Interim Decision #2419

MATTER OF HUA MIN LIN

In Deportation Proceedings
A-31243881

Decided by Board August 5, 1975
Where respondent was admitted to the United States for pernianent residence in possession of a labor certification issued on the basis of representations that he would be
employed by the San Francisco Chinese Opera Club as a teacher of musical instruments
used in Chinese opera to over 40 pupils at a salary of $650 per month, whereas, in fact;
the Club had no job to offer respondent; at most, there was an arrangement by which he
could give private music lessons to Club members for whatever compensation he might
receive; and the purported "salary" from the Club was nothing more than a ruse by
which he was allowed to submit $650 of his own money, obtained from any source, and
receive a check back from the Club "for the record", the labor certification was invalid
since no certification could have been issued had the correct facts been known. Hence,
respondentis deportable under section 241(a)(1) of the Immigration and Nationality Act
be cause excludable at entry under section 212(a)(14) of the Act for lack of a valid labor
certification.
CHARGES:
Orden Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of
entry (section 212(a)(14)) [8 U.S.C. 1182(a)(14)I—no labor certification
Lodged: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)—Excludable at time of
entry (section 212(a)(14)) [8 U.S.C. 1182(a)(14)]—no valid
labor certification

ON BEHALF OF RESPONDENT:

S. Bixby, Esquire
30 Hotaling Place
San Francisco, California 94111
Robert

ON BEHALF OF SERVICE:

Bernard J. Hornbach
Trial Attorney

In a decision dated November 9, 1978, the immigration judge found
the respondent deportable as charged and denied his application for
voluntary departure. The respondent has appealed from that decision.
The appeal will be dismissed.
The respondent was admitted to the United States for permanent
residence on September 14, 1971. At that time, he was in possession of a
labor certification issued on the basis of an application executed by
Harry HO, who was then the president of San Francisco Chinese Opera
Club. This application stated that the respondent would be paid a salary
421

Interim Decision #2419
of $650 per month, and that he would instruct over 40 pupils. The
application evidently was submitted by Harry Ho without the knowledge or consent of the other officers of the club (Exh. 5 "C", p. 2).
A Service investigation revealed that the San Francisco Chinese
Opera Club did not at any time have the funds required to pay the
respondent (and another alien music teacher for whom it also had
petitioned) at a rate of $650 per months (Exh. 5). In a sworn statement,
Harry Ho admitted that the club never had paid the repondent a salary
of $650, nor was the club ever in a financial position to do so. Mr. Ho
claimed that h€ had hoped that in the future the club could afford to pay

the respondent such an amount (Exh. 3 "C", pp. 5-7). However, Mr. Ho
stated that he did not divulge the true facts surrounding the respondent's -employroent to the Labor Department because "they wouldn't
understand, then they would deny the petition." (Exh. 3 "C", p. 12)
When initially questioned under oath by the Service, on June 12,
1972, the respondent claimed to have had no knowledge that his job
offer mentioned a salary of $650 per month until informed of that fact by
the Service at the time of the interview (Exh. 8 "A", p. 3). Later the
respondent claimed that his employment contract provided for the
monthly payment of $850 by the club (Tr. p. 18).

The evidence of record establishes that the respondent was never
paid a salary of $650 per month by the San Francisco Chinese Opera
Club. Nevertheless, the club's financial records and canceled checks
show that the respondent received several monthly checks for $650 from
the club (Exhs. 5 "A" & "B"). The current president of the club stated
that the respondent and the other alien music teacher gave the club $650
for deposit in each of these months and received in return the club's
check for the same amount 'just for the record." He indicated that this
procedure had been set up when Harry Ho was the president of the
club, and that it had been continued for some time thereafter. The

arrangement was such that the check for $650 was written only if the
respondent an6 the other instructor turned in that amount of money to
the club. If less than $650 were turned in by either of the instructors,
the club was in no financial position to reimburse him for the difference
between the amount he turned in and $650. The club would issue the
check without regard to the source of the funds turned in by the
instructors (Exh. 5 "0", p. 4).

The respondent gave conflicting explanations regarding his financial
arrangements with the club. At best, however, he only collected an
average of $300-$400 per month from his students (tr. p. 24). Since he
has been in the United States, the respondent his worked as a janitor in
a restaurant and as a busboy in addition to his music teaching. The
immigration judge, who had an opportunity to observe the respondent's
demeanor, four.d him not to be a credible witness.
422

Interim Decision #2419
29 CPR 60.5(g) states:
[Labor] Certifications issued pursuant to this part are invalid if the representations
upon which they are based are materially incorrect. Materially incorrect, for the
purposes of this paragr4h, means that if the correct facts had been known a certification could not have been issued pursuant to the requirements set forth at section
212(a)(14) of the Immigration and Nationality Act.
The respondent's labor certification was issued on the basis of incorrect representations in the application. If the correct facts had been

known, no labor certification could have been issued, since it would have
been apparent that the San Francisco Chinese Opera Club had no job to
offer the respondent. At the most, there was an arrangement by which
the respondent could give private music lessons to club members for
whatever compensation he might receive. In addition, he might receive
some unspecified compensation for helping the club stage its yearly
"money-making" production.' The respondent's purported "salary" from
the club was nothing more than a ruse by which he was allowed to
submit $650 of his own money, obtained from any source, and receive a
check back from the club "for the record." The respondent's labor
certification was issued on the basis of material misrepresentations. His
doportability under section 241(a)(1) of the Immigration and Nationality
Act by reason of section 212(a)(14) of the Ad has been established by
clear, convincing, and unequivocal evidence.
The respondent applied for the privilege of voluntary departure. The
immigration judge denied such relief in the exercise of his discretion.
We find that the respondent was a knowing participant in a scheme to
circumvent the labor certification requirements of the Act. In addition,
there were several inconsistencies in the statements the respondent
made under oath. We agree with the immigration judge that the respondent does not merit a favorable exercise of discretion.
The result reached by the immigration' judge was correct. The appeal
will be dismissed.
ORDER: The appeal is dismissed.

The club apparently puts on one production each year for which admission is charged.
Such productions evidently, make little, if any, profit for the club (Exh. 5 "C", pp. 5-(i).
423


Interim Decision #2247

MATTER OF KWAN
In Section 203(a)(7) Proceedings
A-14649007
Decided by Regional Commissioner December 10, 1973
Under the Hong Kong Immigration Ordinance (Cap. 115), effective April 1,
1972, a Chinese alien who has had 7 years' continuous "ordinary residence" in
Hong Kong prior to that date is a "chinese resident" of Hong Kong. Since such

an alien is considered to have permanent resident status in Hong Kong and to
be firmly resettled therein, applicant, who resided in Hong Kong between 1954
and 1967, has been firmly resettled in another country and, therefore, is
ineligible for classification as a refugee under the provisions of section
203(aX7) of the Immigration and Nationality Act, as amended.*
ON BEHALF OF APPLICANT: John F. Sheffield
Attorney at Law
412 West Sixth Street, Room 1401
Los Angeles, California 90014

This case is before the Regional Commissioner on certification
by the District Director, Los Angeles, who found the applicant,
having been firmly resettled in Hong Kong prior to his arrival in
the United States, was not eligible for classfication as a refugee
and denied the application.
The applicant is a 25-year old single male, born in China and has
Chinese nationality. He was last admitted to the United States as
a second preference immigrant upon presentation of an immigrant

visa issued to him in that classification by the American Consulate
General in Hong Kong. The visa had been issued upon the receipt
by the consulate of an approved second preference visa petition
filed in the applicant's behalf by his alleged permanent resident
father. Subsequent to his admission as an immigrant it was
determined that the alleged father was in fact his uncle, and that
his true father had never been admitted to the United States for

lawful permanent residence. As a result of this determination,
deportation proceedings were instituted in the applicant's case,
and in those proceedings the applicant filed the application now
before us.
The record, including his sworn affidavit, establishes that in
*Romairiclod for further proceedings; ace 306 F. Stipp. 1250, 12113 (U.S.D.C., D.C.,

1975).

499

Interim Decision #2247
April 1954, when five years of age, the applicant was taken by a
grandparent from China to Hong Kong where he continued to
reside until his departure for the United States in August 1967.
This was a total of more than thirteen years' physical residence in
Hong Kong. In his sworn affidavit applicant states that in 1964 he
had to register with the "Population Registration" and was given
a card which he surrendered when he left Kong Kong to come to
the United States.
In his application for classification for refugee status the applicant claims he fled communist China because the communists had
put his mother in jail and that he was unwilling to return there
because of fear of being killed.
It is recognized that China is a communist country. Even if it
were conceded that the applicant had been taken from China by
his grandparent to escape communist domination and that, because of fear of persecution, he is unwilling to return thereto, to
qualify as a refugee the applicant must also establish that he is
still a refugee and that he has not been firmly resettled in another
country since being taken from China in 1954. (Rosenberg v. Woo,
402 U.S. 49 (1971); Woo v. Rosenberg, 445 F.2d 277 (C.A. 9, 1971)).
The Hong Kong Immigration Ordinance (Cap. 115), which came
into effect on April 1, 1972, states illegal entry or illegal overstaying prior to that date counts as "ordinary residence," and that
anyone who is an illegal Chinese immigrant who could prove seven
years' continuous "ordinary residence" prior to the above date is a
"Chinese resident" of Hong Kong.
The record before us establishes that the applicant resided
continuously in Hong Kong for more than thirteen years, all of
which were prior to April 1, 1972, the effective date of the Hong
Kong Immigration Ordinance (supra) It is our conclusion that the
thirteen years of continuous "ordinary residence" in Hong Kong
accorded the applicant status as a "Chinese resident."
Service review of the provisions of the above Hong Kong Immigration Ordinance has led to the determination that a person who
has been accorded or is eligible to be accorded status as a "Chinese

resident" in Hong Kong enjoys the privilege and benefits of
permanent residence in Hong Kong. Accordingly, such a "Chinese
resident" must be regarded as having been firmly resettled in
Hong Kong and, as interpreted by Rosenberg v. Woo, supra, is not
eligible for classification as a refugee under section 203(aX7) of the
Immigration and Nationality Act, as amended.
Considering all the facts and circumstances of the case, we
concur with the decision of the District Director. We find the
applicant, prior to his arrival in the United States, was firmly
resettled outside the country from which he fled, and that he is not
500

Interim Decision #2247
entitled to classification as a refugee. The decision of the District
Director will be affirmed and the application denied.
ORDER: It is ordered that the denial decision of the District
Director be affirmed.

501


MATTER OF D—S , INC.
In VISA PETITION Proceedings
A-12079891
Decided by Regional Commissioner September 14, 1961
Approved by Assistant Commissioner October 5, 1961
First preference quota status—Orthopedic shoemaker.
(1) Urgent need for the services of an orthopedic shoemaker and designer is
not established where only two pairs of orthopedic shoes are repaired per
month in petitioner's shoe repair shops which are primarily engaged in ordinary cobbling work.
(2) An "orthopedic shoemaker" occupies a highly skilled position which requires an apprenticeship of 3-5 years, followed by at least five years' experience in the making and repair of orthopedic shoes. Au "orthopedic shoe
repairman" is a lesser skilled trade for which any good shoe repairman can
be trained in 3-4 years,
(3) Evidence that beneficiary possesses requisite skills qualifying him as an
orthopedic shoemaker and designer held insufficient where there is no specific information concerning the nature of his apprenticeship and other training and whether his previous employers were exclusively engaged in orthopedic work, where his experience is vaguely defined in general terms, and
where there is no showing regarding his knowledge of the English language
and ability to translate prescriptions and terminology as used In the United
States.

BEFORE THE REGIONAL COMMISSIONER

(September

14,

1961)

DISCUSSION: The District Director in New York City has certified this case to me for review.
The petitioner seeks first preference status under section 203(a)
(1) of the Immigration and Nationality Act for the beneficiary,
claiming that the beneficiary's services are urgently needed in the
United States by virtue of his technical training, specialized experience or exceptional ability within the purview of that section.
The petitioner is a New York State corporation owning and
operating 19 shoe repair shops in the New York City area. It has
been engaged in this business for the past 35 years and presently
grosses approximately three-fourths of a million dollars per year.
The petitioner also claims to be engaged in the repair and the
making of orthopedic shoes from doctor' prescription: and speci467

fications. For this reason, the petitioner maintains that the regular
shoe repairmen in their stores must also be experienced in orthopedic work and be able to work from a prescription.
While most of the petitioner's men are engaged in the repair of
regular shoes, the petitioner maintains that the beneficiary would
be employed solely as an orthopedic shoemaker and designer. He
would be required to make the mold and lasts and out out the
leather for the upper pa,rts of the shoe. The United States employment clearance order submitted in support of the petition summarizes the position as follows: "Working from doctors' and institutional prescriptions, will hand last complete orthopedic footwear. From similar prescriptions will progressively alter and repair orthopedic footwear_" The salary for the position is $75.00
icr a 40-hour week.
The petitioner maintains that there is only one school in the
United States to train men for this type of a position and that an
extensive local advertising campaign has failed to produce any
qualified applicants. The petitioner contemplates opening five additional stores but is prevented from doing so by the lack of competent help.
A comprehensive investigation by the Immigration and Naturalization Service reveals that there is confusion within the industry
regarding the use of the terms "orthopedic shoemaker" and "orthopedic shoe repairman" and that the terms are generally used interchangeably. An "orthopedic shoe repairman," however, is conceded
to be the lesser skilled position and any good shoemaker can be
trained for this position in approximately three to four years. His
duties, in addition to the repair and modification of the shoes,
also require the ability to cut the leather for the shoe according
to a pattern and to place the leather on wooden lasts. He then
places the heels and soles on the lasts and sews them together. The
"orthopedic shoemaker" is required to make the actual pattern for
cutting the leather and to make the wooden lasts according to
specifications of the physician. He must also be familiar with the
terminology of the trade and with the bone structure of the feet.
He is also required to make a metatarsal bar and to convert regular
shoes to orthopedic shoes, as well as make various corrections and

adjustments, according to the prescription. Since these prescriptions are generally written in English, a knowledge of the English
language would be advisable to understand the prescription and
the terminology used in the making of orthopedic shoes.
The work of the orthopedic shoemaker is strictly hand work, requiring no special equipment but a high degree of skill. Inquiry
was made by this Service of four large orthopedic shoe companies
in New York City. Representatives of these companies advised
468

that an apprenticeship of about three to five years, followed by at

least five years of experience in the repair and making of orthopedic
shoes, is necessary to become a skilled orthopedic shoemaker. Other
investigation by this Service has also shown that experience as a
shoemaker, not engaged in any orthopedic work, would not develop
the necessary skills due to the difference in the type of work performed. Approximately two to two-and-a-half days are required
to produce a single pair of orthopedic shoes mad they range in
price from $75.00 to $200.00. Due to this high price, there is a
limited market for this product, and such shoes are produced by
a few houses specializing in this type of work. The ordinary neighborhood shoe repair shops in this area have no need for either an
orthopedic shoemaker or repairman, and cannot reasonably expect
any volume of such business.
Investigation by the Immigration Service in approximately onehalf of the petitioner's stores reveals that in all of the stores but
one there are no qualified orthopedic shoemakers or orthopedic shoe
repaiimen employed at all. The petitioner'o otorec are basically

similar to other shoe repair stores in the city and are engaged in
the repair of regular footwear. In the one store owned by the
petitioner in which orthopedic work is done, approximately two
pairs of orthopedic shoes are repaired each month. No evidence has
been submitted which would tend to establish that the employment
of an orthopedic shoemaker or repairman is necessary in the petitioner's stores presently, or at any future date. As the petitioner's
business is preponderantly that of cobbling, doing ordinary heel
and sole repairs, it has not been established that there is an urgent
need for the services of the beneficiary as required by section 203
(a) (1) of the Immigration and Nationality Act.
The beneficiary of the petition is a 56-year-old Italian male. In
support of his qualifications, the following have been submitted :
(1) a: statement from the local mayor that the beneficiary is employed in orthopedic shoe work and has been employed since 1929;
(2) a statement from a physician that he has ordered orthopedic
_shoes from the beneficiary for various patients for approximately
four years; (3) an abstract from the Book of Qualified Artisans
listing the beneficiary as an orthopedic shoemaker and designer;
(4) two letters from previous employers stating that the beneficiary
has been employed by them for many years as an orthopedic shoe
worker.
This evidence is deemed insufficient to establish that the benefiicary possesses the skills qualifying him for the position of orthopedic shoemaker and designer. The evidence of record is lacking
in specific information as to the nature of the apprenticeship and
other training received by the beneficiary. There is no information

469

as to whether the beneficiary's previous employers were exclusively
engaged in orthopedic work or whether this work was merely an
incidental activity. The beneficiary's experience is vaguely defined
in general terms making it impossible to ascertain exactly what his
principal duties were. No evidence has been submitted regarding
tho beneficiary's knowledge of the English language or ability to
translate the prescriptions or terminology used in the United States.
Upon careful consideration of the entire record, it is concluded
that the petitioner has failed to establish (1) that the beneficiary's
services are urgently needed by him in the United States, and (2)
that the beneficiary is a highly skilled person.
ORDER: It is ordered that the petition be denied.

470


MATTER OF 8

C

Y

In DEPORTATION Proceedings
A-7956807
Decided by Board September 4, 1958
Adjustment of status—Section 211(c) and (d) of 1952 act— None pro tune exereiso porznissible whether entry occurred before or after effective date of act.
The discretionary provisions of section 211(c) and (d) of the 1952 act may lie
exercised nano pro tune in respect to entries which occurred prior, as well
as subsequent, to December 24, 1952, the effective date of the act.
CHARGE:
Order: Act of 1952—Section 241(s) (1) [8 U.S.C. 1251(a) (1)3—Excludable
at time of entry—Section 13 of the Act of 1924—Not non-quota as
specified.
BEFORE TAE BOARD

Discussion: This is an appeal from the order of the special inquiry officer finding the respondent deportable on the ground stated
above and denying her application for relief under section 211(c)
and (d) of the Immigration and Nationality Act (8 U.S.C. 1181(c)
and (d)).
The respondent, a 30-year-old married female, a native and national of China, was admitted to the United States on February 1,
951, as a nonouota immigrant upon surrender of a visa issued to
her under the provisions of section 4(a) of the Immigration Act of
1924, as the spouse of a United States citizen. In 1957 it was
learned that her husband was not a citizen and these proceedings
were brought. The record establishes that the respondent acted in
good faith and that reasonable diligence could not have helped her
determine that her husband was not a citizen. The special inquiry
officer was of the opinion that relief under the Immigration and
Nationality Act could not be granted because at the time the respondent entered the provisions of section 13(d) and (e) of the
Immigration Art of 1924 (43 Stat. 153) were in effect, and under
those provisions correction of the visa could be made only if a
charge against the proper quota could be made in the fiscal year in
which the visa was issued. The special inquiry officer held that
since the fiscal year in which the visa had been issued expired on
June 30, 1951, the respondent's status could no longer be adjusted.
131

It is true that under the Immigration Act of 1924 an entry
with a nonquota visa which was defective because it had been
issued to an inunigrant who was a quota immigrant could not be
corrected after the passing of the fiscal year in which it was issued
(Matter of F , A 6371634, 5 I. & N. Dec. 525). 1 However, if
the provisions of section 211 (c) and (d) of the Immigration and
Nationality Act of 1952 may be applied to the respondent's case, a
different situation would exist for adjustments under this law may
now be made if the quota is open for the fiscal year in which the
State Department is requested by the AttornPy General to make
a proper charge against the quota or in the fiscal year following
submission of such notification (Matter of P , A-8789196, 7
I. & N. Dec. 304).
Counsel argues that the provisions of section 211(c) and (d i of
the Immigration and Nationality Act do apply here, for these provisions were meant to be a continuation and liberalization of the
corresponding provisions of the 1924 act. We believe the contention
of counsel is well taken. The Immigration and Nationality Act
is a codification of the immigration laws in effect prior to its promulgation, The previous act made provision for adjustment of the
visa if the irregularity in the issuance was discovered in the fiscal
year in which it was issued. This caused cases of hardship to perarms whn were without fault in obtaining their visas for the defect
was often not discovered for years after the issuance of the visa.
The Immigration and Nationality Act provision is of very broad
scope. It permits adjustment of status to be made although years
may have passed after the individual entered (Matter of 1?—,
supra). In view of the fact that it must have been the knowledge
of Congress that entries which occurred prior to the Immigration
and Nationality Act would come to the attention of administrative

authorities while the Immigration and Nationality Act was in
effect, it is difficult to believe that Congress intended to make provision to take care of those who entered after 1952, but would
exclude from the same relief those aliens who had even longer residence in the United States.
In the absence of an express provision limiting the relief under
section 211(c) and (d) to those who entered on and after the
effective date of the Immigration and Nationality Act, we believe
it is proper to find that Congress intended to grant the administrative authorities the power to take care of deserving cases of individuals issued visas to which, through no fault of their own, they
were not entitled whether they entered before or after the effective
date of the Immigration and Nationality Act of 1952. We, there+.It is to be noted that Matter of F—, A-0,371534, 5 I. & N. Dec. 525, does
not consider the effect of the 19:52 act.

132

fore, believe that it is proper to grant the respondent the relief
she requests.
Order : It is ordered that the order of the special inquiry officer
be and the same is hereby withdrawn.
It i4 further ordered that the appeal be suattlined end proceedings
be terminated and that the respondent be considered as having been
admitted for permanent residence as a quota immigrant under the
provisions of section 211(c) and (d) of the Immigration and
Nationality Act and that the proper charge be made to the quota.

133


MATTER

or L

R—

In DEPORTATION Proceedings

A-6881251
Decided by Board February 20, 1959

Violation—Finality of conviction—Commitment to California Youth
,Authority.
Alien found guilty by California court of narcotic violation and ordered committed to the California Youth Authority has been "convicted" within meaning of section 241(a) (11) of the 1952 act.
Narcotic

CHARGE -

Order : Act of 1952—Section 241(a) (11) IS II.S.C. 1251(a) UM—Narcotic
conviction: Possession of heroin, in violation of section 11500 of the
California Health and Safety Code.

BEFORE Itik, BOARD
Discussion: Respondent, a 20-year-old married male, a native and
national of Mexico, last entered the United States in 1948 when he
was admitted for permanent residence. On March 17, 1958, he was
convicted in the Superior Court at Los Angeles, California, for
possession of heroin in violation of section 11500, Health and Safety
Code of the State of California. The respondent was found guilty.
A probation report was ordered and the proceedings were continued.
On May 6, 1958, the respondent appeared for sentencing. Probation
was denied. Respondent was committed to the Youth Authority of
the State of California for the term prescribed by law and was
ordered held in the custody of the sheriff in the county jail subject
to any orders the Authority might issue.
The special inquiry officer found that respondent had been convicted of a narcotic violation and he ordered the respondent's deportation. Respondent appealed stating that he did not believe that
he was subject to deportation. On August 22, 1950, we remanded
the case to have the record show what disposition the Youth Authority had made of the respondent. The Acting Regional Commissioner,
Southwest Regional Office, filed this motion asking for reconsideration of our decision. His position is that whatever action the Youth
Authority will take can have no bearing on the alien's liability to
269

deportation since the only question to be resolved is whether the
respondent has been convicted of a narcotic violation and this fact
is already established by the record. At oral argument, the Service
representative pressed the same view. (We have now been supplied
with information that the respondent was transferred from the
county jail to a vocational institution at Tracy, California, and that
from there he has been transferred to the Director of Corrections
at Soledad, California.)
The issue is whether the respondent has been "convicted" as that
term is understood in the immigration laws. For deportation purposes, a conviction exists where the following elements are all present: (1) there has been a judicial finding of guilt, (2) the court
takes action which removes the case from the category of those
which are (actually, or in theory) pending for consideration by the
court—the court orders the defendant fined, or incarcerated or the
court suspends sentence, or the court suspends the imposition of sentence, (3) the action of the court is considered a conviction by the
State for at least some purpose (Hatter of 0 , 7 I. Sc N. Dec.
539; Matter of .1

, 7 I. Sr N. Doc. 530; Matter of D

, Int. Doe.

No. 965). 1
How does the action of the court here meet the tests? The record
reveals that there has been a judicial declaration of guilt. This
judicial finding of guilt was followed by an order committing respondent. The court has acted and there is nothing left for the
court to do. After the order of commitment was entered the court,
without more, had no jurisdiction over the respondent (People v.
Rick, 112 C.A. 2d 410, 246 P. 2d 691). The action of the court is as
final as if the court had given respondent a suspended sentence, or
had suspended the imposition of sentence, or had placed respondent
on probation rather than ordering him confined (see Arrellano-Flores
v. Hoy, 262 F.2d 667, C.C.A. 9, 1958). The last test, which required
that the State consider the proceeding as one resulting in a conviction, is also satisfied here. The law provides that a person who has
been "convicted of a public offense" can be committed to the Youth
Authority (section 1731.5, Welfare and Institutions Code; see also
section 1771); and the courts of the State in speaking of a person
committed to the Youth Authority in a proceeding such as this, consider him as having been "convicted of crime." A commitment to
the Youth Authority is a judicial determination of the fact of defendant's conviction and pronouncement of sentence for the offense
lit is to be noted that we are not concerned with whether an alien has
been sentenced to confinement for a year or more, but merely with whether
he has been convicted. There is no requirement in the Immigration laws that
conviction of a narcotic violation be followed by a particular type of punishment, in order to make the alien deportable.

270

(see, People v. Lockwood, 146 C.A. 2d 189, 303 P. 2d 621; In re
Herrera, 23 C. 2d 206, 113 P. 2d 345; People v. Rick, 112 C.A. 2d
410, 246 P. 2d 691). The court took the action which is normally
taken to inflict some obligation upon a convicted person. This action
meets all the tests we have set forth. A conviction exists for immigration purposes. We shall, therefore, withdraw our order of August
22, 1958, and dismiss the appeal.
Order: It is ordered that the Board's order of August 22, 1958,
be and the same is hereby withdrawn.
It Is fstrth.ss. tyrtissmi that. the appeal he and the same is hereby

dismissed.

271


Interim Decision 44434

MATTER OF KRAUS PERIODICALS, INC.
In Visa Petition Proceedings
NYC-N-16048

Decided by Regional Commissioner November SO, 1964
Petition, by a Jobber of periodicals of scientific and scholarly nature in various
languages, to accord beneficiary classification under section 101(a) (15) (H)
Immigration and Nationality' Act, as an industrial trainee for a sixmonth period during which he will receive a salary of $100 per week, is
denied dace the petition fails to set forth a training program, the specific
position, duties, or skills in which beneficiary is to be trained, and the
substantial salary beneficiary will receive suggests that productive employzuent, which may displace a United States citizen, will be involved.

. This matter comes before the Regional Commissioner as an appeal
from the decision of the District Director denying the petitioner's
request for classification of the beneficiary as a nonimmigrant trainee
under section 101(a) (15) (H) (iii) of the Immigration and Nationality Act. The petitioner, a jobber of • periodicals of scientific and
scholarly nature in various languages, desires fn stertoril the beneficiary training for a period of six months and .will pag him a salary of

$100 per week plus time and one half for overtime.
Title 8 of the Code of Federal RegulaSection 214.2(h) (2)
tions, provides that such trainee status cannot be granted unless the
required petition is accompanied by a statement describing the type
of training to be given and the position or duties for which the benefi-ary is to be trained. It further provides that such trainee may
not engage in productive employment if such employment will displace a United States resident.
It is believed that this petition, even when supplemented by the
brief submitted on appeal, fails to meet the requirement set forth
above. No training program is set forth; the specific drills in which
the beneficiary is to be trained are not described; the specific position
or duties which the beneficiary will perform upon conclusion of the
63

Interim Decision #1484
program is not designated; and the substantial salary which he will
receive suggests that productive employment, -which May displace a
United States citizen, will be involved. It is concluded that the beneficiary is not properly classifiable as a nonimmigrant trainee and the
appeal will therefore be dismissed.
It is ordered that the appeal be and the same is hereby dismissed.

64


Interim Decidoii #2447

MATTER OF DE PADOVA

In Visa Petition Proceedings
A- 14931293

Decided by Board August 11, 1975
Notwithstanding evidence indicating that petitioner was not a resident of the State of
Georgia for more than 6 months priok to the filing in that State of her petition for divorce
dissolving her prior marriage, as required for divorce jurisdiction under section 30-107
of the Georgia Code Annotated, since the Georgia divorce decree dissolving her prior
marriage is immune to attack by the parties or strangers both in Georgia and in
Missachusetts, the place of petitioner's subsequent marriage to the beneficiary, the
divorce decree is recognized for visa petition purposes and the petitioner's subsequent
marriage is valid to confer immediate relative status on beneficiary as her spouse under
section 201(b) of the Immigration and Nationality Act, as amended. Accordingly,

petitioner's appeal of the revocation of approval of her visa petition is sustained, and
approval of the visa petition is reinstated.
ON BEHALF OF PETITIONER

J. Pettoruto, Esquire
316 Essex Street
-Lawrence, Massachusetts 01840
Marco

The United. States citizen petitioner applied for immediate relative
status for the beneficiary as her spouse under section 201(b) of the
Immigration and Nationality Act. That petition was initially approved
on June 9, 1971. Thereafter, the district director informed the petitioner
by letter, dated January 29, 1974, of his intention to revoke approval of
the visa petition. In a decision dated March 28, 1974, the district director revoked approval of the visa petition. The petitioner has appealed
from that decision. The appeal will be sustained, and approval of the
visa petition will be reinstated.
The beneficiary is a native and a citizen of Italy. He and the petitioner
were married in Lawrence, Massachusetts on July 11, 1970. The petitioner had been married previously. As proof of the termination of that
prior marriage, she presented a decree of divorce from the Superior
Court of Richmond County, Georgia, dated May 19, 1970.
The Service claims that the petitioner's divorce is invalid because the
Georgia court lacked jurisdiction. Consequently, the Service claims that
the petitioner's marriage to the beneficiary is bigamous and therefore
invalid.
502

Interim Decision #2447
The petitioner was the plaintiff in the Georgia divorce action. Her
complaint stated that she was a resident of Richmond County, Georgia,
for more than six months prior to the filing of the petition for. divorce,
and that the defendant was a nonresident of Georgia. Six months is the
residency period required for divorce jurisdiction under section 30-107
of the Georgia Code Annotated.
The record of divorce proceedings contains an "acknowledgement of
service" signed by the petitioner's husband in which he acknowledged
service of process, waived further service of process, entered a general
appearance before the Georgia court, and agreed that the testimony of
the petitioner could be taken before a notary public and used in the trial.
The petitioner's testimony was taken before a notary public in
Richmond County, Georgia on April 13, 1970, at which time the petitioner once again stated that she had been a: resident of Richmond
County, Georgia for more than six months preceding the filing of the
petition for divorce. A final decree of divorce was rendered on May 19,
1970. That decree recited that the court had jurisdiction over the parties.
An investigation undertaken by the Service disclosed evidence which
indicated: (1) that the petitioner was not a resident of Richmond
County, Georgia for the period alleged in her complaint for divorce, and
(2) that the petitioner resided and was employed in Lawrence, Massachusetts during the time in question. In a statement before an immigration inspector on December 12, 1972, the petitioner stated that she
went to Augusta, Georgia on April 13, 1970, appeared in court, and
returned to Lawrence, Massachusetts the same day. She then refused,
to answer further questions without the presence of her attorney. When
questioned in the presence of her attorney on December 13, 1972, 'the
petitioner refused to answer any question regarding her Georgia divorce.
The validity of a marriage generally is determined according to the
law of the place of celebration. Matter of Gam,ero, 14 I. &, N. Dec. 674
(BIA 1974); Matter of Levine, 13 I. & N. Dec. 244 (BIA 1969); Matter of
P— , 4 I. & N. Dec. 610 (BIA; A.G. 1952). Thus, the validity of the

petitioner's present marriage to the beneficiary depends upon whether
Massachusetts would recognize the Georgia divorce decree purportedly
terminating the petitioner's prior marriage.
In the recent cases of Lorant v. Lorant,

, 318
Mass
N.E.2d 830 (1974), the Supreme Judicial Court of Massachusetts was
faced with a situation very similiar. to the one presently before us. In
Lorant, the plaintiff husband went to Georgia and through counsel filed
a petition for divorce in the Superior Court of Richmond County, alleging that he had resided in that county for the requisite period, and that
his wife had treated him abusively. In an "acknowledgment of service,"
503

Interim Decision #2447
his wife entered an appearance, denied the grounds alleged for divorce,
acknowledged the jurisdiction of the court over both the parties and the
subject matter, and agreed to certain procedural arrangements. A final
decree of divorce was entered by the Georgia court and the time for
appeal elapsed.
Thereafter, the husband attacked 'the validity of the Georgia divorce
in Massachusetts on the ground that the Georgia court was without
jurisdiction. He alleged that he had not resided in Georgia for the
required six-month period nor had he been domiciled in Georgia, and he
also alleged that he and his wife had colluded to fraudulently confer

jurisdiction upon the Georgia court.
The Massachusetts court ruled that since a collateral attack on. the
Georgia divorce was foreclosed under Georgia law,' such attack was also
foreclosed in Massachusetts under the rule set forth by the United
States Supreme Court in Sherrer v. Sherrer, 334 U.S. 343 (1948), and
Coe v. Coe, 334 U.S. 378 (1948). The court further stated:
With the Sherrer rule controlling, it adds nothing for the husband to charge that the
parties "colluded" or acted "fraudulently" in using the Georgia court to procure the
divorce. (Citaton omitted.] So the Georgia decree must be considered valid, as the
judge below held_ _ 2

Pursuant to the ruling in Lorant, the present divorce decree is immune to attack by the parties in Massachusetts. See also Johnson v.
Muelberger, 340 U.S. 681 (1951). Georgia would not permit strangers to

collaterally attack the divorce decree for lack of jurisdiction. Kicklighter
v. Kieklighter, 217 Ca. 54, 121 S.E.2d 122 (1961); Thomas v. Lambert,
187 Ga. 616, 1 S.E.2d 443 (1939). Accordingly, such an attack would also
be foreclosed in Massachusetts.
Since the Georgia divorce decree is immune to attack by the parties or
strangers in both Georgia and Massachusetts, we believe it should be
given recognition in these proceedings.
The District Director's decision was incorrect. The appeal will be
sustained, and approval of the visa petition will be reinstated.
ORDER: The appeal is sustained, and approval of the visa petition is
reinstated.

Citing Schulz: v. Schulze, 149 Ga. 532,101 S.E. 183 (1919); Thomas v. Lambert, 187
Ga. 616,1 S.E.2d 443 (1939); Kicklighter v. Kicklighter, 217 Ga. 54,121 S.E.2d 122 (1961);
Dixon, Mitchell •:6 Co. v. Baxter & Co., 106 Ga. 180, 32 S.E. 24(1898); Hood v. Hood, 143
Ga. 616, 85 S.E. 849 (1915); McLeod 144 Ga. 359, 87 S.E. 286 (1915); sections 110-701 and
110 702 of the Coerght Code Annotated.
2 318 N.E.2d at 833.
-

504


Interim Decision #2759

MATTER OF INSURANCE COMPANY OF NORTH AMERICA

In Bond Breach Proceedings
A-19996128
Decided by Acting Regional Commissioner January 19, 1978
(1) An immigration bond is a contract solely between the Service and the obligor. The
obligor or his attorney-in-fact is the proper party to appeal the Service decision to
breach the bond, not the real party in interest or guarantor of the bond. This appeal,
made by the guarantor of the bond, will be considered by the Regional Commissioner
pursuant to the certification provisions of 8 C.F.R. 103.4.
(2) The alien first entered the country August 23, 1971, as a nonimmigrant visitor for
pleasure. She subsequently applied to change her nonimmigrant status to that of
student and the application was granted June 28, 1972, after she had posted a
maintenance of status and departure bond pursuant to 8 C.P.R. 103.6. She received
extensions of stay allowing her to remain until January 15, 1976, as a student. She
failed to obtain a further extension of stay subsequent to that date and did not depart
the United States. She thus violated the terms and conditions of the bond as specified
under 3 C.F.R. 103.6(c)(2) and the District Director's decision to breach the bond was
correct.
ON BEHALF OF OBLIGOR: Pro se

This case comes before the Regional Commissioner on appeal from
the decision of the District Director who determined that the conditions of the $2,000 bond by the obligor were substantially violated
when the obligor failed to establish that the alien had departed the
United States within the period she had been authorized to remain.
The obligor was served notice on September 22, 1977, that the bond had
been breached on January 16, 1976, for the reasons stated above.
The record establishes that although the appeal was timely filed, it
was signed and submitted by the real party of interest or guarantor of
the bond, not the obligor or his attorney-in-fact. Inasmuch as the bond
is a contract solely between the Service and the obligor, the appeal filed
by the guarantor cannot be found to be properly before the Regional
Commissioner. However, in order that due process is best served, the
Regional Commissioner will nut summarily dismiss the appeal but
instead consider the case as having been certified to him pursuant to 8
C.F.R. 103.4 and will render a decision based on the record before him.
251

Interim Decision #2759
The real party of interest or guarantor has requested oral argument.
However, for the same reasons stated above, his request cannot be
granted.
The record shows that the alien is a 26-year-old single female, native
and citizen of Ethiopia. She was last admitted to the United States on
August 23, 1971, as a nonimmigrant visitor for pleasure. On January 6,
1972, she filed an application for change of nonimmigrant status from
visitor to student. On Apri117, 1972, the application was denied for the

reason she had not established she was in possession of sufficient funds
in her own right to maintain herself while in student status or that
other satisfactory arrangements had been made to provide the necessary funds. She was not able to post a $2,000 bond to guarantee her
maintenance of student status and departure on completion of her
studies or that she would not become a public charge. On the same
date, she was given until June 20, 1972, to depart the United States
voluntarily in lieu of deportation proceedings.
On June 6, 1972, the instant bond for $2,000 was posted by the
obligor. On June 28, 1972, the denial of the application for change of

status was reconsidered and granted, with the alien's temporary stay
were filed by the alien. These applications were granted. The last
extension of temporary stay was authorized through January 15, 1976.
There is no evidence in the record that establishes that the alien
departed the United States prior to that date or filed for and was
granted an extension of her temporary stay as a student beyond that
date.
The guarantor of the bond, in his statement on appeal, argues that
the District Director provided no facts that the alien had become a
public charge or had failed to depart the United States; that he had
reason to believe she was contemplating filing for permanent resident
status as she considers herself a political refugee because of the recent
changes in the Ethiopian Government.
The maintenance of status and departure conditions of the bond are

the only conditions at issue in this case. The bond was breached solely
on the grounds that the alien did not obtain further extension of her
temporary stay as a student and did not depart the United States when

her last authorized extension of temporary stay expired.
The terms and conditions of the maintenance of status and departure bond of $2,000 executed by and signed by the obligor are stated as
follows:
In consideration of the granting of the application of the above alien for permission to
enter or remain temporarily in the United States as a nonimmigrant under section
101(a)(15) of the Immigration and Nationality Act, provided there is furnished a
suitable bond, the obligor hereby furnishes such bond with the following conditions: If
said alien is admitted to the United States for a temporary period as a nonimmigrant,

252

Interim Decision #2759
or is granted an extension of temporary admission, or is granted a change in nonimmigrant classification, and if said alien shall comply with all the conditions of each
specific nonimmigrant status which he is accorded while classified in such status,
including the condition that unauthorized employment shall not be accepted, and
actually depart from the United States without expense thereto on or before the date
to which admitted or extended or such subsequent date as may be authorized in
extension of his lawful temporary stay beyond such date, without notice to the obligor,
then this obligation shall be void; otherwise it shall become due and payable immediately in the sum of $2,000 for each alien as to whom there shall have been a failure to
comply with any of the foregoing conditions, provided further, that no adjustment of
the immigration status of said alien shall be construed to impair or diminish this
obligation.
8 C.F.R. 103.6(0(2) as it relates to maintenance of status and departure

bonds in pertinent part, states:

lawful temporary status means that there must not have been a violation
of any of the conditions of the alien's nonimmigrant classification by acceptance of
unauthorized employment or otherwise during the time he has been accorded such
classification, and that from the date of admission to the date of departure or
adjustment of status he must have had uninterrupted. (Emphasis supplied.) Service
approval of his presence in the United States in the form of regular extensions of stay
or dates set by which departure is to occur, or a combination of both.
... the term

8 C.F.R. 103.6(c)(3) states substantial performance of all conditions
imposed by the terms of the bond shall release the obligor from
liability.
In the instant case, it is clear that there has not been substantial
compliance with all the terms or conditions of the bond. By the alien's
failure to obtain an extension of her temporary stay as a student
beyond the January 15, 1976, date, her lawful temporary stay as
specified in 8 C.F.R. 103.6(c)(2), terminated and she did not depart the
United States.
The entire record has been carefully considered. It is concluded that
substantial compliance of the bond did not occur in as much as the
alien failed to maintain her lawful temporary status as a nonimmigrant student nor did she depart the United States. Therefore, by
such failure the terms and conditions of the bond were violated and the
obligor incurred the liability. The District Director properly breached
the bond. His decision, having been certified, will be affirmed.
ORDER: The decision of the District Director is affirmed.

253


Interim Decision *1945

MATTER OF TALANOA*

In Deportation Proceedings
• A-13550300
Decided by Board March 11, 1969
(1)

Respondent's motion for reconsideration of the denial of 'hie section 245

adjustment of status application contending that a supervening event,
namely, the amendment of section 212(a) (14) of the Immigration and Nationality Act by the Act of October 3, 1965 to require a labor certification,
should not bar his adjustment at an earlier date (May 1985) when a visa

was available, is denied since the case has been before the court on judicial review, the issue could have been raised at that time, and, under principles of roe judicata, the judicial judgment is conclusive not only as to all
issues actually litigated but also as to all issues which could have been

raised.
(2) Respondent's section 245 application cannot be adjudicated nunc pro
tune as of a time (May 1965) when a viseovas available and a labor certification was not required, since the Attorney General does not have statutory authority to act retroactively on a section 245 application nor to
waive a visa and labor certification requirement.

CHARGE!
Order: Act of 1952—Section 241 (a) (9) [8 U.S.C. 1251 (a) (9)3—Nonimmlgrant—failed to comply with conditions of status.
ON DECAMP or Raeromarrr:
ON Betrar.r or Stamm
Donald L. Ungar, Esquire
Irving A. Appleman
517 Washington Street
Appellate Trial Attorney
(Response submitted)
San Francisco, Calif. 94111
(Brief filed)

These proceedings are before us at this time upon motion by
the respondent for reconsideration of our decision rendered on
August 11, 1967 in which we dismissed his appeal from an order
of the special inquiry officer denying his application for adjustment of status td that of a permanent resident under section 245
of the Immigration and Nationality Act.
The respondent entered the country at the age of 37, on Janu* Affirmed, 427 F.2d 1143 (1970).

161

Interim Decision #1945
ary 15, 1963, being then admitted as a nonimmigrant student. He
never did attend school but was able shortly after entry to obtain
Permission from the Immigration and Naturalization Service to
accept temporary employment, upon condition that he depart the
country by March 6, 1964. The respondent never did leave and it
is further noted that at the time he entered the country or
shortly thereafter his wife and seven minor children also entered.
On February 24, 1964, a deportation hearing was held and the

special inquiry officer found that respondent was deportable as
charged but granted his application for the privilege of voluntary
departure. At that time an application filed by respondent for adjustment of status under section 245 was denied. The respondent
concedes that he is deportable as charged and thus the question of
his deportability is not before us at this time.
The respondent is a 42-year-old male alien, a native and citizen
of Tonga. A chronological statement of his dealings with the
Service is set forth in accurate detail in our last decision in this
case, dated August 11, 1967, which has been designated as Interim Decision No. 1770. Also, the background of this case is set
forth in great detail in Taktraort v_ INS., 397 F.2d 196, decided
on June 21, 1968 by the United States Court of Appeals for the
Ninth Circuit. It is thus not necessary for us in this opinion to
restate the events which transpired since respondent's entry on
January 15, 1963.
Counsel's principal contention in the instant motion is that, although he admits that the respondent has not obtained a labor
certification and also admits that a visa number is not currently
available to the respondent, this Board possesses discretionary
powers to the extent of waiving this labor certification requirement and deciding the cause nunc pro tunc as of May, 1965 when
a visa was available to this respondent and a labor certification
was not required.
The factual situation is that the respondent filed an application
for adjustment of status under section 245 in March 1965. In early
May 1965, the Immigration and Naturalization Service requested
from the Department of State that a visa number be made avail-

able, which it was. Then on May. 10, 1965, the Service returned
the several numbers that they had received to the State Department because there were no Tonga cases currently processed to
the point of approval. The following month, in June 1966, a reopened hearing was held, and the decision of the special inquiry
officer in this case was rendered on January 13, 1966. That decision held that because of the Act of October 2, 1965 (Pl.

162

Interim Decision #1945
89-236), effective December 1, 1965, it was necessary for the respondent to obtain a labor certification, which he did not have;
and, also, that there was no nonpreference visa available at that

time. Counsel contends that the respondent was unfairly treated
and prejudiced by the fact that his application for a section 245
adjustment of status was not processed in May 1965, when a nonpreference visa was available to him and at which time he did not
need a labor certification.
Early in 1968 the respondent filed a petition with the United
States Court of Appeals for the Ninth Circuit to review the final
order denying his application for status as a permanent resident.
In the decision above cited the court affirmed this Board's holding
that the Service was not estopped from applying the current Immigration and Nationality Act provisions requiring an employment certification in the case of an alien who is seeking status as
a permanent resident, even though the Service had failed to conduct a hearing at the time when a visa was available to him; and

that the Service had not led the alien to any course of action
which he would not otherwise have taken or led him to change his
situation in any way to his detriment. The court's decision clearly
points out that the Service was not remiss or dilatory and did not
act improperly; and that the respondent's rights were not prejudiced. That decision disposes conclusively of the question of
whether the Service was estopped in any manner because of any
delay or improper action. On principles of res judicata, that issue
is no longer open to reexamination.

Counsel urges, however, that even in the absence of fault on
the part of the Service, it should be required to apply the law in
effect in May, 1965, when a visa was available. He argues that his

client should not be prejudiced by a supervening event (enactment of the Act of October 3, 1965, P.L. 89-236), which was
wholly unanticipated. By analogy, he calls attention to the case of
Memo v. INS (2 Cir., 1968), discussed below; in which a supervening event (death of the visa petitioner) was held not to bar
relief. Even if the analogy were valid, however, this is an issue
which could have been raised and adjudicated in respondent's
prior action for judicial review, Taknoa, v. INS, 397 F.2d 196 (9
Cir., 1968). Under familiar principles of res judicata, that judgment is conslusive not only as to all issues actually litigated but
also as to all issues which could have been raised.
The next point raised by counsel is that the Attorney General
has some type of discretionary power that would enable him to
adjudicate this application under section 245 nuns pro tune as of

168

Interim Decision #1945
the time when a visa was available and a labor certification not
required, namely, in early May 1965. The Attorney General possesses no such power. Great reliance is placed by counsel on the
case of Pierno v. INS, 397 F.2d 949 (2 Cir., 1968). There, the approval of a nonquota visa petition, filed by the United States citizen wife of an alien, was revoked by the Attorney General solely
because the United States citizen spouse died prior to the issuance of the visa. In that case there had been a delay between the
approval of the visa petition and the issuance of the visa because
of an annulment suit that had been filed concerning the marriage
in question, which suit was later found groundless and was so
dismissed. The Court of Appeals sent the proceedings back to the
Service for redetermination in light of all the evidence, holding
that it should not have just automatically revoked the visa upon
the death of the citizen spouse. The court pointed out that the Attorney General's power to revoke under the statute is discretionary. In the instant case there is no statutory authority giving the
Attorney General the power to waive a visa and labor certification requirement.
In a rather similar case, Stelias v. Esperdy, 388 U.S. 462
(1967), a United States citizen wife withdrew her petition for a
visa for her husband after the petition had been approved and
the Attorney General then revoked the visa petition. The United
States Supreme Court remanded the case for return to the Immigration and Naturalization Service for further administrative
proceedings. There, again, the Attorney General did have the

statutory authority as a matter of discretion either to revoke or
not to revoke a visa under the circumstances. But in the instant
case, we repeat, the Attorney General does not have any discretionary power to waive a visa requirement.
Counsel cities instances where the Attorney General has the
right to grant nunc pro tune waivers of excludability, and argues
that this discretionary power should be carried over to the question of • adjudging a section 245 adjustment of status nunc pro
tune. Counsel admits that the Attorney General does not have any
specific authority to do this, however (Oral Argument, p. 2). The
fact that the Attorney General can act retroactively under statutory authority in certain areas does not give him the power to do
so in the instant case. Counsel's argument that the Attorney General has the obligation to act in a fair and equitable manner is a
truism; but this does not enable him to act outside the scope of
his statutory powers, .even though such action might alleviate a
hardship or prevent an unfair result. The Attorney General can164

Interim Decision #1945
not waive the statutory visa requirement just because a hardship
can be found.
After a most careful study of the entire proceedings, we do not
find any factors present which would warrant our certifying the
case to the Attorney General for further review, as counsel has
requested. His request will therefore be denied.
Accordingly, for the above-stated reasons, the respondent's motion for reconsideration will be denied.
ORDER: It is ordered that the motion for reconsideration be
and the same is hereby denied.

165


MATTER OF L
In DEPORTATION Proceedings
A-10635395
Decided by Board February 19, 1959
Evidence—Blood-grouping tests—Exclusion of parentage through Rh system.
As with the A-B-O and M-N systems, the same conclusive effect is given Rh
blood-grouping tests which exclude paternity when the test results are consistent and uncontroverted and the interpretation is made by a recognized
authority.

CHARGE :
Order : Act of 1952—Section 2-11(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at time of entry—No immigrant visa.
BEFORE THE HOARD

Discussion: Respondent is a native of China, 29 years of age, who
was admitted to the United States on April 21, 1956, as the United
States citizen son of L Y W , a citizen of the United
States. Following his admission he filed an application for a certificate of citizenship. The special inquiry officer found, following a
hearing, that recently - dovelop,1 evidence, e:Aablilhea that the respond
ent is an alien, a native and citizen of China, that he was not entitled
to enter the United States as a citizen and is, therefore, deportable on
the charge contained in the order to show cause. Respondent appeals to this Board from the order of deportation.
Following his application for a certificate of citizenship, and at
the request of the Immigration and Naturalization Service, respondent and his alleged parents were asked to cooperate in the performance of blood-grouping tests. On September 28, 1956, accompanied
by an immigrant inspector, they went to the Western Laboratories
in San Francisco, California, where blood Samples were taken fur
the purpose of establishing the groups, types and factors in the
blood of respondent and his alleged parents. These tests are designed
to establish the possibility or impossibility of the claimed parentage
or relationhip between respondent and the alleged parents. The
pathologist who supervised the tests was Dr. Leonard Ortega, who
later testified as to his own qualifications, described the techniques
259

used in his laboratory, and the meaning of the test results and of
the forms filled out and signed by him, part of exhibit 2.
On July 8, 1057, respondent and his alleged parents again cooperated in the performance of blood tests at the Latham Square Laboratories in Oakland, California, accompanied by Mr. H K
their attorney. Dr. Paul Steiner later testified as to his own qualifications as a pathologist. He was not questioned by anyone regarding the methods used in his laboratory or the circumstances under
which the tests wore made. Ho wax not naked whether he performed

these tests or supervised their performance.
The results of the tests performed at both laboratories are identical. It was conceded by the examining officer and by counsel for the
respondent that the interpretation of the test results is the primary
issue in this case. The special inquiry officer stated to the attorney
that it was his understanding that the Government contends that
respondent is not the son of the alleged parents, and that counsel
contends that he is the son of the alleged parents, anti "that is the
issue." Both counsel and the examining officer agreed to that statement, of the case. The special inquiry officer stated further, "Then
as I understand it there is no issue as to the accuracy or the methods
used in the blood-grouping tests?" Counsel and the examining officer agreed there was no such issue.
We have had several eases wherein the testers for varying reasons
had arrived at different results, but this is the first blood-grouping
case to our knowledge wherein the test results are the same, but the
testimony of two pathologists is conflicting as to the meaning of
the tests. The findings of the two laboratories are reported in different forms, even though they purport to state the same test rhsults.
It is our opinion that the table appearing in Dr. Weiner's letter is
most easily comprehended by nonmedical persons. (Dr. Alexander
Weiner was chosen by both parties as arbiter, as we shall relate.)
He states:
The findings of the two doctors may be summarized as in the table
below:
Blood ofY—w—L—(putative father).
(putative mother)
J

Group

M-N type

0
A

MN
MN

Rh-Tir type
ROSS
RhIRbl

A

e3yon.ac.t)

Dr. Ortega testified that following his graduation from medical
school he had extensive training and experience in the field of pathology, that he supervised laboratories and blood banks in Texas and
California, that he is at present an instructor of pathology at the
University of California School of Medicine, that he has performed
hundreds of blood typings for the purposes of transfusions, for the
260

identification of blood stains in criminal proceedings, and for one,
to two hundred cases involving disputed paternity. He was asked
who in his opinion were the outstanding authorities in the field of
blood grouping and testing, and he named Dr. Alexander Weiner
of New York, Dr. Race in England and Dr. Philip Levine in New
Jersey. He testified that an exclusion of paternity may be demonstrated as the result of tests concerning any one of the three blood
systems used for this purpose in routine medicolegal use. He stated
that the first tests used in paternity cases concern the A-B-O system,
next the M-N system, and last the Rh-Hr system, and that all the
tests used demonstrate results which Lure firm barer in genetic law.
He testified that the tests made in the instant case were actually performed four times in his laboratory, twice by each of two different
technicians. The tooth wore repeated beenvme they discovered there
was an exclusion of parentage. He testified that the test results
establish that respondent cannot be the child of the alleged father
and mother, and that the exclusion of paternity was not discoverable
through the A-B-O or the M-N tests but is established by the Rh-Hr
tests.
Dr. Ortega testified that respondent, the alleged son, has in his
blood the factor rh', and that both parents "are negative for this
factor." He stated, "For this factor to appear in a child it has to be
present in one or both parents. It is simply a matter of heredity
that the child cannot have something that neither parent has" He
was asked, "Doctor, is it your opinion that this is a conclusive finding?" He answered, "In my opinion, yes, it is a conclusive finding."
On cross-examination Dr. Ortega's testimony reads as follows:
Q. And if I were to tell you, Doctor, that I had a statement in writing by
a pathologist who presumably is well qualified to the effect that he is not
prepared to say that paternity is excluded in this case on the basis of the Ith
factor, what comment would you navel
A. My comment would be that this pathologist is certainly at variance with
practically every other serologist in the world.

Counsel called Dr. Paul Steiner, who testified to his medical school,
graduate school, and special training in pathology. He testified that
he is assistant pathologist and consultant pathologist to a number
of laboratories and institutions in the San Francisco area, including
the Veterans Administration and Mare Island Naval Hospital. He
was asked to name the outstanding experts in the field of blood
grouping, and he named the same three experts named by Dr. Ortega :
Dr. Alexander Weiner, Dr. Race (whom lie referred to as RaceSanger, apparently a team) in England, and Dr. Philip Levine.
Dr. Ortega and Dr. Steiner testified separately, not in the presence
of one another, and approximately two weeks apart. Dr. Steiner
referred briefly to the A-B-O and H-N systems and then discussed
at length the Rh system and the differences in nomenclature with
261

regard to that system, describing the C, D, E, c, d, e designations
developed by the British doctors Race and Sanger, and the Rh-hr
symbols, developed by Dr. Weiner in this country. Dr. Steiner prefers to use the designations C, D, E, e, d and e for purposes of simplicity, rather than the Rh-hr designations. The subject of bloodgroup nomenclature is discussed in the "Supplementary Report of
the Committee on Medicolegal Problems, American Medical Association," reprinted from the Journal of the American Medical A SSOe-i,etton, August 31, 1917, vol. 101., pp. 2030-2014. It is a controversy

with which we need not concern ourselves here.
Dr. Steiner testified that exclusion of paternity based on what he
terms the big
factor (oh") alone is ton ciontroversial to be fair.
He considers it to be "a matter of doubt." It is his belief that the
"big E factor" may consist of several factors, and that not enough
is known about it at this time to justify basing an exclusion of paternity on that test. He quoted from several publications he believes
support his view. He read from the American Journal of Human
Genetics, December 1952, an article by Dr. Weiner, whom he quotes
as saying, "The existence of individuals with the red cells lacking
both factors Rh" and He has an important implication for the
medical-legal application of these tests in cases of disputed parentage, and this could lead to erroneous csvolusiono of parentage." It
seems to us that this statement is not pertinent to the instant case.
These persons are not lacking both Rh" and He; the respondent's
blood has in it the factor Rh" and, judging from Dr. Steiner's own
test reports, he found the reaction to the anti-e (hr") serum to be
"positive as to all three parties." The tests done by Dr. Ortega did
not include the "e" (hr") test which is not recommended by the
American Medical Association Committee.
Dr. Steiner continued his testimony by reading from the Supplementary Report of the Committee on Medicolegal Problems, American Medical Association, referred to above. The Committee consisted
of Dr. Weiner, Chairman, and three other persons. Assuming the
record we have to be correct, Dr. Steiner did not read the report
accurately. The record we have quotes him as follows:
* • * and finally the Journal of the American Medical Association of August 31, 1957 in a report of the Committee on Medical-Legal Problems in an
article Medical Logal Applications of aloud arollpinp: Tools. save here. With
regard to the Rh system and particularly to the Rh" factor obviously the
medical-legal application of such factors is premature. Indeed because the
lack of availability of adequate amounts of suitable anti-serums and the limited knowledge due to the small number of investigations carried out to date
the routine use in medical-legal work of the Factors Rh" is inadvisable.'
(Emphasis added.)

The report Dr. Steiner quotes from was not placed in evidence.
The special inquiry officer should have requested that it be made
262

part of the record. However, the report is available to us and it is
clear that Dr. Steiner misread the paragraph quoted, and taken out
of context the meaning is changed. The quoted paragraph, in tote,
read an follows:
Recent work has revealed the existence of still other factors belonging to
the Rh-Hr system, notably, factor V, often found associated with the genes r
and R., especially in Negroes. In addition, a series of new Rh factors has
been discovered that, with rare exceptions, occur in association with the factor
Rho (similar to the association of factor rhw with rh') and that have tentatively been designated as IthA, Rh; and so forth. Obviously, the medicolegal
oppnestion of spot) factors is premature. Indeed. because of the lack of availability of adequate amounts of suitable anti-serums and the limited knowledge
due to the small number of investigations carried out to date, the routine use
in medicolegal work of factors rh., hr", and hr is inadvisable. This Committoo recoassueudg, theref ore, shot for rnntine medicolegal work. for the present.
the Rh-Hr test be limited to the factors Rh o, rh', rh", and he. (Emphasis
added.)

The Committee report had already discussed the fact that there
are at the present time four principal Rh blood factors and three
principal Hr factors recognized. It states, "However, anti-serums
for only four of these seven factors are readily available for routine
clinical and medicolegal work, namely, anti-Rh o, anti-rh', anti-rh",
and anti-hi." The report discusses many rh and hr factors, some
of them rarely encountered, and clearly is discussing these, factors
in the paragraph road by Dr. Steiner (quoted above) when they
recommend that the tests for the rare and newly-discovered factors
not be used in routine medicolegal work. The Committee again says,
"As has already been pointed out, in medicolegal cases the paternity
blood tests are generally limited to the factors Rh., rh', rh" and hr'.
Actually many more Rh-Hr factors have been found."
Dr. Steiner again quoted from the Summary and Conclusions of
the Committee (Supplementary Report), "It is recommended that
routine medicolegal applications of blood grouping be restricted at
present to tests for the four blood groups, 0, A, B, and AB of the
A-B-O system; the three types M, N, and MN of the M-N-S- system;
and factors Rh., rh', rh", and hr' of the Rh-Hr system." Dr.
Steiner's comment on this recommendation is, "Now here they omit
expressly the factor hr" which is the one present in the two parents."
This seems to us to be a non sequitur, since the exclusion of paternity
in this case is not based upon the presence of the factor hr" in the
two parents, found by Dr. Steiner's tests. This is one of the factors
for which the Committee of the American Medical Association
recommends routine tests not be made. The exclusion here is based
upon the fact that the element rh" is present in respondent's blood
and is not present in the blood of the alleged parents.
It is not necessary for us to attempt to resolve the conflict between
the conclusions of Dr. Steiner and Dr. Ortega. When it became
263

apparent to the special inquiry officer, counsel, and the examining
officer that the two doctors had conflicting opinions, the examining
officer asked Dr. Steiner if he felt that. Dr. Weiner is the outstanding authority in this field in this country, and if Dr. Steiner would
accept Dr. Weiner's word as final in this case if the tests were submitted to him for decision. Dr. Steiner answered, "Yes I do, not
the only one but one of the outstanding authorities. Dr. Philip
Levine is probably equally qualified, but he is not as flamboyant as
Dr. -Weiner is * * *." The examining officer then moved that the

testimony of the two witnesses and the two sets of tests be submitted
to Dr. Weiner for a final opinion. Counsel stated that he had no
objection to that and stipulated that lie was willing to be bound by
the results of Dr. Weiner's opinion. The examining officer also so
stipulated.
Dr. Weiner's letter addressed to the Immigration and Naturalization Service at New York, July 16, 1958, signed and notarized, is
exhibit 3 in the record. Dr. Weiner's table summarizing the results
of the blood-grouping tests herein has been set forth above, and will
not be repeated here. The rest of Dr. Weiner's certifacatiuu reads as

follows:
Mr. E— also— showed me the records of the above-named case including the report of Dr. L. R. Ortoge of the Western Laboratories in flohlond,
California, the report of Dr. Paul S. Steiner of the Latham Square Laboratories of Oakland, California, and the testimony of Dr. L. K. Ortega and Dr.
P. Steiner, all of which I have read, There appears to be no dispute about
the results of the blood tests themselves, but only regarding the interpretation
of the findings. While it is against my principles to offer an opinion based
on tests which I have not done myself, in the present ease, according to the
testimony, the tests were done many times, always with the same results, as
that it would be uareaooaablo to challenge the findings.

As far as the A-B-O and M-N tests are concerned the results provide no
Information as to the question of parentage. The Rh-Hr tests, however, show
L cannot be the child of I W L and
. The reason for this is that two parents both lacking factor
tit" (otherwise known as factor E) cannot have a child with factor rh" (or
W
L—
is type Itlugh
E). In the present case the putative father X
lacking factor rb" (or E) and the putative mother, M
I
L— L
is
K
L
is
type RhiIthi lacking factor rh", while the putative son, J
type Rh iithz having factor rh". Therefore J—K—L------ is not the son

that J- K
Y
L
L

of Cho putatiro pax Onto, Y

w

L

and br

Y— L

L

The hearing was reconvened on September 18, 1958, in San Francisco, at which time counsel objected to the acceptance in evidence
of Dr. Weiner's report "on the ground that the witness has impeached
himself." Counsel, admittedly basing his opinion on the "quoted
remarks of Dr. Weiner" as read into the record of hearing by Dr.
Steiner, states that he believed "that Dr. Weiner would rule out
exclusion of paternity on the basis of the big E factor of the Rh."
004

Counsel continued, "However, since Dr. Weiner has now repudiated
what he was quoted as saying the previous time I don't feel bound
by the stipulation * * *" (emphasis added). It is apparent that
counsel did nnt gtudy the report, of the Committee of the American
Medical Association himself, but based his opinion on the reading
of it by Dr. Steiner. If our copy of this report is correct, then
Dr. Steiner's reading of it cannot be correct.
The special inquiry officer felt that both parties were bound by
their stipulation, and accepted Dr. Weiner's opinion into the record
over counsel's objection, pointing out that Dr. Weiner had been
agreed upon by both parties as arbiter. A good statement on the
effect of a stipulation is available in Matter of 4 I. & N. Dec.
378, 384 (C.O., May 10, 1951), wherein it was concluded that the
decision as to whether or not the parties are bound by a stipulation

rests with the court, and that the court may, in its discretion, set
aside a stipulation on numerous grounds, such as fraud, undue influence, collusion, mistake, false statement innocently made, inadvertence or improvidence in making the stipulation (Wigmore on Evidence, vol. IX (3rd ed.), sec. 2590). Since these are administrative
proceedings, and since citizenship is a precious right, we would not
permit anyone to stipulate away his citizenship, if we believed that
the record supported a finding of United States citizenship. In the
present case the effect of the stipulation is unimportant, because the
report of Dr. Weiner is admissible, in any event. Obtaining Dr.
Weiner's opinion was a satisfactory solution to the impasse existing
at the close of the June 16th hearing. Dr. Weiner's certifications
have been accepted by us in a number of cases, and he has been
named in other similar proceedings as the ultimate authority on the
subject.
The Supplemental Report of the American Medical Association
referred to the subject of the qualifications of experts as "a difficult
and unsolved problem requiring serious study." It was found necessary in New York City to set up a special panel for this purpose.
When blood tests were commenced in New York in 1953, persons to
be tested were permitted to choose their own doctors for this purpose.
Following complaints of inaccuracy of test results and overcharging,
it was discovered that the judges of the Court of Special Sessions,
after consultation with the New York Academy of Medicine, had
approved a panel of six doctors to conduct blood tests in paternity
proceedings before the mutt_ The hiunizration and Naturalization
Service decided to follow the same procedure and to request the person whose blood was to be tested to choose one of the doctors from
this same panel. The panel at that time included Dr. Alexander
Weiner, Dr. Philip Levine, and Dr. Sussman.
This is not the first case in which we have had certified an exclusion of paternity based on Rh tests alone, although the others are
265

Y
,
TV
all unpublished cases. In unreported Matter of TV A-10236058, blood tests were performed by Dr. Leon Sussman, New
York, and he certified on January 26, 1954, that the tests demonstrated that it was impossible for respondent to be the offspring of
the two persons claimed to be his parents, inasmuch as this child
had a blood factor, rh", which he must have inherited from one of
his parents, and as neither of the claimed parents had this
blood factor, parentage could be excluded. In L S Y ,
A 7673112, unreported (May 10, 1051), Dr. Iora9,1 Davidcohn, Chi-

cago, found an exclusion based on the hr' factor. Later, following

a blood

test of the mother, he found a triple exclusion, based also

on the N and rh" factors. Dr. Davidsohn was a member of the
Committee of the American Medical Association which wrote the
report on blood-grouping tests in 1952, which evidences no hesitation
about using Rh-Hr tests for these purposes. In unreported Matter
of L S L
, A 10292624, Dr. Sussman (in a report dated
December 22, 1954) certified an exclusion of paternity based on the
Rh test alone.
It is important in these cases to be able to rely on the Rh test.
It is possible for a person seeking a purchaser for a previously
established "immigration slot" to match the blood groups and types

of a candidate to those of the alleged father and mother, particularly
if the alleged father and mother fall in the common groups and

types, as in this case. Here we have an 0 father and an A mother.
They can have either 0 or A children and this covers approximately
87 percent of the population. According to the MN typing we have
an MN father and MN mother. They can have M, N, or MN children, and this is 100 percent of the population . Therefore, in the
instant case the A - B - 0 tests are of limited value, and the MN tests
are useless. However, with Rh tests added to 0-A-B and M-N tests,
blood matching becomes much more difficult.
Even with the use of Rh tests it is not possible to solve all cases
Of doubtful parentage. In a report of the Committee on Medicolegal
Problems, American Medical Association, 1952 (p. 12), the Committee stated, "When a man is falsely accused of paternity, he has better
than a 50 percent chance of being exonerated by the combined use
of the A-B-0, M-N, and Rh-Hr tests, while more than 90 percent of
cases of interchange of infants can be solved by such tests." The
factor rh" is the factor which respondent has which his parents do
not have. We note that the Supplemental Report of the American
Medical Association Committee, 1057, mentions that the factor rh"
occurs in less than .5 percent of the population. When the claimant
possesses a relatively unusual blood factor, blood matching becomes
most difficult.
The special inquiry officer denied the request of counsel to offer
the testimony of respondent's alleged father, holding that counsel

9011

was bound by his stipulation that there was no issue in the case but
the interpretation to be given the blood-grouping tests. We feel
that the special inquiry officer's denial of this request was unnecesawry, but does not constitute prejudicial error sufficient in require

reopening of the record. The alleged father's testimony probably
would not have lengthened the record unduly. But neither could
it influence our decision, which is bound by the test results. In the
past six years we have held repeatedly that blood-test evidence is
conclusive, when it is satisfactorily established that the tests have
been conducted by competent and experienced persons and where the
tests conclusively establish the impossibility of the claimed relationF—F—, 5 I. & N. Dec. 149 (1953);
ship. Matter of L
K—S--- and IV P—S , 5 L& N. Dec.
Matter of W
TV
0
and D
IF
,
232 (1903) ; Matter of D
C
S—,
5 I. & N. Dec. 351, 356 (1953, 1954); Matter of L
6 I. & N. Dec. 212 (1954). These decisions have been sustained in
the courts for the most part.' When the courts have found citizenship in spite of blood tests demonstrating non-existence of the claimed
relationship, it has been for a procedural defect (Dulles v. QUa#1
Yoke Fong, 237 F. 2e1 496 (C.A. 9, 1936) ) ; or for a failure of the
Government to establish the qualifications of the technician (Chin
Wing Gwong v. Dulles, 139 F. Supp. 116 (D.C.R.I., 1956) ).
Counsel complains that he was not permitted to cross-examine
Dr. Weiner, and therefore should not be bound by Dr. -Weiner's
certification. Counsel had two blood-test experts for examination
and cross-examination. Examination of experts in these cases has
gone largely to the matter of the accuracy of the testing procedure,
proper identification of the parties (to eliminate the possibility of
substitution), adequate supervision of laboratory workers, and the
general acceptance of blisnrEtristing procedure and results for medical
and legal purposes. Cross-examination would serve no purpose here,
because all parties conceded Dr. Weiner's qualifications and agreed
to an acceptance of his interpretation. Until Dr. Weiner's determination was unfavorable to respondent, counsel was willing to submit
the issue of the true meaning of the test results to him.
0
and D
Counsel protests that in Matter of DW
TV
H—, 5 I. & N. Dec. 351, at page 361, Dr. Weiner is quoted
United States en re/. Done Wing Ott v. Shaughnessy, 220 F.2d 537, 245
F.24 875, reaff. 247 F.2d 769 (CA. 2, 1955-1957) ; United States ex rel. Lee
Kern Boy, et at. v. shaughnessy, ma a. Supp. 302, 123 a. Bui,p. Cris (o.o.r.r.y,,
1953-1955), 237 F.2d 307 (CA. 2, 1956), 352 U.S. 966; United States ex re/.
Lee Kern Hay v. Merff, 355 U.S. 169; Lee Chow Ken v. Brownell, 122 F. Supp.
370, 220 F.24 187 (CA. 2, 1055), 148 F. Supp. 3, 245 F.2d 874 (CA. 2, 1957);
Jew Jock Keen v. Males, 139 F. Supp. 205 (S.D. Texas, 1955) ; Get v. Dulles,
154 F. Supp. 577 (E.D.N.Y., 1957) ; Wong Fuel) Ping v. Dulles, 137 F. Supp.
470 (D.C. Mass., 1956); Lett Moose Cheung v. Rogers, (D.C. Calif., November
12, 1958).

267

by us as having said that for the purposes of testifying in legal
proceedings he prefers not to rely on the conclusions drawn from
tests made by other persons but prefers to make his own tests. Dr.
Weiner's letter, exhibit 3 in this record, states that he prefers to
conduct the tests himself, but where, as in the instant case, the test
results are consistent and only the interpretation is at - issue, he is
willing to make an interpretation. We fail to see any ground here
for a valid objection.
As counsel points out, the Court of Appeals for the Ninth Circuit
has held that where the Immigration Service has admitted a claimant as a citizen the burden necessary to overcome the prior admitting

decisions falls on the Government. Lee Hon Lung v. Dudes, 261
F.2d 719 (C.A. 9, 1938)_ The Ninth eirenit else held in Re Ng
v. Browned, 258 F.2d 304 (C.A. 9, 1958), that the trial court did not
abuse its discretion in determining (among other findings) that the
blood tests were reliable and "should be given great weight."
To recapitulate: It is our conclusion that blood-test evidence presented here, consisting of the test results which are consistent and
uncontroverted, and interpreted by an unimpeachable expert to establieu' exclusion of paternity, must be accepted by us. Clearly, Dr.
Steiner does not agree with the American Medical Association Committee Reports of 1952 and 1957, but evidently he stands alone in
his opinion that the blood factor rh" is too controversial to serve
as a basis for an exclusion of paternity. The record does not estab-

lish Dr. Steiner as a recognized authority in the field. The writings
referred to by him and counsel do not support his view. On the
contrary, they support the view of Dr. Ortega, Dr. Weiner, and
other authorities. The warnings and exceptions set forth in the
American Medical Association Subcommittee reports refer to blood
factors other than the rh" factor present here. Any errors committed
in the hearing were not prejudicial errors sufficient to require reopening and rehearing. The blood tests constitute clear and convincing
evidence that the respondent is not the son of the alleged father.
Therefore, he is not a United States citizen. The appeal will be
dismissed.
Order: It is ordered that the appeal be and is hereby dismissed.

268


Interim Decision #2693

MATTER OF CHEUNG
In Deportation Proceedings
A-16032302

Decided by Board March

28, 1979

(1) In Matter of S—Y—L--, 9 I. & N. Dec. 575 (BIA 1962), it was held that an alien who
was born on the Chinese Mainland could be ordered deported to Formosa (Taiwan) as
the country of nationality under the provisions of section 243(a) of the Immigration and
Nationality Act because the United States recognized the Nationalist Government as
the legal government of China.
(2) In a Joint Communique on the Establishment of Diplomatic Relations Between the
United States and the People's Republic of China issued on December 15, 1978, President Carter announced the recognition by the United States of the government of the
People's Republic of China as the sole legal government of Chino..

(3) As Matter of S—Y—L— may no longer be considered valid law, the proceedings are
remanded so that the Immigration and Naturalization Service may reformulate its
policy regarding the designation of county of deportation in cases involving natives and
citizens of China.

CHARGE:

Order: Act of 1952—Section 241(a)(2) 18 U.S.C. 1251(a)(2))---Nonimmigrant
crewman--rerrained longer than permitted
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Jules E. Coven, Esquire

George Masterton

Lebenknff & Coven, Esquires

Appellate Trial Attorney

One East 42nd Street
New York, New York 10017

Jay D. Steinberg
Trial Attorney

/3 Y: MiLhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated August 31, 1977, an immigration judge found the
respondent deportable as charged, denied his application for withholding of deportation to the People's Republic of China pursuant to section
243(h) of the Immigration and Nationality Act, 8 U.S.C. 1253(h), as
premature in light of the Immigration and Naturalization Service's
representation that deportation to the People's Republic would not he
attempted,' and granted the respondent the privilege of voluntary deEvidence of record on the respondent's application for section 243(h) relief and on his
earlier claim of asylum is confusing. It appears that the respondent has claimed that he
'

690

Interim Decision #2693
with an order of deportation to the
People's Republic of China in the event of failure to depart voluntarily.
Hong Kong was designated as an alternate place of deportation. The
Immigration and Naturalization Service appeals on the ground that the
immigration judge erred in designating the People's Republic of China
as the country of deportation. The record will be remanded to the
immigration judge for further consideration.
The respondent is a 26-year-old alien who was born on May 7, 1952, in

paxture in lieu of deportation

Foochow, China. He was admitted to the United States as a crewman on

August 18, 1975, and was authorized to remain until his vessel had
departed, but in no event longer than 29 days. At his August 9, 1977,
deportation hearing the respondent conceded deportability as an overstay and was granted voluntary departure. Upon advice of counsel, he
then declined to designate a country of deportation, contending simply
that he was born on the Chinese Mainland, that he is a citizen of the
People's Republic of China, and that under step two of section 243(a) of
the Act, the immigration judge is required to order his deportation to
the People's Republic.
Under section 248(a) of the Act, if an alien does not designate a.

country of deportation, deportation shall first be directed to any country
of which the alien is a subject national or citizen if such country is willing
to accept him into its territory. If that cannot be arranged, deportation
may then be directed without necessarily giving any priority or preference because of their order to any one of seven categories of countries.
The narrow question raised in this case is what country the respondent
must be considered a citizen of for purposes of designating a country of
deportation under section 243(a).
On the basis of correspondence from the Department of State concerning the respondent's earlier claim of asylum, (Exhibit 2B) the immigration judge has concluded that the respondent is considered a citizen
of the People's Republic of China by the State Department and that
accordingly the designation of that country under section 243(a) is
appropriate. The Immigration and Naturalization Service disagrees,
citing the Board's decision in Matter of
9 I. & N. Dec. 575
(BIA 1962). After reviewing several court decisions, the Board concluded in S Y L , that despite the fact that the alien was born on the
Chinese Mainland and had later fled to Hong Kong, he was nevertheless
deportable to Formosa (Taiwan) rather than to the People's Republic of
China because the United States recognized the Nationalist Govern—

—

—

fears persecution on the Chinese Mainland and in Hong Kong. Compare Tr. pp. 8-9, with
Form 1-589 (Request for Asylum in the United States). Resolution of the confusion
sur rounding these applications in not critical at the present time, however; therefore, we
will not address the matter further but will leave the clarification of these claims to the
immigration judge in the reopened proceedings.

691

Interim Decision #2693
ment as the legal government of China. See Rogers v. Cheng F n Sheng,
280 F.2d 663 (D.C. Cir. 1960), cert. denied 364 U.S. 891 (1960); United
States ex rel. Tom Man v. Murff, , 264 F.2d 926 (2 Cir. 1959); Chi Sheng
Liu v. Holton, 297 F.2d 740 (9 Cir. 1961). The Service points out that as
late as 1975, the United States Court of Appeals for the Third Circuit
reaffirmed the position reached by the Board in S Y--L--. Cheng v.
INS, 521 F.2d 1351 (3 Cir. 1975). While the Service's argument was
persuasive when made, very recent events compel the conclusion that
—

Matter of.9

—

Y L
—

—

must now be overruled.

In a Joint Communique on the Establishment of Diplomatic Relations
Between the United States of America and the People's Republic of
China, issued on December 15, 1978, President Jimmy Carter announced the recognition by the United States of the government of the
People's Republic of China as the sole legal Government of China and
the establishment of diplomatic relations between the two countries,
effective January 1, 1979. In enunciating the principles agreed upon by
the two parties to the Communique, the President emphasized the fact
that the United States now acknowledges Peking's position that there
is but one China and that Taiwan is part of China. The eAclakuige of
ambassadors and the establishment of embassies occurred on March 1,
1979.
It is apparent in light of the December 15, 1978, Commnniranp that
Matter of S Y--L may no longer be considered valid law. Therefore,
we conclude that our most appropriate action at this juncture is to
remand the present record to the immigration judge so that the Immigration and Naturalization Service may reformulate its positions on this
issue. Thereafter, the immigration judge should render a new decision
and certify it to us for review.
ORDER: The record is remanded to the immigration judge for the
action indicated in the foregoing opinion.
—

—

692