Interim Decision

#2202

MATTER OF VARGAS
In Section 13

Proceedings, Act of September 11, 1957
A-19703291

Decided by Regional Commissioner May 21, 1972
Statutory eligibility for adjustment of status to that of a permanent resident
pursuant to the provisions of section 13 of the Act of September 11, 1957, is
established notwithstanding applicant acquired a change of status to that of a
nonimmigrant under section 101(aX15)(GXiv) of the Immigration and Nationality Act, subsequent to his failure to maintain nonimmigrant status under
section 101(a)(15)(A)(i) of the Act, the status under which he was admitted to
the United States.

This case comes forward on certification from the District
Director, who denied the application on the ground that the
applicant is ineligible for the benefits of section 13 of the Act of
September 11, 1957, since he had acquired another nonimmigrant
status after he had ceased to be eligible to continue as a nonimmigrant under section 101(aX15XAXi) of the Immigration and Nationality Act.
The applicant is a 63-year-old native and citizen of Costa Rica.
He was admitted to the United States on November 25, 1968 under
the provisions of section 101(aX15XAXi) of the Immigration and
Nationality Act. He served as a Minister Counselor at the Embassy of Costa Rica from the time of his admission to April 30, 1970
when he resigned because of a change in the Government of Costa
Rica. From May 4, 1970 to the end of that year, he was employed
doing research in Washington, D.C. for the Organization of American States. The Organization notified this Service through the
Department of State when he was employed that he was entitled
to nonimmigrant status under section 101(aX15XG)(iv) of the Immigration ana Nationality Act. On July 31, 1970, his status was
changed accordingly from that of a nonimmigrant as defined in

section 101(a)(15)(AXi) of the Act, to that as defined in section
101(aX15XGXiv) of the Act. No formal application for this change
was required under Service policy, since the request therefor
emanated from the Department of State and, pursuant to 8 CFR
248.3(b), no fee was required.
Section 13 of the Act of September 11, 1957 provides in pertinent
part that:
354

Interim Decision #2202
Notwithstanding any other provision of law—
(a) Any alien admitted to the United States as a nonimmigrant under the
provisions of either section 101(a)(15 )(A)(i) or (ii) or 101(a)(15)(G)(i) or (ii) of
the Immigration and Nationality Act who has failed to maintain a status
under any of those provisions, may apply to the Attorney General for
adjustment of his status to that of an alien lawfully admitted for
permanent residence.
To meet the above requirements, an alien must have failed to
maintain a status under the specified nonimmigrant classes. This
he can do, after ceasing to be entitled to one of those classes, by

remaining illegally in the United States.

If the alien, without leaving the United States, accepts a new
nonimmigrant classification, as in this case, or if he applies for,
pays a fee, if required, and obtains a change of nonimmigrant
classification, he would, according to the District Director's decision, make himself ineligible for the benefits of section 13 of the
Act of September 11, 1957. This would, in effect, penalize an alien
for endeavoring to comply with immigration laws by staying in a
legal status.
Section 13 of the Act of September 11, 1957 was remedial
legislation for aliens who came here to engage in diplomatic or

semi-diplomatic employment for a foreign government and who
thereafter terminated such employment and desired to remain in
the United States. As remedial legislation, a broad interpretation
should be given to its provisions if necessary to carry out the
intent of Congress. The phrase "who has failed to maintain a
status under any of those provisions" contained in section 13
should be construed to include not only one who remained in an
illegal status, but also one who acquired a legal status in sonic
other nonimmigrant class pursuant to section 248 of the Immigration and Nationality Act, as amended.
It is found that this construction should be used as a matter of
equity and to carry out the purpose of the law. This construction is
not in conflict with Matter of Lee, 11 I. & N. Dec. 96, in which an
alien who had acquired one of the nonimmigrant classes specified
in section 13 of the Act of September 11, 1957 by a change of
nonimmigrant status, instead of having been admitted in one of
those classes, was found to be qualified for the benefits of that
section. There, as here, a broad interpretation was applied so that
all aliens for whom the benefits of the section were intended would
be included.
The Secretary of State, upon consultation, has indicated he has
no objection to the granting of permanent resident status. All
evidence of record justifies the conclusion that if the applicant
were now applying for admission for permanent residence in
355

Interim Decision #24U
possession of •appropriate documents, he would be admissible. The
applicant is presently employed as a teacher-counselor in bilingual
education in a public school system. His good moral character has
been established. Granting permanent resident status to him
would not be contrary to the national welfare, safety or security.
He has fulfilled all the requirements for eligibility under section 13
of the Act of September 11, 1957.
It is ordered that the status of the applicant be adjusted to that
of lawful permanent resident of the United States.
It is further ordered that if during the session of Congress at
which this case is reported or the session next following, either the
Senate or the House of Representatives passes a resolution unfavorable to the applicant, this order be automatically revoked and
the applicant be required to depart from the United States in the
manner provided by law.

356


Interim Decision #1829

MATTElt OF HYATr

In Visa Petition Proceedings
DET—N-3549

Decided by District Director October 20, 1967
Beneficiaries, musicians, who are coming to the United states to perform Tor 10
hours on week ends only over a period of 4 weeks at a steak house and cocktail
lounge located within 50 miles of the United States-Canadian border, are accorded nonimmigrant classification under section 101(a) (15) (31) (ii) of the
Immigration and Nationality Act without the necessity of presenting an individual Labor certification as required by 8 CPR 214.2(h) (2) (U) since the
proposed employment comes within the purview of the blanket certification
issued by the Department of Labor on August 2, 1957, effective for an in
period, stating that qualified musicians are unavailable in the area
designated as 50 miles into the United States along the United States-Canadian
border and that the admission of aliens for employment as musicians in that
area for periods not in excess of 6 months* would not adversely affect the
wages and working conditions of workers in the United States similarly employed.

The petitioner, David L. Hyatt, is the owner and operator of Hyatt's
Lounge, 31150 Palmer Street, Westland, Michigan. The establishment
is a steak house and cocktail lounge which employs two bartenders, one
cook, four waitresses and has a coating capacity of ono hundred
seventy five patrons. Entertainment is provided on weekends by a
-

-

small dance band or so-called dance combo. The general class of patrons
is described as mature adult. The petitioner, under oath before an
officer of this Service, stated that his establishment was opened in
January 1963 and enjoys a good reputation in the local community. A
letter from the chief of the Westland Police Department confirms the
petitioner's statement.
In order to meet the requirements of the statute and the pertinent
regulation, 8 CFR 214.2(h) (2) (ii) , it must be established, inter cilia,
that the alien beneficiary is coming to the United States to perform
temporary services; that unemployed persons capable of performing

such services or labor cannot be found in this country; and that the
° See note, page 592.

591

Interim Decision #1829
employment of the beneficiaries will not adversely affect the wages and
working conditions of workers in the United States similarly employed.
The beneficiaries, Robert M. Dowhan, age 25, and Roland J. Rosik,
age 26, are native born citizens of Canada. Both are members of the
Windsor Federation of Musicians, Local 566 of the American Federation of Musicians. A standard musician's contract, signed by the beneficiaries, reflects that they will perform for five hours on Friday and
Saturday night, respectively, for a period of four weeks and will be
compensated at the rate of one-hundred forty dollars per week.
The Department of Labor has furnished this Service with a blanket
certification reflecting its determination that qualified musicians are
unavailable in the Canadians United States border area, designated as
50 miles into the United States along the Canadian border, and that

the admission of aliens for employment as musicians in that area for
periods not in excess of six months* would not adversely affect the
wages and working conditions of workers in the United States similarly employed. By its terms, it is effective from the date of issuance,
August 2, 1967, until withdrawn by that Department.
Since the petitioner's place of business lies well within the described
border area; the employment is temporary in nature and for a period
of less than 6 months, the proposed employment is within the blanket
certification referred to. Also, that certification is considered to be the
equivalent of the individual certification normally required in this type
of visa petition. Therefore, presentation of an individual certification
by the petitioner is not required_
It is ordered that the petition be approved for classification as
temporary worker under section 101(a) (15) (H) (ii) of the Immigration and Nationality Act, valid to October 25, 1967.
• Note: By letter 1/17/88 the Department of Labor reduced the precertifted
maximum period of employment from six months to 80 days, effective February
1, 1968.

592


• Ritcfun Decision #1576

MATTER or DymEncxsuis 'In Section 212(e) Proceedings
A-12308431

DeOided by District Director 'January 4, 1966
As compliance with the foreign residence requirement of section 212(e), Iminigration and nationality Act; would result in hardship to the 'United States
citizen children and spouse of an exchange visitor, a waiver of the requirement is granted, especially 'since the applicant during her training In the
tinted States participated in the dental treatment of school children, thereby
imparting her Beni to persons here es well as receiving further training.
•

The applicant, a 37-year-old native and citizen of the Philippine
Islands, last entered the United States through the Port of San
on July 21, 1957. She was admitted as an
Francisco, 'California
exchange visitor for a postgraduate-,pourse in dentistry. During her
training, she participated in the dental treatment of school age
children from schools in New York City. Since this treatment of
the children was bassd upon her already acquired knowledge, from
prior training in the Philippine Islands, it has been determined that
she came to the United States to impart her skill to persons here, as
well as to receive' further training. A more liberal attitude may
therefore be taken in determining if the necessary degree of hardship has been established'
On October 15,.1990 she married Edward W. Duchneskie, a native
and citizen of the 'United States. Evidence has been presented to .
establish that three children were born of this marriage,. All were
born in the 'United States. The applicant's husband is - the Assistant Sales_ Iktanager for an
automobile agency, with some four years of senior*. He does not
speak the language of the Philippines, could only enter•
country
as a visitor, and would. be unable to seek gainful
employment
there.
•
'House Report 721, Subcommittee of the House Committee on the judiciary,
87 CMig., 1st Seas. (1985), at 122.

583

Interim Decision #1576
He would therefore have to earn sufficient money to maintain himself
in the United States, as well as to attempt to provide a second house- "
hold in the Philippines for the applicant and the three small children,
during the two year period the applicant must 'reside abroad. In
addition, he has a, financial obligation to his mother, who suffers
from Parkinsons DiSesse in an advanced state.
If the applicant took her
United States citizen children v;ith
her to the Philippines it would seriously handicap, if not eliminate.
entirely, her opportunities for obtaining employment in that country.
If she eventually obtained employment, would be necessary to
secure the services of a reliable person to care for the three small
children during her hours of employment. The?bildren, the oldest
of whom is less than five years of age, would .then be denied the
special .care and attention oftheir' mother during her, hours of employment, thus imposing a hardship upon them.
The Secretary of State, on October 22;1965, recommended to this.
Service that the waiver be granted to the applicant. The application -will be approved. , , ORDER: The admission to the United States of Mrs. Celia.
Duchneskie, being in the public interest, the foreign residence and
physical pres•uce requirements of section 212(e) of the Immigration
and Nationality Act. are hereby waived.


MATTER OF P—C-

In DEPORTATION Proceedings
A-10172681
Decided by Board June 1, 1960

Deportability—Section 241(a)(11)—Conviction in New York for possession of
narcotics—Nature of drug ascertained from police affidavit and laboratory
report.
Conviction in New York for possession of unspecified narcotic drug supports
deportability under section 241(a) (11) of act where police officer's affidavit
and laboratory report disclose that drug in question was heroin. Under
rules of the New York Code of Criminal Procedure police affidavit and laboratory report were part of pleading on which respondent was tried and are
considered part of record of conviction.
CHARGE :

Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11)3—Convicted
of illicit possession of narcotic drugs (section 3305, Public Health
Law of New York).

BEFORE THE BOARD

Discussion: The examining officer appeals from an order entered
by the special inquiry officer on January 29, 1960, terminating the
above-captioned proceeding. A memorandum of law urging the
respondent's deportation has been submitted by the examining officer. No exceptions have been filed by the respondent.
An order to show cause was personally served upon the respondent on January 7, 1960. The order charges in substance that the
respondent is a native and citizen of Cuba who last entered the
United States through the port of Miami, Florida, on June 24, 1955,
and that he was convicted in the Court of Special Sessionc of New
York City on November 4, 1959, of the crime of unlawfully possessing "a certain narcotic drug."
The deportation hearing was conducted in the respondent's absence pursuant to the authority provided by section 242(b) of the
Immigration and Nationality Act (8 1252(b)). There is
evidence of record that due notice of the hearing was served upon
the respondent on two occasions and that he failed to appear foi
the hearing.
670

klienage and the respondent's conviction of the crime of unlawlly possessing a narcotic drug in violation of section 3305 of the
iblic Health Law of New York I is established by the evidence of
cord. The information accusing the respondent of unlawfully
)ssessing a narcotic drug does not designate the particular nar)tic drug found in the respondent's possession. However, a sworn
ffidavit executed by the arresting officer, a court report by the same
fficer and a Police Laboratory Analysis Report establish that the
.'esponcient was in possession of "heroin" when he was arrested. The
hree documents are before us as a part of the court record on file
in the clerk's office, Court of Special Sessions, New York County,
New York, Docket No. 1S272-1959.
The special inquiry officer terminates the proceeding under the
rule set forth in the case of Hoy v. Mendoza-Rivera, 267 F.2d 451
(C.C.A. 9, 1959). The Circuit Court of Appeals ruled in the
Mendoza case (supra) that insofar as marijuana is involved, deportability under section 241(a) (11) of the Immigration and Nationality Act (S U.S.C. 1251(a) (11)) depends upon a conviction
for possession for the purpose of manufacture, production, sale, etc.,
of the said drug. The special inquiry officer reasons that inasmuch
as a specific narcotic drug is not designated either in the New York
statute or the information accusing the respondent, we cannot go
behind the information and supply the deficiency from supplementary court documents furnished as a part of the court record.
The information merely charges that the respondent "unlawfully
did possess and have control of a certain narcotic, drug."
The examining officer urges that the supporting documents attached to the information are as much a part of the record of the
respondent's conviction as is the information filed against him by
the District Attorney on September 1, 1959. She maintains that
since the affidavit executed by the arresting officer and the supporting laboratory report both specify "heroin" as the drug possessed
by the respondent and that since these documents were received by
the court prior to the respondent's plea of "guilty," the case is not
controlled by the 111emdo2a rule (supra) because there is nothing in
the record of conviction to show that the drug possessed was found
to be marijuana.
The issue before us is whether in this particular case the affidavit
and the police laboratory report may be. considered in arriving at a
determination of the narcotic drug involved in the respondent's
conviction. We are of the opinion that certain provisions of the
,

' Section 3305, New York Public Health Law, reads as follows :
"It shall be unlawful for any person to manufacture, possess, have under
his control, sell, prescribe, administer, dispense or compound any narcotic drug,
except as authorized in this article."

New York Code of Criminal Procedure governing the prosecution
of criminal cases in the City of New York permit the consideration
of the documents in question for this purpose. Furthermore, interpretations of these provisions establish to our satisfaction that the
affidavit and the laboratory report were before the Court of Special
Sessions as a part of the pleading on which the respondent was
tried.
Section 742 of the New York Code of Criminal Procedure provides, inter alia, "All criminal actions in the Courts of Special
Sessions in the City of New York must be prosecuted by information 2 made by the District Attorney, on returns filed pursuant to

section 221 (Code of Criminal Procedure) * * * ." Section 221 of
the Criminal Code provides in substance, inter alia, that whenever a
magistrate has held a defendant to answer he must within five days
make a return of "the warrant, if any, the depositions, the statement of the defendant, if he has made one, and all undertakings of
bail, or for the appearance of witnesses, taken by him." The District Attorney is required to file with the clerk of the Court of
Special Sessions in New York City all papers returned to him by
the magistrate including "those upon which informations are based
with the informations * * *" (see section 743(3), New York Code
of Criminal Procedure). (Emphasis supplied.)
The issue of whether the returns of a magistrate are a part of the
information filed by the District Attorney was before the Court of
Special Sessions for New York City in the case of People v. Reppin,
126 N.Y.S. 169 (Court of Special Sessions, First Division, New
York City, 1910). The defendant, Reppin, when arraigned before
a city magistrate was charged as a first offender. Thereafter, the
District Attorney for the County of New York filed an information
charging the defendant as a second offender. The defendant,
Reppin, challenged the sufficiency of the information in a motion to
dismiss The court held that the defendant could only be tried on
the charge for which the magistrate held him as shown in the returns of the, magistrate and that the pleading of second offender in
the information would be considered surplusage.
The court in its opinion said: "The papers returned by the
magistrate and attached to the information as required by statute
(citing sections 221 and 743, Code of Criminal Procedure, New
York, supra) show that the defendant waived examination before
the magistrate and was held for trial in this court (as a first
offender) * * *. A criminal action is begun as soon as information,
is laid before the magistrate

* *.

The information of the District

3 Section 145 of the New York Code of Criminal Procedure defines an Information as "the allegation made to a magistrate that a person has been
guilty of some designated crime." (Emphasis supplied.)

672

Attorney unlike an indictment does not initiate the action. Its filing
is merely a step in the prosecution. The magistrate * * * certifies
that he holds the defendant to answer for a specific crime, returns
the papers in the ease to the District Attorney and this court is
supposed to try the defendant for the offense for which he has been
held (by the magistrate) * * * there is but one offense charged in the
papers returned." (Emphasis supplied.)
A variance between the charge set forth in an information filed by
the District Attorney of New York City and the returns of a magistrate attached thereto was attacked in the case of People v. Streep,
126 N.Y.S. 172, Court of Special Sessions, First Division, New York
City, 1910. The court in holding for the defendant said: "This
court has consistently held, since the introduction of a carefully
prepared information as the trial pleading, that the charge must
either be the identical one stated in the magistrate's complaint or
fairly disclosed in the examination and proceedings before him."
The New York Supreme Court, Appellate Division, held in the
case of People v. Ash, 60 N.Y.S. 436, that appeals from the Courts
of Special Session for New York City are governed by specific provisions of the Code of Criminal Procedure (sections 741, 744, 750,
751) and that the record upon which the case is to be heard in the
appellate tribunal consists of "the papers instituting the proceeding
(information and magistrate's return), the judgment of conviction,
the evidence upon which it• was based, when necessary to present
the question sought to be reviewed, * * * the notice of appeal and a
proper certificate by the clerk * * *." (Emphasis supplied.)
The defendant in the case of People v. Sehildliawo, 186 N.Y.S. 2d
68 (Court of Special Sessions, New York City, Appellate Division,
1959), appealed from a judgment of conviction of the Magistrates
Court, Borough of Manhattan, Municipal Term, urging, int er alia,
that the Magistrates Court had no jurisdiction of the subject matter
or defendant. The court in holding that the Magistrates Court, did
acquire jurisdiction of the defendant said: "The warrant on which
the defendant was arrested was issued by the magistrate on an information sworn to by Inspector C , which was complete and
served the purpose of an information and deposition. The information and deposition may be blended in (nee instrument * + it is
sufficient if the facts sworn to are adequate." (Emphasis supplied.)
We conclude on the basis of the foregoing statutes and the authority cited that the affidavit and laboratory report attached to
the information here under consideration were a part of the pleading on which the respondent was tried. As a part of the pleading
before the Court of Special Sessions for New York City it is proper

consider them in arriving at a determination of the narcotic drug
involved in the respondent's conviction. Our conclusion in this

to

673

regard does not amount to going behind the record of conviction
because by statute and interpretation the supporting documents may
be considered in this particular instance as a part of the record of
conviction.
Our primary concern is with fair and impartial administration of
the immigration laws to the end that justice may previl. Accordingly, if the supporting affidavits attached to the information had
averred that marijuana was involved in the respondent's conviction,
then he would not be deportable under the rule set forth in the
21 fendoz,a, ease (6wpra).

Our decision is in line with the Attorney

General's opinion in Matter of L
, 5 I. & N. Dec. 169, 172, August 11, 1953, wherein he said that "the facts must be examined upon
which the violation of law is based" in determining an alien's excludability because of conviction of a law regulating traffic in
narcotic drugs.
The appeal of the examining officer will be sustained. An appropriate order will be entered.
Order: It is directed that the order entered by the special inquiry officer on January 29, 1960, be and the same is hereby withdrawn.
It is further ordered that the a'.ien be deported pursuant to law
on the charge stated in the order to show cause.

674


Interim Decision #1452

•

Marna or Ciux

In Section 206 Proceedings
A-13744336
Decided by District' Director August 81, 1964
It having been established petitioner is not a United States citizen, approval
of the visa petition to 'accord his wife nonguota status is revoked since
petitioner, following notification by the Service of intent to revoke the
approval, pursuant to 8 CPR 206.3, failed to avail himself of the oppor;
tunity Milled him to offer evidence in Opposition thereto.

Discussion: The petitioner under the name of Chin Tun Joe filed
a visa petition on October 29, 1963 to accord Yee Mon Yue nonquota
immigrant status as the wife. of a United States citizen. The petition. was approved by the District Director • of Immigration and
Naturalization, Boston, Maisachusetts on December 18, 1963 and forwarded to the Secretary of State for transmittal to tife American
Consul in Hong Kong.
• On july 1, 1961 the petitioner appeared before an officer of this
Service at Boston, Massachusetts and I draitted that.his true name
was Chin Bak goon and that he was a citizen of China and not of
the United. States; that his original entry into the United States
at Boston, Massachusetts on August 22, 1961 as a Unittd States
citizen was fraudulent. It has been established that-the petitioner is
not a United States citizen and, therefore, not entitled to accord. his
Spouse the nonquota immigrant status given by this Service on
December 13,-1963.
.
In accordatice with the provisions of 8 CFR 2064 a notice of
intent to revoke 'the approval of this visa phtition was forwarded
to the petitioner ''on July 29, 1961 and the was permitted fifteen den
from the date of -mailing within which to submit written objection
to the proposed revocation of the approval of the visa petition. The
petitioner failed to avail himself of this opportunity to submit any
,objections.
ORDER: On the basis of the foregoing it is ordered that the
approval of the visa petition be revoked.
131


Interim Decision #2691

MATTER OF REVELO

In Visa Petition Proceedings
A-19518541
Decided by Board March 7, 1979
(1) Under Connecticut law, a bona fide domicile by at least one of the parties to a foreig-n
divorce in the country where the divorce took place is required for recognition, whether
the divorce is ex parte or by mutual consent. Matter of Biebl, Interim Decision 2672
(BIA 1978); Litvaitis v. Litvaitis, 162 Conn. 540, 295 A.2d 519 (1972); Gildersleeve v.
Gildersleeve, 88 Conn. 689, 92 A. 684 (1914).
(2) A party must have a legally protected interest in order to participate in a judicial
proceeding so that the legal questions are framed with the necessary specificity and the
issues contested with the necessary adverseness and vigor. Flast v. Cohen, 392 U.S. 83
(1968).
(3) In a visa petition proceeding the District Director is an adjudicator, nut an adversary
wire needs standing to participate, therefore, the term "standing" has no relevance to
his role.
(4) The Immigration and Naturalization Service has the power to contest the validity of a.
foreign divorce in visa petition proceedings.

ON BEHALF OF PETITIONER.:

ON BEHALF OF SERVICE:

Joseph N. Tauber, Esquire
29 Hoyt Street
Stamford, Connecticut 069115

George Indelicate
Appellate Trial Attorney

BY: Milhollan, Chairman; Marrieds, Appleman, Maguire, and Farb, Board Members

This case presents an appeal from the decision of the Acting District
1978, denying a visa petition filed on behalf of the
beneficiary as the spouse of the petitioner pursuant to section 203(a)(2)
of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). The appeal
will be dismissed.
The petitioner is a native and citizen of Ecuador who was admitted as
a lawful permanent resident of the United States at New York on April
9, 1974. The beneficiary is a native and citizen of Colombia. On December 18, 1976, the parties married in Stamford, Connecticut, after
each had obtained Dominican divorces from their previous spouses in
Director dated June 12,

19'75.
The Acting District nirerter denied

the visa petition concluding that
the parties' marriage subsequent to the Dominican divorces was invalid
under Connecticut law, and, thus, the beneficiary was not entitled to
685

Interim Decision #2691
preference immigration status through the petitioner. His conclusion
was based on the Connecticut Supreme Court's decision in Litvaitis v.
Litvaitis, 162 Conn. 540, 295 A.2d 519 (1972), where the court ruled that
in order for a foreign divorce to be recognized in Connecticut, at least
one of the parties must be a good faith domiciliary of the foreign country
where the divorce was obtained. Since the petitioner was a lawful
permanent resident of the United States when the divorce took place
and there was no record of the beneficiary having been in the Dominican
Republic, the Acting District Director concluded that neither party was
a Dominican domiciliary and the divorce would not be recognized under
Connecticut law.
The legal validity of a marriage is generally determined by the place
of celebration. Matter of Levine, 13 I. & N. Dec. 244 (BIA 1969); Matter
of Freeman, 11 I. & N. Dec. 482 (BIA. 1966). In the present case,
Connecticut is the place of the marriage celebration, thus, we must
evaluate the marriage's validity under Connecticut law.
In Matter of Biebl, Interim Decision 2672 (BIA 1978), we examined
the law of Connecticut and concluded that a bona fide domicile by at
least one of the parties to the divorce in the country where the divorce
took place was required in order to recognize it. 8 C.F.R. 204.2(c)(2)
specifically requires a petitioner to establish the validity of a claimed
divorce_ Since the petitioner has not submitted any evidence to prove

that any of the parties to the two divorces was a Dominican domiciliary,
the petitioner has not met his burden of proving that he is entitled to the
immigration benefits sought. Matter of Brantigan, 11 I. & N. Dec. 493
(BIA 1966).
However, the petitioner at oral argument has attempted to distinguish the facts in the present case from those considered by the Connecticut court in Litvaitis v. Litvaitis, supra. He points out that Litvaitis
dealt with an ex parte divorce unlike the mutual consent divorce which
the petitioner and beneficiary in the present case obtained.
Although we agree with the petitioner's contention that Litvaitis wsis
not a mutual consent divorce, that difference does not require a different result from the Acting District Director's conclusion. In Litvaitis
the Connecticut Supreme Court was not stating a rule limited to ex
parte divorces. Bather, the court in Litvaitis was restating its previous
holdings in other cases involving bilateral divorces, that a bona fide
domicile by at least one of the parties was a requirement for recognition under Connecticut law. See Gildersleeve v. Gildersleeve, 88 Conu.
689, 92 A. 684 (1914); Rice v. Rice, 134 Conn. 440, 58 A.2d 523 (1948);
State v. Cooke, 110 Conn. 348, 148 A. 385 (1930). The rationale for the
Connecticut rule is that the divorcing court mist have personal jurisdiction and also res jurisdiction over the marriage which is the res in a
divorce proceeding: See Gildersleeve v. Gildersleeve, 92 A. at 685.
686

Interim Decision #2691
We also reject the petitioner's contention that the Acting District
Director lacks standing under Connecticut law to challenge the validity
of the Dominican divorces. The word "standing" is a legal term intimately related to a court's jurisdiction. The courts must ascertain that a
party has a legally protected interest in order to allow him to participate
in a judicial proceeding so that the legal questions will be framed with
the necessary specificity and the issues contested with the necessary
adverseness and vigor. See Flast v. Cohen, 392 U.S. 83, 106 (1968).
In a visa petition proceeding the Acting District Director is not an
adversary who needs standing to participate. 8 C.F. R. 103.1(n) grants
the District Director the power to adjudicate the visa petition. Thus, the
District Director's role is that of an adjudicator and not an adversary in
visa petition proceedings. The term "standing" has therefore no relevance with regards to the Acting District Director's role in adjudicating
a visa petition. We impliedly held that the Service has the power to
contest the validity of a foreign divorce in visa petition proceedings.
See, e.g., Matter of Guzman, Interim Decision 2484 (BIA 1976); Matter
of Darwish, 14 I. & N. Dec. 307 (BIA 1973); Matter of Atwater, 14 I. &
N. Dec. 410 (BIA 1973). Thus, the petitioner's contention Is without
merit and the appeal will be dismissed.
ORDER: The appeal is dismissed.

687


Interim Decision #2091

MATTER OF NAJAR

In Deportation Proceedings
A-8953550
A-8953551
Decided by Board July 28, 1971
Respondents, natives and citizens of Mexico exempt from the labor certification requirements of section 212(a) (14) of the Immigration and Nationality Act, as amended, as the parents of U.S. citizen children, are not, by
reason of nonavailability of special immigrant visas under the Western
Hemisphere annual limitation and the need to wait some 14 months for
the assignment of numbers, "ineligible to obtain" special immigrant visas
within the meaning of section 244(f) (3) of the Act so as to qualify for
suspension of deportation.

CHARGE :
Order: Act of 1952--Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Entry
without inspection (both aliens).
ON BEHALF OF RESPONDENT: Pro se

The respondents are husband and wife. The male respondent is
60 years of age and the female respondent is 49 years of age.
Both are aliens and natives and citizens of Mexico. Both of them
last entered the United States at San Ysidro, California on or
about May 10, 1956 without having been inspected by an immigration officer. In a decision of a special inquiry officer, dated December 23, 1970, both respondents were found deportable as
charged in each order to show cause, their applications for suspension of deportation pursuant to section 244 (a) (1) of the Immigration and Nationality Act were denied, but they were
granted the privilege of voluntary departure, with an alternate
order that if they failed to depart from the United States within
two months, they shall be deported to Mexico. The special inquiry
officer has certified this matter to the Board of Immigration Appeals for final decision.
Deportability having been conceded, the only issue remaining
was whether suspension of deportation was properly denied. The

737

Interim Decision #2091
respondents have been physically present in the United States for
more than the seven years required immediately preceeding their
applications and have been, and are, persons of good moral character as required by section 244 (a) (1) of the Act. Since they en
tered the country in 1956, they have prospered as self-employed
farmers in the vicinity of Olathe, Colorado. They have eleven
children. Their four oldest children were born in Mexico and entered the United States with their parents. Seven children have
been born to the respondents in this country and these seven children are United States citizens by birth. One child is married and
the remaining ten children live at home with the respondents.
Under the provisions of section 244 (f) (3) of the Act, the provisions of section 244 (a) shall not be applicable to an alien who is
a native of any country contiguous to the United States: Provided, that the Attorney General may in his discretion agree to
the granting of suspension of deportation if such alien establishes
to the satisfaction of the Attorney General that he is ineligible to
obtain a nonquota immigrant visa. The respondents, who are natives of Mexico, fall squarely within this proviso. As parents of
United States citizen children, they are exempt from the labor
certification requirements of section 212(a) (14) of the Act. The
various grounds of ineligibility for immigrant visas are set out in
the separate paragraphs, (1) through (31), of section 212(a) of
the Act. There is no evidence in this record to demonstrate that
these respondents are ineligible under any of the aforesaid paragraphs. As of the date that the applications for suspension of deportation were submitted, the latest Visa Office Bulletin of the
Department of State showed that numbers allocated under the
Western Hemisphere limitation were for applicants with priority
fates established about fourteen months earlier. We concur with
he special inquiry officer's opinion that the nonavailability of an
mmigrant quota number under the Western Hemisphere, and the
ieed to wait some fourteen months for the assignment of a numler, is an element of extreme hardship and is to be distinguished
rom the matter of being ineligible to obtain an immigrant visa.
Since there has been no showing that the respondents herein
re ineligible to obtain a nonquota immigrant visa, the relief proided in section 244 (a) (1) of the Act is not applicable to these
espondents who are natives of the Western Hemisphere. Despite
le sympathetic circumstances of this case, we have no alternaye but to sustain the action of the special inquiry officer in deying suspension of deportation. Voluntary departure is the only
scretionary relief for which the respondents are eligible and

738

Interim Decision #2091
they were afforded two months to depart voluntarily from the
United States, a period of time which we find to be reasonable. If
a real need for additional time can be demonstrated, the application for such extension of time should be directed to the, District
Director who has sole jurisdiction under 8 CFR 244.2. Accordingly, the following order will be entered.
ORDER: it is ordered that the special inquiry officer's decision
denying the applications for suspension of deportation pursuant
to section 244 (a) (1) of the Immigration and Nationality Act be
and the same is hereby affirmed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondents be permitted to depart from the
United States voluntarily within two months from the date of
this decision or any extension beyond that time as may be
granted by the District Director ; and that, in the event of failure
so to depart, the respondents shall be deported as provided in the
special inquiry officer's order.

739


Interim Decision #2549

MATTER OF WONG

In Deportation Proceedings
A-31222365

Decided by Board January 12, 1977
(1) Respondent was admitted to the United States as a lawful permanent resident without
a labor certification under section 203(a)(2) of the Immigration and Nationality Act as
the unmarried child of a lawful permanent resident. However, two weeks before she
entered the United States, she married. The immigration judge found her deportable
under section 241(a)(1) of the Act as an alien who was excludable at the time of entry.
Subsequent to this decision, respondent obtained an annulment of this marriage and
moved to reopen deportation proceedings.
(2) Notwithstanding the grant of a judgment of nullity by the Superior Court of California
rendering this marriage void ab initio, the doctrine of relation back which would
ordinarily apply in a situation such as this will be deemed not to apply here because it
does not promote the intended purpose. Although the annulment might be given
retroactive effect by the California court annulling the marriage ah initin, it will not he

-

given retroactive effect for immigration purposes.
(3) Since the respondent married before leaving Burma, she was in violation of the
immigration laws at the time of her entry into the United States. The Board is not
obliged to give retroactive effect to the California decree of annulment to cure a
violation of the immigration laws and the respondent was deportable as charged.
CHARGES:
Order: Act of 1952—Section 241(a)(1) (8 U.S. C. 1251(a)(1)]--Excludable by law existing

at time of entry (sec. 212(a)(19) of the Act)
Lodged: Act of 1952—Section 241(a)(1) E8 U.S.C. 1251(a)(1)]—Excludable—no valid
immigrant visa (sec. 212(a)(20) of the Act)
ON BEHALF OF RESPONDENT: Thomas N. Saldin, Esquire
4676 Admiralty Way, #632
Marina Del Rey, California 90291
BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

In a decision dated August 28, 1974, the immigration judge found the
respondent deportable as an alien who was excludable at the time of
entry under section 241(a)(1) of the Immigration and Nationality Act
alid granted her voluntary deparlAwe hi lieu of deportation. The respondent had obtained an immigrant visa by representing herself to be the
87

Interim Decision #2549
unmarried daughter of a lawful permanent resident. However, she had
married two weeks before actually entering the United States. Subsequent to the immigration judge's decision, the respondent obtained an
annulment of her disqualifying marriage and thereupon moved to reopen her deportation proceedings. The motion to reopen was granted by
the immigration judge and a hearing held_ In a decision dated June 10,

1976, the immigration judge denied a motion to terminate the deportation proceedings, finding that the annulment should not be given a
retroactive effect for immigration purposes_ Although the voluntary

departure was reinstated, the respondent has appealed the decision.
The appeal will be dismissed.
The respondent was born on December 25, 1942, and she is a native of
Burma and a citizen of China. She entered the United States on May 20,
1973, without a labor certification as the unmarried child of a lawful
permanent resident. Section 203(a)(2).
During reopened proceedings, counsel moved to terminate, contending that the respondent is not deportable because her marriage was
judicially annulled by the Superior Court of California on October 30,
1975; and that the annulment rendered her marriage void ab initio, as of
the date of the marriage, May 11, 1973. The record contains a Judgment
of Nullity in support of her contention.
The record also contains a notice from the Department of State
(FS 548) which informed the respondent that she would lose her preference status if she married prior to her application for admission to the
United States, and that she would also be subject to exclusion. That
notice was signed by the respondent and dated September 29, 1972.
Although the testimony is unclear, we find that the respondent entered
into a marriage prior to her admission into the United States despite the
fact that she had been previously warned that she would lose her
preference status if she married.
Counsel cites Matter of Samedi, 14 1. & N. Dec. 625 (BIA 1974) and
Matter of V , 6 I. & N. Dec. 153 (BIA 1954), as requiring that the
-

—

California decree of nullity be given a retroactive effect to void the

marriage as though it had never existed. Accordingly, the respondent
'would be the unmarried daughter of a lawful permanent resident at the
time of entry_ However, the immigration judge cites a more recent
Board decision, Matter of Castillo, Interim Decision 2427 (BIA 1975),
xvherein we held that the "relation back" doctrine should not be blindly
followed where to do so would result in a gross miscarriage of justice.
That decision was based on a California case, Sefton v. Sefton, 45 Cal. 2d
872, 291 P.2d 439 (1955), wherein it was held that the "relation back"
doctrine was a legal fiction designed to fashion substantial justice beftween the parties to a voidable marriage. Thus, in keeping with the

decision in Castillo, supra, we will not give the California annulment
88

Interim Decision #2549
retroactive effect in this case. The "relation back" doctrine must be
deemed to apply only where it promotes the purposes for which it was
intended. Matter of T—, 8 I. & N. Dec. 493 (BIA 1959). Even though
the annulment might be given retroactive effect, by the California
courts, annulling the marriage ab initio, it should mot be given a retroactive effect for immigration purposes.
As the respondent married before leaving Burma, she was in violation
of the immigration laws at the time of her entry into the United States.
Regardless of what effect the courts might give to a decree of annulment, for immigration purposes, we are not obliged to give retroactive

effect to it so as to cure a violation of the law respecting entry into the
United States.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily
within such time and under conditions of departure as may be set by the
District Director; in the event the respondent fails so to depart, the
respondent shall be deported as provided in the immigration judge's
order.

89


Interim Decision #1934

MATTER of DIAZ-POU
In Adjustment of Status Proceedings
A-17197570
Decided by District Director January 27, 1969

Applicant, who was admitted to the United States as a foreign government
official under section 101(a) (15) (A) (i) of the Immigration and Nationality Act, as amended, and whose official status has been terminated, is statutorily eligible for adjustment of status to that of a permanent resident
under section 13 of the Act of September 11, 1957, notwithstanding she is
a "special immigrant" as defined in section 101(a) (27) (A) of the Act, as
amended.

The applicant is a 53-year-old female, a native and citizen of
the Dominican Republic. She last entered the United States on
August 24, 1966 at Miami, Florida, under the provisions of section 101 (a) (15) (A) (i) of the Immigration and Nationality Act,
as amended.
The applicant was notified to the Department of State on April
10, 1982 as Consul General for the Dominican Republic at Los Angeles, California. She officially terminated her position with the
government of the Dominican Republic on July 14, 1966. She desires to remain in the United States to reside with her United
States citizen son, Manelik Pou.
The applicant is presently unemployed, but has substantial savings which are adequate for her immediate needs. In addition her
son has guaranteed her support.
The good moral character of the applicant has been established.
She is not inadmissible to the United States under the excluding
provisions of the Act, except for lack of entry documents. She has
fulfilled all the requirements for eligibility under section 13 of the
Act of September 11, 1957. The Secretary of State has no objection to the granting of permanent resident status.
The applicant, though a special immigrant, is eligible for the
benefits of section 13 of the Act of September 11, 1957. She is not
prima facie eligible for adjustment of status under any other pro-

116

Interim Decision *1934
vision of law. Her intentions are to remain in the United States
and she is not under any directive to depart.
it is ordered that the status of the applicant be adjusted to

that of lawful permanent resident of the United States.
It is further ordered that if during the session of Congress at
which this case is reported or the session next following, either

the Senate or the House of Representatives passes. a resolution
unfavorable to the applicant, this order be automatically revoked
and the applicant be required to depart from the United States in
the manner required by law.

117


Interim Decision #1965

Mwrrnn or law
In Deportation Proceedings
A-14574024
Decided by Board April 2,3, 1969
The special inquiry officer properly concluded that consideration must be
given an advisory report of the Department of State that a grant of adjustment of status to respondent would have an adverse effect on our relations with respondent's Government and on the international training program in which he was admitted as a participant; that the special inquiry
officer, upon consideration of all the factors of record, was influenced to
deny relief, in the exercise of discretion, because of the information in the
report, does not make the denial improper. Balancing the possible harm to
the training program, if respondent is granted adjustment of status, with
the possible hardship to him and his citizen wife, if he is denied such relief, the national interest requires that his application for adjustment of
status be denied.
CHARGE:
Order: Act of 1952—Section 241(a) (9)'" [8 U.S.C. 1251(a) (9)3—Nonimgrant

failed to comply with conditions of nonim-

—

migrant

status. •
ON BEHALF OF SERVICE:
Ralph Farb
Appellate Trial Attorney

ON BEAITLF OF RESPONDENT:
Jack Wasserman, Esquire
Warner Building
Washington, D.C. 20004
Lloyd A. Tasoff, Esquire
408 South Spring Street
Los Angeles, California 90013

The special inquiry officer found respondent deportable on the
ground stated in the caption. Voluntary departure was granted.
Provision was made for respondent's deportation to Switzerland,
and in the alternative to Formosa, if he failed to depart voluntarily. Respondent's other applications were denied. Appeal is from
the denials. Deportability is not in issue. The appeal will be dismissed.
The facts have been stated in great detail in previous orders of
236

Interim Decision #1965
the special inquiry officer and the Board. Briefly, respondent, a
37-year-old married male, a native and citizen of the Republic of
China on Formosa was admitted on August 5, 1964 to take part
in a United States program of military training. When he finished his training, his government ordered him to return to Formosa. He did not comply because he had met a United States citizen with whom he was in love. He married her on April 15, 1965
and tendered his resignation from military service. Having received no answer, he presumes he is considered a deserter.
Respondent applied for adjustment of status. The special inquiry officer granted the application. He did not think the record
was ripe for a decision. He pointed out that he had acted on the
application only because the parties, particularly the Service,
pressed for a decision on the basis of the record before him; that
an unfavorable attitude by the Department of State might make
denial the more appropriate thing; and that he was acting on a
record that did not satisfactorily contain the Department's view.
The Service appealed. It presented a Department of State report showing that the Department believed that a grant of adjustment would harm our relations with respondent's government. The Board reopened the hearing so that the new evidence
could be made a part of the record.
Reopened hearing was held on September 9, 1968. The special
inquiry officer denied respondent's application for adjustment as
a matter of discretion. He held that the Department of State report (Ex. 11 1) was a factor which had to be considered; that it
was advisory only; and that, as a matter of discretion, he would
not grant relief here, even though equities existed on respondent's
behalf, because of the adverse effect a grant could have on the international training program (pp. 6-8, special inquiry officer's
opinion, September 9, 1968).
Counsel contends that the Department of State report was not
made by the official authorized to make such reports and, therefore, is not entitled to considerable weight. He believeS the special
inquiry officer gave it controlling weight and that this was error.
He asks that the Board independently determine the effect a
grant of permanent residence to respondent would have on foreign relations, that the Board consider the penalty respondent
-

may have to pay for deserting and the fact that his wife will not

be able to get permission to accompany him to Formosa. The appellate trial attorney contends the action of the special inquiry officer was proper.
We must dismiss counsel's contentions. The special inquiry of-

287

Interim Decision #1965
ficer's opinion capably answers them. The special inquiry officer
properly held that the report of the Department of State and the
supporting reason for it must be considered. His opinion clearly
shows that he did not believe the report prevented. him from exercising his discretion, and that he considered all the factors of
record, favorable or unfavorable, in reaching his decision. That
the special inquiry officer was influenced to deny relief because of
the information in the report, does not make the denial improper.
The grant of relief is discretionary. Respondent has the burden
of establishing that relief should be granted. He has not carried
his burden. The record indicates that a domestic program for
training foreign armed forces may suffer if participants, from
whose return the foreign government hopes to benefit, were permitted to remain in the United States. Respondent has presented
no- evidence that the concern is groundless. The harm the program may suffer is a matter of concern to the agency with a special competence in the matter. The concern is an understandable
one and must be taken into consideration in passing on the application. Balancing the possible harm to the training program, if
respondent is granted an adjustment of status, with the possible
hardship to respondent and to his citizen wife, if he is refused relief, we conclude that the national interest does require that his
application for adjustment of status be denied. It is a serious
matter to separate families and we do not do so lightly. We have
carefully examined the record and all of counsel's contentions. We
have carefully weighed all the factors which must be taken into
consideration in deciding the application. Our decision that the
application should be denied is reluctantly made, but we think it is
the proper one under the circumstances. It should be clear that
neither our decision nor the special inquiry officer's was made in
the belief that the State Department report deprived the Attorney General of freedom of action in deciding the application,
Cheng Fu Sheng v. I.N.S., 400 F.2d 678 (9 Cir., 1968). See Secretary of Defense v. Le Khac. Bong, Civil #21,819 (D.C. Cir.,
March 8, 1969); Hosseinmardi v. I.N.S., 405 F.2d 25 (9 Cir.,
1969); Matter of Yousef, 11 I. & N. Dec. 163 (BIA, 1965) .

Counsel contends that if respondent is -returned to Formosa, he
will face persecution of the nature which would bring him within
the provisions of section 243(h) of the Act. The lucid and detailed presentation by the special inquiry officer satisfactorily
deals with the issue (pp. 8-11, special inquiry officer's opinion,
September 9, 1968). . The special inquiry officer has properly
found that respondent has failed to establish he would be faced

238.

Interim Decision #1965
with more than a court martial and a possible prison sentence for
his desertion. The special inquiry officer properly found that such
a result is not the persecution with which section 243 (h) is concerned, Cheng Fu Sheng v. I.N.S., supra; uupieich v. Esperdy,

319 F.2d 773 (2 Cir., 1963), cert. denied 376 U.S. 933; Chao—
Cir., 1960) ; Matter of
Liao, 11 I. & N. Dec. 113.
We have considered the citation of authority presented on respondent's behalf but do not find them apposite.
Respondent is being permitted to depart voluntarily to any
country of his choice instead of being returned to the Republic of
China. This grant of voluntary departure, although undoubtedly
unsatisfactory to all the parties concerned, appears to be justified
in view of respondent's claim that his wife will not go to Formosa with him.
ORDER; It is ordered that the appeal be and the same is
hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special
inquiry officer's order.
Ling Wang v. PiMod, 285 F.2d 517, 520 (7

239


Interim Decision #2698

MATTER OF PALELEI
In Visa Petition Proceedings
A 21328815
-

Decided by Board April 10, 1979
(I)

In order to qualify as a "daughter" for preference purposes, a beneficiary must once
have qualified as a "child" of the petitioner under section 101(b)(1) of the Act.
(2) To be valid for immigration purposes, an adoption must create a legal status or
relationship.
(3) To determine whether an adoption is valid, we look to the law of the place where the
adoption took place.
(4) To prove a customary adoption, the petitioner must establish that a custom existed
which was officially recognized as resulting in a legal adoption, legally binding on the

parties, and that the adoption under consideration conformed with the custom, and
resulted in a legal adoption in the place where the adoption occurred.
(5) In the absence of evidence that customary adoptions in Tonga are officially recognized
as legal adoptions, and where the

Solicitor uf Tonga is uf the opinion that

customary adoptions are not so recognized, such adoptions will not be recognized as
valid under United States immigration laws.
ON BEHALF OF PLii IONER:
Michael D. Finnegan, Esquire
Simmons & Ungar
517 Washington Street
San Francisco, California 94111

ON BEHALF OF SERVICE:
George Indelicato
Appellate Trial Attorney

BY: Milhollan, Chairman; Maniatis, Applernan, Maguire, and Farb, Board Members

The case comes forward on appeal from the decision of the District
Director revoking approval of the -visa petition filed on behalf of the
beneficiary.
On June 16, 1976, the lawful permanent resident petitioner applied
for second-preference benefits for the beneficiary as her adopted daughter under section 203(a)(2) of the Immigration and Nationality Act, 8
U.S.C. 1153(a)(2). The petition was initially approved on June 18, 1976,
but on August 30, 1976, the District Director advised the petitioner of
his intent to revoke the petition on the ground that the adoption IV aS not
recognized under Tongan Civil Law and lipeanAp the petitioner had
failed to establish that the beneficiary was under 14 years of age at the
716

Interim Decision #2698
time of the adoption. The District Director revoked approval of the
petition on September 30, 1976. On appeal, the petitioner submitted
additional evidence suggesting that her adoption of the beneficiary was
in accordance with the customs of Tonga and was recognized under the
law of Tonga. We remanded the record to the District Director for
consideration of the additional evidence and entry of a new decision. On
March 8, 1978, the District Director reaffirmed his revocation of approval of the petition on the basis that an adoption under Tongan law
had not been established. The petitioner has appealed from that decision. The appeal will be dismissed.
The beneficiary, a native and citizen of Tonga, was born legitimate on
January 18, 1951. Shortly after her birth she was given over into the
care of her uncle. In 1956 the beneficiary was taken into the home of the
uncle's natural daughter, the petitioner in this case, and her husband.
The beneficiary resided with this couple until their departure for the
United States in 1975. The petitioner argues that we should find a valid
adoption pursuant to the customary and tribal law of Tonga.
In her brief the petitioner explains that Tongans frequently give
children to close relatives ft -yr the purpose of rearing them. Her contention is supported by an opinion of Mr. William Clive Edwards, who
states that he is a licensed lawyer of the Supreme Court of Tonga; C.
Urbanowicz, "Tongan Adoption Before the Constitution of 1875," from
Ethnohistory 2012 at 109-123 (1973); K. Morton, "Tongan Adoption,"
which appears as chapter 4 of I. Brady, Transactions in KinshipAdoption and Fosterage in, Oceania (1976).
In order to qualify as a "daughter" for preference purposes, a
beneficiary must once have qualified as a "child" of the petitioner under
section 101(b)(1) of the Aet. Nazareno v. Attorney General, 512 F.2d
936 (D. C_ Cir. 1975), cert. denied, 423 U.S. 832 (1975); Matter of Bullen,
Interim Decision 2621 (BIA 1977); Matter of Coker, 14 I. & N. Dec. 521
(BIA 1974). The relevant provision in this case is section 101(b)(1)(E),
which includes in the definition of child:
IA) child adopted while under the age of fourteen years if the child has thereafter been
in the legal custody of, and has resided with, the adopting parent or parents for at least
two years. . . .

We have held that an adoption, to be valid for immigration purposes,
must create a legal status or relationship. Matter of Benjamin, Interim
Decision 2505 (BIA 1976). A relationship in the nature of charitable help
to a needy child is not an adoption under our immigration laws. Matter
of Yee, 13 I. & N. Dec. 620 (BIA 1970), overruled on other grounds in
Matter of Yee, 14 I. & N. Dec. 132 (BIA 1972). To determine whether
the requisite relationship exists, we look to the law of the country in
which the adoption took place. Matter of Garcia Rodriguez, Literim.
Decision 2630 (BIA 1978); Matter of Dhillon, Interim Decision 2620
-

717

Interim Decision #2698
(BIA 1977); Matter of Benjamin, supra; Matter of Park, Interim Decision 2437 (BIA 1975); Matter of Kwok, 14 I. & N. Dec. 127 (BIA 1972);
Matter of Lau, 10 I. & N. Dec. 597 (BIA 1964); and Matter oft—, 6 I. &
N. Dec. 760 (BIA 1955). If the civil law of a country does not recognize
adoptions, no benefits accrue under the United States immigration laws
based on adoptions allegedly occurring in that country. Matter of Benjamin, supra; Matter of Ashree, Ahmed and Ahmed, 14 I. N. Dec.
305 (BIA 1973); Matter of Boghdadi, 12 I. & N. Dec. 666 (BIA 1968);
Matter of B—, 9 I. & N. Dec. 521 (1961).
In Matter of B—, supra, we discussed customary adoptions:
[I]n the absence of a statutory procedure of adoption, the petitioner must establish that
a custom existed . which was recognized officially as resulting in a legal adoption,
legally binding upon the parties concerned, and that it was necessary to establish that
the adoption of the beneficiary by the petitioner conformed with these customs and
resulted in a legal adoption.

This Board has accepted as valid customary adoptions which are
recognized as legally valid by the country in which the adoption occurred. Matter qinte, 12 I. & N. Dec. 747 (BIA 1968); Matter of Ng, 14
I. & N. Dec. 135 (BIA 1972).
The critical issue in this case is whether the beneficiary's adoption is
legally valid under Tongan law.
Before making his decision in this case, the District Director requested assistance from the Library of Congress. The Library of Congress consulted the Crown Solicitor of Tonga who advised that the law
of Tonga provides for the adoption of illegitimate children under certain circumstances, but that:
There is no provision in our law for the adoption of children born legitimately.
Nevertheless it has been a common practice in Tonga for relatives to raise am/ maintain
children, including legitimate children as part of the family and fn treat them in all
respects as if they were legally adopted. Such "adoption" does not give the child any
legal right in the estate of the foster parent and is not recognized as legally valid under
Tongan law.

The petitioner aruges that inasmuch as the Crown Solicitor acknowledges the existence of customary adoptions, his opinion is deficient
because it appears to conclude that such customary adoptions are not
legally recognized because the adopted child has no right in the estate of
the adoptive parent. We disagree. In our view, the Crown Solicitor
merely acknowledges the fact that there are customary adoptions in his
country, but in his opinion, such adoptions are not recognized as legally
valid under Tongan law. Ills statement that the adoption does not give
the child any right in the estate of the foster parent is merely a prelude
to his conclusion; it points to one of the attributes of a natural parent•hild relationship which does not accrue to a child adopted pursuant vo
'Tongan custom.

718

Interim Decision #2698
Further, the Crown Solicitor's conclusion is supported by one of the
sources relied upon by the petitioner. In chapter 4 of I. Brady, Transactions in Kinship-Adoption and Fosterage in Oceania (1976), llIr. Morton (author of chapter 4) relates that an exchange of children which he
calls adoption is a frequent occurrence in Tonga. He explores the circumstances of these exchanges and their social acceptance. On page 65

he notes:
Few applications for legal adoptions are made to the courts because the circumstances
of Tongan Adoptions are frequently incongruent with the European model of adoption
applied in the courts. (Emphasis supplied.)

Irrespective of the basis for the Crown Solicitor's conclusion, the fact
remains that the petitioner has shown no legal purpose for which customary adoptions are officially recognized in Tonga. We will not recede
from the interpretation of section 101(b)(1)(E) which we have held
consistently, since its enactment in 1957, that for an adoption to be
recognized under the Act, it must be considered a lawful adoption in the
jurisdiction where it occurred.
The petitioner's explanation for the lack of evidence of official recognition of customary adoptions is that the people of Tonga do not generally
resolve their familial disputes in court and inasmuch as Tongan customary adoption is a consensual transaction, there would be few custody
and parental rights disputes to be litigated.
The burden of proof in visa petition proceedings is upon the petitioner. Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). A
petitioner who relies on foreign law to establish eligibility for an immigration benefit moist prove that law as if it were a question of fact.
Matter of Annang, 14 L ei N. Dec. 502 (BIA 1973). Notwithstanding a
plausible explanation for her failure, the petitioner has still failed to
meet her burden in this case. Therefore, despite the equities present,
we must dismiss the appeal.
ORDER: The appeal is dismissed.

719


Interim Decision #1518

ILyrrau

Or SASAN0

in Visa Petition Proceedings
SFR-N-1593
Decided by Regional Commissioner October RR, 1965
Petition by the owner and operator of a fruit orchard to accord beneficiaiy
nonimmigrant classification under section 101(a) (15) (a) ( 111), Immigration
and Nationality Act, as an industrial trainee in American methods of
agriculture applicable to fruit raising, is denied since the proposed training
program for beneficiary, a graduate of an agricultural college in Japan
with 32 years' subsequent experience specializing in crops similar to those
of petitioner, would consist principally of practical, on-the-job training.
In addition, since beneficiary would be employed at least 8 hours per day,
6 days per week the entire year, and daring a considerable portion of the
year would-be petitioner's only employee, lb is concluded he would be in
volved in full-time productive employment • and that any training received
would be incidental thereta.

Discussion: This case is befoie the Regional Commissioner on
appeal from the District Director's decision denying the petition on
the following grounds:
It has been established that you have 60 acres of land under cultivation,
which includes 30 acres of pears, 20 acres of plums, and a combination of
10 acres of vegetables, peaches, persimmons and cherries, and that you employ
only 5 to 6 workers hi the peak of the season. During a Considerable poition
of the year, the trainee will be your only employee, and for that reason
it is concluded that the beneficiary will displace a United States citizen or
resident alien, who would ordinarily be required to do the work that the
beneficiary will be engaged in. Further, you have failed to establish that
there will be any training offered the beneficiary other than full-time on-thejob training.

The petitioner is owner and operator of a 60 acre fruit orchard.
Ike proposes to train the beneficiary in American methods of agriculture as applied to fruit raising. He has submitted an Outline of
the proposed training which covers orchard management, planting
and cultivation, packaging and shipping, and harvesting. 11e estimates the period of training required as 86 months.
363

Interim Decision #1518

The beneficiary is a 52-year-old native and citizen of Japan presently residing in Japan. Information has been submitted that he is
a graduate of the Kagoshima ktiyanojo Agriculture State College
and has subsequently been engaged in farming in Japan for 12 years.
. ne has submitted an affidavit attesting to ownership of 5.5 acres of
land and that 8 acres of that land are devoted, to orchards.
When. interviewed by a, representative of this Service, the petitioner stated that all of the training offered would be by practical
on-the-job training supplemented by unscheduled trips to the 'University of California to attend lectures and by visits to county fairs.
In his brief nn appeal, petitioner stresses his qualifications as a
trainer and draws attention to the fact this Service previously ap- •
provedhistnfagrcultinewhomads
employ for a period of three years.
The petitioner has established the beneficiary is a:graduate of an

agricultural college in Japan and that he has subsequently had 12
years' experience as a farmer specializing in crops similar to those
of petitioner.
It is conceded that American agricultural methods may differ from
those of Japan to 'some extent. It is obvious that a peach, pear,
plirm, or citrus fruit grows much tha same in either locale. It is
reasonable to assume that only the method of raising differs, and
• the adoption of that method to the certain locale. This can be
taught without resorting to the day today chores involved in cultivation, pruning, spraying, and irrigation. The need to train a person who is a, graduate of an agricultural college and who has 12
years' subsequent experience as a farmer in such a manner is unrealistic.
Petitioner has stated the beneficiary will be emiiloyed eight hours
a day in the winter and ten hours a day in the summer six days a
week at the wage of $1.25 per hour yet maintains no domestic labor
will be replaced. No explanation concerning replacement of the
productive labor-involved is given.
Theeptire record, including representations made on appeal, has
been carefUlly considered and it is concluded the beneficiary would
be involved in full-time productive employment and that any training received would be incidental thereto. The decision of the District Director was proper, and no 'evidence has been submitted that
would warrant disturbing that decision. The appeal will be dis:
missed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
5 04


Interim Decision #2394

MATTER .OF TUCKER
In Deportation Proceedings

A-14231434
Decided by Board June 10,

1976

The respondent was convicted upon a plea of guilty, of unlawful possession of marijuana in
violation of section 11530 of the California Health and Safety Code. Subsequently, the
court set aside that guilty verdict and allowed him to plead guilty to a violation of
section 11556 of that Code, sentenced him to 30 days and then terminated probation,
pursuant to sections 1203.3 and 1203.4 of the California Penal Code. Section 1203.3
operates to continue the court's jurisdiction insofar as it relates to probation. It does not
authorize the court to vacate a conviction. Section 1203.4 only authorizes the court to
expunge the record of conviction following the successful completion of probation. It
does not authorize the court to accept a guilty plea to a lesser offense. Under these
statutes, the court had no authority to permit substitution of the guilty plea to violation
of section 11555 of the Health and Safety Code. Furthermore,. oxpungoment of st
conviction for violation of section 11630 of the California Health and Safety Code
pursuant to section 1203.3 and 1203.4 of the California Penal Code, does not operate to
remove that conviction as a ground of deportability under section 241(a)(11) of the
Immigration and Nationality Act. See Kelly v. I Ininigration and Naturalization Service, 349 F.2d 473 (C.A. 9, 1965). Therefore, the respondent is deportable as charged.
CHARGE:

Order: Act of 1952—Section 241(a)(11) (8 U.S.C. 1251(a)(11)]—Marijiisna possession,
conviction: Violation of section 11530, California Health and
Safety Code.
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Bernard J. Hornbach, Esquire
Trial Attorney

Ilmothy H. Power, Esquire
228 McAllister Street .
San Francisco, California 94102

This is an appeal from a"decision of an Immigration judge dated October 15, 1973, denying the respondent's motion for reconsideration
of the immigration judge's decision of March 2, 1972. The appeal will be

dismissed.
The respondent was convicted on October 29, 1971 in the California
Superior Court for the County of Merin, by verdict of a jury, of unlawful
possession of marijuana in violation of section 11530 of the California
Health and Safety Code. On March 14, 1972, the court ordered suspension of the imposition of sentence and placed the respondent on probation. On February 22, 1973, the Superior Court granted the respondent
337

Interim Decision #2394
a release pursuant to section 1203.4 of the California Penal Code; set
aside the guilty verdict under section 11530 of the California Health and
Safety Code; allowed the respondent to plead guilty to a lesser included
offense of violation of section 11556 of the Health and Safety Code;
sentenced him to serve 30 days in the County Jail with credit for 30 days
served; and terminated probation.
Section 241;a)(11) of the Act concerns itself with a conviction of an
offense relating to illicit possession of or traffic in narcotic drugs or
marijuana. Federal courts have generally taken the view that a plea of

guilty or a finding of guilty, which is in repose and remains undisturbed,
amounts to a conviction. See Kercheval v. United States, 274 U.S. 200
(1927). Here there was a verdict of guilty. In Wood v. Hoy, 266 F.2d 825
(C.A. 9, 1959), the court held that a conviction in California followed by
a suspended sentence and placement on probation remains a "conviction" within the Immigration and Nationality Act. In fact, section 1237
of the California Penal Code provides that an order granting probation
"shall be deemed to be a final judgment" for the purpose of appeal. The
respondent's conviction of unlawful possession of marijuana under section 11530 of the California Health and Safety Code is sufficient to
sustain a finding of deportability under section 241(a)(11). See Gutierrez
v. INS, 323 F.2d 593 (C.A. 9, 1963), cert. denied 377 U.S. 910 (1964).
In Matter of Kelly, 10 I. & N. Dee. 526 (BIA 1964), relying on the
Attorney General's ruling in Matter of A—F—, 8 I. & N. Dec. 429 (A.G.
1959), we held that a finding of deportability under section 241(a)(11) of
the Act based upon conviction for unlawful possession of marijuana in
violation of section 11530 of the California Health and Safety Code is not
affected by the expungement or erasure of the conviction record as
authorized by sections 1203.3 and 1203.4 of the Penal Code of California.
Our positions in Matter of Kelly, supra, was affirmed in Kelly v. INS,
349 F.2d 472 C. A. 9), cert. denied 389 U.S. 932 (1965). The Attorney
General's ruling in Matter of A—F—, supra, has been sustained by the
courts. See Garcia-Gonzales v. INS, 344 F.2d 804 (C.A. 9), cert. denied
382 U.S. 840 (1965); Kelly v. INS, supra; Brownrigg v. INS, 356 F.2d
877 (C.A. 9, 1966); Cruz-Martinez v. INS, 404 F.2d 1198 (C.A. 9, 1968),
cert. denied 394 U.S. 955 (1969); Gonzales de Lara v. United States, 439
F.2d 1316 (C.A. 5, 1971); Matter of Andrade, 14 I. & N. Dec. 364 (BIA
1973).
In allowing the respondent to plead guilty to violation to section 11556
of the California Health and Safety Code, the court describes it as a
"plea to a lesser included offense." InPeople v. Perez, 33 Cal. Rptr. 398,
219 C.A.2d 760 (1963), the court held that in determining whether there
has been a violation of section 11556, there must be proof that narcotics
"are being =lawfully smoked or used. . . with knowledge that such
activity is occurring' at the time of the visitation or presence. The court
338

Interim Decision #2394
in People v. Wilson, 't6 Cal. Rptr. 195, 271 C. A.2d 60 (1969), held that
the offense defined by section 11556 is not included in the offense defined
by section 11530 of the Health and Safety Code, which forbids possession of marijuana. Modification by vacating a finding of guilt and reduction to a lesser included offense is specifically provided for in section
1181(6) of the California Penal Code without requiring an order for a
new trial. Even assuming that section 11556 could be considered a lesser
included offense, the procedure under Penal Code section 1181(6) would
have been the procedure which should have been followed.
Section 1203.3 of the California Penal Code continues the jurisdiction
of the court over the convicted person only so far as conditions of
probation and matters relating to probation are concerned. The section
does not authorize vacating a conviction. It provides that the court shall
have authority to revoke or modify probation "at any time during the
term of probation," Matter of Sirhan, et al., 13 I. & N. Dec. 592 (BIA
1970); In re Griffin, 62 Cal. Rptr. 1, 431 P.2d 625 (1967); Fayad v.
Superior Court, 153 C.A.2d 406, 313 P.2d 669 (1957); In re Scarborough,
173 P.2d 825 (C.A. Cal. 1946).
The question before us is whether section 1203.4 of the California
Penal Code, in addition to authorizing expungement of the conviction
under section 11530 of the Health and Safety Code, confers on the court
the jurisdiction to substitute therefor a plea of guilty to another offense
of the same Code, section 11556. In this case, if the court had the power
of substitution, the respondent's conviction of a deportable offense
within the meaning of section 241(a)(11) of • the Act. •See Matter of
Schunck, 14 I. & N. Dec. 101 (BIA 1972). If the court did not have the
power, then as heretofore explained the respondent is not relieved from
the finding of departability under section 241(a)(11) based upon his
conviction of violation of section 11530.
Section 1203.4 of the California Penal Code creates a statutory procedure by which convictions are technically expunged as a matter of
course as a reward for those who have successfully completed probation.
See Matter of A — F— , supra, People v. Johnson, 134 C.A.2d •40, 285
P.2d 74 (1955). A careful analysis of this section clearly shows that the
only power given to the court after termination of probation is to set
aside a verdict of guilty and expunge the conviction for the limited
objective set forth in the section. The section specifically states the
limits of the court's power as follows: ". . .; and in either case the court

shall thereupon dismiss the accusations or information against such
defendant, who shall thereafter be released from all penalties and
disabilities resulting from the offense or crime of which he has been
convicted. (Emphasis supplied.)
California criminal courts have statutory and inherent powers to
modify orders. Section 1203.3 of the Penal Code involves only matters
339

Interim Decision #2394
relating to revoking or modifying probation. See In re Scarborough,
supra. By the very terms of section 1203.4 of the Penal Code the court is
empowered only to expunge the conviction from the record for certain
limited purposes. See People v. Johnson, supra. The respondent made
no appeal from the conviction as was his right (section 1235 California
Penal Code). He failed to request a new trial as provided under section

1181 of the Penal Code. The court had no jurisdiction to vacate and
correct the judgment under section 1203.3 or 1203.4 of the Penal Code.
It follows that the only authority remaining would be under the continuing inherent power to apply for writ of error eoram nobis under section
1265 of the Penal Code. The writ lies to vacate or correct a judgment
where no other remedy exists. It is granted only when three requirements are met. (1) Petitioner must "show that some fact•existed which,

without any fault or negligence on his part, was not presented to the
court at the trial on the merits, and which if. presented would have
prevented the rendition of the judgment." (2) Petitioner must also show
that the "newly discovered evidence (does not go) to the merits of the
issues tried; :ssues of fact, once adjudicated, even though incorrectly,
cannot be reo:pened except on motion for new trial." (3) Petitioner "must
show that the facts upon which. he relies were not known to him and
could not in the exercise of due diligence have been discovered by him at
any time substantially earlier than the time of his motion for the
writ,. . ." See People v. Shipman, 42 Cal. Rptr. 1, 397 P.2d 933 (1965);
People v. Wheeler, 85 Cal. Rptr. 242, 5' Cal. App. 3d 534 (1970).
• It is counsel's contention that (1) the court merely intended to correct
a mistake in its earlier judgment when it expunged the conviction under
section 11530 and then allowed the respondent to plead guilty to another
offense; (2) since the court retains jurisdiction of an action while a
defendant is on probation, it would have the right to allow a plea of
guilty to another offense. The short answer is that under the powers
authorized by section 1203.4 of the California Penal Code the question is
not lack of jurisdiction over the cause but excess of jurisdiction. The
court did not have the power under section 1203.4 to accept the respondent's plea of guilty to a violation of section 11556 of the Health and

Safety Code, after its expungement of the respondent's conviction of
violation of section 11530 of the Health and Safety Code.
We agree with the immigration judge's conclusion that the respondent remains deportable as charged. No facts have been presented to
make out a prima facie case for reconsideration of the immigration
judge's decision of March 2, 1973. Moreover, there is no indication that
any useful purpose would be served in reversing the immigration
judge's denial of the motion for reconsideration. Accordingly, the following order will be entered.
ORDER: The appeal is dismissed.
340


Interim Decision #1717

MATTER OF Doi:moms
In Visa Petition Proceedings
A-12192152
Decided by District Director March, 14,1967
Since en accountant is a member of the professions within the meaning of section
101(a) (82) of the dunnigration and Nationality Act, as amended by P.L. 89-236,
and since beneficiary, whose foreign education has been evaluated as equivalent
to a baccalaureate degree in accounting erom an accredited institution of higher
learning in the 'United States, is a qualified accountant, he is accorded preference classifications under section 203(a) (8) of the Act as an accountant.

The petition was filed to accord the beneficiary a third preference
classification as a member of the professions based upon his qualifications as an accountant. The beneficiary is a male, single, native and
citizen of Greece, age 82, presently residing in Baltimore, Maryland.
The beneficiary received a Bachelor of Science degree in accounting
in May 1960 from the Graduate Industrial School, Athens, Greece.
The Office of Education, Washington, D.C., has certified that the beneficiary's degree is equivalent to an undergraduate© degree in accounting
from an accredited institution of higher learning in the United States.
From 1961 to 1964 he attended the University of Maryland, College
Park, Maryland, taking graduate courses in economics. He has been
employed as an accountant from August 1966 to date by the International Bank for Reconstruction and Development, Washington, D.C.
The beneficiary intends to engage in his profession in the United States
as an accountant.
A certification pursuant to section 212(a) (14) of the Act, as amended, has been issued by the Department of Labor.
Accountants and auditors are listed among professional occupations
under code 0-01 in the Dictionary of Occupational Titles, Volume II,
Second Edition, prepared by the Department of Labor. In the Third
Edition of the above publication, accountants and auditors are listed

under professional, technical, and managerial occupations, code 160.
Accountants compile and analyze business records and prepare financial reports, such as profit and loss statements, balance sheets, cost
153

Interim Dedision #1717
studies, and tax reports. The major fields of employment are public,
private, and government accounting.
The Occupational Outlook Handbook, 1966-67 edition, of the United
States Department of Labor, states that training in accounting can be
obtained in universities, 4-year colleges, junior colleges, and accounting and private business schools, but that a bachelor's degree with a
major in accounting or a closely related field is increasingly an asset
and may be required for better positions. Candidates with a master's
degree in accounting, as well as college training in other business and
liberal arts subjects, are preferred by many firms. The Handbook further states for beginning accounting positions the Federal Government requires 4 years of college training or an equivalent combination
of education and experience. For teaching positions in accountancy,

most universities require a master's degree or a doctorate. Accountants
who want to get to the top in their profession usually find it necessary
to continue their study of accountancy and related problems —even
though they may have already obtained college degrees or CPA certificates. The Handbook says that keeping track of where the money
goes in the maze of financial transactions in today's business and government requires the services of experts, called accountants, numbering about 450,000 in 1965, of whom more than 80,000 were certified
public accountants. It is also stated. that accounting is one of the
largest fields of professional employment for men and that demand for
college-trained accountants is expected to rise at a fast pace because of
the growing complexity of business and its accounting requirements:
Starting salaries for new college graduates averaged about $6,400 a
Tear and chief accountants in other than public accounting firms
averaged between $10,000 and $16,000 a year. •

James A. Cashin, professor of accounting of Hofstra University,
Hempstead, Long 'Island, New York, and author of "Careers and

Opportunities in Accounting", published in 1965, states that in planning for a career in accounting it is essential to obtain a college degree
with a major in accounting. He points out that during the last fev0
years there has been an increasing emphasis on graduate study and that
a far greater percentage of undergraduate students now go on to earn
a master's degree or a doctorate. Professor Cashin quotes from Robert
M. Trueblood's "The Future of Accounting Education", published in
1960, that in any profession the 'student must be trained to live with
the world for many years beyond his formal education, So that over
the course of his life he can adjust himself to changes in the require.;
ments and activities of his profession. Professor Cashin states that
accounting is now regarded as a profession, just as are medicine, law,
and engineering. He adds that professional accounting associations,
154

r Interim _Decision #1717

through high standards of membership and their publications, have.
also helped earn for accounting the status of a widely recognized
profession.
It is concluded that a person with a bachelor's degree in accounting,
or a combination of education and experience equivalent to such a
degree, is a member of the professions within the meaning of sections
101 (a) (32) and 203(a) (3) of the Act, as amended. The applicant is.
entitled to classification as member of the professions by virtue of his
educational attainments.
ORDER: It is ordered that the petition be approved and the beneficiary accorded third preference under section 203 (a) (3) of the Immigration and Nationality Act, as amended.

165
82I•454--•89---- )2


Interim Decision #1413

MATTER OF JACOBSON

In DEPORTATION Proceedings
A-11309562
Decided by Board December 4, 1904
An applicant for suspension of deportation who, following illegal entry into the
United states in 1953, was absent therefrom for a brief visit of 4 or 5 hours
to Mexico in 1959 during the statutory period of required Coutluuous 'Divalent
presence, thereby broke the continuity of such physical presence and, therefore, is statutorily ineligible for suspension of deportation under section
244(a) (1), Immigration and Nationality Act, as amended.
CUARGE:
Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)7—Excludable
at time of entry under section 212(a) (9) of the Act: Burglary,
Third Degree [8 U.S.G. 1182(a) (9)1

The respondent, a native of Germany and last a citizen of Poland,
appeals from an order entered by the special inquiry officer on September 21, 1964, directing his deportation to Poland on the charge stated
in the order to show cause. The order also provides that in the event
Poland refuses to accept the respondent he shall be deported to Germany. Suspension of deportation under section 244(a) and a stay
of deportation under section 243(h) of the Immigration and Nationality Act, were denied. The appeal is directed to the denial of discretionary relief. •
The respondent, male, married, 53 years of age was lawfully admitted to the TTnited States for permanent residence in 1929. He
was convicted in 1935 in the State of New York for the crime of
burglary, third degree and sentenced to serve a term of two and a half
months to five years in the State Penitentiary. He served two years
of that sentence and was deported from the United States on November 4, 1937, on the charge that he admitted committing a crime
involving moral turpitude.
The respondent reentered the United States illegally without inspection in 1953 and has resided in the United States since that entry.
He last entered the United States in 1959 after a brief visit to Mexico.
782

Interim Decision #1413

The finding of deportability is based upon the respondent's last entry
in 1959 after a temporary visit of four or five hours in Mexico.
The respondent has applied for suspension of deportation under
section 244(a) (1) of the Immigration and Nationality Act. The special inquiry officer finds that the respondent is not statutorily eligible
for suspension of deportation under section 244(a) (1) for the reason

that he has not been physically present in the United States for a continuous period of not less than seven years due to the fact that the
respondent made a brief visit to Mexico in 1959. The special inquiry
officer concludes that the "casual visit" doctrine laid down by the Supreme Court in the case of Rosenberg v. Fleuti, 1 is not applicable to
respondent's case because he has not had a lawful entry. The special
inquiry officer relies on the Board's decision in Matter of Wong, Int.
Dec. No. 1334, BIA, April 22, 1964.
Counsel urges error in the special inquiry officer's conclusion. He
reasons that section 244(a) (1) dues nut euntain any requirement that
an alien must be lawfully admitted into the United States as a condition precedent to the exercise of discretion. He maintains that the
Board's opinion of July 15, 1963, directing a reopening of this proceeding to permit application for suspension of deportation, states in sibstance that the special inquiry officer should consider the principles
laid down in the Fleuti case (supra) relative to Fleuti's brief absence
from the United States as applying to respondent's brief absence of
several hours in Mexico while attending a bull fight. It is undisputed
that but for the visit of several hours in Mexico the respondent would
meet the seven-year continuous presence requirement of the statute.
Before considering the merits of whether Fleuti is applicable in the
instant case we wish to point out that our decision of July 15, 1963_
merely calls the attention of the special inquiry officer to the Supreme

Court's recent decision (June 1963) on the issue of a "casual vise to
Mexico. We stated "while that decision (Fleuti) is concerned primarily with the definition of 'entry,' the special inquiry officer may
consider that it also affects respondent's eligibility for a grant of suspension of deportation." There is nothing in our decision which requires the special inquiry officer to accept the "casual visit" doctrine as
applicable to the respondent's case.
The issue before us concerns whether the respondent's departure to
Mexico in 1959 and reentry into the United States after a "causal
visit" in Mexico of four or five hours duration interrupts the continuous presence requirement of section 244(a) (1) of the Immigration

and Nationality Act. The case of Rosenberg v. Fleuti (supra) interpreted the term "entry" as defined in section 101 (a) (13) as "any corn' 83 Supreme Court 1804, 374 U.S. 449 (1953).

783

Interhu Decision 41413
ing of an alien into the United States, from a foreign port or place .. .
except that an alien having a lawful permanent residence in the United
States shall not be regarded as making an entry into the United States
for the purpose of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or
place . . . was not intended by hint . . ." Inasmuch as Fleuti had
been admitted to the United States as a lawful permanent resident before his brief visit to Mexico, the Supreme Court extended the intent
exception of section 101 (a) (13) to cover a brief, casual trip to Mexico
and ruled that Fleuti had not made a, "meaningful departure" disruptive of his physical presence in the United States.
The key words in the definition of the term "entry" which made the
intent exception applicable to Fleuti are "any alien having a lawful
permanent residence in the United States." Fleuti was a, lawful permanent resident of the United States at the time he made his casual
visit to Mexico. This respondent was not. Ho entered the United.
States illegally without inspection in 1953 after having been deported
in 1937. He is not within any of the exceptions set forth in section
244 (b) and since the record establishes that he has been absent from
the United States within the seven-year period preceding his application for suspension of deportation we find that he is ineligible for
suspension of deportation under section 244 (a) (1) of the Immigration
and Nationality Act.
Counsel in the alternative seeks a temporary stay of the respondent's
deportation pursuant to the provisions of section 243 (h) of the Immigration and Nationality Act. The special inquiry officer concludes
that the respondent has not met the burden of proving that he would be
subjected to physical persecution if deported to Poland or Germany.
We affirm. the conclusion of the special inquiry officer in this regard.
The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.
.

784