Interim Decision #1744

MAPrrat OF

AIRCRAFT "VT—DJK"

In Fine Proceedings
NYC-10/52.1087 •
Decided by Board June 22, 1967
the Immigration and Nationality
Act for bringing an alien passenger without a visa in violation of section
273(a) of the Act notwithstanding the carrier (signatory to an agreement
pursuant to section 238(d) of the Act) alleges the passenger was in transit"
when, in tact, he was presented for inspection as a nonimmigrant visitor for
business.

Liability to line lies under section 273(b) or

'

Bests roll FINE: Act of 1932—Section 278(a) [8 U.S.C. 13231
IN no: Air-India Aircraft "VT-DJK" (Flight #105), which arrived at the port
of New York from foreign on August 31, 1988. Alien passenger involved : John Ashlyn.
Orr Bratilar or APPRLLeare:
Stephen L. Gelband, Esquire
Risher, Sharlitt & Gelband
Suite 1000
1522 "a" Street, N.W.
Washington, D.C. 20005
(Oral argument)
Janes E. Landry, Vice free.
and
James R, Gorgon, Director
Air Transport Association of
America
1000 Connecticut Avenue, N.W.
Washington, D.C. 20038
Curiae brief filed;
also present Oral argument)

BEsair or SERVICE:
Irving A. Appleman
Appellate Trial Attorney
(Oral argument)

ON

The District Director at New York, finding no justification whatsoever for remission thereof, has ordered an administrative penalty of
$1,000 imposed on Air-India, as owners, agents, charterers, or consignees of the above-described aircraft, for bringing to the United
States from a place outside thereof, other than foreign contiguous
&21-054-69----19

267

Interim Decision #1744
territory, the above-named alien passenger who was not in possession
of an unexpired visa and was not exempt from the presentation of same
by the statute or the regulations promulgated pursuant thereto. The
appeal from said official's decision, which brings the ease before this
Board for consideration, will be dismissed.
The person named above, a citizen of Great Britain arrived in the
United States as a passenger at the time, place, and in the manner
described above. He applied for admission as a nonimmigrant temporary visitor for business. He presented a valid British passport, but
he was not in possession of an unexpired visa authorizing his admission to the United States. He was paroled into the United States to
accomplish the purpose of his visit, upon the condition that his departure from this country be effected on or before September 15, 1966.
Apparently, this condition was met.
It is no defense to imposition of this fine that the carrier was signatory to an Agreement (Form 1 -426) entered into between it and
the Commissioner, pursuant to section 238(d) of the Immigration
and Nationality Act (8 U.S.C. 1228) whereby, in consideration of a
waiver of visa requirements, the carrier guarantees the passage through
the United States in immediate continuous transit of aliens destined
for foreign countries. The reason is that the carrier did not present
the alien passenger for inspection as being brought within the terms
of the Agreement. Instead, he was presented for inspection as a nonimmigrant temporary visitor for business. The Form 1-94 executed
and presented for him did not list him as being brought within the
Agreement. Accordingly, the purpose of the Agreement, to wit, to
expedite inspection both for the benefit of the carrier and the Government, was defeated. In other words, when the carrier failed to
show that the passenger was being brought within the Agreement,
said Agreement was not effective. In any event, in this connection, the
alien passenger did not have confirmed reservations to any point beyond the United States, as required by 8 CFR 214.2(c) and paragraph
(1) of the Agreement. - •
In connection with the foregoing, it is of no assistance to the carrier
that it agreed with the passenger, prior to his embarkation in London,
that in the event the Service should refuse to admit him upon arrival
at New York, he would then be presented as an "in-transit" passenger
and returned to London. The manifest intention of the Congress, as
appears from the plain language of the statute, was to subject carriers
to a penalty for taking on board and bringing to the United States
aliens not in possession of the required documents. If the carrier were
to escape such penalty because of developments subsequent to arrival
in the United States and exclusion of the alien passenger, the carrier
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Interim Decision #1744
would be in a position of being permitted to speculate upon the administration and enforcement of the law. This, obviously, is not within
the contemplation of the statute. Hence, when a carrier takes on board
and brings a nonimmigrant to the United States who is not in possession of the documents required by the law and regulations, it has
thereby incurred the administrative penalty specified in the statute.
The only conditions under which the penalty may not be imposed are
stated in subsection (c) of section 273. It provides that a carrier is
exempt from a fine if, prior to the departure of the aircraft from the
last port outside of the United States, it did not know and could not
have ascertained by the exercise of reasonable diligence that the indiVidual transported was an alien who required a visa. This aspect
of the ease will be discussed at the conclusion of this opinion_

The foregoing moots the question, raised by the appellant, in the
amicus curiae brief, and by the District Director, of whether aliens
proceeding from Europe to the United States and back to Europe may
properly be considered as "in-transit" within the terms of the Agreement. It also adequately answers the carrier's contention that it was
advised by an immigration officer on duty at the time of the alien passenger's arrival in the United States that it would not be prejudiced
for bringing him here without a visa. The reason, again, is that liability
to the fine had already been incurred.
The carrier's situation in this respect is not altered by the fact that
the alien passenger was paroled into this country to accomplish the
purpose of his trip. That is because the passenger's parole did not constitute his "admission" into the United States. In the eyes of the law,
after the parole he stood at the threshold of this country seeking admission (Leng May Ma v. Barber, 357 U.S. 185). Thus, the action
of the Service in paroling the alien passenger had no bearing whatsoever upon the question of the carrier's liability to the fine for bringing him to this country from foreign without proper documents, or
upon the question of remission thereof.
It is of no assistance to the carrier that the alien passenger told its
representative abroad that he would not remain in the United States
for the reason that he would be able to transact his business at the
airport. As hereinbefore indicated, the alien was not entitled to be
presented as an in-transit alien, and he was not so presented. The
fact that he only intended to remain in the United States for a brief
period of time is immaterial.
We find it to be of no consequence here that, in order to reduce
this country's balance-of-payments deficit, and to aid foreign travelers desiring to spend brief periods in the United States en route to
"Expo 67" in Canada or the up-coming Olympic games in Mexico,
269

Interim Decision 01741
the regulations have been changed so that an "in-transit" alien may
remain in the United States for a period up to ten days instead of having to depart from this country on the first available transportation
onward to his destination. The requirements under which such aliens
may be brought to the United States, ante, have not been changed.
Since those requirements were not met in this instance, further discussion of this aspect of the case is unnecessary. Accordingly, and in
view of the foregoing, we conclude that liability to the fine has been
established.
We likewise find herein no basis for remitting this fine, on the theory
that the carrier did not know and could not have ascertained by the
exercise of reasonable diligence that the passenger, who has known to
be an alien insofar as the United States is concerned, required but
lacked a visa. The record clearly reflects that the carrier knew that
the alien passenger did not have a visa, but nevertheless embarked
him for transportation to the United States. It did not present him
for inspection as an alien being brought within the Agreement, or in
any way indicate that he was being transported within the terms thereof. Actually, the carrier's claim that the fine should be remitted herein depends upon the assertion that the alien passenger had to proceed
urgently from London to New York at such short notice that he had
no time to obtain a visa. Unfortunately for the carrier, however, action
on its part based on considerations of expediency peculiarly personal
to the passenger does not constitute the due diligence contemplated
by the statute.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

270


Interim Decision #1685

MATTER OF SUN
Application for Classification as Refugee
A-14328296

Decided by Regional Commissioner December 21, 1966
Refugee classification under the proviso to section 203(a) (7). Immigration and
Nationality Act, as amended, is denied an applicant who had been firmly resettled in another country or area (Nationalist China on Formosa) after he
had fled his homeland (Communist China) in 1949 because of fear of persecution on account of political opinion.

This case has been certified to the Regional Commissioner following
denial by the District, Director of an application for refugee status
under section 203 (a) (7) of the Immigration and Nationality Act, as
amended, and denial of adjustment under section 245 of that Act, as
-amended.

The facts in this case and the reasoning applied by the District Director are as follows:
This applicant was horn on September 6, 1932 in Shanghai, China. He is unmarried and is now a citizen of Nationalist China in Formosa. He was admitted
to the United States as a Government Official under section 101(a) (15) (0) (I)
as a clerk with the Chinese Delegation to the Military Staff Committee of the
United Nations on March 20, 1262 at San Pedro, California. He maintained that
status until March 23, 1965 at which time he was granted a change of nominal&
grant status to student under section 101(a) (15) (F). He is maintaining student
status, studying at the RCA Institute in New York City. His authorized stay will
•expire on April 3, 1967.
He has applied for classification as a refugee under the provisions of section
203(a) (7) of the Immigration and Nationality Act, as amended. In his application (Form I-590A) be has stated that he fled from China in May 1949 because of the advance of the Communist foices. From May 1949 until February
1982 he resided in Taipei, Taiwan, Formosa. Also, in connection with this application he has stated that he enlisted in the Chinese Air Force in Formosa in
1949 and served as an enlisted man until March 1962 when he was separated as
a staff sergeant His family, consisting of his father, mother, and four brothers
and sisters still resides on the Chinese mainland, although he has bad no contact
with them in many years. Records in this case show that the applicant was in
possession of passport #07882 issued by the Republic of China. He now states
that this passport was given to the Chinese Consul in New York for revalidation
in September 1965 and has not been returned to him.

36

Interim Decision #1685
Application is being made here under the provisions of section 203(a) (7) of
the Immigration and Nationality Act, as amended, which reads as follows:
(7) Conditional entries shall next be made available by the Attorney General,
pursuant to such regulations as he may prescribe and in a number not to ea'teed 6 per centum of the number specified in section 201(a) (11), to aliens who
:satisfy an Immigration and Naturalization Service officer at an examination
In any non-Communist or non-Communist dominated country, (A) that (i)
itecause of persecution or rear of persecution on account of race, religion, or
political opinion they have fled (I) from any Communist or Communist-dominated country or area, or (II) from any country within the general area of
-the Middle East, and (ii) are unable or unwilling to return to such country or
area on account of race, religion, or political opinion, and (iii) are not nationals
-of the countries or areas in which their application for conditional entry is
made ; or (B) that they are persons uprooted by catastrophic natural calamity
as defined by the President who are unable to return to their usual place of
Abode. For the purpose of the foregoing the term `general area of the Middle
East" means the area between and inclUding (1) Libya on the west, (2) Turkey
on the north, (3) Pakistan on the east, and (4) Saudi Arabia and Ethiopia
-on the south : Provided, that immigrant visas in a number not exceeding onetaif the number specified in this paragraph may be made available, in lieu
of conditional entries of a like number, to such aliens who have been continuously physically present in the United States for a period of at least two
years prior to application for adjustment of status.
It is conceded that the applicant is a person who has fled from communist
-China because of fear of persecution on account of political opinion. It is also
conceded that he is unwilling to return to that country on account of his political
opinion. The question we must resolve now is whether it was intended that the
benefits of section 203(a) (7) (which were added to the Immigration and Nationality Act by the Act of October 3, 1965) be extended to such persons who
'have succeeded in establishing themselves in another country after they had
died from their homeland. Inasmuch as this point is not specifically mentioned
In the law, it was necessary to study the legislative history of Public Law 88-236
which added section 203(a) (7) in its present form to the Immigration and
Nationality Act. We find in Report #748, Senate Committee on the Judiciary
-dated September 15, 1865 the Committee on the Judiciary considering H.R. 2580
-(which was enacted into law as Public Law 88-236) stated on Page 10:
As passed by the House, the bill in section 203(a) (7) provides that not to
-exceed 10,200 refugees from communism and an area of the Middle East may
the granted conditional entries each year. As amended by the committee, this
-category of refugees is enlarged to include aliens who have been uprooted
-from their place of usual abode by a catastrophic natural calamity. It is the
purpose of the committee in adding this group of persons to the refugee sate-gory to provide relief in those eases where aliens have been forced to flee their
homes as a result of serious natural disasters, such as earthquakes, volcanic
eruptions, tidal waves, and in any similar natural catastrophes. The Congress,
In a prior ease granted relief to such persons through the enactment of the
_Refugee Relief Act of 1953. where the term "refugee" was defined as follows:
Sec. 2. (a) "Refugee" means any person in a country or area which is neither
Communist nor Communist-dominated who because of persecution, fear of
persecution, natural calamity, or military operations is out of his usual
,place of abode and unable to return thereto, who has not been firmly re-

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37

Interim 'Decision #168 5
settled, and' who is in urgent need of assistance for the essentials of life or
for transportation.
Refugees have been admitted to the United States through the sponsorship
of voluntary agencies and private citizens. The Committee anticipates that
such practice will continue so that each refugee will have an opportunity to
adjust and develop in this country without fear of abandonment and without
the possibility of becoming a public charge.
is not unlike the
The conditional entry of refugees as proposed in this
parole procedure ntilieed during the existence of the so-called Fair Share Act
(see. 212(d) (5)) and it is intended that the procedures remain the same
In House of Representatives Report #745, August 6, 1965, Page 15, the following statement appears :
The conditional entry of refugees as proposed in this bill is not unlike the
parole procedure utilized during the existence of the so-called Fair Share Act
(see. 212 (d) (5) ) and it is intended that the procedure remain the same. Since
the use of the term "parole" conveys a connotation unravorabie to the alien,
the substitute term "conditional entry" has been used to avoid any such
implication.
The so-sailed Fair Share Refugee Act (the act of July 14, 1960), with the
exception of the sections which permit adjustment or status of refugees already
admitted to the United States under its provisions, is repealed. The repeal of
this legislation will again permit the United States to determine who is or
who is not a refugee.

A further indication of the congressional intent is round in the following
statement of Senator Edward H. Kennedy concerning H.A. 2580, which appears
on page 23351 of the Congressional Record of September 17, 1965:
The plight of refugees has been of special concern to us since the end of
World War IL Every outbreak of violence between nations leaves its toll
in the hOmeless and dispossessed. Our concern for refugees was capped in 1960
by the passage of the fair share law, under which we agreed to accept up
-to 05 percent of persons displaced to other lands in a prior 6-month period, if
these persons fell under the mandate of the United Nations Eigh commissioner for refugees. This law was passed in keeping with World Refugee Year.
By placing refugees under our general immigration law for the first time, the
bill before us will do away with the main provisions of the fair share law,
thus allowing the United States to make its own determination or wno is or
is not a refugee.
A thorough reading of the debate on the subject of refugees contained in both
House and Senate reports reveals that the Congress intended to alter our refugee
policy, as established in the Refugee Relief Act of 1953 and amended by the Act
of July 14, 1960, in three ways :
1. To permit the United States to make its own determination as to who is
a refugee, rather than accept the determinations made by the United Nations High Commissioner for refugees.
2. To extend the definition of "refugee" to include persons who may become
victims of a natural calamity.
3. To eliminate the use of the word "parole" when allowing refugees to enter
the United States because the word "parole" has a connotation unfavorable
to the alien.
In the past we have accepted as refugees only those persons otherwise qualified who have not been firmly resettled in another country. Those persons who

38

Interim Decision 4t1685
may have fled from their homeland and who have been accepted by another
country as permanent residents and have established themselves firmly there
can no longer be considered to be fleeing from persecution. The Congress obviously did not Intend that the fact that an individual had tied from a country
because of persecution or fear of persecution should, regardless of intervening
circumstances, qualify him forever as a refugee.
With this background we can now apply these principles to the present case.
The applicant fled Communist China in 1949 and was a refugee when he entered
Formosa in that year. Since that time he has lived in Formosa until 1962, a
period of 13 years. He was a member of the Armed Forces of that country
and, after discharge, was given employment as a representative of the Republic
of China to the United Nations. He was so employed from 1962 to 1965. Seventeen years have now elapsed since this applicant fled his homeland. For sixteen
of those years he received his livelihood from the Chinese Government of
Formosa. The applicant has established himself firmly in that country and obviously has all of the rights of residence and employment there that can be extended to anyone, regardless of place of birth. He can no longer claim that be
is fleeing from persecution.
Furthermore, throughout the bearings on H.R. 2580, in both the House and
the Senate, it was repeatedly emphasized that section 203(a) (7) was not tn.
tended to increase the number of refugees admitted to the United States. Obviously, if we were to consider this applicant an eligible refugee, it would mean
that countless thousands of aliens in similar circumstances who have fled their
homelands and have built new lives in other countries would now come within
the scope of section 203(a) (7). Such an interpretation would defeat the purpose of our refugee policy. In view of the foregoing it is concluded that the applicant is not now a refugee within the scope of section 203(a) (7) of the Immigration and Nationality Act, as amended, and is, therefore, not eligible for
adjustment of status under the provisions of that section. Because the applicant is not eligible for a preference status he must necessarily be considered as a non-preference alien The non-preference quota for
China, the country of the applicant's birth, is oversubscribed and an Immigrant
visa is not immediately available. The application for adjustment under section
245 of the Immigration and Nationality Act, as amended, must therefore be
denied.

No further representations have been made following notice to the
applicant of certification to this office.
The reasons used by the District Director to deny this application
have been carefully reviewed. They are all valid and require no further
comment. We find that this application must be denied and the following order will be entered.
It is ordered that the decision of the District Director be affirmed.

39


Interim Decision

44276

MATTER OF VILLAGOMEZ-GASOA

In EXCLUSION Proceedings
A-13114857
Decided by Board April 5, 1983
Since the permission to reapply granted appellant, a previously-deported Mexican alien, under the provisions of 8 CFR 214k.7 at the time he was recontraeted
as an agricultural laborer in September 1955, was unlimited and applied to
future entries no matter what their nature, he did not require permission to

reapply at the time of his application for an immigrant visa in 1982; therefore,
the concealment of his prior deportations was not a material misrepresentation since the line of inquiry cut oft by the misrepresentation would not have
resulted in a proper determination that he was excludable. Nee Metier of
Alvarez-Mujioa, Int. Dec. No. 1354.]
Exam:rams • Act of 1952—Section 212(a) (19) [8 II.S.C. 1182(a) (19) ]--Visa
procured by fraud.

The Officer in Charge, San Ysidro, California, appeals from the
inquiry officer authorizing the applicant's admission to the United States when in possession of proper documents.
The issue is whether applicant's failure to reveal to the American
Consul when he applied for a visa that he had been deported was a
material misrepresentation. The appeal will be dismissed.
Applicant, a 40-year-old married male, native and national of Mexico, had been deported from the United States in 1946, 1947 and 1949.
On May 31, 1955 while he was illegally in the United States, he was given a contract as an agricultural worker at El Centro, California.
Upon the expiration date of the contract on September 1, 1955 it was
renewed and except for intervals totaling about a year and a half applicant was employed as a contract agricultural worker until December
27, 1961. On May 28, 1962, applicant secured a, nonquota immigrant
visa from an American Consul in Mexico; he was admitted for permanent residence on June 4, 1962. Sines admission, applicant has
commuted daily from his home in Mexico to his employment in the
United States.
In his application for a visa, the applicant did not reveal he had
been arrested and deported from the United States. His explanation
order of the special

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Interim Decision #1276
is that the man to whom he had gone for help in filling out the forms
told him that since he could not recall the exact dates of the deportations he should not give any information concerning them. The Service charges that the applicant secured his visa by fraud in that he
failed to reveal that he was inadmissible to the United States because
he did not have permission to reapply although he had been deported.

The special inquiry officer ruled that the applicant had not needed
permission to reapply because he had been the beneficiary of a blanket
permission to reapply which had been granted to persons admitted as
agricultural workers. The special inquiry officer held that the misrepresentations was not a material one. The Officer in Charge, in his
appeal; contends that the blanket permission had given applicant the
right to reapply only if he came as an agricultural worker (or some
other temporary status) , and if he came as an immigrant he still needed
permission to reapply for admission after arrest and deportation.
Furthermore, the Officer in Charge contends that a graat of permission to reapply was never made, for the existing disability was merely

waived under section 212(d) (3) of the Immigration and Nationality
Act, 8 U.S.C. 1182(d) (3) . The Officer in Charge further contends
that the misrepresentation is material even if the applicant did not
need permission to reapply, for the misrepresentation cut of a relevant
line of inquiry which might have resulted in a proper determination
that he was excludable.
We must dismiss the appeal. We find that a grant of permission to
reapply rather than a waiver has been made, that the grant once given
applied to future entries no matter what their natures, and that when
applicant applied for a visa, he did not need permission to reapply.
We conclude that no material misrepresentation existed because the
line of inquiry cut of by the misrepresentation would not have
resulted in a proper determination that the applicant was excludable,
That the applicant was the beneficiary of a blanket grant of permission to reapply rather than of a temporary waiver of a ground of inadmissibility is based upon both the conclusions reached when laws prior
to the Immigration and Nationality Act were construed and the language of the grant. Prior to the Immigration and Nationality Act,
the authority to grant permission to reapply was contained in sections
3 and 23 of the Act of February 5, 1917 and section 1, Act of March 4,
1929; 1 authority to waive a ground of inadmissibility for one desiring
to enter for temporary purposes was found in section 3, ninth proviso,
Aet of February 5, 1917. 2 At one time agricultural workers who did
3 Now section 212(a) (17) of the Immigration and Nationality Act, 8 U.S.C.
1182(a)(17)_
'Now section 212(d) (3) of the Immigration and Nationality Act. A U.S.C.
1182 (d ) (3) .

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Interim Decision #1276
not have permission to reapply were admitted under the, ninth proviso
to section 3 of the Act of February 5, 1917 despite the failure to have
permission to reapply (Matter of R-1.,—,11. & N. Dec. 624 (1913) ;

however, later, and just prior to the Immigration and Nationality Act,
the regulations were changed to read as follows :
Previous deportation; Pornaosion to rooPPZY.

An alien who established

that he is in all respects entitled to admission as an agricultural worker under
the provisions of this part, except that he has been previously excluded or arrested and deported on not more than one occasion solely because of illegal entry
or absence of required documents, is hereby granted permission to reapply for
admission to the United States : Provided, That in the case of such an alien who
has been arrested and deported, such permission to reapply shall not become effective unless and until the alien has resided outside the United States for at least
one year after deportation. Mho proviso raorcap. neonates the prohibition contained In law.] (6 OFR 115.7, 16 F.R. 7348, July 27, 1951)

We construed this regulation as a grant of permission to reapply for
all purposes including immigration to the United States. 3 The substance of this regulation was put in. 8 CFR 475.7 in 1952 and was in
effect when applicant was admitted to the United States as a contract
laborer on May 31, 1955. The regulation read as follows:
Previous removal, deportation.; permission to reapply. An alien who established that he is in all respects entitled to admission as an agricultural worker
under the provisions of this part, except that he has been previously removed
at Government expense pursuant to section 242(b) of the Immigration and
Nationality Act, or excluded or arrested and deported, on not more than one
occasion solely because of illegal entry or absence of required documents, is
hereby granted permission -to reapply for admission to the United States as an
agricultural worker. (17 P. 11562, December 19, 1952)

This grant of permission to reapply did not attach to the applicant
since he had been arrested and deported on more than one occasion.
Applicant recoritracted on September 1, 1955. At this time the provisions of 8 CFR 214k.7 applied; it read as follows
Previous removal, deportation; permission to reapply. An alien who establishes that he is in all respects entitled to admission as an agricultural worker
under the provisions of this part, except that he has been previously removed at
Government expense pursuant to section 242 (b) of the act or excluded or arrested
and deported solely because of illegal entry or absence of required documents,
is hereby granted permission to reapply for admission to the United States
as an agricultural worker.. (17 P.R. 11562, December 19, 1952 amended, 20
P.R. 5964, August 17, 1955, redesignated 20 P.R. 6380, August 31, 1955)

This is the provision which the special inquiry officer ruled was a grant
of permission to reapply valid for all purposes and unlimited in effect.

We believe the relief granted by 8 CFR 214k.7 is a grant of per' It had also been settled since March 10, 1948 that permission to reapply
must be granted outright or denied, and that where permission to reapply had
been granted, an attempted limitation was ineffective.

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Interim Decision #1276
mission to reapply under section 212(a) (17) of the Act rather than a
waiver under section 212(d) (8) of the Act. The language upon its
face purports to grant outright relief rather than a waiver of a ground

of inadmissibility and is substantially similar to other blanket grants
of permission to reapply.' The Board as well as the alien is bound by
the apparent meaning of the language of the regulations. The language of the blanket grant is to be contrasted with language used when

a waiver was intended. For example, we note that when a waiver was
intended by the regulations, the regulations specifically state that
section 212(d) (3) of the Act is being invoked and that the ground of
inadmissibility concerned is "waived." 5 Finally, we find it significant
that on November 28, 1957 the pertinent regulation was amended to
grant to an agricultural laborer a waiver of the ground of inadmissibility arising out of lack of permission to reapply following a deportation,
The language of the regulations in effect at the time the applicant

was recontracted in September 1955 constituted an unambiguous
blanket grant of permission to reapply to eligible aliens who sought to
enter as agricultural workers. Applicant was an eligible applicant,
he sought to enter as an agricultural worker, the grant therefore
attached to him and could not be qualified in any way.
We must now consider the fact that applicant failed to reveal the
truth concerning his deportations when he applied for a visa. This
concealment was done on the advice of a person to whom applicant
had gone for help in filling out his preliminary application. This
,

4 * * * Permission to reapply is granted in the case of a person who was deported from the United States prior to March 1, 1959, and on March 1, 1959, and
at the time of his application for a visa, or at the time of application for admission if a visa is not required, has a parent, spouse, or child who is a United
States citizen or an alien lawfully admitted to the United States for permanent
residence, except that this grant of permission to reapply shall not be regarded
as a waiver of grounds of excludability as provided in section 5 or 7 of the Act of
September 11, 1957. (8 ors 212.2, 24 P.R. 1480, February 27, 1959)
Pursuant to the authority contained in section 212(d) (3) of the Immigration
and Nationality Act, aground of inadmissibility contained in section 212(a) (24)
of the act is waived in the case of an alien, otherwise admissible under the immigration laws, who is in possession of appropriate documents or has been granted
a waiver thereof and is seeking admission to the United States as a nonimmigrant
(18 P.R. 3528, June 19, 1953, 8 OFR, 212.8 (b) ).
°Previous removal, deportation; permission. to reapply. Pursuant to the
authority contained in section 212(d) (3) of the act, the bar to admissibility
contained in paragraph (18) or (17) of section 212 (a) of the act is hereby
waived for an alien who establishes that be is otherwise admissible as an agricultural worker under the provisions of this part, except for his previous removal
or deportation because of entry without inspection or lack of required documents
(22 P.R. 9518, November 28, 1957, 8 CPR 214k.7).

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Interim Decision #I276
advice was given to applicant after the applicant had revealed that
he was confused as to the dates of the deportation. Both applicant
and the scribe appear to have been convinced that the failure to know

the exact dates was a serious matter. While we do not condone applicant's failure to reveal the truth, the fact is that he was admissible
at the time he applied for the visa. The applicant has made an unrefuted showing that he was eligible to enter. Applicant has no arrest
record. Ile has been steadily employed in the -United States for many
years and was regularly found worthy of being rehired as an agricultural laborer. We believe the applicant has established that inquiry
would not have revealed any reasonable ground for the proper denial
of the visa.
The appeal of the Officer in Charge will be dismissed.
ORDER: It is ordered that the appeal of the Officer in Charge be
and the same is hereby dismissed.

235


Interim Decision i12903

MATTER OF W IV "CORAL SPRINGS"

In Fine Proceedings
MIA-10/12.1043
Decided by Board June 2, 1982
(1) The concept of "strict liability" does not apply until after it has been established that
a carrier violated section 273 of the Immigration and Nationality Act, 8 U.S.C. 1323, by
bringing undocumented aliens to the United States; however, once that has been
established, the carrier's liability for fines is absolute.
(2) Section 273 does not make it unlawful to own a vessel that is used to bring undocumented aliens to the United States or impose a duty upon the owners of vessels to
prevent theit vessels from being used in that manner.
(3) Where a vessel has been used to bring undocumented aliens to the United States in
violation of section 273 of the Act, it .will be presumed that the owner of the vessel
participated in the bringing of the aliens by permitting his vessel to be used to transport
passengers to the United States, in the absence of evidence to the centrmy.
(4) The owner has rebutted the presumption that he participated in the bringing of aliens
to the United States wlhere he establishes that his vessel was a commercial fishing vessel,
that he employed the captain to use the vessel for fishing and not for any other purpose,
that he did not know cr have eng reason to anticipate that the captain would use the
vessel to transport passengers to die United States, and that when he learned that the
captain intended to use the vessel for that purpose the owner did everything within his
power to stop the captain from doing so.
(5) Under agency law principles, the captain's conduct in transporting alien passengers to
the United States cannot be imputed to the owner where the captain, who was employed
to fish, exceeded the scope of his employment by using the owner's vessel for a purpose
distinct from fishing.
In re: MIV "CORAL SPRINGS," which arrived at Key West, Florida, from Cuba, on
May 8, 1980. Alien passengers involved: JOSEFINA AROCHA GARCIA, CIARA
ALONSO-HERRERA, ADAN ALONSO-HERRERA, H. ALONSO-HERRERA,
ELIO EMILIANO DIAZ-CARRAL, JOSE ANTONIO REYNALDO, et al.
-

Basis FOR FINE:

Act of 1:952—Section 273(a) [8 U.S.C. 1323(a))

ON BEHALF OF CARRIER:

ON BEHALF OF SERVICE:

Fred Ii Kent, Jr., Esquire
John F. MacLennan, Esquire of counsel
Edward Ball Building
P.O. Box 4700
Jacksonville, Florida 32201
BY:

Gerald S. Hurwitz
Appellate Trial Attorney

Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
229

Interim Decision #2903
In a decision dated May 1, 1981, the District Director imposed administrative fines totalling $250,000 upon Richard Young and V.J. O'Neal for
250 violations of section 272(a) of the Immigration and Nationality Act,
8 U. S.C. 1323(a). Mr. O'Neal has appealed. The appeal will be sustained.
The record indicated that Mr. Young, hereafter referred to as "the
captain," departed for Cuba on April 27, 1980, from Key West, Florida,
aboard a commercial fishing vessel known as the "Coral Springs." On
May 8, 1980, he returned to the United States with 250 Cuban national
passengers, all of whom were aliens who did not have unexpired visas or
other valid entry documents. A Notice of intention to.Fine was served
upon the captain on the day of his return from Cuba. On 'October 20,
1980, a second notice was served upon Air-. O'Neal. as the owner of the
Coral Springs. Mr. O'Neal will hereafter be referred to as "the owner."
These notices alleged that the captain and the owner had violated section 273(a) of the Act by bringing undocumented aliens to the United,
States.
In a letter dated November 3,1980, the owner denied liability for any
violations of section 273(a) of the Act.' According to the owner's letter,
he did not know about the captain's voyage to Cuba until a friend called
him and told him that the Coral Springs had departed for Cuba. In
response to this information, he called thit United States Coast Guard
office at Key West and asked the officer on duty to stop the captain. The
officer replied that he did not have authority to do that, and he advised
the owner to contact the Monroe County sheriffs department. The owner
then talked to an officer at the Monroe. County sheriffs office. This
officer explained that he would need a warrant for the'captain's arrest to
be able to stop him and that the sheriffs department had been advised
by the District Attorney that none of the boat captains involved in the
Cuban boatlift operations were being prosecuted for bringing Cubans to
the United States. The owner concluded at this point that the situation
was totally out of his hands, and he waited for the captain's return from
Cuba, at which point he fired the captain immediately.

The District Director rejected the owner's defense on the ground that
section 273(a) of the Act imposes strict liability.
On appeal, the owner emphasizes that the Coral Springs is a commercial fishing vessel and that he employed the captain to use it for fishing
and not for any other purpose. The owner states.further that he did not
know that the* captain intended to use the Coral Springs to transport
aliens to the United States; that the captain commandeered the vessel
to use it for that purpose without his knowledge; and that upon discovering that the captain had departed for Cuba, he did everything within his
The captain also denied liability. The captain, however, hao not appealed the District

Director's decision. Therefore, the arguments that he raised will not be addressed in this
decision.
230

Interim Decision #2903
power to prevent him from reaching Cuba. The owner contends that he
is completely innocent of any wrongdoing in this matter and that imposing a $250,000 fine upon him in these circumstances offends American
concepts of due process and is fundamentally unfair.
In response to the owner's arguments on appeal, the Immigration and
Naturalization Service advocates the position taken by the District Director that the owner's alleged innocence of wrongdoing is immaterial
because section 273 of the Act imposes strict liability. The Service argues
that fines are imposed under section 273 without regard to the intentions of the carrier and, therefore, that it does not matter whether the
carrier knew that his vessel would tie used to transport undocumented
aliens to the United States. The Service contends that such liability is
absolute to the extent that an owner of a vessel would even be liable if
his vessel was 'stolen and then used to transport aliens while it was
completely out of the owner's control. In the alternative, the Service
contends that a finding of liability would be warranted in any event on
the basis of agency law principles because of the employment relationship between the owner and the captain and the fact that the owner
provided the captain with the instrumentality that he used to commit
the violations.
We are not persuaded by the Service's argument that the owner is

liable for fines under section 273 because liability under that section is
absolute. Section 273 does not make it unlawful to own a vessel that is
used to bring undocumented aliens to the United States, nor does it
impose a duty upon the owners of vessels to prevent their vessels from
being used in that manner: Compare section 271 of the Act, 8 U.S.C.
1321, which provides that it shall be the duty of every person bringing
an alien to the United States to prevent the landing of such alien at a
port of entry other than designated by the Attorney General. Section
273 proscribes the act of bringing undocumented aliens to the United
States. The pertinent part of section 273 states that:
It shall be unlawful for any person . . . to bring to the United Mates from any place
outside thereof ... any alien who does not have an unexpired visa, if a visa was required
under this Act or regulations issued thereunder. (Emphasis added.)
The concept of "strict liability" does not apply until after

it has been
established that a carrier' violated section 273 by bringing undocumented
aliens to the United States. Once it has been established, however, that
a carrier violated section 273, the carrier's liability for fines is absolute.
It is not necessary in such a case to establish that the carrier knowingly
2 Some confusion has arisen over the significance of the term "carrier" in this context.
That term does not appear in section 273, and it is not used to delineate a class of persons
who are liable for violations of that section. It is used merely as a matter of convenience to
designate the party or parties who have been charged with violations of section 273.

231

Interim Decision #2903
violated section 273. Compare section 274 of the Act, 8 U.S.C. 1324,
which includes "knowledge" as an element of a violation. Under section
273, the carrier is an insurer that its alien passengers have met the visa

requirements of the Act. Any bringing to the United States of an alien
who does /lot meet those requirements incurs liability. Matter of MIV
"Emma, l 18 I&N Dec. 40 (BIA 1981); Matter of Swissair "Flight #164,"
15 I&N Dec. 1 (BIA 1974). a
The -owner did not participate directly in the act of bringing aliens to
the United States; he did not go to Cuba and transport the aliens to the
United States himself. Nevertheless, it is apparent that he was involved

to some extent in that he provided the vessel which was used to bring
the aliens to the United States. In the absence of evidence to the contrary,
we will presume on the basis of such involvement-that an owner partici-

pated in the act of bringing aliens by permitting his vessel to be used to
transport them to this country. In this case, however, we find that the
*owner has rebutted that presumption.
We are satisfied that the Coral Springs is a commercial fishing vessel,
that the owner employed the captain to use it for fishing and not for any
other purpose, and that the owner did not know or have reason to

anticipate that the captain would use the Coral Springs to transport
passengers to the United States from a foreign port. Furthermore,
when the owner learned that his vessel had departed for Cuba, he did
everything within his power to prevent it from reaching that port, and
he fired the captain immediately upon his return to the United States.
Finally, although the captain was the owner's employee -and therefore
an agency relationship existed between them, the captain's conduct was
outside the scope of his employment and it was not done on behalf of the

owner. On the basis of these findings, we conclude that the owner did
not participate in the bringing of,aliens to the United States aboard his
vessel. Consequently, as the owner did not bring undocumented aliens
• to the., United States, he is not liable for fines under section 273.
Accordingly, the ,following order will be entered.
ORDER: The owner's appeal is sustained.
FURTHER ORDER: The fines imposed upon the owner by the

District Director are cancelled and the proceedings against the owner
are terminated.

3 Section 273(c) permits remission (forgiveness in full) in one circumstance: where it
appears that prior to the departure of the vessel from the last port outside the United
Stains, tie carrier did not know, and could not linvc ascertained by the exercise of
reasonable diligence that the individual transported was an alien and that a visa was
required.

232


MATTER OF M—D--

In DEPORTATION Proceeding
A-7690775

Decid,ed`by Board February 3,1961
Conviction—Finality—Section 241- 00(4), 1952 act—Effect of probation and suspension of sentence in Texas.
(1) The Texas Adult Probation and Parole Law as amended and reenacted in
1957 (Article 781d, Texas Code of Criminal Procedure) contains no new
provisions affecting the "finality" of a conviction for purposes of the immigration laws. (Follows Matter of R—R—. 7-475-1
(2) An alien convicted of burglary in Texas in 1960 in whose case (pursuant
to the above-mentioned statute) execution of a two-year sentence was suspended and probation granted has been "convicted" within the meaning of
section 241(a) (4) of the Act.
CHARGE "

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted
of crime committed within five years after entry, to wit: Burglary.
BEFORE THE BOARD
DISCUSSION : This respondent, age 21, male, single, a native
Mexican citizen, appeals from an order directing deportation. Coun-

sel, in exceptions, contends that adult probation, following a conviction, is not a final judgment under Texas law and procedure.
The only issue presented is whether the sentence and disposition of
the criminal case by the court, for the crime set forth in the order
to show cause, is a final judgment of conviction under the applicable
laws and criminal procedure of the State of Texas. The appeal is
submitted on the record.
Respondent has admitted alienage. He admits that he last entered
the United States on August 21, 1958, at El Paso, Texas, and that
ho pleaded guilty in the District Court, El Paso County, Texas, to
the charge of burglary, committed May 22, 1960, and was sentenced
to the state penitentiary for a term of 2 years on July 19, 1960. 1
Articles 1389, 139U, and 1391, Vernon's Texas Penal Code, in effect when
respondent was convicted, are statutes defining burglary, all of which provide
among other elements that the offense shall consist of entering with intent to
commit a felony, or the crime of theft. Punishment for burglary is set forth
io Article 1307 of the aforesaid code, namely, confinement in the penitentiary
not less than 2 nor more than 12 years. The crime in the instant case, committed with intent to commit theft, involves the element of moral turpitude.
172

Exeenti on of the sentence was suspended and respondent was placed
on probation for a term of 2 years in accordance with the Adult
Probation and Parole Law of the State of Texas. The terms and
conditions of probation were set forth by the court:
Commit no offence against the laws of this or any other State or the United
States.
Report to his father Mr. M— as Probation Officer.
The Defendant is hereby released and paroled on his own personal recognizance in the penal sum of $2,000.00 this day taken in open court.

Deportability is challenged by counsel in exceptions (Form
I-290A) solely on the allegation that because respondent was placed
on probation under the Adult Probation and Parole Law of Texas,
the sentence, which was suspended, is not a final judgment of conviction. No precedents or points of law or procedure have been
submitted to support the allegations.

The special inquiry officer has considered counsel's exception. He
has observed that the specific procedure under which respondent
was placed on probation was amended in 1957. However, the special
inquiry officer decided that the sentence pronounced by the court
was a final judgment of conviction for the crime charged, and that
the sentence (judgment) satisfies the provision of section 241(a)
(4), the first part, Immigration and Nationality Act, so as to render
respondent deportable. As precedent, the special inquiry officer
relies on the fact that we considered and adjudicated the same
issue in a similar case arising under the statutory law and criminal
procedure in Texas jurisdiction (Matter of R—R—, 7-478 (B.I.A.,
1957) ). In substance, the only question presented is whether the
Adult Probation and Parole Law of Texas, as amended and reenacted
in 1957, affects the finality of the judgment of conviction in this case.
On May 29, 1957, when the Board rendered decision in Matter of
R—R—, supra, the Texas Adult Probation and Parole Law of 1947
was codified under Article 781b of the Texas Code of Criminal Procedure. That statute was repealed by the 55th legislative session
of 1957, effective 90 days after May 23, 1957 (Article V, section 35,
55th Leg., Chapter 226, Acts of 1957). The present Adult Probation and Parole Law was enacted by the same legislative session
in 1957. It is, in substance, similar to the former law, with modifications, and is codified as Article 781d, Code of Criminal Procedure
(Vernon's Annotated Statutes, Code of Criminal Procedure, Article 781d, 1958 Supp.). We have looked to some pertinent provisions of the new law and have compared them with certain provisions
of the former statute (Article 781b, Texas Code of Criminal Procedure), which we carefully considered in rendering our decision in
Matter of
supra, to detei mine if there is any change in
probation procedure that would affect the finality of the sentence
173

rendered in this case on July 19, 1960 (Pino v. Landon, 349 U.S.
901).
Comparing the provisions of the Act of 1947 (Article 781b, Texas
Code of Criminal Procedure) with current law, we note that the
state courts of Texas are given the jurisdiction to determine when
execution of sentence in certain cases (not excepted from discretion) shall be suspended, to determine the conditions of probation,
and to determine the supervision of the probationers (section 1 of
Article 781b, prior statute, which in substance is the same as sections 1 and 3 of Article 781d, Acts of 1957). The court having
jurisdiction of the case may at any time during the period of probation alter or modify the conditions that the probationer has been
given to observe (section 3 of Article 781b, prior statute, which is
in substance the same as section 6 of Article 781d, Acts of 1957).
Only the court in which a defendant was tried may grant probation, fix or alter the conditions of same, revoke the probation, or
discharge the defendant, unless the court has transferred jurisdiction to another court (section 5 of Article 781d, Acts of 1957, similar
to section 4 of Article 781b, the prior statute).
The arrest of a defendant for violation of probation, hearing for
revocation or continuance of probation, etc., is provided in section 8
of Article 781d, Acts of 1957. No part of the time the defendant
is on probation shall he considered as any part of the time that he
shall be sentenced to serve. The right of the probationer to appeal
to the Court of Criminal Appeals for a review of the trial and
conviction, as provided by law, shall be accorded at the time he
(the defendant) is placed on probation. When the defendant (after
hearing before the court) is notified that his probation is revoked
for violation of the conditions of probation, and he is called on to
serve jail or penitentiary sentence, ho may appeal the revocation

only. This section of the new law is almost precisely the same as
section 5 of Article 781b, Acts of 1947.
At the outset, it is important to note that the purpose of the
Adult Probation and Parole Act of 1957 is to provide for the release of persons on parole and to designate the Board of Pardons
and Paroles as the agency to recommend parole and to make investigations. The final purpose of the Act is to remove from existing
statutes the limitations and the questions of constitutionality that
have acted as barriers to the effective systems of probation and parole
in the public interest, (Code of Criminal Procedure, Article 181d,
section 1, Vernon's Texas Statutes, 1958 Supp.).
It is important and material to note that in deciding that the
Adult Probation and Parole Law of 1957 is not unconstitutional,
the Texas Court of Criminal Appeals has held that the 1957 Act
contains substantially the same provisions for granting and revoca174

tion of probation and right of appeal (eon6dered important factors)
as the superseded 1947 Act; and that the 1957 enactment, in effect,
adopted construction placed on the prior statute by decisions of
that court. Stratmon v. State, 333 S.W.2d 135. In view of the
above-stated purposes of the new statute, and in view of the decision of the Texas Court of Criminal Appeals that the pertinent
provisions of the new law of 1957 are substantially the same as the
provisions of the prior Act of 1947 (Article 781b, Texas Code of
Criminal Procedure), there is very little that remains to be said
on the issue presented.
With respect to finality of a conviction for deportation purposes
(8 U.S.C. 1251(a) (4), the first part, Immigration and Nationality
Act), where such conviction (judgment) took place in Texas, and
probation occurred under the law and procedure set forth in Article 781b, Code of Criminal Procedure, we stated the general rule
in Matter of R-1?—, supra, that conviction is final when "sentence"
is pronounced on a verdict or plea of guilty; that a sentence imposed, but not executed (suspended), is nevertlielnhb a "sentence"
(judgment) ; and that if suspension of execution of sentence and
probation is subsequently revoked, no further sentence need be entered—execution of sentence must follow as if there had been no
probation. In other words, the conviction on the plea or verdict
of guilty was conipletely and finally adjudicated when the sentence
was pronounced. Accordingly, we find that probation granted to
respondent in this case under Article 781d, Texas Code of Criminal
Procedure, the Adult Probation and Parole Act of 1957, can have
no effect on the finality of conviction as long as the finding (verdict
or plea) of guilt and sentence to punishment remain of record.
Under Texas criminal procedure, suspension of execution of sentence and placement on probation by courts of that State is a matter
that rests within the sound discretion of the trial court and follows
conviction (final judgment). Ray v. State, 319 S.W.2d 705. Refusal to grant discretion is not appealable. Stratmon v. State,
333 S.W.2d 135. Since there has been no change in the new Adult
Probation and Parole Law of 1957 in Texas that affects the finality
of judgment in this case, the decision by the special inquiry officer,
predicated on Matter of 1?-4?—, supra, as precedent, is affirmed.
The appeal will be dismissed.

ORDER: It is ordered that the appeal be dismissed.

175


Interim Decision #2448

MATTER OF REDMAN

In Deportation Proceedings
A-20585090

Decided by Board November 17, 1975
Notwithstanding a Certificate of Relief from Disabilities was issued to respondent pursuant to section 701 of the New York State Correction Law on the day of the criminal
proceedings, where respondent was arrested for possession of hashish in violation of
section 220.03 of the New York Penal Law; he entered a plea of guilty which was
acdepted by the court; he was sentenced to a conditional discharge for a period of one
year; as a result of the court judgment, he is barred from holding public office in New
York State, and evidence of the conviction may also be used as the basis fix the exercise
of discretion by state authorities, the proceedings against respondent resulted in a
"conviction" upon which his deportation under section 241(a)(11) of the Immigration aiul
Nationality Act, as amended, may be based.
CHARGE:
Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)]--Convicted of violation
of law relating to the illicit possession of hashish.
ON BEHALF OF SERVICE:
Paul C. Vincent
Chief Trial Attorney

ON BEHALF OF RESPONDENT:
Vmcent A. O'Neil, Esquire
333 E. Onondada Street
Syracuse, New York 13202

In a decision dated March 11, 1975, an immigration judge found the
respondent deportable as charged and ordered his deportation. The
respondent has appealed from that decision. The appeal will be dismissed.
The respondent, a native and citizen of Pakistan, entered the United
States as a nonimmigrant student on January 17, 1974. On January 18,
1974 he was arrested for possession of hashish in violation of New York
Penal Law 220.03 and on March 29, 1974, his plea of guilty was accepted. Deportation proceedings were instituted against him under
section 241(a)(11) of the Immigration and Nationality Act, which provides for the deportation of any alien who has been convicted of a
violation of any law or regulation relating to the illicit possession of or
traffic in narcotic drugs or marijuana.
The record contains a copy of a Certificate of Relief From Disabilities
505

Interim Decision #2448
(hereinafter referred to as "Certificate") which was issued to the respondent pursuant to Section 701 of the New York State Correction
Law on . the day of the criminal proceedings. Section 701 of the Correction Law provides:
"1. A Certificate of relief from disabilities may be granted as provided in this article to
relieve an eligible offender of any forfeiture or disability, or to remove any bar to his
employment, a itomatically imposed by law by reason of his conviction of the crime or of
the offense spenfied therein. Such certificate may be limited to one or more enumerated
forfeitures, disabilities or bars, or may relieve the eligible offender of all forfeitures,
disabilities ant. bars. Provided, however, that no such certificate shall apply, or be
construed so ak to apply, to the right of such person to retain or to be eligible for public
office.
2. Notwithstanding any other provision of law, a conviction of a crime or of an offense
specified in a certificate of relief from disabilities shall not cause automatic forfeiture of
any license, permit, employment or franchise, including the right to register for or vote
at an election, or automatic forfeiture of any other right or privilege, held by the eligible
offender and covered by the certificate. Nor shall such conviction be deemed to be a
conviction within the meaning of any provision of law that imposes, by reason of a
conviction, a her to any employment, a disability to exercise any right or a disability to
apply for or to receive any license, permit or other authority or privilege, covered by
the certificate.
3. A certifiet.te of relief from disabilities shall not, however, in any way prevent any
judicial, adniinistrative, licensing or other body, board or authority from relying upon
the conviction specified therein as the basis for the exercise of its discretionary power to
suspend, revoke, refuse to issue or refuse to renew any license, permit or other
authority or privilege."

The issue on appeal involves the question of whether, in light of
Section 701, the proceedings against the respondent resulted in a "conviction" upon which his deportation under section 241(a)(11) of the Act
may be based.
In assessing whether a conviction has been had for immigration purposes, we have previously found the following factors, among others, to
be significant: (1) a judicial finding of gat, (2) action taken by the court
which removes the case from those which are pending for consideration,
and (3) evidence that the action of the court is considered a conviction by
the State for at least some purpose. Matter of L—R—, 8 I. & N. Dec. 269
(BIA 1959).
From a review of the record of the criminal proceedings, the following

facts are revealed: The respondent entered a plea of guilty which was
accepted by the court. No appeal from the judgment of the court was
taken. The respondent was sentenced to a conditional discharge for a
period of one year. As a result of the judgment of the court, the
respondent is barred from holding public office in New York State, and
evidence of the conviction may also be used as the basis for the exercise
of discretion "oy state authorities. We conclude that the record of the
criminal proceedings brought against the respondent clearly establishes

506

Interim Decision #2448
that the respondent was convicted within the meaning of section
241(a)(11) of the Act.
New York, through the issuance of the Certificate to the respondent,
has declared that it will not consider the conviction of the respondent to
be a conviction with certain exceptions.' New York, however, may
grant relief only from disabilities which would otherwise result from its
own laws. We are not bound by how the state chooses to treat the event.
See Cruz-Martinez v. INS, 404 F.2d 1198 (C.A. 9, 1968), cert. denied
394 U.S. 955 (1969). In cases involving narcotics violators not convicted
under the Federal Youth Corrections Act or its state equivalent, we

have limited our inquiry to whether a conviction existed. See Matter of
Robinson, 15 I. & N. Dec. (BIA 1975); Matter of A—F—, 8 I. & N. Dec.
441 (A.G. 1959); Matter of Wong, 12 I. & N. Dec. 721 (BIA 1968). We
have found such a conviction in this case.
We conclude that the deportability of the respondent has been established by clear, convincing and unequivocal evidence. The decision of
the immigration judge is correct. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

' We note, however, that the Certificate given to the respondent could have been
revoked by the State during the year of the respondent's conditional discharge.

507


Interim Decision #1306

Marrer or Rivs-Caxuuuo
In DEPORTATION Proceedings
A-13568545
Decided by Board November 6, 1963

An alien agricultural worker who remains in the United States beyond the period
for which he was admitted under the provisions of Title V, Agricultural Act of
1949, as amended, is deportable under section 241(a) (2), Immigration and
Nationality Act. (Note: The alion in this ease is also the snhject af Int. Dec.
No, 1288.] :

CHaRGEs :

Order; Act of 1050 -Bection O41 (a) (0) [@ U.S.C. 1951(a)(A)]—Failed to
comply with conditions of status of agricultural worker under which
admitted to the United States.

Lodged: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251 (a) (2) Remained

Jonger after temporary admission as an agricultural laborer.

To simplify the discussion and for administrative convenience, this
case, one of three the special inquiry officer leard and decided
jointly, will be separately considered. (The other cases are Rogelio
‘Avila-Valdez—A-13568544 and Jose Salud Guiterrez-Serrato—
A-18569146.) The ease is before us by certification. The special in-
quiry officer has found the respondent deportable upon the lodged
charge and has granted him voluntary departure. No change will
be made in the special inquiry officer's order.

‘A full statement of the facts has been made previously. Briefly,
the Service charges that respondent, a 26-year-old single male alien,
a native and citizen of Mexico, was admitted to the United States as
an agricultural worker on May 8, 1962 for a period ending June 14,
1962, that recontracts, and a provision of the agreement between the
Republic of Mexico and the United States authorized him to remain
until Jonuary 4, 1968, and that he has remained hayond January 4,
1963 without permission.

"The case was before us previously on appeal from the special inquiry
officer’s order sustaining the charge in the order to show cause. We
reopened proceedings because of the conflict found in the fact that

380
“Interim Decision #1308

although the order to show cause arraigned the respondent as a non-
immigrant, the evidence of record revealed that in collateral -pro-
ceeding the Service had ruled that respondent was no¢ a nonimmigrant.
At the reopened hearing, the Service abandoned the charge in the order
to show cause and lodged a new charge which does not allege that the
respondent isa nonimmigrant. Thenew charge alleges that respondent
entered as an agricultural Jaborer. ‘The special inquiry officer sustained
the lodged charge finding that the respondent had entered the United
States as an agricultural Inborer, and that he had remained in the
United States longer than permitted by the Jaw and regulation relating
to admission of agricultural workers.”

Counsel’s first contention is that the respondent is not in an illegal
status. THis argument is that respondent having been admitted as a
nonimmigrant, and having applied to the District Director for a change
of status to which as a nonimmigrant he was legally entitled, and his
application having been denied on the erroneous ground that he was
not 2 nonimmigrant, must be regarded as legally in the United States.
The obvious answer to counsel’s contention is that since the denial
of the application for a change of status is not subject to further ad-
miniotrative review and it hea not been judicially cot acide, reopondont
can derive no legal benefit from the fact that he filed the application.

The question whether respondent is a nonimmigrant is no longer
an issue. The Service withdrew the charge which applies to a non-
immigrant and substituted the charge that respondent is deportable
as an agricultural laborer who remained longer than permitted. ‘The
issues arising out of the lodged charge are whether respondent is an
agricultural worker, whether he has remained longer than permifted,
and whether an agricultural worker who remains longer than per-
mitted is deportable.

An issue is raised as to whether respondent entered ag an agricul-
tural worker. At the original hearing, counsel conceded that respond-
ent had been admitted as an agricultural worker to December 20, 1962;
at the reopened hearing counsel denied the additional allegation which
accompanied the lodged charge and which stated that respondent had.
been admitted as an agricultural Jaborer under the Agricultural Act
to January 4, 1963. Is the respondent an agricultural worker? For
immigration purposes, an agricultural worker is 2 Mexican national
recruited under the provisions of the Agricultural Act of 1949, as
amended ((Agricultural Act), 63 Stat. 1051, as amended, 7 U.S.C.
1461-1468 (1958), as amended, 7 U.S.C. 1461-1468 (Supp. IV); Ex.
R-t, pp. TH-IV), pursuant to arrangements between the United

* The terms “agricultural laborer” and “agricultural worker” are used inter-
cbangeably by the Service and the special inquiry officer.

381
Interim Decision #1306

States and the Republic of Mexico to perform services or activities
defined by law and who is admitted for such time and under such
conditions as the Attorney General may specify (Agricultural Act,
secs, B01, 505, 508, 7 U.S.C. 1461, 1464, 1467). ‘The arrangements
between the United States and the Republic of Mexico set forth the
specific obligations of the employer and employee, and contain provi-
sions to assure the worker wholesome working and living conditions
and the retention of the fruits of his labor. These arrangements are
embodied in the Migrant Labor Agreement of 195i, as amended
(Agreement) (Ex. R-4, pp. 1-92), the Standard Work Contract, as
amended (Contract) (Ex. R-4, pp. 28-84), and Joint Operating In-
structions (Ex. R-4, pp. 35-51). :

‘We hove mentioned that the Agricultural Act provides that ad-
mission of the Agricultural worker is to be for such time and under
such conditions as the Attorney General may specify. The Attorney
General has issued no immigration regulation in regard to time limits,
but sets the lime withiu the following framework: workers are not
to be made available for employment after December 31, 1963 (Agri-
cultural Act, sec. 510, 7 U.S.C. 1461, note (Supp. IV)), no contract
of lose than six wools may ha enterad into, extensions may be given
for a minimum period of 15 days, stay for more than six months is
not permitted’ except that under certain circumstances stay for up
to nine months may be arranged (Ex. R-4, Agreement, pp. 10, 16;
Contract, pp. 29, 81). The Attorney General has issued an immigra-
tion regulation setting the conditions of admission. The regulation
states that admission is to be upon agreement of the agricultural
worker to ablds by three conditivus; Livadly speaking these condi-
tions are: (1) the alien will engage only in specified employment,
(9) the alien will depart upon the expiration of the period for which
ho is admitted, (2) he will carry the Form 1-100C (which is to be
issued to him upon admittance) while he is in the United States and
will surrender it when he departs (8 CFR 214.2(k) (Supp. 1963) ;
see Immigration and Nationality Act, sec. 103(a), 8 U.S.C. 1103
(1958) ).

The a establishes respondent was admitted as an agricultural
worker. Respondent was issued Form I-100C (Ex. 4) which is issued
to agricultural workers; the form shows he was admitted “for om-
ployment as agricultural worker under Public Law 78 * * *” [Agri-
eultural Act].

- Respondent denies that he has remained longer than the period
for which he was admitted. The record does not support this, denial.
Exhibit 4 reveals that respondent was admitted to June 14, 1962, that
this period was extended on five occasions, and that the Jast extension
was to December 20, 1962. The Service apparently concedes that

382
Interim Decision 1306

the respondent comes within article 9 of the Contract permitting o
worker to be employed after the expiration of his contract for a period
of not more than 15 additional days without being recontracted.
“Vhus, the respondent’s legal stay in the United States would not have
extended beyond January 4, 1963. There is no evidence presented that
an extension of time was granted beyond January 4, 1963. Theclaim
thas respondent has a right to remain in 0 legal statue beoouse he had
filed an application (which was denied) for a change of status, or
because he may have a visa application pending, or because the Board
ordered reopening of proceedings is patently without foundation.

It is clear then that the period for which respondent was admitted
expired on January 4, 1963. Having remained in the United States
beyond the period for which he was authorized to stay, respondent is
in the United States in violation of 8 CFR 214(k) (Supp. 1963)
which provides that his admission was on condition that he would
depart upon the expiration of the period for which he was admitted.
Reopondent’o preacneo after January 4, 1068 is alco in violation of
the Agricultural Act for he is no longer maintaining the conditions
set by the Attorney General, which the Agricultural Act requires him
to maintain. Respondent is illegally in the United States.

We find that provisions of the Immigration and Nationality Act
may be used for the expulsion of a Mexican worker illegally in the
United States. The immigration law provides that an alien in the
United States. in violation of any law of the United States shall be |
deported (Immigration and Nationality Act, sec. 241 (a) (2),8 U.S.C.
1251(a) (2) (1958)). The procedure for the deportation of an alien
in the United States in violation of law is seb forth in scotion 242 of
the Immigration and Nationality Act, 8 U.S.C. 1252 (8 CFR 249.8—
249,21). This procedure is the “sole and exclusive procedure for de-
termining the deportability of an alien.” We think it is clear that
respondent, 2 Mexican worker, in remaining in the United States in
violation of the Agricultural Act and the regulation implementing it,
is illegally in the United States. We think it is clear that his removal
is required by section 241 (a) (2) of the Act.

‘We shall proceed to discussion of issues raised by counsel as to
whether respondent was properly notified of the charge against him,
and whether a preliminary inquiry should not have been made under
the terms of the Agreement between the United States and the Re-
public of Mexico before the machinery of the Immigration and Na-
tionality Act could be utilized to deport respondent.

Provisions of the Immigration and Nationality Act and regulations
concerning the notification of charges require that the alien be given
notice of the nature of the charges against him (Immigration and
Nationailty Act, sec. 242(b), & U.S.C. 1zoz(b) (1908) 5 8 CHR vay

883
Interim Decision #1806
(1958); 8 CFR 242.16(d) (Supp. 1968)). The lodged charge is
based upon section 241(a)(2) of the Act which in pertinent part
provides for the deportation of an alien who “is in the United States
in violation of this chapter [Chapter 12 of Title 8—Immigration and
Nationality Act] or in violation of any other law of the United
States.” Notice of the lodged charge informed respondent that he
was deportable under section 241(a)(2) of the Immigration aud
Nationality Act, “in that, after temporary admission as an agricultural
laborer under Title 5 of the Agricultural Act of 1949, as amended,
you have remained in the United States for a longer time than per-
mitted” (Ex. R-1). Two factual allegations in addition to those
previously set forth in the order to show cause stated that respondent
had been “admitted as an agricultural laborer pursuant to Title 5,
Agricultural Act of 1949,.as amended, and permitted to remain in the
United States until January 4, 1963” (the original allegation had not
designated the authority under which respondent had been admitted
and had shown the authorized stay as ending on December 20, 1962) ;
and that he had “remained in the United States beyond January 4,
1963, without permission” (the original allegation had merely stated
that rospondont had failed to depart) (Hxs.1,R-1)

At the hearing, counsel asked to be informed whether the Service
1m using section 941 (2) (2) of the Act was charging a violation of the
Immigration and Nationality Act or another law such as the Agree-
ment. The trial attorney stated that the lodged charge and allega-
tions accompanying it, put respondent upon sufficient notice; the trial
attorney refused to furnish any further information (pp. 20-22).
While i was errux fur the trial abiuvimey tu fail tu auswer counsel's
inquiry by pointing out that it was a violation of the Agricultural Act
which was relied upon, we do not believe that counsel was misled or
hampered in his defense. His brief reveals his understanding that
the respondent was “charged by the Service with a violation of the
Agricultural Act of 1949, as amended” (p. 11, brief October 10, 1963) ;
and we note that counsel advanced a defense at the hearing based upon
the Agricultural Act (p. 28). We conclude ae had proper
notice of the charge against him.*

* Since appeals by 18 other respondents, represented by the same counsel de-
fended by the same brief, and involving the same issues are pending before us,
and since this order is planned to serve as 2 precedent for the disposition of the
other appeals, we shall, to prevent unnecessary discussion of the issue before us,
now list information on this point relating to the other appeals.

At the separate hearings on four cases held on July 11, 1963 before Special
Inguiry Officer Leone, counsel stated in three cases that he had “anticipated”
the lodged charge and was ready to defend it (Becerra-Vasquez—A-13023737,
D. 26: Jacobo Villalobos—A-13564268, p 16; Martinez-Torres—A-18565183, p. 18),
in the fourth case, counsel raised no issue as to the nature of the charge, but

384
Interim Decision #1306

As further defense counsel contends that although the Service
charged respondent with being deportable for violation of the Agri-
cultural Act, the special inquiry officer did not find respondent so de-
portable, but instead found him deportable as a nonimmigrant under
the Immigration and Nationality Act. Counsel’s conclusion that the
special i inquiry officer found respondent had been admitted as a non-
immigrant is deduced from the fact that the special inquiry officer
stated that respondent had been admitted subject to the immigration
laws. The contention is not valid. The special inquiry officer’s order
reveals that it was a violation of the Agricultural Act and the regula-
tions implementing it which was the basis for deportation (pp. 5-6,
special inquiry officer’s order of July 17, 1963). We find, therefore,
that the respondent was properly found deportable on the lodged
charge."

The defense under the Agricultural Act is based on counsel’s belief
that a worker cannot be found to be in the United States in violation
of the Agricultural Act unless he io firot given the hearing provided by
article 80 of the Agreement (Ex. R-4, p. 17). In brief, this article
provides that no employer or worker shall be found to have violated
the Agreement without investigation by the Secretary of Labor of a
complaint filed by the employer or worker, and that charges are to be
supplied to the alleged violator who has the right to a hearing. The
validity of the complaint is to be judged by the Secretary of Labor and
the Mexican consul. If they are unable to reach a satisfactory solution,
appeal is provided to the Secretary of Labor and a representative of
the Mexican Government in Washington, D.C. Counsel believes that

stated he was ready to proceed, and he did make his defense under the Agri-
cultural Act (Sanchez-Bonilla—A~13564262, pp. 18-14).

At the joint hearing on four cases held before Special Inquiry Officer Myron
on the morning of July 17. 1963, counsel merely asked the trial attorney whether
the Service relied upon only the lodged charge and was told that such was the
ease (p. 36, Moran-Martinez—A-18503192; Ochon-Molina—A~18560091; Ortiz-
Calderon—-A~13563190; Sandoval-Baron—A~13565181).

(The joint hearing of respondent and the two other aliens was held before
Speeial Inquiry Officer Myron, the afternoon of July 17, 1963.)

‘At the separate hearings on the three cases held on July 23, 1963 before Special
Inquiry Officer Mattel, counsel was either informed by the trial attorney that
violation of the Agricultural Act was involved (Castro-Lares, A-13573053, p. R~4;
Diaz-Velasquez, A~13568098, p. R-7) or indicated his awareness that the Agri-
cultural Act was involved (Gonzalez Jaime, A~13567806, R-8-9).

* Special Inquiry Officer Leone who, on July 11, 1963, heard the first group of
eases and before whom no issue was raised as to what law was involved. relied
upon the violation of the immigration regulation based on the Agricultural Act.
Special Inquiry Officer Myron disposing of the cases heard the morning of July
17, 1963 specifically found a violation of the Agricultural Act and the regulations
implementing it (nn. 4~). Sperial Tnqniry Offieor Mattel, fannd a vinlation of
the Agricultural Act (p. 6). *

385
70s-450—05 —26
Interim Decision #1306

failure to follow this procedure before a deportation hearing is started
is a violation of section 405 of the Immigration and Nationality Act
which states that the Immigration and Nationality Act “shall not be
construed to repeal, alter, or amend Title V of the Agricultural Act
of 1949, as amended”, Counsel believes that the holding of a deporta-
tion hearing without first finding a violation of the Agricultural Act
under the terms uf article 80, amounts to a repeal of article 20.

‘We do not believe that article 30 applies to a deportation matter. It
appears clear from a reading of the article that it provides a procedure
to determine rights hetween an employer and employee, that it con-
cerns problems which would arise between the employer and employee,
that it involves the Department of Labor and the Mexican consul,
but that it does not apply where parties are the Mexican worker and
the Immigration and Naturalization Service and the issue 1s whether
there has been an immigration violation. There is nothing inconsistent
between article 80 of the Agreement which implements a Jaw having no
referenve Lu the deportation of an alien (other thon to mako him eub-
ject to the immigration laws) and the provisions of the Immigration
and Nationality Act relating to the deportation of an alien. There-
fore, application of the deportation provisions of the Immigration
and Nationality Act does not constitute a repeal, alteration or amend-
ment of the Agricultural Act.

The position of the Board concerning section 248 of the Act (8
U.S:C. 1258 (Supp. IV)) has been set forth in our previous order;
further discussion can be of no benefit. 7

ORDER: It is ordered that no change be made in the order of the
special inyuiry offices.

386


Interim Decision #2802

MATTER OF RIVERS

In Visa Petition Proceedings
A-22625028
Decided by Board June 30, 1980
(1) Unless local law otherwise dictates (i.e. through statutory or case law giving greater
rights to one parent than to the other), a father's natural right to the custody of a child
he has lawfully legitimated is equal to the natural right of the mother to the child's
custody. To the extent that Matter of Harris, 15 I&N Dec- 39 (BIA 1970) and Matter of
Dela Rosa.14 I&N Dec. 728 (BIA 1974) indicated that only the mother had a natural
right to the custody of a legitimated child, these cases are modified.
(2) The natural father of a child will be presumed to have had legal custody of that child
at the time of legitimation, in the absence of affirmative evidence indicating otherwise.
(3) Unless there is evidence to show that the father of a legitimated child has been
deprived of his natural right to custody, he will be presumed to have an equal right to

custody with the child's mother, and to satisfy the legal custody requirement of
section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1)(C).
(4) Visa petition filed by a lawful permanent resident for a child born out of wedlock but
legitimated under the law of the Virgin Islands, where the petitioner resides, held
improperly denied by District Director on ground child was not in the legal custody of
the father at the time of legitimation, since the father is presumed to share legal
custody with the mother upon legitimation.
ON BEHALF OF SERVICE
ON BEHALF OF PETITIONER:
Janice Podolny
Wojciech P. Makowski, Esquire
Acting Appellate Trial
Legal Services of the Virgin Islands
Attorney
17 Estate Orange Grove
Christiansted, St. Croix
U.S. Virgin Islands 00820
By: Milholl an, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This is an appeal from a decision of the District Director, dated May
14, 1979, dewing a visa petition filed on behalf of the beneficiary as the
petitioner's unmarried daughter under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). Oral argument was
heard before this Board on October 4, 1979. The appeal will be
sustained.
The petitioner is a 31-year-old native of St. Kitts, and is a lawful
n

Interim Decision #2802
permanent resident of the United States. The beneficiary is an 11-yearold native and citizen of St. Kitts, and was born out of wedlock to the
petitioner and a woman he never married. The instant visa petition
was filed on February 2, 1979. It was denied on the basis of the District
Director's finding that the beneficiary could not qualify as the petitioner's legitimated child under section 101(b)(1)(C) of the Act, 8
U.S.C. 1101(b)(1)(C).
The beneficiary of a visa petition can qualify as a petitioner's "unmarried daughter" for preference purposes only if the beneficiary
qualifies (or could once have qualified) as a "child" of the petitioner
under section 101(b)(1) of the Act. Section 101(b)(1) includes within the

definition of "child":
a child legitimated under the law of the child's residence or domicile, or under the law
of the father's residence or domicile, whether in or outside the United States, if such
legitimation takes place before the child reaches the age of eighteen years and the
child is in the legal custody of the legitimating parent or parents at the time of such
legitimation. (section 101(b)(1)(C))..
In the present case, the District Director did not dispute, and at oral

argument the Immigration and Naturalization Service conceded, that
the beneficiary had been legitimated under the law of the Virgin
Islands, where the petitioner resides. Transcript at 13. However, the
District Director determined that the beneficiary could not qualify as
the petitioner's child under 101(b)(1)(C) because the legal custody
requirement of that section had not been satisfied. He relied for that
finding on this Board's prior decisions in Matter of Harris, 15 I&N Dec.
39 (BIA 1970) and Matter of Dela Rosa, 14 I&N Dec. 728 (BIA 1974).
Iri Dela Rosa and Harris, we strictly interpreted the legal custody
requirement of section 101 (h)(1)(C), holding that legal custody would
vest only "by virtue of either a natural right or a court decree." We
further stated in those cases, the general rule that the mother of an
illegitimate child has the primary right to the custody of that child.
Based upon this we found that the fathers in the two cases had not met
the legal custody requirement. Strong dissents by two Board members
were registered in both of these cases. After careful consideration, we
have determined that the legal custody rule set forth in Dela Rosa and

Harris requires modification.
While it is true that the mother of an illegitimate child is presumed
to have custody of that child, the same is not true where the child has
been legitimated. Cases construing the prior California law regarding
legitimation (Section 230 of the California Civil Code) hold that once
the natural father has legitimated. his child, the child's
status becomes that of the legitimate child of both of its natural parents, and
the ... rights of the child and of the, parents thenceforth are the same as they would be
had the child been born of the marriage of its natural parents ... neither of such
420

Interim Decision #2802
parents has a superior right to [the child's] custody...

In Re Navarro, 77 Cal. App.2d 500, 505,175 P.2d 896, 899 (Dist. Ct. Ap.
Cal. 1946). See also In Re Richard, 122 Cal. Rptr. 531, 537 P.2d 363
(1975); Donnally v. Blackenstein, 167 Cal. App.2d 282, 334 P.2d 260

(Dist. Ct. Ap. Cal. 1959).1 The petitioner's attorney at oral argument
contended that it is also true in the Virgin Islands that each parent of a
legitimated child had equal rights in and obligations to the child. In
support of this contention, counsel has submitted on appeal the unpub-

lished decision of a Virgin Islands judge in a child custody case. The
the mother and
father" of a child born out of wedlock, each has an equal right to
custody.' We agree with the reasoning expressed in the cited cases, and
we therefore hold that where a child born out of wedlock has been

judge makes clear in his decision that "as between

properly legitimated, neither parent will be presumed to have a
greater right than the other to the legal custody of that child.

As previously stated, Dela Rosa, supra, and Harris, supra,require
either a court order or some "natural right" of custody to exist before a

has "legal custody" for purposes of
section 101(b)(1)(C). We have determined that our prior view of
"natural right" was too restrictive in that it recognized only a mother's
natural right in a child. We now hold that unless the local law
otherwise dictates (i.e. through statutory or case law giving greater
rights to one parent than to the other), the father's "natural right" to
the custody of a child he has legitimated is equal to the "natural right"
of the mother to the child's custody. To the extent that Dela Rosa,
supra, and Harris, supra, indicated otherwise, they are hereby modified. By legitimating his child, the father has evinced his concern for
and interest in his natural offspring. At that point, we can see no
reason why the mother should have a greater right to the child than
the father. The paramount consideration should then be, as always, the
best interest of the child. See Dcmnally, supra. It is not for us, or for the
finding can be made that a father

' The citation of cases construing section 230 of the California Civil Code is appropriate in this ease, as section 230 is identical to Title 16, section 462 of the Virgin Islands
Code. Both statutes provide:
The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and
otherwise treating it as if it were a legitimate child, thereby adopts it as such; and
such child is thereupon deemed for all purposes legitimate from the time of its birth.
We note that in 1975 section 230 was replaced by the Uniform Parentage Act in
California.
* Counsel could cite no published eases on this point, and WP have searched the Virgin
Islands law, and have found nothing published on the issue. For cases from other
jurisdictions following the California legal custody rule, see e.g. In re Sution,132 W.Va.
875, 53 S.E. 839 (1949); Allisonv. Bryan„ 21 Okla. 557, 97P. 282 (1908). See also 10 Am. Jur.
3d &slat cls § 66; 10 C.J.S. Bastards, § 14, 17c

Interim Decision #2802
Immigration and Naturalization Service, to say what that is. The
determination of whether, for example, such a child would be better off
in the United States or in his native country, is to be made by the
child's natural parents, or if necessary by a probate court, not by

immigration officials.
We do not by our decision in this case write the legal custody
requirement out of the statute. What we do is change the presumption:
rather than require affirmative evidence that the mother of a legitimated child has been deprived of custody, we will presume that the
father has not been divested of his natural right to equal custody in the
absence of affirmative evidence indicating otherwise. We believe that
this interpretation of the legal custody requirement will give better
effect to Congress' humane and remedial intent in including a legitimated child within the definition of child. See generally Matter of
K—W—S—, 9 I&N Dec. 396, 409 (BIA 1958,1961; A.G. 1961).
The primary purpose behind the legitimation requirements of section 101(b)(1)(C) is to prevent the circumvention of the immigration
laws. We do not see how today's ruling will in any way promote or
encourage fraud. The requirement that the child be legitimated under
the applicable law remains in full force. By taking , the steps necessary
to legitimate his child, prior to a time when any immigration benefit
was sought, the beneficiary's natural father has shown the existence of
a genuine parental relationship to his daughter. This is not a situation
where there has been an ad hoc legitimation of a child solely to secure
immigration benefits. Moreover, where there has been ad hoc legitimation in order to circumvent the immigration laws, a visa petition could
still be properly denied. This situation would generally occur when the rights of other parties, such as adoptive parents, stepparents, or a

natural mother who has been awarded custody, have intervened. Such
is not the situation here, or in the majority of cases.
Under our prior interpretation of legal custody, it was difficult for a
father who had gone to the trouble of legitimating his child, and who
undoubtedly was the child's natural father, to qualify as the child's
father under the immigration laws. Previously, if a father, as in this
case, legitimated his child at an early age, but long before seeking

immigration benefits through or on behalf of that child, he would be
likely to find himself unable to satisfy the legal custody requirement
when he later sought an immigration benefit. In a rare case, the
mother may have abandoned the child, or otherwise relinquished all
custody. (See e.g. Matter of Buenaventura,16 I&N Dec. 456 (BIA 1977)).
In the usual case, however, this would not have occurred, and the
father would find that it was simply too late to satisfy the requirements of 101(b)(1)(C), as he had long ago legitimated the child but had
not at that time had legal custody under Dela Rosa, supra, and Harris,
422

Interim Decision #2802
supra, perhaps only because he did not then know of that requirement,

and of our strict interpretation of it. We believe that Congress, whose
overriding purpose has been to encourage family unity, would prefer a
rule that does not make legitimation under the immigration laws so
burdensome.
Under Dela Rosa, supra, and Harris, supra, legal custody for purposes of section 101(b)(1)(C) required, in effect, actual physical custody
of a child, and custody to the exclusion of everyone else, including the
child's mother. Yet we have not had such a restrictive definition of
legal custody under section 101(b)(1)(E), which defines adopted children. The cases have been clear that a parent may have legal custody of
an adopted child while not residing with that child, and where in fact
the parent and child may be thousands of miles apart. See Matter of
Cho,16 I&N Dec. 188 (BIA 1977); Matter ofM—, 8 MN Dec. 118 (BIA
1958; A.G. 1959). Moreover, in light of our holding that the natural
parents of a child who has been legitimated have equal rights to the
custody of that child, the exclusive custody aspect of our prior holdings
is inappropriate.
In sum, today's decision recognizes the natural rights of a legitimated child's father. We are not saying that the father's rights are
now paramount, only that his rights together with the equal rights of
the mother are paramount to the rights of any other party. Under our
decision today, a father of an illegitimate child will no longer have to
know in advance of section 101(b)(1)(C)'s legal custody requirement in
order to satisfy that requirement. Unless there is evidence to show
that the father of a legitimated child has been deprived of his natural
right to custody, he will be presumed to share custody with the mother,
and to satisfy the legal custody requirement of section 101(b)(1)(C).
In the present case, the petitioner has indisputably legitimated the
beneficiary under the applicable law, and there is nothing whatsoever
to indicate that his natural right to custody has vested in someone else.
He therefore qualifies as the father of the beneficiary for immigration
purposes. His appeal will accordingly be sustained, and the visa petition will be approved_
ORDER, The appeal is sustained, and the visa petition is approved.