11AunLE or DeG-- cr AL.

In EXCLUSION Proceedings
A-10644334
A-10847616
A-11404156
A-11097105
Decide
Board Stay 14, 1959
Comtni9sionet's Motion ,Inne 15, 1959
Board. Decision Angit9t 24, 1950
Decided by the Attorney General December 14, 1059
Waiver of excludabillty—Adrunce exercise of sections 5 and 7, Act of September
11, 1957, not authorized in exclusion proceedings rihcre progent excludability
is established.
Advance svaircrr of inadmissibility under sections 5 and 7 of Act of September 11, 1057 are not authorized to fccnitate future admission of aliens
ordered excluded. Disposition of waiver requests must await room to foreign territory and compliance with procedure established by 8 CFI; 212.7(a).
EXCLUDABLE:

(—Act of 1552--Sentiou 212(a(12) [t U.S.C. 1182(a)(22)1—Em
gaged ln prostitution.
(DeV—)--Act of 1992 - goction 212(a) (12) [8 U.S.C. 1182(a) (12)1—Engaged in prostitution.
Act of 1952—Section 212(0 (19) [8 U.S.C. 1782(0) (10) (—Visa
by fraud or willful misrepresentation.
Act of 1 1352--Section 212(a) (20) [8 U.S.C. 1182(a)(20)j—No
valid visa.
(DeR—)—Act of 1552—Section 212(a) (19) (8 U.S.C. 1182(a) (19)1—Procuring documentation by fraud or willful misrepresentation.
(11—) —Act of 1552—Section 212(a) (9) [8 U.S.C. 1182(a) (0)1—Convicted of a crime involving moral turpitude.
Act of 3952—Section 212(a) (20) [8 U.S.C. 1382(a) (20)I—No
valid visa.
(DeG

BEFORE TAE BOARD
(Slay 14, 1059)

Discussion : This is a motion by the Assistant Commissioner,
Inspections, requesting that the Board reconsider and withdraw
that portion of the order entered in each case which granted the
particular applicant certain discretionary relief under Public Law
325

85-316 (Act of September 11, 1957). In each case the applicants
are physically in the United States and must leave to obtain visas
so that they may rejoin their families in the United States. The
discretionary relief was granted to expedite the issuance of visas
and the consequent return to the United States. The issue is
whether the Board had power to grant the discretionary relief.
Sections 5 and 7 of Public Law 85 - 316 authorize the waiver of certain grounds which prevent the issuance of visas and which bar
entry into the United State.. The motion will 1, denied.

Each of the applicants_ is_ excludable for the relating reasons
stated in the caption. The facts in the individual cases have been
fully set forth in previous Orders. The situations are not too dissimilar. To simplify matters, we shall briefly relate the facts of
only the first case (DeG—). DeG , a 27-year-old female, is a
native and citizen of Mexico. She is married to a citizen of the
United States, and there is a United States citizen child of the
union. The applicant was a prostitute in Mexico for periods of
various duration from 1951 to 1953. On March 9, 1956, she received
nunquota visa. She was ineligible for the issuance of this visa,
because she had engaged in prostitution (section 212(a) (12), Immigration and Nationality Act; 8 U.S.C. 1182(a) (12)). Her unfortunate employment was known neither to the consul when ho issued
the visa nor to the Service when she was admitted for permanent
residence on March 9, 1956. After her admission, the applicant
made her home in the United States. She left for a short visit to
Mexico. She is now reapplying for admission. She was found
excludable because she had engaged in prostitution. She applied
for discretionary relief under Public Law 85-316. The special inquiry officer considered the following matters: Applicant had been
a resident of the United States for several years; her husband and
child are citizens of the United States; her husband, an honorably
discharged veteran, had served in the army four years; the family
is buying a home; extreme hardship would result if the applicant
were excluded; and a check of appropriate government records
failed to reveal any derogatory information. The special inquiry
officer found that the applicant's admission Would not be contrary
to the national welfare, safety or security of the United States. He
ordered her admission as a returning re ,,irlent nmlor section 5 of
Public Law 85 - 316, waiving the inadmissibility arising out of the
fact that she had been a prostitute. The special inquiry officer certified the case to this Board for consideration. The Board found
that the visa issued in 1956 could not be validated because it had
been issued prior to September 11, 1957, when Public Law 85-316
had been enacted; that applicant had never been lawfully admitted
for permanent residence and that she needed a valid visa to enter.
326

The Board used Public Law 85-316 to grant the applicant an advance waiver of the ground of inadmissibility so that when she applied again for a visa, expeditious action could be taken upon her
application for the vie,
The Service position, while not stated so bluntly, is that the Board
has no authority to grant advance waivers of grounds of inadmissibility under sections 5 and 7 of Public Law 85-316 (8 U.S.C. 1182b,
1251a, 1959 Pocket Part), for to do so is contrary to regulations
(8 CFR 212.7) and the intent of the statute.
The contention that the Board is without authority in exclusion
proceedings to grant relief under Public Law 85-316 is new. It
was not advanced when these cases were previously before us.
The Attorney General has conferred his authority under the immigration laws upon this Board to be used "as is appropriate cud
necessary for the disposition of the case" before the Board, except
when there is a "specific limitation" on the Board's power (8 CFR
3.1(d) (1)). There is no specific limitation preventing the Board
from exercising relief under sections 5 and 7 in an exclusion proceeding. It has always been considered appropriate and necessary
in the disposition of a case to Give all relief possible to expedite the
return of an alien in a proper case (see orders in Matter of 0
0—, 4 I. & N. Dec. 211 (exclusion proceedings); Matter of
B—, 3 I. & N. Dec. 343 (application for advance exercise of
relief) ; Matter of H—, 3 1. & N. Dec. 784 (preexaminatiort proceedings) ; Matter of A , 2 1. & N. Dec. 459 (deportation proceedings)). The instant cases were properly before the Board on
appeal. We believe that the Board had authority to act (Matter of
N. Dec. 1; Matter of S N
6 I. & N. Dee. 73;
B ,
Matter of N , 6 I. & N. Dec. 321; Matter of M , 5 I. & N.
Doo. 595).
The Commissioner's issuance of regulations concerning Public
Law 85-316 (8 CFR 212.7) should not confuse the issue. The Attorney General has delegated authority under immigration laws to
the Commissioner and has authorized the Commissioner to issue
regulations to carry out his responsibilities. However, the delegation of authority states that the Commissioner has no authority to
divest the Attorney General or the Board of its power, privileges,
and duties (S CFR 2.1). Under his authority, the Commissioner
has issued S CFR 212.7 providing that persons living abroad should
submit applications for relief under motions 5 and 7 to the, ennRul
who is to forward the applications to the Service for decision.
Bearing in mind the extent of the grant of power to the Board and
the restrictions upon the Commissioner's power, it is clear that the
regulation issued by the Commissioner should no more be read to
divest the Board of authority than it should be read to divest the
Attorney General of authority. The regulation should be read in
327

its natural meaning as governing relations between applicants for
relief and the Service. Otherwise, it is being construed as giving
only the Service the right to give relief under sections 5 and 7.
Since in exclusion proceedings the Board has the power to grant
or deny relief applied for under sections 5 and 7, and no specific
reason for denying the applications of any of the individuals involved herein has been advanced, no change need be made in any of
the orders.
The remainder of the Service contentions have nothing to do with

the power of the Board to act but are general statements as to the

desirability of the Board taking the action it did. We shall comment briefly upon these contentions. The Service believes that in
granting relief in exclusion proceedings, the Board may overlook
grounds of inadmissibility which the consul may find to exist. Of
course, this possibility exists, as it does when the Service grants
advance relief under sections 5 and 7 in preexamination proceedings
in the United States. However, it is not an important consideration.

Exclusion proceedings (preexamination is considered of this nature)
are held before skilled employees who are interested in determining
whether or not an alien is inadmissible.. If some ground of inadmissibility escapes them which is discovered by the consul, the
waiver may be enlarged by the Service or the Board to ;tiebacdo the

ground of inadmissibility discovered, if the ground is one covered
by law and it is desirable to do so. If the ground of inadmissibility
disclosed cannot he waived, then, of course, the consul will not issue
a visa. One thing is clear. A grant of advance relief by-the-Board
or by the Service does not compel the consul to„issue. visa. That
IS a matter solely within his discretion. (A ground of inadmissibility may not he discovered until after the applicant has received
his visa, and appears before the Service; then, or in a case where no
visa is required, the Service or the Board may grant nine pro tune
relief under sections 5 and 7 (Matter of I. St N. Dec. 713)).
The Service is concerned with the thought that the Board may
make decisions without information which may be in the possession
of the consul. (All four of the applicants concerned here were
issued visas by an American consul. Since they were given favorable, consideration, it would appear extremely unlikely that he will
be in possession of any derogatory information which would be of
value in considering the advisability of granting waivers.) What
is done by the Board in granting an advance waiver in an exclusion
proceeding does not differ from the action of the Service itself in
granting the same relief in preexamination proceedings. In each
of the instant cases the usual Service neighborhood investigation
and check of appropriate records have been made. The basis for the
Service conclusion that the consul will 'do more than forward the
328

application to the Service, which the regulations require him to do,
is not set forth.
Extensive administrative experience using similar relief makes it
clear that the Board's action is efficient, effective, and will not result
in harm to the nation, or in the admission of undesirable aliens. An

application granted in exclusion proceedings, just as one granted in
preexamination proceedings by the Service, should reduce considerably the time involved in obtaining the issuance of a visa. Moreover, the individuals who are benefited by Board action in most
cases would be persons who had considerable periods of residence in
the United States and are under an order requiring their separation
from their homes and families. The fear of permanent separation
would be strong. It will undoubtedly do much to relieve this fear,
if, in deserving cases, favorable action is promptly taken. The intent of the law is to reunite deserving families. The action of the
Board speeds this end.
In summary, the practical reasons advanced by the Assistant Commissioner are no more potent here than if they were advanced in a
preexamination proceeding. Basically, the Board has power to act;
the action taken was in the exercise of sound discretion.
Order: It is ordered that the motion be and the same is hereby
denied.
BEFORE THE CENTRAL OFFICE
(June 15, 1959)
Discussion: In each of the instant exclusion proceedings, the

Board has affirmed excludability but has granted an advance waiver
of sections 5 and 7 of the Act of September 11, 1957, if the alien
applies for admission in possession of a valid visa issued within
6 months.
Involved is an interpretation of 8 CF11 212.7(a) which states, in
pertinent part: "An alien who is excludable and seeks a waiver
under section tl or 7 of the Act of September 11, 1957, shall file an
application on Form 1-601 at the consular office considering the application for a visa for transmittal to the Service for decision. The
applicant shall be notified of the decision and if the application is
denied of the reasons therefor and of his right to appeal in accordance with the provisions of Part 103 of this chapter." (Emphasis
supplied.)
In its order denying the Service motion to reconsider, the Board
has taken the position that its authority to take any action necessary
for disposition of a case before it,' overrides the specific language
8 CFR 3.1 Board of Immigration Appeals—
* (d) Powers of the
Board—(1) Generally. Subject to any specific limitation prescribed by this
chapter, in considering and determining cases before it as provided in this
part the Board shall exercise such discretion and authority conferred upon
the Attorney General by law as is appropriate and necessary for the disposition of the case * * *. (Emphasis supplied.)
329
562713-51-23

of the regulation; that the regulation can only govern relations
between the applicants and the Service, and has no applicability to
the Board. The Service, on the other hand, asserts that the Board
action is in no way necessary to disposition of the cases before it
since in any event, as the Board has recognized, the aliens must
proceed to the United States consul for visas. The Skrvice takes
the view that an orderly process has been evolved with concurrence
of the Department of State whereby an application for section 5 or
esetiun 7 relief is first received at the consulate and, if naeassary, is
forwarded to the Service for action on the basis of all available
information; that the ruling of the Board not only is unnecessary
to disposition of the sass, and contrary to the regulation, but, for
reasons set forth in the Service motion to reconsider, may actually
inconvenience the alien, the Service, and the Department of State.
It will be noted that these aliens are all natives and citizens of
Mexico. Their position in this respect is similar to that of the sub, A 10517426, Int. Dec. No. 978 (Atty.
ject in Mato. of
Gen., Feb. 26, 1959). In that case the Board, in its original order,
here re specting separation of families and expediting the issuance of visas.
attempted to advance precisely the argument advanced

The arguments have no more merit here than they did in that case,
, dUpy'CG, these aliens must apply to rt
since, as in Matter of Da?
United States consul for visas.
The Board has also attempted to draw an analogy to the procedure followed by the Service in preexamination proceedings.
Under 8 CFR 235a, the Service makes a finding only as to prima
facie eligibility for section 5 or 'section 7 relief in connection with
granting an application for the privilege

prearaminneican This

enables the United States consul in Canada to entertain the initial
application for a visa. If eligible in all other respects, the alien is
required to file with the consul the application called for by 8 CFR
212.7. This application is forwarded to the Service and considered
and passed upon at such time as the alien is actually preexamined.
The procedure followed by the Service in preexamination is in all
respects consistent with the position urged in the instant case—
namely, that it is improper for either the Service or the Board to
make an unnecessary advance adjudication in connection with a matter which must initially be passed upon by another governmental
agency.
For the reasons set forth in the Service motion of February 25,
1959, it is submitted that the decision is in error.
Request is hereby made that pursuant to the provisions of 8 CFR
3.1(h) (1) (iH), the instant cases be referred to the Attorney General
for review.
330

BEFORE THE BOARD
(August 24, 1959)

Discussion: In each of the cases in question, the Board has
granted under

MCI-101W

5 and '7 of Public LOW C5-316 discretionary

relief of a nature it has as a practice of long standing granted under
similar circumstances.' The Service is of the opinion that the Board
is shorn of its usual power because of the regulation found at S CFR
212.7. This regulation of the Service concerns the manner of transmitting applications for relief under section 5 or 7 by one whose
application for a visa is being considered at a consular office. 2 -We
rejected - the Service construction of its regulation feelpg theiit it
would invade the province of the Attorney General who alone has
administrative power to restrict and change functions of the Board.
The Board nuts for the Attorney - General. The deci sions of this
Board are binding precedents upon the Service. The Service cannot
by regulation take away or change the functions of this Board, or
nullify its precedents. Otherwise, independent administrative review of actions vitally affecting aliens who are closely related to
United States citizens or lawfully resident aliens could be jeopar
dized or seriously curtailed.
Cases arising under the immigration laws present unusual and
varied factual situations. The greatest degree of administrative
flexibility is required to deal with such situations equitably and
fairly. It is the freedom permitted to thin Boned that has enabled

the Board to do its job of independent administrative review in a
"fair and equitable" manner.° It would seriously hamper the ability
So normal is the exercise of such power and so well established is the
practice that the special inquiry slicer who considered the issue of advance
relief granted it without even discussing the right to exercise relief. (Two
special inquiry officers terminated proceedings after improperly granting waivers. one 011lber tletantl relief. on the gronnel that the applicant sot eligible since her visa had not been issued after September 11, 1057. He did not
consider the availability of advance relief.)
a The aliens in the instant rases do sot have applications for visas pending.
They were issued visas before September 11, 1957. They applied for relief
-under Public Law 85-316 in the exclusion proceedings on the proper form.
a Comment of Committee on the Judiciary, H.R. No. 1365, 82d Cong., 2d Sees.,
pp. 35-6, February 14, 1952; C.S. Code Congressional and Administrative News,
1952, pp. 1687-8;
Board of Immigration ppeofs.—In the course of activities conducted in
pursuance of section 136 of the Legislative Reorganization Art of 1946 (60
Stat. 832), the committee gained good knowledge of the practices, procedures,
and decisions of the Board of Immigration Appeals established in the Department of Justice. It is believed that the Board has wen served its purpose
and has greatly contributed to a fair and equitable administration of justice
in immigration, nationality, and naturalization cases. Refraining at this time
from proposing to change the status of the Board into a statutory body, the
committee is of the opinion that the Attorney General should not niter in any
way the structure and functions of the Board.

-331

of the Board to minimize hardship if its hands were tied by rigid
concepts?
Several collateral matters raised by the motion require connnent.
The motion appears to indicate that by the regulation there has
been a redelegation to the Department of State of the power and
responsibility to pass upon an application for a waiver under section
5 or 7 of Public Law 85-316 (see, penultimate paragraph of discussion of the Service request for certification). A review of the
administrative practice of the Department of State reveals that it

does not contemplate the making of recommendations or joint action
with the Attorney General. Therefore, contrary to the implications
of the motion the Department of State does not page upon the request. It assists the alien who is an applicant for a visa to fill out

the form asking the Service to grant a waiver, and then without
making a recommendation, forwards the form to the Service. (See
letter from Department of State, Appendix "B.")
It may be desirable to have applications from those abroad filed
through the Department of State. However, such action is not
required by law, and it is not essential.° At present it is routine to

grant relief under the very law in question without any request
being filed with the Department of State. Aliens who entered with
visas issued oiler Public Low 85-310 became effective need not file
applications for relief under sections 5 and 7 with the consul. They
apply directly to the Service in exclusion proceedings. Aliens who
apply for adjustment of status under section 215 of the Immigration and Nationality Act apply directly to the Service. Aliens who
apply for creation of record of lawful entry under section 249 of
the Immigration and Nationality Act apply directly to the Service.
Aliens in preexamination proceedings file directly with the Service!'
Many applications for similar relief have been granted under the
7th proviso to section 3 of the Immigration Act of 1917 and under
section 212(c) of the Immigration and Nationality Act on the basis
of requests made directly to the Service.
In our opinion the motion in at least two aspects furnishes inaccurate information as to the procedure used in applying for section
5 or 7 relief. As we have indicated, the motion indicates that the
4 We have previously rejected a Service contention that its regulation as to
a procedural matter can abate the authority of the Board sitting in independent review of Service action in cases properly before it (unreported Matter of
A-4218988, Dec. 1, 1955, Appendix "A").
5 Service investigations were made in each case involved here. Information
of any importance which is available to the Department of State would have
been available to the Service in its investigation.
Preesamination, abolished as of June 30, 1959, was a device which enabled
an alien in the United States to enter Canada to apply for a United States
immigrant visa.

332

Department of State passes upon an application. In fact, the Department merely transmits the application without recommendation.
We believe the motion is also inaccurate in regard to what occurred
in a preexamination proceeding. The motion explains that in preexamination proceedings an alien in the United States who desires
to apply for relief under sections 5 and 7 is required to file an
application with the consul abroad and that the consul in turn sends
the application to the Service for consideration. An examination
of the pertinent regulations (8 CFR 235a) fails to reveal a reference
to such a round-about procedure. The Department of State does not
know of euch a practice (Appendix "B"). Ea sed upon review of

the cases which have been brought before us, it is quite clear to us
that an applicant for preexamination who applied for the benefits
of section 5 or 7 applied to the Service and to the Service only, and
that the Service approved or denied the application without any
intervention by the Department of State.
, A - 10547426, Int. Dec. No. 978, decided by the
Hatter of DeF
Attorney General on February 26, 1959, is quoted in the motion in
support of the Service view that its regulation as to procedure
prevents the Board from acting as it normally could. We understand dira66er of Do , supra, to bo e statement by the Attorney
General that section 5 or 7 is available to an alien making application for admission to the United States and that it is not available
to an alien in the United States wrileRc he is eligible fnr preesainina.
tion—a procedure contemplating the departure from and reentry of
an alien into the United States. Since the aliens here are applicants
for admission to the United States, obviously they are eligible in
this proceeding to apply for the relief.
Perhaps we are not clear as to the manner in which the Service
interprets Matter of DeF , supra, since after it was decided the
Service followed policies which in our opinion are contrary to the
Attorney General's ruling. The Attorney General, relying upon
several court cases, held that an application for relief under section
5 or the pertinent part of section 7 could be made only in exclusion
proceedings. Nevertheless, after this finding was handed down the
Service issued or continued in effect regulations permitting an alien
in the United States to apply for relief although exclusion proceed-

ings are not involved and the alien will never leave the United
States to apply for a visa and will never apply for admission. The
alien. 'need not even be eligible for preevanninatton (8 CFR. 945;

8 CFR 249.1, 24 F. R. 4906, June 17, 1959).
The Service action appears contrary to Matter of DeF
, supra,
in another regard. Matter of DeF—, supra, states that it is the
intent of Congress that sections 5 and 7 were to be applied prospectively only, i.e., to situations which arise after September 11, 1957.
333

This is so because it was found that Congress contemplated the
making of an application for a visa and that the application was
to be made alter Ihe date of Public Law 61-010. The Service, however, by its regulations makes possible the grant of relief to an alien
in the United States who entered long before September 11, 1957,
and who may even have entered without a visa (Matte.e of M
A-10216535, Int. Dec. No. 990). If the Service is correct in its
actions, then Matter of Deg—, supra, unfairly prevents the same
relief being given to the instant aliens. If the Service is correct in
its actions, proceedings should be terminated in each of these cases,
for the sole barrier to the eligibility for relief in the instant cases is
holding in Matter of DeF—, supra, that the law contemplates the
making of an application for a visa titter September 11,1967 -. Were
it not for this interpretation, each of these aliens who already has
obtained a visa could be granted a waiver under section 5 or 7 and
admitted for permanent residence.
Our discussion of the collateral matter should not obscure the
fundamental issue. The Board acting in accordance with wellPstahlished precedents has exercised the Attorney General's power
in matters properly before it. The Service is without authority to
deprive the Board of this power either directly or indirectly.
Order: To accordance with provisions of 8 CFR 3.1(h) (1) (iii),
these cases are refrred to the Attorney General for review.
BEFORE THE ATTORNEY GENERAL
(December 13, 1959)

Order: The orders excluding the aliens in the above-described
cases are approved, but that portion in each of the Board's orders
which directs admission of the aliens pursuant to an exercise of the

discretion contained in sections 5 and 7 of the Act of September 11,
1957, is hereby disapproVed. Exclusion of the aliens is without
prejudice to a further application for an exercise of discretion, in
accordance with the terms of 8 CFR 212.7(a), provided an application for admission is made with a valid visa issued within 6 months
from the date of this order or the date of any extensions authorized
by the appropriate district director.
. The aliens in these cases have all obtained visas to enter the
United States, but charges subsequently developed have been sustained against them. As a result they are now subject to exclusion.
On the basis of the record presented, the Board has ordered the
aliens excluded but has considered the cases appropriate for an
advance waiver of the grounds of exclusion through an exercise of
the discretion authorized by sections 5 and 7 of the Act of Septem334

her 11, 1957 (Public Law 85-316) and has so ordered. I have con-

cluded that the latter orders should be overruled.
The question presented by the cases involves the authority of the
Board to grant a waiver in light of the provisions of 8 Chili 212.7
(a), which requires that an application be made with the Service in
accordance with established procedures.
The Board's delegated authority, which is as broad as the Attorney General's in the areas which are under its jurisdiction, is at the
same time subject to specific limitations and falls short of the
authority it has attempted to exercise in these cases. The limits of
the Board's jurisdiction are described in 8 CFR

.

Decisions

involving an application for an exercise of the discretionary authority contained in sections 5 and 7 of the Act of September 11,
ore not among the desiqinns titers listed to which its appellate juris
diction extends. Accordingly, the jurisdiction of the Board is not
established, and it must therefore be said Pi - re:tide in the Commis"'Sioner of the Immigration and Naturalization Service pursuant to
the delegation made by 8 CFE 2.1. Disposition of the request for
a waiver in the instant cases must, therefore, proceed in accordance
with the provisions of S CPR 212.7(a).
It is true as urged that, the Board's powers embrace the exercise
of such discretion and authority as is appropriate and necessary for
the disposition of the case," but these too are subject to the limitations prescribed by the regulationo and tiro confined to the jurisdiction in which the Board is authorized to operate.
APPENDIX "A"

U.S. DEPARTMENT OF JUSTICE
BOARD Or IMMIGRATION APPEALS
Dec. 1-1955

File: A-1218988—E1 Paso
IN THE MATTER or N

R

IN EXCLUSION PROCEEDINGS

EXCLUDABLE: Seetio6 212(a) (26(B)—No nonimmigrant visa or
border crossing card.
Section 212(a) (2) —Departed from the United States
to avoid military service.
The appellant is a 29-year-old married male, a native and citizen
of Mexico who applied for admission to the United States on June
2, 1955, as a visitor for the purpose of buying necessities for himself and his family. He was excluded on the ground that he was
335

without nonimmigrant documents and on the ground that he had
departed from the United States and remained outside the United
States to avoid training or service in the Armed Forces (section
212(a) (22) of the Immigration and Nationality Act),
We affirmed the excluding decision. However, we found that the
appellant's need to enter the United States was sufficient to require
the grant of relief to him. To meet these needs, admission for short
visits over a period of one year was authorized, if he were otherwise
admissible than as one who had dapart,1 from and remained outside
the jurisdiction of the United States to avoid military service. This
action was taken under the authority contained in section 212(d) (3)
of the Immigration and Nationality Act.
Motion is now made by the Service for a reconsideration of our
action. It is asked that we withdraw the relief granted and dismiss
the appellant's appeal. The motion states that it is improper to
grant the alien discretionary relief because he had not applied for
such relief; because he had not paid a $25 fee required of applicants
for such relief and because the facts do not justify the granting of
relief.
The alien could have properly applied, either orally or in writing,
for relief under section 212(d) (3) before the special inquiry officer
(5 crp. 912R9) TTe would have paid a $25.00 fee when he made
his application for relief and then if he were ordered excluded and
relief was denied, he could have filed an appeal which would have
brought before us, both the issue of his admissibility and the request
for discretionary relief.'
Because he did not apply for the relief and pay the fee of $21.00
for filing the application,' the Service desires that his case be returned to the field, with the bare notification to the alien that he was
excluded. Apparently, he will then learn in some manner that he
may make application for discretionary relief under section 212
(d) (3) of the act; he will be required to submit an application for
such relief and pay the $25 fee for filing it. The application will
then be acted upon by the district director having administrative
jurisdiction over the place where the examination is being conducted. If the district director denies the application, appeal may
then be taken to this Board, upon payment of an appeal fee of
$10.00. Such circuitous action is unnecessary and of beheld neither
to the Government nor the alien, and in the circumstances before
us, would be unworthy conduct.
1 The alien did pay a $25 fee for Oling his appeal from the excluding
decision.
:There is no showing that he has ever been asked to pay this fee or advised at the hearing of his right to ask for relief.

336

The action in remanding this case to the field to apply formally
for relief is unnecessary because we have the power to grant all
relief that is necessary to make disposition of this case (8 CFR 6.1
(d) see Matto. of S—A7
6 I. S..- N. Dec. 73).
Furthermore, under the circumstances of this case, to make the
alien renew his efforts to enter the United States after having
waited so long for a determination would not befit the government.
An analysis of the facts before us reveals that when the alien applied for admission, he was interested not in gaining immediate
entry, but in determining how he could enter the United States
when the time came. The alien, who is a native and citizen of
Mexico, would be admissible to the United States as a temporary
visitor only if he were in possession of United States documents
entitling him to enter as a visitor.

Ha has sea meals doonanznta and

makes ass claim to having such documents. He does not claim that
lee is not required to be in possession of documents. It is inconceivable that with the education possessed by the alien and the fact
that he is a resident of a border town adjoining a port of entry, he
would have made application for permission to enter the United
States without being in possession of documents, unless he had some
motive other than in seeking immediate admission. The fact that
wider these circumstances the appellant submitted his case to a
special inquiry officer reveals that he did not have the intention of
attempting to enter the United States at the moment. Fiis intention
could have been only to determine what status he would have if he
applied for admission in poSsession of appropriate documents. The
appellant's need to enter the United States to purchase necessities
reveals that his desire to know his status was not the result of a
thirst for theoretical information by one who did not intend to
enter the T_Inited States. His submission to the immigration authorities was a practical way (apparently often suggested by Service
personnel) for determining his status as one who desired to enter
the United States. Since it is obvious that the alien was primarily
interested in determining how he could enter the United States to
take care of the needs of his family, we believe it would have been
most appropriate to inform this alien at his hearing of his right to
apply for discretionary relief to waive the ground of inadmissibility
which had been found to exist (8 CFR 212.82). In the absence of
such advice to the alien, under the circumstances existing here, we
do not believe that either he or the Government should be compelled
to go through the formalities the Service requires to bring this
matter to the attention of the Board. We rule, therefore, that the
alien's action in submitting himself to the authorities for a determination of his immigration status, under the circumstances here
found, carried with it a request for such relief as might be neces337

sary to make his admission possible. The failure of the Government
to inform him that an express application was required and that a
special fee had to he petit will not deprive him of his right to have
a ruling upon his application which was submitted so many months
ago.
As to the failure to pay the $25 fee for filing an application for
discretionary relief, this is a matter for the Service to take up with
the alien. We do not act as a collection agent for the Service in
these matters.
The Service contends that the reason for the alien desiring to
enter the United States—to buy necessities for himself and his family—is not urgent or compelling. The Service and this Board have
both, in the pant, taken administrative notice that it would nosh, an

undue hardship upon the aliens residing in Mexico near the border
if they were not permitted to enter the United States to obtain ordinary necessities. In answer to the Service motion, the alien has
supplied the additional information that he will accompany his wife
to a doctor in the United States as she cannot speak English well.
Order: It is ordered that the motion be and the same is hereby
denied.

APPENDIX "B"
DEPARTMENT OF STATE.

TV (mh.ingtoh,, July 17, 1959.
In reply refer to TO 150.1/6-2659
DEAR Mu. FINUCANE
In response to your letter of June 26, 1959 In re Defh----, File No.
A-10644351, I am glad to provide you the following information:
I. In an ordinary case of an alien abroad who has been refused a
visa by a consular officer and claims eligibility to a waiver, the consular officer provides the alien with a Form 1-601 inserting in it the
technical information regarding the visa refusal. The alien then
completes the form and returns it to the consular officer who forwards it to the appropriate office of the Immigration and Naturalization Service without attachments or recommendation. The INS
thereafter - makes suitable arrangements Cl.111,j/1,4111 with the circum
stances of the case to interview the alien and to consult such files
concerning the alien as may be in the consular office.
2. In the case of an alien in the United States who has been admitted to the preexamination privilege, the consular officer on being
notified by the INS or on ascertaining from some other source that
the alien would be ineligible- to receive a visa on grounds that could

338

be overcome by a waiver under section 5 or I makes an appointment
for formal application by the alien subject to the extension of a
waiver by the INS. Where the consular officer has the information,
he rues provide the rdion with a Form T-501 in which the technical
data are filled out. Such form is then completed by the alien and
submitted direct to the INS. In other cases, the alien obtains :a
Form 1-601 from the INS and submits it direct to the INS. The
consular officer learns that a waiver has been granted the alien
when he receives a copy of the order embodying the waiver. Such
orders are sometimes mailed to the consular officer and sometimes
are brought by the alien along with his other documents when he
comes abroad to the consular office. When there is a refusal of the
waiver by the INS, the consular officer learns of that refusal sometimes by written communication from the INS end oomatimes merely
because the alien fails to appear for his appointment.
It is hoped that the foregoing information is satisfactory for your
needs.
Sincerely yours,
/s/ Robert J. Cavanaugh,
ROBERT J. CAVANAUGH,
Acting Director, Visa Office.

Mr. THOMAS G. FE■TITCANE,
Chairman, Board of Immigration Appeals,
Department of Justice.

339


Interim Decision #2848

MATTER OF YAZDANI

In Deportation Proceedings
A-24218212
Decided by Board February 10, 1981
(1) Operations Instruction 214.2(0(2) recognizes the District Director's power to reinstate a nonimmigrant's lapsed student status, but does not authorize a nonimmigrant
student to transfer schools prior to securing Service permission.
(2) The power to reinstate student status or grant an extension of nonimmigrant stay
lies within the exclusive jurisdiction of the District Director and neither the immigration judge nor the Board may review the District Director's determination.
(3) The regulation prohibiting an alien student from transferring schools without
advance permission from the Service is an essential tool in Service efforts to keep
track of alien students.
(4) A. transfer of schools without Service permission, contrary to regulation, is a distinct

violation of student status in itself which does not permit interpretation or evaluation.
Magi v. INS, 585 F.2d 1309 (5 Cir. 1978); Matter of Murat-Kahn, 14 I&N Dec. 465 (BIA
g 1973); and Matter of C—, 9 I&N Dec. 100 (BIA 1960), distinguished.
(5) A. nonimmigrant student who transfers to a school other than that which she was
authorized to attend without first securing permission from the Service is in breach of
the conditions of her status and is thereby deportable under section 241(a)(9) of the
Immigration and Nationality Act, 8 U.S.C. 1251(a)(9), even if she acted in good faith.
CHARGZ
Order: Act of 1952—Sec. 241(a)(9) [8 U.S.C. 1251(a)(9)].—Nonimmigrant—failed to
comply with conditions of nonimmigrant status
ON BEHALF OF RESPONDENT.

Dana. Marks. Keener, Esquire

Simmons & Ungar
517 Washington Street, Suite 301
San Francisco, California 94111
Br: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

In a decision dated May 2, 1980, an immigration judge found the
respondent deportable under section 241(a)(9) of the Immigration and
Nationality Act, 8 U.S.C. 12&1(a)(9), for failure to comply with the
conditions of her nonimmigrant student status, but granted her the

privilege of voluntary departure in lieu of deportation. The respondent
appealed from that decision. The appeal will be dismissed.
626

Interim Decision #2848
The respondent is a 19-year-old native and citizen of Iran who
entered the United States as a nonimmigrant student bound for a
course of study at the University of Utah. She was admitted for the
duration of her student status. Prior to her embarkation for this
country, the respondent had been accepted for admission by both the
University of Utah and the University of San Francisco and had
obtained the requisite Form 1 20, Certificate of Eligibility for Nonimmigrant "F-1" Student Status, from each institution. The Form 1-20
from the University of San Francisco apparently arriyed too late for
-

the respondent to secure a visa to attend that school, however, and her
visa was issued for attendance at the University of Utah.

The record reflects that upon her arrival in the United States, the
respondent proceeded to the University of Utah, met with the Director
of International Student Services there, and obtained that official's
permission to transfer to the University of San Francisco together
with his signature on her transfer request, Form 1-528. The Form I-588
was submitted with the respondent's Form 1-94 and her Form 1-20

from the University of San Francisco to the Salt Lake City office of the
Immigration and Naturalization Service' The respondent then enrolled at the University of San Francisco, beginning classes on
September 24, 1979.
In December 1979, the respondent reported to the Service's San
Francisco office pursuant to 8 C.F.R. 214.5. These deportation proceedings were thereafter instituted by the issuance of an Order to Show
Cause charging the respondent with deportability for having violated
the conditions of her status by transferring from the school which she
was authorized to attend to another school without obtaining advance
permission from the Service. At the deportation hearing that ensued
on May 2, 1980, the immigration judge found the respondent deportable as charged. The District Director subsequently reviewed the
respondent's file to determine whether she should be reinstated to
student status and on October 17, 1980, decided against reinstatement.
Section 214(a) of the Act, 8 U.S.C. 1 184(a), provides in pertinent part:
The admission to the United States of any alien as a nonimmigrant shall be for such
time and under such conditions as the Attorney General may by regulations
prescribe ...

Under the regulations promulgated by the Attorney General, a
' The 1-538, 1-94 and 1-20 package was transmitted for processing to the Service office
in Raymond, Montana, which returned the package to the respondent for completion of
one of the forms. The respondent supplied the additional information and gent the forme

back to Raymond. The respondent was subsequently informed in response to an inquiry
regarding the status of her application that the package had been returned to the Salt
Lake City office. The forms were apparently lost along the way and it appears that the
respondent's application for permission to transfer was never adjudicated on the merits.

Interim Decision #2848
nonimmigrant student must establish as a condition for admission
that she is destined to and intends to attend the school specified in her
visa. 8 C.F.R. 214.2(f)(2). She may not transfer to another school unless
she submits a valid Form 1-20 completed by that school and the Service
grants her permission to transfer. 8 C.F.R. 214.2(f)(4). The regulations
further provide that a nonimmigrant applying for admission must
agree to abide by all the terms and conditions of her admission. 8
C.F.R. 214.1(a).
On appeal, the respondent through counsel argues (1) that advance
permission to tfaitifer is not required by the regulations, and (2) that
the respondent. is in any event not deportable because she substantially complied with the terms of her status in making application for a
transfer. The respondent's arguments must be rejected.
In support of her first contention, the respondent points to language
in Service Operations Instruction 214.2(f)(2) which she quotes as
follows:
.. if a school transfer has been effected, and the transfer request is submitted to the

office having jurisdiction over the school to which he has transferred, the receiving
office may adjudicate the request unless there is good reason not to do so." (Emphasis
added by the respondent.)

The respondent maintains that the foregoing Operations Instruction
casts doubt upon whether it is necessary for a student, in order to
remain in status, to make application for permission to transfer prior
to transferring schools. We disagree.
As previously noted, 'a nonimmigrant student is admitted for the
purpose of attending a specified school and the regulations expressly
provide that a student shall not be eligible to transfer to another
school unless the Service grants her permission to transfer. 8 C.F.R.
214.2(f). An alien who transfers to a school other than that which she
was authorized to attend without first securing Service permission is
in breath of the conditions of her status and is thereby deportable
under section 241(a)(9).
There is no qUestion but that the District Director in charge of a
Service office may through a retroactive grant of a transfer request
reinstate an alien's student status, and Operations Instruction
214.2(f)(2) recognizes that power.' The power, however, to reinstate
student status or grant an extension of nonimmigrant stay lies within
the exclusive jurisdiction of the District Director and neither the
immigration judge nor the Board may review the propriety of the
District Director's determinations. Matter of Teberoz,15 I&N Dec. 689
The portion of the Operations Instruction quoted by the respondent is jurisdictional,
concerned solely with designating the Service office which may assume jurisdiction over
a given application for transfer.
eno

Interim Decision #2848
(BIA 1976); Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), afd,
520 F.2d 941 (5 Cir. 1975 (tabled case); Matter of Gallares,
I&N Dec.
250 (BIA 1972); Matter of Sourbis, 11 I&N Dec. 335 (MA 1965). In the
instant ease, the District Director considered and denied
reinstatement.'
We find the cases relied upon by the respondent as authority for her
alternative argument to be inapposite. At issue in Mashi v. INS, 585
F.2d 1309 (5 Cir. 1978), was the proper interpretation to be given the
statutory requirement that a nonimigrant student "pursue a full
course of study" (see 101(a)(15)(F)(i) of the Act, 8 U.S.C.
1101(a)(15)(F)(i)) under sup erceded regulations which, unlike the present regulations, set forth no specific objective criteria for compliance
with that requirement. Noting that the "12 credit" minimum requirement of the present regulations (8 C.F.R. 214.2(f)(1a)(ii)) did not apply
to Mr. Mashi, the court found that he was in fact pursuing a full course
of study and could not be deported for failure to comply with the
conditions of his statue simply because his academic load briefly
dropped below 12 credits in the course of one semester.
Although the court in Mashi, id., suggested in dictum that the same
result might be reached on the facts before it under the present
regulations, there is room for interpretation in determining whether
the "12 credit" rule of 8 C.F.R. 214.2(f)(la)(ii) has been satisfied that
does not exist in determining whether an alien has received permission
from the Service to transfer as required by 8 C.F.R. 214.2(f)(4). The
question is whether there has been compliance, not whether there has
been substantial compliance, with the regulation in question.
We likewise find the respondent's reliance on the Board's decisions
in Matter of Murat-Kahn, 14 I&N Dec, 465 (BIA_ 1973), and Matter of
C— , 9 I&N Dec. 100 (BIA 1960), to be misplaced. We held in those cases
that a student's conviction which does not interfere with her studies so
as to meaningfully disrupt her education does not constitute a failure
to maintain status. The instant case is concerned not with an alleged
disruption of studies but rather with a separate, distinct violation of
status, transferring schools without Service permission, a breach
specifically defined by the regulations.
Finally, we cannot agree with the respondent's characterization of
her failure to secure advance permission to transfer as a "minor,
highly technical" violation of her status. The regulation in question, 8
' Although the District Director gave no reasons for his denial of reinstatement in this
case, it is possible that his decision was based upon a determination, which finds some

support in the record (see Ex. 2, Form I-213), that the respondent never intended to
attend the school specified on her visa. See Operations Instruction 214.2(f)(2). However,
we need not speculate as to the District Director's rationale in view of our lack of
jurisdiction over the question.

Interim Decision #2848
C.F.R. 214.2(f)(4), like other regulations governing the activities of
nonimmigrant students, is an essential tool in the administration of
our immigration laws. The widespread disregard of those regulations
which would likely result from lax enforcement thereof would severely
hamper the Service in fulfilling its responsibilities of keeping track of
the thousands of alien students within our borders and of enforcing
the immigration laws with respect to those students.
We note that the respondent appears to have acted in good faith in
all of her dealings with the Government. However, so long as the
enforcement officials of the Service choose to initiate proceedings
against an alien and to prosecute those proceedings to a conclusion, the
immigration judge and the Board must order deportation if the
evidence supports a findingof deportability on the ground charged. Bee
Lopez-Telles v. INS, 564 F.2d 1302 (9 Cir. 1977); Guan Chow Tok v. INS,
538 F.2d 36 (2 Cir. 1976); Matter of erced,14 I&N Dec. 644 (BIA 1914).
The respondent admittedly transferred from the school designated
on her visa to another school without first receiving permission from
the Service, an action that constitutes a violation of the conditions of
her nonimmigrant student status and a ground for deportation under
section 241(a)(9) of the Act. We find that deportability has been
established by clear, unecinivocal and convincing evidence on the basis
of the respondent's concessions.
The appeal will accordingly be dismissed. In accordance with our
decision in Matter of Chauliaris, 16 I&N Dec. 168 (BIA 1977), the
respondent will be granted 15 days within which to voluntarily depart
the .United States in lieu of deportation.
ORDER1 The appeal is dismissed.
FURTHER ORDER, The respondent is permitted to depart from
the United States voluntarily and without expense to the Government
within 15 days from the date of this order or any extension beyond that
time as may be granted by the District Director; in the event of failure
to so depart, the respondent shall be deported as provided in the
immigration judge's order.

630


Interim Decision #1731

MATTER OF KOMORI'

In Deportation Proceedings
A-10474028
Decided by Board May 11, 1907
A native and citizen of Iran who makes no claim to persecution prior to leaving
Iran in 1956 nor to the persecution of his family there on account of his activities in the United States has not established that solely because of his very
strenuous and public activities in this country against the Shah of Iran he
would be subject to persecution on account or political beliefs within the meaning of section 243(h) of the Immigration and Nationality Act, as amended, if
deported to Iran.
°moron:
Order : Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2)3—Nonimmigrant
student—Remained longer.
ON BEHALF OF SERVICE :
Irving A. Appleman
Appellate Trial Attorney
(oral argument)

ON BEHALF OF RESPONDENT:

David Carliner, Esquire
902 Warner Building ,
Washington, D.O. 20004
(oral argument)
Sidney M. Kaplan, Esquire
156 S. Broadway, Suite 818
Los Angeles, Calif. 90014

Respondent appeals from the decision of the special inquiry officer
denying suspension of deportation, denying the stay of deportation
under section 243(h), and granting voluntary departure with an alternate order of deportation to Iran if respondent should fail to depart
when and as required.
Respondent is a 32-year-old single male alien, a native and citizen of
Iran who last entered the United States on January 9, 1956, as a nonimmigrant student. His authorized period of stay expired on April 1,
1965 and he remained beyond that time without authority. He concedes deportability on. the charge in the order to show cause.
Respondent's applications for suspension and a 243 (h) stay are
interconnected, depending for the most part on the same facts. We
shall, however, consider them separately and we turn to suspension first.
215

Interim Decision #1731

It has been established that respondent has been physically present in
the United States since his entry in January 1956, without interruption,
a total of 11 years; that he has been a person of good moral character
for at least the past seven years; and the character investigation and
Federal Bureau of Investigation report show nothing adverse to him.
Since he has neither parent, spouse nor child who is a citizen or lawful
permanent resident of the United States, he must show that deportation would result in extreme hardship to him.
Respondent claims four areas of hardship:
(1) he has engaged in political activities in the United States
against the Shah of Iran and would be physically persecuted,
imprisoned or even tortured if he returned to Iran;
(2) his economic opportunities in Iran would be severely limited

as part of such persecution;
(3) he would have difficulty finding work in Iran, politics aside,
because he claims there is no market in Iran for advertising

design and commercial art, his own particular field;
(4) he would have difficulty adjusting to the lower standard of
living in Iran because after 11 years here he has become
accustomed to our way of living.
We consider first the factors of employment and standard of living.
Respondent's claim that there is no market in Iran for advertising
design or commercial art, it may be pointed out, rests entirely on his

unsubstantiated statement that this is so. He testified that when he
came to the United States as a student, he was undecided on what area
to concentrate his studies in. He soon decided on architecture, a, field

in which he testified there was opportunity in Iran. However, at some
point, and he gave no reason why it was done, he switched his professional focus from architecture and went into the advertising and commercial art field. There is no claim that this was not entirely voluntary
or that opportunities in this field in Iran have in any way changed
between the time he decided to go into it and the present. Voluntary
choice by a student of a field or profession which he may not be able
to follow in his own country should not weigh in his favor on a later
claim of hardship; to permit it to do so might be to encourage unwise
vocational choices.
Difficulty in adjusting to a lower standard of living in Iran is not

very persausive of extreme hardship. Return to Iran, with or without
a profession which he could profitably practice in that country, would
almost inevitably entail for the respondent an adjustment to a lower
standard of living. There is no showing that this would be worse for
him than for any student who returns to a native country which is
not on the same economic level as the United States. Respondent has
216

Interim Decision #1731
no one dependent upon him for support and there is no evidence that
he would be in any worse situation economically than he was when he
left Iran to come to the United States to study. In fact, there are indications that he has acquired certain salable skills here which he did
not have then (see Tr. pp. 55, 56), over and above the ones he spent
ten years in acquiring and which he claims would be useless.
Respondent's claim of limited economic opportunities in Iran because of political persecution has not been substantiated, and is difficult
to sustain as a separate ground of hardship, since he has already urged
that his economic opportunities in Iran would be almost nil as a result
of his voluntary choice of a professional field for which there is no
market in that country.
Respondent's case is bare of other equities. He is single, without

family in the United States (although his mother and sister were in
the United States as visitors at the time of the hearings, he stated that
they intended to return to Iran). He is within the category of applicants looked on with disfavor by the Congress (H. Rept. 1167, 89th
Cong., 1st seas., October 14, 1965, to accompany H.R. 606) as persons
who have completed the years of residence required for suspension in
11 "protected" status. Although we have held that even in the case of
such a person the Board might grant suspension if there were out-

standing equities, we do not find such equities here.
We consider now respondent's claim that he would be persecuted
upon his return to Iran because of his political beliefs. The record
shows that he was never politically active in Iran before coming to the
United States, and that he did not become politically active here until
almost six years after his arrival. At that time he joined an Iranian
student organization which is in strong and vocal opposition to the
Shah of Iran. There is no doubt that respondent has been prominently
involved in this movement and it seems likely that he is known as a
participant by the government of Iran. He is president of the Southern California Chapter of that organization and his'name is listed
in its newspaper as a contributing editor. He is the artist responsible
for a highly critical caricature of the Shah published in that news-

paper. The file also contains photographs published in various newspapers of fairly large circulation in the area, including the Los Angeles
Times, showing respondent as one of a group of demonstrators who
picketed against the Shah when he was in the United States in 1964.
Respondent and his witness contend that Iran is a police state, with
no civil liberties and no right to make statements in opposition to the
Shah. Although there are several political parties in that country, it is
claimed by respondent that there is no such thing as an opposition

217

Interim Decision 4t1731
party, that the parties differ only in respect of minor political issues,
and are all pro-Shah.
It is respondent's claim, substantiated by his witness, Dr. Norton
Frank Kristy, that he would be in serious danger of his life if he
were to return to Iran, regardless of whether he continued his antiShah activities after arriving there, and based solely upon his very
strenuous and public activities against the Shah in this country. Respondent cited the trial of several people in Iran in 1965, charged with
having been party to a plot to assassinate the Shah. Many of them
were students who had studied abroad and who had expressed opposition to the Shah. Respondent claims they were prosecuted not because of complicity in the assassination plot, of which they were
innocent, but because of political opposition to the Shah. However,

the file does not establish that these people were made defendants in
this proceeding solely because of their political activities. Respondent
also cites the case of a friend one Firoz Tartoufy, a graduate of MIT,
who, according to respondent's statement, returned to Iran and was
imprisoned, and was released only because of intercession by the professors at MIT and the United States State Department,
Respondent's witness, Dr. Kristy, has a -doctorate in economics
and has worked on a very high level with the government of Iran,
as well as with an oil consortium, in making plans for overall development of Iran. He was in Iran from October 1960 until August 1962
and has:not been there since that time. Dr. Kristy described the
situation in Iran in terms similar to those used by respondent, stressing that it was a. police state with no civil liberties, and that the
secret police organization, "SAVAK", had considerable power to imprison and even kill people without being accountable to anyone. It
was his statement that most of such action was directed against
student intellectuals. He agreed with the claim that even if respondent were to be totally inactive politically upon his return to Iran, he
would be in serious danger of his life because of the activities he
conducted here, which the witness believed to be well known to the
Shah. No proof, however, has been adduced of these claims other
than the statements by respondent and his witness, and the witness
himself has admitted that conditions have changed slightly for the
bettter in Iran since his departure in 1962.

The file contains a letter from the Department of State (Ex. 12)
in which it is stated that according to information received by the
State Department, opposition to the Shah's regime without more does
does not subject an individual to persecution, whether the opposition
occurred in Iran or abroad, but that a returning citizen would be
subject to the laws of Iran for any acts following his return. The

218

Interim Decision #1732
letter states further that numerous Iranian students, some of whom
have been involved in anti-Shah activity abroad, have returned to.
Iran and have not "without additional action on their part" been
subject to persecution.
Respondent makes no claim to having ever been persecuted prior to
leaving Iran, nor does he -claim that his father, mother, sisters and

brothers have ever been persecuted in Iran on account of his activities.
He states that they are completely politically inactive. Respondent,
in his application for a stay, stated that his grandfather had been
assassinated in 1946 because of his opposition to the regime then in
power. This has no great bearing on respondent's case, not only
because of the remoteness of that event, but because there is no showing
that it was ever used as a reason or basis for persecution of respondent's family by the Iranian Government.

The burden is on the respondent, as the applicant for relief, to
establish to the satisfaction of the Attorney General that he would be
subject to persecution if he were to return to Iran. The material in
the file is in conflict, respondent and his witness testifying that repondent would be so persecuted, although the witness has no firsthand
knowledge of present day conditions in Iran, and the letter from the
State Department claiming that unless respondent were active after
his return he would not be persecuted for his activities here. Respondent's application is weakened also by the fact that he participated in
absolutely no political activity of any sort prior to coming to the
United States. In Matter of Nuldem, Tait. Dec. No. 1569, decided

April 6, 1966, we held :
For the most part the Board has not considered that joining protest groups
and making public statements after entering the United States supports a withholding of deportation under section 248(h). Many aliens have attempted to
build up a 243(h) case by this sort of activity. • • •
On the record before us we do not believe respondent has borne the
burden of establishing that he will be persecuted on account of race,
religion or political beliefs if returned to Iran, and we hold that denial
of a stay of deportation under section 243(h) was correct.
Counsel asserts that even if the claim of physical persecution is not
sufficient to justify a stay under section 243 (h), it can be considered an
aspect of hardship in the suspension application. We have ruled on a
similar contention in Matter of Liao, Int. Dec. No. 1446, where the
suspension and 243 (h) stay applications depended upon many of the
same facts. We stated in that case, "We are of the opinion that the
political aspect of this case has no relation to a determination of 'extreme hardship' under section 244(a) (1)." Where a respondent cannot
establish the necessary hardship for suspension, we do not believe that

219
821-654-00--16

Interim Decision # 1731
a claim of persecution should be used to make up the deficit. The
remedy available where the likelihood of persecution can be satisfactorily established is a stay of deportation under section 248(h).
We believe that the decision of the special inquiry officer was correct
and that respondent is eligible solely for voluntary departure which
has been granted to him. We will, therefore, affirm the decision and
dismiss the appeal.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

220


Interim veeision on

MATTER OF ALLISON

In Visa Petition Proceedings
A-17106722
Decided by Board July 81, 1968
Where evidence in the form of a decree of the District Court of Woodward
County, State of Oklahoma, establishes that the Mexican "mail order divorce
obtained by the US. citizen petitioner, a resident of the State of Oklahoma,
is.rccognized as valid in Oklahoma, it is recognized as valid for the purposes
of petitioner's subsequent marriage in the Philippine Islands to beneficiary, a
native and citizen of the Fninppines, and such marriage serves to confer on
beneficiary immediate relative classification. [Matter of Daganiao, 11 T. & N.
Dec. 109, distinguished.]

The case comes forward on appeal from the order of the Officer in
Charge, Manila, Philippines dated May 23, 1968 revoking the prior
approval of the visa petition on August 7, 1967 for the reason that the
Mexican 'divorce the petitioner secured against his first wife, Luz
Dacanay, is not acceptable as evidence of termination of his prior
marriage since neither party was present in the Mexican Court.
The petitioner, a native of the State of Oklahoma and a United
States citizen by birth, 56 years old, male, seeks immediate relative
status on behalf of the beneficiary as his wife. The beneficiary is a
native and citizen of the Philippines, 29 years old. The parties were
married at Mabalacat, Pampanga, Philippines on June 21, 1965. The
status of the husband is shown as divorced. The beneficiary has not
been previously married.
The petitioner executed a sworn statement before a Service officer
on May 23, 1968. He testified that on June 19, 1946 at Manila, Philippines he was married to Luz Dacanay, a native and citizen of the

Republic of• the Philippines. They had four children, ages 20, 19, 17
and 15 years, all born in the Philippines and all registered as United
States citizens at the United States Embassy. at Manila. He separated
from his first wife in 1959 by mutual consenkIn June 196* he returned
from the Philippines to his home in Mutual, Oklahoma and subsequently contacted an attorney at El Paso, Texas who advised him that
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Interim Decision #1894
he could obtain a Mexican divorce at Juarez, Chihuahua, Mexico and
that it was not necessary for either party to appear in the Mexican
Court. The petitioner secured the necessary documents and mailed
them to the attorney and was never physically present in the court at
Juarez, Chihuahua, Mexico, before or during the divorce proceedings
and neither was his wife ; He returned to the Philippines and his attorney mailed his divorce decree in early September 1964.
The file contains a copy and translation of the divorce decree obtained by the petitioner in the First Civil Court of the Bravos District,
Chihuahua, Republic of Mexico on August 19, 1964. There is also a
communication dated May 26, 1966 from the United States Embassy
at Manila, Philippines disapproving the registration application as
Ampfican citizens of the petitioner's children, Ana Marie Allison and
Errol James Allison in the absence of evidence that his Mexican "mail
order" divorce was valid and his subsequent marriage was legal. However, the petitioner was informed he would be afforded an opportunity,
to present evidence that such divorce is recognized as valid under
Oklahoma law. On June 21, 1967 the petitioner presented a decree of
the District Court of Woodward County, State of Oklahoma finding
the Mexican divorce valid in all respects and concluding that the bonds
of matrimony existing by and between the parties thereto were dissolved by such decree; that the parties Were divorced on August 19,
1964 by decree of divorce in the First Civil Court of the Bravos District of Mexico; and that it is a valid dissolution of the bonds of matri-.
mainly in full force and effect as of the date of the decree. On October 23,
1967 the United States Embassy at Manila informed the petitioner

that the Department of State had approved the registration as American citizens of the petitioner's children, Ana Marie Allison and her
brothers Errol James and Don Henry_ The memorandum of the Officer
in Charge reflects that this information was known to that office.
However, the petitioner was advised that this Service does not recognize the Mexican divorce unless one or both of the principals involved
were physically present in the court where the proceedings were held.
In Hatter of Dagarno,e, 11 I. & N. Dec. 109, which involved a divorce
obtained by the citizen husband from his Filipino wife, we held that
absent a recognition of the validity of the petitioner's Mexican "mail
order" divorce by the State of Washington, the state of residence and
domicile of the petitioner, a United States citizen, it would not be
recognized as valid in the Philippine Islands for the purpose of his
subsequent marriage to the beneficiary, a native and citizen of the
Philippines. However, the instant case differs in that there is evidence
in the file in the form of a court decree of the petitioner's state of

836

Jakteruu amt.lettuu.

wloas

residence and domicile, Oklahoma, that it recognizes and considers
valid the Mexican divorce decree.' In view thereof the visa petition
will be approved.
ORDER: It is ordered that the visa petition be approved for im.
mediate relative status.
'Also see Matter of Freeman, 11 I. & N. Dee. 482; Matter of Whiteharat, Int.
Dec. No. 1761.

837