Interim Decision #2160

MATTER OF REMY
In Visa Petition Proceedings
A-19513598
Decided by Board July 2.5, 1972

-

Under the law of Haiti, the legitimation of a child born out of wedlock requires
the subsequent marriage of the parents.
ON BEHALF OF PETITIONER:

Milton B. Schaffer, Esquire
50 Court Street, Suite 1105
Brooklyn, New York 11201
(Brief filed)

This matter comes forward on appeal from the order of the

District Director, New York District, dated April 4, 1972 denying
the petition filed to accord the beneficiary immediate relative
status as the child of a United States citizen. The District Director

concluded that the petitioner failed to establish that he married
the beneficiary's mother or otherwise legitimated the beneficiary
in accordance with the provisions of section 101(bX1)(C). The
appeal will be dismissed.
The petitioner is a 45-year-old male, a native of Haiti, who
became a United States citizen through naturalization on March
4, 1969. He concedes he never married the beneficiary's mother. He

seeks immediate relative status on behalf of the beneficiary as his
daughter. The beneficiary is a native and citizen of Haiti born on
September 14, 1953. She is the illegitimate daughter of the petitioner by Constance Chalvannes.

On appeal the petitioner submitted a document bearing the seal
of the Consulate General of Haiti in New York City. It is signed by
the consul and is dated April 17, 1972. The document recites the
following: (1) that the beneficiary was born at Port-au-Prince,
Haiti to Constance Chalvannes on September 27, 1953; (2) that the
petitioner alleges that the beneficiary is his daughter; (3) that the
beneficiary assumed the petitioner's surname at birth; (4) that the
petitioner has supported the beneficiary and had maintained a
home for her in Port - au - Prince until 1991 at which time he
emigrated to the United States; (5) that since his arrival in the
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Interim Decision #2160
United States, he has contributed towards the beneficiary's support and maintenance; and (6) that he has at all times acknowledged the beneficiary as his daughter. This document asserts that
"The foregoing acts constitute a legitimation of the child Bernadette Remy by her father Salnave Remy under the laws of Haiti."
The issue, therefore, is whether the alleged legitimation constitutes a valid legitimation for immigration purposes. We disagree
with the petitioner's contention that the beneficiary has been
legitimated under the laws of Haiti.
Article 302 of Civil Code of Haiti, as amended by Decree Law 466
of December 22, 1944 (Le Marciteux, December 25, 1944), provides;
Children born out of marriage, regardless if they are incestuous or adulterous,
are legitimated by the subsequent marriage of their father and mother, provided
they are acknowledged before the marriage or during the act of marriage. ...
Legitimation shall be recorifed at the margin of the birth registration of the
legitimated child....

Article 304 of the Code provides that:
Children legitimated by the subsequent marriage [of their parents] have the
same rights as if they were born in marriage.

We conclude that under the laws of Haiti, the legitimation of the
beneficiary required the marriage of the petitioner and the beneficiary's mother. We, therefore, affirm the District Director's order.

ORDER: The appeal is dismissed.

184


Interim Decision #1561

MATTES

Or DRACIIKAN

Application for Classification as Refugee
A-12491783
Decided by District Director March 8, 1966

Applicant, a native of Poland and citizen of Cuba, who vias granted infiefinite voluntary departure following her entry Into the United States
as a nonimmigrant visitor in 1901; who, becausi unalterably opposed to the
Communist government of Castro, fled from, and is unwilling to return to,
Cuba, and who has been continuously physically present in the United States
for more than 2 years prior to her applicapon for adjustment of status,
is accorded refugee classification under the proviso to section 203(a) (7),
Immigration and Nationality Act, as amended, and, being otherwise eligible,
her applicatkin for adjustment of status to that of a permanent resident
pursuant to section 245 of the Act is granted.

The applicant is a 57-year-old native of -Poland and citizen of
Cuba. She was admitted to the United States as a nonimmigrant
visitor on July 16, 1961 and was granted indefinite voluntary departure on September 7, 1961. On January 3, 1966 she submitted an
application for classification as a refugee under the proviso to section 203(a) CO of the Immigration and Nationality Act, as amended,
and contemporaneously therewith submitted an application for permanent residence under section 245 of the Immigration and Nationality Ad. ,
The applicant emigrated to Cuba in the year 1929 and thereafter
became a citizen of Cuba on December 18, 1943. While in Cuba, she
resided with her husband, a well-to-do merchant who' died in 1953.
Prior to her departure to the United States July 16, 1961, the Cuban
Government intervened an apartment house owned by the applicant.
In addition-, she left behind a plastics business and real property
valued in excess of $300,000. She departed from Cuba because she

.was unalterably opposed to the Communist government of Castro.
Applicant has been physically present continuously in the United.
States to date since her arrival on July 16, 1961 except for a trip to
518

InteriM Decision #1561
Venezuela for the period June 4, 1963—Juno 10, 1963 to attend the
wedding of her youngest son. Applicant is a widow, 'unemployed,
and resides with her eldest son who is s, permanent resident Of the
United States. She has submitted financial evidence that would indicate she is not likely tw:become a, public charge. At the present
time she has no relative who could. file a petition in her behalf to accord her a preference.
Section 203(a) (7) of the Immigration and Nationality Act states
as follows:
"Conditional entries shall next be made available by the Attorney

General; pursuant to such regulations as he may prescribe and in it
number not to exceed 6 per centum of the number specified in section 201(a) (ii), 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) because of persecution or fear 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 the 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 one-half 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 year prior
to application for adjustment of status."
The applicant meets the criteria of section 203(a) (7) in that she
has fled from a, Communist nation, to -wit: Cuba, and is unwilling to
return to Cuba because of her political opinions; she is not a national
of the United States wherein she is making her application and, in
addition, she has been continuously physically present in the United
States-for a period of at least two years prior to her application for
adjustment.of status. Accordingly, the applicant is eligible for ad-.
519

Interim Decision #1561
justment of status under the provisd to section 203(a) (7) of the Immigration and Nationality Act, as amended.
ORDER: It is ordered that the applications for classification as a
refugee under the proviso to section 203(a) (7) of the Immigration
and Milani=lit" Act, as unleaded, and for adjustment of status to per-

manent resident under section 245 of the Immigration and National-

ity Act, be and the same are hereby granted.

520


Interim Decision #2871

MAll.•R OF

RODRIGUEZ-CRUZ

In Visa Petition Proceedings
A 23050125
-

Decided by Board June 10, 1981
(1) Pursuant to Article 130 of the Constitution of Mexico, only marriages contracted in
accordance with civil formalities are recognized in Mexico.
(2) A religious marriage ceremony in Mexico does not result in a valid marriage, despite
the parties' intention that it be such. Matter of A-E-, 4 I&N Dec. 405 (BIA 1951),
reaffirmed; Molter of K-, 7 l&N Dec. 492 (BIA 1957), overruled.
(3) Since the petitioner and the beneficiary's mother did not enter into a civil marriage
ceremony in Mexico until the beneficiary had already reached the age of 22, be cannot
meet the 18-year age requirement for legitimation in accordance with section 101(b)(1)(C)
of the Immigration and. Nationality. Act, 8
1101(b)(1XC).
ON DriNALL' Or Psurtorien: William. Stahl, Esquire

Stahl & Gardner
4040 Moorpark Avenue
San Jose, California 95117
BY: Affihollan, Chairman; Maniatis, Maguire, and Morris, Board Members

This is an appeal from the March 5, 1979, decision of the District
Director. denying the visa petition fled by the United States citizen
petitioner on behalf of the beneficiary as his son under section 203(a)(1)
of the Immigration and Nationality Act, 8 U.S. C. 1153(a)(1). The appeal
will be dismissed.
The United States citizen petitioner was born on February 4, 1927, in
Garland, Texas. The beneficiary is a 30 year old native and citizen of
Mexico. The District Director denied the visa petition based on his
finding that the beneficiary was born illegitimate and had been legitimated, by the marriage of his parents after he had reached the age of
18. He concluded therefore that the beneficiary could not qualify as the
child of the petitioner under section 101(b)(1)(C) of the Act, 8 U.S.C.
1101(bX1)(C), and consequently Could not be conferred visa preference
status as the son of the petitioner.
In order for a United States citizen to confer visa-preference status
upon the beneficiiry he must once have qualified as a "child" under
-

72

-

Interim Decision #2871
section 101(6) of the Act, 8 U.S.C. 1101(b). Section101(b)(1)(C) of the
Act provides that:
The term "child" means an unmarried person under twenty-one years of age who is -(C) 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 Unitedi 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.

On appeal, the petitioner argues that the beneficiary qualifies as his
child since he entered into a religious marriage with the beneficiary's
mother on March 13, 1949, more than a year prior to the beneficiary's
birth. Contained in the record is a marriage certificate issued by. the
Vicaria Fija de San Miguel Arcangel in Uriangato, Guanajuato, Mexico,
verifying, the 1949 religious marriage of the p etitioner and the beneficiary's
mother. Also included in the record- is a marriage certificate issued by
the Guanajuato Civil Registrar which indichtes that the beneficiary's
parents entered into a civil marriage ceremony on November,
, 1972
Counsel for the petitioner contends that the question of the validity of
religious marriages, particularly in Mexico, is governed by the intent of
the parties. He cites Matter of K-, 7 I&N Dec. 492 (BIA 1957), for the
proposition that where the evidence of record indicates that the foreign

religious marriage was entered into in good faith and recognized by
the parties thereto, the validity of the marriage was presumed in the
absence of evidence to the contrary, reliance being had on the presumption in favor of the validity of a marriage and that the formalities of law
had been complied with.
The petitioner's reliance on Matter of K-, supra, is misplaced. The
generally accepted rule is that the validity of a marriage is governed by

the law of the place of celebration. See Matter of P-, 4 I&N Dee. 610
(A.G. 1952; BIA 1952); Matter of Freeman, 11 I&N Dec. 482 (BIA
1966). Article 130 of the Constitution of Mexico, in force at the time of
the 1949 religious marriage of the beneficiary's parents, provides:
Marriage is a civil contract. This and other acts concerning the civil status of persons
are within the exclusive competence of civil officials and authorities in the manner
prescribed by law. These acts shall have the force and validity attributed to them
thereby.

In Matter of A-E-, 4 I&N Dec. 405 (BIA 1951), we held that a religious marriage ceremony in Mexico does not result in a valid marriage,
notwithstanding the parties' intention that it be such. See also Matter of
Magana, 17 1&N Dec. 111 (BIA 1979). To the extent that Matter of
K-, supra, is inconsistent with Matter of 4-E-, supra, it is expressly
overruled. Since the religious marriage in question here was not performed in accordance with civil formalities, it did not result in a valid
marriage under Mexican law, despite any intent on the part of the
petitioner and the beneficiary's mother that it be such.
l3

Interim Decision #2871
In visa petition proceedings, the burden of proving eligibility for the
benefit sought rests with the petitioner. Matter of Brantigan, 11 LAN

Dec. 493 (BIA 1966). The law of a foreign country is a question of fact
that must be proven by the petitioner if he wishes to rely on it. Matter of
DMllon, 16 I&N Dec. 373 BIA 1977); Matter of Annang, 14 I&N Dec.
502 (BIA 1973). The petitioner has not presented any evidence to establish that the 1949 religious marriage would be recognized as valid under
the law of Mexico or the State of Guanajuato in effect at the time of the
marriage. Since the petitioner and the beneficiary's mother did not

enter into a civil marriage ceremony until 1972 when the beneficiarzhad
already reached the age of 22, the beneficiary cannot meet the 18-year
age requirement for legitimation in accordance with section 101(b)(1)(C)
of the Act. Consequently, the petitioner cannot confer visa-preference
status on the beneficiary as his son. The appeal, accordingly, will be
dismissed.
ORDER The appeal is dismissed.

74


Interim Decision nOtio

MATTER OF CRUZ

In Exclusion Proceedings
A-20893002
Decided by Board June 7, 1977, as,amended August 5, 1977
(1) 8 CFR 3.5 requires that the entire record of the proceeding shall be forwarded to the
Board on appeal. A cassette recording of the exclusion hearing is not suitable for
appellate review of the case. The regulation requires submission of a written transcript
of any hearing held before an immigration judge.
(2) Under 8 CFR 103.3(a) a copy of all briefs, memoranda, and representations filed by the
Service in connection with an appeal to the Board must be served on the affected party and these papers must be signed and dated. In this record there is no evidence that
these papers were served on the-applicant.
(3) 8 CFR 236.5(c) requires that the applicant shall be notified in writing when an appeal is
taken by the District Director from an adverse order of the immigration judge in an
exclusion case. Since the record does not contain a copy of the notice, it is assumed the
applicant never received the notice as required by this regulation.
(4) Since filing of a. brief, including a reply brief, is discretionary, a decision may be
rendered without a brief, and should be, where as here, the Service's reply brier was not
filed within a reasonable time.
(5) The record will be remanded to the Immigration judge to correct the defects in the
record and afford applicant an opportunity to respond to the Seririce's memoranda and
representations filed in support of the appeal. See Matter of GibsoniInterim Decision
2541 (BIA 1976).
EXCLUDABLE:
Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(x)(20)1—Immigrant—no valid immigrant
visa
ON BEHALF OF SERVICE:

ON BEHALF OF .APPLICANT:

David A. Kattan, Esquire
419 Gravier Street
New Orleans, Louisiana 70130

Leonard Leopold"

Trial Attorney

BY: Milliollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members

This is an appeal from an order of an immigration judge, dated
February 9, 1977, finding the applicant properly classifiable as the stepchild of a United States citizen and ordering his admission into the
United States as a permanent resident. The Service has appealed from
this order. The record will hp remanded.
We are unable to reach the merits of the appeal due to several
463

interun vecislon

7Z1366

deficiencies in the record. First, there is no transcript of the exclusion

hearing held on March 6, 1975, which is referred to by the immigration
judge in his order. The regulations require that the entire record of
proceedings shall be forwarded to the Board on appeal. 8 C.F.R. 3.5. In
an exclusion proceeding, the record in the ease consists of the hearing
before the immigration judge, including the testimony and exhibits, the
immigration judge's decision, and all written orders, motions, appeals,
and other papers filed in the proceeding. 8 C.F.R. 236.2(e). The record
before us contains a cassette recording, presumably of the exclusion
hearing, but this method of preserving testimony is unsuitable for

appellate review of the case. The regulations clearly contemplate that

the record on appeal include a written transcript of any hearing held
before an immigration judge.
Second, there is no evidence in the record indicating that a copy of a
Service memorandum in support of the appeal was ever served on the
opposing party. The memorandum in the record before us not only lacks
a certificate of service, but it is also unsigned and undated. A copy of all
briefs, memoranda, and representations filed by the Service in connection with an appeal to the Board must be served on the affected party. 8
C.F.R. 103.3(9). Obviously, these papers must also be signed and dated.

Third, it appears that the regulation pertaining to notice of a Service
appeal from an adverse order in an exclusion hearing has not been
complied with. 8 C.F.R. 236.5(c) requires that the "applicant shall be
notified in writing when an appeal is taken by the District Director and
advised that he will be allowed 5 days from receipt of notification in
which to submit written representations for transmittal to the Board
with the record in the case." Since the record does not contain a copy of
this notice, we assume that the applicant has not received written notice
of a Service appeal in accordance with this regulation.
The immigration judge and the District Director have a concurrent
obligation to see that the record is complete and complies with the
applicable regulations before it is forwarded to us on appeal. Failure to
insure that this is done results in delay and inconvenience, at the least,
and a possible miscarriage of justice if these deficiencies are overlooked.

f attar of Gibson, Interim Decision 2541 (BIA 1976).
We note that there has already been an inordinate delay in this case.
The decision in this ease was not rendered until almost 2 years after

the exclusion hearing. The immigration judge attributes the delay to the
failure of the Service to file a reply brief to the one submitted by the
applicant after the exclusion hearing. (Decision of the immigration
Judge, p. 7.) However, filing of briefs, including reply briefs is clearly
discretionary; obviously a decision can be rendered without a brief and
Qlearly should be where, as in this case, the Service's reply brief was not
filed within a reasonable time.
464

111LC11111

Accordingly, we will remand the record to the immigration judge so
that the defects in the record can be corrected. The applicant should be
afforded an opportunity to submit a brief in reply to the Service
memorandum in support of the appeal and other evidence before the
record is returned to the Board for a determination of the merits of this
appeal.
ORDER: The record is remanded to the immigration judge.

465


Interim Decision #1602

hati..a.acor SrarrrA.
In Visa Petition Proceedings
A-14139108
Decided by Regional Cennenissionee. Acne 2, 1986

Petition to accord preference classification under section 203(a) (8), Immigration and Nationality Act, as amended by P.L. 89-236, as a teacher, is denied
since beneficiary, who lacks the requisite high education (having the equivalent of high school graduation in the United States) and has had no actual experience as a teacher, can not be regarded as a member of the teach- ing profession within the contemplation of that section.
, •

This matter Is before the Regional Commissioner on:appeal from
the denial, of the visa petition to accord the beneficiary third preference quota classification as a member of the professions.
The alien is an unmarried Italian citizen, born Jemmy 31, 1947,
at Guglionesi, Campobasso, Italy. Evidence has been presented that ,
she attended the State School for Teachers at Guglionesi and was
granted a diploma in 1965. Form ES-575 "Application for Alien
Employment Certification", which accompanied the • petition, reflects that the beneficiary attended the State School for Teachers for
four years; that she is seeking a teaching position; that she has not
been employed in the field since receiving her diploma.
After reviewing the alien's educational documents, the Office of
Education of the Department of Health, Education and Welfare,
Washington, D.C., advised that she has the equivalent of high school
graduation in the United States with preparation for teaching in
Italian elementary grade's (first five years). The District Director
thereupon denied the visa petition on the ground the beneficiary is
not qualified for third preference quota classification as a teacher.
It has been asserted on appeal that the alien is entitled to third
preference status as a member of the teaching profession inasmuch
as the law does.not specify any minimum educational standard as
prerequisite to qualification; that physicians, surgeons, lawyers and

members of other professions who are educated abroad are•nnt expected to meet :United States criteria as a condition precedent to the
grant of third preference classification.
672

Interim Decision #1602
Section 203(a) (3) of the Immigration and Nationality Act, as
amended, provides for the issuance of visas to "qualified immigrants
who are members of the professions, or who because of their exceptional ability in the sciences or the arts will substantially_benefit
prospectively the national edonomy,cultural Interests, or welfire of
the United .States." Section 10I(a) (82) of the statute further
states: "The term 'profession' shall include but not be limited to
architects, engineers, lawyers, physicians, surgeons, and teachers in
• elementary or secondary schools, colleges, academies, or seminaries."
In considering the various categories of professions enumerated
in section 1.01(a) (32) of the Act, we have consulted the Department
of Labor's "Occupational Outlook handbook" and "Dictionary of
Occupational Titles." It has-been found that bachelor's degree is
generally the minimum educational requirement for entrance into
these professional fields and, in some instances, either an advanced
graduate degree or stufficant experience is also necessary. Cognizance is also taken of the fact that an individual may be accorded
recognition. .as a member of a particular profession where he may
lack the requisite high education but has had special training and
extensive practical experience in such work.

In the matter at hand„ we find that the beneficiary is a high school
graduate who has had•no actual, experience as a teacher. Under the
circumstances, she cannot be regarded as a member of the teaching
profession within the contemplation of section 203-(a) (3) of the
Immigration and Nationality Act. We have also considered the
-alien's eligibility for quota status -Under section 203(a) (6) of the
Act which provides for the issuance oftisas to "qualified immigrants

who are capable of performing specified drilled or nnalrilled
not of a temporary 'or seasonal nature, for which a shortage of employable and willing persons exists in the United States." In order
to establish eligibility for sixth preference classification it is necessary
that the person desiring and intending to employ the beneficiary file
a petition in her behalf under section 204 of the Act and that the
petition be supported by a Department • of Labor certification pur
suant to section 212(a) (14). of the Act •to establish that there are
not sufficient workers in the United States who are able, willing,
qualified, and available to perform such labor. In the instant case,
the visa petititin has not been filed by- the alien's prospective employer and, further, the required labor certification: has not been
furnished. Accordingly, this appeal must be dismissed..
ORDER: it is ordered that the -appeal be and same is hereby
dismissed.


Interim Decision .#1567

MAXI= or SALAMA
In. Deportation Proceedings
A-10753303
Decided by Board March 28, 1966
Respondent's application under section 243(h), Immigration and Nationality
Act, as amended, to withhold deportation to the United Arab Republic
(Egypt) is granted Since he, a person of the Jewish faith, would be subject
to persecution in that country because of his religion.
CHARGE:
• .Order: Aat of 1052-5aotion 241(a) (2) (S 11.5.0. 1251(a) (2)1—Exchange
visitor—remained longer.

The special inquiry officer found respondent deportable upon the
ground stated above, but under section 243(h) of the Act granted
his application for withholding deportation to the United Arab Republic (Egypt). The special inquiry officer found that respondent,
a person of the Jewish faith would be subject to persecution in the
United Arab Republic because of his religion. He certified his order
to the Board because the phrase "persecution on account of race,
religion, or political opinion" had not been construed by the Board.
We believe the special inquiry officer properly found that the
record established that a government campaign of discrimination
was responsible for the departure of some 37,000 Jews from Egypt
since 1951, leaving only between 3,000 and 4,000, including many
who are aged and ill. In addition, evidence that the Medical Association of Egypt had directed the Egyptian populace to refrain from
consulting Jewish surgeons and physicians for any cause, and that
Jewish professional men have been dropped from the rolls of professional societies, establishes respondent would face persecution in
Egypt because of his religion.
ORDER: It is ordered no change be made in the order of the
special inquiry officer.

536


Interim Decision *1819

XIATI.F.B

or Yoram *

In Visa Petition Proceedings
A-12788962
Decided by Board November 30, 1967
Beneficiary, an adniterine child born during the existence of the marriage of the
putative rather to the petitioner as a result of an illicit relationship between

.

petitioner's husband and a household servant who continued to be employed
al; a servant and reared beneficiary in the household of petitioner and her
husband, is not the stepchild of the petitioner within the meaning of section
101(b) (1) (B) of the Immigration and Nationality Act, as amended, sines
there has not been a marriage by the natural parent subsequent to the birth
of the beneficiary so as to create a step-relationship. (Nation v. Bsperdg, 239
F. Sapp. 531, and Andrade v. Esperdy, 270 F. Supp. 516, distinguished.]

ON B•A'AT-P OF PErnioriza:
Tack Wasserman, Esquire
902 Warner Building
Washington, D.C. 20004
(Brief filed)

ON Bmiter.40 oi' .SERVICE :
R. A. Vielhaber
Appellate Trial Attorney

The case comes forward upon petitioner's motion for reconsideration of our decision dated July 28, 1967, upon the basis of the holding
in Andradev. Esperdy (S.D.N.Y., 36 Law Week 2077, August 8, 1967) ,
which was rendered subsequent to our decision dismissing the appeal.
To recapitulate the facts, the petitioner, a native of Hong Kong,
B.C.C., a British subject, female, married, a lawful permanent resident of the United States, seeks preference quota status on behalf of
the beneficiary as her stepchild. The beneficiary is a native of Hong
Song, B.C.C., a British subject, 10 years old. The petitioner was
married on November 15, 1935, to Yeung Wan Tung. The beneficiary
was born during the existence of the marriage between the petitioner
and her husband as the result of an illicit relationship between the
petitioner's husband and a household servant. The natural mother of
the child continued to be employed as a servant and reared the
beneficiary.
* See also Natter of Young, Interim Decision No. 1762, of which the alien
beneficiary in this ease is also the subject.

544

Interim Decision #1819
The beneficiary's birth certificate shows that she was registered under the name of Tsui Ling, her father being described as Young Wan
Tung and her mother as Yau Toon Tai, the petitioner. The petitioner
testified that the registration of the birth was advised by the midwife.
It has been testified that the petitioner's husband, the natural father
of the beneficiary, sent financial support for all the members of the
household.
It is established, therefore, that the beneficiary is an adulterine
bastard who was born out of wedlock during the time the putative
father was married to the petitioner. Adulterine children are the issue
of adulterous intercourse and are regarded more unfavorably than the
illegitimate offspring of single persons?
Section 101(b) (1) (B) of the Immigration and Nationality Act, as

amended, defines the term "child" to include a stepchild, whether or
not born out of wedlock, provided the child had not reached the age
of 18 years at the time the marriage creating the status of stepchild
occurred. Although accepted dictionaries define stepchild as a child
by a former marriage, this statute literally contemplates, that for
immigration purposes, a person may be a stepchild even though he is
illegitimate.2 However it is difficult to understand the argument that
the beneficiary in this case can be regarded as a stepchild. The beneficiary is simply an illegitimate adulterine child. The child was born
during a then existing marriage as the result of illicit intercourse
between the married natural father and a female servant and there
never has been a subsequent marriage by the natural parent of the
child so as to create a sthprelationship. 8

The attempt to stretch the holdings in Nation v. Esperdy, 239
F.Supp. 531 (S.D.N.Y. 1965), and in Andrade v. Esperdy, 270 F.Supp.
516 (S.D.N.Y. 1967), does not appear to be valid. In Nation the beneficiary was born on February 12, 1947 and the marriage between the
petitioner-stepmother and the natural father occurred in 1952. In
Andrade the beneficiary was born out of wedlock on June 5, 1948 and
the natural father married the petitioner stepmother on July 4, 1959.
It is noted that in both cases the father was unmarried at the time of
the birth of the illegitimate child and the marriage occurred subsequent to the birth of the child, thus creating the stepparent-stepchild
relationship. In the Nation case, Judge Feinberg was persuaded on the
facts of the case the beneficiary was plaintiff's stepchild. In the
Andrade case, Judge Edelstein held that a marriage between a natural
-

1 Bouvier's Law Dictionary (3rd ed.) ; Matter of D—if—, 7 I. & N. Dec. 441;
Matter of F ,7 I. & N. Dee. 448, 451.
Nation v. Esperdo. 239.F. Supp. 531. 533.
3 Matter of Green, Int. Dec. No. 1570.
—

545

Interim Decision #1819
father and a woman creates a stepparent-stepchild relationship between the Woman and the child, and that any consideration of a preexisting family unit is irrelevant.
We do not feel that a discussion of the holding in the Andrade case
is warranted. We hold simply that the facts in the instant case do not
fall within the factual situations which were present in the Nation and
Andrade cases. The motion will be denied.
ORDER: It is ordered that the motion be and the same is hereby
denied.

546


Interim Decision #1299

1Y1.A24.cat or Ammo
In SECTION 341 Proceedings
A-11577150

Decided by District Director
Approved by Assistant Gromeniationer September 5, 1983
(1) Where an oath of allegiance is taken during minority, nationality loss under
section 2, Act of March 2, 1907, occurs as of the date after attaining majority
and prior to January 13, 1941, of the performance of an act confirmatory of
the oath of allegiance taken during minority, unless precluded by the proviso
to section 2 relating to expatriation during World War I.
(2) Alleged mandatory service from April 2, 1939, to June 19, 1939, in the Ttalian
army by a dual national after attaining majority was involuntary and cannot
be regarded as confirmatory of an oath of allegiance taken during monority
in the absence of evidence to establish that such service was voluntarily performed and in view of the well-known ruthlessness of the Fascist regime which,
even as early as 1935, would hardly have tolerated resistence to its draft
laws by an admitted national of Italy.

The above-named has applied for a certificate of citizenship, claiming to have acquired citizenship at birth in Italy on September 7,
1939, to a. citizen father and an alien mother.
The pertinent statute in effect when the applicant was born was
section 1993, R.S., as amended by the Act of May 24, 1934, providing
that:
Any child hereafter born out of the limits and jurisdiction of the United
States, whose father or mother or both at the time of the birth of such child
is a citizen of the United States, is declared to be a citizen of the United States;
but the rights of citizenship shall not descend to any such child unless the citizen
father or citizen mother, as the case may be, has resided in the United States
previous to the birth of such child. In cases where one of the parents is an
alien, the right of citizenship shall not descend unless the child comes to the
United States and resides therein for at least five years continuously immediately
previous to his eighteenth birthday, s

The latter part of this section concerning retention of citizenship
was changed by the provisions of section 201 (g) of the Nationality

Act of 1940 (54 Stat, 1138-39), effective 1/18/41, and these in turn
355

Interim Decision #1299
were affected by section 301 (b) and. (c) of the Immigration and
Nationality Act, effective December 24, 1952 (8 U.S.C. 1401), quoted
below
Any person who is a national and citizen of the United States at birth under
paragraph (7) of subsection (a), shall lose his nationality and citizenship unless
he shall come to the United States prior to attaining the age of twenty-three
years and shall immediately following any such coming be continuously physically present in the United States for at least five years: Provided, That such
physical presence follows the attainment of the age of fourteen years and
precedes the age of twenty-eight years.
Subsection (b) shah apply to a person born abroad subsequent to May 24,
1934: Proviided, however, That nothing contained in this subsection shall be
construed to alter or affect the citizenship of any person born abroad subsequent
to May 24, 1934, who, prior to the effective date of this Act, has taken up a
residence in the United States before attaining the age of sixteen years, and
thereafter, whether before or after the effective date of this Aet, complies or

shall comply with the residence requirements for retention of citizenship specified in subsection (g) and (h) of section 201 of the Nationality Act of 1910, as
amended.

The record discloses that the applicant entered the United States
on January 18, 1959, when 19 years of age. No issue with regard to
applicant's retention of United States citizenship arises out of the
fact that he was over 16 years of age when he came to the United States,
the talking up of physical presence in this country prior to 23 years
of age, still being timely for such purposes under section 301 (b) .
The applicant's father was born on January 28, 1918, in Trenton,
New Jersey, of Italian parents. He resided in the United States
until 1920, when his father took him to Italy. In 1953, he emigrated
to Canada, and on May 27, 1958, he was admitted to the United States
as an alien, in possession of an immigrant visa. On November 8, 1937,
when only 19 years of age, he voluntarily enlisted in the Italian army
for a period of two years, and took an oath of allegiance in connection
with such military service. This volunteer status in the Italian army
was terminated on October 10, 1938. He was recalled to military
service on April 2, 1939, and discharged on June 19, 1939, "for end of
enlistment." He was again recalled to active duty in the Italian army
on June 21, 1941, and was discharged on November 28, 1944. He voted
in Italy in political elections in 1946, 1947, and 19948.
The question presented is whether the applicant's father was a
citizen of the United States at the time of the applicant's birth.
The father was a dual national at birth, having acquired United
States citizenship by virtue of the XIVth Amendment to the Constitution, and Italian citizenship under the Italian Nationality Law of
1912, which recognizes the principle of jus sanguinis. The expatriation statute in effect at the time of the applicant's birth was
section 2 of the Act of March 2, 1907, providing in pertinent part:
356

Interim Decision #1299
That any American citizen shall be deemed to have expatriated himself * * *
when he has taken an oath of allegiance to any foreign state. * * * And
provided also that no American citizen shall be allowed to expatriate himself
when this country is at war.

As pointed out above, the applicant's father took such an oath of
allegiance in connection with his entry into. the Italian armed forces
when he was 19 years of age. It has long been settled by both administrative practice and judicial decision that a citizen by birth, who
has not yet attained his majority, cannot expatriate himself under
the Act of March 2, 1907, by taking an oath of allegiance to a foreign
state (Perri v. Dulles, 206 F. 2d 586; U.S. ere ?el Baglivo v. Day, 28 F.
2d 44; Augello v. Dulles, 220 F. 2d 344). However, a minor may by
clear and unequivocal acts after reaching his majority indicate a desire
to confirm an oath of allegiance taken during his minority and thereby
complete his loss of nationality under that Act (DiGirolamo v.

Acheson, 101 F. Supp. 380; Matter of L , 2 I. & N. Dee. 789; Matter
of If—, 4 I. & N. Dec. 22)
In analogous situations, the Service has followed the "relation back"
theory in fixing the date upon which nationality was lost. Thus, it
had been held that an act manifesting acceptance of a foreign nationality previously involuntarily acquired related back to the date of
acquisition of foreign nationality, thereby resulting in loss of nationality as of the earlier date (Matter of V—, 3 I. & N. Dec. 671).
Similar]y, where persons who had acquired both United States and
foreign nationalities durino. minority elected the foreign nationality,
the act of election related bmack to the attainment of majority (Matter
of G—, 1 I. & N. Dec. 329). In Matter of S—, 8 L & N. Dec. 604,
where an oath of allegiance, not expatriating because taken during a
period when the United States was at war, was subsequently confirmed,
nationality was determined to have been lost as of July 2, 1921, the
—

date of termination of the war period.
This "relation-back" principle has recently been reconsidered. In
a case involving acceptance of a foreign nationality previously ac-

quired by operation of law (Matter of DIP—, Int. Dec. No. 1215), the
Board of Immigration Appeals ruled that the retroactive feature
should be modified, stating as follows:
There is, therefore, no longer any justification for indulging in the fiction that
the act showing acceptance of Italian nationality invariably also shows a voluntary acceptance of Italian nationality as of the first possible moment such acceptance could be made. In the interval within which it was possible to make the
choice of becoming an Italian national and the actual making of the choice, the

individual may have been indifferent, undecided, or even hostile to the acceptance
of Italian nationality.
In Matter of Picone, Int. Dec. No. 1259, also involving acceptance
of a foreign nationality previously acquired, the Attorney General

357

Interim Decision *1299
held that the Board of Immigration Appeals had correctly ruled that
expatriation should no longer be held to relate back, but should date
from the act of acceptance.
Although these two cases involve acceptance of a foreign nationality
involuntarily acquired by operation of law, their rationale should be
equally applicable to the instant case. "The significance of the act
of acceptance does not lie primarily in its value as proof of previous

intent, for such value is often doubtful, but rather in its value as a
manifestation of present intent." (Matter of Picone, supra). Further, acceptance of a foreign nationality previously acquired, election
of nationality by minors possessing dual nationality, and confirmation
of an oath of allegiance taken during war time, were all regarded in
the same posture in applying the "relation back" theory. It would
be anomalous to hold that this doctrine should be abandoned only with
respect to foreign nationalities involuntarily acquired, and the rule
with regard to oaths of allegiance taken during disability remain
unchanged. It must, therefore, be concluded that under section 2
of the Act of March 2, 1907, nationality is lost as of the date after
majority upon which an act confirmatory of the underage oath of allegiance is performed, unless that effect is inhibited by the proviso
to section 2 relating to expatriation during World War I.
Next we must determine what constitutes a confirmatory act in such
instances. Such an act has been characterized as one which indicates
a continued allegiance to the foreign state (Matter of L—, supra).
Clearly, subsequent military service performed after attaining majority is of such a nature, particularly since the recognition of the duty
of military service to the country of, origin is inconsistent with the duty

of an American citizen 4o this country (See U.S. ex rel De Close v.
Longo, 46 F. Supp. 170). Voting is also regarded as a confirmatory
act of an underage oath of allegiance (Matter of L , 2 1. & N. Dec.
789).
Prior to the applicant's birth, the father served a second period of
military service from April 2, 1939, to June 19, 1939, after he had
attained majority. He has testified that this service was mandatory
and was regarded as a continuation of his original two-year enlistment. Did he thereby effectively confirm the oath of allegiance in
conformity with the foregoing?
It must be remembered that no conduct results in expatriation unless the conduct is engaged in voluntary (Nishikawa v. Dulles, 356
U.S. 129). There must be consideration of the circumstances attending the service in the foreign army and the reasonable inferences to
be drawn therefrom (Acheson -v. Maenza, 202 F. 2d 453, citing Okinova v. Acheson, 342 U.S. 99 and Murata v. Acheson, 342 U.S. 900).
Factual doubts are resolved in favor of citizenship (Alata v. Dulles,
—

358

Interim Decision. #1299
221 F. 2d 52, and cases cited). Considering the father's testimony
in connection with the well known ruthlessness of the Fascist regime,
which even as early as 1935, would hardly have tolerated resistance
to its draft laws by an admitted national of Italy (See Acheson v.
Maenza, supra) and the absence of any testimony to establish that
such period of service was voluntarily performed, it must be concluded
that it was involuntary and cannot be regarded as confirmatory of the
oath of allegiance taken during minority.
The father's third period of military service from June 21, 1911, to
November 8, 1944, and his voting in Italian elections in 1946, 1947, and
1948 are worthy of note. Since these occurred subsequent to the
applicant's birth, they cannot have any impact upon his status. They
are mentioned for the sole purpose of illustrating an additional development of the expatriation laws. Although a, questionable claim of
duress has been advanced as to the voting, it may be assumed, arguendo,
that such actions were voluntary and, as stated above, would generally
be regarded as confirmatory acts of an oath of allegiance taken during

minority.
On January 13, 1941, the Nationality Act of 1940 (54 Stet. 1137)
became effective. In addition to repealing section 2 of the Act of
March 2, 1907, this statute set forth prospective grounds of expatriation. It provided further that loss of nationality shall result solely
from the performance of the acts or fulfillment of the conditions specified in the Act. Examination of such acts and conditions discloses no
provision with respect to confirmation of an oath of allegiance taken
while a minor. Moreover, inasmuch as section 2 of the Act of 1907 was
repealed prospectively by the Nationality Act of 1940, the Attorney

General has ruled that the 1907 Act affected only cases involving acts
that occurred during the period between 1907 to 1941 (Matter of
Paton, supra). It follows that where an oath of allegiance is taken
during minority, nationality can be lost under the 1907 Act only if a
confirmatory act is performed after majority andprior to January 13,
1941. The third period of the father's military service and his voting,
all having occurred subsequent to January 12, 1941, cannot therefore
be considered in this aspect.
In light of all of the foregoing, it is found that the applicant's father
was not expatriated prior to the applicant's birth and was a citizen of
the United States when the applicant was born.
ORDER: It is ordered that the application for a certificate• of
citizenship be and the same is hereby granted.

359


MATTER or

D ---

In DEPORTATION Proceedings
A-6904129
Derided by Beard November 28, 1958
Conviction of crime—"Conviction" attains finality when offender is placed on
probation or sentence is suspended under section 1081 of Canadian Criminal

Code.
Conviction in Canada has attained "finality" for purposes of the immigration
laws when the offender has been placed on probation or on suspended sentence pursuant to section 1081 of the Canadian Criminal Code.

CIIAROF. :
Wart, ot.. Act of 1902 - 6eCC1011

t a) (1) (8 C.S.C. 1211(a) (1))--ExcludaMe at time of entry as alien convicted of crime, to wit, theft t two
counts).

BEFORE THE BOARD

Discussion: The case is before us by certification. The special
inquiry officer terminated proceedings. He found that the respondent was not deportable. The Service representative has submitted
a memorandum urging that the respondent be found deportable.
Counsel has submitted a reply memorandum asking that the special
inquiry officer's order be permitted to stand. The special inquiry
officer's order will be withdrawn. The charge is found sustained.
The issue is whether the respondent's convictions in Canada
constitute "convictions" under the immigration and Nationality
Act. On August 8, 1949, the respondent was convicted in the
Magistrate's Court for the City of Windsor, Ontario, Canada, on
two charges of theft contrary to section 386 of the Criminal Code of
Canada. Respondent was placed on suspended sentence on each
charge and was required to sign a recognizance for $100 for a matter
of 6 months and pledge that he would be of good behavior and
keep the peace.
The action of the judge was taken sander the authorization contained in sections 1081 et seq. of the Canadian Criminal Code
which we set out in the Appendix and which in brief provide that
in certain convictions the court may place the offender upon probation, providing that the offender enters into a recognizance to be
199

of good behavior, and to appear and receive judgment when called
upon. If, subsequently, information is filed under oath that the
offender has failed to maintain good behavior, the court may issue
a warrant for his arrest, and upon proof of the violation of the
conditions of probation can enter a judgment sentencing the offender
to imprisonment on the original offense.
The special inquiry officer ruled that the conviction under section
1081 lacked finality because after a sentence is suspended the
magistrate has no jurisdiction to impose sentence unless the information under oath was filed charging a breach of the recognizance, and because if attempt is made to suspend sentence and
recognizance is not taken, the court at a later date may be without
power to ,,entenco the accused. The special inquiry officer believes
that this situation is similar to that in P2.110 V. Landon, 349 U.S.
901. The Service representative argues that the procedure followed
was the suspension of the imposition of sentence which we have
held results in a conviction under the immigration laws, and that
what resulted was "a di8position of the matter and not a mere
postponement of the proceedings." We believe that the Service
representative has correctly evaluated the situation.
In Matter of 0
, 7 I. & N. Dec. 539, we attempted to set down
the standards by which the existence of convictions for immigration
purposes could be determined. We stated that to be a conviction
under the immigration laws there must be a degree of "finality"
in the disposition of the case following a finding of guilt but that
it was not necessary to find that the conviction was a final one.
"Finality" was found in cases where, after a finding of guilt, sentence to punishment was passed; sentence was passed and suspended;
or the imposition of sentam, was suspended. We stated that
"finality" did not exist where after a finding of guilt the court
merely postponed any further action in the case, leaving itself free,
at least theoretically, to pass sentence to punishment ; pass sentence
and suspend the execution; or suspend the imposition of sentence
(Matter of J—, 7 I. & N. Dec. 580). The special inquiry officer
is of the belief that resort to section 1081 is equivalent to merely
postponing any further action in the case. However, a review of the
Canadian decisions establishes that the procedure results not merely
in postponement of further action, but results in the suspension of
the imposition of sentence, then achieving a "finality" In the disposition of the case.
If action under section 1081 resulted in mere postponement of
the consideration of the case, then, theoretically at least, the court
should have the power to decide the case at any time. However, it
is settled that the court does not have such power. When disposition has beeen made under section 1081 the court is without power
200

to make any further adjudication in the case unless the convicted
person has violated the terms of his probation, this fact has been
called to the attention of the court by information under oath,
and a warrant for the arrest of the offender has been issued. Even
then, unless it is osteblished that there lies been a violation of the
conditions of probation, the court has no power to inflict punishment upon the offender. In Rex v. Glasgow, 67 C.C.C. 392 (1936),
the offender was convicted in May 1936 of stealing hens. He was
released on recognizance in the sum of $200. In September 1936,
he was tried, convicted, and sentenced for assault, disturbance and
intoxication in a public place. The court also sentenced him to 6
months on the conviction for theft. The appeal court ruled that
the court had no jurisdiction over the offender on the theft charge
because information had not been filed stating that he had failed to
observe his recognizance and because nu warrant fur his arrest had

been issued. The sentence to 6 months was set aside. King v.
Sitonan, 6 C.C.C. 224 (1902), was an application for discharge from
custody. In June 1902, the defendant had been convicted for being
an inmate of a disorderly house. Under the provisions of the
predecessor to section 1081, the defendant had been ordered released
upon- her entering into a recognizance. In September 1902, the
defendant was tried for another offence of the some kind before
the same magistrate and acquitted. However, the magistrate thereupon sentenced her under the June conviction. On appeal it was
ordered that the prisoner be discharged from custody. It was held

that the magistrate had no jurisdiction over her on the first conviction because she had not been brought before him by a warrant
of arrest issued on the basis of an information that she had failed
to comply with the terms of her recognizance, and it had not been
proven that she had broken her recognizance.
Action under section 1081 results in the placing of the convicted
person on probation. No further action is required by the court.
In fact, the court has no jurisdiction to take further action unless
other factors arise. The case has been disposed of by the court.
In other words, what results is the suspension of the imposition of
sentence. The courts of Canada have stated as much. In Rex v.
Switaki, 54 C.C.C. 332 (1930), the court said that to suspend
sentence under section 1081 means "suspending the passing of sentence."
Because the results of court action are so differently regarded
Trott! jurisdiction to jurisdiction, it is difficult to determine just
when a conviction has occurred. Therefore, to be sure that what
has happened in court is a "conviction" for immigration purposes,
it is necessary to establish that the result of the court action is
considered a conviction by the jurisdiction in which it occurred
201
562713-61— — 15

([flatter of 0--, supra). As to this, we must note that section
1081 by its very terms cannot come into operation until there has
been a "conviction." Rex v. McGarry, 90 C.C.C. 52 (1947), involved
a person who had been convicted before a police magistrate for unlawfully assaulting his wife. He was placed on suspended sentence
for one year on conditions outlined in the recognizance pursuant
to section 1081. He filed an appeal from the conviction. Counsel
for the Crown moved that the appeal be not entered because the
defendant had failed to comply with certain requirements of Lim appeal law relating to the posting of bond. In discussing the case,

the court held that there had been a "conviction." The defendant
WaS referred to as a "convicted person" with the right to appeal.
In Jephson v. Barker, 3 T.L.R. 40 (1886), one had been found
guilty as the keeper of a disorderly house in England and had
been ordered to enter into his recognizance to come up for judgment when called upon. The question was whether this was a
"conviction" within the terms of a statute providing for the payment
of money to certain persons who had furnished information leading IA) the "conviction" of any person keeping a disorderly house.
The court ruled that there had been a "conviction." The court
stated that the "order of the court that the prisoner should enter
into hie recognizance to come up for judgment if called upon"

a judgment and a "final judgment except in certain events." To
the same effect is King v. Bab johns, 3 K.B. 171 (1913), which involved the question whether a parolee who subsequently was found
guilty of committing another crime for which he was bound over
to come up for judgment when called upon, forfeited his parole
under the provisions of a law requiring forfeiture by s parolee who
had been "convicted" of another crime.
The special inquiry officer relied upon Pint) v. Laotian, supra.
In Matter of 0 , supra, we fully set forth our evaluation of
Pico. From Pine it is possible to draw the broad rules that a
finding of guilt must be followed by further action by the court
disposing of the case with some degree of "finality" and that a case
placed "on file" is not sufficient to support a deportation charge.
However, neither the reasoning of the court nor the facts upon
which it relied are complete enough to offer us a guide as to what
action of a court following a plea of guilty, except for placing a
case "on file," constitutes a "conviction." Moreover, a case placed
on file can be taken from the "file" at any time and the defendant
given a sentence. In the instant case, the defendant cannot be punished after the expiration of this probation. We must hold then that
the respondent's convictions were convictions under the immigration
laws relating to the deportation of aliens.
202

We have chosen to deal with the issue of convictions on the terms
by which it was handed to us because of the importance in the administration of the immigration law of the section relating to the
conviction of aliens for crimes, and because the warrant charges the
alien with "conviction" of crime. However, we must point out that

in 1049 the alien entered a plea of guilty to the crime of theft.
This plea constitutes an admission of the commission of theft and
the alien having been found guilty by the court would thereafter
have been clearly inadmissible at the time of his entries as one who
admitted the commission of a crime involving moral turpitude.
Respondent may be eligible for admission to the United States
for permanent residence under the provisions of section 5 of Public
Law 85-316, September 11, 1957, despite his convictions of crime.
This matter can be taken up with the Immigration Service and a
United States consul in Canada. 'There is no administrative relief
we can give the respondent.
Order: It is ordered that the order of the special inquiry officer be and the same is hereby withdrawn.
It is further ordered that the alien be deported from the United
States pursuant to law on the charge stated in the warrant of arrest.
APPENDIX
SECTION 1081. (1) In any case in which a person is convicted
before any court of any offence punishable with not more than two
years' imprisonment, and no previous conviction is proved against
him, if it appears to the court before which he is so convicted or
the Court of Appeals, that, regard being had to the age, character,
and antecedents of the offender, to the trivial nature of the offence,
and to any extenuating circumstances under which the offence was

committed, it is expedient that the offender be released on probation

of good conduct, the court may, instead of sentencing him at once
to any punishment, direct that he be released on his entering into a
recognizance, with or without sureties, and during such period as the
court directs, to appear and receive judgment when called upon,
and in the meantime to keep the peace and be of good behavior.
1947, c. 55, s. 34.
2. Where the offence is punishable with more than two years' imprisonment the court shall have the same power as aforesaid with
the concurrence of the conned acting for the Crown in the prucreu-

tion of the offender.
3. The court may, if it thinks fit, direct that the offender shall pay
the costs of the prosecution, or some portion of the same, within
such period and by such installments as the court directs.
200

4. Where one previous conviction and no more is proved against
the person so convicted and such conviction took place more than
five years before that for the offence. in question, or was for en

offence not related in character with the concurrence of the counsel
acting for the Crown in the prosecution of the offender.
5. The court in suspending sentence may direct that the offender
shall be placed on probation for such period and under such conditions as the court may prescribe, and may from time to time increase
or decrease such period and change such conditions, and that during
such period the offender shall report from time to time as the court
may prescribe to any officer that the court may designate, and the
offender shall be under the supervision of such officer during the
said period, and the officer shall report to the court if the offender
is not carrying out the terms on which the sentence is suspended,
and thereupon the offender shall he brought again before the court

for sentence.
6. The offender may also be ordered to make restitution and reparation to a person or persons aggrieved or injured by the offence
for which he was convicted for the actual damage or loss thereby
caused, and the offender may while on probation be ordered as one
of said conditions to provide for the support of his wife and any
other dependent or dependents for which he is liable.
1082. The court, before directing the release of an offender under

the last preceding section, shall be satisfied that the offender or his
surety has a fixed place of abode or regular occupation in the county
or place for which the court acts, or in which the offender is likely
to live during the period named for the observance of the conditions.
1083. If a court having power to deal with such offender in respect of his original offence or ally justice is satisfied by information
on oath that the offender has failed to observe any of the conditions
of his recognizance, such court or justice may issue a warrant for
his apprehension.
2. An offender, when apprehended on any such warrant, shall, if
not brought forthwith before the court having power to sentence
him, be brought before the justice issuing such warrant or before
some other justice in and for the same territorial division, and such
justice shall either remand him by warrant until the time at which
he was required by hie reengnizance to appear for judgment, or
until the sitting of a court having power to deal with his original
offence, or admit him to bail, with a sufficient surety, conditioned
on his appearing for judgment.
3. The offender when so remanded may be committed to a prison,
either for the county or place in or for which the justice remanding
him acts, or for the county or place where he is bound to appear for
204

judgment; and the warrant of remand shall order that he be
brought before the court before which he was bound to appear for
judgment, or to answer as to his conduct since his release.
(Tremear's Criminal Code of Canada, Fifth Edition and 1953
Supplement)

205


MATTER OF D
In VISA PETITION Proceedings
A-11638708
Decided by Regional Commissioner Apra 6, 1960
Approved by Assistant Commissioner April 14, 1960
Orphan—Eligibility tinder Act of September 11, 1957—Not eligible where living
with mother and stepfather—Adoption must be by citizen and spouse.
Thirteen-year-old illegitimate child living with mother and stepfather, who has
been adopted by her United States citizen aunt with her mother's consent,
does not meet definition of "eligible orphan" under section 4, Act of September 11., 1957, as amended, since such child cannot be regarded as having
only one parent. Further ground of disqualification exists in that adoption
by aunt who Is divorced does not meet statutory requirement that adoption
must be by a United States citizen and spouse.
APPLICATION: Petition to classify alien as eligible orphan under section 4, Act
of September 11, 1957, as amended.
BEFORE THE REGIONAL CONEVIISSIONER

Discussion : On January 22, 1960, the District Director, New York,
entered an order denying the petition, and it was further ordered
the case be certified to the Regional Commissioner for review. Brief
was filed by counsel February 4, 1960. Oral argument of counsel
was also heard at New York on March 1 by a representative of the
Regional Commissioner.
The petitioner is 49 years of age and a native-born citizen of this
country. The petitioner has no children. She was formerly married
and the marriage was terminated by divorce granted May 14 , 1948,
-

in the District Court of Las Vegas, Clark County, Nevada.
The beneficiary is 13 years of age, born August 14, 1946, at Zdyni,
Gorlice, Poland. The beneficiary is the illegitimate child of the
petitioner's sister. The child lives in impoverished circumstances
with her mother, stepfather, and their three children, and petitioner
claims to have substantially provided for the beneficiary since birth.
She further states the child is unwanted by her brother-in-law, the
stepfather, and is subject to abusive surroundings and treatment.
The adoption of the beneficiary by the petitioner was granted
628

December 22, 1958, by the County Court, Gorlicach, Poland, and
change of name of the beneficiary to the name of the petitioner was
granted. Certified copy of the decree has been presented and reflects
that the mother of the child expressed agreement to the adoption.
The petitioner states she was physically present in the court when
the proceedings were begun.
Under section 4 of the Act of September 11, 1957, as amended by
the Act of September 9, 1959, special nonquota immigrant visas may
be issued on or before June 30, 1960, to children under fourteen
yea rs of age who are found to be "eligible orphans" as defined in
the statute and are ineligible for admission to the United States
solely because they are chargeable to an oversubscribed quota area.
The statute in pertinent part defines the term. "eligible orphan" as
an alien child who:
* * * (1) Is an orphan because of the death or disappearance of both parents, or because of abandonment or desertion by, or separation or loss from,
both parents, or who has only one parent due to the death or disappearance of,

abandonment, or desertion by, or separation or loss from the other parent and
the remaining parent is incapable of providing care for such orphan • • •;
(2) (A) has been lawfully adopted abroad by a United States citizen and spouse,
or (B) is coming to the United States for adoption by a United States citizen
and spouse * *. (Emphasis supplied.)

Under the immigration laws the term "parent" includes a stepfather where the relationship was created prior to the child reaching
the age of 18 years. Hence, it cannot be said that the beneficiary
has only one parent and, under the terms of the statute, she cannot
be considered an "eligible orphan." Nor does the petitioner meet
the terms of the statute which, it is clear, require that the adoptive
parents or prospective parents be a United States citizen and spouse;
in other words, a married couple. As the petitioner is presently
unmarried she cannot qualify under the explicit requirement of the
statute.
It should also be noted that the beneficiary is not eligible for nonquota status pursuant to section 101(a) (27) (A) of the Immigration
and Nationality Act since she does not meet the definition of child
as set forth in section 101(b) (1) (E) of said act.
In view of the foregoing, the petition must be denied and the
order of the district director will be affirmed.
Order : It is ordered that the petition be denied.

629


Interim Decision #2808

MATTER OF TIEN
In Deportation. Proceedings
A-20608797
Decided by Board July 24, 1980
(1) Once an alien ceases to work for the employer that obtained the labor certification
submitted in conjunction with his application for adjustment of status, that adjustment application will normally be deemed abandoned. Matter of Stevens, 12 I&N Dec.
694 (BIA 1968), and Matter of Danqualt, 16 I&N Dec. 191 (BIA 1977), reaffirmed.
(2) When the underlying basis for an alien's application for adjustment of status has
ceased to exist, the application is deemed abandoned and the alien is no longer
exempted by the filing of that application from the bar of section 245(c)(2) of the
Immigration and Nationality Act, 8 U.S.C. 1255(c)(2), should he thereafter engage in
unauthorized employment that did not and could not support his adjustment
application.
(3) Where respondent worked without Service permission as a house painter after the
effective date of the section 245(c)(2) bar, the fact that he filed an application for
adjustment of status three years earlier based upon his certified employment as a
specialty cook does not save him from the operation of the bar, that application having
been abandoned when he left his certified employer.
(4) Fact that respondent resumed the certified employment upon which his adjustment
application was predicated, subsequent to the deportation hearing, while relevant to
an inquiry whether he might presently establish eligibility for an immigrant visa, is
immaterial to the determination whether his intervening employment as a house
painter without Service permission places him within the ambit of the section
245(c)(2) bar to adjustment of status.
CHARGE

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)}—Nonimmigrant—remained
longer than permitted
ON BEHALF OF RESPONDENT Mark A. Mancini, Esquire
1707 H Street, N.W.
Washington, D.C. 20006
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated March 1, 1979, an immigration judge found the
respondent deportable as charged pursuant to section 241(a)(2) of the
Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), denied his appli.126

Interim Decision 112808
cation for adjustment of status pursuant to section 245 of the Act, 8
U.S.C. 1255, but granted him the privilege of voluntary departure in
lieu of deportation. Deportability has been conceded and the only issue
raised on appeal concerns the immigration judge's denial, as a matter
of law, of the respondent's application for relief from deportation
under section 245. The appeal will be dismissed..
The relevant facts may be summarized as follows. On January 14,
1974, the respondent filed his application for adjustment of status with

the District Director, accompanied by a sixth-preference visa petition
which, in tarn, was supported by a labor certification that had been

issued by the Department of Labor in November 1973 for employment
as a specialty cook at the Blue Hawaii Restaurant in Hampton,
Virginia. The respondent worked at the Blue Hawaii from January
1974 to January 1975 and again from October 1975 to December 1976.
The District Director denied the visa petition based upon that certified
employment in September 1976 for reasons not developed in the
record. In February 1977, the respondent began work at the Toy Poy

Chinese Restaurant in Jackson, Mississippi, again as a specialty cook.
A labor certification predicated upon that employment was issued in
March 1977; the respondent's new certified employer thereupon, in
April 1977, filed a sixth preference visa petition on his behalf. The
respondent remained employed at the Toy Poy until the end of 1977.
Sometime thereafter, the restaurant went out of business and its visa
petition on the respondent's behalf was denied for that reason in May
1978. After he left the Toy Poy, the respondent moved to Houston,
Texas, where he worked as a house painter on a subcontract basis to
-

the time of the deportation hearing in March 1979.

In order to qualify for adjustment of status under section 245, an
alien must apply for adjustment, establish that he is eligible to receive
an immigrant visa and is admissible to the United States for
permanent residence, and that an immigrant visa is immediately
available to him. At the hearing, the respondent conceded that he was
not then working at the Blue Hawaii Restaurant, the certified employment that supported his application for adjustment of status, but

explained that he had been invited to resume his employment by the
manager of the restaurant and that the job offer which served as the
basis of his adjustment application therefore remained open to him.
He argued that he was entitled to renew his adjustment application,
originally filed with the District Director in January 1974, 1 and notwithstanding the denial of the sixth-preference visa petition filed on
his behalf by the Blue Hawaii, could satisfy the visa eligibility requirement of section 245 as a nonpreference applicant on the basis of the
' See 8 C.F.R. 2452(a)(4); Matter of Huang, 16 MN Dee. 358

(nu 1977 and 1975).

Interim Decision #2808
underlying labor certification issued for that employment.
The immigration judge determined that the respondent was
precluded on two separate grounds from establishing statutory eligibility for relief under section 245. First, the immigration judge found
the respondent's ease governed by the rule set forth in Matter of
Stevens,12 I&N Dec. 694 (BIA 1968), reaffirmed in Matter of Danquah,
16 I&N Dec. 191 (BIA 1977), which provides that an applicant for
section 245 relief who is no longer employed in the position for which
his labor certification was granted is not eligible for an immigrant
visa, and hence for adjustment of status, based upon that certification.
He additionally found the respondent precluded from establishing
eligibility for adjustment by the unauthorized employment bar of
section 245(c)(2) of the Act, 8 U.S.C. 1255(c)(2), by reason of his
employment as a house painter. Inasmuch as we agree that section
245(c)(2) bars adjustment in this case, we need not reach the alternative basis for the immigration judge's decision.
In October 1976, section 245 of the Immigration and Nationality Act
was amended to provide, in pertinent part:
(c) The provisions of this section shall not be applicable to ... (2) an alien (other than
an immediate relative as defined in section 201(b) of this title) who hereafter continues
in or occopto unauthorised employment prior to filing an application for adjustment of

status ...1

The fact that the respondent worked as a house painter after the
January 1, 1977, effective date of the section 245(c)(2) bar is undisputed. The respondent concedes that he never had authorization to
work in this country.' He insists, however, that section 245(c)(2) is
inapplicable by its express terms since he filed an application for
adjustment of status almost three years prior to the effective date of

the statute. The respondent's contention, at first glance appealing,
must be rejected.
Once an alien ceases to work for the employer that obtained the labor
certification submitted in conjunction with his application for adjustment of status, the adjustment application based upon that certification may no longer be approved, at least so long as the break in employment continues. Cf. Matter of Stevens, supra; Matter of Danquah,
supra. When the respondent terminated his employment at the Blue
Hawaii Restaurant, he effectively abandoned his application for adjustment of status inasmuch as no basis for adjustment then existed.
It is apparently the respondent's position that once an alien has filed
▪1976 Amendments to the Immigration and Nationality Act, Pub. L. 94-671, 90 Stet.
(effective January 1, 1977).
' The issuance of a labor certification does not operate to authorize an alien's employment. Matter of Raol, 16 I&N Dec. 466 (BIA 1978). In any event, no labor certification was
sought in Connection with the employment at issue.
2703

438

Interim Decision #2808
an application for adjustment of status, he is forever immunized from
the unauthorized employment bar of section 245(c)(2) regardless of the
status of that adjustment application or his subsequent employment
history. We are confident that Congress did not intend such result and
accordingly hold that when the underlying basis for an alien's application for adjustment of status has ceased to exist, the alien is no longer
exempted by the filing of that application from the section 245(c)(2)

bar and is subject to the consequences of the bar should he thereafter
engage in unauthorized employment that did not and could not support
his adjustment application.

The meager legislative history of section 245(c)(2), as amended,
provides little or no guidance with respect to the .precise issue before

us.' We are satisfied, however, that our holding best serves the
manifest purpose underlying the enactment of the section 245(c)(2)
bar, namely, to deter nonimmigrants from obtaining unauthorized
employment in violation of the conditions of their admission. Moreover, our holding is consonant with the longstanding Service practice
of authorizing the employment of adjustment applicants during the
pendency of their applications, a practice Congress may well have
intended to codify in enacting section 24.5(0(2). Immigration and
Naturalization Service Operations Instruction 245.9. 5 See generally
Merin v. Smith, 376 F.Supp. 608 (D. Corm. 1974). An application for
adjustment of status that can no longer be approved will not continue
to be regarded as "filed" within the meaning of section 245(c)(2).
The respondent worked without Service permission as a house
painter after the effective date of the unauthorized employment bar of
section 245(c)(2). The fact that he filed an application for adjustment of
status in January 1974, based upon his certified employment at the
Blue Hawaii Restaurant does not save him from the operation of the
bar, that application having been abandoned by the time he began

work as a house painter, nor could his employment as a house painter
itself serve as the basis of his adjustment application since no labor
certification had been issued in connection with that employment. 8
C.F.R. 245.1(e). The bar of section 245(c)(2) therefore applies and the
respondent is precluded by his unauthorized employment as a house
H.R. Rep. No. 94-1553, 94th Cong., 2d Seas. (Sept. 15, 1976), reprinted in 1976 U.S.
Code Cong. & Ad. News 6073, 6084.
Operations Instructions 245.9 provides in full:
During the time any application for status as a permanent resident is pending, the
applicant's Form 1-94, upon request, may be noted "EMPLOYMENT
AUTHORIZED—ADJUSTMENT APPLICANT." However, if the application must
be returned to the applicant for any reason, such as when a required visa petition
has not been submitted or cannot be approved upon initial review, the Form 1-94
shall not be so noted.

Interim Decision #2808
painter from establishing statutory eligibility for adjustment of
status.
Finally, we note that on January 16, 1980, subsequent to the deportation hearing, the respondent resumed his duties at the Blue Hawaii
Restaurant, the certified employment upon which his adjustment application was predicated. While relevant to an inquiry whether the
respondent might presently establish eligibility for an immigrant visa,
that fact is immaterial to the determination whether his intervening
employment as a house painter without Service permission places him
within the ambit of the section 245(c)(2) bar to adjustment of status.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is permitted to depart from
the United States voluntarily within 30 days from the date of this
order or any extension beyond that time as may be granted by the
District Director; in the event of failure so to depart, the respondent
shall be deported as provided in the immigration judge's order.

AAA


Interim Decision #2296

MATTER OF

NETTSCHUL

In Visa Petition Proceedings
A-14642239

Decided by Board June 14, 1974
For the purposes of section 202(bX4) of the Immigration and Nationality Act, as
amended, the lawful permanent resident petitioner is considered as having
had a residence in Chile at the time of the birth of the beneficiary, his son, in
that country in 1948, since Chile had been his only residence for almost 10
years at the time of beneficiary's birth; he had established himself in a
business in Chile by 1948; and in 1949 he acquired Chilean citizenship.
Accordingly, beneficiary is ineligible for alternate visa chargeability under
section 202(b)(4) of the Act and, eonserytipntly. cannot Qualify for preference
classification under section 203(a)(2) of the Act as the petitioner's unmarried
son.
ON BEHALF OF PETITIONER:

George K. Rosenberg, Esquire
3600 Wilshire Blvd.
Los Angeles, California 90010

The petitioner, a lawful permanent resident, applied for preference classification for the beneficiary as his unmarried son under
section 203(aX2) of the Immigration and Nationality Act. In a
decision dated December 13, 1973 the Acting District Director
denied the petition on the ground that, as a native of Chile, the
beneficiary is a "special immigrant" under section 101(aX27XA) of
the Act, for whom there is no preference classification available
pursuant to the terms of section 201(a). The petitioner appeals
from this denial on the ground that the beneficiary qualifies for
alternate visa chargeability to the quota of a foreign state in the
Eastern Hemisphere, under section 202(b)(4) of the Act, and is thus
eligible for preference status. The appeal will be dismissed.
The beneficiary is a citizen of Chile who was born there in 1948
and is presently residing in the United States as a student. The
record indicates that the petitioner and his wife, the beneficiary's
mother, are natives of Czechoslovakia and Germany, respectively,
whn fled their homelands prior to World War II in fear of
persecution at the hands of the Nazis. They each sought and
obtained refuge in Chile, where they met and were married in
726

Interim Decision #2296
1944. The beneficiary was born in 1948, and the following year the
petitioner acquired Chilean citizenship.
The question presented on appeal is whether the petitioner had
a "residence" in Chile at the time of the beneficiary's birth so as to
preclude invocation of the alternate chargeability provision found
in section 202(bX4) of the Act. That section states:
... For the purposes of this Act the foreign state to which an immigrant is
chargeable shall be determined by birth within such foreign state except that
... (4) an alien born within any foreign state in which neither of his parents
was born and in which neither of his parents had a residence at the time of
such alien's birth may be charged to the foreign state of either parent.
(Emphasis supplied.)

Counsel contends that this provision covers the beneficiary's
case in that the petitioner's presence in Chile was not voluntary
and so he cannot be said to have had a "residence" there at the
time of the beneficiary's birth. Counsel maintains that this reasoning is underscored by the fact that the petitioner at all times
harbored an intention to emigrate to the United States. We reject
this argument and cannot endorse counsel's construction of section 202(b)(4) in this situation.
At the time of the beneficiary's birth in 1948, Chile had been the
petitioner's only residence for almost ten years. Section 101(aX33)
states: "As used in this Act—The term "residence" means the
place of general abode; the place of general abode of a person
means his principal, actual dwelling place in fact, without regard
to intent...." By 1948 the petitioner had established himself in a
business in Chile and was apparently reaping the benefits of his
long presence there as an integrated member of its society. The
roots of resettlement planted during this period culminated in the
petitioner's acquisition of Chilean citizenship in 1949.
Accordingly, we cannot find, as counsel urges, that neither of
the beneficiary's parents had a "residence" in Chile at the time of
his birth, as that term is contemplated by section 202(bX4). The
decision of the Acting District Director was therefore correct, and
it will be affirmed. The following order will be entered.

ORDER: The appeal is dismissed.

727