Interim Decision #2109

MATTER OF VARGAS-BANUELOS

In Deportation Proceedings
A-13532199
Decided by Board December 6, 1971
(1) Notwithstanding respondent did not accompany the illegal aliens into
the United States, deportability is established under section 241 (a) (13),
Immigration and Nationality Act, for aiding and abetting aliens to enter
illegally, where, in scheming with the aliens in Mexico, he instructed them
where to cross the border undetected, told them where to go upon reaching
the United States, and arranged for an accomplice to drive respondent's
truck to El Paso, Texas to meet them.
(2) Respondent, a lawful permanent resident, who initially departed the
United States with the intention of making an innocent, casual and brief
visit in Mexico but who deviated from this intention and embarked upon a
course of conduct contrary to a policy reflected in the immigration laws
(aiding and abetting aliens to enter illegally), thereby transformed the innocent character of his trip. Hence, he does not come within the ambit of
Rosenberg v. Fleuti, 374 U.S. 449 (1963), and upon his return made an
entry upon which to predicate a ground of deportation. [Yanez-Jacquez v.
INS, 440 F.2d 701 (C.A. 5, 1971), distinguished.]
CHARGE :
Order : Act of 1952—Section 241(a) ( 13) [8 U.S.C. 1251 ( a) (13 ) ]—Alien
who prior to entry, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any
other alien to enter or to try to enter the United
States in violation of law.
ON BEHALF OF RESPONDENT:
Karl Friedman, Esquire
American Bank of Commerce Bldg.
Suite 405
El Paso, Texas 79901
(Brief filed)

ON BEHALF OF SERVICE:

Irving A. Appleman
Appellate Trial Attorney
William E. Weinert
Trial Attorney
(Brief filed)

The special inquiry officer found the respondent deportable as
tharged in his decision of November 2, 1970. The special inquiry
∎fficer denied the privilege of voluntary departure as a matter of
R10

Interim Decision #2109
law. From the special inquiry officer's order the respondent appeals. His appeal will be dismissed.
The record relates to a 41-year-old married male alien, a native
and citizen of Mexico, who was admitted to the United States as
a lawful permanent resident in 1963. He is charged with having
entered the United States on or about April 4, 1970. The respondent's testimony was that he went to Mexico on or about April 2,
1970 to offer condolences to the family of a deceased cousin. On
or about April 3, 1970 he was approached by four aliens who
wished to enter the United States illegally. The respondent accepted money from them and made certain arrangements for
them. In connection with this the respondent was found guilty,
upon his plea of guilty, in the United States District Court, Western District of Texas, El Paso Division, on four counts of violation of 8 U.S.C. 1325 and 18 U.S.C. 2. These violations clearly
bring him within the purview of section 241 (a) (13) of the Immigration and Nationality Act.
Section 241 (a) (13) of the Immigration and Nationality Act
makes deportable any alien who:
prior to, or at the time of entry, or at any time within five years after any
entry, shall have, knowingly and for gain, encouraged, induced, assisted,
abetted or aided any other alien to enter or to try to enter the United
States in violation of law.

The Order to Show Cause indicates that the respondent was
charged with a violation for conduct occurring prior to entry.
The main issue raised by this appeal is whether an entry occurred on or about April 4, 1970.
Counsel claims that the special inquiry officer made three erroneous holdings : (1) that the respondent made an "entry" in April
of 1970, (2) that the respondent aided and abetted the aliens in
their actual entry into the United States, and (3) that the respondent received gain. We shall consider the last two points
first.
The contention that there was error in holding that the respondnet aided and abetted aliens in their actual entry into the
United States is without merit. Counsel evidently takes the position that section 241 (a) (13) applies only to an alien who has
physically brought another alien into the United States. The language of the statute is not that narrow. At oral argument counsel urged that no crime would have been committed had the aliens
never entered. This argument is mistaken for two reasons : (1) it
is not the fact of a criminal conviction that renders an alien deportable under section 241 (a) (13), and (2) the statute covers ac811

Interim Decision #2109
tivity amounting to aiding and abetting another alien to try to
enter, as well as to enter. In the present case the special inquiry
officer found that the respondent, scheming with the aliens, instructed them in where to cross the border undetected, told them
where to go once they reached the United States, and telephoned
a woman accomplice in Denver, Colorado and had her drive to El
Paso, Texas to meet the aliens in the respondent's pickup truck.
We agree with the special inquiry officer who found that respondent's deportability under the charge was established by clear, convincing and unequivocal evidence. The special inquiry officer was
also correct in accepting a certified copy of the record of conviction to support the Government's charge.
The contention that the respondent did not receive gain is likewise 'without basis. As the special inquiry officer pointed out,
there was the admission of the respondent, along with other evidence to prove the element of gain. We agree with the special inquiry officer that the element of gain has been proved by clear,
convincing and unequivocal evidence.
Counsel's chief contention is actually a claim that the present
case comes within the ambit of the Supreme Court's decision in
the case of Rosenberg v. Fleuti, 374 U.S. 449 (1963). That is, he
would have us accept the proposition that no "entry" occurred in
April of 1970 by virtue of the following statement of the Supreme Court in the Fleuti case:
[W]e declare today simply that an innocent, casual and brief excursion by a
resident alien outside this country's borders may not have been "intended"
as a departure disruptive of his resident status and therefore may not subject him to the consequences of an "entry" into the country on his return.

Counsel bases this contention upon the fact that the respondent
testified that the respondent testified that his purpose for making
his visit to Mexico was merely to offer condolences to the family
of his deceased cousin. Counsel would have us look only to the respondent's intention at the time of departure, disregarding his involvement in alien smuggling which apparently developed only
after he had reached Mexico.
The facts in the present case closely parallel those in Matte?' of
Valencia-Barajas, Interim Decision No. 2001 (BIA, 1969), which
involved a lawful permanent resident who went to Mexico for the
purpose of visiting his parents, but who also knowingly and for
gain aided, assisted and abetted aliens to enter the United States
illegally. In that case we held that Fleuti did not apply, and that
there had been an "entry." In commenting upon the alien's conviction for aiding and abetting the illegal entry of aliens into the
419

Interim Decision #2109
United States, we noted that, "This fact could support an inference that his purpose in departing from the United States was to
accomplish an object which is contrary to a policy reflected in our
immigration laws." We did not expressly base our decision upon
an inference so drawn, but determined only that "In any event,
we conclude that the respondent's departure can be regarded as
`meaningfully interruptive' of his permanent residence."
We said in another case, Matter of Alvarez-Verduzco, 11 I. &
N. Dec. 625 (BIA, 1966), that the Fleuti, doctrine was inapplicable to a lawful permanent resident alien who, although he did not
go to Mexico for the purpose of buying heroin, did nonetheless attempt to bring heroin into the United States in violation of law.
Counsel cites the case of Yanez-Jacquez v. INS, 440 F.2d 701
(5 Cir., 1971), as authority, to support his contention that there
was no entry in April 1970. The Fifth Circuit Court of Appeals
in that case overruled our decision in Matter of Yanez-Jacquez,
Interim Decision No. 2019 (BIA, 1970), wherein we held that a
permanent resident alien who departed to Mexico for a short
visit, the purpose of which was characterized by criminal intent,
was not within the Fleuti rule, but made an "entry" in the eyes
of the immigration laws. The Fifth Circuit Court, applying all
the criteria outlined in Fleuti, disagreed and concluded that there
was less than adequate evidence to support a finding that the
alien had left the United States with an intent to interrupt his
status as a permanent resident alien. The court itself indicated
that "This case is necessarily limited to the facts," and "A different set of facts applied to the criteria to be weighed might dictate
a different result."
The court in Yanez-Jacquez was referring to the factors enu
merated in the Fleuti decision as having a bearing upon whether
departure by a resident alien should be interpreted as a meaningful interruption of his resident status. One factor was the purpose of the visit. As Justice Goldberg said in the majority opinion, "... if the purpose of leaving the country is to accomplish
some object which is itself contrary to some policy reflected in
our immigration laws, it would appear that the interruption of
residence thereby occurring would properly be regarded as meaningful."
The Yanez-Jacquez case is distinguishable from the present
case. First of all, the alien in that case was not charged with deportability under section 241 (a) (13) for having assisted aliens to
enter the United States illegally. Secondly, the alien had been issued a border crossing identity card and was in the habit of mak-

813

Interim Decision #2109
ing twice-weekly crossings into Mexico. The court noted that
"Each time, however, he returned to the United States and appeared outwardly to regard this country as his permanent residence." The only criminality attached to any of his brief visits to
Mexico occurred in connection with the following incident. On
one of his trips to Mexico he was assaulted and robbed. The next
day, armed with an icepick, he returned to Mexico in a fruitless
search for his assailants. The respondent, like the alien in Valcencia-Barajas, spura, stands in a different light for he has actually
been convicted of a crime involving an object clearly contrary to
policies reflected in our immigration laws, namely, the crime of
assisting the illegal entry of aliens into the United States. The respondent has been charged with deportability under section
241(a) (13). The alien in Yanez-Jacquez was charged with deportability under an entirely unrelated statutory section. Therefore, we do not apply the Fifth Circuit's holding in Yanez-Jacquez to the facts of the present case.
In another case, Caudillo-Villalobos v. INS, 361 F.2d 329 (5
Cir., 1966), the same court sustained a determination of this
Board that a lawful permanent resident alien had made an
"entry" within the contemplation of the Fleuti doctrine when he
returned to this country after a conviction abroad of the crime of
incest. The court affirmed our decision in Matter of Caudillo-Villalobos, 11 I. & N. Dec. 15 (BIA, 1965), wherein we said, "the
type and length of this absence is not the innocent, casual, and
brief absence that was present in the Fleuti case."
Consequently, we agree with the special inquiry officer that the
Fleuti rule is not applicable to the factual situation found in the
present case. We go slightly beyond our holding in Valencia-Barajas, supra, and hold that although the respondent may have
departed the United States with the intention of making an
nnocent, casual and brief excursion abroad, he deviated from
;his intention and embarked upon a course of conduct contrary to
policy reflected in the immigration laws; and by doing so, he
;hereby transformed the previously innocent character of his trip
nto something other than innocent, at least so far as the immi;ration laws are concerned. In such a case, the respondent's de)arture no longer is considered by us as not intended to be disuptive of his resident status. As a result, he now may be
;ubjected to the consequences of an "entry" upon his return. We
accordingly accept the finding of the special inquiry officer that
le had made an entry and is subject to deportation because of his
-

814

Interim Decision #2109
violation of section 241 (a) (13) of the Act. We have no alternative but to affirm the decision of the special inquiry officer.
The special inquiry officer denied the respondent the privilege
of voluntary departure because he could not establish that he was
a person of good moral character for the five-year period as required under section 244 (e) of the Act. The special inquiry officer
concluded that the conviction barred, as a matter of law, a finding of good moral character by virtue of section 101 (f) (3). We
agree with that conclusion.
Hence, the respondent's appeal is without merit and must be
dismissed. The following order will accordingly be entered.
ORDER: The appeal is dismissed.

815


Interim Decision #2799

MATTER OF PAVLOV1C

In Visa Petition Proceedings
A-23340106
Decided by Board June 23, 1980
(1) Under Article 58 of the Yugoslavian Constitution, children born out of wedlock are
considered equal to those born in wedlock with respect to the rights and duties of the
parents toward them, and the terms legitimate and illegitimate are no longer used in
domestic relations legislation.
(2) The beneficiary, born out of wedlock in Yugoslavia in 1960, is deemed legitimate at
birth.
(3) Under the Law of Yugoslavia, acknowledgment is not necessary to effect legitimation but does help to establish the identity of the parent. Matter °Panzer, 11 I&N Dec.
395 (MA 1905), is overruled insofar as it holds that acknowledgment is part of
legitimation.
ON BEHALF OE PETITIONER:

Pro se

ON BEHALF OF SERVICE

Jim Tom Haynes

Appellate Trial Attorney
By:

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

The lawful permanent resident petitioner applied for preference
status for the beneficiary as his unmarried daughter under section
203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1152 (a)(2).
In a decision dated December 3, 1979, the District Director denied the
petition on the ground that the petitioner had never legitimated the
beneficiary and, consequently, the beneficiary was not entitled to any
status under the immigration laws. The petitioner has appealed. The
visa petition will be granted.
The petitioner is a 59-year-old native of Yugoslavia and lawful
permanent resident of the United States. The beneficiary is a 19-yearold native and citizen of Yugoslavia.
On April 12, 1979, the petitioner filed a visa petition on behalf of the
beneficiary. In support of his petition, ho submitted a number of

affidavits declaring that the beneficiary is his natural daughter. A
certificate from an elementary school in Belgrade lists the petitioner
as the beneficiary's father. The beneficiary's birth certificate, however,

Interim Decision #2799
fails to list a natural father.
On appeal, the petitioner contends that he is, in fact, the beneficiary's father and, accordingly, she should be granted lawful permanent
residence.
At oral argument, the petitioner submitted a statement from Maria
Nikolic, the petitioner's estranged wife, stating that the beneficiary is
the petitioner's daughter. The petitioner explained that the beneficiary
would visit him and his wife, Maria, in Paris before they moved to New
York and the beneficiary came to live there permanently. He also
submitted a certificate executed before the Municipality Secretary
Office for General Law and Municipal Affairs in Cacak, on December
12, 1979, stating that he had lived illegitimately with the beneficiary's
mother, now deceased, and "from that illegimated (sic) marriage they
have a illegimated (sic) daughter Dusica Pavlovic." The petitioner
contended that his daughter is the beneficiary of property in Florida
and the sole beneficiary under his life insurance policy. On March 19,
1980, we received a copy of the petitioner's Last Will and Testament,
executed in March 1980, naming Dusica Pavlovic as the beneficiary of
all Aleksandar Nikolic's possessions.
The Service submitted a copy of the Yugoslavian Civil Law on
History, Family, and Property in effect during November 1960, the

beneficiary's birthdate. The Service agreed that the law tended to
extinguish the distinction between legitimate and illegitimate children. It conceded that the Board could either grant the petition if it
found that the petitioner had executed a public document prior to the
beneficiary's eighteenth birthday, or remand for such a determination.
We disagree with the Service's basic premise; that is, that an act of
acknowledgment must have occurred prior to the beneficiary's

eighteenth birthday.
In visa petition proceedings, the burden of establishing the claimed
relationship is upon the petitioner. Matter of Branagan, 11 I&N Dec.
493 (BIA 1966). The applicable statute is section 101(b)(1) of the Act, 8
U.S.C. 1101(b)(1), and its pertinent subsections are (A) and (C), which

provide:

The term "child" means an unmarried person under twenty-one years of age who is—
(A) a legitimate child; or
(C) a child legitimated under the law of the child's residence or domicile, or under the
law of the father's residence or domicile, whether in or outside the United States,
if such legitimation takes place before the child reaches the age of eighteen years
and the child is in the legal custody of the legitimating parent or parents at the

time of sueh le•gitimation;_ _
The term "legitimate", as used in section 101(b)(1)(A) of the Act,
normally refers to a child born in wedlock. See Matter ofJames,15 I&N
Dee. 544 (BIA 1975); Matter of Dela Rosa, 14 I&N Dec. 728 (BIA 1974);

Interim Decision #2799
Matter of Kubicka, 14 I&N Dec. 303 (BIA 1972). However, when the

country where the beneficiary was born and resides eliminates all legal
distinctions between legitimate and illegitimate children, all natural
children are deemed to be the legitimate offspring of their natural
father from the time that country's laws are changed. See Chin Lau v.
Kiley, 563 F.2d 543 (2 Cir. 1977); Matter of Hernandez, Interim Decision 2712 (BIA 1979); Matter of Sanchez, 16 I&N Dee. 671 (BIA 1979);
Matter of Wong, 16 I&N Dec. 646 (BIA 1978).
In Matter of Jancar, 11 I&N Dec. 365 (BIA 1965), we found that under
the law of Yugoslavia, an illegitimate child may be legitimated by
acknowledgment of the natural father. In that case, the petitioner
signed a statement that he was the beneficiary's father. A notation of
this act was made on the beneficiary's birth certificate. We held,
however, that the beneficiary was a "child" within the meaning of
section 101(b)(1)(A) or (C) of the Act. We hold today that such a child
is legitimate at birth under subsection (A), not legitimated later under
subsection (C) by acknowledgment.
Under Article 58 of the Yugoslavian Constitution, children born out
of wedlock are considered equal to those born in wedlock with respect
to the rights and duties of the parents toward them, and the terms
legitimate and illegitimate are no longer used In domestic relations
legislation. All children, therefore, are legitimate at birth. In order for
a child born out of wedlock to realize his or her rights, his or her
extramarital paternity must be established. This person, who admits
that he is the lather of the child born out of wedlock, is considered the
father through an act of acknowledgment.' Acknowledgment can be
accomplished before a registrar, in a public document, or in a will'
This act of acknowledgment of paternity has retroactive effect and is
effective with respect to everyone. It is of a declaratory nature, not a
constitutive act; the child is already legitimate. Acknowledgment
serves to establish the identity of the parent.
This act of acknowledgment, establishing paternity, is separate and
apart from an act of legitimation as defined in section 101(b)(1)(C) of
the Act. Insofar as Matter of Jancar, id., states the contrary, it is
hereby overruled.
ORDER, The appeal is sustained and the visa petition approved.

A.G_ Chloros„ Yugos7in, Mid Law, p. 234 (Oxford, 1970), Article 3, Fundamental Law
on Relationship Between Parents and Children, Article 58, Constitution of the Socialist
Federal Republic of Yugoslavia of 1968.
A.G. Chien's, Yugoslav Civil Law, p. 235 (Oxford, 1970), Article 24, Establishment of
Paternity.


Interim Decision #2514

MATTE4 OF ROBLES

In Deportation Proceedings
A-21256271
'

Decided by Board August 9, 1976

(1) Respondent ,nought to enter the United States at a Mexican border port of entry and
surrendered his border crossing card to the immigration inspector who directed him to
wait in the secondary inspection area. Respondent after a brief wait, fled the secondary
area and entend the United States.
(2) Under 8 CF R 235.1(a) an alien must apply in person to an immigration officer at a
designated port of entry at a time when the immigration office at the port is open for
inspection. Under 8 CPR 235.1(d) he must present any required locum ents and establish his admissibility to the satisfaction of the immigration officer. The immigration
officer must ha afforded a full and fair opportunity to question the alien. San Matter, of

F—, 11. & N. Dec. 90, (BIA AG 1941).
(3) Where respondent briefly appeared before the immigration officer and did not establish
his admissibility and thereafter fled from the secondary inspection area, he deprived the
Service of a full opportunity to question him and in so doing, evaded the inspection
contemplated by section 235 of the Immigration and Nationality Act. Entry into the
United States after intentionally evading the inspection required by the immigration
laws and regulations is an entry without inspection and ground for deportation under
section 241(a)(2) of the Act.
CHARGE:

Order: Act of 1952

—

Section 241(a)(2) [8 U.S. C. 1251(a)(2))--Entry without inspection

ON BEHALF OF RESPONDENT:

Pro se

The Immigration and Naturalizaton Service has appealed from the
July 13, 1976 decision of the immigration judge terminating deportation
proceedings against the respondent, a native and citizen of Mexico. The
appeal will be sustained and the record will be remanded to the immigration judge.
The respondent has been charged with being deportable as an alien

who entered the United States without inspection in violation of section
241(a)(2) of the Immigration and Nationality Act.
At the hearing before the immigration judge the respondent testified
that on December 18, 1975 he sought entry to the United States from
Mexico. Upoa entering a United States inspection area located at the
border with Mexico, the respondent handed his local border crossing
734

Interim Decision #2514
card to the immigration inspector. He further testified that the immigration inspector took the card from him and told him to wait in the
secondary inspection lane. According to the respondent's testimony, he
became frightened and did not wait as he was instructed, but instead
fled, passing through the inspection area.
On the basis of the respondent's testimony, the immigration judge
found that the respondent had presented himself for inspection and that
"some sort of inspection did take place". He concluded that the charge of
entry without inspection had not been sustained. We disagree.
Every alien seeking to enter the United States must present himself
for inspection. The term "inspection " is not defined in the Act. The
regulations, however, state that the alien must apply in person to an
immigration officer at a designated port of entry at a time when the
immigration office at the port is open for inspection. 8 CFR 235.1(a). He
must present any required documents and establish his admissibility to
the satisfaction of the immigration officer. 8 CFR 235.1(d). The inspecting officer must be afforded a full and fair opportunity to question the
alien. See Matter of F—, 1 I. & N. Dec. 90, (BIA AG 1941).
Although the respondent briefly appeared before the immigration
officer, his statements show that he did not establish his admissibility to
the satisfaction of the immigration officer. Moreover, he deprived the
Service of a full opportunity to question him. Accordingly, we conclude
that the respondent evaded the inspection contemplated by the Act.
Evidence that the respondent, unrestrained, passed through the
United States inspection area after intentionally evading inspection
establishes an entry into the United States. Matter of Pierre, 14 I. & N.
Dec. 467 (BIA 1973).
The deportability of the respondent under section 241(a)(2) has been
proved by clear, convincing and unequivocal evidence. The appeal will
be sustained. We shall remand the record to the immigration judge in
order that he may give the respondent an opportunity to apply for any
discretionary relief for which he may be eligible.
ORDER: The appeal is sustained; the record will be remanded to the
immigration judge for further proceedings consistent with the above
opinion.

735


Interim Decision #2042

MATTER OF SALVIEJO

In Deportation Proceedings
A-19173484
Decided by Board April 17, 1970
Application for a waiver of the visa requirements under section 211(b) of
the Immigration and Nationality Act, was properly denied since respondent, a native and citizen of the Philippines, who lived from August 1947
until November 1958 in Guam where he held various jobs as a laborer,
sales clerk, stock clerk, storekeeper and gas station attendant, is classifiable as a contract laborer and not entitled to the presumption of lawful
permanent residence under 8 CFR 9.2(j) [now 8 CFR 101.1 (i)]; and further, since his actual place of residence from the time he left Guam in
1958 until he entered the United States in 1968 (with the exception of 11
months spent in Viet Nam) was in the Philippines, where he acquired a
home and farm which he still owns, such residence was not temporary so
as to constitute at the time of his entry to the United States in 1968 a return from a temporary visit abroad.
CHARGE :

Order: Act of

241(a) (2) [8 U.S.C. 1251 (a) (2)]—Visitorremained longer.

1952—Section

ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:
Jay Segal
Trial Attorney
(Brief filed)

Esquire
351 California Street
San Francisco, California 94104
(Brief filed)
Also of counsel:
Normal Stiller, Esquire
995 Market Street
San Francisco, California 94103
William C. Wunsch,

The case comes forward on appeal from the order of the special inquiry officer denying respondent's application pursuant to
section 211 (b) of the Immigration and Nationality Act' for a
Section 211(b) of the Act, 8 U.S.C. 1181(b) provides:
Notwithstanding the provisions of section 212(a) (20) of this Act in such
cases or in such classes of cases and under such conditions as may be by
regulations prescribed, returning resident immigrants, defined in section
557

Interim Decision #2042
waiver, nunc pro tune, of the documentary requirements for admission as set forth in section 212(a) (20) 2 of the Act. Respondent was granted voluntary departure in lieu of deportation, with
a further order that if he failed to depart within 30 days, he be
deported to the Republic of the Philippines on the charge contained in the order to show cause.
The respondent is a 49-year-old male alien, a native and citizen
of the Republic of the Philippines, who was last admitted to the
United States at Seattle, Washington -on March 9, 1968, being
then admitted as a visitor for pleasure. He did not leave within
the time required and at the deportation hearing he was found
deportable as charged.
The respondent asserts that his entry into the United States on
March 9, 1968 was not an entry as a visitor but rather as a returning resident immigrant and that he was entitled to the
waiver applied for. A returning resident immigrant is defined in
section 101(a) (27) (B), of the Act, 8 U.S.C. 1101(a) (27) (B). 2
Underthispovflawnetbigforawve
under section 211 (b) of the Act must establish first that he was
admitted to the United States for permanent residence, and second that he is returning from a temporary visit abroad. The special inquiry officer did not make a definitive finding as to the first
requirement but denied the waiver on the basis that the respondent was not returning from a temporary visit abroad when he
entered the United States on March 9, 1968. We will consider
both questions.
Respondent lived and worked in Guam from August 1947 until
November 1958. He contends that under the provisions of 8 CFR
101(a) (27) (B), who are otherwise admissible may be readmitted to the

United States by the Attorney General in his discretion without being required to obtain a passport, immigrant visa, reentry permit or other documentation.
2 Section 212(a) (20) of the Act, 8 U.S.C. 1182(a) (20) provides:
(a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission
into the United States:
(20) . . . any immigrant who at the time of application for admission is
not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by
this Act, and a valid unexpired passport, or other suitable travel document,
or document of identity and nationality
Section 101: (a) As used in this Act— * * (27) The term "special immigrant" means— * * * (B) an immigrant lawfully admitted for permanent
residence, who is returning from a temporary visit abroad.

558

Interim Decision #2042
4.2 (j) 4 (now 8 CFR 101.1(i) ), he acquired permanent residence
status by reason of his residence in Guam. We will later consider
this contention at length. Assuming arguendo that the respondent
was a permanent resident, was he returning from a temporary
visit abroad when he entered the United States on March 9,
1968? We agree that the special inquiry officer that he was not.
These are the pertinent facts.
During respondent's eleven years in Guam he returned to the
Philippines on three occasions, each time for a month's vacation.

He was married at that time and his wife and their two children
resided in the Philippines. He last returned to the Philippines in
November 1958 on a 30 day reappointment leave. The record is
not clear as to whether his job in Guam, which was that of a salesclerk at the time he left, had been terminated prior to or after
he left, but the fact is that he did not have a job in Guam to
which he could return. He testified that he made several attempts
during the next few years to obtain employment in Guam, by contacting the Army personnel authorities in the Philippines and by
corresponding with two friends of his who had remained in
Guam. He also wrote to the Army personnel office in Guam. He
was unsuccessful. There is no evidence he made any further attempts after 1962. In the meantime he separated from his wife
and went through a marriage ceremony with another woman,
whom he considers his wife, although he did not obtain a divorce
from his first wife until March 1969, in Reno, Nevada.
After a month after respondent returned to the Philippines in
November 1958 he went to work assisting his brother-in-law who
is a tinsmith. He then operated a handicraft store from 1962 to
1964. He worked in Viet Nam, in what capacity is not shown, for
11 months in 1966 and 1967. Respondent testified that he ac4 8 CFR 4.2(j) provided (effective January 31, 1955, Federal Register, December 8, 1954)

Presumption of lawful admission. An alien of any of the following described classes shall be presumed to have been lawfully admitted for permanent residence within the meaning of the Immigration and Nationality Act
(even though no record of his admission can be found, except as otherwise
provided in this part). ...
(j) Aliens admitted to Guam. (i) An alien who establishes that he was
admitted to Guam prior to December 24, 1952, by records, such as service
records subsequent to June 15, 1952, records of Guamanian Immigration
Service, records of the Navy or Air Force, or records of contractors of those
agencies, other than as a contract laborer, [emphasis supplied] was not otherwise excludable under the Act of February 5, 1917, as amended, and who
continued to reside in Guam until December 24, 1952, regardless of the period of time for which admitted.

559

Interim Decision #2042
quired a house and a farm in the Philippines which he still owns
(Tr. of Hearing, p. 42). With the exception of the 11 months
spent in Viet Nam, his actual place of residence for the approximate nine and one-half years from the time he left Guam until he
entered the United States as a visitor, was in the Philippines.
At the time the respondent applied for a visitor's visa he submitted an affidavit to the American Consul at Manila, in which he
stated that he did not desire to immigrate to the United States
but sought only a tourist's visa for a visit of not more than two
months and that he had no intention of remaining in the United
States indefinitely or permanently for any reason whatsoever. He
also swore that he would not seek employment or remain longer
than permitted by his tourist's visa and he would not apply for
adjustment of status to any other category.
In U.S. ex rel. Alt her et al. v. McCandless, 46 F.2d 288 (3 Cir.,
1931), the alien, previously admitted for permanent residence, returned to the United States on a visitor's visa after an absence of
eight and one-half years. Although he had some property and
business connections in the United States and had obtained the

draft board's permission to leave the country, the court held that
he was not returning from a temporary visit abroad. The court
stated that his obtaining a visitor's visa from the American Consul in Switzerland was inconsistent with his claim to be a returning resident.' This point is particularly apropos to the case before us because respondent testified (Tr. of Hearing, p. 73) that
he was aware as early as December 1952 that because of his residence in Guam he could be considered a permanent resident of
the United States.
We held in Matter of G-- ; 8 I. & N. Dec. 249 (BIA, 1959), that
a permanent resident alien who was absent for two years should
be granted a waiver under section 211 (b) of the Act because he
was detained by the German authorities for that period of time
and his absence was thus involuntary.
In U.S. ex rel. Polyrneris et al. v. Trudell, 49 F.2d 730 (2 Cir.,
1931), affirmed 284 U.S. 279 (1932), the immigrants (mother and
daughter) were absent for seven years. Their visit had been
somewhat extended first by the sickness and death of the mother's husband, by the necessity for remaining to settle his estate,
and then by the delay occasioned by their persistent though fruitless attempts to obtain return permits. The court stated at page
732:
What is a temporary visit cannot be defined in terms of elapsed time
5

See also U.S. ex rel. Thomas v. Day, 29 F.2d 485 (2 Cir., 1928).

560

Interim Decision #2042
alone, when it is of such duration that its temporary character may reasonably be questioned. Then the intention of the visitor, when it can be determined, will control.€

In the Po/I -nois case the court found that the aliens' unflagging intent to return to the United States was sown by their unremitting attempts during the last five years of their absence to
return. These facts distinguish it from the instant case in which
for all practical purposes the alien had abandoned after several
years any real intent to return to Guam. 8
In Tejeda v. INS, 346 F.2d 389 (9 Cir., 1965), the immigrant
was absent for sixteen years and then returned with a visitor's
visa. He had failed all during this time to pursue his right to return as a returning resident alien because of reliance on erroneous advice given him by a United States Consul. The court remanded the case, saying that the long period of absence and his
obtaining a nonimmigrant visa would not preclude his being admitted as a returning resident alien if he had actually been misled by a government official.
In a most recent case, Santos v. INS, 421 F.2d 1303 (9 Cir.,
No. 23160, February 13, 1970), the court indicated that one factor to be considered in a section 211 (b) waiver case is whether
the immigrant who claims to be returning from a temporary visit
abroad has any ties in the United States to which he is returning,
such as a family, property, job or other links. In the instant case
the respondent has no ties of any kind in Guam. The Santos case
also involved a citizen of the Philippines who obtained permanent
residence under 8 CFR 4.2 (j) by reason of residence in Guam.
The court stated that when Santos left Guam, taking with him all
his worldly goods in a footlocker, this severed any and all connections he had with Guam.
We conclude from the facts in the instant case that respondent's residence of more than nine years in the Philippines after
Citing U.S. ex rel Lesto v. Day, 21 F.2d 307 (2 Cir., 1927), in which the
court held that ordinarily the intention must be "to return within a period
relatively short, fixed by some early event."
7 See Matter of Carpio, A15848462 (BIA, 1968)
(unieported), a similar
case in which the alien's intent to return was clearly shown by his constant
attempts to reenter the United States.
F Although the court in the Polymeric case found that the aliens were returning from a temporary visit abroad, they were excluded under section
13(a) of the Immigration Act of 1924 (8 U.S.C.A. 213(a)), since the Secretary of Labor did not admit them in his discretion under 8 U.S.C.A. 136(p),
and neither presented an unexpired valid immigration visa or an unexpired
valid permit to reenter in accordance with the regulations promulgated
under section 13 (b) of that Act.

561

Interim Decision #2042
leaving Guam cannot be considered a temporary visit, and we affirm the finding of the special inquiry officer that the respondent,
when lie entered the United States at Seattle on March 9, 1968,
was not returning to the United States from a temporary visit
abroad.
We turn our attention now to the question of whether respondent acquired the status of a permanent resident of the United
States under 8 CFR 4.2(j) by reason of his residence in Guam.
Under this section of law he would be presumed to be a permanent resident unless his work in Guam was that of a contract laborer.
He first went to work on Guam for a private employer, and his
first job was as a laborer stacking lumber. He then sold beer and
$oft drinks at a post exchange owned by his employer. A few
months later he went to work as a civilian for the United States
9rmy, working in the post exchange. He was successively a sales.lerk, sales and stock clerk, salesclerk-storekeeper, gas station atendant and finally a salesclerk. His salary ranged from $.35 an
lour to a high of $.97 an hour.
In Matter of C—Y—L, 8 I. & N. Dec. 371 (BIA, 1959), we
[eld that where a person intends employment in a supervisory or
lanagerial capacity in a position for which he is occupationally
ualified and is actually employed in this position, he is not classiable as a contract laborer and is entitled to the presumption of
iwful permanent residence accorded by 8 CFR 4.2(j) (now 8
FR 101.1(i). In that case the alien was a cook. 9
The various jobs performed by the respondent in the instant
tse were neither managerial nor supervisory and did not require
[di administrative and instructive responsibilities as would reove them from the category of being contract labor. 1°
We hold, therefore, that the application for a waiver of visa reirements under section 211 (b) of the Act was properly denied
the basis that the respondent could not qualify as being a pern admitted for permanent residence to the United States under
CFR 4.2 CO, and that his coming to the United States was not
a returning resident immigrant returning from a temporary
;it abroad. Accordingly, the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is
'

reby dismissed.
Matter of C Y--L
, supra, discusses at length various occupations
ich can ho considered as "contract labor" and others which cannot be so
—

—

sidered.
'Matter of C—Y—L—, supra.

562

I


Interim. Decision #1398

Mamma OF M/V Hellenic Leader
In FINE Proceedings
NOL-10/61219
Decided by Board October 5,1064
Since service on the same party of both notice to detain and deport and notice of
intention to fine is a prerequisite to fine liability under section 254(a) (3), Immigration and Nationality Act, the owners of a Teasel are not liable to fine for
failure to detain and deport an alien crewman upon revocation of his landing
privileges when notice to detain was served on the master, acting through the
second mate.
BASIS von FINE Act of 1952—Section 254 (a) [8 U.S.C. 1284].
:

This appeal is directed to an administrative penalty of $1,000 which
the District Director at New Orleans, finding no justification whatso' ever for reduction in the amount thereof, has ordered imposed on the
Hellenic Lines, Ltd., as owners of the M/V "Hellenic Leader." The
"Notice of Intention to Pine" (Form 1 79) on which these proceedings are based charges a violation of subsection (2) of the statute, in
-

the following language : "Failure to detain on board the alien crewman
named below (Ioannis A]exiou) after he was refused a conditional
landing permit."
The vessel made its first United States port call on this trip at
Savannah, Ga., on January 20, 1964. Immigration inspection, which
was then and there accorded its crew, resulted in the granting of D-1
conditional landing privileges to the crewman here involved. Under
the terms thereof, lie was admitted for the period of time his vessel was
to remain in United States ports; in no event was his stay in the United
States to exceed 29 days; and he could not be paid off and/or discharged without prior permission from an. immigration officer acting
for the Attorney General.
From Savannah, the vessel proceeded coastwise to several United
States ports, eventually arriving at New Orleans on February 12, 1964,
at about 4:00 p.m. Approximately three and one-half hours later,
Border Patrol officers of the Service encountered the crewman at the
Greyhound bus terminal in New Orleans. He was in possession of a
731

Interim Decision #1398
one-way bus ticket to Baltimore, Maryland; he had $280 in his possession; he stated that he intended to go to Baltimore to work and attend night school; and that he did not intend to return to the ship.
The officers thereupon took the crewman into custody "for processing." They then served on him a notice (Form 1-99) that his conditional landing permit was revoked. That form also was executed
to indicate that his detention and deportation aboard the M/V "Hellenic Leader" was being directed, pursuant to section 252(b) of the
Immigration and Nationality Act (8 U.S.C. 1282). Thereafter, the
officers returned the crewman to his ship where they found the second
officer in charge.
Their report (June 6, 1964) reflects that he informed them that he
understood English sufficiently well to transact the ship's business?

It indicates that he was then informed of the circumstances under
which the crewman was taken into custody; that his landing privileges

had been revoked; and that he was being ordered detained aboard the
vessel and deported. It sets forth that he was then shown Form 1-269
(Notice to Detain and Deport) ; that its meaning was explained to him;
and that he stated he understood it and about detainees, because there
were two others aboard at the time.' It relates that he refused to sign

for the Master, and claimed that he was not authorized to confine the
crewman or to hire a professional guard to watch over him.3 It recounts that, nevertheless, the crewman was left on board, and that the
Form 1-259 was served on the vessel and noted that it was accepted but
unsigned by the Second Mate. 4 Finally, it narrates that the Border
Patrol officers then left the ship at approximately 10 :20 p.m. on February 12, 1964; that approximately one hour thereafter, at about 11:30
p.m. on February 12, 1964, the Border Patrol was notified by the vessel's agents that the crewman had left the ship by taxicab; 6 and that
he is still at large in the United. States.
As to crewman arriving aboard vessels in United States ports,
254(a) of the Immigration and Nationality Act (8 U.S.C. 1284) imposes three separate and distinct, though closely related, duties which
the parties named in the statute are charged with the responsibility
Both the protest to imposition of the fine and the brief on appeal contain the
claim that the Second Mate did not understand the officers.
2 The Border Patrol officers' report states that there were no hired guards on
the vessel at that time.
The appeal brief contains the unsupported contention that he did confine
the crewman and instructed the ship's watchman to guard him, but that the
watchman became lax in the early morning hours, and that it was then that the
crewman escaped.
Another Form 1-259 was served on the Master the following day.
This contradicts the unsupported claim contained in 3, ante.
`

`

738

Interim Decision #1398
of meeting, under pain of penalty in the amount of $1,000.00. 8 Subsection (1) requires crewman to be detained on board an arriving -vessel
until an immigration officer has completely inspected them, and this
duty exists without the necessity of individual notice because the law
itself, without more, serves as notice. Subsection (2) compels crewmen to be detained on board after inspection unless and until they
are issued landing permits and again there is no requirement of individual notice for the reason, likewise, that the statute itself serves
as notice to continue the detention until such time as an immigration
officer lifts it by issuing a conditional landing permit. Subsection
(3) necessitates the deportation of crewmen, either before or after
they are permitted to land temporarily, if the Service requires it
and here notice is essential because of the use of the words "if required"

in the Subsection."'
The foregoing facts of record bring this case squarely within the
scope of subsection (3) of the statute, ante. Therefore, the duty to
deport the crewman did not arise until this requirement was communicated to the person or persons upon whom the duty was to rest.
In this instance, it was the Master, acting through the Second Mats.

However, the fine has been ordered imposed on the vessel's owners. 8
Fortheasniftorh,specludfmtaing
the present penalty. The Supreme Court has ruled that a ship owner
is not liable to a fine imposed for failure to detain (deport) an alien
crewman where the request for his detention (deportation) is communicated to the Master of ship, but is not brought to the knowledge
of the owner because the notice is of a personal nature.° While that
case involved predecessor legislation, it is controlling here for the
reasons set forth in a prior precedent decision of this Board interpreting the present statute 1 0 Accordingly, the District Director's

decision must be withdrawn and the matter remanded to said official
for correction of the defect hereinbefore outlined.
ORDER: It is ordered that the District Director's decision be withdrawn and that the matter be remanded to said official for appropriate
action not inconsistent with the foregoing opinion.
` Such e. line may be reduced, but to not less than $200.00, if sufficient mitigating factors are found to exist.
7 See Matter of M/V "Arafinn. Stange," 8 L & N. Dec. 639.
• See Notice of Intention to Fine (Form 1 79) instituting these proceedings.
Compagnie Generale Traneatlantigue v. Elting, 298 II.S. 217 at 223.
" Matter of SS "Marilena," 7 I. & N. Dec. 453, at 454, last I.
-

739


Interim Deasion41526

g.arrzn or TRAN
In Section* 212(e) Proceedings
A-13707473
Decided by District - Director October 15, 1.965

Notwithstanding a determination that compliance with the foreign residence
requirement of section 212(e), Immigration and Nationality Act, as amended,
would result in exceptional, hardship to the lawful permanent resident spouse
and nnited States citizen child of an exchange visitor from Vietnam, a
waiver of the requirement is denied since the favorable recommendation
of the Secretary of State is a statutory prerequisite to the grant thereof
and the Secretary has declined to make a favorable recommendation in
her case. .,

-

Discussion: The applicant, a 37-year-old married female, iso, a
native and citizen of Vietnam, .and her last foreigno, residence was
• in that country. She entered the United. States as an. exchange
visitor on September 4, 1958, sponsored by the Agency for. International Development, United States Department of State, under Bschange Program G -II-100 for training in instructional materials
development. She was placed •at Teachers College, Columbia Uni, varsity, where she received her B.S. degree in education in June 1963.
She studied for two years under a scholarship from her sponsor, the
Agency for International Development, and at the request of this
sponsor was granted three self-financed extensions as an exchange
visitor, to September 3, 1963, so she could complete her training
prograni.
The applicant was married on April 20, 1963, to•Toan Van Tran,
also a native and citizen of Vietnam. She resides in Pacific Grove,
California, with her husband, who is a lawful permanent resident
of the United States, and their United States citizen child, born
February
1964. Both she and her husband-are employed as
teachers of the Vietnamese language at the United States Defense
Language Institute, West Coast Branch, Monterey, California. The
applicant's employment is on a temporary contract which Will expire
December 17, 1965. Her application for waiver of the foreign
residence requirement is based on the hardship which compliance
'ith the requirement would impose on her spouse and child.

n,

395

Interim Decision #1526

Section 212(e) of the Immigration and Nationality Act., as amended, provides that the foreign residence requirement may be waived
in this type of case by the Attorney General, upon the favorable
recommendation of the Secretary of State pursuant to request of
the Commissioner of Immigration and Naturalization after he has
determined that departure from the United States would impose
exceptional hardship upon the exchange alien's spouse or child, if
such spouse or child is a citizen of the United States or a lawfully
resident alien, and provided the exchange alien's admission is found
by the Attorney General to be in the public interest.

The Attorney General's authority to grant waivers under section
212(e) is delegated by regulations promulgated under authority of
the statute, to the Commissioner of Immigration and Naturalliation
who in. turn has delegated such authority to the District Director.

However, the statute specifies that the favorable recommendation of
the Secretary of State is a prerequisite to the grant of a waiver. The
facts in this case were carefully considered by the District Director,
who determined that compliance with the foreign residence requirement would impose exceptional hardship upon the applicant's spouse
and child. The waiver application, showing such determination, was
then presented to the Bureau of Educational . and Cultural Affairs,
Department of State, as required by State Department regulations,
22 CFR 63.6(f), with a request that the Secretary of State recommend whether the waiver should be granted. In a letter dated'
September 15, 1965, the Department of State replieirthat Mrs.
TraA's case had been carefully reviewed and the conclusion was
reached that it would not be in the best interest of the exchange
visitor program to support her request for waiver of the foreign
residence requirement. The letter further states 'that recommendation of the Department of State is that Mrs. Tran fulfill her commitment by returning to Vietnam. where her services are urgently
needed.
Since the favorable recommendation of the Secretary of State
is a prerequisite to the grant of a waiver under section 212(e) and
the Secretary has declined to make such favorable recommendation
in this case, the waiver may not be granted.
ORDER: It is ordered that the application for waiver of the
foreign residence requirement of section 212(e) of the Immigration
and Nationality Act, as amended, be and is hereby denied on the
ground that the Secretary of State has declined to make a favorable
recommendation and the applicant is therefore statutorily ineligible
for the Waiver. '
396


Interim Decision #2945

MATTER OF GREENWOOD

In Visa Petition Proceedings
A-23447250
Decided by Board July 19, 1983
(1) Where an alien minor is admitted to the United States classified as an "eligible
orphan" pursuant to section 101(b)(1)(F) of the Immigration and Nationality Act,
S U.S. C. 1101(b)(1)(F)—even absent a subsequent formal adoption—thefurther proviso
therein operates to forever bar the eligible orphan from conferring immigration benefits

upon his natural parents (or prior adoptive parents).
CO Naturalized United States citizen petitioner who once was admitted to the United

States classified as an "eligible orphan" but whose intended adoption in the United
States was never legally perfected is precluded from according the beneficiary, her
natural mother, "immediate relative" status under the Act.
ON BEHALF OF PETITIONbkt;

°WPM.; ALF OF SERVICE:

'Joanna London
Acting Appellate
Trial Attorney

Pro se

By:- Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

This matter is before the Board on appeal from the District Director's
decision of February 17, 1982, denying the petition to classify the beneficiary as the mother of a United States citizen under section 201(b) of the
Immigration and Nationality Act, 8 'U.S.C. 1151(b). The appeal will be
dismissed.
The petitioner is a 23-year-old native of Jamaica and naturalized citizen of the United States. The beneficiary is a 41-year-old native and
cithen of .Tamaica. The unauthenticated, uncertified copy of the petitioner's purported "Birth Registration Form" contained in the record
reflects that she was born, apparently out of wedlock, to a woman
named Hyacinth Robinson, said to be the instant beneficiary. For purposes of this appeal, we will assume that the beneficiary is the petitioner's
natural mother. We also note that the petitioner's alleged birth document does riot identify her natural father, and there is no evidence that
she has ever legitimated or otherwise acknowledged the petitioner.
The record reflects that the petitioner immigrated to Om United States
classified as an "eligible orphan," to be adopted by a United States
417

Interim Decision #2945
citizen sometime after entry, pursuant to the provisions of section
101(b)(1)(F) of the Act, 8 U.S.C. 1101 (b)(1)(F). Although the petitioner's
adoption was never legally perfected, she subsequently did become a
naturalized United States citizen based upon her admission into the
United States for permanent residence as an eligible orphan.
In order for the beneficiary to be eligible for classification as the
petitioner's mother, the petitioner must once have qualified as the
beneficiary's "child" under section 101(b)(1) of the Act. See section
101(b)(2); Matter of Ifassait, 16 I&N Dec. 16 (BIA 1976); Matter of
Citino, 12 I&N Dec. 427 (BIA 1967). The applicable provisions of section 101(b)(1) define the term "child" as an unmarried person under
twenty-one years of age who is—
(D) An illegitimate child, by, through whom, or on whose behalf a status, privilege, or
benefit is sought by virtue of the relationship of the child to its natural mother; [or)
* * *
(F) A child, under the age of sixteen ( 1) at the time a petition is filed in his behalf to
accord a classification as an immediate relative under section 201(h), who is an orphan
because of the death or disappearance of, abandonment or desertion by,. or separation or
loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and
adoption; who has been adopted abroad by a United States citizen and spopse jointly, or
by an unmarried United States citizen at least twenty-five years of age, who personally
saw and observed the child prior to or during the adoption proceedings; or who is
coming to the United States for adoption by a United States citizen and spouse jointly,
or by an unmarried United States citizen at least twenty-five years of age, who have or
has complied with the preadoption requirements, if any, of the child's proposed residence:
Provided, That the Attorney General is satisfied that proper care will be furnished the
child if admitted to the United States: Provided farther, That no natural parent or
prior adoptive parent of any such child shall thereafter, by virtue ofsa ch parentage, be
after "Provided
accorded any right, privilege, or status under this Act. (Emphasis
further" added.)

Under the facts assumed here, it is clear that the petitioner once qualified as the beneficiary's "child" under section 101(b)(1)(1:3). The only
remaining issue is whether the further proviso of section 101(b)(1)(F)
bars the petitioner front conferring immigration benefits upon the beneficiary.
The petitioner argues that the further proviso should not preclude her
from conferring immigration benefits upon her natural mother because
she (the petitioner) was never legally adopted in the United States. The
Service asserts that the statute does not require an adoption, but only
an eary as an eligible orphan. We agree with the position advanced by
I Prior to its amendment by section 2(b) of the Immigration and Nationality At Amend
ments of 1981, Pub. L. 97-116, 95 Stet. 1611 (Dec. 29, 1981), this section applied to
children under the age of /4.
418

Interim Decision #2945
the Service because it is both supported by the apparent purpose and
rationale of the provision and, more importantly, is clearly mandated by
the plain meaning of the words of the further proviso.
Who is intended to benefit by the provisions of section 10I (b)(I)(P)?
It is apparent that these provisions have a humanitarian purpose, being
designed to facilitate the entry oc alien minors whose parer.ts are dead,
whose parents have abandoned them, or whose parents cannot properly
care for them and have chosen to release them for emigration and
adoption. It should be noted that an absolute prerequisite to qualification as an eligible orphan is that the alien minor's previous parental
relationships be permanently severed—whether by death, abandonment,
or irrevocable release. This fact spawned inclusion of the further proviso of section 101(b)(1)(F), with its specific articulation of the attendant
immigration consequences: a parent so permanently severed from hjs
child will thereafter be unable to secure immigration benefits through
such a child. In addition to this explicit acknowledgment of the practical
effect of such a permanent termination of the parental relationship, the
further proviso alsO serves to prevent the possible manipulation—
whether innocent or contrived—of the eligible orphan provision whereby,
e.g., an alien parent may be motivated to release his child for immigration to the United States in the hope that he might further his own
prospects of obtaining entry into the United States at a future time - A
parent who abandons his child or irrevocably releases a child for adoption by another in the United. States can have no legitimate expectation
of preserving a legal bond by which to lay claim to subsequent immigration benefits himself. The further proviso merely recognizes this situation by incorporating an explicit legal bar to that effect.
Wholly apart from this sensible and practical rationale of the further
proviso's terms, as a matter of pure statutory construction we are convinced that the plain meaning of section 101 (b)(1)(F) renders the mere
entry of an alien minor as an "eligible orphan" sufficient to invoke application of the further proviso, even absent a subsequent legal adoption.
The further proviso stipulates, in pertinent part, "That no natural parent . . . of any such child shall thereafter, by virtue of such parentage,
be accorded any . . . status under this Act." (Emphasis supplied.), This
"such child" language refers to the immediately preceding definition of
"child" in the main provision of section 101 (b)(1)(F), to wit, "a child.. .
who is an orphan" and who either (1) "has been adopted abroad" or (2)
"is coming to the United States for adoption." In this latter case, the
statute requires only that the orphan child be coming to the United
States for adoption; the words nowhere require that the intended adoption for which the orphan child is coming be legally perfected. Classification as en "eligible orphan" does not mandate the subsequent completion
of the intended United States adoption, but only that at the time of
419

Interim Decision #2945
entry the child was in fact coming to be adopted. A change of intent
of the child has already entered and "come" does not contravene any
specific provision of section 101 (b)(1)(1"). Thus, by virtue of the statute's

plain meaning, the mere "coming" of an alien minor to the United States
under that provision is sufficient to invoke application of the further
proviso.

In view of the foregoing, we hold that where an alien minor is admitted to the United States classified as an "eligible orphan" pursuant to
section 101(b)(1)(F) of the Act—even absent a subsequent formal
adoption the further proviso therein operates to forever bar the eligible orphan from conferring immigration benefits upon his natural parents (or prior adoptive parents).
In this case, the petitioner entered the United States classified as an
"eligible orphan." Therefore, the fuither proviso of section 101(b)(1)(F)
of the Act bars her from conferring immigrant status upon the beneficiary as her immediate relative mother under section 201(b) of the Act.
Under the natural reading of the statute, the fact that the petitioner's
adoption in the United States was never legally perfected is of no
moment. Accordingly, the beneficiary is ineligible for classification as
the petitioner's immediate relative, and the District Director properly
denied the petition.
ORDER: The appeal is dismissed.
—

420


Cite as 27 I&N Dec. 708 (A.G. 2019)

Interim Decision #3969

Matter of Onesta REYES, Respondent
Decided by Attorney General November 21, 2019
U.S. Department of Justice
Office of the Attorney General

BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. §1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (“Board”) to refer this case to me for review of its decision. The
Board’s decision in this matter is automatically stayed pending my review.
See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist
me, I invite the parties and interested amici to submit briefs that address
whether an alien who has been convicted of a criminal offense necessarily
has been convicted of an aggravated felony for purposes of 8 U.S.C.
§1227(a)(2)(A)(iii), where all of the elements of the underlying statute of
conviction, and thus all of the means of committing the offense, correspond
either to an aggravated felony theft offense, as defined in 8 U.S.C.
§1101(a)(43)(G), or to an aggravated felony fraud offense, as defined in
8 U.S.C. §1101(a)(43)(M)(i).
The parties’ briefs shall not exceed 15,000 words and shall be filed on or
before December 20, 2019. Interested amici may submit briefs not exceeding
9,000 words on or before January 17, 2020. The parties may submit reply
briefs not exceeding 6,000 words on or before January 17, 2020. All filings
shall be accompanied by proof of service and shall be submitted
electronically to AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice
Office of the Attorney General, Room 5114
950 Pennsylvania Avenue, NW
Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or before
the pertinent deadlines. Requests for extensions are disfavored.

708


Interim Decision #2317

MATTER OF

AJAELO

In Deportation Proceedings
A-17659400

A-20029121
Decided by Board August 16, 1974
The Department —of State's determination that an exchange visitor under section
101(a)(15)(J) of the Immigration and Nationality Act was subject to the two year foreign
residence requirement of section 212(e) of the Act, because he had received governmental financial aid, is not conclusive in determining the issue of such financial aid. As
part of the immigration judge's consideration of an application for adjustment of status
under section 245 of the Act he must make an independent determination on the issue of
governmental financing.
CHARGE:
Order: Act of 1952—Section 241(a)(2)(8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained
longer (both respondents).
ON BEHALF OF RESPONDENTS:

ON BEHALF OF SERVICE:

Donald L. Ungar, Esquire
..
517 Washington Street
San Francisco, California 94111

B. J. Hornbach, Esquire
Trial Attorney

This is an appeal from an order of an immigration judge finding the
respondents deportable and granting them voluntary departure. The
record will be remanded to the immigration judge for further proceedings.
The respondents are husband and wife, natives and citizens of
Nigeria, who were admitted to the United States as nonimmigrant
visitors on November 15, 1968 and January 29, 1971, respectively. On
April 28, 1969 the male respondent'S- status was changed to that of a
student. On March 22, 1972 both respondents' applications for adjust-

ment of status under section 245 of the Immigration and Nationality Act
were denied and they were granted the privilege of departing voluntarily by April 22, 1972. They failed to depart and deportation proceedings
were instituted. On February 6, 1974 the immigration judge found them
to be deportable as charged and granted them voluntary departure.
The record indicated' that prior to his most recent entry , the male
respondent in 1966 had participated in an exchange visitor program
-

85

Interim Decision #2317
under section 101(a)(15)(J) of the Act (Exh. 4). As an exchange visitor,
he became subject to the foreign residence requirement of section 212(e)
of the Act, as amended, and unless he could show that he qualified for
exemption from it, he was precluded from applying for permanent
residence until it was satisfied. The District Director concluded that the
male respondent was, in fact, subject to this requirement, and, since he
had not fulfilled it, both he and his wife were ineligible to receive
immigrant visas (Exh. 2). The record reflects that the male respondent's
application for a waiver of the foreign residence requirement of
amended section 212(e) was denied by the Department of State (Tr. p.
39). However, it is counsel's position that the male respondent does not
require a waiver since he is not subject to the foreign residence requirement of section 2I2(e) by the very terms of that provision.
As amended in 1970, section 212(e) provides that no person admitted
under section 101(a)(15)(J), or acquiring such status after admission,
shall be eligfli e to apply for permanent residence if his participation in
the exchange visitor program "was financed in whole or part, directly or
indirectly, by an agency of the Government of the United States or by
the government of the country of his nationality or his last residence.. .
until it is established that such person has resided and been physically

present in the country of his nationality or his last residence for an
aggregate of at least two years following departure from the United
States _ _ _ "

At the hearing in 1972 the male respondent maintained that he had
not received any funds through the exchange visitor program in which
he participated (Tr. pp. 11-17). The immigration judge noted that this
program, designated "P-3-2502, Afro-American Institute," appears on
a list compilee. by the Department of State, Bureau of Educational and
Cultural Affairs, which indicates that it has determined such program to
have been governmentally financed within the scope of amended section

212(e). The immigration judge found this to be conclusive evidence that
the male respondent was not exempt from the foreign residence requirement. When the hearing was resumed in 1974, the respondent,
through present counsel, reasserted his claim and offered to present
evidence in support of it (Tr. pp. 39-40). The immigration judge declined
to receive such evidence on the ground that he had no jurisdiction to
review the State Department's determination in this regard, and was, in
effect, bound by it (Tr. p. 40). Counsel contends, and we agree, that the
immigration judge was in error.
We find tha-; the question of whether the male respondent is subject to
the foreign residence requirements of amended section 212(e) is a
proper one for the immigration judge to decide, apart from the views of
the State Department. Such a determination bears on the male respondent's eligibility to receive an immigrant visa, and when it is presented
86

Interim Decision #2317
in connection with an application for adjustment of status under section
245 of the Act, it is clearly within the jurisdiction of the immigration
judge, as are all questions of admissibility. While an alien's participation
in a program which the State Department has determined to be governmentally financed may create a presumption that he, in fact, received funds thereby, this presumption may be rebutted by competent
evidence to the contrary. Cf. Matter of Qum, 14 L & N. Dec. S40 (BIA
1973). The immigration judge's refusal to consider an offer of such
evidence by the respondents in this case constituted prejudicial error
and warrants a remand so that the record may be completed. The

immigration judge should then make a new determination regarding the
respondents' eligibility for section 245 relief. Accordingly, the following
order will be entered.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion.

87


Interim Decision #1990

MATTER OF 'TIJERINA-V1LLARREAL
In Deportation Proceedings

A-13644691
Decided by Board Jury 14, 1969
In deportation proceedings where respondent claims to have derived citizenchip through his father who was born in this country but such claim is
not supported by a preponderance of credible evidence, the clear, convincing and unequivocable burden of proof test, as set forth in Woodby v.
Immigration and Naturalization Service, 385 U.S. 276, is met in establishing alienage upon proof of birth abroad.
CHARGE:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable at time of entry under section 212(a) (20) [8
U.S.C. 1182 (a) (20) ]—no immigrant visa.
ON BEHALF OF RESPONDENT:
Louis T. White, Esquire
Post Office Box 955
Alamo, Texas 78516
(Brief filed)

ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial. Attorney
Bernabe Q. Maldonado
Trial Attorney
(Brief fibo1)

The respondent is a native of Mexico. He has been found deportable under the provisions of section 241 (a) (1) of the Immigration and Nationality Act as an alien who was excludable at
the time of entry under the provisions of section 212 (a) (20) of
the Act (8 U.S.C. 1251(a) (1) and 1182(a) (20)). He appeals
from an order entered by the special inquiry officer on October
21, 1968 granting•him the privilege of voluntary departure in lieu
of deportation. He maintains that he is not deportable as an alien
because he derived United States citizenship through his father
who was born in the United States.
The respondent concedes that he was born in Mexico on March
25, 1944. He also concedes that he last entered the United States
at the port of Hidalgo, Texas on December 19, 1966; that he was
then entering for the purpose of residing in the United States as

327

Interim Decision #1990
a citizen; that he did not present an immigration visa; and that
he has never been admitted to the United States for permanent
residence (pp. 4 and 5). Counsel for the respondent and the trial
attorney further stipulated that the respondent's father was born
on March 19, 1912, at La Lomita, Texas and is now a citizen of
the United States ; that the respondent's mother was born in Mexico on March 12, 1910, and is a citizen of Mexico; that they were
lawfully married in Mexico on October 3, 1930, and that "the
main issue to be resolved in this proceeding is whether or not the
respondent's father had sufficient residence, prior to respondent's
birth . . . to confer citizenship on the respondent under the provisions of section 201 (g) of the Nationality Act of 1940" (8 U.S.E.
601 (g) , 1940 Ed.) (p. 8).
Section 201 (g) of the Nationality Act of 1940 provides in substance that a person bon) outside of the United States of parents
one of whom is a citizen of the United States derives United
States citizenship at birth if prior to the birth of such person, the
citizen parent resided in the United States or one of its outlying
possessions for a - period of ten years, at least five of which were
after attaining the age of 16 years. The respondent in order to
derive citizenship through his father has the burden of establishing that his father resided in the United States for a total of ten
years prior to . the respondent's birth and that five of the ten
years were subsequent to March 19, 1928, since his father was
horn on March 19, 1912.
The evidence with regard to the residence of the respandent's
father prior to the respondent's birth in Mexico has been fully
discussed in the opinion of the special inquiry officer. Briefly, it
establishes that fOur of the respondent's. brothers and one sister
have been issued certificates of derivative citizenship. They were
all born prior to the effective date of the Nationality Act of 1940;
and, under the law in effect on the date of' their birth there was
no requirement that their father- reside in the United States. for
any specified period of time.' The applications submitted in their
cases show that the periods of their father's residence in the
United States were -variously alleged to be from 1912 to 1914 and
from 194X to 1959; from 1912 to 1915 and from 1943 to the date
of the application; no period.of residence in the United States alleged; and residence in the United States "unknown."
Three applications for derivative citizenship have been submitted by or on behalf of the respondent. All have been denied on the
' Section 1993, Revised Statutes and section 1, Act of May 24, 1934.

328

Interim Decision #1990
ground that the respondent's father did not have the required period of residence in the United States. The respondent's father
testified under oath on June 19, 1963, in connection with the application filed on April 29, 1963, that he resided in Mexico from
1914 until April of 1943. It was alleged in connection with the
second application far derivative citizenship, submitted in behalf
of the respondent on October 15, 1964, that his father resided in
the United States from 1912 to 1915 and from 1943 until the date
of that application.
The third application for derivative citizenship was submitted
by the respondent on December 22, 1966. The respondent's father

testified on October 25, 1967, in connection with this application,
that he was taken to Mexico as an infant but reurned to the
United States in 1913; that he resided in the United States from
1913 to 1922 and from 1930 to 1936. He further testified that he
has resided in the United States from 1938 to the present time
(Ex. 14, p. 5). When questioned concerning the discrepancies in
his previous testimony concerning his residence in the United
States, the respondent's father testified:
Well, because I didn't have a lawyer and there was no one to tell me
where I'd been or where I'd lived, or with whom I had worked during this
time . . I'm telling the truth now because this man told me . . asked me a
lot of questions that no one has ever asked me before. (p. 9 of Ex. 14)

The evidence introduced by the respondent in this proceeding
to rebut the Government's claim of alienage is practically the
same as the evidence he submitted in support of his application
for derivative citizenship filed on December 22, 1066. The respondent's father testified on August 14, 1968 that he was born in

Texas on March 19, 1912; that he was taken to Mexico "at the
age of three" (1915); that he "returned and lived with [his]
grandmother here in McAllen from that age until I was about
seven or eight years old" (1920) ; that he returned to Mexico
"about 1921 more or less" and came back to the United States "in
1930 and worked here in the United States with a Mr. Woods
until 1936"; that in 1930 he returned to Mexico to marry and remained there for only ten days "because I had to work"; that his
wife continued to live with her parents in Mexico; that he visited
her "about every six or eight months"; that he resided in Mexico
"in 1937 and part of 1938" when he returned to Raymondville,
Texas; that he secured a birth certificate in 1943 and registered

under the Selective Service on May 1, 1943 (Ex. 4); and that he
has resided in the United States "from 1938 to the present time"
(pp. 9, 14, 17, 19, 20 and 23).
329

Interim Decision #1990
The witness, Walter Lane, who testified in support of the respondent's derivative application filed on December 22, 1966, also
testified in this proceeding. He stated that he worked with the respondent's father on the Otto Wood ranch a few miles north of
Edinburg, Texas, from 1930 to 1936; that the respondent's father
"lived in a house there on the ranch" and that the respondent's
father did not have his family with him (pp. 53, 80). This witness in a statement taken from him on October 25, 1967 testified
that he ha: known the respondent's father "about 36 years ... we
worked on the Wood ranch"; that when he first met the respondent's father "I think he was living here in Edinburg' ' and that
during the five years that the respondent's father worked on the
Wood ranch he lived "Here in town, he would rent a house" (pp.
2 and 3 of Ex. 14).
The same documentary evidence submitted by the respondent
in support of his derivative application filed on December 22,
1966 was also introduced in this proceeding. An affidavit executed
by Abundio Amador (now deceased) (p. 16) on December 2, 1967
states that he and the respondent's father lived and worked on
the Otto Wood ranch from at least 1933 to 1936 (Ex. 3). The respondent's paternal grandmother states in an affidavit executed
on January 16, 1967 that her son, the respondent's father, resided
in the United States from at least 1915 to 1922; from 1930 to
1936 and from 1938 to the present time (Ex. 5). Tomasa Anzal
Davila verified the information contained in the affidavit of the
respondent's grandmother in _an affidavit executed on June 10,
1967. A 1920 census record submitted by the respondent states
that Jose Maria Tijerina, age 7, born in Texas, nephew of Trinidad and Perfecta S. Sanchez, was enumerated in the Sanchez
family at 1919 - 17th Ave., McAllen, Texas.
The burden to establish alienage in a deportation proceeding is
upon the Government. When there is a claim of citizenship, however, one born abroad is presumed to be an alien and must go forward with the evidence to establish his claim to United States citizenship, Matter of A—M--, 7 I. & N. Dec. 332, 336 (BIA, 1956) ;
U.S. ex rel. Ronoetti v, Neelly, 207 F.2/I 281 284 J'7 Cir., 1953).
The issue here is whether the respondent has presented a
preponderance of credible evidence sufficient to overcome the presumption of alienage which attaches by reason of his birth in
Mexico. The record before us presents conflicting evidence as to
whether the respondent's father resided in the United States for
-

-

the required period of five years subsequent to his 16th birthday
IRO •

Interim Decision # 1990
and prior to the respondent's birth so as to confer citizenship on
the respondent under the provisions of section 201(g) of the Nationality Act of 1940. Were the evidence presents a conflict with
regard to whether the respondent acquired citizenship at birth, it
must be

-

valuated and weighed and a finding made with regard

before the test for burden of proof on the issue
of deportability as set forth in Woodby v. INS 2 (385 U.S. 276)
comes into play. Cf. Molter of Lugo-Guadiana, 12 I. & N. Dec.
726 (BI A, 1968).
We are mindful of the fact that United States citizenship is a
privilege which should be guarded zealously. We also realize that
where a claim of derivative citizenship has reasonable support, it
cannot be rejected arbitrarily. However, when good reasons appear for rejecting such a claim such as the interest of witnesses
and important discrepancies, then the special inquiry officer need
not accept the evidence proffered by the claimant. Experience•has
demonstrated in cases of this character that the testimony of parties in interest cannot always be accepted or relied upon. Cf. Lew
Walt Fook v. Brownell, 218 F.2d 924, 925 (9 Cir., 1955) ; Flynn
ex rel. Yee Sney v. Ward, 104 F.2d 900 (1 Cir., 1939).
to its cre..tiJility

The respondent's father in prior applications for derivative citizenship submitted in behalf of five of his oldest children as far

back as 1956 has consistently stated that he resided in Mexico
from 1915 to 1943. Concerning his residence in the United States,
he now claims that he actually resided in this country from 1930
to 1936 and from 1938 to the present time. A finding of lack of
credibility with regard to his present testimony is more than
amply warranted in light of his testimony on prior occasions that
he "didn't have a lawyer and there was no one to tell [him]
where I'd been or where I'd lived, or with whom I had worked
during this time" (p. 9 of Ex. 14).
Furthermore, the affidavit and the testimony of the witness,
Walter Lane, reveal inconsistencies which cannot be reconciled.
His affidavit executed on October 21, 1967, states that he worked

with the *respondent's father on the Otto Woods ranch for about
two years, and that thereafter the respondent's father worked on
the McAllen ranch, but that he was confident that the respondent's father resided in the United States from 1930 to 1936 (Ex.

9 attached to Ex. 12). Two days later in his statement of October
2 The Supreme Court held in Woodby that the test:for burden of proof in
a deportation proceeding is as follows: "No deportation order may be
entered unless it is found by clear, unequivocal and convincing evidence that
the facts alleged as grounds for deportation are true."

331

Interim Decision #1990
25, 1967 he testified that the respondent's father worked on the
Wood ranch for a total of five years (p. 3 of Ex. 14). When examined under oath by an immigration officer on October 25, 1967,
he stated that his testimony was based upon what the respondent's father told him; that he thought the respondent's father was
living in Edinburg, Texas, when he first met him, and at he did
not have personal knowledge of where the respondent's father
was living when he first met him. During this proceeding the witness testified that the respondent's father resided in a house on
the Otto Wood ranch from 1930 to 1936 and that the respondent's
father did not work for anyone else during the period 1930 to
1936 (pp. 53, 80) .
The affidavit (Ex. 5) executed by the respondent's paternal
grandmother does not appear to be credible in light of her testimony in a derivative application filed by the respondent's sister
in 1960 relating to the respondent's brother, Juan. She now
claims that her son resided with her in McAllen, Texas, from
1915 to 1922, and that she knows that the respondent's father
"returned to the United States in the year 1930 and stayed .. .
until sometime in the year 1936." At the time of the derivative
application she testified that the respondent's father resided in
the United States from 1912 to 1914 and from 1943 to the date of
the application (Ex. 6).
Counsel objects to the propriety of the Government calling the
nationality attorney who conducted the prior derivative citizenship proceeding as a witness. We note that counsel made no
objection to the appearance of the nationality attorney during the
hearing. 8 CFR 242.14 (c) provides that "the special inquiry
3fticer max receive in evidence any oral or written statement
which is material and relevant to any issue in the case previously
nade by the respondent or any other person during any investication, examination, hearing, or trial." Since the record of the de•vative citizenship proceeding under section 341 of the Act could
aye been received in evidence without the testimony of the naionality attorney, we find no prejudice to the respondent since
ounsel had an opportunity to cross-examine the witness.
Upon evaluating and weighing the evidence submitted by both
le Government and the respondent, we find that the respondent's
aim of derivative citizenship is not supported by a preponderace of credible evidence and for this reason, there is ample sup)rt for the rejection of the respondent's claim that he is a citimn of the United States. Based on this finding, we conclude that

332

Interim Decision #1990
there is clear, unequivocal and convincing evidence that the facts
alleged as grounds for deportation are true.
An order dismissing the appeal will be entered.
ORDER: It is directed that the appeal be and the same is
hereby dismissed.


Interim Decision #2309

MATTER OF RESTUBOG
• In Deportation Proceedings
A-17£22299
Decided by 4ogrd December 21, 1978
Under the concepts of
'judicata, a motion to reopen for possible termination of
deportation proceedings must 'be denied where the motion was filed subsequent to a
Court of Appeals review sustaining a finding of deportability and ordering a remand of
the case for the sole purpose. of permitting respondent to designate the country to which
she Is to be deported, and the evidence underlying the motion accrued prior to the court
order.
J
;
CHARGE:
Order: Act of 1962—Section 241(a)(8) [8 U.S.C. 1261(e)(2)}—Nonimmigrant troncit
'
' remained longer than permitted.
ON BEHALF OF RESPONDENT: Dan P. Danilov,•Esquire
• 3828 Seattle First National Bank
,
Spittle, Washington 08164 ,
•

-

(

This case is before us on remand frem the United States Court of
Appeals for the Ninth Circuit for entry of , an appropriate order, in
pursuance 'of the procedure we suggested in Matter of Abellana and
Donovan, 14 I. & N. Dec.' 262.(BIA 1973).
On Augnst p; •19'73, we entered an order upholding ;the immigration

judge's denial of respondent's aliplicatioh for adjust/lent of status under
section 245 of the Immigration and Nationality Act, but granting
respondent the privilege of voluntary departure. O•judicial review, our
order was affirmed, but the record was remanded "for the sole purpose
of permitting [respondent] to designate the Country to which she is to be'
deported," Restubog v. INS, 9 Cir. No. 72-2663, October 18, 1973.
Following remand but before we received the record, counsel for respondent filed a motion to reopen in order that respondent might seek

termination of the proceedings under section 241(f) and adjustment of
status under section 245, coupled with a waiver of inadmissibility under
section 212(a)(19), pursuant to section 212(i) of the Act. The motion is
supported by counsel's affidavit; by a birth certificate showing the birth
of a child to respondent on December 9, 1970 at Seattle, Washington; by
evidence showing that an immediate relative visa petition in respond48

Interim Decision #2309
ent's behalf was approved by the district director on March 23, 1973; and
by an application for a section 212(i) waiver, based on respondent's
relationship to her child and to her mother, both United States citizens.
By the terms of the Court of Appeals order, which is binding on us,
remand must be for the sole purpose of permitting the respondent to
designate the country to which she is to be deported. Had the new
evidence underlying the motion accrued after the Court of Appeals
order, we might be justified in expanding the scope of our remand order,
Matter of Campos, 13 I. & N. Dec. 148 (BIA 1969). However, all the
events now relied on took place before the Court of Appeals order: the
child was born on December 9, 1970 and the visa petition was approved
on March 23, 1973. Under familiar concepts of res judicata, the Court of
Appeals judgment binds us not only as to the issues actually raised and
adjudicated by the court but also as to the issues which could have been
raised. The only issue open for consideration on remand, then, is the
designation of the country to which respondent is to be deported.
We note, in passing, that respondent has been found deportable solely
on the ground that after entry as a non-immigrant she remained longer
than permitted. Section 241(f) of the Act, therefore, would not benefit
her in any event. Cabaco Flares v. INS, 477 F.2d. 108 (C.A. 9, 1973).
-

ORDER: The hearing is reopened and the record is remanded to the
immigration judge for the sole purpose of permitting the respondent to
designate the country to which she is to be deported.

49


Interim Decision *1525

Mew= or Iminertia
In Section 248 Proceedings
.A-13387107
Decklea by Rey-Iona Commissioner Soptember .74, 1965

A citizen of Italy is denied a change of nonimmigrant status under section 248,
Immigration and Nationality Act, as amended, from visitor for business to
that of treaty investor Mace there is no treaty of commence owl navigation•

between the United States' And Italy relating to Investors as required under
section 101(a) (15) (E) (ii) of the Act.

Discussion: The application was denied by the District Director
at Miami, Florida on July 2, 1965. It is now considered on appeal.
The applicant is a 30-year-old native of Egypt, a citizen of Italy
and a resident of Venezuela. He was admitted to the United States
on April 30, 1965 as a- visitor for business. He has been admitted
to the United States several times previously as a visitor for
business. •
The applicant owns 19 percent of a firm in Venezuela. The firm
is a partnership in which all the partners, including the applicant,
are Italian citizens. The firm is capitalized at $107,000 and exports. shrimp to the United States with a value of $1,500,000 annually.
This Venezuelan firm has invested $20,000 and holds a two-thirds
interest in a Florida corporation engaged in the business of operating seafood restaurants. Two restaurants are in operation, a third
is ready to operate and nine more are planned. The Florida corporation owns three-fourths,of the common stock of anotheirFlorida. corporation which is engaged in selling franchises for the operation of
restaurants using the name Shrimp Box. The activities of both of
these Florida corporations developed potentially large customers
for the shrimp exporting business of the firm in Venezuela.
The applicant when in the United States as a visitor for btisiness
has been involved in the establishment of the businesses of the two
Florida corporations. The franchises sold provide for assistance
to the buyer in establishing a business with expertise furnished for
the handling of shrimp and other seafood. The applicant seeks a
393

▪

Interim .Decision

4fr1525

to he able to 'devote more time to these activities
than he is permitted in his present visitor for business classification.'
. He seeks a+ classificationunder section 101(a) (15) (E) of the Immigration. and Nationality Act, which reads as follows:
change of status

An alien entitled to enter the United States under and in pursuance of the
ilrovisions of ;a treaty of commerce and navigation between the United States
and the foreign'state of which he is a national, and the spouse:and children
of any each alien if accompanying or following to join him: (I) solely to
carry on substantial trade, principally between the United States and the
Sorel:pa state of which he is a national; or (ii) solely to develop and direct
the operation:: of an enterprise in which•he has invested, or of an enterprise
in which he' is aefrvely in the process of investing, a substantial amount of

capital

The applicant through his attorney concedes thatlx does not come •
-within subdivision (i); however, he claims to'qualify as an investor
under subdivision (ii), The District Director has denied the appli:

cation with respect to subdivision (ii) on the ground that no treaty
with Italy exists for the investor part of section 10I(a.) (15) (E).
- Attorney for the applicant argues that the Treat; of Friendship,
Commerce --and Navigation between the United States and Italy
which entered into force July 28, 1949, 63 Stat. 2255, should apply.
•rior to the Immigration and Nationality Act of 1952, there was
a provision in effect for 'treaty traders ih the ,Act of May 26, 1924
as amended, section 3(6), which allowed entry limited to an alien
entitled to enter the United States solely to carry on trade between
the United States and the -foreign state of which he is a national
. under mid in pdrsuance of the provisions of it treaty of commerce
'and. navigation . . ." From a comparison of the former and the
present law, it is clear that the subsection relating to investors is
new.. There has bizon no new treaty between the United States and

.Italy to specifically include a provision relating to treaty investors.
Attorney for the applicant makes reference tb parts of the treaty
of July 26, 1949 and argues that the -treaty shmild be construed
as providing for the admission of investors. These parts of the treaty have been carefully considered, and although they relate to
matters with which an investor would be concerned ; they do not
specifically provide - for the admission to the United States of an
investor as a nonimmigrant. It is concluded that notwithstanding
the existence of a treaty of commerce and navigation with Italy
since July 26, 1949, there is no such treaty for investors as required
under section 101(a) (15) (E) (ii) of the Immigration and. Nationality Act of 1952. . •
ORDER: The decision of the District Director-at Miami, Florida .
is affirmed, and the appeal of the appellimt is hereby dismissed. .

394 '