MATTER Of'

Y—J—G-

In VISA PETITION Proceedings
VP 16-1-23207
Decided by Attorney General September

n, 1961

Preference quota status—Transfer to nnnqunta status—Act of September 22.

1959—Retention of parent-child relationship not affected by age of child.
Petitioner who was admitted for permanent residence in 1955 as a nonquota
immigrant under the Refugee Relief Act filed a petition, which was approved on December 10, 1057, to accord third preference quota etatue to his
unmarried son, then 19 1/2 years of age. Approval of the visa petition was
automatically revoked on June 2, 1959, when the beneficiary-son attained
the age of 21.
(1) Petition may be revalidated at initio under the September 22, 1959
amendment to the Immigration and Nationality Act enlarging the fdire preference category to include unmarried sons or daughters of resident aliens.
(2) Upon revalidation, beneficiary's third preference status is transferable to
nonquota status miner section 4 or section 6 of the Act of September 22,
1959. Proviso in sections 4 and 6 that beneficiary, upon application for
immigrant visa and for admission to the United States, be found to have
retained his relationship to the petitioner, and status, as established In the
approved visa petition, is satisfied, since
(a) Eligibility for preference quota status need not be continuous and uninterrupted. It is enough that eligibility (Listed at the time the petition was
approved and at the time of the application for an immigrant visa and for
admission to the United States.

(b) "Status" as used in the provisos refers to beneficiary's preference quota
status as defined in section 203(a) (2), (3), or (4) of the Immigration and
Nationality Act. Roth marital status and age may be relevant to determining "status." In the instant case, fact that beneficiary is still unmarried is relevant to his third preference status but fact that he is now over
is not relevant because of 1959 amendment broadening third preference
category to include unmarried sons and daughters.

BEFORE TIIE ATTORNEY GENERAL

DISCUSSION: The Board of Imlaigra tion Appeals, at the request
of the Cuntulibbione.r of Immigration and Naturalization, has referred to me for review, as provided by 8 CFR 3.1(h), its order of
October 4, 1960, that the petitioner's visa petition he approved for
nonquota status under sections 4 and 6 of the Act of September 22,
1959, Public Law 86-363, 73 Stat. 611.
471

The petitioner, a native and citizen of China, 50 years old, was
admitted to the United States for permanent residence on May 10,
1955, by virtue of a special nonquota immigrant visa issued under
the Refugee Relief Act of 1953, as amended (50 U.S.C. 1971, et seq.).
The beneficiary is the son of the petitioner, a native and citizen of
China, born June 2, 1938.
The father first filed a petition on December 10, 1957, for preference status on the immigrant quota for his son under section 203
(a) (3) of the Immigration and Nationality Act, 8 U.S.C. 1153
(a) (3). Third preference quota status under this subsection was
available to "the spouses or the children of aliens lawfully admitted
for permanent residence." At this time petitioner's son was 19I/ 2
yearsofg.AlthupeionwasrvdJuy31,
1958, an immigrant visa could not be issued because the quota for
Chinese persons, including those eligible for preferences, was heavily
overaubaeribed. On Juno 2, 1059, the eon attained his majority_

Since he was no longer a "child" within the meaning of section
203(a) (3),1 approval of the petition for a preference was automatically revoked pursuant to administrative regulation, 8 CFR
206.1(b) (5). Accordingly, the son's name was removed from the
third preference quota waiting list and inserted on the waiting list
of nonpreference quota immigrants.
The father then sought reconsideration of the petition under the

Act of September 22, 1959, "An Act to provide for the entry of certain relatives of United States citizens and lawfully resident aliens."
Section 2 of the Act amended section 203(a) (3) of the Immigration
and Nationality Azt so as to broaden the provision for third preference eligibility from "children," i.e., unmarried minors, to "unmarried sons or daughters" of permanent resident aliens. The term
"sons or daughters" includes persons over 21 years of age. Accordingly, under the provisions of section 203(a) (3) as amended by
section 2 of the Act of September 22, 1959, the son, who is now over
21 years of age, is eligible for third preference quota status. It was
not disputed at the hearing before the Board of Immigration Appeals that the petition may be revalidated ab initio for that category.
Sections 4 and 6 of the Act of September 22, 1959 provide for additional relief, namely, nonquota immigrant visas for certain classes
of immigrants. The question before me is whether the son is eligible
for nonquota status under the provisions of section 4 or section 6
of the 1959 Aut.

Section 4 provides as follows:
Any alien who (1) is registered on a consular waiting list pursuant to
section 203(c) of the Immigration and Nationality Act (66 Stat. 179) under
'Section 101(b) (1) of the Immigration and Nationality Act, 8 U.S.C.
1101(b) (1), defines "child" to mean "an unmarried person under twenty-one
years of age."

472

a priority date earlier than December 31, 19D3, and (2) is eligible an a quota
immigrant status under the provisions of section 203 (a) (2), (3), or (4) of
such Act on the basis of a petition approved by the Attorney General prior
to January 1, 1959, and the spouse and the children of such alien, shall be
held to be nonquota immigrants and, if otherwise admissible under the provisions of the Immigration and Nationality Act, shall be issued nonquota
immigrant visas: Provided, That, upon his application for an immigrant visa,
and for his admission into the United States, the alien is found to have
retained Lib relationship to the petitioner, and status, as established in the

approved petition.

Section 6 provides as follows:
Notwithstanding the provisions of sections 3 and 20 of the Refugee Relief
Act of 1953, as amended, special nonquota immigrant visas may be issued to
aliens eligible to enter the United States for permanent residence under all
the applicable provisions of the Immigration and Nationality Act: Provided,
That each such alien is found to be the beneficiary of a visa petition approved by the Attorney General pursuant to section 203(a) (2) and (3) and
section 205 of the Immigration and Nationality Act prior to January 1, 1959,
and such petition was filed by a person lawfully admitted into the United
Staten under the provisions of the Refugee Relief Art of 1953. as amended:
Provided further, That, upon his application for an immigrant visa, and for
his admission into the United States, the alien is found to have retained his
relationship to the petitioner, and status, as established in the approved
petition.

The record establishes that the son is eligible for nonquota status
under both section 4 and section 6 2 unless he is barred from eligibility by the proviso common to both sections "that, upon his application for an immigrant visa, and for his admission into the United
States, the alien is found to have retained his relationship to the
petitioner, and status, as established in the approved petition."
There is no controversy as to the relationship, which is conceded to
be established. The question is the meaning of the word "status."
The Asiistant Commissioner, in his order of April 11, 1960, reviewed the legislative history of the Act, of Saptemher 22, 1959, and

concluded that "status" was intended to refer to the marital status
of a beneficiary and not to his age. Accordingly, he ordered that
the son be considered a nonquota alien entitled to a nonquota, immigrant visa. The decision was certified to the Board of Immigration
Appeals for review as authorized by the immigration regulations.
In the hearing before the Board, the Department of State, as an
The Immigration Service's. Assistant Commissioner, Examinations, the officer charged with the initial review of the petition, limited his determination
to the son's eligibility under section 6 since eligibility under section 4 could
nut be determined without verification of the son's priority date on the eon-

sular waiting list. The Department of State thereafter confirmed that the son
had a priority date of November 18, 1953, which he derived from his father
pursuant to regulation. 22 CFR 42.21(a) (since renumbered 22 CFR 42.65
(a)). Consequently, the Board was satisfied that the son is eligible under
both sections, and I accept this factual determination.

473

interested agency, took the position that "status" referred to both
age and marital status. The Department reasoned that when the
third preference petition was approved, the son's status was that of
a l'child," that is, unmarried and under 21 years of age, and that
when he reached his majority he no longer had the status of a
"child" as established in the approved petition_ The Board of Immigration Appeals took still a third position, that "status" refers
neither to age nor to marital status but to "the consanguinity which
gave the alien-beneficiary second, third or fourth preference status
as the result of the approval of his visa petition prior to January 1,
1959." 8 Accordingly, the Board directed that the visa petition be
approved for nonquota status.
The purpose of sections 4 and 6 of the 1050 Act was to reunite

families and to relieve a backlog resulting from oversubscribed
quotas which cause unusually long delays in the issuance of immigration quota visas for aliens already accorded preference status. 105
Cong. Rec. 12716, 18996. This purpose is achieved by granting nonquota status to certain beneficiaries in whose behalf petitions for
preference quota status had been filed and approved before a certain
cut-off date, January 1, 1959. A qualification established by these
sections is the proviso that "upon his application for an immigrant
visa, and for his admission into the Unite States, the alien [i.e., the
beneficiary] is found to have retained his relationship to the petitioner, -and status, as established in the approved petition." What
status is referred to? Presumably the status is that defined in the
preceding parts of sections 4 and 6, that is to say, preference quota
status under subsections (a) (2), (3) and (4) of section 203 in the
case of aliens relying on section 4 and preference quota status under
subsections (a) (2) and (3) of section 203 in the case of an alien
relying on section 6. 4 This interpretation scorns to me the most
3 In a memorandum dated May 5, 1061, supplementing its opinion, the Board
explained that "'consanguinity' was used in the broad sense of relationship
which gave rise to th'e beneficiary's preference status, whether such relationship arose by consanguinity, adoption or marriage."
4 Prior to the 1959 Act, subsection (a) (2) granted a preference to parents
of adult citizens of the United States, subsection (a) (3) granted a preference
to the spouses and ehildrPo of aliens lawfully admitted for permanent residence, and subsection (a) (4) •granted a preference to brothers, sisters, and
adult sons and daughters of a United States citizen. (Children of United
States citizens are entitled to nonquota status, section 101(a) (27) of the
immigration and Nationality Act. 8 U.S.C. 1101(a) (27),) The preferences
are established by these subsections, in descending order of priority (section
203(d), 8 U.S.C. 1153(d)), and are customarily referred•to as second, third
and fourth preferences, respectively. In addition to expanding the third preference category to include unmarried sons and daughters of aliens, who have
reached the age of 21 years, the 1959 Act moved unmarried sons and daughters of citizens of the United States from the fourth preference to the more
desirable second preference.

474

in the
approved petition"; the presence of this phrase fortifies my conclusion, for the very purpose of filing such petitions is to obtain approval of preference quota status. See section 205 of the Immigration and Nationality Act, 8 U.S.C. 1155.
My analysis compels me to disagree with the interpretation placed
on the word "status" by the Board of Immigration Appeals. The
Board concluded that, as used in the proviso to sections 4 and 0,
"status" refers solely to degree of the alien's relationship—by blood,
adoption or marriage—to the petitioner and not to either his age or
marital status. In the first place, the Board's interpretation would
make "status" redundant since retention of the preexisting relationship to the petitioner is one of the two specific requirements of the
proviso.5 Secondly, to hold that "status" has no reference to marital
status would not square with the intent of Congress, as manifested
in section 2 of the 1959 Act, amending section 203(a) (3), that married sons or daughters of aliens should not be accorded preferential
treatment under the Inunigration and Nationality Act. The Board's
interpretation would lead, therefore, to an anomalous result in the
case of a child of an alien lawfully admitted for permanent residence, who marries subsequent to the approval of a petition on his
behalf for a third preference. If the petition was approved before
January 1, 1059, the child would be entitled ,to a nonquota immigrant
visa under section 4 or 6 notwithstanding the subsequent marriage.
mania] one, even in the absence of the phrase "as established

However, if the petition was approved subsequent to January 1,
1959, it is indisputable that the child would not even be entitled to

third preference status under section 203(a) (3), as amended. I cannot believe that Congress intended such disparate results, and I
must conclude, therefore, that where the marriage of the beneficiary
subsequent to the approval of the preference petition would adversely affect the beneficiary's present eligibility for a preference,
the marriage is a change in "status" within the meaning of the
proviso.°
'Conversely, it might appear that to interpret "status" to include all the
qualifications for preference status spelled out In the relevant subsections of
section 203 would make "relationship to the petitioner" redundant. However,
a beneficiary may have more than one relative in the United States within
the defined degree of relationship. Therefore, his status as a person eligible
for a preference may not be changed although his relationship to the petitioner
may cease.
6 The above situation could occur only in the case of the child of an alien.
Since adult sons and daughters of United States citizens were entitled to
fourth preference until September 22, 1959, and are now entitled to either
second or fourth preference depending on their marital status, a son or daughter of a United States citizen otherwise eligible for a nonquota visa under
section 4 of the 1959 Act, who married subsequent to the approval of the
petition, would now have the same fourth preference status he had at the
time his petition was approved.
475

As with marital status so with age. It is clear that but for section 2 of the 1959 Act amending section 203(a) (3) to remove the
requirement that the beneficiary be a minor, the son's achieving his
majority would automatically bring about a change in his status
within the meaning of sections 4 and 6. It is the contention of the
Department of State that when this preference petition was approved in 1958, the son's "status" was "that of a 'child', that is, unmarried and under 21 years of age," and hence that such "status"
was irretrievably lost upon his reaching the age of 21. In my view,
the Department errs in equating status with the facts that go to
determining status. The law does not give it that meaning. Status
is the standing or legal position of an individual. Kandelin v.
Social Security Board, 136 F.2d 327, 328 (C.A. 2, 1943) ; Gibbons
v. Sioux City, 242 Ia. 160, 164; 45 N.W.2d 842, 844 (1951) ; In re
Adoption of Doe, 231 N.C. 1, 7; 56 S.E.2d 8, 12 (1944). Of course,
facts are significant, but status cannot be determined solely by reference to facts. Some facts are relevant to status and other are
not. For example, in 1958 when the petition for a preference was
approved, the son was male, unmarried, and 19 1/2 years of age.
Under section 203(a) (3), as it then read, the facts that he was unmarried and was 19 1/2 years old --vere relevant to his status as eligible for third preference; his gender was not. Under section 203
(a) (3) as amended by the 1959 Act, the fact that he is unmarried is
still relevant to his status, but his age has no more effect on his
status than his sex. This is because age has been by law removed
as a relevant fact. It seems to me incontrovertible, therefore, that
if the son had reached the age of 21 years after September 22,
1959, the effective date of the 1959 Act, his status, that is, his legal
position, would have been unchanged. Since he reached that age
prior to September 22, there is no doubt that his status was changed

temporarily, but section 2 of the Act of September 22, 1959 restored
his previous status.?
It has apparently been conceded in the argument before the Board
that this restoration of third preference status operated retroactively
to revalidate the petition ab initio, and the Department of State has
not attempted to distinguish between beneficiaries reaching the age
I have considered the Department's arguments based on the statutory history of the Act of September 22, 1959, but I find them inconclusive. The
significance which the Department attaches to the fact that the benefits of
section 4 are limited to "the spouse and the children" of the alien-beneficiary
is unwarranted. It is not to be expected that the class of eligible dependents
of beneficiaries would be as broadly defined as the class of beneficiaries. The
fourth paragraph of the memorandum by Congressman Rodino, 105 Cong. Rec.
18997, does indeed tend to support the Department's interpretation, but the
memorandum is entitled "a brief explanation" of the Act and it cannot be
assumed that it was intended to exhaust the possibilities of relief thereunder.

476

of 21 years before September 22, 1959, and those who reach that age

after that date. I do not find it necessary to consider this problem
for as I view the provisos of sections 4 and 6 they do not require
that eligibility for a preference be continuous and uninterrupted
for the whole period between the approval of the petition and application for a visa. It is enough that, as in this case, eligibility
existed at the time the petition was approved and exists at the time
of application for an immigrant visa and for admission into the
United States.
The decision ordering that the visa petition be approved for nonquota status under sections 4 and 6 of the Act of September 22,
1959 is affirmed.

477


Interim Decision *1565

MATrER of SISMALE

In Deportation Proceedings
A.-14682948
Decided by Board March ES, 1966'
(1) Where decision on. an application under section 243(b), IraMigration
and Nationality Act, was rendered 'subsequent to the amendment of that
section by section 11(f) of E L. 89-230, and fails to reveal whether the test
of the new law was applied, the case will be remanded to have such
deficiency supplied.
(2) Mime a section 243(h) applicant Ilan the burden of establishing that her
case warrants favorable action and since her own testimony may be the
best and, in fact, the only evidence available to her, it must be accorded the
most careful' and objective evaluation possible
• in the light of •acceptable
official knowledge.
CHARGE:

.

.

Order: Act of 1952—Section , 241(a) (2) [8 1;8.0. 12513—Nonimmigrant
(temporary visitor)—remained longer.

This case is before us on appeal from a special inquiry officer's
order of December 7, 1965, granting the respondent's alternative request . for voluntary. departure; providing for her deportation to
Indonesia in the event of her failure to so depart; and denyinglhe
application for temporary withholding . of depOrtationr. to Alai
country. The case will be remanded to' the'speeial inquirj,
for the reasons hereinafter set forth. •
• The record relates to a 87-year:old single female alien, s;•mativd
.and citizen of Indonesia, who last entered the United States on or'
about August 25, 1964. She was then admitted at ra noninhmigraid
temporary visitor. She was thereafter authorized to remain in. the
United States in that status until: June 25, 1965. She has .remainfl.1.1
. authority. .
hersinc-talwhou
The foregoing establishes the .respondent's:deportability on the
chvge contained in. the order to show 'cause. This was conceded
in. the _course -of the hearing :before the special inquiry officer, ,pt
which. time the respondent was reinesented by counsel. Tile point
531 •

Interim Decision #1565
is unchallenged here. This aspect of the case, accordingly, requires
no further discussion.
The special inquiry officer granted. the respondent's alternative
request for voluntary departure. Suffice it to say, in this connection,

that the record before us supports said official's action in this respect.
On October 3, 1965, section 11(f) of Public Law 89-236 was en- •
acted (79 Stet. 911), amending section 243(h) of the Immigration
and Nationality Act (8 U.S.O. 1253). That amendment struck out
the words "physical persecution" and inserted in lieu thereof, as the
test for temporary withholding of an alien's deportation, "persecution on account of race, religion, or political opinion" Our consideration of the special inquiry officer's opinion. in this case, which
was rendered after the enactment in question, fails to reveal whether
said official applied the test of the new law in arriving at his decision
to deny this respondent's request for temporary withholding of her ,

deportation to Indonesia. We will remand the case to have this deficiency supplied.
The respondent's basic contention on appeal, however, is that the
special inquiry officer saddled her with an improper burden of proof.
She claims that his decision rests solely on a finding that her testimony is incredible. She asserts that the evidence of record should
not be so.simply brushed aside.
This section of the law, as do several other provisions thereof, vests
in the Abawney General or his duly designated delegate the discretion to grant or deny relief from deportation. In all such cases,
favorable exercise of relief is manifestly not a matter of right under
any circumstances; but rather is in all cases a matter of grace. The
very wording of the Iaw.provides freedom of decision, to wit: the
possibility of denial on purely discretionary grounds. 7n the last •

analysis, then, the decision in an individual case depends• on the
facts and circumstances peculiar to it. Accordingly, the enunciation
of specific "standards" or "guide lines," as has been requested by the
respondent, would be unwarranted.
There are, nevertheless, certain general considerations which we
think require recitation in connection with the instant application.
Typically, the respondent has the burden of establishing that her
case is a satisfactory one fOr favorable action (8 CPR 242.17(c)).
Initially, that is, she has the obligation to set forth the conditions
relating to her personally which support her anticipation of persecution. Characteristically, she has available to her no better methods for ascertaining current political conditions abroad than does
the average person. Hence, practically speaking, although she may
ultimately have the burden of persuasion, her own testimony may be
532

:

Interim Decision- #i565
the. best—in fact- the only—evidence she has available. It must,
- therefore, be accorded the Most -eareful-and objective evaluation, pos 7
sible,nthgofacpbleiknowdg.
Our carefUl ream of this record fails to reveal that the special
inquiry officer has complied.with, the-foregoing fundamental requite. ments'birein: We will, therefore, remand the case to said official
for appropriate action accordingly:- In this connection, the respondent should be given the oppOrtunity to present any obtainable pertinent evidence supporting hei application.
ORDER: It is ordered that the special inquiry officer's decision of
December fi 1965 be withdrawn and that the :case be remanded to
said official for appropriate action not inconsistent with the foregoing opinion.
,

533


Interim Decision #2605

MATTER OF KJELDAAS
In Deportation Proceedings
A-19368707

Decided by Board August 18, 1977
(1) Respondent is the principal and a teacher in a school administered by a religious group
known as the Jesus People. She began the school at their request in the summer of 1975
so they might educate the children of the community in that religious atmosphere.
(2) Respondent sought adjustment of status under section 245 of the Immigration and
Nationality Act as a nonpreference immigrant who had satisfied the labor certification
requirement of section 212(a)(14) of the Act by virtue of the inclusion of her occupation
in Group III of Schedule A of the Labor Department. (20 C.F.R. 656.10 and 20 C.F.R.
656.22).
(3) Reaponriant's occupation is within Schedule A, Croup III as revised effective February
18, 1977, because she is seeking admission. to perform a religious occupation and she is a
person with a religious commitment seeking admission to work for a nonprofit religious
organization. She has worked for her organization full time since 1974. She will be
principally engaged in working for the organisation and intends to wink for the organization 100% of her working time. It is the order of the Board that her petition for
adjustment of status under section 245 of the Act be granted subject to appropriate and
requisite clearances by the Service.
CHARGE:
Order: Act of 1952—Section 241(a)(2) 18
1251(a)(2)1--Nonimmigrant exchange
visitor—remained longer than permitted
ON BEHALF OF RESPONDENT:
Victor L. Anfuso, Jr., Esquire
575 Lexington Avenue
New York, New York 10022

ON BEHALF OF SERVICE:

Mary Jo Grotenrath
Appellate Trial Attorney

ItYt Milhollan, Chairman; Wilson, Applemam, and Maguire, Board Members

The respondent appeals from the immigration judge's denial of her
application for adjustment of status in a decision rendered on March 9,
1976, in which he found her deportable, and granted to her the privilege of
voluntary departure. The appeal will be sustained.
The respondent is a single female alien, a native and citizen of Norway, who last entered the United States on August 15, 1974, at which
e she was admitted as a nonimmigrant exchange visitor for a period
until June 30, 1975. She concedes &portability for having remained
thereafter.

300

Interim Decision #2605
The issue posed is whether the respondent is inadmissible to the
United States and therefore ineligible for adjustment of status, because
of the provisions of section 212(a)(14) of the Act. That section renders
inadmissible aliens seeking to enter the -United States for the purpose of
performing skilled or unskilled labor, unless they have obtained a labor
certificate from the Secretary of Labor. The respondent claims that she
satisfies the labor certification requirement as a person whose occupation is listed on Schedule "A." Schedule "A" is a list of occupations for
which the Secretary of Labor has issued a blanket certification, by

regulation, (presently numbered 20 C_F.R. 656.10). The immigration
judge found that the respondent had not established that her occupation
was listed on Schedule "A," (then numbered 20 G.F.R. 60.7). The
regulation was amended and renumbered during the pendency of this
appeal. We find that the record establishes that the respondent's occupation is one listed on Schedule "A," as recently amended.
An alien in the United States who applies for certification on the basis
of an occupation which is listed on Schedule "A" files the application
with the Immigration and Naturalization Service, 29 C.F.R. 656.22(a),
[formerly numbered 29 C.F.R. 00.3(a)]. The respondent apparently filed

such an application as part of her application for adjustment of status.
The District Director denied the application on November 20, 1975, on
the basis that her occupation did not meet the qualification for inclusion
on Schedule "A" that she be engaged: "principally (more than 50% of
[her] working time)" in duties related to religious objectives. The immigration judge, before whom she renewed her application, reached the
same conclusion in denying her application.
Group III of Schedule "A," which the respondent claimed covered her
occupation, then included:
(c) Any other person seeking admission to th_ e United States to perform duties related
to the nonprofit operation of a religious organization (1) if the duties which he will
perform involve special skills, training, and experience which the alien possesses
and which are related to the religious objectives of the organization and (2) if he
intends to be engaged principally (more than 50 percent of his working time) in
such duties. 29 C.F.R. 60.7 Schedule A, Group III.

The respondent has been serving as both principal and teacher of a
school administered by a religious organization called the Jesus People.
The organization requested her to create a school program in order that
it might educate the children of its community in its own atmosphere.
She did so during the summer of 1975 and has been teaching in and
administering the program since then_
During the course of a school day the respondent teaches some religion, but spentia five out of six class hours per day teaching secular
subjects (a requirement of state law). It was because the respondent's
teaching involves primarily secular subjects that the District Director
301

Interim Decision #2605
and immigration judge found that the respondent's duties were not
"related to the religious objectives" of the religious organization more
than 50% of the time, as required by the terms of Schedule "A." The
immigration judge rejected her contention that because religious aspects seeped into and permeated all of her teaching, her duties qualified
notwithstanding the secular subject matter of most of her teaching.
The recent amendment to Schedule "A" which became effective February 18, 1977, was accompanied by the following explanation:
10. Some commentors [sic] objected to the exclusion from Schedule A, Group III, of
persons with religious commitments who work in nonreligious occupations such as
nursing and teaching. Group III has been revised to include persons 'with a religious
commitment who will work for non-profit religious organizations. 42 Fed. Reg. 3440
(January 18, 1977).

The following language was adopted and is currently in force:
20 C.F.R. Section 656.10:
The Administrator, United States Employment Service, (Administrator) has determined that there are not sufficient United States workers who are able, willing,
qualified and available for the occupations listed below on Schedule A and that the
wages and working conditions of the United States workero oimilarly employed will
not be adversely affected by the employment of aliens in Schedule A occupations:

SCHEDULE A
(c) Group III:
(1) Aliens who seek admission to the United States in order to perform a religious
occupation, such as the preaching or teaching of religion; and
(2) Aliens with a religious commitment who seek admission into the United States in
order to work for a nonprofit religious organization
20 C.F.R. Section 656.22:
(e) Aliens seeking a labor certification under Group III of Schedule A shall file as part
of their labor certification applications docuineritau evidence showing that they
have been primarily engaged in the regilious [sic] occupation or in working for the
non-profit religious organization for the previous two years, and they will be
principally engaged (more than 50 percent of working time) in the United States
in performing the religious occupation or working for the nun -profit religious
organization.

The respondent (through counsel) contended at oral argument that
'ter occupation clearly qualifies for Schedule "A" under the amended

version of the regulation. The Service conceded that the respondent had
rnade out a prima facie case of eligibility for a labor certification under
the new regulations. On the particular facts of this case, we agree that
she has established that she is entitled to a labor certification pursuant
to Schedule "A."
It should be noted that there is no problem in this case concerning visa
.rawailability. The respondent seeks adjustment of status in the nonpreference category, for which a visa number was available at the time
202

Interim Decision #2605
she filed, as required by section 245(a)(3) of the Act. She is not seeking
visa availability as a special immigrant under the category for ministers.
Persons who seek to enter the United States "solely for the purpose of
carrying on the vocation of minister of a religious organization" are,
with certain qualifications, entitled to the classification of "special immigrant" for immigration purposes, section 101(a)(27)(C). Classified as
such they are exempt from the numerical limitations, section 201(a) of
the Act. They are also not subject to the labor certification requirement
by the terms of section 212(a)(14). The language of the present Act
according special treatment to ministers is basically unchanged from
that contained in previous acts dating back to the Immigration Act of
May 26, 1924, as amended. Its requirements are separate from and
unrelated to the regulations governing labor certifications.
The respondent is not claiming exemption from the numerical

limitations. A visa number is available to her. Neither is she claiming
exemption from the labor certification requirement. She seeks rather to
establish that she has satisfied the labor certification requirement, by
virtue of the blanket labor certificate which has been granted to persons
who seek admission to perform a religious occupation, and to persons
with a religious commitment who seek admission in order to work for a
nonprofit religious organization. The respondent contends that her occupation fits within either category.
From the record before us we have determined that the respondent
clearly fits within the category of person with a religious commitment
who seeks admission in order to work for a nonprofit religious organization, and that she meets all the qualifications of 20 C.F. R. 656.22(e).
Having made this determination, it is not necessary for us to discuss or
determine whether her occupation is a religious one, and we shall not do
so.
The prior Schedule "A" contained a category for persons with a
religious commitment., and gave examples of such persons. It included:
religious conuuitment, such au a
Monk, Nun, Brother, Missionary, and others, who is seeking admission to the
United States to perform the duties required of him by virtue of such commitment.
29 C.F.R. 60.7 Schedule A Group HI (b) in effect until February 18, 1977.

(b) Any person of any religious denomination having a

While the present regulation does not define the term "religious
commitment"—and we shall not attempt to do so here—it is clear that
this respondent qualifies. The note accompanying the change in
Schedule "A" (comment 10 quoted above) specifically mentioned that the
language adopted was chosen in order that nonreligious teachers might
be able to bring themselves within its terms. The respondent has done
post graduate work at the Norwegian Teachers Training College for
Religious Studies and Education where she pursued a program in "The
203

Interim Decision #2605
Christian Religion and Other Religions" with a supplementary course in
"Theory and Practice of Christian Education." Prior to her present
employment she taught at the Masters School in West Simsbury, Connecticut, which she described as a Christian School at which she taught
from the perspective that all her teaching was in furtherance of her faith
in God (Tr. p. 12). Her testimony indicates a religious motivation on her
part in joining the Jesus People and organizing a school for their children (Tr. p. 13). Further testimony indicates that she considers her
occupation to be a religious calling and that her religious p erspective is
involved in her performance of her occupation (Tr. pp. 14-18, 40-47).
The record also contains evidence that the respondent meets the
other qualifications required by the regulations to fit within this category. She has been primarily engaged in working for the religious
organization for the previous two years; she has been working for them
on a full-time basis since the summer of 1974. She has established that
she will be principally engaged (more than 50% of working time) in
working for the organization. She intends to work for the organization
100% of her working time. The difference from the pri or terms of
Schedule "A" is that presently it is sufficient that she intend to work for
the organization for more than 50% of her time, whereas previously, (at
least as interpreted below) the duties performed had to be ones which
related to the "religious objectives" of the organization more than 50%
of working time.
In view of the fact that the record already contains sufficient evidence
to establish that the respondent satisfies the new terms of Schedule
"A," it is not necessary to remand the case to the immigration judge for
further consideration. We shall order that her application for adjustment of status be granted.
ORDER: The appeal is sustained, and the respondent's application
for adjustment of status under section 245 of the Immigration and
Nationality Act, as amended, is hereby granted, conditioned upon appropriate and requisite clearances by the Service.

304


Interim Decision #1800

Mama or BLaziro
• In Section 249 Proceedings
A-11283040
Decided by Metric' Director October 6, 1967
for permanent
residence was cancelled in 1964 under the provisions of section 247(a) of the
Immigration and Nationality Act, she is not precluded from establishing
statutory eligibility for the benefits of section 249 of the Act as no such record

Since the previous record of applicant's lawful admission in 1957

is otherwise available.

The applicant is a 40-year-old married female, a native and citizen
of Guatemala, who was born at Guatemala City, Guatemala. Her
application for the creation of a record of lawful admission for permanent residence under section 249 of the Immigration and Nationality Act, as amended, was denied on March 6, 1967, on the ground
that a record of lawful admission was otherwise available in her case.
The Service re-opened her application on April 18, 1967 for further
consideration.
The applicant entered the United States on August 20, 1946, and
with the exception of several brief trips abroad, has remained continuously in the United States since her original entry. During one
such brief trip to Guatemala, she procured an immigrant visa and
was admitted to the United States as a nonquota immigrant for permanent residence at Miami, Florida on February 1, 1957.
The Embassy of Venezuela advised . the Department of State on
November 6, 1963 that the applicant was working as a secretary to the
Minister of Economic Affairs at the Embassy. The Department of
State informed the Service on December 10, 1963 that it considered
the applicant to be entitled to classification under section 101(a) (15)
(A) (ii) of the Act. Accordingly, the Service advised her on January 22, 1964 that pursuant to section 247 of the Act, it was proposed
to change her status from that of an alien lawfully admitted for

permanent residence to that of a nonimmigrant, unless she wished to
retain her residence status'y signing a -waiver of all rights, privileges,
482

Interim Decision #1800
exemptions, and immunities accruing to her by reason of her occupational status.
The applicant did not sign or return the waiver request and her

status was then changed on February 27, 1964 from permanent resident to that of a. nonimmigrant employee of a foreign government
under section 101(a) (15) (A) (ii) of the Act. The previous record of
lawful admission for permanent residence was cancelled under the
provisions of section 247(s) of the Act.
The applicant's employment with an official of a foreign government terminated on May 2, 1966. No longer having a lawful status, she
applied on August 1, 1966 for the creation of a record of lawful admission for permanent residence under section 249 of the Act.
The record in the applicant's case shows that she entered the 'United

States prior to June 30, 1948, that she has had her residence in the
United States continuously since such entry, that she is a person of
good moral character, and that she is not ineligible to citizenship. The
only remaining prerequisite to a favorable recommendation on her
application concerns the availability of a record of lawful admission
for permanent residence.
This case is distinguishable from Matter of Dafa2ino, Int. Dec. No.
1517, wherein the respondent was found statutorily ineligible for the
creation of a record of lawful admission under section 249 of the Act
since a record of lawful admission in his case was still available. In
the instant case, the record of lawful admission no longer exists, having been cancelled by the Service on February 27, 1964.
Section 249 of the Act provides that a record of lawful admission

for permanent residence may be made in the case of any alien, if no
such record is otherwise available and such alien satisfies the Attorney
General that he is not inadmissible under section 212(a) of the Act as
it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens, and he
establishes that he entered the United States prior to June 80, 1948,
has had his residence in the United States continuously since such
entry, is a person of good moral character, and is not ineligible to
citizenship On the basis of the entire record, it is concluded that
eligibility for the benefits of section 249 has been established.
It is ordered that the application for the creation of a record of
lawful admission under section 249 of the Immigration and National-.
ity Art, as amended, be granted.

.483


Interim Decision #2012

MATTER OF M/V OCEANIC AMITY
In Fine Proceedings
DET-10/10.129

Decided by Board November 7, 1969
(1) Statutory authority exists under sections 254(a) and 252(b) of the Immigration and Nationality Act for the reinspection at a subsequent U.S.
port of call of the crew of a vessel sailing coastwise and for revocation of
conditional landing privileges previously granted following inspection at
first port of call.
(2) Notwithstanding notice to detain and deport was not served on the responsible parties and notice of revocation of landing privileges was not
served on the alien involved in accordance with 8 CFR 252, liability to fine
lies under section 254(a) (2) of the Act for failure to detain aboard the
alien •crewman involved since the record is replete with evidence that the
substance of the regulation was fully complied with; further, the bringing
of fine under section 254(a) (2) rather than section 254(a) (3) of the Act
is not a fatal defect to imposition of fine since the carrier was well aware
of the nature of the violation with which it was charged; was adequately
apprised of the factual basis for its liability; and had ample opportunity
to intelligently protest, which it did.
which arrived at the port of Detroit,
IN RE: M/V OCEANIC AMITY,
Michigan, from foreign, via another United States port, on August
5, 1968. Alien crewman involved: WEI-TAO (DAU) KIANG.
BASIS FOR FINE: Act of 1952—Section 254(a) (2) [8 U.S.C. 1284].
Ox BEHALF OF CARRIER: John A. Mundell, Jr., Esquire
3266 Penobscot Building
Detroit, Michigan 48226

This matter involves an administrative penalty of $500, $1,000
mitigated to the extent of $500, which the District Director at
Detroit has ordered imposed on the vessel's agent, the International Great Lakes Shipping Co., for failure to detain the abovenamed Chinese alien crewman aboard the vessel at all times despite the fact that his conditional landing privileges had been
withdrawn.
When the case was previously before us on August 7, 1969, by

418

Interim Decision #2012
way of an appeal raising only the question of mitigation of the
penalty, we found that no change in the District Director's decision was warranted. Now however, the carrier has moved for reconsideration, challenging here for the first time its basic liability
to the fine.
The facts pertinent to this fundamental issue require only brief
recitation. The vessel made its first United States port call on this
trip at Wilmington, Delaware, where its entire 44-man crew was
given shore leave privileges. Since eight of the crew members deserted there, the whole crew was reinspected when the ship arrived at Detroit, coastwise. The result was that all the crewmen,
with the exception of the Master, were ordered detained on board
at Detroit. Thereafter, however, this crewman succeeded in leaving the ship and making his way ashore in the United States.
Eventually, he was apprehended by Service officers in Newark,
New Jersey, and was thereafter removed from this country by
and at the expense of the parties responsible for the vessel's operation.
Procedurally speaking, the carrier's belated denial of liability
to the fine is in direct contradiction of the position initially stated
in its Memorandum in Support of Appeal For Further Mitigation
Of Immigration Fine, page 6, paragraph 1, "Discussion.", as follows:
No argument can be extended to deny that the violation occurred and or
that a fine was not properly assessed under current la ws and regulations.

But more important, from the substantive standpoint there is no
merit whatsoever in its claim that there is no legal basis for the
fine. Simply stated, the law itself provides the answer to the argument that reinspection of the vessel's crew at Detroit was improper because it had not, in the interim, sailed foreign from
Wilmington.
Basically, the requirements of detention in subsections (1) and
(2) of section 254 (a) of the Immigration and Nationality Act are
fundamental adjuncts of the ultimate goal of the statute, to wit:
the removal of crewmen as covered by subsection (3) thereof,
and inseparable from it. Any doubts which might otherwise exist
on this point are completely dispelled by the provisions of section
252 (b) which, among other sections of the Act relating to administrative fines, must be read together with section 254 (a) thereof
so as to produce an harmonious whole. In the portions here pertinent, section 252 (b) reads:
Pursuant to regulations prescribed by the Attorney General, any immigration officer may, in his discretion, if he determines that an alien is not a

419

Interim Decision #2012
bona fide crewman, or does not intend to depart on the vessel or aircraft
which brought him, revoke the conditional permit to land which is granted
such crewman * * *, take such crewman into custody, and require the master
or commanding officer of the vessel or aircraft on which the crewman arrived to receive and detain him on board such vessel or aircraft, if practical,
and such crewman shall be deported from the United Statets * * *.

Clearly, therefore, there is statutory authority for the reinspection of the crew of this vessel at Detroit, and for the revocation
of the conditional landing privileges previously issued them.
Practically speaking, the carrier itself appears to concede this
point in the antepenultimate paragraph of the present motion,
wherein it makes specific reference to 8 CFR 252.2, which was
promulgated pursuant to statutory authority and spells out the
procedure for revocation of landing permits previously issued.
Unfortunately, however, our inquiry cannot be permitted to
end with the establishment of that fact, because of the current
claim that the Service was guilty of dereliction of duty in that it
did not follow its own procedure for the revocation of the crewmen's permits, as outlined in 8 CFR 252. In this connection, we
originally indulged in the presumption of official regularity,
which seemed fully warranted in view of the carrier's unequivocal concession of liability, supra. Now, however, since the point
has been raised, it will be considered and rejected, for the reasons
hereinafter discussed which render this case clearly distinguishable from a prior published decision of ours holding, in effect, that
the Service is bound to strict compliance with its own regulations, Matter of M/V "Hellenic Leader," 10 I. & N. Dec. 737
(.BIA, 1964).
Stripped of surplusage, the asserted procedural failure here
was that a notice (Form 1-259) to detain and deport the alien
crewman was not served on the parties responsible for this vessel's operation, and that a notice of revocation of landing privileges (Form 1-99) was not served on the detained crewman involved. The answer, however, is that the record is replete with
evidence that the substance of the regulation, which should control over its form, was fully complied with in this instance.
In the first place, the carrier itself sets forth at page 7 of its
memorandum in support of its appeal for further mitigation of
the immigration fine that it notified the Service regarding the desertions at Wilmington and urged the Service to take steps to
prevent the recurrence at Detroit, which leads to no conclusion
other than that it desired a reinspection of the crew and withdrawal of their conditional landing privileges. Second, pages 1
and 2 of the carrier's "memorandum" make it abundantly clear

420

Interim Decision #2012
that the parties responsible for the vessel's operation were completely cognizant of what had transpired at Detroit, and had
taken steps to detain the crew accordingly. Third, page 2 of the
carrier's "memorandum" definitely demonstrates that this crewman's papers were taken from him at Detroit, as were those of
all the other crewmen, and given to the Master who, along with
the boarding immigration officers, ordered the crewmen to remain
on board the ship. Finally, in this connection, we note that while
this escapee had his permanent landing permit (Form 1-184) in
his possession when subsequently apprehended at Newark, he had
told the boarding inspector at Detroit that he had lost it in Wilmington, so that its removal from his possession in accordance
with the regulations was impossible of performance.
Judicial support for our decision on this point can be found in
the case of Hamburg American Line v. United States, 52 F.2d
463 (S.D. N.Y., 1931). The ruling in that case was that the fact
of notice rather than its form controls in situations such as the
present one. See also, Matter of SS "Hornshell," 1 I. & N. Dec.
365 (BIA, 1942), and 1 I. & N. Dec. 470 (A.G., 1943). All we can
add is that when those cases were decided, as at the present time,
the Form 1-259 was the generally accepted manner of giving notice; and that it is immaterial that the cited cases involved predecessor legislation (section 20(a), 1924 Act; former 8 U.S.C.
167(a) ), for reasons previously outlined in Matter of SS "MariZeno," 7 I. & N. Dec. 453 (BIA, 1957), and Matter of M/V "Arnfinn Stange," 8 I. & N. Dec. 639 at 642 (BIA, 1960).
There still remains one technical impediment to the imposition
of fine in this case, stemming from the fact that the Notice of Intention to Fine (Form 1-79) charges a violation of subsection
(2) of section 254 (a) of the Immigration and Nationality Act.
Ostensibly, the procedure followed in this case in this respect
would be in conflict with a ruling by this Board that where an arriving alien crewman is granted a D-1 conditional landing permit, which is later revoked, a fine for failure to deport the crewman must be brought under subsection (3) of the statute, Matter
of M/V "Hellenic Leader," 10 I. & N. Dec. 737 (BIA, 1964).
Here, however, the record clearly reflects that the carrier was
well aware of the nature of the violation with which it was being
charged; was adequately apprised of the factual basis for its liability; and had ample opportunity to intelligently protest, which
it did. Accordingly, we find that this defect is not fatal.
The question of mitigation of this fine has been thoroughly discussed on three prior occasions, and the reasons for the limitation

421

Interim Decision #2012
in the amount of mitigation have been amply stated. This aspect
of the case was not brought into the motion now before us. Further discussion of the point is, therefore, now unnecessary.
In conclusion, the Service should follow to the letter the procedures outlined in its own regulations, particularly in administrative fine cases which are quasi-penal in nature. The only reason
we find that the deviation therefrom here is not fatal is that the
facts peculiar to this case clearly establish that the carrier is in
no position to complain.
ORDER: It is ordered that the motion be and the same is
hereby denied.

422


Interim Decision 462575

MATTER OF GONZALEZ
In Visa Petition Proceedings
A 20830191
-

Decided by Board April 13, 1977
(1) Beneficiary was granted a divorce in the Dominican Republic on March 5, 1975, which
was not pronounced and registered by the Office of the Civil Registry until May 14,
1975, or more than two months following the decree. On March 29, 1976, beneficiary
married petitioner in Brooklyn, New York. The District Director denied the immediate
relative visa petition based on that marriage on the grounds that the marriage took
place before the beneficiary's divorce became final, and because the divorce was not
pronounced within two months of the date on which it was granted as required by
Article 17, Law 1306-bis, Civil Code of the Dominican Republic.
(2) Article 17, Law 1306-bis, of the Civil Code of the Dominican Republic is ambiguous
about whether an appearance at the Office of the Civil Registry within the two-month
period will suffice, if the pronouncement and registry occur beyond the two-month
period. Strictly construed the words of Article 17 only require an appearance.
(3) In order to comply with the requirements of Article 17, Law 1306-bis, all that is
required is that the spouse who obtains a divorce judgment appear before the Office of
the Civil Registry within two months for the purpose of having his divorce pronounced
and registered. Matter of Tagle, Interim Decision 2476 (BIA 1976) and illatter of
Valerie, Interim Decision 2489 (BIA 1976), distinguished.
(4) The March 26, 1975, marriage was invalid. The proceeding will be remanded to allow
the beneficiary to present evidence that he did make an appearance before the Official of
the Civil Registry within the two-month period, and for the District Director to verify
the subsequent April 9, 1976, marriage of beneficiary and petitioner.
ON BEHALF OF PETITIONER: Irving Novick, Representative
Immigrants Technical Aid Bureau
36 West 44th Street
New York, New York 10036
13Y: IVfilhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members

The United States citizen petitioner filed a visa petition to classify her
sp ouse as an immediate relative under section 201(b) of the Immigration
an,d Nationality Act. In a decision dated April 16, 1976, the District
Director denied the petition on two grounds: first, the marriage took
place before the beneficiary's Dominican divorce from his former wife
he.eame final; secondly, because the divorce was not pronouneerl within
two months of the date on which it was granted, and therefore was
178

Interim Decision #2575
invalid. The petitioner has app ealed. The record will be remanded to the
District Director.
The Dominican beneficiary -was the plaintiff in a Dominican suit for
divorce on grounds of incompatibility. He was granted a favorable
judgment on March 5, 1975. The decree was pronounced and registered
on May 14, 1975, by the Office of the Civil Registry. Notice of the divorce
was published in the local newspaper on May 24, 1975.
The District Director took the position that the divorce was invalid
because it was pronounced and registered more than two months after
the issuance of the decree. The District Director based his decision on
Matter of Tagle, Interim Decision 2476 (BIA 1976). In Tagle, which
involved a mutual consent divorce, we stated that Article 17, Law
1306—bis, Civil Code of the Dominican Republic, provides that the
divorce decree must be pronounced within two months.
Counsel for the petitioner argues that we have interpreted Article 17
incorrectly. He states that Article 17 merely requires that the spouse
who obtains a divorce judgrn ent appear before the Office of the Civil
Registry within two months for the purpose of having his divorce
pronounced and registered. Counsel states that the fact that the actual
pronouncement and registry occur after two months is irrelevant.
Article 17, as translated by the Library of Congress, provides, in
pertinent part:
The spouse who obtained a divorce judgment . . . is under the obligation to appear hi
person before the Official of the Civil Registry, within two months, in order to have the
divorce pronounced and the judgment registered in the Office of the Civil Registry,
provided the other party is summoned by the bailiff in order that he (she) may appear
before the Official of the Civil Registry to hear the pronouncement of the divorce.

Obviously, Article 17 is ambiguous about whether an appearance
within the two months will suffice if the actual pronouncement and
registry occur beyond the two-month period. Strictly construed, the
words of Article 17 only require an appearance. In Tagle and in Matter
of Valerio, Interim Decision. 2489 (BIA 1976), we assumed that the
words of Article 17 implied that the pronouncement and registry must
also occur within two months. However, this point was not at issue in
either of those cases and our statements that the decree must be
pronounced within the two months were dicta.
Since there is no reason for us to read into this Dominican statute a
requirement which does not appear on its face, we will accept counsel's
interpretation of it.
We will remand the record to allow the beneficiary an opportunity to
present evidence that he did make his appearance before the Official of
the Civil Registry within the two-month period.
Assuming that he did make a timely appearance, the Dominican
divorce was valid and became final on May 14, 1975. However, the
179

Interim Decision #2575
marriage between the petitioner and the beneficiary took place in
Brooklyn, New York, on March 26, 1975, and thus was technically invalid.
Counsel states that the petitioner and the beneficiary, upon learning
that the visa petition would be disapproved for this reason, immediately
obtained a new marriage license and were married anew on April 9,

1976, in Brooklyn. The District Director can verify that upon remand.
ORDER: The record is remanded for further proceedings consistent
with this opinion and for the entry of a new decision.

180


1111,CE/111

1t- Z■ VOIJ

MATTER OF BUENAVENTURA

In Visa Petition Proceedings
A-20317534
A-20317535
Decided by Board April 27, 1977
(1) United States citizen petitioner, a resident of California, applied for immediate relative
status for the beneficiaries as his children under section 201(b) of the Immigration and
Nationality Act. The petition was denied by the District Director and petitioner appealed.
(2) In order to qualify for benefits under section 201(b) beneficiaries must qualify as
petitioner's children under section 101(b)(1)(C) of the Act. That section provides that a
"child" for immigration purposes is cue legitimated under the law of the child's residence or domicile or under the law of the father's residence or domicile, whether inside
or outside the United States, if such legitimation takes place before the child reaches
the age of 18 years and the child is in the custody of the legitimating parent or parents at
the time of such legitimation.
(3) Section 230 of the California Civil Code which was in effect at the time the alleged
legitimation occurred provided;
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 legitimate child thereby adopts it as such;
and such child is thereupon deemed for all purposes legitimate from the time of
its birth.
(4) Since 1963 when male beneficiary was 9 and female beneficiary 7, they have lived with
petitioner's mother in the Philippines.. He has sent them money, both he and his wife
have visited them. The petitioner has been a resident of California since at least 1072,
and California law governs the determination of whether the children have been legitimated. Under California law, the children were received into the family in 1963 under
the circumstances of this ease and were thus legitimated under section 230. Since the
beneficiaries were in the custody of their paternal grandmother and supported by the
petitioner, they were in the legal custody of petitioner at the time of their legitimation
as required by section 101(b)(1)(C) of the Act.
(5) The visa petitions will be granted. However, since male beneficiary is 22 years of age
he cannot qualify as an immediate relative under section 201(10 of the Act, so Ms

petition will be considered an application for status under section 203(a)(1) of the Act.
(6) Board declines to follow the decision in Matter of Pableo, 12 I. & N. Dec. 503 (D.D.
1967); Matter of Garcia, 12 I. & N. Dec. 628 (BLA. 1968) overruled.
ON BEHALF OF PETITIONER: Richard K. Park, Esquire
555 Capitol Mall
Sacramento, California 95814
Chairman; Wilson, Mainatis, and Appleman, Board Members
456

interim vecision

7'4060

The United States citizen petitioner applied for immediate relative
status for the beneficiaries as his children under section 201(b) of the
Immigration and Nationality Act. The District Director denied the
petitions in a decision dated January 16, 1976. The petitioner has appealed from that decision. The appeal will be sustained.
The beneficiaries, a male and female, were born out of wedlock in the
Philippines in 1954 and 1956, respectively. The petitioner's name appears on the beneficiaries' birth certificates as their father. According to
a sworn statement made by the petitioner on April 23, 1974, he lived
with the beneficiaries' mother from 1954 to 1956, shortly before the

birth of the female beneficiary.. He came to the United States in 1956
and married a United States citizen in 1960. The record indicates that
the petitioner has lived in California since at least 1961. The beneficiaries have been living with the petitioner's mother in the Philippines since approximately 1963 and have received financial support from
the petitioner since that time. The petitioner visited the beneficiaries at
his mother's home in the Philippines in 1961, 1971, and 1973; in 1971 he
was accompanied by his wife.
Under section 101(b) of the Act, a person may qualify as a "child"
within the context of the immigration lawn only where the parent-child

relationship exists by reason of any of the circumstances set forth in
section 101(b)(1). 1 The term "child", as defined in that section, does not
include illegitimate children not claiming an immigration status by virtue of their relationship to their mother under section 101(b)(1)(D). The
child must either be legitimate -under section 101(b)(1)(A) or legitimated
in accordance with the provisions of section 101(b)(1)(C) of the Act:
.. 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 he legal custody of the legitimating parent or parents at the time of such legitimation.

The first issue presented is whether or not the beneficiaries have been
legitimated in accordance with the provisoes of section 101(b)(1)(C) of

the Act. Under the law of the beneficiaries' residence, the Philippines,
the parents must marry before a child is considered to have been
"legitimated." Matter of Blaneaflor, Interim Decision 2225 (BIA 1973)Inasmuch as the petitioner never married the beneficiaries' mother, the
beneficiaries were not legitimated under the law of their domicile.
Inasmuch as the male beneficiary is now 22 years old, he is no longer eligible for
immediate relative status. The petition filed in his behalf will be considered as an application for preference status as the petitioner's unmarried son under section 203(a)(1) of the
Act. In order to establish the male beneficiary's eligibility as the petitioner's unmarried
son, the male beneficiary must have also qualified as a "child" of the petitioner under
section 101(b)(1) of the Act. Matter of Coker, Interim Decision 2255 (BIA 1974).

457

Interim Decision #2636
Counsel for the petitioner claims that the beneficiaries were legitimated according to the law of the petitioner's domicile, California,
specifically, section 230 of the California Civil Code. Section 230 was
repealed in 1975 and the Uniform Parentage Act was adopted.
Nevertheless, we shall limit our discussion to section 230, the statute in
effect at the time the alleged legitimating acts occurred. Section 230
provided:
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 ... .

Counsel asserts that the petitioner's offer to bring the beneficiaries to
the United States to live with him and his wife constitutes legitimation
under section 230. Inasmuch as the beneficiaries are over the age of 18,
the age limit set out in section 101(b)(1)(C), this contention is without
merit.
Counsel also asserts that the fact that the petitioner lived with , the
male beneficiary and the mother until shortly before the birth of the
female beneficiary resulted in the beneficiaries' legitimation under section 230 of the California Civil Code. The petitioner, however, lived
with the beneficiaries' mother and the male beneficiary in the Philippines before coming to the United States and taking up residence in
California. California had no connection whatsoever with either the

petitioner or the beneficiaries at the time the alleged legitimating act
occurred. Consequently, we conclude that California law is not relevant
to a determination of whether the beneficiaries were legitimated at this
time. In Matter of Varian, Interim Decision 2395 (BIA 1975) we stated
that the fact that California has applied its law to a situation such as the
present one when determining how to distribute property left within its
boundaries is not determinative with respect to the question of citizenship. Neither is it determinative in interpreting the language of section

101(b)(1)(C) of the Act. In so holding, we do not follow the District
Director's decision in Matter of Fabled, 12 L & N. Dec. 503 (District
Director 1967) and we overrule our decision in Matter of Garcia, 12 I. &
N. Dec. 628 (BIA 1968).
Finally, the petitioner claims that the beneficiaries went to live• with
the petitioner's mother in the Philippines in approximately 1963, when

the male beneficiary was 9 years old and the female beneficiary was 7. In
addition, he has claimed that he has supported these children and that
both he and his -wife have visited them in the Philippines. In view of the
fact that the petitioner was residing in California by 1963, we conclude
that California law, as the law of the petitioner's domicile, is applicable.
To have legitimated a child under section 230 of the California Civil
Code, the petitioner must have received the child into his family The
458

Interim Decision #2636
California courts have interpreted this phase very liberally. By way of
example, in Estate of Jones, 135 P. 288 (Cal. 1913) the court held that
the requirement had been met where the illegitimate child had only
visited the father. See also Blythe v. Ayres, 31 P. 915 (Cal. 1892). We
are of the opinion that, under California law, the facts of this case
constitute the receiving into the family required by section 230. In view
of the fact that the other elements of section 230 also were met, we
conclude that the beneficiaries were legitimated under the law of their
father's domicile.
The only issue remaining to be resolved is whether or not the beneficiaries were in the "legal custody" of the petitioner at the time of the
legitimation as required by section 101(b)(1)(C) of the Act.
The right of the putative father to the illegitimate child's custody as
against everyone but the mother has been recognized. See 31 Attorney
General's Opinion 162 (1920). The record indicates that, on the date
their legitimation occurred under California law, the beneficiaries'
mother left the children with their paternal grandmother:to be raised by
her and supported by the petitioner. On the basis of that evidence we
conclude that the beneficiaries were in the legal custody of the petitioner
at the time of their legitimation within the meaning of section
101(b)(1)(C) of the Act.
Accordingly, the appeal will be sustained. The visa petitions in behalf
of the beneficiaries will be approved.
ORDER: The appeal is sustained; the petitions to classify the beneficiaries for immigrant visas are approved.

459


Interim Decision #2224

MATTER OF LOPEZ
In Deportation Proceedings
A-20522662
A-20522648
Dioided by Board Aucgust 30, 1973
Request to proceed with the filing of appeal in forma pauperis should be
accompanied by a supporting statement disclosing sufficient details for a
proper assessment of the claim of poverty. An attorney representing an alien
who can afford to pay him a substantial fee should not represent to the Board,
explicitly or tacitly, that his client is unable to pay the modest appeal-filing fee
unless he is satisfied the request for filing of appeal in forma pauperis is made
in good faith.
CHARGE:
Order: Act of 1952—Section 241(a)(2) U.S.C. 1251(a)(2)]—After admission as
nonimmigrant under section 101(a)(15)—remained
longer than permitted.
ON BEHALF OF RESPONDENTS: H. Patrick McGarry, Esquire
714 W. Olympic Blvd., Suite 428
Los Angeles, California 90005

This is an appeal from an order of an immigration judge finding
the respondents to be deportable and granting them the privilege
of voluntary departure. The appeal will be dismissed.
Respondents are aliens, husband and wife, natives and citizens
of Mexico, who were admitted to the United States as nonimmigrant visitors on or about November 6, 1972 and remained longer

than permitted. At a joint hearing before an immigration judge on
July 10, 1972, at which they were represented by present counsel,
they admitted the truth of the factual allegations of their respective orders to show cause but denied deportability. The immigration judge found them to be deportable and granted them the
privilege of departing voluntarily on or before August 10, 1973.
They appealed.
The Acting District Director, asserting that the appeal is frivolous and following the procedure suggested in Matter of Gamboa,
Interim Decision No. 2176 (BIA,1972), has promptly forwarded the
424

Interim Decision #2224
records without delaying to transcribe the hearing. In an accompanying memorandum, he has set forth the basis for his conclusion that the appeal can be adequately considered without a
transcript. We are satisfied from the materials before us that we
do not need's transcript to adjudicate this appeal.
Two grounds for appeal are set forth in the notice of appeal. The
first is that the respondents have a minor child born in the United
States whose constitutionally-guaranteed rights to parental care
would be violated if the respondents are required to depart. The
short answer is that whatever rights the child may have under
the Constitution do nut authorize the respondents to remain here

in violation of the immigration laws. The respondents have it
within their own power to avoid the alleged hardship that would
befall the child on separation by taking the child with them when
they depart.
The second ground of appeal, charging that the statutory distinction between natives of the Eastern and Western Hemispheres
in visa allocations violates constitutional limitations, is beyond our
power to adjudicate, Matter of Chavarri-Alva, Interim Decision No.
2188(BIA, 1973).
One further item should be mentioned. The notice of appeal was

filed without prepayment of the required fee. Instead, counsel
submitted the respondents' joint affidavit to prosecute the appeal
without prepayment of fee under 8 CFR 3.3(b). The affidavit is nn
what appears to be a printed form, with filled-in blanks stating the
. names of the respondents, the date of the order appealed from, the
date of the jurat and the name of the notary. All that appears
with respect to the respondents' inability to pay the prescribed fee
is the conclusory printed statement that, "Because of my poverty I
am unable to pay the required fee."
In his memorandum transmitting the record to this Board, the

Acting District Director has questioned the bona fides of the
affidavit, alleging that information in the Service's administrative
file reflects that the male respondent is employed at a weekly

salary of $150.1 We thereupon wrote counsel, requesting further
details as to the respondents' alleged inability to pay, including the
amounts they have paid (or obligated themselves to pay) for
representation during the deportation proceedings and on this
appeal. The requested details have not been supplied. Instead,
counsel has paid the fee.
Under 8 CFR 3.3(b), the certification as to the good faith of the application
should have been made by the immigration judge, since his is the decision from
which the respondents have appealed. In view of the fact that the fee has now
been paid, this deviation from the regulation is of no consequence.

425

Interim Decision #2224
We call attention to this development because we wish to
emphasize the fact that we rely in a large measure on the
professional integrity of counsel in assessing their forwarded
requests for leave to proceed in forma pauperis. The salutary
provisions of 8 CFR 3.3(b) were designed to preserve the rights of
persons unable to afford the customary filing fees. Ordinarily, we
receive such requests from attorneys or others who represent the
alien without fee for their professional services. An attorney
representing an alien who can afford to pay him substantial fee
should not represent to this Board, explicitly or tacitly, that his
client is unable to pay the modest filing fee unless he is satisfied
that the application is made in good faith. And if he is so satisfied,
he should disclose to this Board sufficient details so that we may
properly assess the claim of poverty. An attorney who lightly files
such an affidavit in the hope of augmenting his return from the
case by the amount of the filing fee, and then ultimately pays the
fee rather than divulge further details, not only involves the case
in unnecessary delay; he also opens the door to speculation as to
his professional ethics.
ORDER: The appeal is dismissed.
Further ordered: Pursuant to the immigration j udge's order,
the respondents are permitted to depart from the United States
voluntarily within 31 days from the date of this order or any
extension beyond that time as may be granted by the District
Director; and in the event of failure so to depart, the respondents
shall be deported as provided in the immigration judge's order.
,

426


Interim Decision #2828

MATTER OF JOHN
In Section 223 Reentry Permit Proceedings
A-17777192
Decided by Regional Commissioner June 10, 1980
Applicant who had been admitted to the United States as a lawful permanent resident
and who subsequently was absent for extended periods while performing missionary
work in India for a recognized United States religious denomination, did not interrupt
his lawful residence status and is eligible for reentry permit under section 223 of the
Immigration and Nationality Act, U.S.C. 1203.
ON BEHALF OF PETHIONER:

Robert Gilbert
Baptist Mid-Missions
4205 Chester Avenue
Cleveland, Ohio 44108

This matter is before me on appeal from the District Director's July
30, 1979, denial of the application for issuance of a permit to reenter
the United States. The appeal will be sustained.
The District Director found that because his extended absences as a
missionary to India could not be viewed as temporary, the applicant
could not qualify as a returning resident. In reaching his determination, the District Director sought to match the applicant's situation
with the statutory definition of residence at section 101(a)(33) of the
Immigration and Nationality Act, 8 U.S.C. 1101(a)(33), as amended,
holding that the applicant's "actual dwelling place in fact, without
regard to intent" was India, not the United States and that the
applicant could not, therefore, be considered a lawful permanent resident of the United States.
I find a critical flaw in the District Director's reasoning. First,
although the District Director compared the applicant's circumstances
with the statutory definition of residence, he omitted another very
important term defined by the Act at 101(a)(20): the term "lawfully
admitted for permanent residence," which "means the status of having

been lawfully accorded the privilege of residing permanently in the
United States as an immigrant in accordance with the immigration
law, such status not having changed."
RQA

Interim Decision #2828
The applicant most certainly meets the first condition imposed by
the above definition—he has been lawfully admitted for permanent
residence. Has his status changed? To answer this query we must look
to other sections of the Act. Section 81'7 of the Act, which relates

specifically to the question of retention of residence for the purposes of
naturalization, provides for a finding that a lawful resident missionary
whose absence from the United States has been solely for the purposes
of performing ministerial functions of a religious denomination "shall
be considered as being physically present in the United States for the
purpose of naturalization within the meaning of section 316(a), not
withstanding any such absence from the United States ...." While the
matter at hand treats the question of retention of lawful permanent
resident status rather than naturalization residence requirements, I
believe the point has been made. It would be utterly inconsistent to
hold on the one hand that the applicant's presence in India as a
missionary for a recognized United States religious denomination is
meaningfully interruptive of his lawfully permanent status, while on
the other hand positing that absences for this reason are not only not
interruptive of lawful residence status, but are actually considered as
physical presence in the United States for naturalization purposes.
For the sake then of assuring consistency between Titles II and III of

the Immigration and Naturalization Act, I conclude that the applicant's status has not changed, that he continues to be an alien lawfully
admitted for permanent residence, and that he is, therefore, eligible
for issuance of the reentry permit he seeks.
ORDER; The appeal is sustained.


Interim Decision #1410

AfATTFX of AzauTia

In SECTION 245 Proceedings
A-13409088
A-13985570-1

Decided by Acting Regional Oentndesicnter October 15, 1984
Adjustment of status under section 245, Immigration and Nationality Act, as
amended, is denied, in the exercise of discretion, to an alien who, with a preconceiVed intention to establish permanent residence in this country, sought
and gained entry into the United States as a nonimmigrant visitor, since the
bona Ades of the alien in securing his nonimmigrant visa is a persuasive factor
in considering the exercise of such discretion.

DISCUSSION: The applications have been denied by the District
Director, New Orleans, Louisiana, who has certified his decisions in
these cases to this office for review. The applicants, natives and citizens
of Guatemala, are a man, his wife and their unmarried, minor child.
Being a family group, the cases will be considered together.
The applications were denied in the exercise of the Attorney General's discretion because at the time the applicants obtained their
nonimmigrant visas from the American Consul in Guatemala City,
Guatemala, and at the time of their admission into the United States
on March 5, 1961 as nonimmigrant visitors for pleasure, they intended
to apply for permanent residence in this country and to make their
home here.
When interviewed by an officer of this Service on April 1, 1964 concerning their applications for permanent residence in the United
States, the adult applicants stated under oath that, although they told
the American Consul when applying for their nonimmigrant visas
that they were coming to the United States on a visit, it was their actual
intention to come here for permanent residence. They explained in the

interview that they had done this on the advice of a relative in this
country and because it takes too long to obtain immigrant visas in
Guatemala. In his brief in answer to the notice of denial, the principal
applicant states that at the time he and his family applied to the
American Consul for their nonimmigrant visas "there was no fixed
774

Interim Decision #1410
intention on my part to stay away from Guatemala City, but there was
hope that when I got to the United States I might find circumstances
to permit me to become a permanent resident in the United States."
The applicants' statements to the Service officer when interviewed
are so completely frank and in detail with respect to their true intention in coming to this country that, notwithstanding the brief, it is
clear they planned to remain here permanently and that their applications for permanent residence were filed in furtherance of such plan
which was conceived prior to their arrival in the United States, and,

indeed, prior to their applications for their nonimmigrant visas.
While there is no statutory bar to the approval of these applications,
the bona fides of the applicants in obtaining their nonimmigrant visas
and in gaining admission into the United States are persuasive factors
is considering the exercise of the Attorney General's discretion. The
method used by the applicants to seek permanent residence in this country indicates their wilful disregard for visa-issuing procedures which
cannot be ignored or condoned. The applications do not, therefore,
warrant the favorable exercise of discretion, and they were properly
denied. Accordingly, the District Director's decisions will be

approved.

ORDER: The decisions of the District Director denying the applications are approved.

715


Interim Decision #2713

MATTER OF RAQUENO
In Deportation Proceedings
A-35243588
Decided by Board June 21, 1979
(1) There is no need for allegations in an Order to Show Cause in deportation proceedings of elements such as ineligibility for any other numerical classification unnecessary to the charge as that charge is defined in the statute. Where respondent was
charged with entry without a valid document in violation of section 212(a)(20) of the
Immigration and Nationality Act, 8 U.S.C. 1182(a)(20), the Order to Show Cause was
sufficient to inform respondent of the charge with sufficient precision to allow her to
properly ,defend herself. Matter of Suleiman, 15 I&N Dec. 784 (BIA 1974),
distinguished.
(2) An "innocent" misrepresentation will not qualify an alien for relief from deportation under section 241(f) of the Act, 8 U.S.C. 1251(4 Matter of .Ua Lointia,16 1&N Dec.
616 (BIA 1978), followed; Matter of Ideis,14 I&N Dec. 701 (BIA 1974); Matter of Louie,
14 I&N Dec. 421 (BIA 1973); Matter of Torbergsen,13I&N Dec. 432 (BIA 1969); Matter
of Lint, 13 I&N Dec. 169 (BIA 1969), superseded.
(3) Where the respondent innocently indicated she was single when she obtained her
immigrant visa because she believed the query as to her marital status referred to the
date her mother filed a visa petition on her behalf, she failed to establish eligibility for
section 241(f) relief because she did not show her visa was fraudulently obtained.
Matter of Da Lambe, supra.

CHARGE
Order: Act of 1952—Sec. 241(a)(1) U.S.C. 1251(a)(1)]—Excludable at time of entry—
not of status specified in immigrant visa under sec. 203(a) [8
U.S.C. 1153(a)]
Lodged: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of
—

entry
not in possession of a valid immigrant visa as required by

section 212(a)(20) [8 U.S.C. 1182(a)(20)]
ON BEHALF OF RESPONDENT: Sheryl L. Hopkins, Esquire
2925 Coliseum Street
New Orleans, Los Angeles 70115
BY: Igilhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The respondent moves us to reconsider our decision of October 7,
1977, wherein we dismissed her appeal from the immigration judge's

10

Interim Decision #2713
decision. The motion will be denied.
The record relates to a married female alien, 33 years of age, who is a
native and citizen of the Philippines. She was admitted to the United
States on September 4, 1975, in possession of an immigrant visa
classifying her in the second preference as the unmarried daughter of
a lawful permanent resident; an approved visa petition so classifying
her was attached to the visa. In fact, the respondent had married
before she was issued the visa. She was interviewed and issued the visa
on August 11, 1975. Her-marriage date was July 19, 1975.
In her motion to reconsider, the respondent raises two legal arguments, neither of which was advanced at the time of her hearing below
or during the previous appeal. First, the respondent argues that she is
eligible for relief from deportation under section 241(f) of the Immigration and Nationality Act, 8 U.S.C. 1251(f). That provision saves
from deportation those aliens who were excludable at the time of their
entry on the basis of having procured a visa or other documentation or
entry into the United States by fraud or misrepresentation if they are
the spouse, parent, or a child of a United States citizen or lawful
permanent resident alien.' In Matter of Da Lomb% 16 I&N Dec. 616
(BIA 1978), we held that section 241(f) forgives deportability under
sections 241(a)(1) of the Act, 8 1251(a)(1), and 212(a)(20) of the
Act, 8 U.S.C. 1182(a)(20), where there has been compliance with the
immigrant visa requirements and the entry document is invalid because of fraud. We regard our decision in Matter of DaLomba, id., that
a fraudulent misrepresentation is necessary to qualify an alien for
section 241(f) relief from deportation as a rejection of our previous
cases that held that an "innocent" misrepresentation was sufficient for
such relief. See Matter of Ideis, 14 I&N Dec. 701 (BIA 1974); Matter of
Louie, 14 I&N Dec. 421 (BIA 1973); Matter of Torbergsen,13 I&N Dec.
432 (BIA 1969); Matter of Lim, 13 I&N Dec. 169 (BIA 1969); of Matter of
Gabouriel, 13 UN Dec. 742 (BIA 1971); Matter of Koryznuz• 13 I&N
Dec. 514 (BIA 1970). These cases followed the decision in In re Yuen
Lan Ham, 289 F. Supp. 204 (S.D.N.Y. 1968), in which the court held that
section 241(f) would be applicable in a case where an alien innocently
claimed to be the spouse of a United States citizen upon her entry. We
have decided to follow the dictum in Reid v. INS, 420 U.S. 619 (1975),
disapproving of the holding in In re Yuen Lan Horn, supra, see 420 U.S.
at 629, and, accordingly, we regard this line of cases as overruled.
In the present case, the respondent has consistently denied fraud in
the obtainment of her immigrant visa. At a deportation hearing held
on May 14, 1976, the respondent testified that she signed a Form
FS-548 on August 11, 1975, attesting that she knew she would lose her
The respondent is the parent of two United States citizen children.

11

Interim Decision #2713
immigrant status if she married before her entry into the United
States. She stated further that she did not read the form because it was
late in the day and she was "tired and hungry" (Tr. p. 11). On June 10,
1976, at the continued deportation hearing, the respondent again indicated that she did not know what she was signing because no one
explained the form to her (Tr. p. 14). Counsel for the respondent argued
at the June 10 hearing that the visa application signed by the respondent, which indicated her marital status to be "single" (Ex. 2), was
unclear as to whether the respondent's status at the time the visa
petition was filed on her behalf was to be controlling, at which time
(February 1, 1975) she was in fact single, or whether the time of the

completion of the visa application was to control, at which time she
was married (Tr. p. 13). The implication is that, rather than
fraudulently concealing her true marital status, the respondent innocently indicated that she was single because she believed that the
query as to her marital status referred to the date on *which her mother
filed a visa petition on her behalf. The respondent has not established,
therefore, eligibility for section. 241(f) relief within the meaning of our
decision in Matter of Da brink, id., as she has not shown that her visa
is invalid as fraudulently obtained. 2 We believe that our finding in this
regard is supported by the position taken by the Trial Attorney that
the Government was not "alleging any fraud whatsoever" (Tr. p. 6),
and also the statement of the immigration judge that the respondent
"did not intentionally defraud the American Consul" (Tr. p. 25).
The second argument raised by the respondent is that the proceedings were technically defective because the Service never alleged that
the respondent was ineligible for any other numerical classification.
She relies for this proposition on our decision in Matter of Suleiman, 15

I&N Dec. 784 (BIA 1974), in which we held that, in rescission proceedings based on nonentitlement to the numerical classification accorded,
it is essential that the Notice of Intention to Rescind allege ineligibility
for any other numerical classification.
The respondent is charged with entry without a valid document in
violation of section 212(a)(20) of the Act. Regardless of eligibility for
another preference classification, the fact is that the respondent entered the United States as a second-preference immigrant when she
was not entitled to that classification because she was married at the
time of her entry. See generally Hendrix v. INS, 583 F.2d 1102 (9 Cir.
1978).
An Order to Show Cause is designed to inform an alien of the
We find that, because of our disposition on the issue of fraud, we need not reach the
issue of whether the respondent would be "otherwise admissible" at the time of her
entry as required by section 241(f). See Matter of Gonzalez, 16 I&N Dec. 564 (BIA 1978).
12

Interim Decision #2713
charges against her with sufficient precision to allow her to properly
defend. herself. Matter of Chery and Hosan, 15 I&N Dec. 380 (BIA
1975). We find that the Order to Show Cause issued in this case was
sufficient in that regard. There is no need, under the law or the
regulations, for allegations in an Order to Show Cause of elements,
such as ineligibility for any . other numerical classification, unnecessary to the charge as that charge is defined in the statute. Cf. Wood v.
Hoy, 266 F.2d 825 (9 Cir. 1959). In this case, an allegation of ineligibility for another numerical classification is superfluous to the charge in
the Order to Show Cause.' We expressly disapprove of any language in
Matter of Suleiman, supra, that would indicate the need in deportation

proceedings for such allegations.
In this case, the charge of deportability put the respondent on notice
that the validity of her visa was at issue. We have considered fully the
respondent's applications for relief, and find them to be without merit.
Accordingly, we will deny her motion for reconsideration.
ORDER The motion is denied.

' However, the existence of eligibility for another numerical classification might be a
consideration in the exercise of prosecutorial judgment (i.e., whether or not to initiate

deportation proceedings).