Interim Decision #2846

MATTER OF MOWRER

In Visa Petition Proceedings
A-19189896
A-34056013
Decided by Board January 9, 1981
(1) The viability of an existing marriage which is the basis for a stepparent/stepchild
relationship is not relevant to a determination whether the status sought by the visa
petition should be accorded, unless the parties to the marriage have legally separated.
(2) Where the parties to a marriage creating a stepparent/stopehild relationship have
legally separated or where the marriage has been terminated by divorce or death, the
appropriate inquiry is whether a family relationship has continued to exist as a
matter of fact between the stepparent and stepchild. Matter of Simicevic,10 I&N Dec.
303 (DIA 1963), modified.
(3) Since the beneficiaries' status as the petitioner's stepchildren was established by
their prior admission to the United States on the basis of that status, and their
relationship to the petitioner has not been terminated as a result of the petitioner's
divorce or legal separation from the beneficiaries' mother, the visa petition was
approved, despite the separation of the petitioner from the beneficiaries' mother since
1974, with no plans for reconciliation, and the beneficiaries' residence abroad with
their mother during that time.
ON BEHALF OF PETITIONER:
Joseph A. Gatto, Esquire
2021 City National Bank Bldg.
Detroit, Michigan 48226

ON BEHALF OF SERVICE
Gerald S. Hurwitz
Appellate Trial Attorney

Br Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members
The United States citizen petitioner applied for immediate relative
status for the beneficiaries as his stepchildren under section 201(b) of
the Immigration and Nationality Act, 8 U.S.C. 1151(b). The visa petitions were approved by the District. Director on June 11, 1379, and July
22, 1979, but were subsequently returned to him by the American
Embassy. Revocation proceedings were instituted, and, in a decision
dated April 22, 1080, the District Director revoked the visa petitions.

The petitioner has appealed from that decision. At oral argument, the
Appellate Trial Attorney stated that the Service would not object to
approval of the visa petitions. The appeal will be sustained, and the

Interim Decision #2846
visa petitions will be approved.
The petitioner is a 37-year-old native and citizen of the United
States. The beneficiaries are natives and citizens of the Philippines.
Maria was born on July 4, 1965, and Freddy on February 27, 1967. The
record reflects that the petitioner married the beneficiaries' mother on
January 10, 1969. Maria was admitted to the United States for
permanent residence with her mother on July 16, 1969, and Freddy
entered as a permanent resident on October 21, 1972. In his decision,

the District Director noted that the petitioner has been separated
from the beneficiaries' mother since 1974 with no plans for reconciliation, and that the beneficiaries have lived in the Philippines with their
mother since she left this country.' On that basis, the District Director
concluded that the petitioner no longer has a stepparent relationship
to the beneficiaries.
On appeal, the petitioner contends that his separation from his wife
should not preclude him as a matter of law from establishing that his
relationship as stepparent to the beneficiaries is an existing one. He
further argues that the evidence supports his claim that he has, in fact,
continued his relationship as a stepparent to them.
Section 101(b)(1)(B) of the Act, 8 U.S.C. 1101(b)(1)(B), includes
within the meaning of the term "child",
a stepchild, whether or not born out of wedlock, provided the child has not reached the
age of eighteen years at the time the marriage creating the status of stepchild
occurred.

It is clear from the facts of this case that the beneficiaries once
qualified as the petitioner's stepchildren inasmuch as they were previously granted admission to this country on the basis of their mother's
marriage to the petitioner. However, the District Director determined
that their relationship as stepchildren to the petitioner no longer
exists due to their physical separation from him and the fact that his
marriage to their mother is no longer viable.
In denying the visa petition, the District Director cited as authority
our decision in Matter of Simicevie, 10 I&N Dec. 363 (BIA 1963), where
the Board examined the effect of dissolution of the marriage creating
the stepparent/stepchild relationship on the subsequent existence of
that relationship. It was determined in that case that the affinity
created by the marriage had terminated upon divorce of the parents
because the marriage had been childless, the beneficiary remained in
the custody of her natural father, and both parents had since remarried twice. However, in a factually different context, the Board found
that the death of the natural parent did not result in termination of
' The decision states that Freddy returned to the Philippines in July 1974, and Maria
left in July 1975.

614

Interim Decision #2846
the stepparent/stepchild relationship where the evidence indicated
that a family relationship had continued between the petitioner and
beneficiary as a matter of fact. See Matter of Pagnerre,13 I&N Dec. 688
(BIA 1971).

The instant case is distinguishable from both of those situations in
that the petitioner's marriage to the beneficiaries' mother has not been
terminated by law, but merely appears to be nonviable. In recent
decisions, this Board has ruled that the viability of an alien's marriage
can no longer be determinative of his entitlement to immigration
benefits. See Matter of Pierce, Interim Decision 2812 (BIA 1980); Matter of Boromand, Interim. Decision 2811 (BIA 1980); Matter of McKee,
Interim Decision 2782 (BIA 1980); but see Matter of Lenning, Interim
Decision 2817 (BIA 1980). Accordingly, we now conclude that the
viability of an existing marriage which is the basis for a stepparent/stepchild relationship is not relevant to a determination
whether the status sought by the visa petition should be accorded,
unless the parties, to the marriage have legally separated. See Matter of
Lenning, id. We believe that the appropriate inquiry in cases where
there has been a legal separation or where the marriage has been
terminated by divorce or death is whether a family relationship has
continued to exist as a matter of fact between the stepparent and

stepchild. It is our opinion that such a test is consistent with both our
decisions in Matter of Simicevic, supra, and Matter of Pagnerre, supra,
since the emphasis in each, case was on the factual situation of the
stepparent and stepchild subsequent to the termination by law of the
affinity created between them, by the marriage. However, to the extent
that Matter of Sirnicevic may be construed to preclude the continued
existence of the relationship as a matter of law, it is hereby modified.
Inasmuch as the beneficiaries were once admitted to this country as
the petitioner's stepchildren, it has clearly been established that the
requisite relationship between them does exist. Since that relationship

hasr not been terminated as a result of the petitioner's divorce or legal
separation from the beneficiaries' mother, we conclude that the appeal
should be sustained, and the visa petitions should be approved.
ORDER: The appeal is sustained, and the visa petitions are
approved.


Interim Decision #2775

MATTER OF AREGUILLIN
In Deportation Proceedings
A-22365591

Decided by Board April 7, 1980
(1) An alien who physically presents herself for questioning and makes no knowing
false claim to citizenship is "inspected" even though she volunteers no information
and is asked no questions by the immigration authorities, and has satisfied the
"inspection and admission" requirement of section 215 of the Immigration and Nationality Act, 8 U.S.C. 1255.
(2) "Admission" occurs when the inspecting officer communicates to the applicant that
he has determined that the applicant is not inadmissible. That communication has
taken place when the inspector permits the applicant to pass through the port of
entry.
(3) The respondent bears the burden of proving that she in fact presented herself for
inspection as an element of establishing eligibility for adjustment of status.
(4) Where no finding was made below as to credibility and sufficiency of evidence
supporting respondent's claim that she was a passenger in a car permitted to proceed
into the United States after the driver alone had been questioned by the inspecting
officer, and hence inspected and admitted within the contemplation of the law, Board
remanded case to immigration judge.
(5) Immediate relatives and other aliens exempted from the numerical limitations of
the Act are not within the purview of the injunction entered in Silva v.. LPvi, No 16-

C4268 (N.D. M. March 22,1977; as amended April 1, 1977). See final judgment order
entered in Silva v. Bell, No. 76-C4268 (N.D. III. October 10, 1978).
CHARGE
Order: Act of 1952—Sec. 241(a)(1) and 212(a)(20) j8 U.S.C. 1251(a)(1)] and 8 U.S.C.
1182(a)(20))—No valid visa
ON BEHALF OF RESPONDENT: Laurier B. McDonald, Esquire
P.O. Drawer 54
Edinburg, Texas 78539
BY:

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

In a decision dated January 25, 1978, an immigration judge found the
concessions at the
hearing, denied her application for adjustment of status pursuant to
section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, but
respondent deportable as charged on the basis of her

308

Interim Decision #2775
granted her the privilege of voluntary departure in lieu of deportation.
The respondent has appealed from the denial of relief under section
245. The appeal will be sustained and the record remanded for further
proceedings before the immigration judge.
The respondent, a 45-year-old native and citizen of Mexico, claims
eligibility for adjustment on the basis of her status as the beneficiary
of an approved immediate relative visa petition which had been filed on
her behalf by her United States citizen spouse. The immigration judge

found that the respondent had not been inspected and admitted at the
time of her last entry into the United States and therefore has not
satisfied the statutory re quirementsior the relief sought under section
245 of the Act.'
The respondent offered the following account with respect to the
entry in issue. The respondent testified that she crossed the Mexican-

United States border in a car with two couples and another woman.
She had no travel or entry documents in her possession at the time.
The respondent stated that the immigration officer at the port of entry
looked inside the ear, asked the driver a question, 2 then permitted the

car and its occupants to proceed into the United States. She testified
that she personally was asked no questions by the immigration officer;
she apparently volunteered no information.
The immigration judge concluded as a matter of law that the manner of entry described by the respondent does not establish an inspec-

tion and admission for purposes of section 245 inasmuch as the respondent was in fact inadmissible for lack of documentation at the
time she presented herself for inspection. The immigration judge
sought to distinguish the well-established line of cases which holds
that an alien who physically presents himself for questioning is "inspected" even though he volunteers no information and is asked no
questions by the immigration authorities. See Matter of F—, 1 I&N
Dee. 90 (BIA 1941; A.G. 1941); Matter of F—,1 I&N Dec. 343 (BIA 1942);
Matter of G—, 3 I&N D cc. 136 (BIA 1948).3 He noted that the burden
was on the Government in the foregoing cases to show, as part of its
burden of establishing deportability, that inspection had not occurred
' Section 245(a) of the Act states as an eligibility requirement that the alien have been
"inspected and admitted or paroled into the United States...."
2 The respondent stated that she "think[s]" the driver was asked where he was from; at
several points in the proceedings the respondent, who testified through a Spanish
interpreter, indicated that she did not comprehend the verbal exchange between the
immigration inspector and the driver since they spoke English.
That general rule notwithstanding, an alien who gains admission to the United
States upon a knowing false claim to citizenship has not been 'inspected and admitted."
9 I&N Dec. 94 (R.C. 1960);
See Reid v. United States, 420 U.S. 619 (1975); Matter of
Matter of S—, 9 I&N Dec. 599 (BIA 1962); Matter of Woo, 11 I&N Dec. 706 (BIA 1966);
Matter of Wong, 12 I&N Dec- '733 (BIA 1968).

309

Interim Decision #2775

proving
she had been inspected as an element of establishing her eligibility for
adjustment.
while in the present case, the respondent bears the burden of

We agree with the respondent that the immigration judge's distinction is without a difference in determining what constitutes "inspec-

tion and admission." We find no basis for concluding that Congress, in
first imposing the requirement that an alien be "inspected and admitted!' or paroled into the United States as a condition for establishing
eligibility for relief under section 245, 4 intended to depart from the
long-settled construction of that term in favor of the interpretation
adopted by the immigration judge, i. e., that only an alien who has been
"lawfully or legally" admitted to the United States may qualify for
adjustment of status as one who has been inspected and admitted s
Regardless of which party bears the burden of establishing the
presence or absence of an inspection and admission, that which must
be proved remains unchanged. The rule that an alien has not entered
without inspection when he presented himself for inspection and made
no knowing false claim to citizenship applies in determining whether
an' alien has satisfied the inspection and admission requirement of
section 245 of the Act.
We are satisfied that if the facts are found to be as claimed by the

respondent, she was inspected and admitted° within the contemplation
of the law. The respondent, however, bears the burden of proving that
she did, in fact, present herself for inspection. Inasmuch as the immigration judge found the respondent ineligible as a matter of law for
adjustment under section 245, he made no finding with respect to the
credibility or sufficiency of the evidence offered, which at present
consists of the respondent's uncorroborated testimony. We shall accordingly remand the record to the immigration judge for further
proceedings, during which the respondent should be accorded an opportunity to offer any additional evidence she may be able to produce
' Act of July 14, 1960, 74 Stat. 505.
In 1952, Congress provided for adjustment of status, under prescribed conditions, to
"an alien who was lawfully admitted to the United States as a hone fide nonim
migrant ..." Section 245 was subsequently amended in 1958 and in 1960 to eliminate

that restrictive terminology. The immigration judge's interpretation would in effect
reenact the superseded law. Moreover, under the rationale set forth by the immigration
judge, any alien found deportable under section 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1),
for having been excludable at the time of entry presumably would likewise be precluded
from establishing statutory eligibility for section 245 relief for failure to satisfy the
"inspection and admission" requirement.
"Admission" occurs when the inspecting officer communicates to the applicant that
he has determined that the applicant is not inadmissible. Matter of V—Q—, 9 I&N Dec.
78 (BIA 1960). That communication has taken place when the inspector permits the
applicant to pass through the port of entry.
310

Interim Decision #2775
in support of her assertions, and for the entry of a new decision. In the
event the decision on remand is again adverse to the respondent, we
direct that the case be certified back to the Board for review.
Finally, the respondent for the first time on appeal argues that
termination of these proceedings is required by the Temporary Restraining Order entered in Silva v. Levi, No. 76-C4268 (N.D. 111. March
22, 1977; as amended April 1, 1977), which enjoins the Service from
initiating, continuing, or concluding any effort to expel an alien within
the plaintiff class, and further enjoins the Board from dismissing an
alien's appeal or sustaining a Service appeal in a deportation case
involving such alien, unless it has been determined that the alien is
ineligible to receive an immigrant visa or that his continued presence
in this country is contrary to the national interest or security. See the
final judgment order entered in Silva v. Bell, No. 76-C4268 (N.D. Ill.
October 10, 1978): We find no merit in her contention.
The class of aliens protected by the Silva injunction is defined as
follows:
natives of independent countries of the Western HemiaDhere who have priority
dates for the issuance of immigrant visas between July 1, 1968 and December 81, 1916,
whose priority dates have not been reached for processing or who have not been called
for final views.

Silva v. Bell, supra, "Findings of Fact," Para. 9. The protected class is
comprised of aliens who should have been issued one of 144,999 visa
numbers which were assigned to Cuban refugees and wrongfully
charged against the annual Western Hemisphere quota between July
1968 and October 1976. The respondent, as an immediate relative not
subject to the numerical limitations of the Act, did not receive a
priority date for the allocation of a visa number and was in no manner
affected by the unlawful charging policy which the Silva order seeks to
remedy. We conclude that immediate relatives and other aliens exempted from the numerical limitations of the Act are not within the
purview of the Silva injunction. The following orders will be entered.

ORDER, The appeal is sustained and the record is remanded to the
immigration judge for further proceedings consistent with the foregoing opinion and the entry of a new decision.

FURTHER ORDER1 In the event the decision on remand is adverse to the respondent, the record. shall be certified to the Board for
review.

1 The Seventh Circuit Court of Appeals overruled this decision as it relates to the
allocation of visa numbers. Silva v. Bell, 605 F.2d 978 (7 Cir. 1979).

311


Interim Decision #254ti

MATTER OF HAJDU

In Deportation Proceedings
A-20202102

Decided by Board April 11, 1978
(1)In determining whether respondent's membership in the Communist Party of Hungary
falls within the proviso contained in section 212(a)(2)(1) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(28)(I), concerning "involuntary" membership, the fact
that respondent was already employed at the time he joined the Party would not
necessarily render him inadmissible for permanent residence and ineligible for adjustment of status. (Case remanded for fuller development of record below.)
(2) In adjustment of status proceedings, the burden is upon the respondent, as an
admitted member of the Communist Party of Hungary, to establish that he is eligible
for permanent residence under the proviso in section 212(4(28)(1) concellibig Involuntary" membership. The "meaningful association" test of Communist Party membership
enunciated by the Supreme Court of the United States in Galscen v. Press, 347 U.S. 522
(1954) and subsequent cases arose in the context of deportation proceedings (where the
Government bears the burden of proof) and it has no direct application in an adjustment
or status case.
CHARGE:
Order: Act

of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]--Nonimmigrant visitor—
remained longer

ON BEHALF OF

ON BEHALF OF SERVICE:

RESPONDENT:
}Tarry F. Anestos, Esquire
7315 Wisconsin Avenue, N.W.

Jay D. Steinberg

Acting Appellate Trial Attorney

Suite 323-E
Washington, D.C. 20014
Attorney of record:
Deidre Magnetic), Esquire
Robinson, Robinson & Cole
799 Main Street
Hartford, Connecticut 06103
BY:

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

In a decision dated September 28, 1976, an immigration judge found
the responded deportable as charged and granted his application for
the privilege of voluntary departure in lieu of deportation on or before
October 28, 1976. He also denied his application for adjustment of
497

Interim Decision # 4. f546

status. The respondent has appealed from that part of the immigration
judge's decision finding him ineligible for adjustment. Oral argument
was held on October 27, 1977. The record will be remanded.
The respondent is a 45-year-old male, native of Greece and citizen of
Hungary, who was admitted to the United States on July 9, 1974, as a
nonimmigrant visitor for pleasure. His spouse and three children are
residing in Budapest, Hungary. The respondent is the beneficiary of a
fifth-preference visa petition filed by his sister, a United States citizen,
which was approved on January 22, 1975.
The only issue raised on appeal is the immigration judge's finding that

the respondent is not admissible for permanent residence due to his
membership in the Hungarian Communist Party.
The following details concerning the respondent's background were
supplied by his hearing testimony and sworn statements on two different occasions: in an affidavit executed on July 12, 1976 (Ex. 4), and in an
affidavit before a Service official (Ex. 8) executed on January 22, 1975.
The respondent came to Hungary as a refugee from Yugosla -via in
1950. From 1950 until 1952 he attended a trade school while working in a
refugee camp. In 1953 he obtained employment in a dynamo factory
'with the help of another Greek refugee. He stated that this pprsnil and

three other Greek refugees exerted continuous pressure on him to join
the Communist Party so that he would be able to move into better jobs
with increased job benefits. His employer also joined in these efforts. In
late 1956, at the age of 24, the respondent joined the Communist Party.
He testified that his job would have been taken away from him if he had
not joined (Tr. p. 16). According to the respondent, at that time he and
his family i lived in a small room and had "absolutely nothing" (Tr. p.
15).
A few months after joining the Communist Party, the respondent was
transferred to a newer factory with better working conditions and
increased pay. From 1972 until 1974, when he left to come to the United
states, the respondent worked at a refrigerator repair factory at twice
the salary he had received at his former job.
The respondent testified that his participation as a member consisted
of attending compulsory meetings two or three times a year and paying
dues, also compulsory, which were deducted from his salary (Tr. P. 16).
When he applied for a nonimmigrant visa, he disclosed the feet ®f his
Communist Party membership and was granted a temporary waiver of
inadmissibility. At the hearing the respondent introduced the original
and translation of a letter from his brother-in-law in Hungary informing
the respondent that he had been told by his boss in October of 1974 that
The respondent was married in 1952, divorced in 1966, and remarried in 1969. His
(children were born in 1954, 1957, and 1961.

498

Interim Decision #2646

had been expelled from the Communist Party. The
writer stated that a Communist Party official had confirmed this action
(Ex. 5).
Under section 212(a)(28)(I) of the Act, 8 U.S.C. 1182(a)(28)(I), membership in, or affiliation with, a Communist or other subversive organization will not be a bar to admissibility if "(i) such membership or affiliation is or was involuntary, or is or was solely when under sixteen years
of age, by operation of law, or for purposes of obtaining employment,
food rations, or other essentials of living and where necessary for such
purposes . . . ."
The immigration judge concluded that the respondent already had the
"necessities of life" when he joined the Communist Party and that the
prospect of gaining a better job and higher wages did not make his
membership involuntary, within the meaning of section 212(a)(28)(I)(i)
of the Act, 8 U.S.C. 1182(a)(28)(I)(i). Although he recognized that
Communist Party members in a Communist-controlled country enjoy
"greater privileges" than nonmembers, the immigration judge noted
that the respondent's reason for joining "might be applied in the case of
every alien who joins the Communist Party."
The respondent maintains' that his sole motivation for joining the
Communist Party was economic compulsion and that his membership
was devoid of any political implication. He asserts that his Communist
Party membership should not preclude -him from being granted adjustment of status.
Our review of the record convinces us that further exploration of this
issue is warranted. Although the respondent did testify that he was
encouraged to join the Party to improve his job opportunities and
working conditions, he also stated that he would have lost his job if he
had not joined (Tr. p. 15). This claim was also made during his interview
by a Service official on January 22, 1975 (Ex. 8).
By qualifying the type of Communist Party membership that will
preclude an alien from being admitted to the United States, Congress
the respondent

indicated that an alien's motivation for joining the Communist Party is a

critical factor. Communist Party membership may not be a bar to
admission if it was necessary in order to obtain employment, food, or
other "essentials of living." This latter phrase has been construed to
excuse membership when it was required in order to retain a present
position (as an officer in the Yugoslavian Army), Matter of Mazar, 10 I.
& N. Dec. 79 (BIA 1962), or to enable an alien to move -from a
starvation-level salary to a subsistence-level salary. See Matter of V—,
8 I. & N. Dee. 554 (BIA 1960). Cf. Berdo v. INS, 432 F.2d 824, 832 (6
Cir. 1970). And where Communist Party membership entitled an alien
to a tuition free high school education (which he could not otherwise
have afforded), it was also found to be within the proviso to section
499

Interim Decision #2646
212(a)(28) of the Act, 8 U.S.C. 1182(a)(28). See Matter of Pust, 11 I. &
N. Dec. 228 (BIA. 1965). Thus, in a Communist country or one that is
dominated by the Communist Party, an alien who joins the Communist
Party to obtain employment, retain employment, or even advance in
employment commensurate with his background may be within the
exception to the bar.
The assumption by the immigration judge that the respondent already had the necessities of life because he had a job before he became a
Communist Party- member is untenable, in our opinion. Since the immigration judge did_ not make a finding of credibility with regard to the
respondent's testimony concerning his Communist Party membership, 2
itsnoclearwhyfdtknoehrspdt'claimhe
would have lost his job if he had not become a Communist Party
member.
At the same time, we do not believe that the respondent has presented sufficient evidence to justify his claim that he joined the Communist Party in order to obtain the necessities of life. In the memorandum of law furnished by the respondent there is a reference to the type
of housing situation in which the respondent and his family lived prior to
hie joining the Communist Party. This type of detailed evidence was not

presented at the hearing, however. Moreover, in previous cases involving the same issue, considerable background material has been supplied
concerning the role of the Communist Party in a particular country and
the hardships experienced by non-Party members. See, e.g., Berdo v.
INS, supra; Matter of Janus and Jana, 12 I. & N. Dec. 866 (BIA 1968);
Matter of Mazar, supra.

As a final matter, we must express our disagreement with the respondent's argument that the appeal should be sustained because the
Government has failed to establish that his Communist Party membership met the "meaningful association" test applied by the Supreme
Court of the United States in Galvan v. Press, 347 U.S. 522 (1954) and
subsequent cases, Rowo/dt v. Perfetto, 355 U.S. 115 (1957) and
Gastelum-Quinones v. Kennedy, 374 U.S. 496 (1963).
In Galvan v. Press, supra, the issue was whether an alien could be
deported due to "membership" in the Communist Party of the United
States. The Court recognized that an alien's participation in the Communist Party might be so nominal that it would be unfair to attribute the
consequences of "membership" to him.
2 The immigration judge did suggest that he disbelieved the respondent's claim that he
decided to remain in this country only after he had been here for several weeks. The
existence of a "preconceived intent to remain" is an adverse factor in determining whether
adjustment of status is warranted. However, the immigration judge's decision to deny
adjustment in this case appears to be based solely on his finding that the respondent is
inadmissible for permanent residence.

500

Interim Decision #2646
The "meaningful association" test originated in the context of deportation proceedings where the Government has the burden of proof. In an
application for adjustment of status, the burden is squarely upon the
respondent to show that he is not inadmissible under section 232(a)(28)
of the Act, and, further, that he merits a favorable exercise of discretion.' As an admitted member of the Communist Party, the respondent
must establish that his membership was involuntary or to obtain the
"essentials of living."
Of course, the degree and extent of an alien's participation in Communist Party activities are relevant to determining whether or not his
membership falls within the proviso to section 212(a)(28)(I)(i). Evidence
of nominal or quiescent participation would strengthen an alien's claim
that economic compulsion rather than ideological sympathy caused him
to join the Communist Party. See, e.g., Matter of Pust, supra. However, the issue in this case is not whether the respondent's membership
was nominal or meaningful but whether it was for the purpose of
obtaining the necessities of life. See Grzymala-Siedlecki v. United
States, 285 P.2d 836, 840 (5 Cir. 1961).
Based on the foregoing, the case will be remanded for further proceedings and the entry of a new decision.
ORDER: The record is remanded.
Board Member Louis P. Maniatis abstained from consideration of this
case.

3 In Berdo v. INS, supra, at 848, the court expressed the view urged by the respondent
that in an adjustment of status case, the Government must show that an alien's membership in the Communist Party was "meaningful" if it is to render him inadmissible under
section 212(a)(28). No other court has followed this line of reasoning and we suecificailV
decline to do so here.

501


Interim Decision # 1284

MAJ.

Lit

or

LONG

In DEPORTATION Proceedings
A-12653531
Decidedby Board May18,1963
Respondent, who is otherwise qualified, is not precluded from establishing eligibility for suspension of deportation wider section 244(a) (1), Immigration
and Nationality Act, as amended, by reason of his absence from the United
States from May 1960 to August 1960, since under the provisions of section
244(b) of the Act, as amended, the requirement of continuous physical presence
is inapplicable to him, having served honorably in an active-duty status in
the Armed Forces of the United States from March 1956 to March 1959
following enlistment in California.
CHARGE:
Order : Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2) ]—Entered without Inspection.

The case comes forward pursuant to certification by the special
inquiry officer of his order dated March 29, 1963, ordering that the
deportation of the respondent be suspended under the provisions of
section 244(a) (1) of the Immigration and Nationality Act, as
amended.

Discussion As To Deportability: The respondent is a native and
citizen of China, 31 years old, male, married, who first entered the
United States at the port of San Francisco on April 28, 1951, on a false
claim of United States citizenship. He last entered the United States
at Anchorage, Alaska on August 21, 1960, after a brief absence to
China from May 1960 and was again admitted upon his false claim
of citizenship. At the time of his last entry he was not inspected as
an. alien. The respondent is subject to deportation on the charge
stated in the order to show cause.
Discussion As To Eligibility For Suspension of Deportation:
The respondent knew at the time he first came to the United States
that the person from whom he was claiming United States citizenship
was not in fact his father. The arrangements for him to come to the
United States were made by his parents. Although the respondent
274

Interim Decision #1284
was 19 when he first entered the United States he attended high school
in Sacramento, California and was graduated. He has been employed in various capacities in restaurants in Sacramento, California
and is presently employed as a bus boy at $272 per month plus tips.
Assets are valued at $20,000, including $10,000 in cash and the remainder in common stock and other personal property. He enlisted
at Sacramento, California and from March 29, 1956 to March 25, 1959
he was in active service in the Army of the United States and served
overseas two years and four months. He was transfered to the Reserve on March 25, 1959, and was honorably discharged on February 15, 1963. During the respondent's period of active service in the
Army, he was injured and the Veterans Administration has certified
that he has suffered a thirty per cent degree of disability as a result of
a service connected residuals of cerebral concussion and has awarded
him payments of $44 per month commencing March 26, 1959.
From May 1960 to August 1960 the respondent visited Hong Kong
where he was married on June 23, 1960, to a native and citizen of China,
now 27 years old, who still resides there. They have no children. The
respondent's mother, one sister and a brother reside in Macao. One
of his brothers is on the Chinese mainland; another brother, now a
lawful permanent resident, resides in California. The quota for
Chinese persons, to which the respondent is chargeable, is heavily
oversubscribed and the respondent cannot otherwise adjust his immigration status.

The respondent, has resided in the United States since April 28,
1951. He has been regularly employed in the United States since his
arrival. The respondent served honorably and actively for three years
from March 1956 to March 1959, two years and four months of which
were overseas, and thereafter served in the Army Reserve until February 15, 1963. His deportation could only be effected to Formosa or
Macao. The respondent's adult years have been spent in the United
States. In view of the respondent's residence in the United States
since 1951, his honorable Army service, his service-incurred disability.
and the fact that his earning ability has been impaired by his injury,
it is concluded that he would suffer extreme hardship if deported.
A character investigation conducted by the Service and reports of
the Federal Bureau of Investigation and of the local police department during the past seven years reveal no information adverse to the
respondent. No connection with subversive groups has been shown.
Affidavits of witnesses attesting to his good moral character have been
introduced into evidence. The respondent has established that during
the seven year immediately preceding the date of his application for
275

Interim 'Decision #1281
suspension of deportation he was and is a person of good moral
character.
Section 244 (a ) (1) as amended requires that the respondent have
been previously present in the United States for a continuous period
of not less than seven years immediately preceding the date of his application. The respondent was absent to Hong Kong from May to
August 1960.
Section 2/11(b) of the Immigration and Nationality Act, as amended
by section 4 of the Act of October 24, 1962 (P.L. 87-885) provides
that the requirement of continuous physical presence in the United
States specified in paragraph (1) and (2) of subsections (a) shall
not be applicable to an alien who (A) has served for a minimum period
of 24 months in an active-duty status in the Armed Forces of the
United States and, if separated from such service, was separated under
honorable conditions and (B) at the time of his enlistment or induction was in the United States. The respondent has produced proof
that he was honorably discharged after more than 24 months of active
duty service in. the Armed Forces of the United States and that at the
time of his entry into the Armed Forces he was present in the United
States. The inclusion in the benefits of the legislation for aliens who
served honorably for a stated period of time in the Armed Forces of
the United States represents the incorporation into a permanent statute
of a policy braditionally adhered to by the Congress in the enactment

of private relief bills for the alien servicemen and ex-servicemen. 1
Theamndtprovislefanwhorvd blyinte
Armed Forces of the United States. 2 The statutory language is not
limited in its application and would appear to eliminate the requirement of continuous physical presence in the United States as to honorable discharged servicemen who served two years and were inducted
or enlisted while in the United States. The respondent falls within
the scope of section 244(b) and the requirement of continuous physical
presence of section 244(a) (1) is not applicable to him. The respondent is eligible for suspension of deportation under section 244(a) (1)
of the Act, as amended. The order of the special inquiry officer dated
March 20, 1963, will be affirmed.
ORDER! It is ordered that the order of the special inquiry officer
dated March 29, 1963, granting the application for suspension of
deportation be and the same is hereby affirmed.
2
2

29 Cong. Rec. 22153 (daily ed. October 12, 1962).
2 U.S. Code Congressional and Adm. News 4029.

276


Interim Decision #2661

MATTER OF SPELIOPOULOS

In Bond Proceedings
A-21137443

Decided by Board July 20, 1978
(1) The jurisdiction conferred upon an immigration judge under 8 C.F.R. 242.2(b) to
redetermine the custody status of a detained alien includes the authority to increase the
amount of bond initially set by the District Director.
(2) An alien should not be detained or required to post bond unless there is a finding that
he is a threat to national security or a poor bail risk.
(3) Where respondent, an airlines employee, resided in this country a relatively brief
period of time (one year), exhibited a disregard for our laws by beginning to work
shortly after he was admitted as a nonimmigrant visitor for pleasure, has a wife and
child who are here illegally, and does not have the family ties that would entitle him to
reside here permanently at some future date, a bond was appropriate.
(4) Reduction in :Amount of bond found warranted by Board, where there was a lack of any
prior immigration or criminal record or history of nonappearance at court proceedings
and respondent has a fixed place of residence.
ON BEHALF OF RESPONDENT: Ira J. Kurzban, Esquire
Kurzban & Kurzban, P.A.
444 Brickell Avenue, Suite 1101
Miami, Florida 33131
SY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members

The respondent has appealed from a June 16, 1978, decision of an
immigration judge increasing the amount of bond set by the District
Director from $1,000 to $2,500. The appeal will be dismissed in part and
sustained in part.
In a supplemental memorandum filed in support of the appeal, the
respondent raises a threshold legal issue concerning whether an immigration judge (special inquiry officer) 1 has the authority to increase the
amount of bond set by the District Director in the first instance.
Under 8 C.F.R. 242.2(b), a respondent who is in custody pursuant to
an order of the District Director or one acting on his behalf may, at any
time before a deportation order becomes administratively final, apply to
an immigration judge for a redetermination of his custody status. See 8
C.F.R. 242.2(b). This regulation provides inter alia that:
I Under 8 C.F.R_

1.1(1), the terms 'immigration judge" and "special inquiry officer" are

synonymous.

561

Interim Decision #2661
[A] special inquiry officer may exercise the authority contained in section 242 of the Act
to continue or detain a respondent in, or release him from custody, and to determine
whether a respondent shall be released under bond, and the amount thereof, if

In our opinion, nothing in 8 C.F.R. 242.2(b) precludes an immigration
judge from increasing the amount of bond initially set by the District
Director where deemed appropriate under the circumstances. To hold

otherwise would prevent a full and independent assessment of the
necessity for detention and the amount of bond, if any, to insure the
presence of the respondent at the deportation hearing. For example,

situations may arise where new facts come to light at the bond redetermination hearing that warrant an increase in the amount of bond.
Similarly, the immigration judge, as the reviewing authority, may disagree with the District Director with regard to the importance of
existing factors. Consequently, we reject the contention advanced by
the respondent that the immigration judge lacked the authority to
increase the amount of bond initially set by the District Director. 2

The only other issue 3 to be resolved on appeal is whether bond in the
amount of $2,500 is appropriate in this particular case. The following
facts appear in the record! the respondent, a native and citizen of

Argentina, was admitted to the United States approximately one year
ago as a nonimmigrant visitor for pleasure; he is employed by Aviateca
Airlines in Miami, Florida, having commenced that employment shortly
after being admitted as a nonimmigrant visitor; and he has a wife and
child in this country with whom he is residing. According to the immigration judge, the respondent's wife and child are in the United States
in violation of' our immigration laws. There is no evidence that the
respondent has a criminal record, a history of immigration violations, or
a record of nonappearance at court proceedings.
2 The only reported decision in which an immigration judge reversed a custody determination by the District Director, to the alien's detriment, is Matter of San Martin, Interim

Decision 2340 (BIA 1974). Bond had been set initially at $15,000; the immigration judge
ordered that the respondent be held without bond. On appeal to the Board, we held that
bond in the amount of $15,000 was sufficient. Although we reversed the determination of
the immigration judge in this regard, our decision was based solely on the facts dale case.
There was no finding that his more restrictive determination was improper.
'The respondent also contends that the order of the immigration judge must be
owesrturned because it was not accompanied by a memorandum setting forth the reasons
LOX the bond redetermination as required by 8 C.F.R. 242.2(b). A memorandum signed by
the immigration judge is of record. However, we note that it is dated June 19, 197S, three
days after issuance of the Form 1-342, ordering that bond be set at $2,500. It is not
of parent that the respondent received a copy of the memorandum. In view - of the
mraportance of expeditious resolution of custody matters, it appears to us that the
memorandum should be issued contemporaneously with the Form 1-342. However, we do
ntz•t find that the respondent was prejudiced by the failure to do so in this case since the
issues discussed by the immigration judge have been treated in the memorandum submit.
tad by the respondent with the appeal.

562

interim Dee161011
An alien should not be detained or required to post bond pending a
determination of deportability unless there is a finding that he is a
threat to national security or a poor bail risk. See generally Matter of
Patel, Interim Decision 2491 (BIA 1976). In determining the necessity
for, and the amount of, bond, such factors as a stable employment
history, length of residence in the community, the existence of family
ties, a record of nonappearance at court proceedings, and previous
criminal or immigration law violations are properly considered. See
Matter of Patel, supra; Matter of San Martin, Interim Decision 2340
(BIA 1974); Matter of Moise, 12 I. & N. Dec. 102 (BIA 1967); Matter of

S—Y--L—, 9 I. & N. Dec. 575 (BIA 1962).
Our review of the record leads us to conclude that bond is necessary in
this case and that the respondent should not be released on his own
recognizance. He has been in this country a relatively brief period of
time and has exhibited a disregard for our laws by beginning to work
shortly after his arrival. His wife and child are neither United States
citizens nor lawful permanent residents. These are not the family ties
that entitle the respondent to reside here permanently at some future
date. Compare Matter of Patel, supra.
At the same time, we find that the amount of bond set by the
immigration judge is excessive under the circumstances of this particular case. The respondent has no prior immigration or criminal record or
history of nonappearance at court proceedings and he does appear to
have a fixed place of residence, however brief. We are of the opinion
that a $1,500 bond is sufficient to insure the respondent's presence at the
deportation hearing.
The following orders shall therefore be entered.
ORDER: The appeal from the immigration judge's determination
setting bond at $2,500 is sustained.
FURTHER ORDER: The motion to release the respondent on his
own recognizance is denied_
FURTHER ORDER: The respondent shall be released from custody
under the posting of a bond in the amount of $1,500.

563


Interim Decision #1616

Kamm

OF WONG

In Deportation Proceedings
A-13679199
Decided by Board JvJy 11, 1966
Where in deportation proceedings the special inquiry officer failed to determine
whether the entry as a United States citizen of respondent, a section 245 applicant, was made in good faith, the case will be•remanded therefor since an
alien who gained admission on the basis of a knowing and willful false claim
• • to U.S. citizenship has not been "Inspected" under the immigration laws but
an alien who gained admission upon a citizenship claim, honestly believing
herself to be a citizen at the time of entry, has been "inspected" within the
meaning of the immigration laws.
Onanaz:
Order: Act of 1952--Seetion 241(a) (1) [8 U.S.O. 1251(a) (1)]—Excludable
at entry under 8 U.S.C. 213(a) [1948 . Eda—No Jmmigration visa.

This case is before us on appeal from a decision of a special inquiry officer denying the application under. section 245 of the Immigration and Nationality Act and directing the respondent's deportation.
The respondent is a 28-year-old unmarried female, native and
citizen of China, whose only entry into the United States occurred
on January 8, 1952 at which time she secured admission as a United
States citizen. Deportability on the charge stated above has been
conceded. The special inquiry officer found that the respondent was
statutorily ineligible under section 245. For the reasons hereinafter
stated, we will remand the case to the special inquiry officer for
further action.
In Matter of 5—, 9 L & N. Dec. 599 (1962), we held that an alien
who had gained admission to the United States by making a willful
false claim to 'United States citizenship has not been "inspected"
712

Interim Decision #1616
as an alien and is not eligible under section 245. An applicant was
held eligible under section 245 in Matter of F 9 I. & Dec. 54,
a Regional Commissioner's decision approved by the Assistant Com-'
miesioner on October 7, 1960, where the alien presented herself to
an immigrant inspector and stated that she was a United States
citizen, honestly believing this to be the truth. It was concluded
that she had not entered without inspection and reliance was placed.
on prior unreported decisions of the Board in 1946 and 1949. It
seems apparent, therefore, that this has .been the rule since at least
—

194e.

The special inquiry officer discussed our unreported decision in
file A-10764710 (1964), in which we
approved an application under section 215 where the alien secured
entry as a United States citizen but did not willfully or knowingly
y" officer
make the false .claim of citizenship. The special inquiry'
stated that he need not follow that decision shire it had not been
designated. as a precedent and that he would not do so because he
VMS of the opinion that that case had been incorrectly decided. In
Matter of Ant Tick Woo, we relied on Matter of F , supra, and our
two unreported decisions of 1946 and. 1949. We have carefully considered the special inquiry officer's statements as to why he believed
that Matter of Jun Tick Woo had been incorrectly decided but we
are not persuaded by the reasons given by him. As we have indicated
above, it has been the position of the. Board since 1916 that an alien
who honestly believed himself to be a citizen and appeared before en
immigrant inspector can properly be considered. to have been inspected within the meaning of the immigration laws. If he knowingly and willfully falsely claimed_ United _States' citizenship, he
was not inspected. We can perceive no valid rebson for now abandoning this position. Accordingly, we rule that this respondent must
be considered to have been "inspected" within the meaning of section
245 provided that she honestly believed herself to be a United States
citizen and did not knowingly or willfully make a false claim to
citizenship at the time of entry. Since the special inquiry officer
expressly avoided any determination of that matter, we will remand
the case to him for consideration of the question of whether the •
respondent entered in good faith and as to whether She is otherwise
Matter of Jun Tick Woo,

—

eligible for adjustment of status. Our order willauthorize reopening of the hearing if the special inquiry officer considers such action

necessary. In that case, the Service and the respondent may offer
any additional pertinent evidence.
713

Interim Decision 44616
ORDER: It is ordered that the case be remanded to the special
inquiry officer for further proceedings in accordance with the Lore•
going including authorization to consider the hearing reopened if
le deems that action necessary.
It is further ordered that, following further decision of the special

inquiry officer, the case be certified to the Board in accordance with
8 CPR 8.1(c).

714


Interim Decision #z(:41

MATTER OF kEYES
In

Visa Petition Proceedings
A-22172079

Decided by Board March 20, 1978
(1) In order to qualify as a `:son" for preference purposes, a beneficiary must once have
qualified as the child of the petitioner under section 101(b)(1) of the Immigration and
Nationality Act, 8 U.S.C. 1101(b)(1).
(2) Under the law of the Dominican Republic, legitimatiOn of a child born out of wedlock is
effected by the acknowledgment of the natural offspring followed by the subsequent
marriage of the parents.
(2) An act of acknowledgment of paternity in the Dominican Republic without the marriage of the natural parents does not establish coextensive inheritance rights with
children who were horn hi wedlock or children who were legitimated by the marriage of
their natural parents; and, hence, an acknowledged child in the Dominican Republic
cannot be equated with a legitimate or legitimated child for immigration purposes.
(4) Under the law of New York, petitioner's state of record, the natural parents must
marry in order to legitimate a child.

(5) Where the petitioner has not presented evidence to show that the beneficiary was
legitimated under the law of the child's residence or domicile, or under the law of his
residence or domicile as required by section 101(b)(1)(C) of the Act, 8 U.S.C.
1101(a)(1)(C), the petition must be denied.
ON BEHALF OF SERVICE:
George Indelicato
Appellate Trial Attorney

ON BEHALF OF PETITIONER:
Antonio C. Martinez, Esquire
:324 W. 14th Street
New York, New York 10014

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

The lawful permanent resident petitioner applied for preference classification far the beneficiary as his unmarried son under section 203(a)(2)
of the Immigration and Nationality Act. In decision dated August 16,
1977, the District Director denied the petition. The petitioner has appealed. The appeal will be dismissed.
The petitioner is a native and citizen of the Dominican Republic. He
was admitted as a lawful permanent resident on September 14, 1973. He
resides in Corona, New York. The beneficiary is a single male alien who
is a native, citizen, and resident of the Dominican Republic. He was born
on February. 7, 1962.
475

Interim Decision #2641
The District Director predicated his denial of the visa petition upon a
finding that the beneficiary was illegitimate at birth, and that it was not
shown that he was legitimated by the marriage of his natural parents or
otherwise legitimated. '
The record fails to show that the petitioner at any time married the
beneficiary's mother. In support of the visa petition, the petitioner
submitted a copy of a document which purports to be a certificate of
birth declaration issued by the Office of the Civil Registry of the
Dominican Republic on October 21, 1976. That document which is written in the Spanish language and which is accompanied by an English
language translation furnished by the petitioner reveals that Virgilio
Reyes-Liriano acknowledged to the official of the Dominican Office of
the Civil Registry that Joselito Reyes is his son; that he was born on
February 7, 1962; and that his son's mother's name is Mercedes Garcia.
The official stated in the document that the certificate of birth declaration was being issued in reliance on a baptismal certificate issued on
September 20, 1971, after unsuccessful searches for secular official records.
In visa petition proceedings, the burden of establishing the claimed
relationship is upon the petitioner. Matter of Branttgan, 11 1. & N. Dee.
493 (BIA 1966). In order to qualify as a "son" for preference purposes,
the beneficiary must once have qualified as the child of the petitioner
under section 101(b)(1) of the Act. Naoarerzo v. Attorney General, 512

F.2d 936 (D.C. Cir. 1975), cert. denied, 432 U.S. 832 (1975); Matter of
Tames, Interim Decision 2461 (BIA 1975); Matter of Coker, 14 I. & N.
Dec. 521 (BIA 1974). The only subdivisions of section 101(b)(1) which
may possibly be relevant to this case are (A) and (C), which provide:
The term "child" means an unmarried person under twenty-one years of age who is—
(A) a legitimate child; or
-••
(C) a child legitimated under the law of the child's residence or domicile, or under the
law of the father's residence or domicile, whether in or outside the United States, if
such legitimation takes place before the child reaches the age of eighteen years and
the child is in the legal custody of the legitimating parent or parents at the time of
such legitimation

The term "legitimate" as used in section 101(b)(1)(A) refers solely to
a child born in wedlock. See Matter of James, supra; Matter of Dela
nosa, 14 I. & N. Dec. 728 (BIA 1974); Matter of Kubicka, 14 I. & N.
'Dee. 303 (BIA 1972).
On appeal, counsel for the petitioner argues that under the present
law of the Dominican Republic the acknowledgment of paternity by a
parent of a child who was born out of wedlock legitimates that child
riotwithstancling the fact that the natural parents of that child have
never legally married. In support of this argument, counsel has fur476

Interim Decision #2641
nished us with legal memoranda dated May 31 and November 15, 1977,
and prepared counsel by Dr. Rafael Robles Inocencio,' an attorney at
law in the Dominican Republic.
A copy of a portion of the text of the Civil Code of the Dominican
Republic is appended to the most recent legal memorandum of Dr.
Robles. Counsel also submitted in support of his contentions, an
affidavit of a Dr. Plinion Terrero Pena, an attorney at law in the
Dominican Republic, dated August 31, 1977. That affidavit and the
aforementioned legal memoranda are accompanied by English language
translations provided by counsel. These documents will be made a part
of the record.
In light of the representations made on appeal concerning legitimation, we have examined the law of the Dominican Republic in order to
ascertain the current legal status of children in that country and to
determine how those laws may affect the visa petition under consideration in this case. Previously we held that the law governing legitimation
in the Dominican Republic is found in the Civil Code of the Dominican
Republic, 1958, Article III, Section 1, entitled "Legitimation of Natural
Children." That statute provides that there must be acknowledgment of
the natural offspring followed by the subsequent mataiage of the parents to effect legitimation. See Matter of Doble Pena, 13 I. & N. Dec.
366 (BIA 1969).
Counsel submits that a child who was horn out of wedlock in the
Dominican Republic and who was acknowledged by one of his natural
parents achieves the same legal status as a child who was born in
wedlock or a child who was born out of wedlock and whose natural
parents acknowledged it and also entered into marriage. He argues, in
effect, that since the petitioner has acknowledged the beneficiary as his
son under the Dominican law, the beneficiary qualifies as a legitimated
-

son for immigration purposes.
In support of his appellate contentions,

counsel refers to a statute
enacted in the Dominican Republic which is identified as Law 985 of
August 31, 1945. That statute provides that "natural filiation established pursuant to the provisions of the law produces the same effects of
legitimate filiation with the exception of the distinctions made in matters concerning successions." As counsel has indicated on appeal, Law
3 We note that Dr. Rafael Robles Inoceneio was present with counsel for the petitioner
at oral argument before this Board on October 25, 1977. At that tiane, counsel argued on
behalf of four petitioners, including the petitioner in this case, on the issue of legitimation
in the Dominican Republic. Dr. Robles did not represent any of the petitioners whose
cases were heard on October 25, 1977. A request was made at oral argument by counsel to
permit Dr. Robles to testify on the law of legitimation in the Dominican Republic. That

imqueet, was denied by tide Board on the ground that testimony is not taken at oral

argument.

477

interim incision moil
985 repeals all provisions of the Civil Code of the Dominican Republic
and the provisions of other laws of that country that are in conflict with
it. We note that the term "natural filiation" as applied in Law 985 means
a child born out of wedlock who is voluntarily acknowledged pursuant to
statute by one or more of its parents. The term "legitimate filiation" as
used in this statute includes children who were born in wedlock and
children who were born out of wedlock and whose parents acknowledged them and entered into marriage.

In determining whether an acknowledged child in the Dominican
Republic is equated to a "legitimated" child as that term is applied in the
immigration laws of the United States, it is essential that we analyze the
Dominican statute in order to ascertain the filial rights of the acknowledged child. Under Law 985 the succession rights of the acknowledged
child differ from that of the child born in, wedlock or the child legitimated
by marriage. For example, in inheritance matters in the Dominican
Republic, an acknowledged child would receive a significantly smaller
share of his father's estate than a legitimate child or a child legitimated
by marriage. We conclude that a child or a child who is acknowledged by
his father in the Dominican Republic does not have all of the filial rights
of a fully legitimated child.
A similar conclusion was reached by the United States Court of
Appeals for the First Circuit in PeigncEnd v. INS, 440 F.2d 757 (1 Cir.
1971). In that case which involved deportation proceedings, the court
held that a child who was born out of wedlock in the Dominican Republic
to alien parents and who was subsequently acknowledged by his mother
did not automatically derive United States citizenship from the naturalization of his mother where he had never been legitimated under
Dominican law although he might have possessed most, but not all, filial
rights of a legitimated child. In so holding, the court interpreted the
provisions of Law 985 and concluded, in effect, that acknowledgment
under that statute was not unqualifiedly equated to "legitimate filiation."
In the notice of appeal, counsel submits that the District Director failed
to follow the ruling of the United States District Court of Puerto Rico in
Petition for Naturalization of Fraga, 429 F. Supp. 549 (D.P.R. 1974). In
that case, the court held that an illegitimate child of a naturalized
United States citizen qualified for naturalization as a "child" under
Section 101(c)(1) of the Immigration and Nationality Aet because, al-

though he was born out of wedlock and not legitimated by the marriage
of his natural parents, he had been acicnowledged by his father as his
riatural son in his birth certificate. The facts of that case related to a
petitioner, a native of Cuba and a naturalized citizen of the United
States, who filed a naturalization petition in the United States District
Court in San Juan, Puerto Rico, on behalf of the beneficiary, his minor

478

Interim Decision n41
son who was a native of Venezuela and a lawful permanent resident
alien of the United States. In arriving at its decision, the court concluded that the acknowledgment of paternity by the petitioner was in
conformity with the laws of the Commonwealth of Puerto Rico and that
under the laws of that jurisdiction, the acknowledged child has the
status of a legitimate child for every legal purpose. We point out to
counsel that the Fraga decision is distinguishable from the instant ease
and from the decision in Peignand v. INS, supra., because unlike the
acknowledged child under the laws of the Commonwealth of Puerto
Rico, the acknowledged child under Dominican law does not have all of
the filial rights of a fully legitimated child. We note that the court in the
Fraga decision cited the decision Peignand v. INS, supra, and distinguished that case from the case before it.
Our analysis of the laws of the Dominican Republic leads us to the
conclusion that an act of acknowledgment of paternity in that country
does not establish coextensive rights with children who were born in
wedlock or children who were legitimated by the marriage of their
natural parents. Hence, an acknowledged child in the Dominican Republic cannot, be equated with a legitimated child for immigration purposes.
We find that the beneficiary was not born in wedlock. Therefore, we

conclude that he cannot qualify as the petitioner's legitimate child under
section 101(b)(1)(A) of the Act. Also, we find that the petitioner has not
presented evidence in support of his visa petition to establish that the
beneficiary, a resident and domiciliary of the Dominican Republic, was
legitimated by the marriage of his natural parents as contemplated by
the law of legitimation of that country. Further, the petitioner has failed
to show that the beneficiary was legitimated under the law of New
York, the petitioner's residence or domicile. Under the law of New
York, the petitioner's state of residence, the natural parents must
marry in order to legitimate the child. 2 See Matter of Archer, 10 I. & N.
Dec. 92 (BIA 1982).
We conclude that the petitioner has not established that the beneficiary was legitimated within the meaning of section 101(b)(1)(C) of the
Act. Therefore, we further conclude that on the basis of the record, he
has failed to sustain his burden of proving that the beneficiary qualities
as his son under section 203(a)(2) of the Act. Accordingly, the appeal will
be dismissed.
ORDER: The appeal is dismissed.

2

Section 24, Domestic Relations Law, McKinney's Consolidated Laws of New York.

479