Interim DecisiOn #2408

MA.TTER OF VERGARA

In Deportation Proceedings
A-20527143
Decided by Board July 15, 1975
The immigration judge's refusal to issue a subpoena requiring respondent's father to
testify in conjunction with a claim to United States citizenship which she began to
explore during the course of deportation proceedings, did not result in a denial of due
process since the whereabouts of the father was unknown and there was considerable
uncertainty as to obtaining his testimony at all, and the issuance of the subpiena would
require a further substantial delay in the proceedings which was unjustified in view of
respondent's failure to obtain necessary evidence during an earlier adjournment of
three and one-half months. Further, there has been no showinz that the testimony of
the respondent's father was "essential" within the meaning of 8 CFR 287.4(a)(2),
because respondent had failed in other respects to present a substantial claim to
derivative citizenship.
CHARGE:
Order: Act of 1952—Section 241(a)(1) (8 U.S.C. 1251(a)(1)]—Excludable at entry
under section 212(a)(20)—immigrant without visa.
ON BEHALF 01' RESPONDENT:

Williard Hastings, Jr., Esquire
90t Garden Street
Santa Barbara, California 93101

In a decision dated December 3, 1973, the immigration judge found
the respondent deportable, but granted her the privilege of voluntary
departure. The respondent has appealed from that decision. The appeal
will be dismissed.

The respondent is a native of Mexico who entered the United States
in May of 1973. The Service has alleged that she is deportable under
section 241(a)(1) of the Immigration and Nationality Act as an alien who
was excludable at entry under section 212(a)(20). The respondent contests deportability.
The respondent contends that she was denied due process at her
hearing because the immigration judge refused to issue a subpoena
requiring the respondent's father to testify. The respondent sought the
testimony of her father in conjunction with a claim to United States
citizenship which she evidently began to explore during the course of
388

Interim Decision #2408
these proceedings. Ourrevie* of the record, however, convinces us that
the-immigration judge properly 'refused to issue the subpoena.
The hearing in the respondent's casd was commenced on August 13,
1973. The respondent was then represented by a person described in the
transcript as a' "friend': (Tr. p. 1). At that hearing, the respondent
admitted that she was riot a citizen or national of the United States, and
that she was a -native and citizen of Mexico (Tr. pp. 1-2).
However, during the Servibe's'cross-examination of the respondent
on her application for voluntary departure, the respondent indicated'
that her father had been born in .the United States (Tr. p. 6). The
immigration judge then began questioning the respondent with regard
to the possibility that the responden•might have derived United States
citizenship through her father. 'According to the respondent, her father
had lived in the United States as a child, and had returned to the United
States for at least two years prior to the respondent's birth in 1955 (Tr.
pp. 7-8; 8-9).
Any possible claim to derivative citizenship which the respondent
may have would appear to be based on section 301(a)(7) of the Act. One
of the requirements of section 301(a)(7) is that the parent, through
whom citizenship is derived, have been physically present in the United
States for a total period of at least ten years prior to the birth of the
child, and that five of those years were after the parent reached the age
of fourteen. The respondent did not have precise information regarding
her father's periods of residence in the United States, and her own
testimony failed to set forth the essential elements of a claim to derivative citizenship. The immigration judge, however, granted an adjournment in order to permit the respondent the opportunity to gather
evidence in support of her claim. '
The hearing was resumed approximately three and one half months
later on December 3, 1973. At that time the respondent presented only a
birth certificate evidently relating to her father in support of her claim
to derivative citizenship. She did not produce any documentary evidence relating either' to her own birth or to her parents' marriage.
However, counsel, who apparently entered the case during the adjournment, requested that a subpoena be issued directing the respondent's father to testify.
It appears that the respbrident's father is a migrant worker who
makes a permanent hoMe in Mexico, but who works a substantial part of
the year at various locations in the United States. The respondent had
been unable to ascertain the whereaboutb of her father, but she suspected that he would be working certain fields in California within
approximately four months of the December 1973 hearing.
The immigration judge refused to issue the subpoena on the grounds
that it was not sufficiently shown that the respondent's father could be
389

Interim Decision #2408
located, and that the issuance of the subpoena would require a second
substantial delay in the proceedings which was not warranted in view of
the lack of documentation which had been obtained during the earlier
adjournment.
We agree with the immigration judge. The whereabouts of the witness was unknown, and the respondent had already failed to obtain
needed evidence after a delay of three and one half months. Cf. Matter
of Athanasopoulos, 13 I. & N. Dec. 827 (BIA 1971). A further substantial delay in the proceedings was not justified. There had been no
showing that the testimony of the respondent's father was "essential"
within the meaning of 8 CFR 287.4(a)(2) because the respondent had
failed in other respects to present a substantial claim to derivate citizenship. In addition, there was considerable uncertainty in obtaining the
father's testimony at all.
We also note that a substantial period of time has elapsed since the
immigration judge's decision. The respondent, however, has not presented anything further with respect to her claim to derivative citizenship. Even at this time, there is no greater assurance that a remand and
an issuance of a subpoena would accomplish the desired purpose of
securing the testimony of the respondent's father. There has been no
denial of due process in these proceedings.
The respondent conceded alienage during the course of the hearing.
Furthermore, having admitted birth in foreign country, she is presumed

to be an alien and bears the burden of going forward with the evidence
to establish her claim to United States citizenship. Matter of Ponco, 15.
I. & N. Dec. 120 (BIA 1974); Matter of Tijerina—Villarreal, 13 I. & N.
Dec. 327 (BlA 1969); Matter of A—M—, '7 I. & N. Dec. 332 (BIA 1956). The
respondent has not rebutted the presumption. She is an alien.
The respondent also contends that she is not deportable on the charge
specified in the order to show cause by virtue of section 241(f) of the
Immigration and Nationality Act. However, in Matter of Montemayor,
15 I. & N. Dec. 353 (BIA 1975), we held that the construction of section
241(f) adopbad by the Supreme Court in Reid v. INS, 420 U.S. 619, 95S.
Ct. 1164 (1975), precludes the application of section 241(f) to a section

212(a)(20). This is the precise charge against the respondent.
The respondent's claim that her deportation would deprive her citizen
child of constitutional rights is similarly without merit. Aalund v. Marshall, 461 F.2d 710 (C.A. 5, 1972); Perdido v. INS, 420 F.2d 1179 (C.A.
5, 1969); Mendez v. Major, 340 F.2d 128 (C.A. 8, 1965); Matter of
Anaya, 14 :. & N. Dec. 488 (BIA 1973); see Encisco—Cardozo v. INS,
504 F.2d 1252 (CA. 2, 1974); Faustino v. INS, 432 F.2d 429 (C.A. 2,
1970), cert. denied, 401 U.S. 921 (1971).
The respondent conceded the factual allegations contained in the

order to show cause. Deportability has been established by clear, con390

Interim Decision #2408
incing, and unequivocal evidence. The decision of the immigration
edge was correct.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the repondent is permitted to depart from the United States voluntarily
vithin 21 days from the date of this order or any extension beyond that
ime as may be granted by the district director; and in the event of
allure so to depart, the respondent shall be deported as provided in the
mmigration judge's order.

391


Interim Decision #2367

MATTER OF LEON
In Visa Petition Proceedings
A~19863172
Decided by Board March 28, 1975

‘Under the law of the State of Michoacan, marriage is a civil contract and as such, a civil
marriage is required to confer legitimacy on a child. Petitioner was born in 1942 and
petitioned to confer immediate relative classification on his father under section 201(b)
ofthe Immigration and Nationality Act. Petitioner's parents were married in a religious
ceremony in 1910, but were not married in a civil ceremony until 1968, Thus, since the
petitioner was nut legitimated until after his eighteenth birthday, he did not meet the
requirement sp2cified under section 101(b)(1)(O) of the Act and the immediate relative
petition filed on behalf of his father was properly denied. (Matter of Hernandez, Int.
Dee. No. 2267(4.G. 1974), distinguished, as the State of Tamaulipas permitted common
Jew masaiages).

ON BEHALF OF PETITIONER: Pro se

The United States citizen petitioner applied for immediate relative
status for the beneficiary as his parent under section 201(b) of the
Immigration and Nationality Act. In a decision dated July 12, 1971, the
district director denied the petition on the ground that the petitioner
was an illegitimate child who had not been legitimated by the ben-
eficiary, his fazher, in accordance with section 101(b)(1)(C) of the Immi-
gration and Mationality Act. The pctitioncr hao appcaled from that
decision. The uppeal will be dismissed.”

The petitiorer has submitted a birth certificate showing that he was
born in the State of Michoacan, Mexico on March 26, 1942. His mother
and the beneficiary did not go through a civil marriage ceremony until
March 8, 1966, By that time the petitioner was nearly 24 years of age
and could no longer meet the 18-year age requirement for legitimation in
accordance with section 101(b)(D(C) of the Act.

On appeal, the petitioner has submitted a copy of a “marriage certifi-
cate” which shows that the beneficiary and the petitioner’s mother
entered into a religious marriage in the State of Michoaedn, Mexico on
June 6, 1940. The petitioner stated that the reason his parents did not
enter into a civil marriage at that time was lack of money. He argues
that in 1940 a religious marriage was entitled to the same recognition as
a civil marriage in the State of Michoacdn. :

248
Interim Decision #2367

We have received a memorandum concerning the law of the State of
Michoaedn prepared by the Hispanic Law Division of the Library of
Congress in March 1975. The Civil Code of Michoaedn, in force since
1986, provides that only marriages performed before the appropriate
civil authorities in accordance with law shall be valid. Articles 32, 100,
and 185 of the Civil Code of Michoaedn. The law of Michoacdn thus
conforms to Article 180 of the Constitution of Mexico of 1¥1/, which
provides that marriage is a civil contract within the exclusive compe-
tence of the civil authorities.

‘The laws of Michoacdn alsu provide Ukal a presumption of legitimacy
applies to those children born after 180 days from the celebration of a
marriage, and also to those born within 300 days following the dissolu-
tion of a marriage. Article 282 of the Civil Code of Michoacdn. An
illegitimate child can be legitimated under the laws of Michoaedn only by
the marriage of the child’s parents combined with acknowledgment of
the child by them. Articles 312 and 318 of the Civil Code of ‘Michoacan.

The present case is distinguishable from Matter of! ‘Hernandez, 141. &

N. Dec. 608 (A.G. 1974), in which.the Attorney General recognized the
legitimacy of a child born in the State of Tamaulipas, Mexico of a
marriage that had evideutly not been contracted in accordance with tho
civil formalities. The Attorney General's decision was based on provi-
sions of the Civil Code of Tamaulipas which permitted common law
marriagos.! The Library of Congress memorandum states that there
‘were no comparable provisions in effect in Michoacan in 1940 or thereaf-
ter.
Since the petitioner was illegitimate and was not legitimated by his
father in accordance with section 101(b)(1)(C) of the Act, he cannot
successfully petition in behalf of his father. Section 101(b)(2) of the
Immigration and Nationality Act; see Matter of Polidoro, 12 1. & N.
Dec. 855 (BIA 1907). The district dircetor’s docision was correct. The
appeal will be dismissed.

ORDER: The appeal is dismissed.

APPENDIX
PROVISIONS OF THE CIVIL CODE OF MICHOACAN
(Suurce: Library of Congress memorandum dated March 1975.)

1The last paragraph on page 18 of the Attorney General's decision in Matter of
Hernandez originally indicated that the Attorney General was relying, in part, upon the
Federal Mexican Civil Code. However, in a memorandum dated February 14, 1975, we
were informed by the Service that the words “the Federal Mexican Civil Code” were
apparently a typographical error, and that the eitation should read “the Civil Code of the
Stave of Tuuaulipas.” The memorandum aloo indicated that setinn wanld he taken to
correct the error in the printed volume of decisions,

249
Interim Decision #2367

Article 82. The civil status of natural persons shall be proved solely by the acts
recorded in the sivil registry. No other document nor proof is admissible to prove the
civil status of natural persons, except those authorized by law.

Article 100. At the place and time set for the performance of the marriage, there
shall be present before the Official of the Civil Registry the contracting parties or their
specially appointed proxy and two witnesses for each party capable of attesting to their
identity.

Sine mea or the Civil Registry shall read aloud the marriage application, documents
attached thereto, and any other diligence effected, and he shall ask the witnesses if the
contracting parties are the same persons mentioned in the application form. If the
answer is in the affirmative, he shall ask the contracting parties if it is their will te be
united in marriage, and tr tney agree, he shall pronounce them unived in the name uf the
law and society.

Article 195. Marriage must be performed before the officials established by law and
with the legal formalities.

Article 252. The following are presumed to be children of the spouse:

1) Those born after 180 days from the celebration of the marriage.

2) Those born within the 300 days following the dissolution of the marriage. . . .

Article $12. The subsequent marriage of the parents regards their children born out
of wedlock as if born in wedlock,

Article $18. In order that the child enjoy the right granted to him in the preceding
article, his parexts must expressly acknowledge him before the performance of their
marriage, in the act of marriage or while their marriage lasts. In any instance, acknowl-
edguent may be effected by Ure parents Lugetber ur scpaatcly.

250


Interim Decision #1835

Mai.= or GARCIA-CASTELLO
In DEPORTATION Proceedings
A-13710425

Decided by Board April 30,1964
Adjustment or status under section EA Immigration and Nationality Act, as

amended, is denied as a matter of discretion to an alien from a nonquota
country who sought and gained entry into the United States with a preconceived intention to establish permanent residence, since the bona fides of the
alien In securing Ids nonimmigrant VIM is a persuasive factor in considering
the exercise of such discretion. [NOTE: See also, Matter of Garda Castillo,
Int. Dec. No. 1416, of which the alien in this case is also the subject.]
-

Cameo:
Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)]—visitor,
remained longer.

In an opinion dated February 24, 1964, the special inquiry officer
found the respondent herein deportable on the charge contained in
the order to show cause and granted his application for status as a
permanent resident under section 245 of the Immigration and Nationality Act. From that opinion the trial attorney has appealed to this
Board. The appeal will besustained.
The respondent is a native and citizen of Peru, single, who was last
admitted to the United States on June 13, 1963, at which time he was
authorized to remain in the United States as a visitor until July 15,
1963. On October 2, 1963, he applied for adjustment of status to that
of a permanent resident and that application was denied on November
26, 1963. He was thereafter permitted to remain in the United States
until December 26, 1963. He remained beyond that time without
authority and is, therefore, deportable on the charge contained in the
order to show cause.
The special inquiry officer in his opinion found that it was the respondent's intention at the time he came to the United States to apply
for adjustment of status from that of a visitor to that of a permanent
resident. The record, shows that even though he knew it was illegal for
him to work in this country, he nevertheless obtained employment about
a week after his arrival. Moreover, his first application for a visitor's
516,

Interim Decision #1335
visa to the United States was rejected by the American consul. Thereafter he requested a travel agent in his home country to assist him and
it is his testimony that the travel agent arranged for him to get a
letter from a doctor to the effect that the respondent was making a trip
to the United States in order to secure medical treatment. Upon
presentation of this letter to the American consul, the visitor's visa
was issued.
The special inquiry officer in considering the application of the respondent cited our decision in the Matter of Barrios, Interim Decision
No. 1264. He concluded from this opinion that our holding was that
when an alien comes from a nonquota country, his bona /Cries in securing the nonimmigrant visa is immaterial to consideration of an application under section 215. Accordingly, he reasoned that the exercise
of discretion in applications under section 245 should only be based
on other factors in the case of the applicant. We cannot agree with the
special inquiry officer in this regard. In Barrios we limited our deci-

sion to grant relief to the particular facts of that case. There we had
a situation of a nonquota alien who entered the United States as a
nonimmigrant fully cognizant of the fact that he could not remain
permanently unless permitted to do so lawfully. We found no lack
of good faith in his entry as a nonimmigrant, nor any intention to
circumvent the normal procedures of entering the United States for
permanent residence. In that case we did not agree with the Service
that Barrios unequivocably admitted that it was his intention to come
here permanently at the time he applied for and obtained his visitor's
visa. These factors are not present In the instant case. Here the
respondent upon his first application for a nonimmigrant visa obtained and presented to the American consul a false employment statement. On. his second application for a nonimmigrant visa ho presented
a letter from a doctor stating that it was necessary for him to travel
to the United States for medical reasons. Moreover, within one week
after arriving in the United States the respondent took employment.
The record shows beyond a doubt that the respondent sought and
gained entry into the United States with a preconceived intention to
establish-permanent residence here. The respondent freely concedes
his deception upon the American consul. His testimony in this regard
states that his reason for seeking this method of permanent residence
in the United States was because he did not want to wait a long time to
get an immigrant visa and because he has no "guarantee" or financial
sponsorship in the United States. It is his testimony that he seized
upon this method after finding out from several friends who had also
entered the United. States as tourists and were able thereafter to adjust

their status to that of permanent residents. The trial attorney in a
517

Interim Decision #1335
brief on appeal sets forth the above factors as reasons for not exercising discretion favorably. We agree with the trial attorney's assertion that to grant the respondent the relief he seeks would tend to
encourage deliberate evasion of consular functions. We have so held
in the Matter of D—, Interim Decision. No. 1330, decided by WA. on
April 3, 1964.

The special inquiry officer considering the factors other than the
'as a
nonimmigrant, seizes -upon the factor that the respondent was completely truthful in describing the circumstances under which he gained
admission to the United States. The special inquiry officer characterizes his candor as refreshing and concludes that he should not be
punished for such truthfulness.
This Board has carefully reviewed the record herein, together with
%representations made by the trial attorney on appeal Furthermore,
we have given thorough consideration to the brief of counsel for the
respondent. We are not concerned herein with matters of material
misrepresentations inasmuch as that charge has not been lodged in
the present proceeding. Our sole consideration is directed to the
proper exercise of discretion in a case such as this where there has
been a flagrant disregard by the respondent of the lawful visa procedures. We concede the respondent is statutorily eligible for the relief
he seeks. Refreshing though as his candor may be, we cannot ignore
nor can we eondone the method he has used to seek permanent residence into this country. We do not think that under these circumstances section 245 was placed into the law to avoid the properly
authorized visa, issuing procedures of the American consuls abroad.
Desirable as his residence in the United States might be, we deem it
appropriate that such residence should be attained in the proper manner. We re-assert the important fact that bona fides of an applicant
for relief under this section in his securing of a nonimmigrant visa
for entry into the United States is a persuasive factor in the exercise
of discretion as provided to the Attorney General for the consideration
of the applications under section 245. In this particular case we find
that the circumstances do not warrant a favorable exercise of that discretion. Accordingly, the following order will be entered.
ORDER: It is ordered that the appeal of the trial attorney be sustained and that the application of the respondent for relief under
section 245 of the Immigration and Nationality Act be denied as a
matter of discretion.
bona fides of the respondent in his entry into the United States

518


Interim Decision #2136

MATTER

OF LAM

In Deportation Proceedings
A-15639821
Decided by Board March 23, 1972
Apart from an alien's failure to establish prima facie the extreme hardship
required to qualify for suspension of deportation, where, as in the instant
case, he managed to stave off deportation and accrue the minimum statutory
period of physical presence only by resort to dilatory procedures (including a
petition for review denied for 'eel( of prosecution), in the absence of compelling
circumstances to counterbalance such an adverse factor denial of his motion
to reopen to apply for suspension of deportation is warranted purely as a
matter of discretion.
CHARGES:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))—Entered without
inspection.
Lodged: Act of 1952—Section 241(ax1) 18 U.S.C. 1251(a)(1)I—Excludably at time
of entry—nonimmigrant, not in possession of valid
nonimmigrant visa or border crossing identification
card and not exempted from the possession thereof, as
described in section 212(a)(26) [8 U.S.C. 1182(a)(26)].
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Samuel D. Myers, Esquire
134 North La Salle Street, Suite 1616
Chicago, Illinois 60602

Olga M. Springer

Trial Attorney
(Brief filed)

In a decision dated April 10, 1968, a special inquiry officer found
the respondent deportable on the charge in the order to show
cause and on the lodged charge, granted him voluntary departure
and ordered deportation if he should fail to depart. The Board
dismissed his appeal on June 5, 1968. Respondent's motion to
reopen to apply for adjustment of status under section 245 of the
Immigration and Nationality Act was denied by the Board on July
23, 1968. A petition for review was filed in the United States Court
of Appeals for the Seventh Circuit and was dismissed on January
30, 1969 for want of prosecution. On August 26, 1970, the Board
denied the respondent's motion to reopen the deportation proceed98

Interim Decision #2136
ing so that an application for suspension might be filed under
section 244(aX1) of the Act.
Another petition for review was filed in the United States Court
of Appeals for the Seventh Circuit, largely challenging the merits
of the April 10, 1968 determination of deportability. In dismissing
the petition for review on October 7, 1971, the court held that
review of the merits of the April 10, 1968 order is barred by the
lapse of time; and that the Board's action on August 26, 1970
denying the motion to reopen was discretionary. The court found
no abuse of discretion. This matter is now before us again on
motion to reopen to permit the respondent to apply for suspension
of deportation. The present motion will be denied.
To be eligible for suspension of deportation under section
244(a)(1) of the Act, the respondent must establish; (1) physical
presence in the United States for a continuous period of not less
than seven years preceding the date of application; (2) good moral
character during all such period; and (3) extreme hardship to the
alien or other specified family members which would result from
the alien's deportation. The regulations require that a motion to
reopen shall state the new facts to be proved at the reopened
hearing and shall be supported by affidavits or other evidentiary
material.
In support of the claim of hardship made in this motion,
respondent submitted an affidavit which states a number of
conclusions, none of which is supported by evidence or states the
facts upon which it is based. The affidavit states that he would be
unable to support himself in Hong Kong; that he would be unable
to obtain a job; that he might starve to death; that he fears the
communists in Hong Kong; and that he would become physically
and emotionally ill if he had to leave the United States. All
statements are conclusions, purely conjectural and not supported
by any facts or evidence. In substance, what respondent alleges is
tantamount to economic hardship if he is returned to Hong Kong.
Economic detriment without more, however, is not enough to
establish the hardship contemplated to qualify for the relief of
suspension of deportation, :ittsravi, v. INS, 400 F.2d 675 (9 Cir.,
1968); .-Cwang Shick Myung v. INS, 368 F.2d 330 (7 Cir., 1966).
Respondent contends that a denial of this motion would be a
denial of due process, a prejudgment without a complete hearing
depriving the respondent of a chance to be heard, and would make
the respondent suffer from the possible omissions of prior counsel.
These contentions ignore the sequence of events which have
transpired since April 10, 1968, when he was found deportable and
granted the privilege of voluntary departure. The evidence in the
record establishes that the respondent has not been denied due
99

Interim Decision #2136
process, that he has had ample opportunity to present his case
before administrative and judicial tribunals, and that he has in
fact taken advantage of these opportunities. The motion and
affidavit presented do not state new facts which would establish,
prima facie, the extreme hardship required to make respondent
eligible for suspension of deportation under section 244(a)(1) of the
Act. Respondent has not met the clear requirements for reopening
set forth in the regulations. Reopening is not to be had for the
mere asking. Due process does not require reopening for a plenary
hearing when a prima facie case of eligibility for the relief sought
has not been established.
Moreover, quite apart from respondent's failure to make out a
prima facie case, there is another compelling reason to deny the
motion as a matter of discretion. Respondent entered without
inspection on February 1, 1963. He has managed to eke out the
minimum period of seven years' physical presence only by resorting to dilatory procedures. One flagrant example among many will
suffice: On September 4, 1968, long before the seven-year period
had accrued, he filed a petition for review under section 106(a) of
the Act, challenging the deportation order then outstanding,
Cheuk Jor Lam. v. INS, C.A. '7, No. 17142. Pursuant to section 106

(a)(3) of the Act, deportation was automatically stayed. He failed to
prosecute the action, and on January 30, 1969 the court dismissed
it for lack of prosecution.
Where, as here, an alien manages to stave off deportation and
accrue the minimum statutory period of physical presence only by
resort to such obviously dilatory tactics, in the absence of other
compelling circumstances sufficient to counterbalance such an
adverse factor we are warranted in denying a motion to reopen
purely as a matter of discretion.
ORDER: It is ordered that the motion be and the same is
hereby denied.

100


Interim Decision #2430

MATTER OF RINA
In Deportation Proceedings
A-13197621

Decided by Board September 12, 1975
(1) Where respondent, travelling by automobile upon his return to the United States on
November 15, 1969 after a trip to Canada, passed at least two signs giving directions to
the nearest immigration inspection station, and it was not until respondent's car had
passed the second sign and the last clear chance to proceed to the inspection station that
the car was stopped by a Service Border Patrol Agent, the stop occurred at the
"functional equivalent" of the border within the scope of Almeida-Sanchez v. United
States, 413 U.S. 266 (1973), and United States v. Brignoni-Ponee, 422 U.S. 813 (1975).
(2) Since respondent's car was travelling slowly as if unsure of the area there were
several people in the ear; the licerise plates did not bear the local eauritaf prefix; the road
was infrequently travelled by cars other than those of people who lived there, and the
car passed by the last clear point to proceed to the inspection station, the Border Patrol
Agent had "reasonable suspicion" to believe that respondent's car might contain aliens
illegally in this country within the ambit of United Matey v. Brignoni-Ponce, supra.
(3) The doctrine of collateral estoppel prevents respondent, who was convicted of entry
without inspection under section 275 of the Immigration and Nationality Act, from
relitigating the illegal entry in subsequent deportation proceedings. [Matter ofRina, 15
I. & N. Dec. 346 adhered to.):
CHARGE:
Order:

Act of 1952--Section 241(a)(2) [8 U.S.C. 1251(a)(2)].—Entry without inspection.

ON BEHALF OF RESPONDENT! Leonard L. Finkel, Esquire
515 Madison Avenue
New york, New York 10022

The respondent moves for reconsideration of our decision dated June
11, 1975, in which we disznisSed his appeal from a decision by the
immigration judge ordering his deportation to Italy on the charge eontained in the order to show eause. 1 Oral argument and a stay of deportation have also been requested. The requests and the motion will be
denied.
Initially, counsel contends that reconsideration is warranted in light
of the Supreme Court's decisions inAlmeida-Sanchez v. United States,
1

That decision is Matter of Rine, Interim Decision No. 2396 (BIA 1975).

453

Interim Decis:ion #2430
413 U.S. 266 (:1973), and United States v. Brignani-P once, 422 U.S. 873,
95 S. Ct. 2574 (1975). Both of these cases were decided long after the
vehicle stop at issue in the present case took place in 1969. The Supreme
Court has ruled that Almeida-Sanchez does not have retroactive effect.
United States v. Peltier, 422 U.S. 531, 95 S. Ct. 2313 (1975); Bowen v.
United States, 422 U.S. 916, 95 S. Ct. 2569 (1975). We are satisfied that
the same rationale would be applied to the decision in United States v.
Brignoni Ponce, supra. Moreover, the vehicle stop and interrogation in
the present case were proper even under the standards set forth in
-

Almeida Sanchez and Brignoni Ponce.
-

-

The record shows that on November 15, 1969, the respondent admittedly was returning to the United Staes from a trip to Canada. At about
7:30 p.m. that evening, after darkness had fallen, a Border Patrol Agent
in the vicinity of Cook's Line, New York, was alerted to the presence of
the respondem's car by the tripping of an electronic device posted on
Cook's Line Read, a lightly traveled back road leading from the Canadian border (Tr. p. 85). The agent proceeded to Earlville Road, an
adjoining road accessible from the border only by way of Cook's Line
Road, and parked his car (Tr. pp. 85-86, 107-08). There were no other
cars in sight (Tr. p. 86). As the respondent's ear passed by, the agent

noted that it was going slowly and that the driver was proceeding as if
he was unsure of the area (Tr. p. 103). The agent pulled out behind the
vehicle and noted that there were several people in the vehicle and that
the license plate did not have the local county prefix (Tr. p. 88). The
agent also testified that the road very infrequently was traveled by cars
other than those of people who lived there (Tr. p. 88).
The respondent's car passed at least two signs giving directions to the
nearest immigration inspection station (Tr. p. 105). It was not until the
respondent's car had passed the second sign, and the last clear chance to
proceed to the Lnspection station, that the ear was stopped by the agent
(Tr. p. 106). The agent indicated that he would not have made the stop
had the respondent's vehicle proceeded to the inspection station (Tr. p.
106). He also indicated that an additional reason for waiting to stop the
respondent's car was that he was outnumbered by the occupants of the
car and that the Earlville Road would not have been a safe place to make
a stop if there was any chance of a confrontation involving force (Tr. pp.
90, 106).

We believe that the foregoing facts would justify a finding that the
stop occurred at the "functional equivalent" of the border within the
scope of Almeida Sanchez. In addition, although further justification
would not be necessary at the "functional equivalent" of the border, the
Border Patrol agent undoubtedly had a "reasonable suspicion" that the
respondent's vehicle contained aliens who might be in the country
illegally. See United States v. Brignons P once, supra. Even assuming,
-

-

454

Interim Decision #2430
then, that the standards set forth in Almeid,a-Sanchez and BrignoniPonce had retroactive application, we find that those standards have
been met in the present case.
Secondly, counsel challenges our holding that the doctrine of collateral estoppel prevents the respondent, who was convicted of entry
without inspection under section 275 of the Act, from relitigating the
illegal entry issue in the present proceedings. In adhering to our previous decision, we have the following comments in response to counsel's
arguments.
(1) Counsel is incorrect in asserting that the term "entry" under the

Immigration and Nationality Act has a different meaning for deportation as opposed to criminal purposes. Matter of Barragan-Garibay, 15 I.
& N. Dec. 77 (BIA 1974).
(2)Counsel's reliance upon Matter of Martinez-Lopez, 10 I. & N. Dec.
409 (BIA 1962; A.G. 1964), is misplaced. In that case, the Attorney
General agreed with the Board that there was no true identity of issues.
Therefore, the Board's inquiry into the materiality of the respondent's
misrepresentation was not foreclosed by his conviction for conspiring to
violate the provisions of 18 U.S.C. 1001.
(3) North Carolina v. Alford, 400 U.S. 25 (1970) cited by counsel, has

no applicability to the present situation.
(4)Counsel's citation of Rule 803(22) of the Federal Rules of Evidence
is inappnsite. 2 The Federal Rules of Evidence did not take effect until
July 1, 1975, long after the respondent's deportation hearing was completed. Those rules, of course, have no binding effect in administrative
deportation proceedings. More importantly, however, the commentary
by the Advisory Committee on Rules of Evidence, the body that originally formulated the rules, clearly states that Rule 803(22) "does not
deal with the substantive effect of the judgment as a bar or collateral
estoppel." Commerce Clearing Home, Federal Rules of Evidence 122

(February 1975). We adopt this view.
Finally, we reiterate that we have made a thorough review of the
entire record. We repeat our prior conclusion that, quite independently
from any collateral estoppel effect of the judgment of conviction, on the
• Rule 805. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is
available as a witness:
(22) Judgment of previous conviction.—Evidence of a final judgment, entered after a
trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person
guilty of a crime punishable by death or imprisonment in excess of one year, to prove any
fact essential to sustain the judgment, but not including, when offered by the Government
in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect
admissibility.

455

Interim Decision #2430
record as a whole the respondent's deportability has been established by
clear, convincing, and unequivocal evidence.
We adhere to our decision of June 11, 1975. The respondent's motion
will be denied, and his requests for oral argument and a stay of deportation also will be denied.
ORDER: The motion to reconsider is denied, and the requests for

oral

argument and a stay of deportation also are denied.

456


Interim Decision #1481

Mamma of LAvono
In Deportation Proceedings
A.-10767234

Decided by Bixird May £8, 1965
The term "psychopathic personality" in section 212(a) (4), Imthigration and
Nationality Act, includes sexual deviates ; therefore, respondent's admissions
of sexual deviation and homosexuality over a period of years prior to his
entry in 1960, coupled with a certification of the United States Public Health
Service (based on a diagnosis of his sexual deviation and history of homosexuality) that he is a person of psychopathic personality, support a deportation charge under section 241(a) (1) of the. Act as one excludable at
entry under section 212(a) (4) of the Act because afflicted with psychopathic
personality.
Cues= :
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Exeludable
at time of entry—afflicted with psychopathic personality.

The case comes forward on appeal from the order of the special
inquiry officer dated March 11, 1965 again ordering that the respondent be deported from the United States to Canada on the charge set.
forth in the order to show cause.
The ease was previously before us on appeal from the order of the
special inquiry officer dated January 30, 1964 ordering respondent
deported on the charge set forth in the order to show cause. The
record relates to a native and citizen of Canada, 41 years old, male,
single, who entered the United States for permanent residence at
Noyes, Minnesota, on January 26, 1960. He last entered the United
States at Noyes, Minnesota on or about May 5, 1960 as a returning
resident. The order to show cause charges that the respondent was
a sexual deviate at the time of his entries and is subject to deportation under section 241(a) (1) of the Immigration and Nationality
Act, in that, at time of entry he was within one or more of the classes
of aliens excludable by the law existing at the time. of such entry, to

Interim Decision. #1481
wit, aliens afflicted with psychopathic personality, under section
212(a) (4) of the Act.
At prior hearings there was introduced into the record a statement
taken from the respondent dated August 80, 1981 to'the effect that he

was homosexual according to his interpretation of the term "homosexual" which meant to him. a person whose sexual perversions are
directed to members of his own sex; that he had had his first homosexual experience at the end of 1946 in Winnipeg, Manitoba, Canada; during 1946, 1947 and 1948 he had more than a dozen. experiences; after 1948 until 1959 these experiences occurred once or twice
a month; in the last two years prior to the making of the statement

he had five or six such experiences. Doctor Beittel, a staff psychiatrist of the United States Public Health Service stated that the
respondent had been a sexual deviate. at least since 1946 and certified
that the respondent was a sexual deviate in January of 1960 at least
up to the time of hii arrest, based upon an interview of approximately 60 minutes, although he concluded that from a psychiatric
point of view, the alien could more accurately be described as a sexual deviate manifested, by auto-eroticism and homo-eroticism. This
witness stated that he was compelled by the directives of the United
States Public Health Service Manual to classify the respondent on
the basis of his diagnosis of sexual deviate and history of homosexuality as a psychopathic personality.
At prior hearings the respondent produced as a witness in his
behalf Doctor Diamond, a specialist in psychiatry, who testified that
he had spent eight hours over a period of eight weeks in examining
and treating the respbnilent. His testimony is to the effect that the
respondent was not afflicted with psychopathic personality o_ r a character disorder but was suffering from a neurotic conflict over Des,
whose symptoms were manifested by his homosexuality. He rejected
the description of psychopathic personality as obsolete from a psychiatric viewpoint. He also testified that homosexuality is not an
appropriate medical tErm, that there was no such diagnosis as homosexuality, and that from a psychiatric standpoint the respondent was
not a homosexual. This doctor conceded that the respondent's sexual
behavior was abnormal and a deviation from acceptable normal
standards.
In our previous order of May 6, 1364 we quoted from Senate
Report No. 1137 (82nd Congress, 9a Session, January 29, 1952) indicating that the Public Health Service had advised that the provision
for the exclusion. of aliens afflicted with psychopathic personality or
a mental defect is sufficiently broad to provide for the exclusion of
homosexuals and sex perverts and that the change of nomenclature
225

Interim Decision #1481
is not to be construed in any way as modifying the intent to exclude
all aliens who are sexual deviates. Whatever the phrase "psychopathic personality" might mean to the psychiatrist, to the Congress
it was intended to include homosexuals and sex perverts:
We remanded the case in order to have included in the record the
pertinent section of the United States Public Health Service Manual
for the Medical Examination of Aliens and for characterization of
the zespondent's disorder by both psychiatrists in the light thereof, to
take further testimony as to what pattern determines a sexual deviate
or homosexual and to evaluate the evidence to determine whether a
preponderance of the evidence establishes the charge.

At the reopened hearing held on October 1, 1964 only Doctor Belttel appeared. as a witness. He reaffirmed his position that within the

meaning of the pertinent section of the Manual for Medical Examination of Aliens the respondent was afflicted with psychopathic
personality?
The testimony Of the psychiatric witnesses has served only to compound the confusion inasmuch as both appear to agree that the
phrase "psychopathic personality" has no precise medical meaning
and that "homosexual" is not a medical term. This difficulty how•ever is recognized both in the legislative history previously referred
to and in the Manual for Medical Examination of Aliens itself. As
emphasized in the legislative history, the term "psychopathic personality" was understood to be broad enough to provide for the exclusion of homosexuals and sex parvartg and was not to be construed in
any way as modifying -the intent to exude all aliens who are sexual
-deviates. We are not concerned with the niceties of semantic differ-

1 J:fatter of P—, 7 &N. Dec. 258; Matter or 8—, 8 I. a N. Dec. 409; MoUor
-01 10 , 9 L & N. Dec. 393; United States v. Slores-Rodrigues, 237 F.2d 405 (2d
1956) ; .Uarb-Quiroz v. Neely, 291 F.2d 906 (5th 01r., 1961),
'The Manual for Medical Examination of Aliens (1963) 6-5, which deals
with psychopathic personality reads as follows:
(a) The legal term "psychopathic personality" is equivalent to the medical
-designation "personality disorder," 'which may be broadly defined as follows:
"These disorders are characterized by developmental defects or pathological
trends in the personality structure, with minimal subjective anxiety and little
or no distress. In most instances, the disorder is manifested by a lifelong pattern of action or behavior (acting out), rather than mental or emotional symptoms." An example of such a certificate is Class A, Psychopathic personality,
inadequate personality.
(b) Under this legal category will be classified those applicants who are diagnosed as sexual deviates. In the medical examination of aliens this is a
difficult diagnosis to establish. However, the examiner should assist the consular officer when possible when evaluating an applicant thought to come in
this category.
—

226

Interim Decision *1481
ences indulged in by psychiatrists. The words,. "psychopathic personality" have become words of art which, -whatever 'else they
might mean, include homosexuality and sex perverts and the term is
applied as it is commonly understood.' We conclude that the gov-

has borne the burden of establishing that the respondent is
deportable on the charge stated in the order to show cause.
The main thrust of counsel's argument is that the statute upon
which the proceeding is based is unconstitutional and unconstitutionally applied as determined by the court in Fleuti v. Rosenberg, 302
F.2d. 652 (9th Cir., 1962). However, on appeal, the constitutional
ernment

question was bypassed, the decision below vacated and the

case was

decided on other grounds by the Supreme Court.' The constitutional
question therefore remains unresolved and this is not the proper
forum in which to try that question. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
■•■■■•■••■••■•■•111.11.

• Harb-Quirov is • Nooly,

291 '.2d 908 (5th Cir., 1901) ; Matter td 11—,

L & N. Dee.'409.
• 12oeestberg v. Pleuti, 874 U.S. 449, 10 L.ed. 2d 1000 . (1963).

227


Interim Decision #1807

MA.r." JIt or Howe
In Visa Petition Proceedings
A-14041878

Decided by Regional Commissioner September 89, 1967
Beneficiary, a computer programmer, who nas only nmiteci inStractiOn and job
experience as a programmer—a 95-hour course in IBM electronic data processing and employment as a programmer since May 1966—does not qualify as a

member of the professions within the meaning of sections 101(a) (32) and
203(a) (3) or the Immigration and Nationality Act, as amended.
IN BEHALF or 'APPLICANT: Paul Rubin, Esquire
50 West 57th Street
Now York, New York 10010

This matter is before the Regional Commissioner on appeal from
the denial of the visa petition to accord the beneficiary third preference inunigrant classification as a member of the professions.
The facts in this case are discussed fully in the District Director's
decision of June 28, 1967. In brief, the beneficiary seeks third preference status as a programmer. Her background in the field consists

of a ninety-fire-hour course in IBM 1401 Electronic Data Processing
at RCA Institutes in New York City and employment as a programmer since May 1966. She previously received a Bachelor of Arts degree in Business Administration from National Taiwan University
at Taipei, Taiwan.
The Occupational Outlook Handbook, to which the District Director makes reference in his decision, reflects that the education and
experience requirements for programmers may vary considerably, depending on the nature of the problems with which they have to deal;
that organizations which use their computers for scientific and engineering work usually require a college graduate with a degree in engineering, the physical sciences or mathematics; that employers who
use computers to process business records generally place less emphasis
on technical college training, although they prefer some education
beyond the high school level; that college courses in electronic data
501

.

Interim Decision #1807
processing, accounting, business administration, engineering, or mathematics provide good preparation.
In view of the foregoing, it appears that a programmer may qualify
as a member of the professions, depending on the individual's educational and employment background. The term "profession" as defined
by section 101(a) (32) of the Immigration and Nationality Act, as
amended, contemplates knowledge or learning—not merely skill—of
an advanced type in a given field gained by a prolonged course of
specialized instruction and study of at least baccalaureate level, which
is a realistic prerequisite to entry into the particular field of endeavor
(Matter of Shin, Int. Dec. No. 1606). In the absence of a baccalaureate
degree from an accredited institution of learning, the individual may
qualify as a member of the professions if he has acquired specialized
training or experience which may be equated therewith (Matter of
Delia, Int. Dec. No. 1657).
In the matter at hand, we find that the beneficiary's limited instruction and job experience in the field of programming does not
qualify her for classification as a member of the professions within
the meaning of the statute. This appeal, therefore, will be dismissed.

ORDER; It is ordered that the appeal be and the same is hereby
dismissed.

602


ArrER OF V—RIn DEPORTATION Proceedings
A-11622973

Decided by Board July 5, 1961
Deportability—Section 241(a)(5), 1952 act—Failure to register under 1940 act
not included as ground of deportation—Each willful failure to register under
1952 act, constitutes separate deportation ground—Suspension of deportation—Eligibility under S ection 244(a)(5)—Ten-year period determined by date
of last deportable act.
(1) Mere failure to comply with reporting provisions of Alien Registration
Act of 1940 held not a ground of deportation under Immigration and Nationality Act or prior statutes.
(2) Each willful failure to comply with annual registration requirements of
section 265 of Immigration and Nationality Act constitutes separate basis of
deportability under section 241(a) (5) of Act.
(3) Ten - year period or physical presence and 6.frod moral character required
to establish eligibility for suspension of deportation under section 244(a) (5)
of Act is computed from date of last act which made alien deportable.
Where alien's willful failure to register occurred in more than one year,
date of last commission of such offense determines commencement of tenyear eligibility period.
CHARGE :
Order : Act of 1952—Soil-inn 241 (a ) ( 1) [8 U.S.0 1251(a) (1)1 — Excludable

at entry under section 3, Act of 1917—Stowaway.

BEFORE THE BOARD

DISCUSSION: This motion asks reconsideration of the Board's
order of December 16, 1960, denying the respondent's application for
suspension of deportation. The motion is opposed by the Service.
The facts have been fully stated in previous orders. The respondent, a 33-year-old married male, allegedly stateless, concedes that he
entered the United States as a stowaway about October in 1949.
The sole issue concerns the respondent's statutory

eligibility for

suspension of deportation.
.
Under the workings of the suspension law at present, the respondent is ineligible for relief unless he can show that he is deportable on the more serious grounds set forth in section 244(a) (5)
of the Act (8 U.S.C. 1254 (a) (5) ) . Section 244 (a) (5) provides
340

that the Attorney General may in his discretion, suspend deportation of an alien who—
is deportable under paragraph * * * (5) * * * of section 241(a) for an act
committed or status acquired subsequent to such entry into the United States
ur having last entered the United States within two years prior to, or at any
time after the date of enactment of this Act, is deportable under paragraph
(2) of section 241(a) as a person who has remained longer in the United
States than the period for which he was admitted; has been physically preseut in the United States for R continuous period of not less than ten years
immediately following the commission of an act, or the assumption of a status,
constituting a ground for deportation, and proves that during all of such
period he has been and is a person of good moral character * *

The respondent claims that he is deportable under paragraph (5)
of section 241(a) of the Immigration and Nationality Act (8 U.S.C.
1251(a) (5)) for failure to comply with the provisions of section 265
of the Act (8 U.S.C. 1305) because from 1949 to 1954 he willfully
failed to comply with the alien registration laws. Section 241(a) (5)
of the Act provides as follows:
Sec `41 (a) Any alien in the United States (including an alien crewman)
shall, upon the order of the Attorney General, be deported who— * * *
(5) has failed to comply with the provisions of section 265 [Immigration
and Nationality Act; 8 U.S.C. 1305] unless he establishes to the satisfaction
of the Attorney General that such failure was reasonably excusable or was
not willful, or has been convicted under section 266(c) of this title [8 U.S.C.
1306(c)], or under section 36(c) of the Alien Registration Act, 1940, or has
been convicted of violating or conspiracy to violate any provision of the Act
entitled An Act to require the registration of certain persons employed by
agencies to disseminate propaganda in the United States, and fur other palposes," approved June 8, 1938, as amended [Title 22, sections 611-621], or
has been convicted under section 1546 of title 18 of the United States Code.

Section 265 of the Immigration and Nationality Act states:
Every alien required to•be registered under this title, or who "as required
to be registered under the Alien Registration Act. 1940, as amended, who is
within the United States on the first day of January following the effective
date of this Act [December 21, 1952], or on the first day of January of each
succeeding year shall, within thirty days following such dates, notify the
Attorney General in writing of his current address and furnish such additional
information as may by regulations be required by the Attorney General. * * *

Before we can consider whether the respondent is deportable under
section 241(a) (5), it is necessary to discuss the Service contention
that it is improper to go into the matter because the charge has not
been lodged by the Service. The Service relies upon Ntuvw v.
Ahrens, 276 F.2d 483 (C.A. 7, 1960), cert. den. 364 U.S. 826. Counsel believes that Ntovas, which did not concern suspension of deportation, is distinguishable because the charge tilers (entry by
fraud) involves a purely subjective matter and the charge here has
an objective element insofar as failure to report an address is concerned. At. this point we shall assume for the sake of argument tha
341

in a deportation proceeding an alien has the right to have a charge
considered which would make him eligible for suspension of deportation.
One is deportable for failure to comply with section 265 only if
the lack of compliance is willful or without reasonable cause. The
failures to comply with section 265 in January 1953 and 1954 were
willful. We can assume on this record that the respondent is deportable under section 241(a) (5). This hurdle over, the respondent
must prove that at least ten years elapsed after the grounds for deportation arose, and that during the ten years immediately preceding
the application he had been both physically present in the United
States and of good moral character (Matter of M—, 5 261, 268:
-

Abair,' of H -, 8 122).
-

This brings us to the crux of the problem. What is the ten-year
period "immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation"? It is
our view that the ten years begin to run from the time the last
thing occurred which made the alien deportable. Counsel is of the
belief that the ten years run from the time the first thing occurred
which made the alien deportable. This he believes happened in January 1950 when the respondent failed to comply with the provisions
of the Alien Registration Act of 1940. 1 We did not agree with
counsel's view. Following our test, we held that ten years must

pass after the last willful failure to register (January 1954). Thus,
under our view, the respondent will not be statutorily eligible for
suspension of deportation until 1964.
Counsel strongly contends that we must be wrong in this view
because it limits the number of aliens who would be eligible for
suspension of deportation. His point is that the alien who had willfully failed to report his address without reasonable excuse could
not, under the Board's view, begin to accumulate the ten years of
physical presence required under section 241(a) (5) until he had
registered; however, the registration would reveal his illegal presence and increase the chances of his apprehension and deportation
before he could attain the necessary physical presence in the United
States.
While it is true that our interpretation limits the number of aliens
eligible for suspension of deportation, several observations are in
order. First, we believe that the suspension section exists to grant
relief in those cases where the authorities, for one reason nr an-

have been unable to apprehend the alien and enter a final
order of deportation with dispatch. The section is not an invitation to aliens to enter the. United States illegally on the promise
other,

1 See footnote 4 for the duties then placed upon an alien under the alien
registration laws.

that they will have a sporting chance to avail themselves of the
relief, nor is the section intended to give an alien illegally in the
United States the right to mature an unlawful presence into eligibility for suspension of deportation. It is, therefore, proper,
although suspension relief exists, to apprehend and deport aliens
illegally in the United States even though it prevents them from
becoming statutorily eligible for suspension of deportation. And it
is proper to require an alien illegally in the United Slates to comply
with the Immigration and Nationality Act provisions applicable to
all aliens although compliance may reveal the illegal presence to
authorities?
Second, as our interpretation does declare that aliens who have
willfully or without reasonable excuse failed to comply with alien
registration requirements are statutorily ineligible for suspension
of deportation if they continue in their failure to comply Jvith the
alien registration laws, it may be well to consider that important
classes of deportable aliens are barred from suspension of deportation. For example, aliens on parole, despite the years of residence
they may accumulate, are not eligible for suspension of deportation,
and aliens who entered before June 27, 1950, and who were excludable on criminal grounds, etc., are ineligible for suspension of deportation. Aliens (including stowaways) who entered the United
States prior to June 27, 1950, who are not deportable as subversives,
immoral persons or criminals, etc., were eligible for suspension of
deportation if they applied before December 1957 but are ineligible
if they failed to apply in time (Matter of L , 5-202, 205; Matter of
5-598; Matter of D-.-, 5-285). Although stowaways are eligible for suspension of deportation under section 244(a) (4) of the
Immigration and Nationality Act if they came after June 26, 1950,
they are not eligible if they came before that date.
There exist these large classes of deportable aliens who are not
eligible for suspension of deportation. Some of the aliens in these
classes have long periods of residence and are deportable only on
grounds considered less serious by Congress. This being so, it does
not appear contrary to the intent of Congress to hold that one who
has violated the law willfully or without reasonable excuse should
.Congrcoo regarded failure to comply with the alien registration laws as a
serious matter. Criminal penalties are provided (section 266(b). Immigration and Nationality Act; 8 U.S.C. 1306 (b) ), and an alien who had failed
to register was expressly denied the privilege of voluntary departure without
tne 11ISULUtIon of deportation proceedings (section 242(b), Immigration and
Nationality Act ; 8 U.S.C. 1252(b)1. Such an alien is ineligible for voluntary
departure after deportation proceedings have been instituted unless he is eligible for suspension of deportation (section 244(e), Immigration and National ity Act; 8 U.S.C. 1254 (e) ).

343

not be eligible for suspension of deportation until he stops his
violation.
There is, of course, an inconsistency in the state of affairs which
denies relief to a deportable alien who failed to apply prior to December 1957 unless he is also deportable on one of the more serious
grounds which fall under section 244(a) (5). This appdrent lack of
consistency and the existence of classes of aliens with long residence
who are ineligible for suspension of deportation may be as good
an answer as any to counsel's argument that it is unfair to his client
that an alien deportable as a subversive can terminate his clandestine
subversive activity and have a good chance of staying out of the
hands of the immigration authorities, thus accumulating ten years
of presence in the United States ; whereas, the respondent, by the

fact of complying with the alien registration laws, would give the
authorities information of his illegal presence and his current whereabouts, lessening his rhancte of remaining in the United States.
While the law is remedial in nature, and should be interpreted
liberally, we do not think that counsel's interpretation is a proper
one. We believe that the law makes statutory eligibility for suspension of deportation dependent upon the passage of a fixed period
of five or ten years, as the case may be, after the occurrence of the
last act which made the alien deportable, both to encourage cessation
of the undesirable acts which are grounds for deportation and to
afford the administrative authorities an adequate basis for determining if the exercise of discretionary relief is justified. Moreover,
it seems quite unlikely to us that Congress could have intended that
the alien whose wrongdoing continued to the moment of his apprehension should have the same favorable opportunities as the alien
whose wrongdoing ceased ten years prior to his apprehension. Thus,
we hold that the criminal, the subversive, the narcotic addict, the

prostitute and the manager of the house of prostitution, the undesirable resident, etc., are not statutorily eligible unless ten years
have elapsed since the 'last commission of an act making them deportable. Thus, the alien who had been a subversive, etc., for the
20-year period prior to his apprehension by the authorities could
not, upon his claim that he had terminated membership the day
after his apprehension, show statutory compliance with that portion
of the suspension section requiring him to have been physically present in the United States for the continuous period of not less than
ten years immediately following the commission of the act or
assumption of the status constituting a ground for deportation.
Counsel cites Matter of B—, 7-400, which he belies-es supports his
view that the proper test for the running of the necessary ten year

period is from the first commission of an act which makes an alien
deportable regardless of whether the act continues. B—, an alien
344

crewman, had been admitted for a short period of shore leave
on August 29. 1950. He overstayed his leave and was ordered
deported in 1956. He applied for suspension of deportation. The
Board felt that the alien would have been eligible for suspension of
deportation ten years after the date he first overstayed his shore
leave. Counsel believes that to be consistent with the instant case,
the Board in Matter of B— would have had to rule that the ten-year
period did not begin to run until the overstay had terminated. We
believe the situations are distinguishable. One difference between
an alien who overstays his shore leave and one who fails to comply
with the Alien Registration Act is that the law calls upon an alien
in the United States to periodically make compliance with its provisions under penalty of deportation, whereas, there is no corresponding requirement of action concerning an alien who overstays his
leave. Then again, the overstay cannot stop unless the alien leaves

the United States; in the other case, the forbidden act can stop
although the alien remains in the United States. It is, therefore,
not improper, since some time of beginning must be selected, to
base the beginning of the ten-year period in the overstay case upon
the time the violation occurred and in the other cases to base the
running of the period upon the last forbidden act performed. Moreover, while the overstayed alien is mentioned in section 244(a) (5),
it is not part of the first group mentioned in that section but is
treated separately with limitations which do not apply to the other
grounds, and it is unlike the other grounds mentioned in section
244(a) (5) in that it is not included as a case where voluntary departure is precluded without the institution of deportation proceedings
(section 242(b), Immigration and Nationality Act; 8 U.S.C. 1252
(b); see also, section 244(e) ; 8 U.S.C. 1254(e)). If the test is
different for the overstayed alien, it would not necessarily require
that the other cases be handled in a similar fashion.
Matter of D — , 5

-

285, also cited by counsel, involves a question as

to whether a person deportable on a ground stated in section 244(a)
(5) was taken out of that section by the fact that he was deportable
on a ground not contained in that section. We are not concerned with
this issue.
We have carefully considered counsel's contention that the position of this Board is not supported by its cited precedents. Both,
Matter of P— ,

and

Matter of H — , 8

-

1`2 .2, state that a con-

act which is a ground for deportation, such as Communist
Party membership, must have been terminated for ten years before
tinuing

the alien i3 eligible for suspension of deportation wider s ection 244

(a) (5). (The point is made even clearer in Matter of c9—, 7

157,
158, where we held that eligibility for suspension of deportation under
section 244(a) (5) "depended upon the respondent establishing that

345

10 years had elapsed between the time his membership in the Communist Party ceased and the date on which he submitted and executed
his application."' To same effect is Matter of V—, 6-723 )
Counsel argues that the Board has incorrectly confused statutory
eligibility with the application of discretionary standards. We do
not believe we have. The contention is made that the Board found
that the respondent's failure to register because of his fear of apprehension constituted bad moral character. The Board did not rule
on this point finding it unnecessary to consider the good moral character problem or the discretionary aspects since the respondent had
failed to establish his statutory eligibility for suspension of deportation as he did not have the requisite ten-year period of residence.
We see no reason to change the position we previously took .

The special inquiry officer held that the respondent was ineligible
for suspension of deportation on a different ground than the one
we have been discussing. He ruled that the failure to register
prior to 1953 was not a basis for deportation and never did become
one, but that it was only with the passage of the Immigration and
Nationality Act that mere failure to comply with the alien registration provisions became a ground of deportability, and then only if
the failure was to comply with the provisions of section 265 of the
Immigration and Nationality Act of 1952. The special inquiry officer
held that since the respondent had not and could not become deportable for failure to comply with the provisions of section 265 of

the Immigration and Nationality Act until 1953 (the first year his
registration was required under section 265), the respondent did
not become deportable under section 241(a) (5) until 1953; that he,
therefore, could not establish that he had the requisite ten-year
period of physical presence until 1963; and that he was, therefore,

ineligible for suspension of deportation. We did not discuss the
merits of this ruling which had been strongly opposed by counsel
because we thought we were resting our decision upon a ground which
had become accepted. However, since counsel takes strong issue
with our ground of decision, we believe administrative purposes will
3 We invite attention to Bnffalino v. Holland, 277 F.2d 270 (C.A. 3, 1960),
cert. den. 364 U.S. 863. Buffalino had failed to furnish the Attorney General
with his address in January 1956 and January 1957. The question was
whether he had been physically present in the United States for a continuous
period of not less than ten years immediately following the commission or an
act constituting a ground for deportation. The court held that Buffalino
could not satisfy the requirement of physical presence "for a continuous period of not less than ten years immediately following the commission of such
acts" (p. 280; emphasis 'acicIect). The issue before us was not raised, but it
appears to us the court thought that the running of the period would have to
follow the commission of the last of the two acts in question.

346

best be served by now going into We merits of the special inquiry
officer's ruling.
We think the special inquiry officer's view that the respondent is
not deportable for failure to register prior to January 1953 is correct. The ground on which the respondent deems himself deportable
(failure to comply with the provisions of section 265) did not exist
prior to January 1953, and the respondent's failure with regard to
the alien registration laws prior to the Immigration and Nationality
Act was not made a ground of deportation by the Act. This is not
a matter of form but of substance (see Matter of D—, 6-285).
Counsel points out that the provisions of the Alien Registration
Act of 1940 were in effect prior to the Act of 1952 and required
affirmative action by the alien.' For our purposes, this is not material_ Mere failure to comply with the provisions of the 1940 Act
was not a ground of deportation under the immigration laws prior
to the Immigration and Nationality Act of 1952 and was not made
a ground under the Immigration and Nationality Act. We have no
authority to make those past acts a deportable ground by implication. Moreover, the fact that section 241(a) (5) of the Immigration
and Nationality Act under which the respondent claims that he is
deportable does permit deportation where there has been a conviction
for violation of one provision of the Alien Registration Act of 1940
(section 36(c)) would seem to be authority for excluding violations
of sections of the 1940 Act -which have not been specified.
Matter of M—, 5-261, is cited by counsel as having a factual
situation similar to that found in the instant case because M—,
ordered deported on the basis of a narcotic conviction in 1937

which had not become a deportable ground until 1952, was declared
eligible for suspension of deportation under section 244(a) (5). The
case is distinguishable because the Immigration and Nationality Act
of 1952 made a narcotic conviction which had occurred before its
passage a ground of deportation. In the instant case, a violation
of the alien registration laws prior to 1952 was made a ground of
deportation only if it concerned a conviction of a certain section
4

At the time of the respondent's entry in October or November 1949, the
fingerprinted to have
these things done within 3() days of arrival (section 31(a), Act of June 28.
1940 (54 Stat. 673-4)). An alien was then also required to give notice of
changes of address (section 35, Act of June 28, 1940 (54 Stat. 675)). The
last section WaS amended by the Act of September 22, 1950 (64 Stat. 987)
which required resident aliens to give notification of their current address
within ten days of January 1st of each year starting with January 1, 1951.
The alien registration requirements, found in the Act of June 28, 1940, as
amended. were repealed by the Immigration and Nationality Act. Mere failure to do any of these acts was not made a ground of deportation.
law required an alien whn had not heen registered and

347

be improper to enlarge the
deportable class defined by section 241(a) (5) by including in it
violators of those sections of the 1910 Act other than those specified
by Congress.
Counsel argues that the failures to register after the original
failure in 1950 are not deportable acts in and of themselves because
they all arose out of a single scheme or a continuing scheme. As
far as this case is concerned, the failures to comply with the alien
registration laws prior to the Act are not grounds of deportability
and do not become so because the failures are repeated after the Act
became effective; also, failure to comply with the alien registration
laws prior to the Immigration and Nationality Act cannot be an
excuse for failure to comply with the express requirements of the
Act. Moreover, we believe that an alien's intention to avoid registration, formed at an early date, does not excuse him from compliance with the law after the first violation. Since there is a duty
of registering each year, any failure is a ground of deportation
not involved here. It NI uuld olniuusly

under aection 241(a) (5). (See, United States v.

Zeid, 281 F.2d 825

(C.A. 3, 1960), cert. den. 364 U.S. 901; obligation to file current
address card under the 1952 Act arose at least in 1953, conviction
for the year 1958 obtained.)
Furthermore, an intent to commit more than one crime—a "single
scheme"—is material only because Congress has specifically made it
a factor in the deportation of aliens convicted of crime (section
241(a) (4) ; S U.S.C. 1251(a) (4)). The qualification has not been
extended to include section 241(a) (5) under which the respondent
claims he is-deportable. Furthermore, if a- single scheme exists, it
implies the commission of more than one act and that punishment
has been imposed for more than one act. It is immaterial to us
under section 241(a) (4) that one of the acts is an early one and
one a later one because neither act is sufficient as a ground of deportation. However, as far as section 241(a) (5) is concerned, the
later act alone can be a ground for deportation.
We have carefully considered each case cited by counsel and have
carefully reviewed his brief of September 13, 1960, and the oral
argument in connection with that appeal. We find that the respond
ent is ineligible for suspension of deportation.
. The Service representative argues that since the respondent comee
within both section 244(a) (4) and section 244(a) (5), he would not
be eligible for suspension at all. Since the respondent is not shown
to be eligible under either section, we need not discuss this contention.
The Service representative is of the belief that Congress intended
that a restrictive effect be given suspension of deportation because
the grant of such relief had caused law-abiding aliens on waiting
lists for visas to endure long waits due to the exhaustion of the
348

quota winch in some cases could be a 11 ibuted in part to the taking
of quota numbers by successful applicants for suspension of deportation. We believe that the Congressional statement in this regard
shows concern not with statutory eligibility but with the manner in
which discretionary relief should be applied.
ORDER; It is ordered that the motion be and the same is hereby
denied.

349


Interim Decision *1720

MAryER OF FERRANTE

In Visa Petition Proceedings
A-12164106
Decided by Board March, 81, 1967
Where beneficiary's section 245 adjustment of status granted in 1961 upon
approval of his tirst United States citizen wife's visa petition to Reenrd him

nonquota status was rescinded in 1964 because the marriage was not bona tide,
baying been entered into solely to obtain nonquota status, he comes within the
provisions of section 204(c) of the Act, as amended; hence, the order of the
District Director revoiang approval of a ffabseanent visa petition (19(16) to
accord beneficiary immediate relative status on the basis of his present marriage to a United States citizen is approved.
ON renr/Lia, oc Farm/mess1:
Henry C. Lavine, Esquire
1013 Williamson Building
Cleveland, Ohio 44114
(Oral argument)

ON BEHALF

or

SERVICE

B. A. Vielbaber
Appellate Trial Attorney
(Oral argument)
Thomas M. Pederson
District Director
(Brief filed)

The case tomes forward on appeal from the order of the District
Director, Cleveland District, dated November 18, 1966 revoking the
approval of the visa petition approved on September 13, 1966 under
the provisions of section 204(c) of the Immigration and Nationality
Act (8 U.S.C. 1154(c)) as more fully set forth in an accompanying
order dated November 15, 1966.
The petitioner, a native of Italy, a citizen of the United States by
naturalization on August 20, 1965, filed a visa petition seelriuf immediate relative status on behalf of the beneficiary as her spouse. The
visa petition was approved on September 13, 1966. It is now alleged
that the approval of the visa petition was erroneous for the reason
which will be more fully set forth below.
Tho record shows that the beneficiary entered the United States on
August 22, 1960 and was admitted as a temporary visitor for pleasure.
He married Ruth E. Moore, a United States citizen, on February 22,
1961. She filed a visa petition for nonquota status on behalf of the

166

Interim Decision #1720
beneficiary which was approved on May 17, 1961 and an application
for adjustment of status under section 245 of the Immigration and
Nationality Act, as amended, was approved on November 7, 1961. The
beneficiary divorced Ruth Moore on June 1, 1962. Ruth Moore's prior
marriages had been terminated by divorce on June 13, 1947 and on
September 6, 1957. Evidence was presented that the beneficiary's wife,
Ruth, lived with one Charles C. Lowe since January or February 1961
and that this relationship continued at the time the case was before us
on June 26, 1964 in an appeal from the order of the special inquiry
officer dated March 13, 1964 ordering the adjustment of status of the
beneficiary on the basis of his marriage to Ruth Moore be rescinded.
In our order of June 26, 1964, we reviewed all the evidence fully, stated
that a determination as to the data of the commencement of the common law relationship of Ruth Moore and Charles Lowe was not perti-

nent to the case, concluded that the marriage entered into by the
beneficiary was not a bona fide marriage but was entered into solely
to obtain nonquota status for the beneficiary and must be deemed
invalid for immigration purposes, rescinded the adjustment of status
and dismissed the appeal from the order of the special inquiry officer.
Deportation proceedings were instituted against the respondentbeneficiary and he was found deportable under section 241 (a) (2) (8
U.S.C. 1251 (a) (2) ) as a visitor for pleasure who had remained longer.
The special inquiry officer granted him the discretionary relief of
voluntary departure in lieu of deportation with the automatic order
of deportation in the event he failed to depart voluntarily as directed.
The special inquiry officer held he lacked authority to reconsider the
decision of 'the Beard of Immigration Appeals in the rescission proceedings, which could only be done upon motion to the Board to reopen
or reconsider such prceedings.
On appeal, this Board found no basis to reconsider the rescission
proceedings and dismissed the appeal from the order of the special
inquiry officer. However, the Board agreed that there was a preponderance of evidence that a common law marriage existed between Ruth
and one Charles Lowe at the time the beneficiary married Ruth Lowe;
and under the circumstances the Board stated for the record that there
was no fraud in the inception on the part of the beneficiary when he
allegedly married a United States citizen because that marriage was
void ab intro.
Counsel has seized upon this language to argue that the beneficiary
is not barred by the provisions of section 204(c) of the Immigration
and Nationality Act which provides that no petition shall be approved
if the alien has previously been accorded a nonquota or preference
status as.the spouse of a United States citizen or the spouse of an alien
167

Interim Decision #1720
lawfully admitted for permanent residence, by reason of a marriage
determined by the Attorney General to have been entered into for the
purpose of evading the immigration laws. He argues that this finding
of no fraud in the inception on the part of the beneficiary when he
married his previous wife overcomes our previous finding.
We do not agree. When we previously considered this case on
June 26, 1961 in connection with an appeal from the order of rescission
under section 216 of the Immigration and Nationality Act, we found.
that the prior marriage entered into by the respondent-beneficiary was
not a bona fide marriage but was entered into solely to obtain nonquota
status for the respondent-beneficiary and must be deemed invalid for
immigration. purposes.
In our order of May 19, 1965 in deportation proceedings, we stated.
that regardless of whether the respondent-beneficiary's marriage to a
United States citizen was void ab initio because of an existing common law marriage of his citizen wife or whether it was not a bona fide
marriage because entered into solely for the purpose of obtaining nonquota status for the respondent-beneficiary, the fact remained that in
either event the respondent-beneficiary was not entitled to nonquota
status based upon his marriage to a citizen of the United States.. We

found the deportation order supported by substantial and credible
evidence. In our order dated June 26, 1964 in rescission proceedings,
we concluded that a determination as to the commencement of the
common law relationship was not pertinent to the case. The reason for
this statement was that we found that the respondent-beneficiary's
prior marriage to a United States citizen spouse was contracted solely
to facilitate his admission to the United States and did. not entitle him
to the issuance of the nonquota visa. Where no bona Me husband-wife
relationship was intended by the marriage, the marriage is deemed
invalid for immigration purposes regardless of whether it would be

considered valid under the domestic law of the jurisdiction where per .
formed. Matter of M—, 8 I. & N. Dec. 217.
The thrust of the find
ing of a sham and invalid marriage is that
despite the marriage ceremony, the parties did not intend to consider
themselves as husband and wife and that where no bona fide husband
and wife relationship is created, it floes not entitle the alien to the
issuance of a nonquota visa.1 The immigration law, which grants
advantages to those who marry a United States citizen, refers not to
taking of steps which enable a couple to live together in a marital
relationship but to the marital relationship itself, an actual joining
-

Lutwak v. United States, 344 U.S. 604; Giannoutias v. Landon, 226 F. 2d 358
(9th Cir. 1955) ; United States v. Rubenstein, 151 F. 2d 915 (2nd Cir. 1945), cert.
den. 326 U.S. 766.

168

Interim Decision #1720
together as husband and wife. 2 We have found that even in a case of
a marriage in name only which is not bona fide, such a marriage is
invalid for immigration purposes. We are unable to follow counsel's
reasoning that a marriage which is void because of a prior existing
marriage but which was entered into for the same purpose of evading
the immigration laws and where no bona fide husband and wife
relationship ever existed, or was ever intended, stands in any better

position. Approval of the visa petition was properly revoked because
of the bar of section 204(c) of the Immigration and Nationality Act
(8 U.S.C. 1154 (c) ). The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
itoltl v. United States, 570 F. 2d 174 (9th Cir. 1986).

169


Interim Decision #1979

MATTER OF RETwo
In Visa Petition Proceedings
A-17287521

Decided by Regional Commissioner June 11, 1989
Petitioner, who has a Bachelor of Science degree in nutrition and has 52 semester hours in foods and nutrition and 27 semester hours in natural
sciences (predominantly in chemistry and biology), is a qualified nutritionist within the meaning of sections 101 (a) (32) and 203(a) (3) of the ImmiAct, as amended.
gration and
ON BEHALF OF PETITIONER:

G. Monty Manibog, Esquire
Burlington Building, Suite 14
1725 West Beverly Boulevard '
Los Angeles, California 90026

This case comes forward on appeal front the decision of the
District Director Los Angeles who denied the petition on April 2,
1969, in that lacking an advance degree the petitioner was not academically qualified for recognition as a member of the professions as a nutritionist.
The petitioner is a 25-year-old single female, a native and citizen of the Philippines who was admitted to the United States as
a visitor on March 17, 1968, to May 15, 1968, and now resides in
Los Angeles. She filed the present petition on April 25, 1968, for
classification under section 203 (4 (3) of the Immigration and
Nationality Act, as amended, as a member of the professions as a
nutritionist to seek employment as such in the Los Angeles area.
In support of her application she presented evidence of graduation from a university in the Philippines in April 1964 with a
Bachelor of Science degree in Nutrition. She also presented a
Certificate of Attendance showing attendance at the "6th Post
Nutrition Survey Conference, Cebu City, June 27-30, 1967" sponsored by the National Coordinating Council on Food and Nutrition and the Food' and Nutrition Research Center of the Philippines. She also presented evidence of completion of a three
months' voluntary training course of the "Institutional Manage-

286

Interim Decision #1979
ment Branch" of the Food and Nutrition Research Center in Manila on November 26, 1964. The record shows that she was employed by the Food and Nutrition Research Center in Manila in
nutritional research from March 1965 to June 1965 during which
time she made a nutrition survey in the different provinces and

menus for the different provinces. From October 1965 to December 1967 she was employed by the Nutrition

made up nutrition

Foundation of the Philippines working in nutritional research as
the "Public Health Nutritionist" and assisted the national agencies in the planning and implementation of public health nutrition. She also conducted refresher courses for public health nutrition workers in related fields and assisted in the initial
implementation of applied nutrition programs in the Philippines.
Since March 25, 1968, she has been employed in the "Dietary Department" of a Santa Monica, California, hospital under the direct supervision of the chief dietician.
Pursuant to section 212 (a) (14) of the Act, the Secretary of
Labor has issued a Labor certification for the occupation of nutritionist in code 077.128.
The Matter of Asuncion, 11 I. & N. Dec. 660, holds that a char-

acteristic common to occupations considered to be in the professions is the minimum of a baccalaureate degree. The issue in this
case is to determine if the minimum of a baccalaureate degree is
adequate academic preparation for recognition as a member of
the professions as a nutritionist. The occupation of nutritionist is
defined in Volume I of the Dictionary of Occupational Titles, published by the Department of Labor, as follows:
Organizes, plans, and conducts programs concerning nutrition to assist in
promotion of healt
h and control of disease: Instructs auxiliary medical per
sonnel and allied professional workers on food values and utilization of
foods by human body. Advises health and other agencies on nutritional
phases of their food programs. Conducts in-service courses pertaining to nutrition in clinics and similar institutions. Interprets and evaluates food and
nutrient information designed for public acceptance and use. Studies and analyzes scientific discoveries in nutrition for adaptation and application to
various food problems. May be employed by public health agency and be designated as NUTRITIONIST, PUBLIC HEALTH.

Volume II of the Dictionary of Occupational Titles, sets forth
the training requirements for occupations in the terminal three
digit code group of .128, which includes nutritionists as follows:
Experience in an appropriate field of work, such as nursing, dietetics, public
health, or medical technology, is essential for entry into supervisory and instructive work in these fields. Courses in education or supervisory practices
may be required.

287

Interim Decision #1979
The Occupational Outlook Handbook, also published by the Department of Labor, in its discussion of the biological sciences includes the occupation of nutritionist together with agronomists,
biophysicists, pharmacologists, and others within its orbit, and in
describing the training and qualification requirements for entry
into these fields states: "The bachelor's degree with a major in

one of the biological sciences is adequate preparation for many
beginning jobs" and also states that persons seeking advancement
in professional careers should plan to obtain an advanced degree
and that those without graduate training may be limited to intermediate level positions.
From the above it is evident that a baccalaureate degree in one
of the biological sciences, which includes nutritionists is adequate
academic preparation for entry into the field of work in which
the degree is held.
In the Matter of Stamatiades, 11 I. & N. Dec. 643, the applicant had a Bachelor of Science degree in Biology and it was held
that a baccalaureate degree in biology qualified him as a member
of the professions as a biologist eligible for classification under
section 203(a) (3) of the Act.

Furthermore, counsel presented a. U.S. Civil Service Announcement for an examination for the occupations of Dietician and
Public Health Nutritionist which states:
Applicants for Public Health Nutritionist positions must meet the requirements shown under either A. or B below, or they must have had any timeequivalent combination of A and B.
A. Successful completion of a full 4-year course in an accredited college
or university, leading to a bachelor's degree, provided that such
study included or was supplemenLed by al. least 12 semester hours
in nutrition and foods and 14 semester hours in natural sciences
(chemistry, biology, physiology);

Applicant qualifies under A above. She has a bachelor's degree
in nutrition and has 52 semester hours in foods and nutrition and
27 semester hours in natural sciences predominately in chemistry
and biology.
•

Considering all the factors described above, we find that the petitioner is academically qualified as a nutritionist by reason of
her academic degree. She had two and one-half years working experience as a nutritionist abroad prior to coming to the United
States and is presently employed in a hospital in dietetics, a
closely related, field. The petitioner has satisfactorily established
that she qualifies for recognition as a member of the professions

288

Interim Decision #1979
as a nutritionist. The appeal will be sustained and the petition
granted.
In view of the finding that the appeal be sustained and the petition granted, no purpose would be served by granting counsel's
request for oral argument in support of the appeal.
ORDER: It is ordered that the appeal be sustained and the petition granted.

289