Interim Decision #2266

MATTER OF PATEL
In Section 245 Proceedings
A-20051168
Decided by Acting Associate Commissioner March 7, 1974
An applicant for adjustment of status under section 245 of the Immigration and
Nationality Act, as amended, as a nonpreference immigrant, is entitled to the
"student exemption" from the labor certification requirement under 8 CFR
212.8(bX5) as it read prior to its revocation on August 2, 1972, where the
application was initially submitted during the period August 2, 1972 to
December 11, 1973, inclusive; was rejected solely for lack of a labor certification; was resubmitted prior to January 1, 1974, and upon resubmission it was
found: (1) a nonpreference visa number was available for issuance to the
a pplicant at thp time of initial submission of the application, and (2) a claim.
verified from the official records of the Service, was made at that time to the
student exemption from the labor certification requirement under B CFR
212.8(b)(5) as it read immediately prior to August 2, 1972.

The applicant is a 23-year-old native and citizen of India who
was last admitted to the United States on July 31, 1970, as a
student under section 101(a)(15)(F) of the Immigration and Nationality Act, and has continued to maintain that status. On August
31, 1972, he submitted an application for adjustment of status
under section 245 of that Act, as amended. The case is before me,
pursuant to 8 CFR 103.4 on certification by the Regional Commissioner.
The applicant is seeking adjustment of status as a nonpreference immigrant. Under 8 CFR 245.1(e) such an applicant is subject
to the labor certification requirement of section 212(a)(14) of the
Act, unless he can establish that he is exempt from that requirement under 8 CFR 212.8(b). The applicant, in his application for
adjustment filed on August 31, 1972, claimed to be exempt from
the labor certification requirement pursuant to 8 CFR 212.8(bX5).
That section of the regulation, prior to August 2, 1972, read in
pertinent part as follows:
The following persons are not considered to be within the purview of Section
212(aXl4) of the Act and do not require a labor certification: ... (5) an alien
who establishes satisfactorily that he has been accepted by an institution of

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Interim Decision #2266
learning in the United States, that he will be pursuing a full course of study
in the United States for at least two full consecutive academic years, and that
he has sufficient financial resources to support himself and will not seek
employment during that period.

On May 16, 1973, the District Director entered an order denying
the application and certifying his decision to the Regional Commissioner. In denying the application, the District Director made the
following statements:
A nonpreference immigrant who will be employed in the United States is
subject to the provisions of Section 212(a)(14) of the Act, which requires that
such an immigrant obtain a certification from the Department of Labor that
a shortage exists of qualified workers available to perform the work in which
he will be engaged and that his employment would not adversely affect the
wages and working conditions of persons similarly employed in this country.
You have not submitted a labor certification, although you state that you
intend to seek gainful employment in the United States in the field of
electronic engineering.
The record establishes that you were admitted to the United States on July
31, 1970, as a nonimmigrant student and are now attending Heald's Engineering College, with extension of stay granted to July 30, 1973. From the
evidence submitted with your application, it appears you applied for permanent residence under the mistaken impression that you were exempt from the
labor certification requirement because you were a student. Title 8, Code of
Federal Regulations, Part 212.8(b) formerly provided exemption from the
labor certification requirement for students who could establish that they
were enrolled in a full course of study which would continue for two academic
years and had financial support so they would not have to work during that
time. However, this exemption was not in effect when your application was
filed on August 31, 1972.
It is the position of this Service that a student requires a labor certification if
he has passed the age of compulsory school attendance and is not exempt
from the labor certification requirement under Title 8 CFR 212.8. The Fair
Labor Standards Act (29 U.S.C. 203(1); 63 Stet. 910) sets a minimum age of 16
for employment (except for certain employment during periods which will not
interfere with the child's schooling). In addition, the compulsory school
attendance laws of most states require school attendance until the age of 16.
Accordingly, a child under the age of 16 is not of employable age under United
States law and therefore is not considered to be within the purview of Section
212(a)(14) of the Act. Conversely, an alien age 16 or over who is not exempt
from the labor certification requirement pursuant to Title 8 CFR 212.8 is of
employable age under United States law and therefore is within the purview
of Section 212(a(14) of the Act (unless he is afflicted with a physical or mental
disability that will preclude his employment) notwithstanding that it may be

his intention to attend school and to stay out of the labor market during the
entire period of his schooling.
You are 22 years of age; you have not submitted a labor certification as
required by Section 212(a)(14) of the Act and you have not established that
you are exempt from the certification requirement pursuant to Title 8 CFR
212.8. You are therefore ineligible under Section 245.1(e), Title 8, Code of
Federal Regulations, for adjustment of status as a nonpreference immigrant.
In addition, by failing to comply with the labor certification requirement, you
have not acquired a priority date for allocation of a nonpreference visa

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Interim Decision #2266
number and thus have not established that an immigrant visa is immediately
available as required by Section 245 of the Act.

Upon certification, the Regional Commissioner on August 2,
1973, entered an order in which he stated that "the decision of the
District Director is well founded and having reached our own
independent decision in the matter we affirm the decision of the
District Director!'
The Regional Commissioner also stated in his order that:
"Effective August 2, 1972, 8 CFR 212.8(bX5) was deleted from the regulations
and this labor certification exemption was not available on August 31, 1972
when the instant application was filed. The applicant is not eligible for the
status he seeks."

As the Regional Commissioner pointed out in his decision, 8 CFR
212.8(bX5) was repealed effective on the date of its publication in
the Federal Register on August 2, 1972 (37 FR 15419). However, in
a decision by the United States District Court for the District of
Columbia on July 5, 1973, in the case of Hou Ching Chow v. The
Attorney General (Civil Action No. 2418-72), the Court held that
the revocation on. August 2, 1972 of the student exemption from
the labor certification requirement was contrary to law and
without effect, because it was published without notice of proposed

rulemaking. No appeal was taken from the Court's decision.
However, without conceding the correctness of the Court's decision, the Commissioner published a notice of proposed rule -making
on August 28, 1973 (38 FR 22964) revoking the student exemption
as it had existed previous to the prior revocation on August 2,
1972. Subsequently, on November 12, 1973, the proposed rule was
adopted to become effective on December 12, 1973 (38 FR 31166).
In the preamble to the regulation published on November 12,
1973, adopting the proposed rule, the following was stated:
"An application for adjustment of status under section 245 of the Immigration and Nationality Act which was submitted to an office of the Immigration
and Naturalization Service after August 1, 1972, and was rejected solely for
lack of a labor certification may be resubmitted and accepted as properly
filed, with a priority date as of the date of original submission, if (1) a
nonpreference visa number was available for issuance to the applicant at the
time of initial submission, (2) a claim, verified from the official records of the
Service, was made at that time to the student exemption from the labor
certification requirement under 8 CFR 212.8(bX5) as it read immediately prior
to August 2, 1972, and (3) the application is resubmitted before January 1,
1974."

As a result of the foregoing, and in consideration of the abovequoted portion of the preamble to the regulation published on
November 12, 1973, the Regional Commissioner, on his own motion
reopened the ease to reconsider his prior decision of August 2,

1973. After reviewing prior decisions and pertinent developments
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Interim Decision #2266
on this case, the Regional Commissioner concluded on December
19, 1973, as follows:
"We have carefully examined all factors of this case and conclude that the
exemption from the labor certification requirement pursuant to 8 CFR
212.8(b)(5) was actually in effect on August 31, 1972, the date the applicant
filed his application under Section 245; that at the time of filing the application on August 31, 1972 the applicant established that at that time he met all
conditions of the provisions of 8 CFR 212.8(b) including the pursuing of a full
course of study in the United States for at least two full consecutive academic
years, this notwithstanding the fact he may complete his studies in July 1974;
that the applicant has met the conditions of the preamble to the rule adopted
November 12, 1973 (supra); and that he has established a nonpreference
priority date as of August 31, 1972 and is eligible for the benefits of Section
245 of the Act. However, since the processing of the application of adjustment
of status has not been completed we shall vacate our order of August 2, 1973
and remand the case to the District Director, San Francisco, to arrange for
the required medical examination, allocation of a nonpreference visa number
and grant the application if the applicant is otherwise eligible for the benefit
sought.
"The Regional Commissioner's order of August 2, 1973 upholding the District
Director's decision denying the application will be vacated and the application
remanded to the District Director for consideration consistent with this
decision.
"Inasmuch as this decision involves an unusually novel question of law our
decision will be certified to Deputy Associate Commissioner, Travel Control,
for review."

The District Dirpetnr, in the portion of his decision of May 16,
1973 denying the application which is quoted herein, has concluded
that an alien who has paased his sixteenth birthday is not
obligated by law to attend school; that his employment is not
prohibited by the Fair Labor Standards Act; that he, therefore, is
considered to be an employable alien who is subject to the labor
certification requirement of the law, and is ineligible without that
certification for the statue he is seeking.

I am in agreement with those conclusions, and agree they
should be applied in the following circumstances:
1. Where the application for status as a permanent resident was submitted
initially on or after December 12, 1973, the effective date of the regulation of
November 12, 1973 revoking the "student exemption" from the labor certification requirement; or
2. Where the application was submitted initially on or after August 2. 1972
(the effective date of the earlier regulation revoking the "student exemption")
and was rejected by the Service solely for the reason stated in the preamble
to the regulation published November 12, 1973 if, upon resubmission, it was
found that any of the enumerated conditions in the preamble had not been
satisfied.

In the case at hand, however, neither of the two sets of
described above exists. Instead, the Regional Commissioner finds, and I agree with his finding, that the applicant

circumstances

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Interim Decision #2266
meets the conditions specified in the preamble to the regulation
published on November 12, 1973, although the case was reactivated prior to January 1, 1974 by the Regional Commissioner on
his own motion rather than by the applicant's resubmission of his
application prior to that date. The Regional Commissioner concludes that the applicant established his eligibility for exemption
from the labor certification requirement, as of the date on which
the application was filed, under 8 CFR 212.8(b)(5) as it read prior to
August 2, 1972, and that he appears to be eligible for the status he
is seeking. However, because processing of the case had not been
completed fully, the Regional Commissioner finds it necessary to
remand the case to the District Director to complete the processing and then adjudicate the application. I concur in the conclusions reached by the Regional Commissioner.
ORDER: It is ordered that the Regional Commissioner's order
of December 19, 1973 vacating his prior order of August 2, 1973,
and directing that the case be remanded to the District Director
for further consideration and disposition consistent with the Regional Commissioner's order of December 19, 1973, be and the
same is hereby affirmed.

607


Interim Decision #2125

MATTER OF KATIGBAK

In Visa Petition Proceedings
A-17918612
Decided by Regional Commissioner October 18, 1971
To be eligible for preference classification under section 203(aX3) of the Immigration and Nationality Act, as amended, the beneficiary must be a qualified
member of the professions at the time of the filing of the visa petition.
Education or experience acquired subsequent to the filing date of such visa
petition may not be considered in support thereof since to do so would result in
according the beneficiary a priority date for visa issuance at a time when not
qualified for the preference status sought.
ON BEHALF OF APPLICANT:

Earl R. Steen, Esquire
840North Broadway
Los Angeles, California 90012

This case is before the Regional Commissioner as an appeal from
the District Director's decision of January 29, 1971 wherein he
denied the applicant's petition for preference classification as an
accountant under section 203(aX3) of the Immigration and Nationality Act, as amended, as not being academically qualified. No
appeal was taken from the District Director's denial. On February
3, 1971 counsel for applicant submitted a motion to the District

Drector to reopen and reconsider his denial decision. On February
16, 1971, the District Director denied that motion. On August 23,
1971, counsel filed a petition for review in the United States District
Court, Central District of California, and on September 9, 1971 the
court dismissed the action, upon stipulation of the parties, to allow
the petitioner to apppeal from the District Director's denial decision of January 29, 1971 if such appeal was actually filed within 15
days of the court's order. Appeal was received by the District
Director, Los Angeles, within the time set and that appeal will be
honored.
Oral argument in support of appeal was requested and granted.
Counsel appeared as scheduled.
The applicant is a 23-year-old single female, a native and citizen
of the Philippines. She was admitted to the United States as a
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Interim Decision #2125
visitor at San Francisco on December 2, 1967 to June 30, 1968 and
was granted a change of status to student at Los Angeles on
September 11, 1968 with extensions of stay in student status to
June 25, 1971 to attend Woodbury College in Los Angeles. Counsel
has advised that the applicant attended Woodbury College until
March 1970. She last applied for extension of stay in student status
on June 25, 1970, indicating that it was her intention to continue
study at Woodbury College. The application for extension of stay
was granted with authority to remain until June 25, 1971. The
applicant, however, did not again enroll at Woodbury during the
period of her last extension.
The record shows that she accepted unauthorized employment
on September 29, 1970, during the period of her last extension in
student status, and on December 6, 1970 filed the instant petition
for classification under section 203(a)(3) of the Act as a member of
the professions as an accountant to seek work as such with a firm
of certified public accountants in Beverly Hills, California.
By the filing of the petition, the applicant asserts that she is a
member of the professions as an accountant and qualified as such
by reason of her bachelor of science degree in business administration from a university in the Philippines, and a major in accounting achieved at Woodbury College and experience as a junior
accountant since September 29, 1970 with the certified public
accounting firm. The approval of the petition would give her a visa
availability priority date as of the date of filing the petition, i.e.,
December 6, 1970. Petitions filed prior to February 4, 1971 for the
profession of accounting were covered by the blanket Labor
certification provided by 29 CFR 60, Schedule A, Group II.
The occupation of accountant is recognized as being within the
professions. The issue in this case is to determine if the applicant
was academically qualified as a member of the professions as an
accountant at the time the petition was filed and eligible for the
preference sought.
The Matter of Asuncion, 11 I. & N. Dec. 660 (modified by the
Matter of Panganiban, 13 I. & N. Dec. 581), holds that a characteristic common to occupations in the professions is the minimum of a
baccalaureate degree, while the Matter of Shin, 11 I. & N. Dec. 686,
points out that the acquisition of a degree does not, per so, make
the holder thereof a member of the professions.
The degree or major must be academically appropriate to the
profession for which petitioned. A baccalaureate degree in accounting or an academic major in accounting will satisfy the
academic qualification requirements for the profession of accounting. The Service has consistently held that 24 semester units in
accounting satisfy the requirements for an academic major.
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Interim Decision #2125
Colleges and universities generally require at least a minimum
of 24 units in a specific field to attain a major in that field.
The Occupational Outlook Handbook, published by the Department of Labor, (editions 1966-67, page 29, 1968-69, page 32, and
1970-71, page 28) all state "for beginning accounting positions the
Federal Government requires four years of college training, including 24 semester hours in accounting or an equivalent combination of education and experience." Counsel's statement that the

Occupational Outlook Handbook, page 24, shows that from 20 to 24
units in accounting are required for Federal employment as an
accountant is not factual.
Counsel has also offered a statement of qualifications for the
position of accountant-auditor, for the County of Los Angeles,
which requires graduation from an accredited course with 24
semester units of accounting, including a course in auditing and if
such auditing course has not been taken it may be completed
during the first year of employment. This argument has little
merit. The Service is not guided or controlled by local county
position requirements.
In support of the petition the applicant presented evidence of
graduation from a university in the Philippines on May 7, 1967
with a baccalaureate degree in business administration. Review of
the transcript of credits from this university, which uses the
semester unit system, shows that she completed two courses in the
field of accounting for a total of six semester units and a three-

hour course titled "management accounting" in the field of bukness administration. Although this last course is shown to be in
the field of business administration, we will, because of its course
title, consider it as applicable to the field of accounting, thereby
giving the applicant credit for nine semester units in accounting
earned at the Philippine university.
The applicant also presented a transcript of credits from Woodbury College relating to her matriculation at this school for the
winter quarter of the 1968-69 school year through the winter
quarter of the 1969 -70 school year. Woodbury College is on the
quarter system rather than the semester unit system. The evaluation branch of the University of California has advised the service
that the quarter units earned at a school using the quarter system

are evaluated at two-thirds a semester unit. Review of the transcript of credits from Woodbury shows that she had enrolled in five
accounting courses at Woodbury, each of the courses being fourquarter-unit courses. However, one of the courses is shown as "I"
or incomplete, for which she earned no credit. The four fourquarter-unit courses she did complete earned her a total of 16
quarter units. Two -thirds of 16 quarter units gives her the equiva47

Interim Decision #2125
lent of 10 2/3 semester units earned at Woodbury. The nine semester units earned at the Philippine university, added to the 10 2/3
semester units earned at Woodbury, give her a total of 19 2/3
semtruni.Thofterquidsmnt.The
applicant's statement as contained in her Form ES 575, "Statement of Qualifications of Alien", executed December 4, 1970, accompanying her petition, that she receved an "accounting major" from
Woodbury College in 1970, is not supported by the evidence. School
officials at Woodbury College have advised that 57 quarter units in
accounting are required at that school for a major in that field.
This is the equivalent of 28 semester units. Applicant did not
achieve a major in accounting at Woodbury.
At the time the petition was originally filed on December 6, 1970
it was accompanied by a letter dated November 23, 1970 from a
member of the certified public accounting firm employing the
applicant which states: "This is to certify that Fe Corozon Katigbak has been employed with us since September 29, 1970. We
consider her to be a full-time, permanent employee. A portion of
her duties are those of a junior accountant." The letter fails to
describe her duties and responsibilities and certainly does not
satisfactorily establish that she is employed as an accountant. It is
noted that in the Form ES 575 previously mentioned the applicant
describes her title at the certified public accounting firm as "junior
accountant" and describes her duties as "verifies additions, checks
audits, postings and vouchers, analyzes accounts and prepares
statements." This description of her duties is self-serving and
unsupported and is wording extracted exactly word for word, from
the description of the occupation of junior accountant as defined in
Volume 1 of the Dictionary of Occupational Titles. No more
credence can be given this description of her duties than is to be
given to her claim, also contained in the Form ES 575, that she
had received a major in accounting from Woodbury College in 1970.
The District Director denied the petition on January 29, 1971 and
denied the motion to reopen on February 16, 1971. The applicant, at
the very most, had but 19 2/3 semester units in accounting and was
academically not qualified as a professional accountant. Further-

mbre, her academic preparation, coupled with her limited work
experience, cannot be equated to the equivalent of a baccalaureate

degree or a major in the field of accounting. The denial of the
petition and denial of the motion by the District Director were
well-founded and correct decisions.
Counsel, with his brief presented in support of his appeal dated
September 22, 1971, presented evidence that the applicant attended
California State College, Los Angeles, during the spring quarter of
1971 and completed a course titled "auditing 1", earning four

48

Interim Decision #2125
quarter units. At the time of oral argument in support of the
appeal (October 12, 1971), counsel also presented a "notification of
grade change" dated September 29, 1971 from California State
College, Los Angeles, addressed to "Dear Student", stating that
"your grade in Bus. 321 (tax acctg) has been changed from Inc. to
B. This notice does not indicate to whom addressed or the
number of quarter units earned in the related course.
Counsel argues that these units, earned subsequent to filing of
the petition and subsequent to the District Director's denial

decision, should be totalled with the units applicant had previously
earned prior to the time of filing her petition. We do not agree.

When a third preference petition is filed, it seeks to establish
that the beneficiary is a qualified member of the professions at
that time eligible for preference. If the petition is approved, he has
established a priority date for visa number assignment as of the
date that petition was filed. A petition may not be approved for a
profession for which the beneficiary is not qualified at the time of
its filing. The beneficiary cannot expect to qualify subsequently by
taking additional courses and then still claim a priority date as of
the date the petition was filed, a date on which he was not
Qualified.
Section 204 of the Act requires the filing of a visa petition for
classification under section 203(a)(3). The latter section states, in
pertinent part: "Visas shall next be made available to qualified
immigrants who are members of the professions." (Emphasis
added.) It is clear that it was the intent of Congress that an alien
be a recognized and fully qualified member of the professions at
the time the petition is filed. Congress did not intend that a
petition that was properly denied because the beneficiary was not
at that time qualified be subsequently approved at a future date
when the beneficiary may become qualified under a new set of
facts. To do otherwise would make a farce of the preference ystem
and priorities set up by statute and regulation.
Counsel also argues that the Service has failed to give due credit
to the applicant's work experience and quotes a number of published decisions wherein an alien was found qualified as a member
of the professions by a combination of education and work experience. The applicant in the present case had only two months of
limited work experience prior to the filing of her petition when she
had, at most, 19 2/3 academic semester units in accounting. This
very limited experience does not make up for the lack of her
academic credits. In the published decisions cited by counsel the
petitioners generally had many years of responsible experience in
supervisory and executive positions; some had taken additional
vocational and/or specialized training in their fields, others had
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Interim Decision #2125
received honors in their field and were recognized as authorities in
their professions. All had constantly enhanced their skills and
progressively acquired greater responsibilities in their chosen endeavors.
Considering all the factors discussed above, we find that the
denial decisions of the District Director were proper. The applicant
has not established that she is eligible for the preference classification she seeks.
The Matter of Brantigan, 11 I. & N. Dec. 493, holds that the
burden of proof to establish eligibility for a desired preference
rests with the petitioner. That burden has not been met. The
applicant has not etablished that she is eligible for preference
classification under section 203(a)(3) of the Act. The appeal will be
dismissed.
The denial of this petition is without prejudice to the applicant
submitting a new petition setting forth the new facts as they now
exist.
ORDER: It is ordered that the appeal be dismissed.

50


MATTER OF 5—

In SECTION 9 Proceedings, Act of September , 1957
A-11335687

A-11338032
Decided by Assistant Commissioner July 31, 1958
Adjustment of status—Section 9, Act of September 11, 1957—Eligibility of
spouse—Eligibility not affected by beneficiary's immigratiomatatus 113.—
Good moral character not a requirement for eligibility—Determination of unavailability of visa.
(1) Whether in or outside the United States on July 1, 1957, the "spouse" of
the principal beneficiary under section 9 of the Act of September 11, 1957,
dose not qualify for the benofito of that oeetion unleoo the marital otatuo

came into being prior to July 1, 1977.
(2) Statute does not require that the beneficiary must have maintained any
particular immigration status in the United States. Hence, violation or termil:lainu or nonimmigrant status Is not a Fromm Or ineumonity tumer section 9.
(3) A visa is regarded as unavailable within the meaning of section 9 if the
quota to which the beneficiary is chargeable was oversubscribed between the
filing of the visa petition and September 10, 1957, the day prior to the effective date of the Act of September 11, 1957.
(4) An applicant for adjustment of status under section 9 of the Act of September 11. 1957. is not reunired to ostahlish goad moral rharaeror ea no Mameat of eligibility.
BEFORE THE ASSISTANT COMMISSIONER

Discussion: This case has been certified to the Assistant Commissioner, Examinations Division.
The applicants, a 27-year-old male and his 30-year-old spouse,
are natives and citizens of Australia. They last entered the United
States at San Francisco on May 20, 1957, at which time they were
admitted as nonimmigrant visitors for pleasure for a period expiring on August 90, 1957. On Juno 90, 1957, a visa petition seeking
classification under section 203(a) (1) (A) of the Immigration and
Nationality Act was filed on behalf of the male applicant. The
petition was approved on June 25, 1957. Thereafter, the male applicant accepted employment elsewhere. On July 16, 1957, both applicants were informed that inasmuch as they had abandoned their
nonimmigrant status they could no longer be considered in lawful
100

status and were given until July 3, 1958, to depart voluntarily from
the United States.
On November 26, 1957, the applicants made application for adjustment of status to that of aliens lawfully admitted for permanent
residence under the provisions of section 9 of the Act of September
11, 1957. In order to qualify for adjustment of status under this
section an applicant must establish that he (1) was physically
present in the United States on July 1, 1957; (2) is the beneficiary
of an approved visa petition for immigrant status under section
203(a) (1) (A) of the Immigration and Nationality Act filed on his
behalf prior to September 11,1.957, or is the spouse or child of such
a beneficiary; (3) is admissible to the United States, except for the
fact that an immigrant visa is not promptly available for issuance
to him because the quota of the quota area to which he is chargeable
is oversubscribed; and (4) he applies on Form 1-507 for adjustment
of status.
The benefits of section 9 are made available to the "spouse " *
physically present within the United States on July 1, 1957" of an
alien physically present within the United States on July 1, 1957,
who is the beneficiary of an approved visa petition for immigrant
status under section 203(0(1) (A) of the Immigration and Nationality Act filed on his behalf prior to September 11, 1957. It is noted
that, unlike the statutory provision in section 9 relating to the
bombe otadicle the United States of a principal beneficiary,

110

specific date is fixed as to when the marriage must have occurred by
reason of which such relationship arose. It might be argued, therefore, that with respect to the spouse in the United States, the date
of marriage is immaterial and may occur before or after July 1,
1957, and before or after the approval of the petition by reason of
which the. huchand obtained first preference classification. It is
concluded, however, that notwithstanding the failure to specifically
provide a date prior to which the marriage must have occurred for
the spouse in the United States, the language of section 9(B) quoted
above clearly evidences a congressional intent that the relationship
and the physical presence within the United States must both be in
existence on July 1, 1957. It follows, therefore, that the requirement that the marriage must have occurred prior to July 1, 1957,
is applicable to the spouse in, as well as outside, the United States.
In the instant case, the marriage of the applicants to each other
occurred in Australia on May 20, 1957; the visa petition of which
the male applicant is the beneficiary was approved June 25, 1957,
and both applicants were physically present in the United States
on July 1, 1957. Accordingly, the female applicant meets the requirements of section 9(B) of the Act of September 11, 1957.

101

As both of the applicants ceased being in lawful nonimmigrant
status by taking employment prior to the filing of their instant applications, it might be argued that they had no "status" to adjust
within the meaning of section 9. That section does not require the
beneficiary to have entered in any particular status under the immigration laws. Consequently, the violation of their immigration
status by taking employment does not render them ineligible.
It remains to be decided as of what date is the unavailability of
a quota to be determined. Were we to interpret the statute to require that the availability of an immigrant visa be determined
currently, that is, when the application for adjustment under section 9 is adjudicated, it would result in nullifying section 9 for
those first preference beneficiaries otherwise qualified under that
section whose petitions were approved prior to July 1, 1957, since
under section 12 of the Act of September 11, 1957, immigrant visas
(nonquota) are currently available to them. This would deny the
benefits of section 9 to the vast majority of the first preference
beneficiaries intended by Congress to be benefited. Such interpretation would result in requiring such beneficiaries to leave the United
States in order to obtain their immigrant visas since not alone would
they be ineligible for adjustment of status to permanent residence
under section 9, as above stated, but also ineligible for adjustment

under section 245 of the Immigration and Nationality Art heing
nonquota immigrants other than 101(a) (27)(A) of the act. Another consequence of such interpretation would be that since the
principal beneficiary would be ineligible for section 9 adjustment,
the derivative spouse and children could not adjust their status
under section 9 and would be required to leave the United States in
order to acquire permanent resident status.
The legislative history behind sections 9 and 12 discloses that
they were originally introduced as separate bills, were separately
considered, and later incorporated into the single bill which became
the Act of September 11, 1957. In fact, H.R. 8123 provided special
nonquota visas only for second and third preferences, similar provision for first preferences being included in the Senate bill later
adopted in conference. It is for the reasons stated that the provisions of sections 9 and 12 overlap.
A statute is to be interpreted so as to give meaning and purpose
to each portion thereof avoiding results which are unreasonable and
not within the apparent intent of the Congress. Each separate
section is to be read and interpreted so as to carry out the manifest
purpose sought to be achieved, to give reasonable meaning and
scope to each, and to the act in its entirety. Applying these precepts to the Act of September 11, 1957, and to give full meaning
and purpose to sections 9 and 12, the visa requirement provision is

102

interpreted to mean that the unavailability of a visa because of
oversubscription refers to the period between the filing of the visa
petition and September 10, 1957, the day prior to the effective date
of the Act of September 11, 1957, such unavailability being determined in accordance with visa availability lists covering such period.
Such interpretation will not deny to eligible beneficiaries the benefits
of section 9 because they may also qualify for benefits of section
12 and will fully accomplish the objectives sought to be achieved by
the legislation under discussion.
Report No. 33 of the Visa Office of the Department of State,
dated May 99, 1057, and current from that data until Report No 54,

dated September 20, 1957, reflects that a first preference quota visa
was unavailable during that period for filing applications under
section 245 of the Immigration and Nationality Act.
The applicants do not fall within any of the excluding provisions
of section 212(a) of the Immigration and Nationality Act. While
they have been found to have committed adultery, as will be more
fully set forth below in the discussion of good moral character, they
have not been convicted of such offense, have not made an admission
of such offense within the meaning of section 212(a) (9), nor would
such admission if made be a ground of inadmissibility under the
well-settled rule of the Service on the admission of such offense.
Both applicants have been examined by an officer of the U.S. Public
Health Service and fowl(' to he free of any certifiable defects.
The record reflects that each of the applicants was previously
married, such marriages having been terminated in Australia by
divorce decrees dated December 12, 1955, and March 28, 1956. The
male applicant was the defendant in the proceeding against him.,
the female applicant being named co-respondent and co-defendant.
In the divorce action involving the female applicant, she was named
as the defendant and the male applicant Ike co - respondent and codefendant. The divorce was granted the plaintiff in each case by
reason of the adultery committed by the defendant with the codefendant named.
If an applicant for adjustment of status under section 9 of the
Act of September 11, 1957 is required to establish good moral character, the adultery committed by the applicants must be considered
and a determination made whether it occurred during whatever
period, if any, good moral character is required to be established.
In the absence of a statutory requirement that good moral character
be established, such a requirement may be imposed if the statute
provides that the action be taken in the exercise of discretion (Mat, A 10463832, 7 I. & N. Dec. 651), or impliedly
ter of H R
or expressly authorizes its implementation by regulations and the
regulations promulgated thereunder prescribe such a requirement.
103

We will first determine the applicability to the Act of September
11, 1957, of section 101(f ) ( . 2) of the Immigration and Nationality
Act which provides that no person shall be regarded as, or found to
be, a person of good moral character who, during the period for

which good moral character is required to be established, is, or was
one who during such period has committed adultery. IT applicable,
an applicant under section 9 would not be precluded thereby from
establishing good moral character since neither that section nor the
regulations promulgated thereunder provide a period during which
good moral character shall be established (Matter of N—,
A-4532071, 7 I. & N. Dec. 368). However, under the principle of
eapressio uniue eet exclutio alterius, we conclude that section 101(f)
is not applicable since section 14 of. the Act of September 11, 1957,
provides that only definitions contained in section 101 (a) and (b)
of the Immigration and Nationality Act shall apply.
We shall now determine whether there is any requirement that an
applicant under section 9 establish good moral character. That
section is silent as to such a requirement. Unlike other sections of
the same act, it does not provide that the action shall be taken in
the exercise of discretion. While it does provide that the action ha
taken pursuant to such terms and conditions as may by regulations
be prescribed, the regulations promulgated, 8 CFR 245, do not require that good moral character be established. Thus, we conclude
that good moral character is not germane.
The record establishes that the applicants have met all of the
statutory and regulatory requirements of section 9 of the Act of
September 11, 1957. Accordingly, their applications for adjustment
of status to that of aliens lawfully admitted for permanent residence will be granted.
It is noted that the applieente were not notified of the proposed

certification as is provided for in 8 CFR 7.15. As the District
Director's and Regional Commissioner's decisions are both favorable,
this procedural omission in no way prejudiced the applicants' case
and no useful purpose would be served in returning the case for
compliance.
Order: It is ordered that pursuant to section 9 of the Act of
September 11, 1957, the applications of B
G
S
and E
J—S------ for adjustment of status to that of aliens lawfully admitted for permanent residence be and the same are hereby granted.

104


Interim Decision #2101

MATTER OF MARALLAG

In Deportation Proceedings
A-17833582
Decided by Board November 5, 1971
Respondent's deportation hearing was properly held in absentia where she
was notified of the time and place of hearing, she had a reasonable opportunity to be present, and she has shown no reasonable cause for her failure to attend (section 242(b), Immigration and Nationality Act).

CHARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant visitor—remained longer.
ON BEHALF OF SERVICE:
Stephen M. Suffin
Trial Attorney
(Brief filed)

ON BEHALF OF RESPONDENT:

John L. Weir, Esquire
483 Castro Street
San Francisco, California 94114

Respondent appeals from the special inquiry officer's order requiring her deportation. The appeal will be dismissed. We find respondent deportable, but we will grant voluntary departure.
The deportation hearing was held in absentia. Exhibits introduced at the hearing establish that the respondent, a 29-year-old
single female, a native and citizen of the Philippines, admitted as
a temporary visitor for pleasure on April 5, 1971 for a period
ending May 15, 1971, did not receive an extension of stay. The
record establishes respondent's deportability.
In a brief submitted on appeal counsel contended that he could
not be present at the deportation hearing because he was busy.
He stated that respondent "was not able to receive a notice" of
the hearing. There is no further explanation and no affidavit
from respondent on the matter. The trial attorney stated counsel
did not ask for an adjournment. In the brief, counsel requested
additional time within which to file a brief. The request was
granted by the special inquiry officer. The other further communication from counsel is a letter dated September 17, 1971 in
775

Interim Decision #2101
which he asked that action in the deportation proceeding be held
in abeyance pending the outcome of the respondent's petition for
a third preference visa. (A letter in the file reveals respondent's
petition has now been denied because she lacked a labor certification.)
The trial attorney has filed a brief requesting that the finding
of deportability be upheld. He stated that the Service would not
oppose a grant of voluntary departure.
The hearing was properly held in absentia. Respondent had a
reasonable opportunity to be present and she showed no reasonable cause for her failure to attend, section 242 (b) of the Act (8
U.S.C. 1252 (b) ). The record establishes that the Service notified
the respondent by certified mail of the deportation charges and of
the time and place of hearing. A receipt is in evidence showing
the Service notice was received at the respondent's address. The
;trial attorney stated that counsel also had been notified of the
time and place of the hearing. There was no reason to postpone
the hearing because respondent had filed a petition for a third
preference visa, Bowes v. District Director, 433 F.2d 30 (9 Cir.,
1971) .
ORDER: The special inquiry officer's order is withdrawn.
Further order: The alien is permitted to depart from the
United States voluntarily without expense to the Government, to
any country of her choice, within such period of time, in any
event not less than 30 days, and under such conditions as the officer-in-charge of the District deems appropriate.
Further Order: In the event of failure so to depart, the respondent shall be deported from the United States to the Philippines on the charge set forth in the order to show cause.

77R


MATilm OF

F—

In VISA PETITION Proceedings
VP 3-1-126943
Decided by Board January 29, 1959
Nonquota status—Spouse of United States citizen—Divorce decree granted by
State court not subject to collateral attack In visa petition proceedin g.
(1) For the purposes of administering the immigration laws, a divorce decree granted by a State court will not be open to collateral attack on jurisdictional grounds to inquire into questions of residence and domicile, prothe
-vided one of the parties to the divorce was actually present within
court's jurisdiction.
United
States
citizen
wife
to
confer
nonquota
status
(2) Visa petition filed by
upon alien husband will be approved whore tho record elvers that the hone.

ficiary's divorce from his first wife in Italy was granted by a Florida court
before whom the beneficiary was physically present and was followed by a
ceremonial marriage in New York to his present spouse.

BEFORE THE BOARD

Discussion: The case comes forward on appeal from the order
of the District Director, New York District, dated August 11, 1958,
denying the visa petition for the reason that petitioner's marriage
to the beneficiary/husband is not legal on tthe ground that he did
not have the necessary residence in the State of Florida before he
obtained his divorce there; that consequently his prior marriage
had not been legally terminated and the petitioner's present marriage to the beneficiary is invalid.
The petitioner's acquisition of United States citizenship through
her father is conceded. She seeks nonquota status on behalf of
the beneficiary whom she married at New York on January 25,
1958. This is the first marriage for the petitioner. The beneficiary
was previously married on March 6, 1950, and as evidence of the
termination of his prior marriage he submitted a final decree of
divorce obtained in the Circuit C,ourt of the Eleventh Judicial
District in and for Dade County, Miami, Florida, on January 16,
1958. Examination of the divorce decree indicates that a decree
pro confes8o was entered against the defendant's wife and provided
for the payment of $10 per month by the plaintiff-husband for the
support of the minor child of the parties, the wife and child then
residing in Italy.
251

A sworn statement was taken from the beneficiary, who is an
applicant for preexamination, by a Service officer on May 26, 1958,
and May 20, .W55. In the course of the first statement the beneficiary stated that he had lived in Miami Beach, Florida, continually from April 1957 to September 1957, returned to Miami after
15 days in New York, next returned to New York Christmas 1057,
back to Miami about the fifteenth of January 1958 to obtain his
divorce decree, thereafter returning to New York where he has since
resided.
The beneficiary appeared voluntarily for a second statement to
reveal that he had not disclosed the whole truth about his Florida
residence. He stated that he first went to Florida in April 1957
and remained 4 days in order to sign some papers before a notary
public; that he next went to Florida in June or July 1957, also for
the purpose of signing papers before a notary public, and returned
the same day; that he finally returned to Florida on January 15,
1958, and appeared in court and was granted a divorce the next day.
He admitted that he had never actually resided in Florida but had
alwaye lived in New York. He did not recall being ached under
oath whether he was a resident of Florida and claimed that he did
not know the residential requirements for divorce in Florida but
simply did what his lawyer told him to do that the lawyer had told
him that he could go back and forth 3 times and that it was the
same as if he had resided there. He stated he had been advised by a
friend to testify that he had resided in Florida and that he was
scared when he appeared before an official of the law for a sworn
statement on May 26, 1958. He further testified that he retained a
New York lawyer to handle the divorce matter and that the latter
refereed him to the Florida attorney. He tut [her e.xplained that he
and his wife did not actually consummate the marriage and live
together until the religious ceremony in April 1958, and that they
had lived together since that time. The beneficiary stated that his
first wife was never in the United States but that she had been
notified of the divorce action by letter.
In the instant case we have in evidence a marriage certificate
showing that the parties married in accordance with all the prescribed formalities of law. In addition, there has been submitted
a divorce decree of a State court purporting to dissolve the prior
marriage of the beneficiary. There is of course the legal presumption which favors the validity of every ceremonial marriage which
is one of the strongest presumptions known to the law and which
ordinarily will yield only in the face of the most compelling
proof.' In addition, the divorce decree in Florida was rendered by
Schouler. Marriage, Divorce, Separation and Domestic Relations (Cth ed.),
vol. II, p. 1477; IV/Donne on Evidence (3rd ed.), vol. IX. p. 370.

252

a legally constituted court. Not only the full faith and credit
clause of the Federal Constitution, but familiar principles of law
require the acceptance at face value of a judgment regularly granted
by a competent

court, unless a fatal defect is evident upon the

judgment's face. However, the presumption of regularity and of
jurisdiction may be overcome by extrinsic evidence or by the record itself.' That presumption may be overcome and is open to
attack where the other spouse in the divorce proceeding had neither
appeared nor been served with process in the State. , The burden
of undermining the decree of a sister State is a heavy one and is
not overcome by a record which contains merely a statement by the
court below that the findings do not show that the defendant has
appeared or been served with process in the divorce State, where
the record does not contain the decree nor any stipulation concerning
it.'
In the instant case the first wife of the beneficiary had neither
appeared nor been served with process in the State. The Service
representative has cited a number of Florida cases which indicate
that the residence of a plaintiff in a divorce action in Florida
may he attacked to show lack of jurisdiction and where jurisdiction is shown to be vulnerable, generally, under such circumstances,
a collateral attack may be made on the decree of the court. Here,
the beneficiary who was the plaintiff in the court action did make
a personal appearance within the jurisdiction of the Florida court.
The question we are confronted with is, whether, for immigration
purposes, and under circumstances such as are present in this case,
in the face of a divorce decree granted by a court of competent
jurisdiction, followed by a ceremonial marriage which complies with
the formalities of law, and evidence showing that the plaintiff in
the court action wee present within the jurisslietinn of the enurt, we

should inquire into the question of bona fide residence which purported to give the court jurisdiction.
This problem has previously been the subject of administrative
scrutiny.' Questions involving the validity and recognition of
divorces have concerned the courts for many years and unquestionably will continue to cause difficulty in the future; however, the
Service can hardly undertake to become a disputant in the divorce
arena since immigration officers are not equipped to adjudicate
•
3

Adam v. Soe,9,,, 2C1? L`- C_ as Mat )
iriniaM8 V. North CarOlintl, 325 U.S. 226 (1945).

Cook v. Cook, 342 U.S. 126 (1951).
Hernorandunt of the General Counsel, Immigration and Naturalization
Service, File 56013—B (7/2/47), approved by the Commissioner 7/5/47,
The
General Counsel's memorandum involved a Nevada divorce decree but the
arguments would appear to apply with equal cogency to a Florida divorce
decree.

253

troublesome legal questions of this character; and for the purpose
of the immigration laws a divorce decree regularly granted by a
court in the fruited States should be accepted at face value and
should be deemed to have terminated the prim - marriage for immigration purposes. There is no Federal policy which enjoins the
nullification of State divorce decrees. On the other hand, a sound
policy would require the avoidance, if possible, of a disruption of
stable family relationships, and as a Federal administrative agency
enforcing Federal statutes there is no justification in disregarding
a divorce decree legally granted by a State court.
The assumption of authority to pass upon the validity of divorce
decrees would place an excessive burden upon those charged with
administration of the immigration laws. Exploration of the ramifications of divorce law in each case would inevitably lead into
labyrinths of jurisdiction, domicile, residence and status with no
satisfactory goal and an involvement in complexities utterly foreign
to the responsibilities of administering the immigration laws. It
would not appear to be sound administrative practice to expect
immigration officers to pause in executing their own exacting duties
in order to embark upon the collateral inquiry so to whether State
divorce decrees were supported by proper jurisdiction and such an
inquiry would impede the expeditious administration of the immigration laws. The wisest emir.e would be to accept at face value
the marital status regularized in conformity with the laws of the
State. In conclusion, for the purpose of the immigration laws,
the Service should regard as valid a divorce regularly granted by
a State court and a subsequent remarriage formalized in conIn
formity with the laws of that State or of any other State.
adopting this policy the requirements of the law would be adhered
to, proper effect would be given to judgment, and proce e dings of a
sovereign State, and reasonable safeguards would thereby be erected
to protect a properly solemnized marital relationship. Finally, the
adoption of such a policy would unquestionably facilitate the administration of the immigration laws.
These views received endorsement in Metter of B—, 3 I. & N.
Dec. 227, where the residential requirements of jurisdiction of a
Mexican divorce obtained by the petitioner were brought into question. It appeared that the petitioner had gone to Mexico for a few
days, was granted a divorce, then returned to live in Florida and
later remarried the beneficiary. In that case we disapproved as
improper the view that immigration authorities must inquire into
the validity of every divorce, whether obtained within the United
States or elsewhere, and satisfy itself that the petitioner in a divorce
action in every instance was domiciled within the jurisdiction of the
court granting the decree before a subsequent marriage would be
2y4

recognized. We expressed the view that an administrative agency
is going far beyond its legislative sphere when it attempts to inquire into the issue of whether the petitioner for a divorce was
domiciled within the jurisdiction of the court granting the divorce
and, therefore, whether the decree ought to be recognized. We set
forth the principle that inquiry into the jurisdiction of a court
should stop when it is ascertained that a party to the proceeding
was tietually within the court's jurisdiction.
In Matter of B—, 5 I. & N. Dec. 659, we recognized as valid
a marriage in California subsequent to a Mexican divorce obtained
by a wife, the wife having made a trip to Mexico to secure the
divorce and the defendant-husband having given his written consent to the divorce and having been represented by counsel in the
divorce proceedings, applying the principle that the validity of a
marriage is governed by the law of the place of celebrations Of
course, this type of case differs from the pure Mexican "mailorder" divorce decree where neither party was ever physically present within the jurisdiction of the court or within the jurisdiction
of the state. However, if recognition under rules of comity is
grained iv a Mexican divorce decree in which one of the parties was
physically present within the jurisdiction, it would follow that
recognition under the full faith and credit clause of the Constitution would pragent a stronger argument for recognition of a divorce
decree granted by a sister State in which one of the parties was
actually present within the court's jurisdiction. Under such circumstances, it having been established that one of the parties was
physically present within the court's jurisdiction, for immigration
purposes the inquiry as to jurisdiction should end.
In the present case it appears that the beneficiary was actually
present within the jurisdiction of the Florida court and appeared
in court when he obtained the divorce decree terminating his first
marriage. He has presented evidence of a subsequent ceremonial
civil marriage, as well as a religious marriage with the petitioner in
the State of New York. There is no indication of any attempt by
the first wife to contest the Florida divorce decree. Under these
circumstances, the visa petition will be approved.
Order: It is ordered that the visa petition be and the same is
hereby approved for nonquota status on behalf of the beneficiary.
Matter of P---, 4 I. & N. Dec. ecu.

255


Interim Decision #1877

MATTER OF GALTIERI

In Deportation Proceedings
A-12281135
Decided by Board itune RS, .1968
Notwithstanding a complete lack of books written or public speeches made
against communism by respondent who in 1953 ceased to be a member of the
Italian Communist Youth Federation which he voluntarily joined in 1951 at
age 18, respondent's full disclosure to the American consul of his former
membership in that organization, his offer of his services to the U.S. Government to combat communism, and his frequent expressions of anti-communist
sentiments to his Mends constitutes being "actively opposed" to communism
for the purpose of defector classification under section 212(a) (28) (I) (II)
of the Immigration and Nationality Act, as amended, and, being otherwise
eligible, respondent Is properly accorded adjustment of status under section
245 of the Act (Matter of B , 6 I. & N. Dec. 713, distinguished).
—

CiTeam:
Order: Act of 1952—Section 241(a) (2) (8 U.S.C. 1251(a) (2) )—Nonimmigrant—student—remained longer.
ON BANAL? OY Ibeasownetnr

Off Bicamar or Bravics :
Irving A. Appleman
Appellate Trial Attorney
Stephen M. Stalin
Trial Attorney
(Brief filed)

Joseph S. Hertogs, Esquire
580 Washington Street
San Francisco, California 94111

The proceedings have been certified to us by the special inquiry
officer for review and final decision. On April 2, 1968 the special inquiry officer ordered that the proceedings be terminated, that respondent be granted defector status under section 212(a) (28) (I) (ii)
of the Immigration and Nationality Act and that respondent be accorded permanent residence under section 245, Immigration and Nationality Act.
Two questions are presented for our consideration. The first is
whether the record justified granting respondent defector status under
section 212(a) (28) (I) (ii) of the Act, and the second is whether
suspension of deportation under section 244(a) (1) of the Act should

778

Interim

IfeCIS10D. *Flo l I

have been considered rather than granting respondent permanent
residence under section 245 of the Act.
The respondent is a 35-year-old married male alien, a native and
citizen of Italy who was admitted into the United States as a student

on September 27, 1960 and who was authorized to remain until February 18, 1967. He remained beyond that date and thus became deportable as charged, a fact which respondent concedes and which
is amply sustained by the record.
The respondent is married to a lawful permanent resident of the
United States, and they have one child who is a citizen of the United
States by reason of birth in the United States. The record shows quite
clearly that respondent is a highly educated man, having a doctorate
degree in engineering science and who is doing advanced computer
programming for the International Business Machine Company in
California. Respondent is well thought of in the community and an
independent investigation indicates that he is a person of good. moral
character and is not now a member of any subversive organizations.
The fact is also not in dispute that from October 1951 to the spring
of 1953 respondent, in Italy, was a voluntary member of the Italian
Communist Youth Federation (F.G.C.I.), an affiliate of the Communist Party of Italy. When respondent joined he was 18 years old,
and in the spring of 1953, becoming disillusioned with this group he
handed in his resignation. The resignation was refused and instead he
was expelled from this Youth Federation, which appears to be the
usual procedure when a person attempts to resign from such an organization. He testified that he never did believe in the communist teachings but that he was very young at the time he joined the organization
and did not know what he was getting into, but that he got out when
he fully understood the aims and methods of the group. He testified
that since that time in 1953 he has been very much opposed to anything
communistic and on many occasions he has spoken out to his friends
and acquaintances concerning his anticommunist feelings and beliefs.
This latter fact was corroborated by two witnesses who testified at the
hearing on respondent's behalf.
We think that the special inquiry officer was correct in holding that
respondent was entitled to the status of a defector under section 212
(a) (28) (I) (ii) of the Immigration and Nationality Act. Such section
provides as follows:
Any alien who is within any of the classes described in subparagraphs (B),
(C), (T)), (E), (p). (G), and (H) of this paragraph because of membership
in or affiliation with a party or organization or a section, subsidiary, branch,
affiliate, or subdivision thereof, may, if not otherwise ineligible be issued a visa
if such alien establishes that . . . (11) (a) since the termination of such member-

321-654-69-51

779

Interim Decision #1877
ship or affiliation, such alien is and has been, for at least five years prior to the
date of the application for a visa, actively opposed to the doctrine. program. principles, and ideology of such party or organization ... and (b) the admission of
such alien into the United States would be in the public interest.

To begin with, when respondent applied for his visa at the American
Consulate in Italy in 1960 he told the truth about his prior party
affiliation and he made a detailed statement concerning this entire
matter (Ex. 6). Also he testified that he offered his services to an
agency of the United States Federal Government to engage in any
overt or covert activities against communism, but his services were
not utilized. It is true that respondent during the five years prior to
the time he applied for defector status (November 24, 1966), did not
write any books or make public speeches against communism, which
is the usual thing done by prominent political figures who defect.

But respondent was never engaged in politics and was not prominent.
However, we hold that his making a full disclosure to the American
Consul concerning his former membership in the youth group, his
offering his services to the United States Government to combat communism, his frequent statements to his circle of friends as to his
anti-communist sentiments, and finally his lengthy testimony at the
hearing, amounts, under the circumstances to being "actively opposed"
to communism as required by the statute. We hold that he is entitled
to be classified as a defector under section 212(a) (28) (I) (ii) of the
Act and therefore may be issued a visa. His admission to the United
States is clearly in the public interest.
The second question for determination concerns the decision of the
special inquiry officer to grant permanent resident status under section 245 rather than considering the granting of suspension of deportation under section 244(a) .(1) of the Act. The Service cites Matter of
B—, 6 L & N. Dec. 713, in support of the contention that suspension
of deportation -would have been the proper remedy. In Matter of B—
respondent was deportable by reason of voluntary membership in the
Communist Party of the United States after entry. The choice was
between granting him suspension of deportation or terminating the
proceedings to enable him to file a petition for naturalization. The
Attorney General stated: "After carefully considering the matter, I
have concluded that it would be more appropriate in this ease (emphasis added) to grant the alien's application for suspension of deportation pursuant to the provisions of section 244(a) (5) of the Act in
order that the Congress will have an opportunity to review my action
as contemplated by that section." This was ordered in lieu of terminating the proceedings for the limited and sole purpose of permitting
respondent to file a petition for naturalization.
780

111w1 111a J./W101UL.

Av I I

We do not believe that Matter of B— constrains us to hold in the
case before us that suspension of deportation would be the proper
discretionary remedy rather than adjustment of status under section
245 of the Act. The facts of the two cases are different, the alternative
remedy sought is different, and it appears quite clear from a careful
reading of Matter of B— that the holding in that case was meant to
apply to that particular case rather than laying down a broad principle of law to be followed in all similar cases. In the instant case
respondent is entitled to have his status adjusted to that of a permanent resident under section 245 of the Act and we do not see any error
in his being granted such relief by the special inquiry officer.
For these reasons we will affirm the order of the special inquiry
officer terminating the proceedings and granting respondent's application for adjustment of status wider section 245, Immigration and
Nationality Act.
ORDER: It is directed that the order of the special inquiry officer
of April 2, 1968 terminating the proceedings and granting respondent
permanent residence under section 245, Immigration and Nationality
Act, be approved.

781


Interim Decision #1280
MATTER

OF MAT1TRANA

In DEPORTATION Proceedings
A-10582918
Decided by Board April12,1963
A person born in Puerto Rico on October 4, 1931, of a native-born Spanish citizen
father and a Cuban citizen mother who came to Puerto Rico in 1913 and 1922,
respectively, who, shortly after birth, was -taken by her parents to Spain where
she resided until her entry at San Juan, P.R., on May 17, 1957, was issued a
national document of identity as a Spanish citizen in 1952 and was issued a
Spanish passport, was a national or citizen of Spain at birth under the provisions of Article 17 of the Civil Code of Spain, as amended by the Act of December 9, 1931; therefore, she did not acquire United States citizenship under
the provisions of section 5b of the Act of March 2, 1917, as amended by the
Act of June 27, 1934, since she was a citizen or national of a foreign power
(Spain) residing abroad permanently on June 27, 1934.
CHARGE :
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable
at time of entry under section 212(a) (20) [8 U.S.O. 1182 (a) (20) ;
immigrant, no Tine.

The case comes forward on appeal from the order of the special inquiry officer dated November 6, 1962 finding the respondent to be an
alien and ordering that she be deported to Spain on the charge contained in the order to show cause.
The facts of the case are not in dispute. The record relates to an
unmarried female who was born. in Manati, Puerto Rico on October 4,
1931. She last entered the United States at San Juan, Puerto Rico on
May 17, 1957 in possession of United States Passport No. 471 issued at
Madrid, Spain on May 8, 1957 and was admitted as a United States
citizen. At the time of her entry she possessed no immigration document other than a Spanish passport which had been issued to her on
May 14, 1957 at Madrid, Spain showing her nationality as "Spanish
by origin." She testified at the original hearing on May 29, 1958 that
she applied for a Spanish passport after she had received her United
States passport because she was required to do so by the Spanish police
before she could obtain permission to leave Spain (pp. 12 & 18). At
250

Interim Decision #1280
the time of her last entry she intended to reside permanently in the.

United States.
The respondent and her parents left for Spain shortly after her birth

and the respondent resided in that country until her entry at San Juan,
Puerto Rico on. May 17, 1957. During that period of approximately
26 years her father had died in Spain in September 1937 and the respondent and her family continued to reside in that country where
the respondent obtained her schooling and employment.
The respondent testified that her father was a citizen of Spain and
never had or acquired any other nationality and that her mother was a
citizen of Cuba at the time of the respondent's birth and acquired no
other nationality except possibly that of Spain by virtue of her marriage. The mother stated that the respondent's father, Luis Cueto

Ibanez, first came to Puerto Rico about 1913 or 1914; that she arrived
in Puerto Rico on January 1, 1922 ex SS. Magallanes accompanied by
her husband and that they remained until 1931, subsequent to the birth
of the respondent. The mother testified that between April 11, 1899
and Apri112, 1900 she resided in Spain (Ex. 4).
The Service obtained a certified copy of the affidavit contained in
the respondent's passport file executed by her at the American Embassy
at Madrid, Spain on July 11, 1956 in the course of which she stated
that she had obtained National Document of Identity No. 2809982
issued to her on January 14, 1952 by the Direction General of Security, Madrid, Spain to enable her to travel within Spain. The discovery that the respondent had been issued a national document of
identity as a Spanish citizen on January 14, 1952 prompted the special
inquiry officer to grant a Service motion to reopen on the basis of new
evidence after an earlier decision of another special inquiry officer
dated August 19, 1958 had terminated proceedings. on the ground
that the respondent acquired United States citizenship under the

provisions of the Act of March 2, 1917 as amended by the Act of
June 27, 1934 and that respondent's alienage had not been established.
In granting the motion to reopen. the special inquiry officer observed
that the better procedure might have been to institute a new deportation proceeding by way of a new order to show cause and to submit
all the prior evidence in the new proceeding. Inasmuch as the evidence adduced at the prior hearing and at the reopened hearing have
been considered by the special inquiry officer in reaching his decision,
and in the absence of any objection to the grant of the motion to reopen by counsel, it is believed that due process has been observed and
that the failure to issue a new warrant does not vitiate the proceeding?
Es parte Guest, 287 F. 884 (D.C. R.I., 1923) ; Valerie v. Mane, 148 F. Supp.
F. 2d 040 (1901) ; Matter of C ,
4 I. & N. Dee. 415.
1940 (197.0) ; Pineiro-Lopez v. Sonnet:Ty, 293

257
768-456-05-13

—

Interim Decision #1280
The special inquiry officer, in a long and thorough decision, has set
forth the treaties and statutes relating to acquisition of United States
citizenship by a person born in Puerto Rico and no purpose would
be served by repeating them at length. We shall however set forth
the provisions of section 5 and section 5b of the Act of March 2, 1917
as amended by June 27, 1934 and Article 17 of the Civil Code of Spain

as amended by the Act of December 9, 1931. The former provides as
follows:
Section 5. That all citizens of Puerto Rico as defined by section seven of the
Act of April twelfth, nineteen hundred . . . and all natives of Puerto Rico, who
were temporarily absent from that island on April eleventh, eighteen hundred
and ninety-nine, and have since returned and are permanently residing in that
island, and are not citizens of any foreign country, are hereby declared, and
shall be deemed and held to be citizens of the United States . . . (8 U.B.C. 5).
(Emphasis supplied.)
Section 5b (added by the Act of June 27, 1934). All persons born in Puerto
Rico on or after April 11. 1899 (whether before or after the effective date of
this Act) and not ottizen8, subjects, or nationals of any foreign power, are hereby
declared to be citizens of the United States: Provided, That this Act shall not
be construed . . . to extend such citizenship to persons . . . who are now
residing permanently abroad and are citizens or subjects of a foreign country . . . (Emphasis supplied.) (48 U.S.C. 733b)

The Civil Code of Spain, as amended by the Act of December 9,
1931 provides as follows:
Article 17. The following persons are Spanish nationals : . . . (2) A. person
whose father or mother is a Spanish national, even if that person was born
outside of Spain. (Laws Concerning Nationality, United Nations Legislative
Series, ST/LRG/SER. 0/4,19554, Page 437).

It is clear at the outset that the respondent's father, who was a nativeborn Spanish citizen and who did not come to Puerto Rico until 1913
or 1914, did not acquire Puerto Rican nationality or United States
citizenship; neither did respondent's mother. There is no question
then of derivative citizenship through either parent. The respondent,
who was born in Puerto Rico after April 11, 1899, to -wit, on October
4, 1931, was at birth a Spanish national under Article 17 of the Civil
Code of Spain and does not qualify either under section 5 or section
5b of the Act of March 2, 1917 since she was a citizen or national of
a foreign power, namely, Spain. 2 It may be noted that birth in
Puerto Rieo prior to January 13, 1941 did not result in vesting of
United States citizenship under the provisions of section 202 of the
Nationality Act of 1940 or its successor statute, section 302 of the

Immigration and Nationality Act, if the person so born was not actually or constructively a resident of Puerto Rico on January 13, 1941. 3
2

Cf. Conrad". Dulles,155 F. Supp. 542 (D.C. P.R., 1955).
Puig Jimenez v. Glover, 255 F.24 54 (1 Oir., 1953).

258

Interim Decision #1280
It is quite clear that the respondent and her family abandoned their
residence in Puerto Rico in 1931 and resided in Spain thereafter, with
the intention and the actual effect of taking up permanent abode

there. The respondent was never prevented from returning to her
residence in Puerto Rico and did not have any constructive residence
in Puerto Rico. For that reason she does not fall -within the scope
of section 202 of the Nationality Act of 1940 or section 302 of the
Immigration and Nationality Act.
The respondent's father did not reside in Puerto Rico on April 11,
1899 or at any time prior to 1913. Therefore, he did not acquire any
claim to United States nationality under Article 9 of the Treaty of
April 11, 1899 or to Puerto Rican nationality under the provisions of
section '7 of the Act of 1900. The respondent's father could not have

opted to retain Spanish nationality because that option could only be
exercised by Spanish subjects, natives of the Spanish peninsula, residing in Puerto Rico on April 11, 1899, not by those, like the respondent's
father, who became residents thereafter. Those born after the date of
April 11, 1899, whose parents had opted their Spanish nationality,
were clearly not United States nationals or citizens . 4
Counsel has cited section 10 of the Political Code of Puerto Rico
of 1902 and Article IX, section 5 of the Constitution of the Commonwealth of Puerto Rico to buttress his argument that the respondent
at least acquired Puerto Rican nationality, if not United States citizenship. The United States citizenship or nationality of natives of
Puerto Rico is effected only through the Treaty of April 11, 1899 between the United States and Spain and the applicable statutes, such
as the Act of April 12, 1900, the Act of March 2, 1917, as amended by
the Act of June 27, 1934, section 202 of the Nationality Act of 1940
and section 302 of the Immigration and Nationality Act. Hence, no
Puerto Rican law or constitutional provision in derogation of or contradiction of any United States treaty or statute is effective.'
By virtue of the provisions of Article 17 of the Civil Code of Spain
as amended by the Act of December 9, 1931, the issuance to her of a
national document of identity as a Spanish citizen as early as January
14, 1952, which she admitted in her affidavit of 1956 executed before the
United States Consul at Madrid, and the issuance to her of a Spanish
passport, the respondent was a citizen of Spain at birth. Inasmuch
as she was a citizen, subject or national of a foreign power, to wit,
Spain, residing abroad permanently on June 27, 1934, she did not
acquire United States citizenship on that date by virtue of the provisions of section 513 of the Act of March 2, 1917 as amended by the
• Conrad v. Dune.; 155 F. Supp. 542; Matter of 0— M—, let. Dec. No. 1124.
Puerto Rico v. Shen Co., 302 U.S. 253: Downes v. Bidwell, 182 U.S. 244 (1901).
'

259

Interim Decision #1280

Act of 1934. The respondent could have acquired United States
nationality or citizenship by virtue of birth in Puerto Rico under no
other provision of law. Hence, the respondent is an alien and is

'deportable as charged in the order to show cause. The attorney has
specifically declined to request the privilege of voluntary departure.
The order of

deportation entered by the special inquiry officer is the

only order possible under the circumstances.
ORDER: It is ordered that the appeal from the order of the special inquiry officer dated November 6, 1962 be and the same is hereby
dismissed.

260


Interim Decision #2274

MATTER OF HOLMES

In Visa Petition Proceedings
A-20594548
Decided by Board March 22,1974
(1) In the absence of evidence that adverse information having a bearing on the
adjudication of a visa petition was called to the attention of the petitioner and
that he was afforded an opportunity to rebut it and to present evidence in his
own behalf in accordance with 8 CFR 1032(b)(2) before the district director
rendered his decision, the case is remanded for that purpose.
(2) Where the bona fides of a marriage constituting the basis of a visa petition
are cast in doubt, it is not necessarily incumbent on the Service to conduct an
outside investigation to establish whether the parties to the marriage are
living in marital union since the harden of proof is on the petitioner and

sufficient doubt, warranting denial, may be engendered by the evidence
without such outside investigation.
ON BEHALF OF PETITIONER: Sachs and Spector, Esquires
152 West 42nd Street
New York, New York 10036

This is an appeal from an order of a District Director denying
petitioner's application under section 201(b) of the Immigration
and Nationality Act to accord immediate relative status to the
beneficiary as his wife. We remand for further proceedings.
The visa petition is supported by certificates attesting to the
petitioner's birth in the United States and marriage to the beneficiary on June 21, 1973. The District Director's denial decision,
which is dated January 4, 1974, is based upon a sworn statement

taken from the beneficiary on January 3, 1974, which casts doubt
on the bona fides of the marriage. While the District Director's
decision recites that the petitioner and the beneficiary appeared
for interview together, there is nothing in the record to indicate
that the beneficiary's statement was taken in the petitioner's
presence or that it was otherwise called to his attention and that
he had an opportunity to rebut it and present evidence in his own
behalf before the District Director made his decision. See 8 CFR
1032(bX2); Matter of Arteaga Godoy, Interim Decision No. 2171
-

(MA 1972). We shall remand so that he may have that opportunity.

647

Interim Decision #2274
On remand, counsel should also be given the opportunity to
establish by sworn testimony the allegations of official wrongdoing
he asserts in his unsworn notice of appeal. We have previously
commented on the undesirability of making such statements
casually and not under oath. See Matter of Geronimo, 13 I. & N.
Dec. 680 (BIA 1971); Matter of Godfrey, 13 I & N. Dec. 790 (BIA
1971). Counsel also errs in asserting in his notice of appeal, that

"The Service has not established its burden, it conducted no
outside investigation to determine whether the parties involved
are living in marital status." The burden of proof is on the
petitioner, not on the Service. An outside investigation by the
Service is not required in every case; sufficient doubt to warrant
denial may be engendered by the evidence even without an

outside investigation.
ORDER: The record is remanded to the District Director for
further proceedings consistent with this opinion.
Warren R. Torrington, Member, Dissenting:

I respectfully dissent.
In my view, a remand is quite unnecessary. Here the beneficiary, the petitioner's alleged spouse, stated, in effect, under oath,
that no bona fide marriage had ever existed. It appears to me that

the provisions of 8 CFR 1032(bX2) were not designed to govern
that type of situation.
The appeal should have been dismissed.
Marianne B. McConnaughey, Member, Dissenting:

I concur in Mr. Torrington's dissent.

648


Interim Decision #1296

Mex.12.1$ o

GHAZAL.

In DEPORTATION Proceedings
A-10542984
Decided by Board August 1,1988

An alien admitted to the United States upon presentation of a nonquota immigrant visa procured by fraud is statutorily eligible for adjustment of status
under section 245, Immigration and Nationality Act, as amended.
CILABOE :
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) ]—Excludable
at time of entry under section 212( a) (20), immigrant, no visa.

This case comes forward on appeal from an order entered by the
special inquiry officer on June 3, 1963, denying the respondent's application requesting that his iromigrant status be adjusted to that of a
permanent resident as provided in. section 245 of the Immigration and
Nationality Act and directing that he be deported from the United
States to Syria on the charge contained in the order to show cause.

The respondent, a 43-year-old married male, native and citizen of
Syria, first entered the United States at El Paso, Texas on November
29, 1955, at which time he had in his possession and presented for
inspection nonquota immigrant visa issued in the name of Aldo Lutfi
at the American Consulate in Juarez, Mexico. The aforementioned
nonquota visa was issued to the respondent on the basis of his claimed
birth in Brazil, South America. The respondent last entered the
United States at Miami, Florida on February 22, 1958, at which time
he had in his possession a reentry permit issued in the name of Aldo
Lutfi on March 16, 1956. The record clearly reflects he is a native and
citizen of Syria and his true and correct name is Abdul Wahab Ghazal.
Deportation proceedings were instituted against the respondent on
June 9, 1960. Upon conclusion of the hearing held in deportation
proceedings, the special inquiry officer on July 19, 1960 entered an
order directing that the respondent be deported from the United States
in the manner provided by law on. the charge set forth in the order
to show cause. During the deportation hearing held at Miami,
344

Interim Decision #1296
Florida, in July 1960, the respondent designated Brazil as the country
to which he wanted to be deported. A further recital of the remaining facts in this case is not deemed necessary inasmuch as they have
been fully and adequately discussed by the special inquiry officer in
his decisions of July 19, 1960 and June 3, 1963.
The only question for us to resolve in this proceeding is whether the
respondent is eligible to have his immigration status adjusted under

section 245 of the Immigration and Nationality Act. The special inquiry officer has concluded that he is ineligible to be accorded permanent resident status under section 245 of the Act and his reasons
therefor are set forth in detail in his decision of June 3, 1963. There
is no legal basis for the special inquiry officer's conclusion that the
respondent is ineligible to be accorded permanent resident status under
section 245 of the Immigration and _Nationality Act. Section 245 of
the Immigration and Nationality Act as amended provides that "the

status of an alien, other than an alien crewman, who was inspected
and admitted or paroled into the United States may be adjusted by

the Attorney General, in his discretion and under such regulations as
he may prescribe, to that of an alien lawfully admitted for permanent
residence if * "."
The facts in this ease are readily distinguishable from those in
Matter of Da Silva, Int. Dec. No. 1268, decided by this Board on
February 21, 1963. In the cited case the alien, had been lawfully
admitted 'to the United States for permanent residence and he thereafter became deportable because of convictions of crimes involving
moral turpitude after entry. In matter of Da Silva, supra, we held
that an alien lawfully admitted for permanent residence, who subsequently became deportable' ecause of convictions of crimes involving

moral turpitude, is statutorily ineligible for adjustment of status
under section 245 of the Immigration and Nationality Act, as amended.
In the instant case the nonquota visa presented by the respondent at
the time of his initial admission to the United States was procured
by fraud. It was issued in a name other than his own and upon his
falsely claiming that he was born in Brazil. Hence, the respondent
was never lawfully admitted to the United States for permanent residence because the visa with which he effected entry was procured by
fraud and lie was not entitled to the nonquota status specified in his
immigrant visa. As previously noted, section 245 of the Act as
amended provides that the status of any alien, other than an alien crewman, who was inspected and admitted 'into the United States may be
adjusted by the Attorney General, * * *. The respondent in the
instant proceeding was inspected and admitted into the United States
in November 1955 and at the time of his last admission on February
22, 1958. Hence, we conclude he is statutorily eligible to have his
345

Interim Decision #1296
immigrant status adjusted under section 245 of the Immigration and
Nationality Act.
Upon full consideration of all the evidence of record and counsel's
representations in oral argument, we have concluded to remand the
case to the special inquiry officer in order that he may reconsider
or consider anew the respondent's application for adjustment of status
under section 245 of the Act, Accordingly we will so order.
ORDER: It is ordered that the appeal be sustained.
it is further ordered that the case be remanded to the special inquiry officer for further proceedings in accordance with the provisions
of the foregoing opinion.

346


Interim Decision #2075

MATTER OF GUTNICK
In Deportation Proceedings
A-13438882
Decided by Board March 17, 1971
Where, subsequent to respondent's convictions of burglary in Arizona, court
orders were issued setting aside the judgments of conviction and dismissing the complaints for all purposes pursuant to Article 13-1744 of the
Arizona Criminal Code as amended by Chapter 221, section 1, effective
January 1, 1971, such convictions have been expunged and are no longer
convictions of crimes within the meaning of section 241 (a) (4) of the Immigration and Nationality Act.

CHARGE:
Order: Act of 1952—Section 241 (a) (4) [8 U.S.C. 1251 (a) (4) ]—Convicted
of two crimes involving moral turpitude: Burglary
from vehicle and burglary, first degree.
ON BEHALF OF RESPONDENT:
Ruben Montemayor, Esquire
1414 Tower Life Building
San Antonio, Texas 78205

ON BEHALF OF SERVICE:
Bernabe Q. Maldonado
Trial Attorney
(Brief filed)

This case is before us on motion of the respondent to reopen
the deportation proceedings and to reconsider the Board's order
of deportation, dated October 30, 1969. The Service does not oppose the respondent's motion. The motion will be granted and the
proceedings terminated.
The record relates to a 40-year-old unmarried male alien, a native and citizen of Canada, who entered the United States for
permanent residence on May 15, 1963. On November 6, 1968, the
respondent was convicted, after a plea of guilty, in the Superior
Court of the State of Arizona, County of Maricopa, for the offense of burglary from a vehicle. On November 19, 1968, the respondent was convicted, after a plea of guilty, in the Superior
Court of the State of Arizona, County of Pima, for the offense of
burglary, first degree. For both of these offenses the sentence was
suspended and he was placed on probation. In Matter of Gutnick,

672

Interim Decision #2075
Interim Decision No. 2011 (BIA, October 30, 1969), the Board
found the respondent deportable under section 241(a) (4) of the
Immigration and Nationality Act as one who, after entry, had
been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. On December
16, 1970, the United States Court of Appeals for the Fifth Circuit
denied review of the case.
Subsequent to our decision in this matter, Article 13-1744 of
the Arizona Criminal Code under added laws, Chapter 221, section 1, was enacted into law by the Arizona legislature effective
January 1, 1971. This provides that a defendant who has fulfilled
the conditions of probation or who has been discharged from probation prior to the termination of the stated period shall be permitted by the court:
.. . to withdraw his plea of guilty and enter a plea of not guilty or if he
has been convicted after a plea of not guilty, the court may set aside the
verdict of guilty. In either case the court may thereupon dismiss the accusations or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or
crime of which he has been convicted. The probationer shall be informed
of this right and privilege in his probation papers. The probationer may
make such application and change of plea in person or by attorney or by
the probation officer authorized in writing, provided that in any subsequent prosecution of such defendant for any other offense, such prior conviction may be pleaded and proved and shall have the same effect as if
probation had not been granted or the accusation or information dismissed.
With the motion, counsel for the respondent presented Court
Orders issued on January 18, 1971 and January 20, 1971, respectively, pursuant to the newly enacted Article 13-1744 of the Arizona Criminal Code, setting aside the judgments of conviction
previously entered against the respondent and dismissing the
complaints for all purposes.
In Matter of Ibarra-Obando, 12 I. & N. Dec. 576 (A.G., 1967),
the Attorney General held that a conviction which was later expunged under section 1203.4 of the Penal Code of California is
not a conviction of a crime for the purposes of section 241 (a) (4)
of the Act. With the exception of the permissive term "may," Article 13-1744 of the Arizona Criminal Code is identical with section 1203.4 of the California Penal Code. We are satisfied that the
two convictions in question in this case have been expunged and
are no longer convictions of crimes within the meaning of section
241 (a) (4). Accordingly, we will grant the respondent's motion,
withdraw our prior order of deportation, and terminate the proceedings.
673

Interim Decision #2075
ORDER: It is ordered that the motion to reopen and reconsider be and the same is hereby granted.
It is further ordered that, upon reconsideration of this matter
as requested in the motion to reopen and reconsider, the prior
order of deportation of the Board dated October 30, 1969, be and
the same is hereby withdrawn; and that the deportation proceedings be and the same are hereby terminated.

674