Interim Decision #2825

MATTER OF BADER

In Deportation Proceedings
A-20871E32
Decided by Board September 24, 1980
(1) Denial of a request for change of venue to permit presentation of expert witness
testimony not error where there has been no showing of prejudice by affidavit or offer
of proof to establish the witness' identity, qualifications, and proposed testimony.
(2) A foreign document to be admissible requires both a certification by a foreign official
having legal custody of the document, as to its accuracy, and a certification by a United
States Foreign Service officer stationed in the foreign country, as to the genuineness of
the signature and official position of the certifying foreign official. See 8 C.F.R. 287.6.
(3) Failure to certify a foreign record of conviction under 8 C.F.R. 287.6 will not require
setting aside the immigration judge's finding that alien was convicted where the alien
has not repudiated his sworn admissions that he was so convicted nor challenged the
accuracy of the facts contained in the foreign record of conviction.
(4) Prejudgment by the immigration judge is not established absent a showing that the
alien was refused the opportunity to present evidence or that the immigration judge
declined to consider the evidence presented.
(5) A conviction to defraud the public of money or valuable security under section 338(1)
of the Canadian Criminal Code, which requires proof of intent to defraud as a
necessary element of the offense, is a crime involving moral turpitude.
(6) A conspiracy to commit an offense involves moral turpitude when the underlying
substantive offense is a crime involving moral turpitude.

(7) Alien's conviction of conspiracy to commit a crime involving moral turpitude established deportability under section 241(a)(1) of the Immigration and Nationality Act, 8
U.S.C. 1251(a)(1), as alien excludable at time of entry under section 212(a)(9) of the
Immigration and Nationality Act, 8 U.S.C. 1182(a)(9).
CHARGE:

Order Act of 1952—Sec. 241(a)(1) [8 U.S.C.. 1251(a)(1)j—Excludable at entry under
sec. 212(a)(9)—Corwicted of a crime involving moral

turpitude
(IN BEHALF OF RESPONDENT:

Ira J. Kursban.. Esquire
444 Brickell Avenue, Suite 1011
Miami, Florida 33131

Br Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members
Egg

Interim Decision #2825
dred dollars; or (b) is guilty
(i) of an indictable offence and is liable to imprisonment for two
years, or
(ii) of an offence punishable on summary conviction, where the
value of the property, of which the public or any person is
defrauded does not exceed two hundred dollars. 1974 75-76, c. 93,
s. 32.
(2) Every one who, by deceit, falsehood or other fraudulent
means, whether or not it is a false pretence within the meaning of
this Act, with intent to defraud, affects the public market price of
stocks, shares, merchandise or anything that is offered for sale to

the public, is guilty of an indictable offence and is liable to imprisonment for ten years- 1953-54, c. 51, s. 323.
The immigration judge found the respondent's conviction was for a
crime involving moral turpitude. Respondent argues that a conviction
under section 338(1) does not necessarily require proof of criminal
intent or intent to defraud and is therefore not a crime involving moral
turpitude. He points to the language of section 338(1), not requiring
"false pretence" as a necessary element of the offence, and the inclusion of "intent to defraud" as a necessary element in sections 338(2)
and 319(1) (the crime of false pretence)* to support his position. He also

cites several Canadian judicial decisions, suggesting that they demonstrate criminal intent or intent to defraud is not required for a conviction under section 338(1).
Fraud has, as a general rule, been held to involve moral turpitude,
Jordan v. DeGeorge, 341 U.S. 223 (1951)(defrauding the United States
of taxes on distilled spirits); Mercer v.. Lence, 96 F.2d 122 (10 Cir.
1938)(defrauding a person of a large sum of money); US. ex rel.
Berkandi v. Reimer, 30 F.Supp. 767 (S.D.N.Y. 1939), ard, 113 F.2d 429
(2 Cir. 1940) (defrauding the United States of taxes on distilled spirits);
U.S. ex rel. Amato v. Commissioner of Immigration, Ellis Island, New
York Harbor,18 F.Supp. 480 (S.D.N.Y. 1937) (petty larceny); U.S. ex rel.
Portada v. Day, 16 F.2d 328 (S.D.N.Y. 1926) (issuing of checks without
sufficient funds, with intent to defraud); Ponzi v. Ward, 7 F_Supp 736

(D. Mass. 1934) (use of the mails to defraud); Matter ofFlores, Interim
Decision 2752 (BIA 1980) (uttering and selling false or counterfeit
paper relating to registry of aliens); Matter of McNaughton, 16 I&N
Dec. 569 (BIA 1978) (fraudulently affecting public market price of
Section 319(1) provides in relevant part
819. (1) A false pretence is a representation of a matter of fact either present or past,
made by words or otherwise, that is known by the person who makes it to be false and
that is made with a fraudulent intent to induce the person to whom it is made to act
upon it. 1953-54, c. 51, s. 303.

528

Interim Decision #2825
stocks); Matter of Martinez, I&N Dec. 336 (BIA 1977) (passing
counterfeit money); Matter of P—, 3 I&N Dec. 56 (CO 1947; BIA 1948)
(obtaining money by false pretenses); Matter of F—, 2 I&N Dec. 754
(CO 1946; BIA 1947) (defrauding the government of customs duties).
From these cases it can be seen that whenever a crime has involved
intent to defraud, it has been found to involve moral turpitude. The
Court in DeGeorge, supra, stated:
In view of these decisions, it can be concluded that fraud has consistently been
regarded as such a contaminating component in any crime that American courts have,
without exception, included such crimes within the scope of moral turpitude.

841 U.S. at 229.
Whatever else the phrase "crime involving moral turpitude" may mean in peripheral
cases, the decided cases make it plain that crimes in which fraud was an ingredient
have always been regarded as involving moral turpitude.... Fraud is the touchstone
by which this case should be judged. The phrase "crime involving moral turpitude"
has without exception been construed to embrance fraudulent conduct

341 U.S. at 232.
Intent to defraud is a required element to obtain a conviction under
section 338(1). Regina v. Zaritec Industries Ltd. And 3 Others, 24
C.C.C.(2d) 180 (Alberta Supreme Court 1975). The term "defraud"
means deliberate dishonest acts resulting in the deprivation or loss of
another's proprietary right. Regina v. Olan, Hudson and Hartnett, 41
C.C.C.(2d) 145 (Supreme Court of Canada 1978).
The respondent was convicted of a conspiracy (section 423(1)(d)) to
defraud the public (section 338(1)). A conspiracy to commit an offense
involves moral turpitude when the underlying substantive offense is a
crime involving moral turpitude. See Jordan v. DeGeorge, supra; Matter of Flores, supra; Matter of McNaughtcra, supra; Matter of M , 8
I&N Dec. 535 (BIA 1960); Matter of C—, 7 I&N Dec. 114 (BIA 1956);
Matter of S , 2 I&N Dec. 225 (BIA 1944).
We conclude that a conviction under section 338(1) is for a crime
involving moral turpitude and that respondent's conviction for conspiracy to violate section 338(1) involves a crime of moral turpitude
under the above authority. We further conclude that respondent's
deportability under section 241(a)(1) of the Act has been established
by clear, convincing, and unequivocal evidence.
The decision of the immigration judge was correct. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.
—

—

Roo

Interim Decision #2826

MATTER OF APHRODITE INVESTMENTS LIMITED
In Visa Petition Proceedings
PHO-N-2277
Decided by Commissioner August 22, 1980
A corporation is a separate entity from its stockholders for the purposes of qualifying an
alien beneficiary as an intra-company transferee under section 101(a)(15)(L) of the
Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L). Cf. Matter of M—, 8 I&N
Dec. 24 (BIA 1958; A.G. 1958).
ON BEHALF or PkTITIONER: Michael Margrave, Esquire
Nancy-Ju Merrill, Euquire

Pearlatein & Margrave
2100 Valley Bank Center

Phoenix, Arizona 85075

This case is before the Commissioner on certification as directed.
The petitidhet is seeking to classify the beneficiary as an intra-compally transferee (L-1) as defined in section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L), as amended.
The petition was denied by the District Director of this Service in
Phoenix. Appeal was taken to the Regional Commissioner, Western
Region. The Regional Commissioner upheld the decision of the District
Director and dismissed the appeal.
Aphrodite Investments is an investment holding company head
quartered in London, England. The company is owned by three
brothers, each of whom possesses approximately a one-third share of
the company. Aphrodite Investments has created two subsidiary companies located in Arizona. The purpose of these companies is to
purchase and develop real estate within Arizona for resale.
The District Director and Regional Commissioner hold that the
beneficiary cannot be classified as an intra-company transferee because he is "an entrepreneur, a speculative investor, and not an employee of an international company." Section 101(a)(15)(L) defines an
intro company transferee as:
An alien who immediately preceding the time of his application for admission into the
United States, has been employed continuously for one year by a firm or corporation or

530

Interim Decision #2826
or an affiliate or subsidiary thereof and who seeks to enter the
United States temporarily in order to continue to render his services to the.same
employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge ...
In the amicus brief submitted by the Association of Immigration
other legal entity

and Nationality Lawyers the principle of clear language enforcement
of a statute is properly mentioned. When the meaning of the language
of a statute is plain, -there is no room for a constructed interpretation.
Caminetti v. United States, 242 U.S. 470 (1917). When relying upon the
plain language we look first to relevant definitions within the same
title that are also used in the same or similar context. In the absence of
such definition the every day usage of the terms becomes important.
The Regional Commissioner attempted to establish the everyday
usage of a term he thought was relevant to the L-1 statute. How ever
"employee" is not used in section 101(a)(15)(L). The term used is
"employed." The present tense "employ" is defined in Webster's New
Collegiate Dictionary, in part, as "to provide with a job that pays
wages or a salary." If we were to adopt the definition of "employee" we
would exclude some of the very people that the statute intends to
benefit: executives. Webster's defines "employee" to be "one employed
by another usually for wages or salary and in a position below the
executive level."

In Matter of M—, 8 I&N Dec. 24 (BIA 1958; A.G. 1958), precedent was
established which held that the sole stockholder of a corporation was
able to be employed by that corporation as the corporation has a
separate legal entity from its owners or even its sole owner. While that
case concerned a visa petition for preference classification, I find its
conclusions are equally valid in other areas of concern where an
employer/employee relationship needs to be examined by the Service.

The Regional Commissioner found that the requisite relationship
exists between Aphrodite Investments and MN &S Corporation. The
petitioner's statements established that the beneficiary was employed
for the statutory period by Aphrodite Investments in a managerial
position for their subsidiary in the United States.
Therefore, the following order will be entered.
ORDER, The nonimmigrant visa petition be approved to accord
the beneficiary classification as an intra-company transferee.

531


Interim Decision #1865

MATrER OF TAvnn

In Deportation Proceedings
A-12937196
Decided by Board May 01,1968
Notwithstanding his recent marriage to a U.S. citizen, a native and citizen of
Libya who originally came to this country as a student in 1961 on a scholarsifip•
financed by his government with the understanding he would return to Libya

so his country would benefit from his education and who in 1064 decided
against returning but did not notify his government of that intention, is denied
adjustment of status under section 245, Immigration and Nationality Act, as
amended, as a matter of discretion, in view of his lack of a showing of good
faith in his dealings with his government ; there Is no evidence the Government
of Libya has accepted his offer to repay the cost of his education here; and
the Department of State advises that approval of the application would have an
adverse effect on relations with the Government of Libya.
CHARGE:
Order: Act of 1952—Seetion 241 (a) (2) [8 U.S.C. 1251(a) (2 ) 3—Remained!
longer—student.
ON BEHALF OF RESPONDENT :
luciaara Harrington, Esquire
593 Market Street
San Francisco, Calif. 94105
(Brief submitted)

ON BEHALF OF SERVICE:

Irving A. Appleman

Appellate Trial Attorney
Stephen M. Suffin
Trial Attorney
(Brief filed)

The case comes forward on appeal from the order of the special
inquiry officer dated January 31, 1968, denying the application for
status as a permanent resident under section 245 of the Immigration
and Nationality Act; granting voluntary departure in lieu of deportation with the alternative order that if the respondent failed to leavewhen as required he be deported to Germany on the charge contained
in the order to show cause; further ordering that if Germany was unwilling to accept the respondent or failed to so advise within three
months following original inquiry, he be deported to Libya; and further ordering that respondent's application under section 243(h) of
the Immigration and Nationality Act to withhold deportation to
739

Interim Decision #1865
Libya because of persecution by reason of his political opinion be
-denied.
The record relates to a native and citizen of Libya, 27 years old,
who last entered the United States as a student at New York on
August 7, 1965. Extensions of student status were granted until March
16, 1967. On March 27, 1967, his application for permanent residence
'status under section 245 of the Act was denied and be was given until
December 27, 1967 within which to depart voluntarily from the United
States. He has failed to so depart and is deportable on the charge
contained in the order to show cause.
At the deportation hearing the respondent reapplied for status as
a permanent resident. He orginally came to the United States as a
-student in 1961 under a scholarship awarded by the Libyan Government. He was aware that he was expected to return to Libya so that
his country would benefit from his education. The expenses of his
-education in this country amount to approximately $20,000. In 1964
he decided against returning to Libya but did not notify the government of that country of his intention. He testified that he saw no
point in so doing and further admitted that one of the reasons could
'have been the possible loss of his scholarship. He received a degree
of Bachelor of Science in Electrical Engineering from the University
of California on June 13, 1967, and is presently employed by that
University.
The respondent married a United States citizen on December 14,
'1967. It is noted that the date of his marriage is subsequent to the
denial of his application for adjustment of status by the District
Director on November 27, 1967. The respondent states that he is
willing to repay the cost of his education at a starting rate of $1,000
per year, but there is no evidence that this offer has been accepted by
the Libyan Goverzunent. He testified that by reason of his marriage
to a non-Libyan, he would be disqualified from working for the Government of Libya, but this claim is also unsupported.
The grant of adjustment of status pursuant to section 245 of the
'Immigration and Nationality Act, is by its very terms, entrusted to
the discretion of the Attorney General. The respondent has submitted
a letter from the University of California, dated December 6, 1967
which describes an expected contract from NASA to prepare an
•experiment for an Apollo Applications mission, and that the respondent is expected to be a key person in discharging their responsibility
under this contract. Meanwhile he has been working on another project, an evaluation of the White Mountains for an infrared observatory.
Upon questioning, it developed that outside of the fact that respondent
was an electrical engineer, he had no special qualifications for the
-

-

-

-

740

project other than some laboratory work, and that the difficulty would
appear to be one of recruitment of a replacement.
A letter from the Department of State, dated November 13, 1967,
advises of a letter received from the Embassy of Libya which is dated
October 23, 1967 and is enclosed. The Department of State observes
that the Libyan Government has recently decided to send a large
number of its top secondary school graduates to the United States
for higher education and that the loss of a person such as the respondent might tend to discourage a trend of Libyan training practices that
the department strongly favors. Therefore the department is of the
opinion that the approval of the application would have an adverse
-effect on relations with the Government of Libya.
The communication from the Counselor of the Embassy of the King-

giom of Libya, referred to above, recites that scholarships are awarded

to those worthy young Libyans who possess the highest qualifications
and potential; the recipients are under moral and legal obligation to
return to their homeland and to repay with several years of service
the huge investment made in them by their government; when the
respondent accepted the scholarship from the Libyan government,
he was well aware of these conditions and that he would be violating his
agreement with the Libyan government by remaining in the United
States. The communication concludes that the respondent, who has
benefitted so greatly from his country's concern and generosity, should
return to Libya and contribute to his country's progress and development.
The special inquiry officer refers to the decision in Matter of Youssef, 11 I. & N. Dec. 163, as controlling in the instant case. In that
case a student from the United Arab Republic who came to the United
States on a scholarship from his government to do graduate work,
entered into an agreement with his government that he would not
marry without its permission, that after obtaining a Ph.D. degree he
would work for his government for a maximum period of seven years,
and that if he did not comply with these conditions, he agreed to refund
all money received by him in the form of salary and expenses while
he was under scholarship; and who, by a subsequent marriage to a
United States citizen without permission, broke the contract, noncompliance with which committed him to refund all the money he
received under this scholarship. Adjustment of status under section
245 was denied as a matter of discretion in the absence of a showing
that his government did not want him back or that he had made adequate financial arrangements to discharge his obligations to his government, or that he had been relieved of this obligation.

741

Iliterun Decision Flow

While we agree with the denial of the visa petition, we do not feel
restricted to the precedent cited by the special inquiry officer in the
instant case. In addition to a lack of showing of good faith on the
part of the respondent in his dealings with the Libyan government,
his marriage to a United States citizen occurred on December 14, 1967,
a date which was subsequent to the denial of his application for adjustment of status under section 245 by the District Director on November 27, 1967. His wife was aware of his immigration status at
the time she married him. We do not consider this recent marriage
to a United States citizen a factor sufficiently favorable as to outweigh
the other unfavorable aspect of the case which has been outlined
above. Upon a full consideration of the entire record, it is concluded
that the application for adjustment of status under section 245 should
be denied as a matter of discretion. We believe the argument of counsel

regarding the necessity for a waiver in the case of an exchange student
to be entirely irrelevant.
The respondent has made application under section 243(h) of the
Immigration and Nationality Act for withholding of deportation to
Libya on the ground that he would be persecuted. He testified there
are many things about the system of government in Libya of which
he does not approve and which he believes he will voice if returned
to that country. However, he admitted that if he did remain silent,
be would suffer no persecution. The respondent has offered no documentary evidence of the likelihood of persecution. In our opinion the
respondent has not established that he would be subject to persecution
on account of race, religion or political opinion or even the probability
of such persecution. We concur in the decision that the application for
withholding of deportation should be denied. The appeal will be dismissed.
ORDER: It is ordered that the.appeal be and the same is hereby
dismissed.

742


Interim Decision #2505

MATTER OF BENJAMIN

In Visa Petition Proceedings
A-20306923
Decided by Board July 19, 1976
(1) Beneficiary was adopted in 1948 in Iraq by parents of petitioner under the laws of the
Chaldean Catholic Church. In matter of personal status including adoption the laws of
Iraq provided that principles of Islamic law should apply. The legal institution of
adoption such as creates a legal relationship between parent and child is not recognized
under Islamic law. Additionally, there was not sufficient evidence in the record to show
that the adoptive relationship recognized by the Chaldean Catholic Church created
rights and obligations between the beneficiary and petitioner's parents analogous to
those between a natural parent and child.
(2) In order for an adoption to be a valid for immigration purposes, the adoption must
create a legal relationship between the adoptive parents and .child similar to that
existing between a natural parent and child. Where the adoption was not shown to have
established that relationship, the adoption was not valid for immigration purposes, and
the visa petition to classify beneficiary as the brothel- of petitioner under section
203(a)(5) of the Immigration and Nationality Act was denied.
ON BEHALF OF PETITIONER: Esther M. Kaufman, Esquire
Suite 102
1823 "L" Street, N.W.
Washington, D.C. 20036
Attorney of Record:
Norman Stiller, Esquire
995 Market Street, #1018,
San Francisco, California 94103

On June 11, 1975 we dismissed an appeal from a decision of a district
director denying a visa, petitioner filed in behalf of the beneficiary as the

adopted brother of the United States citizen petitioner under section
203(a)(5) of the Immigration and Nationality Act. The petitioner now
moves that we reconsider our decision. The motion' wfil be denied.
In order to establish the eligibility of the beneficiary as the petitioner's adopted brother for the purposes of conferring immigration
benefits, the petitioner must show the existence of 'a valid adoption.
Matter of Aladin, 15 I. & N. Dec. 442 (BIA 1975).
The petitioner claims that the beneficiary was adopted by his parents

in Iraq in 1948 according to the religious law of the Chaldean Catholic
709

Interim Decision #2505
Church. In support of this claim he has submitted his own affidavit and
those of three ministers, apparently of the same sect in the United
States, which attest to the fact of the adoption.
Relying upon a memorandum on the adoption law of Iraq prepared by
the Library of Congress in 1973, we concluded that Chaldean Catholics

in Iraq in 1948 were required to follow the principles of Islamic law on all
matters of personal status, including adoption. We held that the legal
institution ce adoption, such as creates the legal relationship of parent
and child, is not recognized by Islamic law. See also Matter of Ashree,
Ahmed and Ahmed, 14 I. & N. Dec. 305 (BIA 1973); Matter of Boghadi,
12 I. & N. Dee. 666 (BIA 1968.
In the brief submitted with this motion, counsel for the petitioner
disputes the accuracy of the 1973 memorandum. She argues that the
religious law of the Chaldean Catholic Church governed matters of
personal status for its community in 1948 and, under that law, adoption
was recognized.
, We requested a second memorandum from the Library of. Congress
on this issue. After considering counsel's brief and the information we
have received from the Library of Congress, we have reached the
following conclusions: Until 1959 the ,Chaldean Catholics followed the
laws Of their religion in matters of personal status.' Adoption is a matter
of personal s LaLus. Some form of adoptive relationship was recognized
and encouraged by the Chaldean Catholic sect.
We have held, however, that an "adoption," as the term is used in the
immigration laws, must create a legal status or relationship. Matter of
Chan, 11 I. & N. Dec. 219 (BIA 1965); Matter of B—, 9 I. & N. Dec. 521
(BIA 1961). A relationship in the nature of charitable help to a needy
child is not an adoption under the immigration laws. Matter of Yee, 13 I.
& N. Dec. 620 (BIA 1970), overruled on other grounds by Matter of Yee,
14 I. & N. Dec. 132 (BIA.1972).
Counsel contends that the religious law of the Chaldean Catholic
Church is based upon the Hammurabic Code and under that law adop
tion created a legal relationship between the parent and the child. The

recent memorandum from the Library of Congress, however, states
that there is no support fa- couns el's assertion that the Hammurabie
Code is the source of the religious law involved in the present case.
From the evidence before us, we are not satisfied that a valid adoption occurred. Serious question has been raised regarding counsel's
assertion that a connection exists between the religious law of the
Chaldean Catholics and the Hammurabic Code. No other evidence has
been submitted to establish that the adoptive relationship recognized by
The religious courts were abolished in 1948. However, the secular courts continued to
apply the religicus law of the parties to matters of personal status until 1959.

710

Interim Decision #2505

the Chaldean Catholic. Church created rights and obligations between
the beneficiary and the petitioner's parents analogous to those between
a natural parent and child. Moreover, no claim has been made that any
formal act of adoption took place or that the act was officially registered.
The absence of any specific procedure bears upon the kind of proof
required to establish a valid adoption. Matter of Yee, supra.
The burden of proof in visa petition proceedings is upon the petitioner. Matter of Branagan, 11 I. & N. Dec. 493 (BIA 1966). A petitioner who is relying upon foreign law to establish eligibility for an
immigration benefit must prove that law as if it were a question of fact.
Matter of Annang, 14 I. & N. Dec. 502 (BIA 1973). The petitioner has
failed to meet his burden in this case. Accordingly, the motion to
reconsider will be denied.
ORDER: The motion to reconsider is denied.

711


Interim Decision #1699

MATIER OF VORRIAS

In Deportation Proceedings
A-15154704

Decided by Board February 9,1967
As discretionary relief is the only issue in respondent's case, motion to reopen deportation proceedings predicated on Wavaby Y. Incnbigration and .3.7aturcai2ation Service, 385 U.S. 276 (1966), is denied since the Woodby standard is
applicable solely to the question of deportability and has no bearing on the
matter of discretionary relief. • •
CHARGE:

Order : Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2) ]—Nonimmigrant crewman—Remained longer.
Orr BEHALF OF RESPONDENT :
Barrett O'Hara, II, Esquire
33 South Clark Street
Chicago, Illinois 60603

ON BEHALF OF SERVICE:

Irving A. Appleman
Appellate Trial Attorney
(Memorandum of law filed)

This case has previously been before us and on September 21, 1966,
we sustained the respondent's appeal from an order of the special
inquiry officer denying him the privilege of voluntary departure and
ordering his deportation from the United States to Greece on the
charge contained in the order to show entisri. The Board WAS persuaded
that the respondent's application for voluntary departure was of sufficient merit and granted him such privilege. In view thereof, a full
recital of the facts is not deemed necessary herein.
A motion to reopen and reconsider these proceedings has been submitted by counsel urging that in light of the recent decision of the
United States Supreme Court in Wood by v. Immigration and Naturalization Service, 17 L.ed. 2d 362 (December 12, 1966), the Government has not met its burden of proof in the instant case requiring
that it must "establish the facts supporting deportability by clear,
unequivocal and convincing evidence." Thus, counsel for the respondent moved that the proceedings in this case be terminated.
In a Memorandum of Law, the Service outlined the respondent's
own testimony of record conceding that he was an alien; that he was
84

Interim Decision * 1699
a native and citizen of Greece; that he was admitted to the United
States as a nonimmigrant crewman; and that he remained beyond
the period of time permitted for his stay in the United States; and
other testimony as to the manner and circumstances of his entry, and
as to his conduct following entry. The Service contended, however,
that since it is clear from the record that the only issue on which there
was any controversy was that of diseretio ► ary relief, and the record

makes it abundantly clear under any burden of proof that the respondent is in fact deportable, it fails to see any relevancy between
the instant case and the authority relied upon by counsel for the respondent. Also, although the respondent was granted the maximum
relief available to him in the circumstances of this case, to wit, voluntary departure, nevertheless, "he seems bent on a determined effort
to protract his legal stay in the United States." The Service requested that the instant motion be denied.
In
T I oacrb case, supra, the Supreme Court held that the Government has the burden of proving,the facts supporting deportability
by clear, unequivocal and convincing evidence. The decision, however,
applied solely to the question of deportability and has no bearing on

pie

the matter of discretionary relief, the only issue herein_ An alien has

the burden of demonitriding ant lie is worthy of such relief. The only
exercise of discretion available to the Board in the circumstances of
this case was voluntary departure and the respondent's application
for this privilege was granted by our earlier decision herein. We are
persuaded, therefore, from our review of this entire matter that the
contentions of respondent are without merit. Accordingly, the motion
of the respondent to reopen this matter is hereby denied.
ORDER: It is ordered that the motion be and the same is hereby
denied.

85


Interim Decision #2453

MATTER OF C1TUKUMERIJE
In Deportation Proceedings
A-20025510
Decided by Board November 26, 1975
.1) The United States is not compelled to honor the finding of the delegation in Belgium of
the United Nations High Commissioner for Refugees, made in 1969, that respondent, a
stateless native of Biafra, Nigeria, is a refugee, since the United Nations Convention
does not provide that a person considered a refugee in one contracting nation must, for
that reason, also be considered a refugee in the other contracting nations.
2) As the Civil War in Nigeria ended in January 1970 and the Federal Military Government declared a general amnesty, it is found, under Article 1, section C(6) of the United
Nations Convention, that the circumstances in connection with which respondent was
found by the United Nations authorities in Belgium in 1969 to be a refugee, have ceased
to exist. Since he has not come forward with any evidence to support his claim that he is
a refugee (or that he is entitled to the temporary withholding of deportation pursuant to
section

24s(i:

of the Immigration and Nationality Act, as amended), it is concluded that

he is not a refugee and his deportation to Nigeria is sustained on the charge that
following admission as a nonimmigrant visitor he remained longer than permitted
(section 2414)(2), Immigration and Nationality Act).
;liARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]-Nonimmigrant visitor-remained longer.
IN BEHALF OF RESPONDENT:

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

This is an appeal from the December 23, 1974 decision of an immigram judge finding the respondent deportable as charged and directing
is deportation to Nigeria, the country of his birth and former citizenhip. The appeal will be dismissed.
The alien respondent, a native of Biafra, Nigeria, is stateless. He last
atered the United States on October 24, 1970 as a nonimmigrant visitor

athorized to remain in the United States until November 30, 1970. He
eld a Belgian travel document. When his request for an extension of
)mporary stay was denied, he was granted permission to depart volunwily by January 11, 1971. On that date his voluntary departure
rivilege was revoked, and he was arrested but released on his own
cognizance.
520

Interim Decision #2453
The respondent admitted all of the allegations in the order to show
cause but, for the following reasons, denied that he was deportable. He
lived in Belgium for four years before entering the United States.
During that time, the official in charge of the delegation in Belgium of
the United Nations High Commissioner for Refugees issued him a

refugee certificate on January 6, 1969. The respondent contends that
because it was determined that he was a refugee within the terms of the
United Nations Convention Relating to the Status of Refugees by the
delegation in Belgium of the United Nations High Commissioner, he is,
on the basis of Articles 32 and 33 of of the Convention, not deportable.
Through counsel the respondent declined to designate a country to
which he should be deported, should that become necessary. He simi
larly declined to apply for voluntary departure or withholding of depor-

tation under section 243(h) of the Immigration and Nationality Act;
however, he did indicate that he feared that he would be persecuted if

he were to be deported to Nigeria or to Belgium.
Four years have elapsed since the respondent's original deportation
hearing took place in March and April 1971. A decision in the case was
postponed to afford the respondent's counsel time to prepare a brief
supporting his claim that the respondent was not deportable, and to
await our decision in Matter of Dunar, 14 I. & N. Dec. 310, (BIA, 1973).
The respondent applied to the district director for political asylum but
did not reply to Immigration and Naturalization Service requests that

he appear for an interview. The immigration judge's decision was rendered on December 23, 1974.
The issues in this case are the following: (1) whether the respondent is
a refugee, and (2) if he is, whether he is deportable.
The definition of the term "refugee" contained in Article 1 of the 1951
Convention Relating to the Status of Refugees, as modified by the
United Nations Protocol Relating to the Status of Refugees, reads, in
pertinent part, as follows:
A. For the purpose of the present Convention, the term "refugee" shall apply to any
person who:

*****

(2) Owing to well-founded fear of being persecuted for reasons of race. religion,
nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country; or who, not having a nationality and being
outside the country of his former habitual residence, is unable or, owing to such fear. is
=willing to return to it. * * * *
C. This Convention shall cease to apply to any person falling under the terms of
section A if:
1 This Convention became binding on the United States when it adhered to the 1967
Protocol Relating to the Status of Refugees, TIAS 6577, 19 U.S. Treaties (Part 5, 1968)
6223, which entered into force with respect to the United States on November 1, 1968.

521

nterlin Decit ion #2453

*****
(6) Being a person who has no nationality he is, because the circumstances in
connexion with which he has been recognized as a refugee have ceased to exist, able to
return to the ccuntry of his former habitual residence. . . .

The respondent's refugee certificate is dated January 6, 1969. In
anuary 1970 the Civil War in Nigeria ended and the Federal Military
government declared a general amnesty. In a case decided by the
regional Commissioner in December 1971, only several months after
he hearing in this case, a State Department communication was quoted
s saying: "In January, 1970, at the conclusion of the war, the Federal
filitary Government declared a general amnesty, invited Nigerians
vine abroad to return, and announced a policy of reconciliation and
eintegration of Nigerians (mostly Ibos) who had supported the secesion." The communication went on to say that there had been no evience of mass arrests, trials, imprisonments, or executions and that,
espite some problems, there was ample evidence that the Federal
lilitary Government was sincerely interested in bringing about the
eintegration of the Ibos, including former government officials. Matter
f Iregbulem, 13 I. & N. Dee. 805, 806-807 (Reg. Corn. 197l,). Although
here has been a change in the government of Nigeria since January
970, we are unaware of any policy changes affecting the treatment of
ormer supporters of the Biafran secession.
Counsel contends that the United States is compelled to honor the
aiding of the delegation in Belgium of the United Nations High Cornaissioner for Refugees, made in 1969, that the respondent is a refugee.
Ve disagree. The United Nations Convention does not provide that a
Jerson considered a refugee in one contracting nation must, for that
eason, also be considered a refugee in the other contracting nations.
Ve have nevertheless given sympathetic consideration to the determiiation made in Belgium. However, we have also considered the cirumstances under which that determination was made. We find, under
.rticle 1, seclon C(6) of the United Nations Convention, supra, that
he circumstances in connection with which the respondent was found
7 the United Nations authorities in Belgium to he a refugee have
eased to exist.
The respor dent has been given the time and the opportunity to
pursue his claim that he is a refugee and therefore either is not deportade or is entitled to the temporary withholding of his deportation puruant to section 243(h) of the Act_ He has not come forward with any

vidence to support any of these claims except for the 1969 refugee
ertificate. Whether he relies upon the United Nations Protocol and
)onvention Relating to the Status of Refugees or upon section 243(h) of
he Immigration and Nationality Act, the burden is still his to establish
hat he has a well-founded fear that his life or freedom will be
522

Interim Decision #2453

threatened in Nigeria on account of his race, religion, nationality, membership in a particular social group, or political opinion. Matter of
Dunar, supra. He has not sustained his burden.
Upon the record before us, we conclude that the respondent is not a
refugee. Moreover, we find, on the basis of the record before us, that
the deportation hearing was far, and that deportability has been established by clear, convincing and unequivocal evidence. Accordingly, the
following order will be entered.
ORDER: The appeal is dismissed.

523


Interim Decision #1833

MATTER OF CHEN
In Deportation Proceedings
A-15769498
Decided by Board February 6, 1968
Where, ao a =Emit of a routine Service investigative search made of a restaurant

with the consent of the owner, an alien employee was arrested and a statement
under oath thereafter obtained from him, such arrest was not illegal and the
statement is properly admissible in evidence in deportation proceedings.
°HAWS'
Order: Act of 1952—Section 241(a) (2) [8 U.S.0. 3251(a) (2)1—Crewmanremained longer.
ON BEHALF or SESTION:
Irving A. Appleman
Appellate Trial Attorney

ON BEHALF OF RESPONDENT.
Jack Wasserman, Esquire
Warner Building
Washington, D.O. 20004

The special inquiry officer ordered the respondent, a native and
citizen of China, deported. He found respondent had been admitted
on January 12, 1967 at San Diego, California as a crewman, and had
remained illegally in the United States after the period for which he
was admitted. Respondent's appeal raises no question as to these facts,
but contends that they have been found from illegally obtained evidence and cannot, therefore, sustain an order of deportation. Assert-

ing no legal right to remain, he asks that he be permitted to depart
voluntarily. We find the record properly establishes that the respondent is deportable. We shall dismiss the appeal.
Between 4 and 5 p.m. on September 14, 1967, experienced Service
investigators at Washington, D.C., decided to check the employees of
a restaurant to determine if any was an alien illegally in the United
States. The investigation was a routine one. The investigators had no
information that an alien illegally in the United States was employed
there.
Investigator Taylor, a veteran with over 18 years of service, nine of
which were as an investgator in the Washington area, was in charge of
the operation. At about 7 :SO p.m., he assigned an investigator to each

321-654--89--10

603

Interim Decision #1833
building exit (two side, one rear) and he and Investigator Podrasky
entered by the front door (Podrasky was to keep an eye on those
leaving by the front door). Taylor told the head waiter who greeted
them, that they desired to check the employees for the presence of
aliens illegally in the United States. The head waiter told them he
would turn the matter over to Mrs. Malonson, a director of the corporation owner, who was then on the lower level of the restaurant. Mrs.
Malonson came upstairs to Taylor. He identified himself and asked if
the investigators could speak to those of her employees who were
aliens. He told her this would be done quietly, in the easiest manner for
all concerned, and without disrupting her operation. Mrs. Malonson
stated that they were very busy, but made no objection, and she gave
Taylor permission to check the employees (pp. 20 81).1
There is a conflict about respondent's entry on the scene. Inspector
Griedel was posted at a side door exit. This is his testimony. About ten
minutes after he had been posted, he saw respondent coming out of the
side door. Griedel identified himself. Respondent ran back into the
building. Griedel chased him through the kitchen, then down steps to
the lower level where he caught up with him. Griedel asked respondent
if he was a citizen. Although there was a language barrier, Griedel
understood respondent to say that he was a student, and that he wanted
to talk to the owner. Griedel followed the respondent to the upper
level where Mrs. Malonson was talking to Taylor. Griedel told Taylor
what had happened and turned the matter over to him (pp. 42-43;
48-54). Griedel did not have anything to do with the determination
-

to arrest respondent (p. 60).

Respondent contradicted Griedel's story (pp. 62-63). (He testified
only on the limited issue as to whether he was trying to abscond from
the restaurant; he remained mute on advice of counsel as to other
matters.) He Made no attempt to leave the building. He was on the
lower level gathering items for the kitchen. Griedel appeared behind
Mrs. Malonson's testimony on this issue follows :
And there were, I believe, four or five Immigration inspectors that came in
and I was downstairs at the time where he was, Mr. Chen [respondent] .. .
I was told by the Maitre de (sic) that there were Immigration officers come
to check everybody's identity. Everybody who was working on the premises.
So first remark I made was that this was a heck of a time [it was the dinner
hour) to- try to find who is, who's got an identification card or not. However,
I went upstairs And they said they would like to cheek everybody's identity,
and as ranch as I objected to it I said, "That's line with me.", and I told the
Maitre de (sle) to bring just about' everybody in the restaurant to the front
and that they may check their identification (p. (She also testified that
about 150 people were in 'the restaurant and that the investigation interrupted
'the dieititiiin 464 restaurant bp. 11-74).)

604

Interim Decision #1838
him, identified himself, and asked for identification papers. He had
none. Griedel took him upstairs where with the aid of another employee of the restaurant, he talked to Griedel (pp. 61-65).
Taylor corroborates Griedel's testimony. He saw Griedel, whom he
had stationed. outside, approaching with the respondent in front of
him but not in custody (pp. 32-33; 35-37). Griedel told him that the
respondent wanted to talk to the owner. He asked Mrs. Malonson if
there was a quiet place where he could question respondent and asked
if she could supply an interpreter. She sent over a waiter who spoke
with the respondent and reported that they could understand each
other. He identified himself. Respondent was not advised he was not
required to answer questions or that he had a right to counsel. He asked
the respondent how he came to the United States and if he had proof

he was a student as he had claimed. Respondent had no proof. He was
asked to show whatever documents he had to establish his immigration
status; he produced a crewman landing permit showing that he had
been admitted to the United States on January 12, 1967 and was to
depart with his vessel, but in no event was to stay more than 29 days
(Ex. 2).
Taylor decided that respondent was illegally in the 'United States,
and that he was likely to abscond, because he failed to depart as required of those admitted as seamen, because Griedel had told him that
the respondent had attempted to leave by the side door, because the
alien refused to tell where he lived, and because the alien had no close
relatives in the United States (p. 35). Taylor told the alien he considered him illegally in the United States. He took respondent into
custody (p. 34) and with several other investigators brought him to
the Service office. 2 They arrived about 8 p.m. A warrant of arrest was
obtained and served at 10:12 pan. The respondent was then taken to
the police station where he was held overnight.
-

'

The following day Griedel took a statement under oath from the
respondent. The respondent admitted he was a Chinese national who
had entered as a crewman on January 12, 1967, and he had deserted his
vessel on January 16, 1967 at Los Angeles, California (Ex. 5).
We resolve the conflict in the evidence in favor -of Griedel. Respondent's credibility is questionable; he tried to pass as a student before
both Griedel and Taylor. His story is improbable. We find it diffiBefore leaving, Taylor asked the owner if he could search Ur storage room.
Mrs. Malonson left to speak to her ,husband shunt. the request. He "Ischia to
such a search but she convinced him to cooperate (p. 75). She returned with the
keys unlocked two or three doois whisk were closed and permitted Taylor to
make a search. No one was found (pp. 39-40). Taylor queritioned abbot she employees and Prodasky several others. There :were about 24 employees An -the
restaurant (p. 74).

605

Interim Decision #1833
cult to believe that Griedel, without more, would have left his post
unguarded to make his way into the interior of the restaurant. It is far
more logical that he left to pursue the respondent, who fled after
Griedel identified himself.
Counsel contends that when the exits to the restaurant were covered by Service investigators, the respondent's freedom of movement was restricted and this restriction constituted.= arrest one in
violation of the 4th Amendment since it occurred without a warrant.
He further contends that if the arrest did not occur then, it occurred
when Griedel stopped and questioned the respondent.
We do not find that the posting of investigators was an arrest. Nor
do we find Griedel's action in questioning the respondent constituted
an arrest. This action is little different than a routine police field interrogation a routine investigation of suspicious conduct. Such interrogation does not constitute an arrest (See Ponta v. United 'States,
95 F. 2d 412, 413, 9th Gr. 1938 ; Peo v. Rodney P. (Anon.), N.Y. Ct.
App. 11/30/67, 36 L.W. 2377). Griedel did not take the respondent to
Taylor, he accompanied the respondent to see Mrs. Malonson as the
respondent had asked. We do not believe the arrest occurred until
Taylor, after having examined the respondent, determined to his
satisfaction that the respondent was illegally in the United States and
told him that he was going to take him to the offices of the Immigration
Service.
If Griedel's actions are considered an arrest, the arrest was a justified one. Griedel with knowledge that employees of the restaurant were
to be questioned concerning their immigration status, saw the respondent attempt to leave the building shortly after Griedel's partners had
entered the restaurant. The respondent could not speak English well
and he ran when he became aware of Griedel's identity.
Taylor's interrogation of the respondent was justified under section
287(a) (1) of the Act (8 U.S.C. 1357(a) (1) ) which gives service employees the right to interrogate without warrant any person believed
to be an alien as to his right to be in the United States. Taylor's action in arresting the alien was justified under section 287(a) (2) of the
Act (8 U.S.C. 1357(a) (2) ) which authorizes the arrest of an alien
whom the officer has reason to believe is in the United States in violation of law and "is likely to escape before a warrant can be obtained for
his arrest." (See United States v. Alvarado, 321 F.2d 336, 2d Cir.
1968; Pfneiro-Lopes v. Kennedy, 293 F.2d 540, C.A.D.C. 1961, cert.
den. 868 'U.S. 866; Diogo v. Holland, 248 F.2d 571, 3rd Cir. 1957;
Talmounis v. Holland, 132 F. Supp. 754, E.D. Pa. 1955.)
—

—

Counsel. contends that the Service was not authorized under section
237 of the Act to enter the restaurant without a warrant. The eon-

606

Interim Decision #1833
tention must be dismissed. Taylor went in to ask the owner for permission to question the employees. Service officers need no authority
to enter a public place to ask the owner for permission to question his
employees or to obtain his consent to search the place. (Ammo v.
United States, 247 F.2d. 947, 9th Cir. 1957, cert. den. 355 U.S. 916).
Here there was an intelligent consent. Mrs. Malonson knew she could
refuse a search. In fact she talked her husband out of his objection.
There is no evidence that the consent was obtained by duress. Taylor
testified he would have changed his plan if there had been any
objection.
Moreover, it was not the search of the premises which resulted in the
respondent's apprehension, (Taylor was still speaking to the owner
about preliminary arrangements when respondent appeared before
him and the owner (pp. 10-15) ) but respondent's attempted flight from
the building and the unsatisfactory explanation he gave.
Counsel's contention that the Service arrested respondent without
first determining that he was likely to escape is contradicted by the
evidence. Taylor, giving the basis for his conclusion, testified that he
had determined that the respondent would abscond if not taken in
custody (p. 35). Taylor's conclusion was a, necessary and reasonable

determination.
Counsel appears to be of the belief that an error was committed in
arresting respondent without advising him that he was being detained
because he might have absconded. No authority is cited for the contention. We find no error.
Counsel contends that the respondent's statement (Ex. 5) was made
while he was under an illegal arrest, and that Exhibit 2, the crewman's landing permit (given up by the respondent but not taken
from him (p. 56) ), and other evidence obtained as a result of informs(lull furnished by the respondent (Ex. 3, Republic of China passport
issued to the respondent; Ex. 4 crew list of the SS "Oriental jade"
which departed January 22,1967 showing respondent had deserted)
should have been suppressed. We do not believe the arrest was illegal.
We believe the evidence was properly in the record and it was proper
to consider it.
The special inquiry officer denied respondent's request for voluntary
departure because the respondent had refused to testify in connection
with the application and had therefore failed to establish eligibility.
Counsel contends respondent was compelled to forego testifying on
the merits to preserve issues as to deportability and alienage. Counsel
asks that voluntary departure be granted because respondent has no
criminal record, he is gainfully employed, and he is in possession of

607

Interim Decision 44888
funds with which to depart. We believe the special inquiry officer correctly found that the respondent had failed to establish his eligibility
for voluntary departure since he refused to be examined on the issue.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

608


Interim Decision #2355

MATTER OF WONG
In Visa Petition Proceedings
A-17962992

Decided by Board March 18, 1975
Petitioner, a native of China and lawful permanent resident of the United States applied
for classification of the beneficiary as his spouse under section 203(aX2) of the Immigration and Nationality Act. At the time petitioner took the beneficiary as his concubine, he
had a wife and another concubine. After petitioner's wife died and his first concubine
obtained a divorce, petitioner and beneficiary were married, in 1956, in Hong Kong, by
a priest, before two witnesses. However they had obtained no marriage license nor did
they register the marriage. 'In view of the enactment, in 1971 of the Hong Kong
Marriage Reform Ordinance (Chapter 178 of the Laws of Hong Kong, Revised Edition
1971), it is not necessary to look to Chinese law and custom obtaining prior to 1956 to
determine the validity of this marriage. It was valid under section 8 of the 1971
Marriage Reform Ordinance because it was celebrated in an open ceremony prior to
October 7, 1971, both parties were free to marry and were over the minimum age for
marriage. The marriage is considered valid IL saa the date of ite celebration, notwithstanding that it was not under and in accordance with the Marriage Ordinance.
Therefore the beneficiary spouse was eligible for second preference classificiation.
ON BEHALF OF PETITIONER:
Charles J. Wong, Esquire
755 Commercial Street
San Francisco, California 91108

ON BEHALF OF SERVICE: •
Charles Gordon
General Counsel

The Service has moved for reconsideration of our decision of
November 21, 1969 in which we sustained the petitioner's appeal from
the decision of the district director, and we approved the visa petition
filed by the petitioner.
The petitioner is a native of China and a lawful permanent resident of
the United States. He is applying to have the beneficiary classified as his
spouse under section 203(a)(2) of the Immigration and Nationality Act.
The beneficiary was taken by the petitioner as his concubine in China
in 1945. At that time, the petitioner already had a wife and another
concubine. In 1950, the petitioner left China and entered Hong Kong
with the beneficiary. The petitioner's wife died in China in March 1953,
and the petitioner's first concubine obtained a divorce from the People's
Court of Toyshan District, Kwantung, China, in 1952.
On May 20, 1956, the petitioner and the beneficiary were married
209

Interim Decision #2355
before two witnesses in a ceremony performed 6S, a priest at St.
Teresa'sChurch, Kowloon, Hong Kong. A marriage certificate issued by
the church is contained in the record. The petitioner has stated that no
marriage license was obtained for that marriage, and that the marriage
was not registered with the civil authorities in Hong Kong.
The district director held that the failure to obtain a marriage license

resulted in a void marriage under section 28 of the Hong Kong Marriage
Ordinance, Chapter 181 of the Laws of Hong Kong, Revised Edition,
1950. Upon appeal, we held that the beneficiary had acquired the status
of "principal wife" under Chinese law and custom in Hong Kong by
virtue of the death of the petitioner's original wife and the divorce
obtained by his first concubine. We also held that the Hong Kong
Marriage Ordinance was inapplicable because of the exception for marriages in accordance with Chinese law and custom. We found it unnecessary to pass on the validity of the 1956 church marriage because of our
conclusion that the parties were already married under Chinese law and
custom. Tile Service has requested that we reconsider our conclusions
regarding Chinese law and custom in Hong Kong. However, recent
developmenis in the law of Hong Kong have mooted the issue raised by
the Service in this motion.
Since the time of our original decision in this case, the Hong Kong
Government has enacted the Hong Kong Marriage Reform Ordinance,
Chapter 178 of the Laws of Hong Kong, Revised Edition, 1971. Section

8 of the Marriage Reform Ordinance states:
Subject to section 14, 1 every marriage celebrated in Hong Kong before the appointed
day [October 7, 1971] as a modern marriage by a man and a woman each of whom, at the
time of the marriage, was not less than sixteen years of age and was not married to any
other person shall be a valid marriage, and shall be deemed to have been valid since the
time of celebration, notwithstanding—
(a) that the proper personal law and religion of the parties, or one of them, was
Chinese kill and custom, and the marriage was prohibited by or failed to comply with
the requirements of Chinese' law and custom;. or
(b) that the marriage was not under and in accordance with the Marriage Ordinance.
(Emphasis supplied.)

Section 2 of the Marriage Reform Ordinance defines the term "modern
marriage" as "a marriage celebrated in Hong Kong before the appointed
day [October 7, 1971] by open ceremony as a modern marriage and in

the presence of two or more witnesses." Section 2 also defines a "validated marriage" as "a modern marriage made valid by section 8."
The petitioner's 1956 marriage to the beneficiary was celebrated by an
open ceremony before two witnesses prior to the "appointed day." Both
parties were free to marry and were over the minimum age for marriage.
Section 1,1 deals with dissolution of marriages.

210.

Interim Decision #2355
The petitioner's 1956 marriage to the beneficiary qualifies as a "validated marriage," made valid by section 8 of the Hong Kong Marriage
Reform Ordinance.
Consequently, the issue as to whether the petitioner and the beneficiary
had a valid marriage under Chinese law and custom in Hong Kong prior
to 1956 has become moot in the context of this case. The issue of the
effect on the 1956 marriage of the failure to comply with the prior
Marriage Ordinance has also become moot. Regardless of the correctness of our discussion of Hong Kong law in our earlier decision, our
order sustaining the appeal from the district director's denial, and our
order approving the visa petition are clearly proper at this point in time.
Consequently, the Service motion for reconsideration will be denied.
ORDER: The Service motion is denied, and our order staying the
execution of our November 21, 1969 order is vacated; however, our
November 21, 1969 order is corrected by the deletion of the words "for
immediate relative status."
Louis P. Maniatis, Board Member, dissents, without opinion.
Irving A. Appleman, Board Member, abstained from consideration of
this case.

211 •


Interim Decision #2058

MATTER OF JAMES

In Visa Petition Proceedings
A-17532053
Decided by Board September 23, 1970
A Deed Poll executed by the natural mother of the beneficiary, who was
born in Guyana, declaring that beneficiary was to assume henceforth the
U.S. citizen petitioner's maiden name, does not constitute a valid adoption
since under the law of Guyana an adoption can be accomplished only in
compliance with the Adoption of Children Ordinance (through a specially
constituted authority, the Adoption Board), and by court order.
ON BEHALF OF PETITIONER:
Pro se

ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney

The petitioner appeals a decision of the District Director denying this petition filed to accord the beneficiary status as an
adopted child. The District Director concluded that the record
failed to disclose a valid adoption of the beneficiary prior to her
fourteenth birthday. We affirm that decision.
The petitioner is a married female, a native of Guyana and naturalized citizen of the United States. The beneficiary was born
June 29, 1952 in Guyana, the natural child of one Vivian Douglas.
The beneficiary's birth certificate is of record. The petitioner
2,1aims that the beneficiary was given to her in adoption by the
natural mother on January 20, 1959. In support of her assertion,
the petitioner has presented a Deed Poll executed by the beneficiIry's mother before a Notary Public in the County of Demerara,
Guyana. The beneficiary's mother stated therein that her child
was to assume henceforth the petitioner's maiden name; and that
in all records, documents, as well as in all actions or proceedings
her daughter would be known as Lynette Celestina James. No
mention is made of whether the petitioner was to assume care
and custody of the beneficiary; in fact no where in that document
foes the petitioner's name appear as adopter or guardian.
The petitioner argues that the Deed Poll is evidence of a for-

616

Interim Decision #2058
mal adoption. Our study of the adoption laws of Guyana persuades us that her contention is without merit. Under the Adoption of Children Ordinance, an adopter is defined as a person who
has adopted a child pursuant to an adoption order.' The
procedure is clearly detailed. Under the adoption ordinance, only
a specially constituted authority, the Adoption Board,' has the authority to make arrangements for the adoption of a child.' It is
the duty of the Board to receive applications from parents,
guardians and adopters in respect of the adoption of children; to
make investigations concerning the adoption of children; and act
as guardian ad litem. 4 Penalty provisions are provided where persons other than the Board make arrangements for the adoption of
a child.'
An adoption order is issued, upon application, by the Supreme
Court or any court of summary jurisdiction.b These orders are
thereafter entered in the Adopted Children Register: The ordinance further provides 8
:

A certified copy of any entry in the Adopted Children Register, if purporting to be signed by the Registrar General shall, without any further or
other proof of entry, be received as evidence of the adoption to which it
relates and, where the entry contains a record of the date or the country of
birth of the adopted person, shall also be received as aforesaid as evidence
of that date or country in all respects as if the copy were a certified entry
in the Register of births.

From the foregoing we conclude that the Deed Poll is not an
adoption order but the natural mother's declaration that her
child's name was to be changed to that of the petitioner. We cannot accept that document as evidence that all requirements of the
above adoption ordinance have been met. Accordingly we conclude that the petitioner has not established a valid adoption.
ORDER: The appeal is dismissed.

1 Ordinance No. 12 of 1955, Adoption of Children Ordinance [1955] Section 2.
2 Id. Section 3.
3 Id. Section 4(1).
4 Id. Section 5.
6 Id. Section 4(2).
6 Id. Section 16(1).
7 Id. Section 23(1).
8 Id. Section 23 (2).

617


Interim Decision #1615

MATTER OF LEE
In Section 245 Proceedings
A-13553064
Decided by District Director April 6,1966
An alien accorded second preference classification in 1959 under the then existing statute as the unmarried son of a 'United States citizen, who is still
unmarried and whose U.S. citizen mother is still living, is clearly within
the provisions of section 25(a) of the Act of September 26, 1961, which
statute has not been repealed; therefore, he is classiSable as a "nonquota immigrant" and, being otherwise eligible, his application for adjustment of
status pursuant to section 246 . of the Immigration and Nationality Act, as
amended, is granted.

The applicant's only entry into the United States occurred at
Honolulu, Hawaii on December 13, 1963, at which time he was
paroled indefinitely pursuant to the statutory authority contained
in section 212(d) (5) of the. Immigration and Nationality Act (8
U.S.C. 1182). That extraordinary authority was exercised because
of the applicant's status as a "Hong 'Kong parolee", i.e., a refugee
from Communist China.
His application for adjustment of status was filed on January 26,
1966. The required investigation and medical examination have
been completed and the applicant has been found to be admissitle
to the United States and qualified in every respect for the benefit
he seeks. The sole question presented is that of the quota to which
he should be charged.
For reasons set out more fully below, it has been concluded that he
should not be charged to any quota, that he may properly be classified as a "nonquota immigrant", even though that term is no longer
to be found in the Immigration and Nationality Act.
The subject was born in China on December 25, 1987. On July 23,
1959, his mother, LEE Lau Sam Moi, a citizen of the United States,
filed a petition 'to classify him as a second preference immigrant
under the then existing statute (8 U.S.C. 1153) as the unmarried
710

Interim Decision 401615
a. citizen of the United States. This petition was approved
on December 28, 1959.
The pertinent statutory provision reads:

son of

Any alien eligible for a quota immigrant status under the provisions of section 203(a7(2) or (3) of the Immigration and Nationality Act on the baste of
a petition Sled with the Attorney General prior to J'uly 1, 1981, shall be held
to be a nonquota immigrant and, if otherwise admissible under the provisions
of that Act, shall be issued a nonquota immigrant visa: Provided, That, upon
his application for an immigrant visa, and for admission to the 'United States,
the alien is found to have retained his relationship to the petitioner, and status,
as established in the approved petition. (Sec. 25(a), Act of September 20,
1961, '75 Stat 657)

The statutory interpretation to be given to the words "relation,

ship" and "status" has been decided by the Attorney General. Retention of the parent-child relationship is affected by marriage but
not by the ge ef the child (Matter of Y J---0--, 9 L & N. Dec.
471). The applicant is still unmarried and his U.S. citizen mother
is still living. The statute quoted above has not been repealed.
The October 3, 1965 amendment to the Immigration and Nationality Act made no provision for aliens who had achieved nonquota
status by special legislation enacted prior to 'October 8, 1965. However, since the Act of October 3, 1965 did not repeal, either expressly or by implication, the Act of September 26, 1961, it will be conchided that this applicant is still a nonquota immigrant.
Additional evidence to support this conclusion is to be foUnd in
Title 22 of the' Code of Federal Regulations, Part 42.20, which
—

authorizes the issuance of inunig,rant visas to immediate relatives

or special immigrants after they establish their right to such classifications under the provisions of section 201:(b) or 101(a) (27) or other
proviiion 'of law. (Empllesis added.) Part 42.27 of that Title
pro Ades that an alien shall be classifiable as a nonquota immigrant
if he establishes to the satisfaction_ of the consular officer that he .
qualifies under section. 25(a) of the Act of September 26, 1961:,
The facts recited above clearly bring this applicant within the pro- :
visions of section 25(a) of the Act of September 26, 1961. His
application will be granted, -without deduction .of a number from
the quota of ,China. .
ORDER: It is ordered that the application of Herman Buck-kin
Lee for adjustment of status pursuant to section 245 of the
gration and Nationality Act be and hereby is granted.

711


MATTER OF T
In DEPORTATION Proceedings
A-7420193
Decided by Board December 10, 1959
12. ,portability—Section 241(a)(1)—Fraud not. essential to support charge that
alien was not nonquota as specified in visa.
(1) Showing of fraud is not required to sustain charge under section 241(a)
(1) of the 1952 act that at time of entry alien was not a nonquota immigrant as specified in his visa.
(2) An alien who abandoned his residence in the United States and departed
to his native country with the intention of remaining there was not entitled to receive a nonquota immigrant visa as a returning resident and was
further excludable upon his reenti7. in June 1952 as ineligible to citizenship
by reason of having previously applied for and obtained an exemption from
military service.

CHARGES '
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) ]—Not nonquota immigrant as specified.
Act of 1952—SectIuu 241(a) (1) (8 ILS.C. 1251(a) (1)]--Alien ineligible to citizenship.
BEFORE THE BOARD

Discussion : This is an appeal from the order of the special inquiry
officer requiring respondent's deportation upon the grounds stated

above. The appeal will be dismissed.
The respondent, a 33-year-old married male, a native and citizen
of Germany, was admitted to the United States for permanent resi
dance on February 12, 1950. His wife and child remained in Ger
many with the expectation of joining him when Suitable arrange
ments could be made. In October 1950 he registered under th
Selective Service law. He filed a classification questionnaire i
November; from December 1950 to February 1951 his classificatio
was studied by the Board; on January 17, 1951, he was placed i
Class I—A. He apparently requested a reopening of the classific:
ton. The application was denied. He was ordered to report fc
a physical examination on March 13, 1951. On March 7, 1951, ti
respondent appeared before the Board and stated he intended
leave the United States "to go back to Germany" to stay and desire
500

a permit to leave the United States. lie testified that lie was told
he could not be given a permit to depart unless he signed SSS Form
1:30 applying for relief from seta ice with the Armed Forces.
On March 14. 1951, respondent appeared before the Board and
stated lie wanted to sign Stitt Form 13o and "knew what it stated."
The application for relief which is dated Mardi 9, 1931, but purports
to be subscribed and sworn to on March 7, 1!751. contains the information that the applicant for relief understood that he would forever
lose his right to become a citizen and that lie may be prohibited
from entry into the -United States as result of filing the application.

On March 21, 1951, respondent was placed in Class IV—C. On
April 3. 1951, lie departed for Germany. The report executed by
the Service in connection with the departure reveals that the reason
given for going abroad was that the respondent was returning home
and that lie would remain there permanently.
The respondent explained that he returned to Germany because
of his desire to rejoin his family, for he saw no opportunity of bringing them to the United States because he had been unable to secure
employment which permitted him to accumulate enough money to
bring his family. or to support them here, after their arrival. He
denied that his return to Germany was caused by any fear of military service. Respondent joined his family in Germany and secured
employment there. However, on April 15, 1952, he obtained a nonquota visa on the basis of the allegation that he was returning from
a temporary visit abroad. His wife and child secured second preference visas under the German quota, as the wife and child of an
alien lawfully admitted for permanent residence. The family came
to the United States on June 2, 1952. Respondent admitted that he
left the United States with the intention of residing permanently
in Germany, but that after he had lived in Germany for a while,
he changed his mind because economic conditions had deteriorated
and he furthermore had decided that he did not try hard enough
in the United States.

In his appeal and at oral argument the respondent stated that he
furnished the United States Consul in Germany with true information and that the issuance of the visa was not induced by any fraud
on his part. He stated he was not informed that his ineligibility to
become a citizen would bar him from returning to the United States.
It is not necessary to consider whether or not fraud existed in this
case. The charge that the respondent was not in possession of a
proper visa is not based upon the existence of fraud. The respond-

ent. obtained a visa as a "returning resident." He was not a "returning resident." To be a "returning resident," respondent had to
establish that he was "returning from a temporary visit abroad"
(sect-ion 101(a) (27) (B), 8 U.S.C. 1101(a) (27) (B)). Respondent
501

did not depart for a temporary visit abroad. He departed with the
intention of making his permanent home abroad. He cannot be
considered as a person who has left for a temporary visit, even
though shortly after he arrived in foreign territory he changed his
mind (International Mercantile Marine Co. v. Elting, 67 F.2d 886
(CA. 2, 1933); United States ex rel. dither v. McCandless, 46 F.2d
288 (C.A. 3, 1931) ; United States ex rel. Lesto v. Day, 21 F.2d 307
(C.A. 2, 1927)). The "intention of the departing immigrant must
be to return within a period relatively short, fixed by some early
event."
The fact that respondent obtained a nonquota immigrant visa as
a returning resident is not conclusive upon the Immigration Service
a:iich is required to reexamine the alien's eligibility to enter the
United States (United States ex rel. Katnic v. Reimer, 25 F. Supp.
925 (S.D.N.Y., 1938); section 221(h), Immigration and Nationality
Act, 8 U•S.C. 1201(h)). The applicant clearly was not a nonquota
immigrant at the time of his application for entry and was, therefore, then inadmissible. This is so even if the respondent furnished
to the consul the information for the visas without any intention
of misleading him. The first charge is sustained.
We come to the second charge. At the time that the respondent
applied for admission, the law provided that a person was "ineligiMe to citizenship" who was at any time permanently debarred from
becoming a citizen under any law of the United States. The application for relief signed by the respondent was signed at a time when
the Selective Service Act of 1948 provided that any person who had
made application for relief shall thereafter be debarred from becoming a citizen of the United States. The respondent admitted both
that he signed the form and that he was told it would debar him
from becoming a citizen of the United States. He stated that although he was told that he could never be a citizen if he signed, i ,
dinotmaerhbcuswagoinktGermysa
Respondent alleges that when he signed the application whic?
made him ineligible for citizenship, he was not told that he wool
become inadmissible to the United States. If respondent was m
told of this fact, perhaps it was because he was a resident alien at
the law then did not bar the entry of such an alien even though I
was ineligible for citizenship. What made respondent inadmissit
at the time of his entry in June 1952 was the fact that he was
alien ineligible to citizenship and the fact that lie was not a rettn
ing resident. If he had been a returning resident he would in
been admissible_ The fact that respondent was not aware that
was inadmissible when he applied for his visa, or when he app
for admission, is not of importance as far as the charges aru (
cerned. The second charge is sustained.
502

The respondent has applied for suspension of deportation. The
special inquiry officer has properly pointed out that the. respondent
is technically ineligible for the relief. Despite the favorable factors
arising out of the absence of an arrest. record, the good reputation,
the steady employment, the presence of a citizen child, and the, fact
that the departure does not appear to have been to evade service in
the United States, but was based on loneliness and inability to make
a satisfactory adjustment, we are without power to grant the application. The appeal must be dismissed.
Order : It is ordered that the appeal be and the same is hereby
dismissed.

503


Interim Decision #2806

MATTER OF CALICA

Application for Admission as Permanent Resident Under Section

203(g) of the Immigration and Nationality Act
A-22264180
Decided by .Regional Commissioner December 6, 1979
(1) Applicant, a 25-year-old unmarried native and citizen of Poland was first admitted

into the United States as a nonimmigrant visitor on July 5, 1976. On September 19,
1978, he was granted political asylum in the United. States and the privilege of
departing voluntarily by September 19, 1979. After two years and four months
physical presence in the United States, lw was issued a Refugee Travel Docuuteut

November 30, 1978, and was paroled as a refugee upon his return from Canada on
December 23, 1978. On January 16, 1979, he requested permanent resident status under
section 5 of the Act of October 5, 1978, Pub. L 95-412, effected in accordance with
section 203(g) of the Immigration and Nationality Act,

B U.O.O.

1153(g).

(2) Though section 203(g) is not specific as to whether its two year residence requirement applies only to residence as a refugee, the legislative history of Pub. L. 95 412
reveals that its benefits are intended only for aliens who have been paroled as refugees
and who have been in the United States for at least two years as refugees.
(3) Where the record indicated that the applicant had not been in the United States for
two years after his parole as a refugee, the applicant was not eligible for admission as
a permanent resident under Pub. L. 95-412 and section 203(g) of the Immigration and
Nationality Act, 8 U.S.C. 1153(g), as amended.
-

ON BEHALF

or PETITIONER: Melvyn E. Stein, Esquire
One North LaSalle Street
Chicago, Illinois 60602

This matter is before me on certification by the District Director

who on September 4, 1979, rejected the request for permanent resident
status under Pub. L. 95-412 which is effected in accordance with section
203(g) of the Immigration and Nationality Act, 8 U.S.C. 1153(g), as
amended. The decision will be affirmed.
The applicant is a 25-year-old unmarried native and citizen of Poland. He was first admitted to the United States on July 5, 1976, as a
nonimmigrant visitor. On September 19, 1978, he was granted political
asylum in the United States and granted the privilege of departing
from the United States voluntarily by September 19, 1979. The appli430

Interim Decision #2806
cant was issued a Refugee Travel Document on November 30, 1978.
Upon his return from Canada on. December 23, 1978, he was "paroled as
a refugee." On January 16, 1979, he submitted application Form 1-485
to request permanent resident status under section 5 of the Act of
October 5, 1978, Pub. L. 95-412.
The District Director rejected the application for several reasons.
One reason was that the applicant had not been in the United States
for two years after his parole as a refugee as required by sections
203(g) and (h). The other reasons mentioned by the District Director as
a basis for rejecting this application have no bearing on the benefit
that the applicant is seeking.
On appeal, the applicant, through counsel, maintains that section
203(g) does not specifically require that the requisite two year presence
be after the entry as a refugee. He contends that he has been in the
United States since July 1976, and should be entitled to the benefits of
Pub. L. 95-412 notwithstanding that his "parole as a refugee" was only
effected in December 1978.
I have determined that the applicant is not eligible for this benefit
because he has not been in the United States for two years since his
parole as a refugee. I reached this conclusion after careful examination
of Pub. L. 95 412 and its legislative history, section 208(g) and (h) of the
Act, and the implementing Operations Instructions at 0.I. 235.12.
Throughout, it is stated that the purpose of this legislation was to
afford paroled refugees the same treatment under the law as conditional entrants receive, especially to avail them of the provision which
allows their permanent residence, once granted, to be rolled back to
the date of their entry as refugees. In view of this, I am confident that
the benefits of section 5 of Pub. L. 95-412 are meant to apply to aliens
who have been paroled as refugees and who have been in the United
States for at least two years as refugees, notwithstanding that section
203(g) of the Act is not totally specific as to that requirement. For this
reason, the request for this benefit, which is properly an application
for admission to the United States and not an adjustment of status,
-

cannot be granted at this time.

The District Director has asked me to comment on another aspect of
this case. He questions whether a citizen of an Eastern Hemisphere
country which is communist-dominated, such as Poland, who would be
able to seek permanent residence as a refugee under section 203(a)(7)
of the Act, is also permitted to avail himself of the provisions of this
new law, Pub. L. 95-412, and seek permanent residence in accordance
with sections 203(g) and (h) of the Act. The answer is affirmative.
Section 5 of Pub. L. 95 7412 is available to every alien who has been
paroled as a refugee and has been in the United States for two years
since that parole unless the alien is eligible for a "rollback", or retroac-

Interim Decision #2806
tive type of permanent resident admission or adjustment under some
other law. Therefore, the only- aliens paroled as refugees not eligible
for Pub. L. 95-412 benefit would be conditional entrants, parolees from
Cuba falling under the Act of November 2, 1966, Pub. L. 89 722, and
-

refugees from Vietnam, Cambodia, or Laos falling under the Act of
October 28, 1977, Pub. L. 95-145. To view all others as eligible for Pub.
L. 95-412 consideration does not subvert the legislative intent of this
law because it was designed as a catch-all provision to operate until
October 1980, to accommodate all aliens who have been paroled as
refugees for at least two years without regard to the limitations of
seventh preference quota number availability. Along the same line of
-

reasoning, it is of no consequence that if an alien, such as this applicant, were to apply for adjustment of status under section 245 of the
Act based on refugee classification provided by section 203(a)(7), he
might be found ineligible under section 245(c) as one who had worked
without Service authorization. This same alien may seek permanent
residence under Pub. L. 95-412 without regard to this period of
unauthorized employment, because the status is accorded through the

operation of section 203(g), not section 245; and because Pub. L. 95-412
states that its provisions apply to aliens who meet certain criteria,
"notwithstanding any other provision of law," It cannot be inferred

that section 5 of Pub. L. 95-412 should not be available to those aliens
just because they are also' eligible -to file under section 245, but who
have chosen not to, because they realize such application would fail. To
follow this inference and say that should be refused any Pub. L. 95-412
consideration due to previous unauthorized employment would be to
read something into section 5 of Pub. L. 95-412 and into section 203(g)
of the Act which is not there.

In conclusion, a request for benefits under Pub. L. 95-412 is properly
an application for admission to the United States and is effected by an
inspection not by an adjustment of status. I find that this applicant is
not entitled to any benefits under Pub. L. 95-412 at this time because he
has not been in the United States for two years since his parole as a
refugee.
ORDER' The alien's request for admission to the United States as
a lawful permanent resident under section 5 of Pub. L. 95-412 shall not
be entertained at this time because he is statutorily ineligible to seek
the benefit.

432


Interim Decision #2515

MA.TTER

OF

HUSSEIN

In Visa Petition Proceedings
A-20167543

Decided by Board August 12, 1976
(1) Where petitioner, a native of Palestine and resident of New York had returned to her
home country aid had personally appeared before a divorce court of that country where
both she and her first husband had been born, where they had been married, and where
both their children had been born, there were substantial contacts between the divorcing jurisdiction, the parties, and the marital res.
(2) Service of process on petitioner's Ant husband was had by publication in accordance
with local Islamic law because his Whereabouts were unknown. The Islamic law is
similar to that of New York (section 216 of the Civil Practice Law and Rules of the State
of New York), and under those circumstances the service of process herein met minimal
due process requirements.
(3) Under the circumstances, it is concluded that New York courts would extend recognition to the foreign divorce decree secured by petitioner as a matter of comity; the decree
is valid for immigration purposes; and the visa petition filed to accord beneficiary
preference classification under section 203(a)(2) of the Immigration and Nationality Act
is approved.
ON BEHALF OF I

rrrioNaa: Omar Z. Ghobaahy, Esquire
377 Broadway
New York, New York 10013

In a decision dated March 8, 1974, the officer-in-charge in Athens,
Greece, denied the visa petition filed by the petitioner in behalf of the
beneficiary as her spouse under section 202(a)(2) of the Immigration and

Nationality Act. We dismissed the petitioner's appeal from that decision
on April 10, 1975. The petitioner has moved to reopen the proceedings.
The motion will be granted, and the visa petition will be approved.
The officer-in-charge denied the petition on the ground that, under
New York law, a previous marriage of the petitioner had not been
dissolved and, as a consequence, her marriage to the beneficiary is
invalid.
Briefly, the relevant facts appearing in the record are as follows: The
petitioner and the beneficiary are natives of Palestine, born in BirNabala, a village now occupied by Israel. This is the second marriage for

the petitioner. She was first married in 1967 by the Shari'a Court in
736

tnterim Decision #2515

Jerusalem to a man from the same village. She followed her husband to
the United States in 1971. They separated a year later. The petitioner
has stated under oath that, from the time of the separation, her husband
concealed his whereabouts to prevent her from gaining custody of their
children and from obtaining financial support from him. The petitioner,
after living in New York for three months, returned to Bir-Nabala. Her
husband remained in the United States. On August 20, 1973, the petitioner obtained a divorce from the Shari'a court in Jerusalem. She was
married to the beneficiary by the same court on January 19, 1974. She
now wishes to return to New York with her new husband.
The issue raised in this appeal is whether the divorce obtained by the
petitioner from her first husband would be accorded recognition, as a
matter of comity, by the State of New York.
We know of no New York decision which is factually identical to the
present ease. 'However, as the Court declared in another case involving
the recognition of a foreign divorce judgment—
In the absence of a statutory provision or judicial precedent directly laying down our
policy applicable to the circumstances of a particular ease, we must look for guidance to
the general spirit and purpose of our laws and the trend of our judicial decisions. De
Pena v. De Pena, 298 N.Y.S.2d 188, 191 (Sup. Ct., App. Div. 1969)

From a review of New York decisions, it is evident that, for many
years and in appropriate circumatances, New York courts have recognized divorces :which foreign nationals residing in New York had secured abroad in accordance with the laws of their native countries. See,
Oettgen v. Oettgen, 94 N.Y.S.2d 168 (Sup.. Ct., Spec. Term 1949);
Martens v. Martens, 20 N.Y.S. 206 (Sup. Ct., App. Div. 1940, rev'd on
other grounds, 284 N.Y. 363 (1940); Hansen v. Hansen, 8 N.Y. S.2d 655
(Sul). CL, App. Div. 1938); Sorensen v. Sorensen, 220 N.Y. S. 242 (Sup.
Ct., App. Div. 1927). Such judgments have been recognized, as a matter
of comity, where the foreign jurisdiction had a legitimate interest in the
marital status of the parties and where minimal due process standards
had been met.

This petitioner had returned to her home country and had personally
appeared before a divorce court of that country where both she and her
first husband had been born, where they had been married, and where
both of their children had been born. Thus, there were substantial
contacts between the divorcing jurisdiction and the parties and the
marital res.
On the facts of this record, recognition of the divorce would not
violate due process requirements or established local policy. On August
20, 1973, a "first sentence of divorce" was issued by the Primary Court
of Jerusalem. On August 28, 1973, notice of that judgment was served
on the defendant by publication.in his village newspaper. Although the
737

Interim Decision #2515
defendant was in the United States, and his whereabouts was unknown
to the petitioner, his relatives continue to live in his native village in
Palestine. In the English translation of the notice, the sentence is
described as "a Judgment given in absence with the right of opposition
and appeal".
On September 9, 1973, the petitioner requested confirmation of the
judgment from the Highest Court of Appeal in Jerusalem. The issue of
proper service on the defendent was reviewed by the appellate court,
and the judgment was modified to allow the defendant thirty days from
the date of publication in which to challenge the judgment. The defendant did not respond within the time allotted. Thereafter, the appellate

court reviewed the lower court's decision on the merits, and affirmed
the judgment.
The publication requirements under the applicable Islamic law and
under New York law (section 316 of the Civil Practice Law and Rules of
the State of New York) in a case in which the defendant's whereabouts
is unlcnown, are quite similar.
We conclude that New York courts would extend recognition to the
foreign divorce decree secured by the petitioner, as a matter of comity,
and that the decree is valid for immigration purposes.

ORDER: The motion to reopen is granted.

The visa petition is approved.
Board Member Irving A. Appleman abstained from consideration of
this case.
Further order:

738