualify as
brother and sister under the Act.
Further, immigration benefits have been conferred on the basis of

Infancy adoptions pursuant to Chinese law and custom are recognized for purposes of
United States immigration laws. Matter of Yue, 12 I&N Dec. 747 (BIA 1968).

153

Interim. Decision #2737
the termination of the petitioner's adoption.. From the circumstances
of this case, it appears that the petitioner and her family are manipulating their family relationships to gain benefits under the immigration laws. We do not believe that Congress intended to give adopted
children greater rights under the Aet than natural children. It is clear
from the proviso of section 101(b)(1)(E) that Congress did not intend to
allow a child adopted in accordance with that section to gain immigration benefits through an adoption and then confer immigration
benefits on his natural parents. Similarly, we will not permit an
adopted child who has gained immigration benefits through a natural
parent by virtue of the termination of the adoption to then confer
immigration benefits on or through the adoptive parents.
Accordingly, the appeal will be dismissed.
ORDERS The appeal is dismissed.

154


MAritat

OF

V—Q-

In EXCLUSION Proceedings
A-10550819
Deeifigd by Board September 16,1980
Admission—Occurs when finding of admissibility has been communicated to
alien—Subsequent action under immigration laws must be taken in deportation oroceedings.
Jurisdiction to examine an alien as an applicant for admission is lost when
the inspecting immigration officer communicates his Ending of admissibility
to the alien. At that point an "admission" has occurred; the alien cannot
be recalled, even immediately following inspection, for questioning within
the exclusion process; and his right to remain in the United States can
properly be determined only in deportation proceedings.
EXCLUDABLE:

Act of 1952--Section 212(a) (12) [8 U.S.O. 1182]—Alien who has
engaged in prostituum.
BEFORE THE BOARD

DISCUSSION: This case is before us on appeal from a special
inquiry officer's order of May '20, 1960, directing that the appellant
be excluded and deported from the United States on the above-stated
ground.
The record relates to a 38-year-old female alien, a native and national of Mexico, who was lawfully admitted to the United Statesfor permanent residence on April 16, 1956. On May 2, 1960, following a temporary absence in Mexico, she applied for admission to resume her residence and employment here. She arrived at the Santa
Fe Street bridge (El Paso, Texas) immigration station, presented
herself to one of two immigration officers on duty at the pedestrian
inspection point therein, and produced her Alien Registration Receipt
Card (Form 1-151) for his examination. He told her to "go ahead,"
or words to that effect. Almost immediately thereafter, however, a
bystander identified her as a prostitute, whereupon the admitting
immigration officer sought to recall the appellant for further inspection. There is some controversy as to just how far she had progressed
in the interim, but it appears to be free from doubt that she bad
proceeded at least 75 to 100 feet beyond the check point before the
officer succeeded in taking her into custody. She was then subjected
78

to questioning by him and another immigation officer, after which

these exclusion proceedings followed.
The issue here is whether the case properly lies in exclusion or
expulsion proceedings. We hold that it is the latter.
The original jurisdiction to hold and exclude the appellant depended upon the custody of her person acquired at the time of her
arrival, and this original jurisdiction continued until the question
of her right to be admitted was determined in her favor, at which
point the proceedings before the examining immigration officer must
be regarded as closed. (See United States ex rel. Fink v. Tod,
1 F.2d 246; and United States ex rel. Johnson v. Watkins, 170 F.2d
1009.) At the time the appellant was told by the primary inspector
to "go ahead" and proceeded 75 to 100 feet beyond the inspection
point, the original jurisdiction to hold and exclude her terminated,
because the question of her right to be admitted as a returning resident (cf. Kwong Hai Chew v. Golding, 344 U.S. 590) had been determined in her favor and she was no longer in the custody of the
iuuuigralivu officer. Support for our decision, which is unnecessary,

can be found in another case decided this date (Matter of L—P—,
unreported), wherein the Service made the subA 6080883,
ject of expulsion proceedings an alien who was taken into custody by
Border Patrol officers at -the Eagle Pass, Texas, immigration station
after he had progressed not more than six or eight feet from the
point where an immigrant inspector had "admitted" him as a United
States citizen.
We note that the district director, in the Government's brief in
support of the special inquiry officer's order, has cited the case of
United Stales v. Day (43 F.2d 917) as authority for the proposition
that the "admission" of an alien to the United States is:
* * an act of the authorities, accepting the alien into the body of our In-

habitants, not indeed as a citizen, but as a possible resident, whose stay may
be permanent unless something unforeseen happens.

But we find nothing in that case contrary to the conclusion we have
reached herein. An "admission" is the freeing of an alien from the
legal restraints to which the immigration laws subject him. To accomplish an "admission," no physical movement on the part of an
alien is required. He is not required to cross any line, whether
actual or imaginary, or :stop in any direction or change his location.

Other than to answer questions and offer his documents for inspection, the alien plays a passive role in the interplay from which an
"admission" may result. "Admission" occurs when an authorized
employee of the Service communicates in a tangible manner to an
applicant for admission his determination that the applicant has established that he is not inadmissible under the immigration laws.
At the point such communication is made and received by the ap79

plicant, "admission" has occurred. We have drawn this rule from
examination of the pertinent cases, and we believe that it is one
which can be applied in a practical, expedient, and standard manner.
(See United States ex rel. Patton v. Tod, 297 Fed. 385; United
States v. Lasarescu, 104 F. Supp. 771; United States v. V asilatos,
209 F.9.d 195.) Once "admission" has occurred, our holding is that
exclusion proceedings are no longer proper and that expulsion proceedings are required.
Nor do we think that the case of Gee Shew Hong v. Nagle (18 F.2d
248), relied on by the district director, calls for a contrary holding
Therein, the alien applied for admission into the United States as
the minor son of a Chinese merchant domiciled here. Immediately
upon his arrival he vas examined by medical officers of the United

States Public Health Service and was found to be free from any
loathsome or dangerous contagious disease. This fact was certified
to the Commissioner of Immigration. The alien was thereafter
examined by a board of special inquiry and was found to be admissible under the Chinese treaty and exclusion laws. For some reason not disclosed by the record, the Commission of Immigration and
the board of special inquiry then referred the case back to the medical
officers for a • further physical examination. Upon such further
examination the medical officers found that the appellant was au icted
with a loathsome and dangerous contagious disease and such fact was

certified back to the board of special inquiry. Because of this certificate the right to admission was denied the alien. The court therein
did not agree with the alien that the first medical certificate was
final or conclusive, as the alien claimed. The court went on to say :
• • • The power to admit and exclude aliens is vested in a board of special
inquiry, subject to the right of appeal, not in the medical officers of the Public Health Service. The certificate is furnished "for the information of the
immigration officers and the board of special Inquiry" and is evidence and
nothing more. • • • In the exercise of their authority to admit and exclude
aliens it is the duty of the immigration officers to inquire into every fact
material to a correct decision of the matter before them and they have full
and complete authority to that end as long as the case remains within their
jurisdiction. Surely it cannot be successfully maintained that they are hound
to admit an alien known or believed to be inflicted (sic) with a loathsome or
dangernuc contaginuc diCPDQP, simply hecauce a medical officer has inadvertently or inadvisedly so certified. Under such a rule the officers would be
compelled to admit the alien and then proceed to arrest and deport him for
an illegal entry under another provision of the statute.

The distinction between the present case and the one relied on by
the district director is that the record of the latter does not indicate that the alien was ever freed from the "legal restraints" to
which the immigration laws had subjected him. "We find therein no

indication whatsoever that the question of the alien's right to be
admitted was ever finally determined in his favor and, more impor80

taut, there is certainly in the record in that ease 111) evidence VI a
final act of admission such as telling the alien to "go ahead," noting
his documents to the effect that he was admitted, or otherwise so
communicating the fact to the alien. Clearly, on the available
record of that case, the original jurisdiction to hold and exclude
the alien was never terminated by releasing the custody of his person.
Briefly, by way of summary, our holding is that exclusion proceedings are no longer proper and expulsion proceedings are required
where:
(1) an alien's admissibility has been determined favorably to him
by the examining immigration officer ; and
(2) said officer has communicated this fact to the alien in an
ascertainable manner.
ORDER: It is ordered that the appeal be sustained.

81
4359377- 63-1


Interim Decision #2538

MATTER OF ESCOBAR
In Deportation Proceedings
A-21299769

Decided by Board October 18, 1976
Where the evidence establishing deportability was not obtained as a result of respondent's
arrest, a claim of illegal arrest is not relevant to the proceedings; hence, counsel's
motion for pre-hearing discovery seeking evidence that respondent's arrest was illegal,
was properly denied since he failed to establish that the evidence sought was "essential"
within the meaning of 8 C.F.R. 287.4(a)(2).
CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)J—Entered without inspection
ON BEHALF OF RESPONDENT: Richard Eiden, Esquire
5932 Stafford Avenue
Huntington Path, California 140255

In a decision dated July 13, 1975, the immigration judge found the
respondent deportable as charged, denied his application for voluntary
departure under section 244(e) of the Immigration and Nationality Act,
and ordered his deportation to Guatemala. The respondent has appealed
from that decision. The appeal will be dismissed.
The respondent, a native and citizen of Guatem ala, has been charged
with deportability as an alien who entered the United States without
inspection under section 241(a)(2) of the Act. At the hearing counsel
submitted a Motion for Pre-Hearing Discovery in which he requested
that the Immigration and Naturalization Service make available and
permit the inspection and copying of records in its possession relating to
the respondent's arrest. The immigration judge denied the motion. The
respondent then admitted the truth of the allegations in the Order to
Show Cause and conceded his deportability.
The immigration judge denied the application for voluntary departure
as a matter of discretion. Based on the respondent's testimony at the
hearing, the immigration judge found that the respondent had gained
entry into the United States with the aid of a professional smuggler. He
concluded that such evidence adversely affects an application for volun52

Interim Decision #2538
tary departure. Unable to discover any equities in the respondent's
behalf to overcome this adverse factor, he denied the application. We
agree with his conclusion. See Matter of Rojas, Interim Decision 2444
(BIA 1975).
Counsel for the respondent contends that the respondent was denied
his right to due process in these proceedings. He bases his argument on
the fact that the immigration judge denied counsel's motion for discovery. The immigration judge denied the motion on two grounds: (1)
that it appeared to be a belated request for pre-hearing discovery and
(2) that it had not been established that the evidence requested was

essential to the proper resolution of these proceedings.
The type of discovery requested by counsel is covered by regulation.
Under 8 C.F.R. 287.4(a)(2) an immigration judge may issue subpoenas
requiring the attendance of witnesses or the production of documentary
evidence or both subsequent to the commencement of the proceedings.
According to the regulation, "The party applying for a subpoena shall be
required, as a condition precedent to its issuance, to state in writing or
at the proceeding what he expects to prove by such witnesses or
documentary evidence, and to slum affirmatively that he has made

diligent effort without success to produce the same. Upon being
satisfied that a witness will not appear and testify or produce documentary evidence and that his evidence is essential, the . . . special inquiry
officer shall issue a subpoena."
Counsel at the hearing asserted that he expected to show by the
evidence sought that the respondent's arrest was illegal and that, without access to Service records, he would be unable to make such a
showing.
A claim of illegal arrest is not relevant to these proceedings where the
evidence establishing the respondent's deportability was not obtained
as a result of the arrest. See Guzman-Flores v. INS, 495 F.2d 1245 (7
Cir. 1974); Klissas v. INS, 361 F.2d 529 (D.C. Cir. 1966). Nor is the
alien's mere physical presence "evidence" which may be suppressed in
the event the arrest was illegal. Guzman-Flores v. INS, supra. The
record in the present ease contains no evidence which was obtained as a
result of the respondent's arrest. We therefore_ conclude that counsel
failed to establish that the evidence sought was "essential" within the
meaning of 8 C.F.R. 287.4(a)(2). Accordingly, the denial of the motion
for discovery was correct.
The appeal will be dismissed.
ORDER: The appeal is dismissed.

53


Interim Decision #2761

MATTER OF KOHAMA
In Section 245

Proceedings

A-21328027
A-21323028
Decided by Associate Commissioner, Examinations May 8, 1978
(1) Notwithstanding that the courts have held Affidavits of Support to impose only a
moral obligation on the affiant, the Service must give the affidavit due consideration
consistent with affiants' ability to provide the promised support.
(2) The Affidavit of Support in this case was accompanied by acceptable evidence of
of lants' ability to provide the promised care sud support. The record also showed that
they had done so for a number of years. The beneficiaries of the affidavit have never
sought public assistance. This evidence sufficiently establishes that these applicants
for adjustment of status under section 245 of the Immigration and Nationality Act, 8
U.S.C. nob, will not become public charges under section 212(a)(16) of the Act, S
U.S.C. 1182(a)(15). The applications are granted.
(3) Platter of Harutunian,14 I&N Dec. 583 (R.C. 1974), distinguished.
Or; BEHALF OF APPLICANTS: Eugene Tomine, Esquire
370 Grand Avenue
Oakland, California 94610

This matter is before the Associate Commissioner, Examinations on
certification as provided by 8 C.F.R. 103.4 for review of the District
Director's decision denying the motion to reconsider his previous
decision denying the applications for status as permanent residents
under section 245 of the Immigration and Nationality Act, 8 U.S.C.
1255, as amended.
The applicants are husband and wife, natives and citizens of Japan,
73 and 65 years of age. They last entered the United States as nonimmigrant visitors for pleasure on December 10, 1975, and were
authorized to remain until March 16, 1976.
On March 23, 1976, immediate relative visa petitions were filed in
their behalf by their naturalized United States citizen daughter. Concurrent with these petitions, the applicants filed applications to adjust
their status to that of permanent residents pursuant to section 245 of
the Immigration and Nationality Act, as amended. Satisfactory
257

Interim Decision #2761
evidence of the claimed daughter-parent relationship was presented
and the petitions were approved May 1976. By virtue of their approved
visa petitions and their admission to the United States as nonimmigrant visitors, they were statutorily eligible to file the application
for adjustment of status.
The applicants are unemployed and do not have savings or independent means of support. They rely, instead, on support from their
daughter and son in law, both of whom are employed. As evidence of
-

-

this support they presented affidavits executed by the daughter and
son-in-law, along with evidence of their combined income of approximately $34,000 per year.
Following interviews in connection with the pending applications

for adjustment of status on June 22, 1976, the applicants were advised
that it would be necessary for them to post bonds each in the amount of
$5,000 in order to insure that they would not become public charges.
The applicants' son-in-law advised the Service by letter dated
September 15, 1976, that it would be difficult for him and his spouse to
post the bonds doe to the charges imposed by the bonding company. In

this letter the Service was requested to grant a period of 2 or 3 months
to allow for the location of a suitable bonding company.
The record contains no evidence that the bonds were posted, and on
March 17, 1977, the applications were denied by the District Director

on the grounds that the applicants were likely to become public
charges, pursuant to section 212(a)(15) of the Act, 8 U.S.C. 1182(a)(15).
In his decision the District Director concluded that the affidavits of
support presented by the daughter and son-in-law were not acceptable
and bases this conclusion on two court decisions, County of San Diego
v. Diloria, 276 A.C.A. 437 and Department of Mental Hygiene of
California v. Renal, 173 N.Y.S. 2d 231 (1957). The District Director
states that these court decisions hold that the affidavit of support is a
moral obligation and does not create any legal obligation to support
the beneficiaries of the affidavit. The District Director also relied upon
the Matter of Harutunian, 14 I&N Dec. 583 (R.C. 1974). This decision
also related to an applicant for adjustment of status pursuant to
section 245 who was of advanced age, without means of support and

with no one responsible for her support. This decision set forth criteria
to be taken into consideration in determining the applicability of
section 212(a)(15). The alien's age, incapability of earning a livelihood,
a lack of sufficient funds for self-support, and a lack of persons in this
country willing and able to assure that the alien will not need public
support.
Following the denial of the applications, a motion to reopen and

reconsider was filed April 22, 1977. The motion, which was prepared by
the son-in-law set forth the following facts: He and his wife, the
258

Interim Decision #2761
applicants' daughter, have been responsible for virtually all the wife's
family's support since 1961. The motion describes a closely knit family,
each doing their portion to see that the others did not want for the
necessities otlife. Three other children, one of whom is now married,
are now employed and self-sufficient and also able to provide support
to their parents. Attached to the motion are copies of numerous checks
as well as bank records which reflect that the applicants' daughter and
son in law have contributed several thousands of dollars to the
parents' support over the last 10 or more years.
The motion to reopen and reconsider was considered by the District
Director on June 10,1977, who concluded that no new facts or evidence
had been presented and accordingly affirmed his previous denial.
Despite the two State court decisions cited by the District Director,
it is not believed the affidavits of support, although not legal obligations, are without weight in determining whether a person is likely to
become a public charge. 8 C.P.R. 103.2(b)(1), which sets forth the
requirement of evidence in support of applications, states in part:
"Worm I 24 may be used if an affidavit of support would be helpful in
resolving any public charge aspect." In light of this regulation, the
Service must give the affidavits due consideration consistent with the
deponents' ability to provide the promised support. In the case at hand,
the deponents have presented evidence of support over the past several
years, as well as their ability to do so into the foreseeable future.
In the matter of Harutunian, supra, cited by the District Director,
the circumstances are not parallel to the case at hand. In Harutunian,
supra, the applicant was without any evidence of support, either of her
own or by another person. In addition, she had a 'history of being
dependent on the State of California for old age assistance; in the
contrast, the present applicants have not received public assistance.
-

-

-

It is my conclusion that the applicants, although not self-supporting,

have presented sufficient evidence that they will be supported if
granted permanent resident status in the United States and are not
likely to become public charges and are not, therefore, subject to the
exclusion provisions of section 212(a)(15) of the Immigration and
-

Nationality Act, as amended.

In view of the foregoing, it is determined that the record establishes
the applicants' eligibility for the benefits sought under section 245 of
the Act. Accordingly, the District Director's decision to deny the
motion to reopen and reconsider is hereby withdrawn and the motion
is granted.
ORDERS The decision of the District Director is withdrawn, the
motion to reopen and reconsider is granted and the applications for
permanent status are approved.
259


MATTER OF B—
In VISA PETITION Proceedings
A-12068067

Decided by Board December 11, 1961
Adopted child—Adoption not legally recognized in Netherlands Antilles.
As there are no adoption laws or other known means of creating the legal .
stauof"dpinheNtrladsAi,bnefcrywhoasgiv
to petitioner shortly after birth in the Netherlands Antilles under an agreement with the child's unmarried mother and who was raised as a member of
petitioner's family and regarded in the community as his own child is unable to qualify for preference quota status as petitioner's "adopted child".

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the Acting District Director, New York District, dated September 7, 1961, adhering to its order of denial of the visa petition filed
by the petitioner on behalf of the beneficiary.
The petitioner, a native of Netherlands Antilles, became a naturalized citizen of the United States on November 9, 1931. The beneficiary is a native and citizen of Netherlands Antilles, born October
29, 1939. The petition seeks to classify the status of the beneficiary
for preference quota status pursuant to section 203(a) (4) as the
married daughter of the petitioner. The visa petition filed on
August 5, 1960, indicated that the beneficiary was married, was residing in St. Albans, New York, with the petitioner and had given
birth to a child on February 29, 1960, in New York. The status of
the beneficiary's husband is not indicated.
The visa petition was denied by the District Director, New York
District, by order dated September 15, 1960, on the ground that the
beneficiary was uut the legally adopted daughter of the petitioner.

We considered the appeal from the order of denial of the District
Director on January 13, 1961, and we reviewed the evidence then
submitted. We concluded that in the absence of a statutory procedure of adoption, the petitioner must establish that a custom existed
in Netherlands Antilles which was recognized officially as resulting
in a legal adoption, legally binding upon the parties concerned, and
that it was necessary to establish that the adoption of the bene521

ficiary by the petitioner conformed with these customs and resulted
in a legal adoption. We concluded that the petitioner had failed
to show what custom was recognized by the Government of the
Netherlands Antilles as resulting in a legal adoption and conferring
the legal responsibilities and duties of parent and child, and remanded the case to amplify the record and fur such further action as
might be appropriate.
The affidavit of the beneficiary's natural mother dated November
28, 1959, to the effect that the natural parents of the beneficiary
were never married and that she entered into an agreement with her
brother, the petitioner, and his wife that they should adopt her child
when it was born, merely recites that since the birth of the beneficiary the petitioner and his wife have raised the beneficiary and
treated her as their own child and that in the community in which
they live the beneficiary has always been regarded as the daughter
of the petitioner's wife. However, thorn was no written deed or

agreement of adoption submitted. The only other documents
submitted to show the status of the beneficiary are school records
from the time beneficiary was six years of age and a certification
that during the 13 years she attended the school her bills were sent
to, and paid by, the adoptive parents.
The Attorney General of the Netherlands Antilles under date of
May '27, 1960, certified that there are no adoption laws in the Netherlands Antilles (Exhibit J). Counsel has furnished certifications
from the Recorder of the Court of First Instance of Aruba and the
Head of the Department of Civil Registry & Population Census to
the effect that there is no formalized court or legislative proceeding
which is prerequisite to a legal adoption and that adoptions are
recognized and legally binding upon the parties when they comply
with the local customs. However, neither of these officials expresses
any opinion as to whether or not the circumstances of the case herein
constituted a valid adoption.
Under date of June 6, 1961, the New York District Office of the
Immigration and Naturalization Service made inquiry of the Foreign Law Section of the Library of Congress for information bearing
upon the question herein. On the date of June 14, 1961, the Law
Librarian replied that there, was no source material available there
to provide an answer to the inquiries; that while the institution of
adoption had not been legally recognized in the metropolitan Netherlands until 1956 (Law of January 26, 1956), it was not possible to
establish to what extent adoption may have been permissible in
Aruba through custom or other official sanction. The communication
further indicated that the contact with the Netherlands Embassy was

fruitless but personnel there indicated that writing to the Department of Justice, Curacao, Netherlands Antilles, might be the only
522

means of obtaining the desired information. In response to a Serv

letter of June 12, 1961, the Secretary of the Department of Justice
at Willemstad, Curacao, Netherlands Antilles, replied that the
beneficiary, V—D—A—, was born on October 29, 1939, at Aruba,
Netherlands Antilles; her mother, D—A—, never legitimated the
daughter and a short time after her birth she was given to, and was
raised by, the family of J—J—A—, a brother of the mother; and
that the mother and the brother agreed that the latter only should
take care of her upbringing, but the adoption of the daughter was
never arranged. The communication concluded that in the Netherlands Antilles there are no adoption laws; that it occurs, however,
that children consider themselves to be adopted, but this so-called
"adoption" does not have any legal grounds in that country.
The petitioner, who is seeking the benefit of the immigration laws
on behalf of the beneficiary, has the burden of establishing eligibility
for such benefit or status. The latest communication from the Department of Justice of the Netherlands Antilles is to the effect that
ice

the so called "adoption" in the instant case has no legal grounds in
-

the Netherlands Antilles, which has no adoption laws. The evidence
presented does not establish a valid adoption under the law of the
Netherlands Antilles. No evidence has been submitted of an agreement or contract of adoption which would give rise to a legal status
under the law of the Netherlands Antilles. At most, what appears
to have been established is an agreement relating to the care and
education of the beneficiary by the petitioner herein. 1 In the absence of any statutory declaration by a court of the Netherlands
Antilles determining the legal status of the parties herein, and upon
the basis of the evidence available, it is concluded that the petitioner
has not borne the burden of establishing that the beneficiary is a
legally adopted child so as to qualify for benefits and status under
the immigration laws. The appeal will be dismissed
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
6-700, where an agreement of adoption was held to
1 Cf. Matter of R—,
create no legal status under the law of the Bahamas; to the same effect,
VP 3-1-72872 (June 17, 11)55), relating to an "adopunreported Matter of
tion" in Jamaica (which had no adoption law), the agreement between the
parties being characterized as the usual type of docliment in the transfer of
custody of children between private parties and having no more force in law
than a contract between private parties.

523


Interim Decision #1574

MaxTea or BIn Section 212(14 Proce dings
A-6230838
Decided by Associate Commissioner Aprn 13, 1968
(1) "Extreme hardship" within the meaning of section 212(h), Imiiigration
and Nationality Act, as amended, is established where applicant, unable to
obtain employment abroad, for assistance has had to rely upon his 'United
States citizen wife who is employed and who, in an effort to pay their debts
of several thousand dollars resulting from his business failure about the
time of departure, has practically impoverished herself; as a result of such
strain her health has been impaired; liquidation of the debts is dependent
upon his regular employment, and such has been offered if his admission is
authorised.
(2) Notwithstanding a long period of marital discord prior to 1981, apparently
of own making, and a pattern of irresponsible conduct between 1250 and
1980 which resulted in his 2 convictions for ,petty criminal offenses, since
applicant has no criminal record after 1960; his present marriage appears
stable; there is no evidence the multiple debts were incurred by wrongdoing nor has there hem any effort to avoid their payment; he has reflected a responsible attitude in departing voluntarily in an effort to correct
his immigration status, knowing the Service had been unable to effect his
deportation; and there is no indication of fraud or misrepresentation in
connection with his subsequent entries as a nonimmigrant, which were made
at a time of great stress on the:part of his wife, it is concluded his case
merits the favorable e.xercise- of the Attorney General's discretion and
his applications for a waiver of the grounds of excludability pursuant to
section 212(h) of the Act, as amended, and for permission to reapply are
granted.

This case is before this office by certification pursuant to 8 CFB
1034'for review of the Southeast Regional Commissioner's decision
of January 175 1966 denying the applicant's motion to reconsider
that officer's decision of May 28, 1965 denying the applicant the
waiver set out in_the caption hereof, as a matter of discretion.
The applicant is a 41-year old married male, citizen of Jordan,
who was born in Jerusalem, Palestine. He was last reported as
being domiciled in Jerusalem-Jordan and temporarily residing in
Montreal, Canada. The more serious ground for his excludability
560

Interim Decision #1574
from the United States arises under section 212(a) (9) of the Immigration and Nationality Act for two convictions of crimes
involving moral turpitude, to wit:
(1) On April 7, 1951, in the Superior Court of Alameda County. California on
a charge of issuing checks without sufficient funds for which he was sentenced
to four years probation; and
(2) On May 22, 1259, in the Superior Court of Contra Costa County, California on a charge of issuing checks without sufficient funds for which he was
sentenced to six months' imprisonment plus a period of probation. (In connection with the latter, there is an outstanding bench warrant issued in 1960,
in absentia, for an alleged violation of the terms of his probation.)'

An additional ground. of excludability exists under section 212(a)
(17) of the Act, as an alien who has been arrested and deported,
consent to reapply for admission not having been granted. An
application has also been made for such consent.
Although never admitted to the United States for permanent
residence, the applicant resided continuously in this country for
more than 17 years between 1946 to 1968. In addition, he entered
as a temporary visitor on three occasions in 1964. Full details of

his immigration status and activity while here are set forth in a
decision of the Board of Immigration. Appeals, dated September 6,
1951; a decision of the District Director, Miami, dated April 30,
1965 and the Southeast Regional Commissioner's decision of May 28,
1965. The factual matters contained therein are incorporated by
reference and will only be summarized here. •
The applicant first entered the United- States in 1946 as a student.
An order of deportation was entered by the Board, on September 6,
1951, for failure to maintain his status. A warrant for his deportation was thereafter issued but could not be executed because of
inability to obtain documents for his entry into any other country.
He self-executed his deportation by his voluntary departure foreign
on November 18, 1963.
From the time of his 1946 entry until late 1960, he resided principally in California. During that period he entered into three
marriages, of which three United. Stites citizen children were born.
All of these marriages terminated in divorce and the children reside
in California with their respective mothers. There are conflicting
claims as to the extent of support contributed by the applicant for
the care of these children, following the termination of the marriages. However, , it is clear- that any assistance rendered was
sporadic. Notwithstanding this, it appears from the contents of
letters to him from his children that they still esteem him.
During the period between 1950 and 1900 the applicant also

followed. a pattern of issuing checks for small sums on overdrawn
561

Interim Decision .#1674
accbunts. • It is not clearly shown 'whether most of these were
eventually paid up. In any event, this conduct only resulted in the
two convictions previously referred to Irrespective If -the, 'latter,
the. applicant's conduct clearly showed a. complete lack of a sense
of responsibility and disregard fox the law, and be so concedes.
Late in 1960 he moved to New York City where he met his 'present
wife, - now a naturalized citizen, whom he married in 1961. ' They
resided together until his voluntary departure, for the stated purpose of adjusting his immigration status and return to the United
States, on November 18, 1963. About the time of his departure
an import and export firm that he .had established failed. From
at 'least the time of this marriage until the failure of the firm he
had maintained established credit. In addition, during all of the
period of-his New York residence, he had no arrest record. Following the failure of his firm he and his wife became the subjects of
multiple civil suits for debts previously incurred. These debts totaled several thousand dollars. From the evidence, it appears that
due to his unsettled immigration status as well as economic factors
in the various countries in which he has resided. since his departure
he has been unable,to obtain employment sufficient to maintain himself and has had to rely mainly on 'assistance from his wife. In
fact, a United States Government- officer who appeared personally
at this office in his behalf stated that while the applicant was in
Santiago, Chile ,(where he lived a major portion of the time following his 1963 departure) the opportunities for employment were
so few as to barely provide "cigarette money" for the applicant.
lie further stated that the applicant always paid his debts there.
In the interim his spouse, who is employed, has practically impoverished herself in her effort to pay of the debts either jointly
or severally incurred. She has submitted proof that some of these
debts have now been paid. in full and others are being liquidated
to the extent that her limited means will allow. However, it appears
that any substantial inroad is dependent upon her husband being
able to obtain regular employment (In, this regard, he has been
offered such employment here if his entry is authorized.) The record
also contains medical evidence that his wife's health has been im-

paired by the strain which she is undergoing. - On the basis of the record. it is concluded that the applicant's
exclusion has resulted in extreme hardship to his United States
• citizen spouse, and will continue to d.o.so. It is further found. that
his admission to this country- would not be contrary-to the national
welfare, -safety or security of the United States.
The sole remaining question. is whether the applicant merits ex562

•

Interim Decision #15T4
eroise of the Attorney General's discretion to consent to his applying
for a visa arid for admission to the United States. The Southeast
Regional Commissioner has ruled that he does not and is of the
opinion that the applicant's conduct and behavior of the more recent
years has not been persuasive of any reformation on the applicant's
part. The basis for this conclusion is fully set out in the decision
of May 28, 1965 and need not be repeated here.
As a prefatory comment to the weighing of whether discretion
should be favorably exercised, it must be borne in mind that,
• although a successful applicant under section 212(h) of the Act
naturally gains a benefit, the basic purpose in granting • a waiver
is to render relief to a citizen or lawful resident alien who is in
extreme need thereof, unless to do so would be contrary to the good
of the public in general. We have already found that the requisite
harticbrp exists and that the applicant's admission would not be
contrary to the public interest.
It is recognized that for a long period of years prior to 1961, the
applicant's life was marked by marital discord, apparently of his
own making, and a pattern of irresponsible conduct which eventually
resulted in two convictions for petty criminal offenses. However,

he has had no criminal record since 1960 and his present marriage,
despite his unsuccessful previous ones, appears stable. The latter is
evidenced by the persistence displayed -by his wife in her efforts to
enable him to rejoin her here as well as her many trips abroad to
be with him.

The Regional Commissioner has drawn an adverse inference as
to the applicant's reformation from the fact that the applicant (and
his wife) became the subject of multiple civil suits, late in 1963 and
in 1964 for debts previously incurred. It is not believed that such
an inference is warranted by the record. It is asserted by the applicant and his wife that these debt actions stemmed from his business
failure. There is no evidence of wrong-doing in incurring them.
It is also noted that no effort has been made to avoid their payment
through the medium of bankruptcy proceedings or otherwise..
We draw a favorable inference as to a more responsible attitude
on the part of the applicant from his voluntary departure in an
effort to correct his immigration status, although he knew that the
Service had been unable to effect his deportation.
The only substantial adverse information of record, following his
1963 departure, is the fact that, although excludable, he made three
entries to this country in 1964, as a documented non-immigrant, and
a statement from the American Consul in Santiago, Chile (with
whom he had only official contact) expressing strong doubt as to his
563

Interim Decision #1574
integrity and good reputation in the community. With regard to the
former, the record reflects that these entries were made during a
period of great stress on the part of his wife and there is nothing
to indicate that fraud or misrepresentation -was involved in the obtaining of entry documents. As to the Consul's statement, opposed
thereto is a letter from another United States Government official
attesting to his personal acquaintanceship with the applicant in San- tiago and his good character. In addition, there has been received,
in connection with this review, a letter from another United States
-Government officer who also knew the applicant personally, which
is entirely favorable to him. In each instance, the writers were
aware of his prior difficulties. The record also contains statements

from other responsible persons, who knew the applicant in New
York City, which reflect favorably on his present character.
The applicant's-earlier irresponsibility and misconduct cannot be,
and are not, condoned. However, on the basis of the compassionate
factors and present record it is concluded that, in the exercise of the
Attorney General's discretion, the applications should be granted.

ORDER: It is ordered that the application of 1 1-11—E—, also
known as F—B—, for permission to reapply for admission to the
United States after deportation be and is hereby granted.
It is further ordered that the application for waiver of excludability under section 212(a) (9) of the Immigration and Nationality
Act, be and is hereby granted pursuant to the authority contained in
section 212(h) of the Act, PROVIDED that the waiver shall apply

only to the grounds for exclusion describe& herein.

5(i4


•

▪

M.A1TER OF C—
In VISA PETITION Proceedings
A-11695615
Decided by Board May 17 , 1961
Legitimation—Michigan—Acknowledgment by natural father.
(1) Child burn out or weaiock In Italy is not legitimated either under Italian
or Michigan law by natural father's "Act of Acknowledgment" executed before Italian Vice Consul In Detroit, Michigan, and recorded in a public
office in Italy.
(2) Under N.11thlgau law, the rather may legitimate nis cmici at any time IV
acknowledging paternity in a written instrument executed in the same manner as provided for deeds of real estate (before two witnesses) and by
recording the instrument in the probate office of the county where the

father has his legal residence.
BEFORE THE BOARD

DISCUSSION: This appeal comes forward from decision of the
District Director, Detroit, Michigan, on March 23, 1961, denying
a visa petition on the ground that the beneficiary, born out of wedlock in Italy on June 30, 1946, has not been legitimated by the
petitioner and is ineligible for nonquota status pursuant to section
101(a) (27) (A) of the Immigration and Nationality Act. In other
words, since the beneficiary has not been legitimated, the petitioner
cannot meet the requirements of section 101(b) (1) (C) of the Immigration and Nationality Act, that is, he cannot establish the required
relationship of "parent" and "child" within the section of law last
mentioned.'
1 Section 101(b) (1) (C) and section 101(b) (2) of the Immigration and Nationality Act read:
(b) As used in titles I and II—
(1) The term "child" means au unmarried person under twenty-one years
of age who is-•
•
•
(C) a child legitimated under the law of the chil d's residence or domicile,
or under the law or the rattlers residence or domicile, whether in or outside
the -United States, If such legitimation takes place before the child reaches

the age of eighteen years and the child Is in the legal custody of the legitimating parent or parents at the time of such legitimation.
•
•
•
(2) The terms "parent", "father", or "mother" mean a parent, father, or
mother only where the relationship exists by reason of any of the circumstances set forth In (1) above.

268

Petitioner, in his exceptions (Form I 290A), states that the mother
of the beneficiary died November 26, 1960; that he acknowledged
paternity of the beneficiary on June 30, 1952; and that he has
supported said child since his birth on June 30, 1946, and desires
to bring him to the United States for permanent residence.
The brief record submitted contains very little evidence. It is
composed of the petition filed March 3, 1961, and three principal
docuinents. We do not know when petitioner came to the United
States or whether he was in Italy in 1945, or subsequent thereto.
He, a native of Italy, naturalized citizen of the United States (certificate No. 7653568, June 5, 1956), sets forth that the beneficiary
was born in Italy on June 30, 1946, out of wedlock, and is presently
residing in Italy. The translated documents attached to the petition are : an Act of Acknowledgment of natural son by petitioner
on June 30, 1952, before the. Vice Consul of Italy in Detroit, Michigan; an amended birth certificate of the beneficiary from the Register
of Civil Status at Zoppola, Udine, Italy, where the Act of Acknowledgment was recorded August 22, 1952; also, certificate showing the
death of Z-0—, single, on November 26, 1960, at Zoppola, Italy.
It appears that the original birth certificate of this beneficiary
was recorded in the Office of Civil Status at Zoppola, Province of
Udine, Italy, under the name Z—G--M—; mother, Z-0—; and
fatehr, unknown. The Act of Acknowledgment shows that on June
30, 1952, the petitioner appeared before the Vice Consul of Italy at
Detroit, Michigan, the place of his domicile, accompanied by his
spouse, and declared and acknowledged pursuant to all the effects
of law that G—M— born to 0—, mother, and unknown father, is his
natural son. The petitioner's spouse consented to the acknowledgment. The document was signed by the petitioner and his
spouse, and it appears that the petitioner and his spouse may have
-

acknowledged their signatures in the presence of the notary public

in the office of the Vice Consul.
It appears that thereafter, on August 22, 1952, the petitioner
caused the document to be recorded at Zoppola, Province of Udine,
Italy, in the Office of Civil Status, with the name of the beneficiary changed from Z—G—M— to C—G—M—, and the record was
noted to show that he had acknowledged the child as the natural son of
(petitioner), domiciled in Detroit, Michigan. On FebruA C
ary 16, 1961, a copy of birth certificate of C—G—M—, as amended,
was issued from the Civil Status Register for use of migration and
work.
The issue to be resolved is whether the beneficiary herein, who
was age 6 years at the time the petitioner executed the Act of Acknowledgment in Detroit, Michigan, on June 30, 1952, and is now
age 14 years, was legitimated under the law of the child's residence
—

269

or domicile (Italy) ; or under the law of the father's residence or
domicile (the State of Michigan). The burden is upon the petitioner. The District Director has considered the residence or domicile of the beneficiary only, and has made a negative finding.
We will consider the domicile or residence of the child first. We
find that the act of the petitioner in recognizing or acknowledging
the beneficiary as his child does not constitute legitimation of the
child under Italian law (Article 277, Italian Civil Code of 1942,
and procedure), in all respects. The question has been adjudicated
previously. We have held that recognition or acknowledgment of
a child born out of wedlock in Italy, under Italian law and procedure, does not confer on the child the attributes of "legitimation"
as that term is used in section 101(b) (1) (C) of the Immigration

and Nationality Act (Matter of D—, 7-438 (B.I.A., 1957) ). Under
Article 280, Italian Civil Code of 1948, a child born out of wedlock
in Italy may be legitimated by the marriage of the natural parents
to each other, or by royal or presidential decree (Matter of D—M—,
7--441 (B.I.A., 1957)). There is no evidence before us of intermarriage of the parents or of royal or presidential decree.
This petitioner may have intended to legitimate his son in the
jurisdiction of his residence or domicile. The District Director has
made no finding in this regard. The statutory procedure in Michigan is set forth in section 27.3178(153), Vol. 23, Michigan Statutes
Annotated (Public Acts 1941, No. 347, as amended by Public Acts
of 1951, No. 7, 1959 Cumulative Supplement), as follows:
LEGITIMATION BY ACKNOWLEDGMENT.
When after the birth of an
illegitimate child, his parents shall intermarry, or without such marriage, if
the father and mother shall, by writing under their hands, acknowledge such
child as the child of the man, such child shall be considered legitimate for all
intents and purposes: Provided, That it shall not be necessary for the mother
of such child to join in such acknowledgment in case she is disqualified to
act by reason of insanity, mental incapacity, death, or If for any other reason satisfactory to the probate judge of such county, it is not practical for
her to join in such acknowledgment. The failure of the mother of such child
to join in any acknowledgment filed in accordance with the provisions of this
section shall not invalidate or otherwise affect the same: Provided further,
That such acknowledgment shall be executed and acknowledged in the same
manner as may he by law provided for the execution and acknowledgment of

deeds of real estate, and be recorded In the office of the judge of probate of
the county in which such father or mother of such child is at the time
resident: Provided further, That if such acknowledgment is erroneously filed
in any other public office, the filing of a certified copy of such acknowledgment

In accordance with the provisions of this section, at any time, shall be deemed
a compliance with the requirements hereof.

Apparently the statute just quoted does not specify an age limit
within which a father may acknowledge the paternity of (or legitimate) his child. The statute does provide that when paternity of
270

an illegitimate child has been acknowledged by written instrument,
the statute becomes operative only upon performance of two conditions precedent, (1) execution of acknowledgment of instrument in
the same manner as provided for deeds of real estate (before two
witnesses), and (2) recording. It has been held that where the
signature of a decedent father was not witnessed by two persons, by
their signatures, in the form required for deeds for real estate,
the statute was inoperative to give right of inheritance, and for
other purposes (Chasson v. Estate of Stewart, 319 Mich. 204; 29
N.W.2d 282 (1947) (Supreme Court, Michigan)). The statute above
quoted, when fully complied with, has been construed so that, in
effect, an acknowledgment makes the county which is the legal residence of the father (petitioner) the legal residence of the legitimized child, and quell acknowledgment and its effect, with respect
to legal residence, relates back to date of birth of such child
(Op. Atty. Gen., 1941-1942, p. 456, No. 22165 (Mich.)). In other
words, it is a legitimation statute for all intents and purposes.
The petitioner, unfortunately, has not complied fully with the
statutory law and procedure of Michigan, the place of his domicile,
in acknowledging the paternity of his son. Consequently, the statute
is inoperative to effect legitimation of the child. The omissions
in the copy of translated acknowledgment before us fail to show
that the signature thereon was witnessed by two persons and acknowledged the same as a deed for real estate. Nor does the copy
show that it was recorded in Wayne County, Michigan, although it
has been recorded in a public office in Italy. If the instrument were
properly executed it could be recorded "at any time" in Michigan.
The natural mother did not join the petitioner, apparently because
it was impracticable to do so. She is now deceased.
It is conceded that petitioner is a United States citizen and that
he is domiciled in Micbiga.n_ The beneficiary is only 14 years of
age and his mother is deceased. We believe the petitioner, with
assistance from the Service, should support his petition with an
acknowledgment of paternity duly executed and properly recorded
under the procedure and law of Michigan, forthwith; and that he
should furnish evidence showing support and custody of the beneficiary. Undoubtedly, there should be some facts submitted by the
Service or the petitioner to show that he was in Italy at the time
of, or immediately prior to, the birth of the beneficiary. On the
present record, the appeal will be dismissed without prejudice to
reconsideration, should the petitioner submit evidence to support

his petition.
ORDER: It is ordered that the appeal in this case be dismissed
without prejudice to reconsideration should the visa petition be
supported by substantial evidence as indicated in the foregoing.
271

,