Interim Decision #2170

MATTER OF JANATI-ATAIE

In Deportation Proceedings
A-10761136
Decided by Board January 30, 1972, and April 30, 1972

Decided by Attorney General October 26, 1972
A lawful permanent resident alien who procured the necessary travel documents for himsef and his family and traveled thousands of miles for a visit of a
month with his parents in Iran, made a conscious and intended departure in a
manner which is meaningfully interruptive of his permanent resident status.
Hence, upon return to the United States following his absence of a month to
Iran, such alien made an entry within the meaning of section 101(a)(13) of the
Immigration and Nationality Act upon which to predicate a ground of
deportation.
CrIARGZ;

Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4)]—Convicted of a crime
involving moral turpitude committed within 5 years
after entry and sentenced to prison for a period of 1 year
or more.
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Irving A. Appleman
Appellate Trial Attorney

Jack Wasserman, Esquire
Warner Building
Washington, D.C. 20004

Stephen M. Suffin
Trial Attorney
(Brief filed)

Gordon C. Shelley, Esquire
1117 Forest Street
Reno, Nevada 89502
(Counsel of record)

BEFORE THE BOARD

(January 30, 1972)
The case comes forward on appeal by the Immigration and
Naturalization Service from the decision of the special inquiry
officer that the respondent was not deportable as charged and
that the proceedings be terminated.
The respondent is a 33-year-old married male alien, a native and
citizen of Iran, whose status in the United States, after his
marriage to a United States citizen in 1962, was adjusted to that of
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interim Decision #2170
a permanent resident under the provisions of section 245 of the
Immigration and Nationality Act. The respondent and his wife
have one child, who is a United States citizen by reason of birth in
the United States.
In 1965 the respondent returned to Iran to visit his parents and
he was absent from the United States for a period of 35 days. In
1968 he made a second trip to Iran to introduce his wife and child
to his parents. He was absent from the United States this time for

a period of 30 days.
On May 8, 1968, the respondent was convicted in the Second
Judicial District Court of the State of Nevada in and for the
County of Washoe of two offenses of embezzlement in violation of
the Nevada Revised Statutes 205.300, which crimes were committed during the period of March 1, 1968 to April 10; 1968. As a result
of his conviction he was sentenced to confinement in the Nevada
state prison for a period of three years. He served part of his
sentence but he is now on parole. The record indicates that he has
made restitution of the money embezzled. It is on the basis of this
conviction that he is charged with being deportable under section
241(a)(4) of the Immigration and Nationality Act.
Counsel for respondent argued that on the two above stated
occasions when the respondent returned to the United States after
his visits to Iran he did not make an "entry" into the United
States as the term is delineated in Rosenberg v. Fleuti, 374 U.S.
449 (1963), and therefore the crime for which he was convicted did

not occur within five years after his only entry, which was as a
student on November 30, 1958. The special inquiry officer upheld
this contention and terminated the proceedings. The Service on
appeal contends that the respondent made an entry on each of the
two occasions when he returned to the United States in 1965 and
1968. This is the sole question for our determination.
Entry is defined in section 101(aX13) of the Immigration and
Nationality Act as follows:
The term "entry" means any coming of an alien into the United States, from a
foreign port ... except that an alien having a lawful permanent residence in the
United States shall not be regarded as making an entry into the United States
for the purposes of the immigration laws if the alien proves to the satisfaction of
the Attorney General that his departure to a foreign port or place or to an
outlying possession was not intended or reasonably to be expected by him or his
presence in a foreign port or place or in an outlying possession was not
voluntary.

The court in Fleuti concluded that the "intent" exception con-

tained in the above quoted provision, which became law in 1952,
was for the protection of returning resident aliens and should be
construed as meaning an intent to depart in a manner which could
be regarded as meaningfully interruptive of the alien's permanent
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Interim Decision #2170
residence. The court stated that such intent can be inferred from
the length of time the alien is absent, the purpose of his visit and
whether the alien has to procure any travel documents in order to
make the trip. The court further stated that no one of these
criteria is conclusive and that the operation of these and other
possibly relevant factors remains to be developed by the gradual
process of judicial inclusion and exclusion.
Before the Fleuti decision in 1963 the courts held the view that a
resident alien who returns to the United States after a brief
excursion or after an absence for any period, however brief, makes
a new entry within the meaning of the immigration laws and
therefore is subject to all exclusionary provisions of the statute.
The courts held that the term "entry" included any coming of an
alien from a foreign port into the United States whether such
coming be the first or subsequent one and that the word "entry"
should be construed in its ordinary meaning, i.e., any coming into
the United States, no matter how brief the period the person was
absent.1
It is clear that the Fleuti decision was an attempt by the courts
to ameliorate the harshness of these decisions. In the case before
us now we are concerned very much with the respondent's intent
when he left the United States. Did he intend to effect a meaningful interruption of his permanent resident status by departing in a
manner disruptive of this status? After a careful review of the
recent court decisions and the Board decisions relative to what
constitutes an entry, we hold that the respondent in the instant
case did not make an entry on the two occasions when he returned
to his permanent residence in the United States.
The doctrine enunciated in Rosenberg v. Fleuti has indeed been
the subject of development and interpretation in subsequent cases
before this Board and before the courts. The principal cases are as
follows.
In Matter of Guimaraes, 10 I. & N. Dec. 529 (B IA 1964), we held
that standing alone, the fact that the alien did not intend to
disrupt his permanent residence status was not decisive but that
it was one factor to consider. In that case respondent went for a

one month visit to relatives in Portugal, and we stated that it was
clear that he did intend to depart. the United States in a manner

which was meaningfully interruptive of his status. And, in Matter
of Caudillo-Villalobos, 11 I. & N. Dec. 15 (BIA, 1965), affd 361 F.2d
329 (C.A. 5, 1966), we held that where a permanent resident alien
made numerous short trips to Mexico to appear before a clerk of
'Volpe v. Smith, 289 U.S. 422 (1932); Chew v. Colding, 344 U.S. 590 (1952);
Bonetti v. Rogers, 350 U.S. 001 (1058).

218

Interim Decision #2170
the court to report and sign 'a bond book (he was convicted of a
crime involving moral turpitude in Mexico) it clearly constituted
an intended, meaningful departure from the United States. This
case was decided principally on the basis of the purpose of his visit,
which was not a casual type of thing: This Board has consistently
held that where the purpose is to engage in an unlawful activity
outside the United States, no matter how brief the visit to the
foreign country, this would automatically subject the person to the
consequences of having made an entry when he returns? In the
instant case the respondent's departure, absence and return were
in no way relevant to the underlying ground•of deportability. The
purpose of his trips, which is to be considered under Fleuti, was to
visit his parents.
Fleuti was followed by Zimmerman v. Lehman, ' 339 F.2d 943
(C.A.7, 1965), cert. denied 381 U.S. 925, in which a resident alien
who had been in the United States 'for 30 years made a five or six
day vacation trip to Canada. The court considered that the alien's
long legal residence in the United States, the fact - that he was
married to a United States citizen with three United States citizen'
children, and that he had a home ' and' business in the United
Statec, indicated' that he did not intend to disrupt his permanent
residence, andthus he did not make an entry when he returned.

The Zimmerman case was followed by Bregrn an v. INS, 351 F.2d
401 (C.A.9, 1965) (decided ten months after the Zimmerman case).
in which the alien made visits to England on two occasions, one for
approximately seven or ten days and the second visit for seven
days. The court remanded the case to the Board to reopen with
instructions that further consideration be given to -the alien's
intent at the time of departure, as the abSences standing alone did
not subject the alien to the consequences of having made an entry
upon return. The case was resolved in the alien's favor by the

special inquiry officer. In a decision by this Boa!rd in November of
1965, following the Bregman case, Matter of Quintanilla-Quintanilla, 11 I. & N. Dec. 432 (BIA, 1965), the alien visited Mexico for one
week where he visited relatives and made a religious pilgrimage.
We held that it was clear that he did' not intend to interrupt his
legal residence of many years in the United States. In that case he
,

entered, the United States with his alien registration card, which,

the Board pointed out, must be carried by an alien at all times
anyway. Finally, in Matter of Tafoya-Gutierrez, 13 I. & N. Dec. 342
(BIA, 1969), the alien, after being convicted of a crime in the
2 Mcitter of Corral-F'ragoso, 11 I. &. N, Dec. 478 (BIA, I966); Matter of Wood, 12
I. & N. Dec. 170 (BIA, 1967); Matter of Valencia-Barajas, Interim Decision No.2001

(BIA, 1969).

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Interim Decision #2170
United States and placed on probation, went to Mexico the day
following his conviction and stayed there for six months. We
considered that this length of time plus the facts that he had no
job to return to, and no family or property in the United States,
constituted an intended, meaningful interruption of his permanent
residence status.
All the cases since Fleuti, both before this Board and the courts,
cited above and others, indicate quite clearly that no one factor is

conclusive as to whether there was a meaningful interruption of
the alien's legal, permanent residence status, but they further
indicate that most careful consideration must be given to the
intent factor. The- importance of the "intent" element has been
emphasized in all recent cases regarding entry.
It is our opinion that the respondent in the instant case did not
make an entry when he returned from the two trips to-Iran. The
length of time he was away was a reasonable minimum time in
which to travel to Iran for a visit with his parents. Also, this
Board has never held that the distance from the United States of
the country to which the alien goes is determinative, considering
the swift jet airplane travel available.
It is true that the respondent did have to renew his Iranian
passport, but here again no one factor is controlling. His intent not
to interrupt or abandon permanent residence is indicated by the
following facts: That his trips were of relatively short duration,
that he had both real and personal property here, that he had an
established home here, that he had a permanent steady job to
which he was returning, that his wife and child, both United
States citizens, are living with him here, and that the purpose of
his trips was to visit his parents.
We will affirm the decision of the special inquiry officer terminating the proceedings and will dismiss the Service appeal.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
,

BEFORE THE BOARD

(April 30, 1972)
The Immigration and Naturalization Service has filed a motion
asking that we reconsider and withdraw our order of January 30,
1970; find respondent deportable; and remand to the special
inquiry officer for further proceedings.
The facts, about which there is no dispute, have been fully
stated in the special inquiry officer's order and in our opinion
dismissing the appeal therefrom. It is not necessary, therefore, to
repeat them.
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Interim Decision #2170
We have given most careful consideration to the briefs filed, and
after such consideration we hold that our decision of January 30,
1970 correctly interprets the facts and the law relating to the
matter before us. Accordingly the motion to reopen the proceedings will be denied.
ORDER: It is ordered that the motion be and the same is
hereby denied.
BEFORE THE ATTORNEY GENERAL ON REVIEW

(October 26, 1972)
The Board of Immigration Appeals, at the request of the
Commissioner of Immigration and Naturalization, has referred
this case to me for review pursuant to 8 CFR 3.1(hX1Xiii). The
Board has denied a motion of the Immigration and Naturalization
Service for reconsideration of the Board's order dismissing an
appeal by the Service from the decision of a special inquiry officer
holding respondent not deportable.
Respondent is a native and citizen of Iran. He was admitted to
the United States in 1958 as a student and subsequently his status
was adjusted,. in 1962, to that of a permanent resident on the basis
of his marriage to a citizen of the United States. The respondent
and his wife have one child born in the United States.
He left the United gtates for a visit to Iran for a period of 35
days in 1965, and again visited Iran for a period of 30 days in 1968.
Thereafter in the latter year, he was convicted in a Nevada state
court on two counts of embezzlement committed that year, and
sentenced to confinement in prison for a term of three years.
The instant proceedings were instituted by the Immigration and
Naturalization Service under section 241(a)(4) of the Immigration
and Nationality Act ("the Act"), 8 U.S.C. 1251(aX4), which authorizes the deportability of any alien who
is convicted of a crime involving moral turpitude committed within five years
after entry and either sentenced to confinement or confined therefor ... for a
year , or move. (Emphasis added.)

The term "entry" is defined in section

101(aX13) of the Act, 8 U.S.C.

1101(aX13), to mean
States from a foreign port or place or
from an outlying possession, whether voluntarily or otherwise, except that an
alien having a lawful permanent residence in the United States shall not be
regarded as making an entry into the United States for the purposes of the
immigration laws if the alien proves to the satisfaction of the Attorney General
that his departure to a foreign port or place or to an outlying possession was not
intended or reasonably to be expected by him or his presence in, a foreign, port or
place in an outlying possession was not voluntary.... (Emphasis added.)
any coming of an alien into the United

The issue in this matter is whether respondent's returns to the
221

Interim Decision #2170
United States following his 1965 and 1968 trips to Iran fell within
the portion of the first exception to section 101(aX13) of the Act
that is underlined above. If so, neither of the returns involved an
"entry" within the meaning of section 101(a)(13) and respondent is
not deportable under section 241(aX4).
The Board's affirmance of the Special Inquiry 'Officer's decision
that respondent is not subject to deportation is based on its
reading of Rosenberg v. Fleuti, 374 U.S. 449 (1963), the controlling
precedent here. That case raised the question whether a resident
alien had made an "entry", as defined in section 101(aX13), and
thus could be deported under section 241(a)(1), 8 U.S.C. 1251(aXl),
as being within a certain class of aliens excludable "at the time of
such entry." Fleuti, a Swiss national who had resided here almost
four years, left the United States, stayed in a Mexican border town
for a few hours and returned. The Supreme Court concluded that,
under some circumstances, such an "innocent, casual, and brief'
trip across a border would fall within the first exception to the
definition of "entry" in section 101(aX13). More particularly, the
Court construed what it called this "intent exception" as meaning
"an intent to depart in a manner which can be regarded as
meaningfully interruptive of the alien's permanent residence". 374
U.S. at 462. Among the factors to be considered in passing on the
issue of intent in this context, said the Court, are the length of
time the alien is absent, the purpose of the visit outside the United
States and whether the alien has to procure any travel documents
in order to make his trip "since the need to obtain such items
might well cause the alien to consider more fully the implications'
involved in his leaving the country." Ibid.*
The lower courts, as well as the Board, have had a number of
Occasions to consider the reach of Fleuti. In de Bilbao-Bastida v.
INS, 409 F.2d 820 (C.A. 9, 1969), cert. dismissed, 396 U.S. 802, the
Court held there was an entry where the alien returned after a
two-month trip which included an illegal visit to Cuba. The Court
noted that two months is "considerably longer than the 'couple of
hours' that Fleuti was absent" 409 F.2d at 823. Moreover, it also
took note of the fact that travel documents were necessary for
portions of the trip.
The Board has found that an entry occurred • in each of three
different years when an alien returned after spending a month's
vacation . in Mexico visiting his family. Matter of Abi-Rached, 10 L
& N. Dec. 551 (1964). The Board distinguished Fleuti, stating that
* Since, however, attention had not been previously focused upon the application of §101(a)(13) to the case, the Court viewed the record as inadequate for that
PurPose and remanded the case for further consideration of the issue.

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Interim Decision #2170
one month "does not fall within the Supreme Court references to
the brief absence of one who 'merely stepped across an international border'." (p. 552) Similar reasoning was employed in Matter
of Karl, 10 I. & N. Dec. 480 (1964), where the alien reentered
illegally after a 10-day trip to Mexico, and Matter of Guimaraes, 10
I. & N. Dec. 529 (1964), where a month's trip to Portugal on a
family visit was involved.
On the other hand, the Seventh Circuit has held that a return
from a "harmless, innocent" vacation trip to Canada for five or six
days was not an entry within the meaning of the statute. Zimmerman v. Lehmann, 339 F.2d 943 (CA. 7, 1965), cert. denied, 381 U.S.
925. Similarly, in Yanez-Jacquez v. INS, 440 F.2d 701 (C.A. 5, 1971),
the Fifth Circuit has held that a return from Mexico after a trip of
less than one day was not an entry even though the trip itself had
been for an illegal purpose and was not "innocent."* The Board
took a similar position with respect to a one-week trip to Mexico
for a family visit and religious pilgrimage. Matter of QuintanillaQuintanilla, 11 I. & N. Dec. 432 (1965).
Apparently the only judicial decision where a trip outside this
hemisphere of more than a week's duration was found not to
involve an entry is Itzcovitz -v. Selective Service Board, 447 F.2d
888 (C.A. 2, 1971). The case arose from a long history of dispute
between the alien and both the Selective Service System and the
Immigration and Naturalization Service. The alien sought. a declaratory judgment that a contemplated three-week trip to Israel, to

undertake a training course required by his employer, would not
involve an entry within the meaning of section 101(a)(13) upon his
return to the 'United States. The Second Circuit found that the
alien would come within the Fleuti exception. While noting that
the duration of the proposed trip—three weeks—would be longer
.

than any previously held not to involve entry, the Court observed

that it would still be of short duration. It stressed that the purpose
of the trip would be to fulfill an employer's requirement for
training and would not reflect merely personal reasons. Further,
and perhaps most important, the Court emphasized that the alien
was "not in the posture of having taken the trip in disregard of the
immigration consequences; rather he * * * sought relief in advance" by bringing the declaratory judgment action. 447 F.2d at
894. Taking these factors into account, without reference to the
necessity of obtaining travel documents mentioned in Fleuti, the
Court found on the particular facts that the trip would come
within the intent exception in section 101(aX13).
*See also Vargag-Banitelor v_ INS, 4RR F.2d 127 (C.A.

Davila v. INS, 456 F.2d 424 (CA. 5, 1972).

223

5, 1972); but see Snag-

Interim Decision #2170
In arriving at the decision now before me, the Board applied a
number of the relevant factors that were pointed out in Fleuti and
the later precedents. It characterized the duration of the trips as
"relatively short" and "a reasonable minimum time in which to
travel to Iran for a visit with his parents." It emphasized that the
alien owns property, has a home, a permanent job, and a wife and
child who are United State' citizens. It explained that the purpose
of the trips was to visit family and while it noted that travel
documents were necessary for the trip, it attached little significance to these circumstances. Assessing all these factors, it decided that there was no entry because the alien did not intend to
"interrupt or abandon" his permanent resident status.
I cannot agree with the Board. First, the important factor of
time weighs heavily against the respondent. In Fleuti, the duration of the absence from the United States was a few hours spent
on the other side of an easily-crossed border. In every "no-entry"
case since, except Itzcovitz, it was a period of time substantially
shorter than the 30 and 35 days involved in respondent's trips. In
finding no intent to "meaningfully interrupt" in Itzcovitz, however,
the court emphasized that the alien was before it to obtain prior
judicial construction of the entry provision as applied to him, thus
affirmatively demonstrating that he had no intention to disrupt or
interrupt his residence here. There is no such affirmative action
on respondent's part.
The second factor mentioned in Fleuti is the purpose of the trip.

Except for Itzeovitz, the cases since Fleuti have laid little emphasis on this factor. In Itzcovitz, however, the court found it significant that the three-week trip was an employer's training requirement, not a personal choice of the alien. Here only the element of
choice was present.
Finally, the Fleuti court, noting the ease with which travel
across the Canadian and Mexican borders can be accomplished,
pointed to the necessity of travel documents as a factor in judging
whether there has been an intent to depart in a manner which can
be regarded as a meaningful interruption of permanent residence.
Having to obtain such documents, the Court reasoned, demonstrates a much more conscious intent to depart the United States
than a relatively simple trip over a contiguous border. Here
respondent took steps to renew his Iranian passport prior to one
trip and his wife had to obtain a United States passport and an
Iranian visa. These actions involve far more than a casual "stepping across an international border."
It is not disputed that the respondent had a home, a job and
property in this country or that he had no intention of abandoning
his permanent resident status. The issue, however, is whether he
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Interim Decision #2170
had an intent to depart within the meaning of the statute as
interpreted by Fleuti. It seems to me that an alien who, on more
than one occasion, procures the necessary travel documents for
himself and his family and travels thousands of miles for a stay of
a month or more has made a conscious and intended departure in
a manner which is meaningfully interruptive of the alien's permanent residence in the United States.
Realizing that any order of deportation may have serious
consequences for the alien involved, I am nevertheless obliged to
conclude that the reentry of this respondent into the United
States after his trips to Iran was an "entry" within the meaning of
section 101(a)(13). Any other result would leave little basis for
principled decision as to when a resident alien has entered the
country within the meaning of that provision and when he has
not.
For the foregoing reasons, the order of the Board is vacated and
the case is remanded to the Board for further proceedings consistent herewith.

225


Interim Decision II 2769

MATTER OF WARRACH

In Section 316(b) Proceedings to Preserve

Residence for Naturalization Purposes
A-20614277

Decided by Regional Commissioner March 16, 1979
An Application to Preserve Residence for Naturalization Purposes under section 316(b)
of the Immigration and Nationality Act, 8 U.S.C. 1427(b), does not lie, and will be
denied, where the employing corporation (which is incorporated in the United States)
is the subsidiary of a foreign parent corporation which holds over 51 percent of its
stock. Under these circumstances, the employing corporation is not an American
corporation, but a foreign corporation, having the nationality of the majority
stockholders.
ON BEHALF OF APPLICANT.

D. G. Reese, Manager
Foreign Transfer Programs
Mobay Chemical Corporation
Parkway West
Pittsburgh, Pennsylvania 15205

This case is • before us on appeal from the decision of the District
Director, Philadelphia, Pennsylvania, dated October 13, 1978, denying
the appellant's Application to Preserve Residence for Naturalization
Purposes under 316(b) of the Immigration and Nationality Act, 8
U.S.C. 1427(b). The application was denied upon the ground that the
appellant was not employed by an American firm or corporation,
within the meaning of section 316(b) of the Act.

Upon appeal, the appellant does not take issue with the basis of the

Philadelphia District Director's denial order but urges, instead, that
the appellant's absence from the United States is necessary to the
protection of certain corpOrate property rights located abroad of the
American subsidiary of the foreign parent corporation which employs
the appellant.
The appellant became a lawful permanent resident alien of the
United States on November 12, 1974. He has resided in the United
States for an uninterrupted period of at least 1 year from that date. He
has been employed by the Mobay Chemical Corporation of Pittsburgh,
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Interim Decision # 2769
Pennsylvania, since November 1973. Mobay Chemical Corporation was
incorporated under the laws of the State of New Jersey on October 1,
1971. The corporation is a wholly-owned subsidiary of Bayer A.G. of
West Germany. The appellant was sent to the parent company in
Germany on October 1, 1978, to develop European markets for a
product developed by his American-based employer. His overseas employment will necessitate his presence in Germany from October 1,
1978, to September 30, 1980. Pursuant thereto, the appellant submitted

an Application to Preserve. Residence for Naturalization Purposes,
Form N-470, on May 23, 1978, under the provisions of section 316(b) of
the Act. The application was denied by the Philadelphia District
Director on October 13, 1978, and this appeal results.
Section 316(b) of the Actl requires an alien, if he wishes to preserve
residence for naturalization purposes, to have been physically present
and residing in the United States, after being lawfully admitted for
permanent residence, for an uninterrupted period of at least 1 year
prior to his employment abroad. His employment in this connection
must be by an American firm or corporation engaged in whole or in
part in the development of foreign trade and commerce of the United
States, or a subsidiary thereof more than 50 percent of whose stock is
owned by an American firm or corporation. The appellant must establish, therefore, that he has complied with this statutory requirement if

he is to obtain extended absence benefits covering his employment
abroad by the Mobay Chemical Corporation at the Bayer A.G. in
Germany from October 1, 1978, to September 30, 1980.
The Immigration and Naturalization Service has previously held
that when it is shown that 51 percent or more of the stock of the
employer corporation is owned by a foreign firm, such firm is a "foreign
Sec. 816(b).
Absence from the United States for a continuous period of one year or more during

the period for which continuous residence is required for admission to citizenship shall break the continuity of such residence except that in the case of a person
who has been physically present and residing in the United States after being
lawfully admitted for permanent residence for an uninterrupted period of at least one
year and who thereafter, is employed ... by an American firm or corporation engaged
in whole or in part in the development of foreign trade and commerce of the United
States, or a subsidiary thereof more than 50 per centum of whose stock is owned by an
American firm or corporation ... no period of absence from the United States shall
break the continuity of residence if—
(1) prior to the beginning of such period of employment (whether such period
begins before or after his departure from the United States), but prior to the
expiration of one year of continuous absence from the United States, the person has

established to the satisfaction of the Attorney General that his absence from the
United States for such period is ... to he engaged in the development of such foreign
trade and commerce ..
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Interim Decision #2769
corporation" within the meaning of section 316(b). 2 The fact that a firm
is incorporated under the laws of a state of the United States does not
necessarily determine that it is an American firm or corporation. The
nationality of such firm would be determined by the nationality of
those persons who own more than 51 percent of the stock of that firm.
Since that principal stockholder of Mobay Chemical Corporation is
Bayer A.G., a German corporation, the American-based subsidiary
must be considered a foreign corporation for purposes of preservation
of residence under section 316(b) of the Act. Accordingly, it must be
concluded that the appellant's application does not come within the
purview of section 316(b).

Based upon the foregoing, the appellant has not complied with the
specific statutory requirement that an alien who seeks to preserve
residence for naturalization purposes under section 316(b) must establish that he is employed by an American firm or corporation. There is
no provision of law or regulations which permits a waiver of this
requirement. It is, therefore, concluded that the action of the Philadelphia District Director in denying the application to preserve residence
was proper, and his decision will be affirmed.
ORDER: The decision of the District Director, Philadelphia, Pennsylvania, dated October 13, 1978, denying the application of the above
named to preserve residence for naturalization purposes be and the
same is, hereby, affirmed.

Matter of N—S—, 7 1&14 Dec. 426 (D.D. 1957; C.O. 1957).

287


Interim Decision #1356

MATTER

or

ENOARNADO

In SECTION 248 Proceedings
A-12929527

Decided by Acting Regional Conyminioner May 15,1963
Application for change or nonimmigrant status pursuant to section 249, Immigration and Nationality Act, as amended, from, that of a temporary visitor to
that of a student to pursue a nurse's course in anesthetics is denied since the
applicant as a former exchange visitor had received the maximum period of
training specified for nurses, has not yet fulfilled the foreign residence require.
meat of section 212(e) of the Act, and the grant of her application under the
circumstances would defeat the intent and purpose of the Mutual Educational and Cultural Exchange Act of 1961.

This application is before the Regional Commissioner by appeal
from denial of the application by the District Director of Philadelphia,
Pennsylvania on April 8,'1963 for the following reasons :
The activities scheduled by you consist primarily of employment for room and
board, and your educational program fails to meet the requirements of student
status under the Immigration and Nationality Act. You are, therefore, ineligible

for the change of status requested.

Although the applicant takes issue with the reasons for denial, it is
unnceoseary to debate the matter since the application will be denied
for the reasons discussed below.
The applicant, a native and national of The Philippines, was admitted to the United States in March 1960 as an Exchange Visitor as
presently defined in section 101 (a) (15) (3) of the Immigration and
Nationality Act. She remained until completion of her program in
nursing and departed for Canada in July 1962. She was thereafter
admitted for six weeks as a section 101(a) (15) (B) nonimmigrant
visitor at Buffalo, N.Y. on December 23, 1962 and now applies for a
change of status to that of a section 101(a) (15) (F) nonimmigrant
student to pursue a nurse anesthetist course.

Section 109 of the Mutual Educational and Cultural Exchange Act
of 1961 made several amendments to the Immigration and Nationality
Act. Among these was the creation and incorporation into the Immigration and Nationality Act of a special new nonimmigrant visa
620

Interim Decision #1356
designed to serve solely the purposes of the Mutual Educational and
Cultural Exchange Act of 1961. The House Foreign Affairs Committee in Report No. 1091 (page 16) explained that the main purpose
of this amendment is to reserve the "F" visa for students other than
exchange students and make the new "J" visa available solely to nonimmigrant° selected under the Exchange Program. Section 109 also
emphasizes and places restrictions on the provisions of the law relating
to the two-year-foreign-residence requirement applicable to exchange
aliens and prohibits change in the classification of an exchange visitor
under section 248 of the Immigration and Nationality Act to any other
nonimmigrant classification except one relating to diplomatic or
international organizational status.
To insure that exchange visitors remain in the United States only

so long as is necessary to satisfy their objectives and the intent of the
Act, the Secretary of State has issued regulations to establish general
limits on their stay (22 CFR 68.5(b) ). A two year limit was
specified for graduate nurses, the program area in which applicant
participated for such a length of time.
It was recognized that former exchange visitors might have a bona
fide reason to temporarily return to the United States before fulfilling
their foreign residence requirements, so the Immigration and Nationality Act amendments by Public Law 87-256 left undisturbed their
eligibility for issuance of visas in all nonimmigrant classifications except the one relating to employment and training as defined in section
101 (a) (15) (H) of such Act. However, it was not intended that this
,

-

eligibility would be used as a means to overcome or circumvent the

intent of The Mutual Educational and Cultural Exchange Act of 1961
or be in conflict with its objectives.
The applicant, as a former exchange visitor, is still subject to the
two-year foreign residence requirement of section 212(e) of the Immigration. and Nationality Act. Except for the fact she departed from
the United States for a temporary period, she would be statutorily
ineligible for the change of nonimmigrant status being sought. Likewise, she had already received the maximum period of training specified for nurses in 22 CFR 63.5(b). The grant of her application
under these circumstances, even though it were conceded her proposed
program qualifies for nonimmigrant status, would defeat the intent
and purpose of The Mutual Educational and Cultural Exchange Act
of 1961.
ORDER: The application is denied for the reasons outlined in the
above discussion, and the appeal is dismissed.

621


Interim Decision 40754

MATTER OF FLEUTI

In Deportation Proceedings
A-8382428
Decided by Board December 27, 1965
A finding that respondent was a homosexual at the time of entry in October 1952
and thus deportable under section 241(a) (1), Immigration and Nationality

Act, as one excludable at entry under section 3, Act of February 5, 1917, as a
person of constitutional psychopathic inferiority is not established where the
evidence of 'record reveals that although respondent had an inclination toward
homoiexuality and had engaged in homosexual relations prior to entry, it
appears that he can control the inclination and that he had it under control
before he entered, not having engaged in homosexual relations during the period
December 1951—October 1952, immediately prior to his entry.
CHARGES :

Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable
at entry in 1959 as alien who has been convicted of a
crime involving moral turpitude: sex perversion
(1956).
Lodged: Act of 1952—Section 241 (a) (1) (8 V.S.C. 1251(a) (1) 3—Excludable
at entry In 1050 under section 212(a) (4) of the Act.
as an alien of psychopathic personality.
Act of 1952—Section 241(a) (1) (8 V.S.C. 1251(a) (1)3—Excludable
at entry in October 1952 under section 3 of the Act of
February 5, 1917 as a person of constitutional psychopathic inferiority.
ON BEHALF OF SERVICE :

ON BEHALF OF RESPONDENT :

R. A. Vielhaber
Appellate Trial Attorney
(Oral argument)

Hiram. W. Kwan, Esquire
1011 North Broadway
Los Angeles, Calif. 90012
(Oral argument)

William S. Howell
Trial Attorney
(Brief filed)

In this Service appeal from the order of the special inquiry officer
officer finding respondent deportable on the second lodged charge and
granting suspension of deportation, the Service contends that suspension of deportation should not have been granted. The only charge we

308

Interiin Decision #1754
need consider as a result of the issues raised is the second lodged
charge. We find respondent is not deportable and we shall terminate
proceedings.

The facts, including the lengthy history of the case, have been fully
stated by the special inquiry officer. Briefly, respondent, a 53-year-old
single male, a native and citizen of Switzerland, has, except for a threehour visit in 1959 to Mexico, resided continuously in the United States
since his admission for permanent residence on October 9, 1952. He is
charged by the Service with having been excludable at the time of his
admission in 1952 as a person of constitutional psychopathic inferiority
because he was then a homosexual. Counsel contends the evidence does
not establish that respondent was a person of constitutional psychopathic inferiority or a homosexual.
Under the immigration laws, a person of constitutional psychopathic
inferiority may be one whose history reveals a pattern of anti-social
conduct or conflict with authority or it may be one who is a sex pervert
such as a homosexual (Matter of LaRoohelle, A 7128195, December 1,
1965, Int. Dec. #1538; Matter of Lavoie, Int. Dec. #1481; Matter of
1?—. 9 L & N. Dec. 3931 Matter of 8—, 8 I. R N. Dec. 409; Matter
of P ,7 T. & N. Dec. 258).
On this record it cannot be said that the respondent is a person of
constitutional psychopathic inferiority by reason of his anti-social
behavior or conflict with authority. The record reveals that the respondent has been employed in a responsible position for the past 11
years by one employer who thinks very highly of him, that he has a
-

—

history of devotion to family and interest in others, that ha has sought

psychiatric help and has his problem under control, that apart from
three arrests resulting in convictions on two occasions, he has not been
in trouble with the authorities, that he is well regarded by people who
have known him over an extended period of time, and that a Service
investigation failed to reveal derogatory information other than that
concerning his arrests. The question then is whether the record establishes that respondent was a homosexual at time of his entry in 1952
and therefore then excludable as a person of constitutional psychopathic inferiority; we conclude that it does not.
A statement taken from the respondent in 1959 (Ex. 6) reveals that
he had no homosexual interests while in his teens; that he was about
24 years of age when he began having sexual relations with male
friends, that these relations occurred once a month or less often, that

he had no arrests outside the United States, and that in the period immediately preceding his entry into the United States (December
1951–Ociober 1952 when he lived in Canada) he had no homosexual
relations.
309

Interim Decision #1754
The respondent was convicted on August 27, 1953 for disorderly conduct (lewd and dissolute person), and on March 16, 1956 under section
288 (a) of the Penal Code for committing a homosexual act. An arrest
in 1958 (the charge was dismissed) is explained by respondent as arising out of an accusation that he had broken a light bulb (pp. 136, 138).
A. Government physician with some experience in psychiatric
matters but without formal training in the field testified (on the basis
of an examination made of the respondent in 1959, consideration of
his arrest record and his admissions concerning homosexuality) that
the respondent was a sexual deviate at the time of his entry in 1952 and
therefore then properly classifiable under Public Health Service regulations as a person of constitutional psychopathic inferiority (pp. 9395) . (The witness used not the regulations_ in effect in 1952 but those in

effect at the time of the hearing (p. 89) .)
Respondent's psychiatrist in a letter dated August 10, 1959 (Ex. 8)
stated that the diagnosis in respondent's case was that of "sexual
deviation, homosexuality, now under control." The letter pointed out
that respondent did not frequent homosexual hang-outs, had no evident
interest in youths, manifested no irresponsible trends, and had his
main social contacts with respected members of the community. The
psychiatrist who has counselled the respondent for about 30 hours since
May 1959 testified at the hearing that with knowledge of the respondent's arrest record and as a result of his observation and consideration
of information obtained from the attorneys of both the respondent and
his employer he had concluded that while the respondent in the past
had demonstrated a greater than average capacity for interests in
homosexual relations, he was not a sociopath, a psychopath or a person
of constitutional psychopathic inferiority (p. 108). The witness
testified that respondent had stated to him that he had engaged in
heterosexual relations up to 1959 (p. 112) and that he had found
respondent's sexual drive was not strong.
We do not believe that the Service has borne the burden of establishing that respondent was a homosexual at the time of his entry in
1952. In view of respondent's candor there is no reason to question his
• testimony; this testimony and the statements made by his witness
reveal that he had engaged in homosexual relations prior to his entry,
but that he had also engaged in heterosexual relationships, that he does
not now engage in such relationships, and most important of all; that
during the rather lengthy period immediately prior to his entry, he
had not engaged in homosexual relations. While the record reveals•
respondent had an inclination toward homosexuality, it appears to be
one respondent can control and that he had it under control before he
entered. Therefore, we cannot find that the record establishes that he
310

Interim Decision #1754
was a homosexual at the time of that entry. The second lodged charge
is not sustained and we shall therefore terminate proceedings.
In view of our action, contentions of the Service addressed to the
issue of discretionary relief need not be discussed except that we may
state our agreement with the -views of the special inquiry officer on this
subject.
ORDER : It is ordered that the Service appeal be and the same is
hereby dismissed.
It is further ordered that deportation proceedings'e terminated.

811


Interim Decision #2424

MATTER OF SHON NING LEE

In Deportation Proceedings
A-19856815

Decided by Board August

26, 1975

(1) Although respondent, an applicant for adjustment of status under section 245 of the
Immigration and Nationality Act, as amended, as a nonpreference immigrant, contends
that she does not require a labor certification because she will be supported by her
husband who is a navigator for a foreign airline, she has testified that sbe desires to
work; therefore, she is subject to the labor certification requirement of section 212(a)(14) of the Act, as amended.
(2) Respondent, who has not made an investment in any enterprise nor committed herself
to such an investment, but has merely been examining various business possibilities and
does not appear likely to commit any funds to an investment unless she receives
permanent resident status, is not "actively in the process of investing" within the
meaning of that phrase as used in 8 CFR 212.8(b)(4) and, hence, is ineligible for an
exemption from the labor certification requirement as an investor (Matter of Lai, 15 I.
& N. Doe. 206.

(3) There was no lack of due process for failure of the immigration judge to take cognizance of Service action in analogous cases on an unsettled question of law, namely,
qualification under 8 CFR 212.8(b)(4) for exemption from the labor certification requirement as an investor even though there was no intent to commit any funds to an
enterprise until after permanent resident status had been acquired. At the time of the
immigration judge's decision, there was no substantial body of precedent interpreting
the phrase "actively in the process of investing" of 8 CFR 212.8(b)(4), and the immigration judge was free to reach his own reasoned conclusions regarding its meaning.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8
-remained longer
ON BEHALF OF RESPONDENT:
Jack Wasserman, Esquire
1707 H Street, N. W.
Washington, D.C. 20006

U.S.C., 1251(a)(2)]—NonimmigrantON BEHALF OF SERVICE:
Paul C. Vincent
Appellate Trial Attorney

-

' Attorney of record:
Elmer E. Poston, Esquire
770 Kapiolani Boulevard
Honolulu, Hawaii 96813

In a decision dated March

7, 1974,

439

the immigration

judge found the

Interim Decision #2424
respondent deportable, denied her application for adjustment of status
under section 245 of the Immigration and Nationality Act, but granted
her the privilege of voluntary departure. The respondent, who challenges the denial of adjustment of status, has appealed from that decision. The appeal will be dismissed.
The respondent is a native of Taiwan and a citizen of the Republic of
China. She entered the United States in July of 1971 as a visitor, and
thereafter had her nonimmigrant status changed to that of a student.
She has remained beyond the authorized length of her stay as a student,
and concedes deportability_ The only significant issues in the case concern her application for adjustment of status.

The respondent seeks section 245 relief as a nonpreference immigrant. The immigration judge found that she was not statutorily eligible
for adjustment of status, because she failed to satisfy the labor certification requirements of section 212(a)(14) of the Act. We agree with the
immigration judge.
The respondent has presented alternative arguments with respect to
her admissibility under section 212(a)(14). She initially contends that
she does not need a labor certification because she will be supported by
her husband who is a navigator for a foreign airline. The respondent,
however, has testified that she desires to work (Tr. p. 14). The terms of
section 212(a)(14) therefore apply to her. See Matter of Hoeft, 12 I. & N.
Dec. 182 (Bl A 1966 & 1967).
The respondent secondly argues that she qualifies for the "investor"
exemption from labor certification contained in 8 CFR 212.8(b)(4). The
respondent, however, has not made an investment in any enterprise,
nor has she committed herself to such an investment. Instead, she has
merely been examining various business possibilities, and she does not
appear likely to commit any funds to an investment unless she receives
status as a lawful permanent resident. She is not "actively in the process
of investing," as that phrase is used in 8 CFR 212.8(b)(4). Matter of Lui,
15 I. & N. Etc. 206 (BIA 1975). The respondent does not qualify for the
"investor" exemption from labor certification.
The respondent also advances several due process claims on appeal.

She contends that the hearing was not recorded in accordance with 8
CFR 242.15. The typed transcript contains numerous omissions, evidently resulting from portions of the recording belt being inaudible_ The
respondent, however, has not alleged or shown any prejudice as a result
of these omissions.
The respondent additionally contends that the immigration judge
erred in refusing to grant the respondent's motion to make available
certain allegedly relevant Service records. The respondent desired to
have the immigration judge take consideration of the Service's disposition of 24 "investor" cases, arguably similar to the respondent's case.
440

Interim Decision #2424
The respondent claims that the Service had found these other aliens to
be qualified under 8 CFR 212.8(b)(4) even though they did not intend to
commit any funds to an enterprise until after they had received lawful
permanent resident status.
Although it would not have been improper for the immigration judge
to take cognizance of Service action in analogous cases, the respondent
has not been denied due process. Prior to our decision in Matter of Liza,

supra, the "actively in process of investing" language of 8 CFR 212.8(b)(4) had not received much attention from us. There was no substantial body of precedent interpreting this phrase, and the immigration
judge was free to reach his own reasoned conclusions regarding its
meaning. The law was in a state of flux.
Subsequent to the immigration judge's decision in this case, Matter of
Lai, supra, resolved some of the questions posed by the'phrase "actively
in the process of investing." That decision governs this case and all
similar cases. 8 CFR 3.1(g). From the administrative standpoint, the
law on this question is now settled and will be applied uniformly. The
immigration judge did not act arbitrarily in refusing to follow blindly the
Service's alleged approach on an unsettled question of law. Cf. Matter of
Park, 14 I. & N. Dee. 724 (ITA 1274)_
The decision of the immigration judge was correct. The appeal will, be
dismissed.
ORDER: The appeal is disinissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States' voluntarily
within 31 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

t.

441


Interim Decision #1757

MATTF.R OF YlJEN

In Deportation Proceedings
A-4095143

Decided by Board August 3, 1987
Notwithstanding respondent's full and unconditional pardon by the Governor
Of the state of California for nis narcotics conviction, motion to reopen to

apply for the benefits of section 249, Immigration and Nationality Act, as
amended, is denied since the pardon is ineffective tinder section 241(b) of
the Act to immunize him from deportation on the ground of his narcotics violation Mid once admitted, ne would. be meet to immediate -deportation under
section 241(a) (11) ), nor does it remove the narcotics ground of inadmissibility
under section 212(a) (23).
CinAnaz •
Order: Act of 1952—Section 241 (a) (U) [8 U.S.C. 1251(a) (11)3—Narcotic
law, conviction : California Narcotic Act, selling
morphine.
ON REEZALP or RESPONDENT: Joseph P. Fallon, Jr., Esquire
Fallon, Hargreaves & Bixby
559 Washington Street
San Francisco, California 94111
(Brief filed)
The respondent, a native of the mainland of China and a citizen of
the Republic of China on Formosa, has been found deportable as one
convicted of a narcotic violation pursuant to section 241(a) (11) of
the Immigration and Nationality Act (8 U.S.C. 1251(a) (11)). An
order providing for the respondent's deportation to Hong Kong and
in the alternative to the Republic of China on Formosa was entered
by the special inquiry officer on April 20, 1965. There was no appeal
from this decision.
The respondent now moves for a reopening of the proceedings to
afford him an opportunity to apply for the creation of a. record of
lawful admission for permanent residence under section 249 of the
Immigration and Nationality Act (8 U.S.C. 1259). The special inquiry
officer, in an order dated June 14, 1967, denied the motion. The respondent appeals from this order.
The respondent is a married male alien, 61 years of age, who last

825

Interim Decision #1757
entered the United States through the port of San Francisco, California on August 19, 1948. He entered as a returning resident alien
on this occasion. The respondent originally entered the United States
through the same port. on March 3, 1922 as a merchant's son.
The respondent was convicted in the Superior Court of the State of

California, San Francisco County, on February 24, 1938 for willfully,
unlawfully and feloniously selling a preparation of morphine in violation of the Narcotic Laws of the State of California. He was sentenced to the State Prison for six years and *as paroled on October 28,
1941. He was discharged from parole on April 28, 1942.
The respondent was granted a full and unconditional pardon by
the Governor of the State of California for the narcotic offense on
December 20, 1965. His motion for relief is based upon a claim that

the pardon wipes out his narcotic conviction which in turn removes a

ground of inadmissibility under section 212(a) of the Immigration
and Nationality Act, thereby making him eligible for the creation of

a record of lawful admission for permanent residence pursuant to
section 249 (supra).
The special inquiry officer denied the motion on the ground that
the respondent is ineligible for relief under section 240 (supra) because of the provisions of section 241(b) and section 212 (a) (23) of
the Act. The special inquiry officer reasons that notwithstanding the
fact there is no expressed provision of the Immigration and Nationality Act rendering a pardon ineffective to prevent excludability, the
respondent would immediately upon reentry be deportable under section 241(a) (11) as section 241(b) renders his pardon unavailable
as a waiver of deportability.
Counsel urges error in the conclusion reached by the special inquiry
officer. He argues that the respondent is not inadmissible under section 212(a) (23) of the Act because the restriction found in section
241 ( b) hits no application to an exclusion proceeding. Counsel relies
upon a case decided by the Supreme Court wherein it was stated that
"A pardon reaches both the punishment prescribed for the offense and
the guilt of the offender; and when the pardon is full, it releases the
punishment and blots out of existence the guilt, so that in the eye of
the law the offender is as innocent as if he had never committed the
offense." Eca parts Garland, 71 U.S. 366, 377 (1867). Counsel urges
that under the authority of the Garland case (supra) the respondent's
pardon has the effect of waiving his excludability under section 212
(a) (23) of the Act.
Section 249 of the Iminigration and Nationality Act provides, inter
alia, "A record of lawful admission for permanent residence may...
_

-

be made in the case of any alien . . . if . . . such alien shall satisfy

326

Interim Decision 4t1757
the Attorney General that he is not inadmissible under section 212(a)
insofar as it relates to . . . violators of the narcotic laws . . ." Accordingly, a record of lawful admission cannot be created in behalf
of the respondent unless the pardon granted him by the Governor
of California removes the ground of inadmissibility set forth in section 212(a) (23) of the Act.
We believe that the respondent's ineligibility for relief under section 249 is controlled by the last sentence of section 241(b) which
renders a pardon ineffective in the case of any alien who has been
convicted of a narcotic violation. A grant of permanent residence
under section 249 would not make the respondent immune from deportation because his pardon does not waive a narcotic conviction.
Since the respondent would be subject to immediate deportation under

section 241(a) (11) of the Act once he was admitted and since there
is a provision of section 241(a) which renders an alien deportable if
he was excludable by law at the time of entry, we find no logical reason
to support a conclusion that the pardoning provisions of section 241 (b)
apply to a narcotic ground of excludability without the limitation
which denies the waiver to an alien "who is charged with being
deportable" as a narcotic violator. Under the circumstances, we find
that the respondent is ineligible for the creation of a, record of lawful
admission under section 249 of the Immigration and Nationality Act.
Regardless of the pardon which sets aside the respondent's conviction,
nevertheless he is a "violator" as that term is used in section 249
(supra).
Counsel maintains that that portion of section 241(b) (supra) which
limits the pardoning power of the executive branch of the Government is unconstitutional and not properly the subject of legislative
control. This Board has consistently held that it is not within our
province to pass upon the constitutionality of the statutes we ad4I. & N. Dec. 556 (B.I.A., November 21, 1951).
minister. Matter of
We affirm the order entered by the special inquiry officer denying the
respondent's motion to reopen the proceedings and will dismiss the
appeal.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

327


Interim Decision #2084

MATTER OF MANJOUKIS

In Visa Petition Proceedings
A-19758454

Decided by District Director February 18, 1971
A visa petition to accord beneficiary nonimmigrant classification as the
fiance of the United States citizen petitioner under section 101 (a) (15) (K)
of the Immigration and Nationality Act, as amended, is denied on the
ground that petitioner, who is 14 years of age, is statutorily unable to
enter into a valid marriage since under section 551.51 of the Compiled
Laws of the State of Michigan, where she resides, the marriage of a female under age 16 is void.

Petitioner is a citizen of the United States through birth at Detroit, Michigan, on March 29, 1956. In accordance with Title 8,
Code of Federal Regulations, Part 214.2 (k), a petition was filed
in behalf of the alien beneficiary, a 24 year old native and citizen
of Greece. The petition evidences that neither the petitioner nor
the beneficiary has ever been married; that the petitioner desires
and intends to marry the beneficiary within ninety days after his
arrival in the United States and that the petitioner is in fact a
citizen of the United States.
The Immigration and Nationality Act was amended by Public
Law 91-225 on April 7, 1970 and provided, inter alia, for a new
nonimmigrant classification under section 101(a) (15) as follows :
(K) an alien who is the fiancee or fiance of a citizen of the United States
and who seeks to enter the United States solely to conclude a valid marriage
with the petitioner within ninety days after entry, and the minor children of
such fiancee or fiance accompanying him or following to join him.

Petitioner, supported by her parents, represents that she spent
one year in Greece during 1969 and 1970. During her stay in that
country she met, dated and became enamored with the beneficiary. It is her intention to marry the alien, complete her education,
and in general, assume the duties of a wife. Petitioner's parents
are in complete agreement with the proposed action. It would

seem then that the petitioner does in fact intend to enter into a

705

Interim Decision #2084
marriage with the beneficiary upon his arrival in this country.
The beneficiary has not been examined, however, it appears that
he is similarly disposed.
Having established both the petitioner's and beneficiary's intentions toward marriage and finding no cause to determine that either party has been previously married, the principal portion of
the statute has been satisfied. The remaining question is whether
the petitioner and the beneficiary may enter into a valid marrige.
Since the petitioner is a resident of the State of Michigan, sections 551.1 and 551.51 of the Compiled Laws of the State of Michigan have been examined, and provide, inter alia, that:
Section 551.1—the age of consent for the purpose of marriage shall be 18
years for males and 16 years for females.
Section 551.51—the marriage by a female under age 16 is void.

The petitioner being fourteen years of age is not, by statute,
able to enter into a valid marriage with the petitioner since the
proposed marriage would be void, not voidable, and without rec-

ognition under the laws of the State wherein the petitioner resides
and intends to continue in residence.
In the absence of a finding that the petitioner is able to enter
into a valid marriage with the alien beneficiary within the requisite ninety days after his arrival in the United States, the petition
must be denied.
It is ordered that the petition seeking to classify the alien beneficiary as the fiance of a United States citizen under section
101 (a) (15) (K) of the Immigration and Nationality Act, as
mended, be and is hereby denied.

706


Interim Decision #1618

MATECR

or

Woo

In Deportation Proceedings
A-13693799
Decided

by Board July 12,1968

Respondent, who gained admission to the United States upon the basis of a
knowing and willful false claim to United States citizenship, has not been
"Inspected and admitted" within the mooTone of section 245. Immigration
and Nationality Act, as amended, and, therefore, is statutorily ineligible for
adjustment of status under that section. [Matter of 2 , 9 L & N. Dec. 599,
reaffirmed.]
orazaz:
—

Order: Act of 1952—Section 241(a) (1) ES II.S.O. 1251(a) (1)3—Excludable
at entry under 8 U.S.C. 212(a) [1948 Ed.I—No immigration visa.

' This case is before us on appeal from a decision of a. special
inquiry officer denying the application under section 245 of the
Immigration and Nationality Act, granting voluntary departure
and directing deportation if the respondent fails to depart voluntarily.
The respondent is a 35-year-old unmarried male, native and
citizen of China, who last entered the United States on November
29, 1949 at which, time he secured entry on the claim that he was
a United States citizen. Actually, he has never been a citizen and
he was not in possession of an immigration visa at the time of
entry. The respondent conceded deportability on the charge stated.
in the order to show cause. The special inquiry officer denied the
application for adjustment of status under section 245 on the ground
that the respondent does not meet the statutory requirement concerning inspection at the time of entry. The sole issue is whether
the special inquiry officer's action was correct.
We have carefully considered counsel's contentions in his brief
on appeal. With respect to the citation of Tibka v. immigration
and Natvii,allization Service, 335 F.2d 42 (2d Cir., 1964), and Costello
706

Interim Decision *1618
v. konagration and Naturalisation Service, 876 U.S. 120 (1964),
these cases bear no analogy to that of the respondent,. Although
the matter is not particularly material, we note that counsel asserts
that the respondent presented hitncelf to the immigration officers at
Hong Song whereas the record indicates that he actually appeared
before immigration officers at San Francisco, California, the United
States port of entry.
The important question in this case relates to the language in
section 245 limiting the adjustment of status to an alien "who was
inspected and admitted or paroled into the United States". Counsel
contends that the respondent should be considered as having been
inspected. We fully considered this question in Matter of B—,
L & N. Dec. 599 (1962), and concluded that an alien who gained
admission to the United States by making a knowing and willful
false claim to citizenship has not been inspected as an alien and is
not eligible under section 245. As stated in Matter of F—, 9 I. & N.
Dec. 54, a decision of a Regional Commissioner on September 16,
1960 citing two unreported decisions of this Board, there is an
exception tu this rule where the alien did not willfully make . a false
claim to citizenship and honestly believed that she was a United
States citizen when she applied for admission. However, the record shows clearly that the respondent is not within• this exception
and counsel has not contended otherwise. The respondent was over
18 years of age when he entered the United States on November 29,
1949. It appears from his application under section 245 and from
his testimony at the hearing on February 4, 1966 that his true name
is Gar Hong Woo; that his true father is Chong Lin Woo; that, at
the time of entry, the respondent stated that his own name was Gar
Hong Chin; that he then claimed that his father was Gim Seung
Chin; that the latter was actually his uncle and a United. States
citizen; and that he used the family name Chin instead of his own
family name of Woo in order to enter as the son of a citizen.
Since we are satisfied that the respondent was aware, at the time
of entry, that he was not a United States citizen and that the false
claim of citizenship was made knowingly and willfully, we hold that
his case is governed by our decision in Matter of 8— , supra, and
that he is not eligible for adjustment of status under section 245 of
the Immigration and Nationality Act. Accordingly, the appeal will
be dismissed. . •
ORDER: It is ordered that the appeal be and the same is hereby
dismissed. •

707


Interim Decision #2502

MATTER OF GHONG
In Deportation Proceedings
A-21778806

Decided by Board June 17, 1976
Where the sole basis for respondent's ineligibility for adjustment of status under section
245 of the Immigration and Nationality Act was that an immigrant visa number was not
immediately available to him, and respondent filed a motion to reopen deportation
proceedings at a time when his priority date for the issuance of an immigrant visa was
within 90 days of the visa availability date shown in the Department of State bulletin on
the Availability of Immigrant Visa Numbers, Operations Instruction 245.4(a)(6) was
applicable to his case and required the proceeding to be held in abeyance because under
8 CFR 245.1(g)(1), an immigrant visa is considered available for accepting and processing a section 215 application when a preference or nonpreference applicant (respondent
here) has a priority date on the visa waiting list which is not more than 90 days later
than that shown on the Visa Office Bulletin of the Department of State. See Matter of
Ho, • 15 I. & N. Dec. 692 (BIA 1976).
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant-r emained longer
ON BEHALF OF RESPONDENT: Forseher, Glassman & Elias, Esquires
863 Seventh Avenue
New York, New York 10001

In a decision dated June 30, 1975, the immigration judge denied the
respondent's motion to reopen these deportation proceedings. The respondent has appealed from that•denial. The record will be remanded to
the immigration judge.

The respondent is a native and citizen of Korea. He has been found
deportable under section 241(a)(2) of the Immigration and Nationality
Act as a nonimmigrant who has remained beyond the authorized length
of his stay. Deportability is not now in issue, and the respondent seeks a
reopening of the proceedings for the sole purpose of allowing him to
apply for adjustment of status under section 245.
The record indicates that the respondent desires adjustment of status
as a nonpreference immigrant.He has an approved labor certification

issued pursuant to section 212(a)(14), and the Service does not allege
700

Interim Decision #2502
that he is admissible under any of the subdivisions of section 212(a). The
respondent, however, is not presently eligible for section 245 relief
because a nonpreference immigrant visa is not immediately available to
him.
The record indicates that the respondent's labor certification application was accepted for processing on August 14, 1974. The respondent

therefore has a priority date for the issuance of a nonpreference visa
number as of that date. See 8. CFR245.1(g)(2). .
The respondent's motion to reopen was submitted with the fee paid to
the Service on April 7, 1975. The Department of State bulletin on the
Availability of Immigrant Visa Numbers for April 1975 shows that
nonpreference visa numbers for natives of Korea were only available to
aliens with priority dates earlier than June 1, 1974. The respondent's
priority date of August 14, 1974, was not earlier than the June 1, 1974
"cut-off" date, and .an immigrant visa was not then immediately available to him within the meaning of section. 245.
Nevertheless, in April of 1975, when the respondent submitted his
motion, his priority date was within 90 days of the date appearing in the
visa availability bulletin. The Service therefore would have been willing
to accept and process the respondent's section 245 application in accordance with 8 CFR 245.1(g)(1). The respondent relies on this fact to
argue that he was prejudiced by Service delay in this case, because
nonpreference visa numbers for natives of Korea had become totally
unavailable by the time the immigration judge adjudicated the respondent's motion.
We, however, can perceive no prejudice to the respondent in this
matter. In May of 1975, less than one month after the respondent
submitted his motion to reopen, nonpreference visa numbers became
unavailable to natives of Korea. These visa numbers remained totally
unavailable through January of 1976. In February, March, and April of
1976, nonpreference numbers were available to natives of Korea with
priority dates of earlier than January 1, 1974. The respondent's August
14, 1974 priority date did not qualify. Nonpreference numbers again
became unavailable for Koreans in May of 1976, and continue to remain
unavailable.

As can be seen from this review of the visa availability situation
affecting the respondent, a nonpreference visa number was never immediately available to him on or after the date on which he submitted
his motion to reopen. The respondent has never met the statutory
requirements for adjustment of status during this period of time. His
section 245 application could not have been granted, even if there had
been immediate action on the motion. He can claim no prejudice by any
minimal delay which may have occurred in this case.
The respondent is not presently eligible for adjustment of status. On
701

Interim Dec:.sion #2502
this record, however, his ineligibility appears to stem solely from the
unavailability of an immigrant visa number. We have concluded that the
respondent comes within the terms of Operations Instruction
245.4(a)(6), and we shall remand the record to the immigration judge in
accordance with Matter of Ho, 15 L & N. Dec. 692 also decided today.

In Operations Instruction 245.4(a)(6) the Service has provided for the
holding in abeyance of any case in which an alien has submitted a section
245 applieatiln at a time when a visa number was available to him, but

in which he is precluded from receiving section 245 relief solely because
a visa number is not available at the time the processing of the case is
completed. As we have indicated, an immigrant visa has not been

immediately available to the respondent on or after the date he submitted his motion to reopen. However, during the month the respondent
submitted his motion, his priority date was within 90 days of the date
shown in the applicable visa availability bulletin. In 8 CFR 245.1(g)(1)
the Service states that:
. . . An immigrant visa is considered available for accepting and processing the application Form T e185 if the preference or nonpreferenee category applicant has a priority
date on the waiting list which is not more than 90 days later than the date shown in the
Bulletin or tl..e Bulletin shows that numbers for visa applicants in his category are
current. . . .
-

The Operations Instruction, which is set forth in its entirety in Matter
of Ho, supra, is evidently designed to apply to an alien who submitted
his application for adjustment of status when an immigrant visa was
considered available for accepting and processing the application in
accordance with 8 CFR 245.1(g)(1). The respondent therefore qualifies
under the Operations Instruction and we shall remand the record to the
immigration judge for further action consistent with this opinion.

ORDER: The record is remanded to the immigration judge.

702


Cite as 26 I&N Dec. 880 (BIA 2016)

Interim Decision #3881

Matter of W-A-F-C-, Respondent
Decided December 16, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where the Department of Homeland Security seeks to re-serve a respondent to effect
proper service of a notice to appear that was defective under the regulatory requirements
for serving minors under the age of 14, a continuance should be granted for that purpose.
Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013), followed.
FOR RESPONDENT: Cecil C. Harrigan, Esquire, Washington, D.C.
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Assistant Chief Counsel

Nicholas J. Bolzman,

BEFORE: Board Panel: GREER and KENDALL CLARK, Board Members;
O’HERRON, Temporary Board Member.
GREER, Board Member:

In a decision dated March 21, 2016, an Immigration Judge terminated
the removal proceedings against the minor respondent after determining
that the Department of Homeland Security (“DHS”) had not properly
served him with the notice to appear. The DHS has appealed from that
decision. Although the notice to appear was not served in accordance with
the regulatory requirements for serving minors under the age of 14, we find
that the DHS should have another opportunity to effect proper service. The
decision of the Immigration Judge will therefore be vacated, the removal
proceedings will be reinstated, and the record will be remanded to the
Immigration Judge for further proceedings.
The respondent is a native and citizen of El Salvador who was 12 years
old when he entered the United States on or about June 16, 2015. It was
determined that he had entered as an “unaccompanied alien child.” On the
same day the respondent entered the country, the DHS issued a notice to
appear, charging him with inadmissibility under section 212(a)(6)(A)(i) of
the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012), as
an alien present in the United States without being admitted or paroled.
At a removal hearing on February 17, 2016, the respondent moved to
terminate the proceedings, asserting that service of the notice to appear was
deficient. The DHS opposed the respondent’s motion. The Immigration
880

Cite as 26 I&N Dec. 880 (BIA 2016)

Interim Decision #3881

Judge granted the motion and terminated the proceedings after concluding
that the DHS had not complied with the regulatory requirements for serving
the notice to appear on a minor who is under the age of 14.
On appeal, the DHS does not dispute that its service of the notice to
appear was deficient under the regulations. Instead, it argues that the
Immigration Judge erred in terminating proceedings without first requiring
the respondent to demonstrate that he was prejudiced by the manner in
which the notice to appear was served. The DHS also contends that any
defect in service was cured when it re-served the respondent’s mother and
counsel with the notice to appear. The respondent agrees with the
Immigration Judge’s decision to terminate proceedings.
It is undisputed that the DHS did not properly serve the notice to appear
on the respondent, who was 12 years old when service was attempted.
According to 8 C.F.R. § 103.8(c)(2)(ii) (2016), “[I]n the case of a minor
under 14 years of age, service [of the notice to appear] shall be made upon
the person with whom the . . . minor resides.” 1 The DHS should therefore
have served the notice to appear on the person with whom the respondent
resided at the time of service. 2 See id.; see also Matter of E-S-I-, 26 I&N
Dec. 136, 141 (BIA 2013) (“[I]f an alien is detained—in DHS custody or in
any other type of institution—service on the head of the institution or his or
her delegate satisfies the regulation.”); Matter of Amaya, 21 I&N Dec. 583,
585 (BIA 1996) (finding that service “upon the director of the IES facility
in which the [12-year-old] respondent was detained” complied with the
regulatory requirement that “service shall be made upon the person with
whom . . . the minor resides” (quoting 8 C.F.R. § 103.5a(c)(2)(ii) (1996))).
1

The regulation further provides that “whenever possible, service shall also be made on
the near relative, guardian, committee, or friend.” 8 C.F.R. § 103.8(c)(2)(ii). With
respect to minors served when they were between the ages of 14 and 18, the regulations
do not require that the notice to appear also be served on an adult with responsibility for
the minor. See Matter of Cubor, 25 I&N Dec. 470, 472−73 (BIA 2011). The United
States Court of Appeals for the Ninth Circuit has held that if an alien under the age of
18 is released into the custody of an adult, the notice to appear should be served on that
adult as well as the minor alien. Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1157–62 (9th
Cir. 2004). However, we declined to follow that ruling in Matter of Cubor, relying
instead on the contrary decisions of other circuit courts. Moreover, this case involves the
requirements for serving a minor under the age of 14 and arises within the jurisdiction of
the Fourth Circuit.
2
The Immigration Judge correctly noted that it is unclear on this record where the
respondent resided when the DHS attempted service on June 16, 2015. The notice to
appear does not list an address for the respondent, and a form from the Office of Refugee
Resettlement in the Department of Health and Human Services merely reflects that the
respondent was located at “IES Driscoll” when he was released from custody on July 8,
2015—several weeks after the notice to appear was allegedly served.

881

Cite as 26 I&N Dec. 880 (BIA 2016)

Interim Decision #3881

While the regulations do not explicitly require service on the parent or
parents of an alien in all circumstances, they do require such service, if
possible, “when it appears that the minor child will be residing with her
parents in this country.” Matter of Mejia-Andino, 23 I&N Dec. 533, 536
(BIA 2002). In this case, there is no signature on the notice to appear
reflecting that service was made on either the respondent or another person.
Because the DHS’s service of the notice to appear was deficient, the
question before us is whether it should have another opportunity to effect
proper service. The DHS asserts that the Immigration Judge’s decision
does not recognize that it cured the defective service by mailing a copy of
the notice to appear to the respondent’s counsel and mother in February
2016—2 days after the respondent first raised the issue of improper service.
The respondent does not address whether his mother or his counsel
received the notice to appear in his appellate brief. However, the record
reflects that the DHS offered to personally serve the respondent’s parent at
his removal hearing in February 2016. Because the DHS made requests
and efforts to re-serve the notice to appear and the respondent appeared
with counsel at both of his master calendar hearings, this case is
distinguishable from Matter of Mejia-Andino. That decision involved
service of the notice to appear on a 7-year-old minor who did not appear at
two hearings. We upheld the Immigration Judge’s termination of
proceedings because there was no indication that the DHS made any effort
to serve the notice to appear on the respondent’s parents, who apparently
lived in the United States. Matter of Mejia-Andino, 23 I&N Dec. at
535−37.
Considering the circumstances of this case, we conclude that the
Immigration Judge should have granted a continuance to give the DHS an
opportunity to effect proper service. In Matter of E-S-I-, 26 I&N Dec. at
145, which addressed the requirements for service on individuals who lack
mental competency, we stated that “[i]f the DHS did not properly serve the
respondent where indicia of incompetency were either manifest or arose
during a master calendar hearing that was held shortly after service of the
notice to appear, the Immigration Judge should grant a continuance to
give the DHS time to effect proper service.” The Immigration Judge in this
case distinguished Matter of E-S-I- because, at the time of service, the
DHS knew the respondent’s age, which is not a “variable condition” like
competency. Matter of E-S-I-, 26 I&N Dec. at 144. He therefore decided
that the DHS should not be afforded an opportunity to re-serve the notice to
appear on the respondent.
We are unpersuaded by this reasoning. In Matter of E-S-I- we noted
that the DHS was aware of indicia of the respondent’s incompetency at the
time of service since the respondent in that case had been transferred into
882

Cite as 26 I&N Dec. 880 (BIA 2016)

Interim Decision #3881

DHS custody from a psychiatric hospital. Id. at 137, 144–45. We
nevertheless held that remand was warranted because proper service
had not been established, stating that the Immigration Judge should grant
the DHS a continuance to properly serve the respondent on remand, if
appropriate. Id. at 145–46; see also Matter of Hernandez, 21 I&N Dec.
224, 228 (BIA 1996) (holding that an Immigration Judge can and should
take corrective action short of termination when the Government violates
its regulations regarding service of the charging document). See generally
Matter of M-J-K-, 26 I&N Dec. 773, 777–78 (BIA 2016) (discussing
continuances for service of the notice to appear under Matter of E-S-I-).
Considering the circumstances in this case, we conclude that the DHS
should be afforded another opportunity to effect proper service under
Matter of E-S-I-. We will therefore vacate the Immigration Judge’s
decision, reinstate the removal proceedings, and remand the record to the
Immigration Judge. On remand, the Immigration Judge should assess
whether the DHS re-served the notice to appear in accordance with
8 C.F.R. § 103.8(c)(2)(ii) and, if warranted, determine whether the DHS
should be permitted to re-serve the notice to appear. 3
ORDER: The decision of the Immigration Judge is vacated, and the
removal proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

3

Given our disposition of this case, we need not reach the DHS’s argument that the
improper service of the notice to appear did not prejudice the respondent.

883


Interim Decision #1759

MATTER OF TSACONAS

In Deportation Proceedings
A-13452135
Decided by Board Jay 7, 1967
Notwithstanding she alleges that she misrepreoontea her statue to guile edmieRion
to the United States, respondent, who is charged with deportability under
section 241(a) (2), Immigration and Nationality Act, in that after admission
as a nonimmigrant temporary visitor for pleasure she remained longer than
'authorized, does not come within the purview of acetion 241(f) of the Act
since fraud or misrepresentation is not essential to the establishment of the
ground of deportation involved.
Cr z:

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 12513—Nonimmigrant (temporary visitor for pleasure)—remained longer.
ON BEHALF or RESPONDENT Melvyn E. Stein, Esquire
One North LaSalle Street
Chicago, Illinois 60602
:

This case is before us on appeal from a special inquiry officer's
order of June 9, 1967, granting the respondent the privilege of voluntary departure, but providing for her deportation from the United
States to Greece, on the charge contained. in the order to show cause,
in the event of her failure to so depart. The appeal will be dismissed.
The record relates to a 38-year-old divorced female alien, a native
and citizen of Greece, who last entered the United States on or about
October 14, 1965. She was then admitted as a nonimmigrant temporary
visitor for pleasure for a period until April 13, 1966. She has remained
here since that date without authority.
The foregoing establishes the respondent's deportability on the
charge contained in the order of show cause. This was conceded in the
course of the hearing before the special inquiry officer and is unchallenged hem This aspect of the case needs no further discussion.
The special inquiry officer has already granted the respondent the
privilege of voluntary departure. Suffice it to say, in this connection,
the record before us supports said official's action in this respect.

332

Interim Decision #1759
The respondent declined to name a country of deportation, and
was informed that her deportation would be directed to Greece if it
was required by law. She was then granted a period of ten days,
until June 5, 1967, as provided by regulation, within which to apply
for temporary withholding of her deportation to Greece, under the
provisions of section 248(h) of the Immigration and Nationality Act
(8 U.S.C. 1253). Counsel and the respondent were advised that if no
application for such relief was filed within the alloted time, the hearing-would be considered closed and the decision would then be made
on the record. No application for relief under section 243(h) of the
Immigration and Nationality Act has been received to date. Additional
comment on this aspect of the case, accordingly, is unnecessary.
WA find no merit in the respondent's claim that these proceedings
should be terminated because respondent did not have seven days from
the date of receipt of the order to show cause instituting these proceedings until the hearing thereunder, which was scheduled for March 6,
1967. The reason is that the record shows that this deficiency was
brought to the attention of the special inquiry officer at the original
hearing, and that he forthwith granted the respondent a continuance
of the hearing until March 22, 1967. The record further shows that
the continued hearing was not held until April 6, 1967. Under these
circumstances, it is clear that the respondent had a period far in excess
of seven days in which to be made aware of the acts and conduct on her
part the Service alleged to be in violation of law, and more than an
adequate opportunity to prepare her defense against them.
We likewise reject the respondent's contention that her case falls
within the purview of section 241(f) of the Immigration and Nationality Act (8 U.S.C. 1251), which stipulates that the provisions relating
to the deportation of aliens who seek to procure, or have procured,
visas or entry into the United States by fraud or misrepresentation
shall not apply to an alien "otherwise admissible at the time of entry"
who is, inter alia, the parent of a United States citizen? The fallacy of
the respondent's argument lies in the fact that the order for her deportation is not based upon any charge of fraud or misrepresentation. It
is simply predicated on the fact that, after her admission as a nonimmigrant temporary visitor for pleasure, she remained here for a longer
period of time than authorized. Hence, the ground of deportation selected and relied upon. by the Government in the administrative proceedings was not fraud or misrepresentation, and the respondent has
not the power to substitute for her own convenience a. ground not inThe respondent apparently contends that she is saved from deportation because she is, by her own admission, an alien who misrepresented her status to
gain admission to the United States.

833

Interim Decision 41759
volved in the deportation proceedings against her. In other words, the
respondent's alleged intent to commit fraud, which she now claims, is
not germane here because it is not essential to the establishment of the
ground of deportation. involved.
Finally, we find unavailing the last reason given by the respondent
for the taking of the appeal, to wit;
The Respondent, since seeing she has lawful permanent resident children,
should have been afforded the opportunity to cross-examine various witnesses
"which the Government wished (sic) to present which may have a bearing on the
Respondent's future eligibility for an immigrant visa.
Not only is this contention premature, but it is also purely speculative
in nature. It relates to a matter which may never arise. If it does, then
the issue thus raised is properly for the consideration of the appropri-

ate American Consul abroad. It is dearly outside the scope of the jurisdiction of the special inquiry officer and this Board.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

334


. Interim Decision #1422

Man= or Russo
In. Visa Petition. Proceedings
A-12354818
Decided by Board January 8, 1965
Sinen.g United States citizen who voted in a municipal election in Italy on
March 30, 1946, has the burden of proving duress by a preponderence of the
evidence (section 349(e), Immigration and•Nationality Act, as amended;
17.8.0. 1481(c)), and petitioner tailed to carry her burden, her voluntary
voting in said municipal "election resulted in expatriation under section
401(e), Nationality Aet of 1940.
-

The District Director, New York District, certified to ns his order
denying petitioner's application to have her married daughter, an
Italian national, given the preference available to the daughter of a:
United States citizen under the quota; the District Director held that
the petitioner had lost United States citizenship when she voted in
Italy in 1946. Petitioner claims that she did not lode her citizenship
because her voting was under duress and was without knowledge of
her United States eitizpivtliip No change will be made in the District Director's order.
Petitioner, born in the United States on June 4, 1908, was a citizen
of both the United States and Italy at birth. After the death of her
father in 1910 her mother took her to Italy where she resided until
May 8, 1961 when she entered the United States as an alien for permanent residence. Petitioner married in Italy in 1932, the beneficiary was born the following year. •
The evidence as to voting in Italy is based primarily upon admissions made at various times by the petitioner. The earliest admissions—in a questionnaire the petitioner completed on January 22,
1054 before a vice consul of the United States at Naples, Italy to
obtain a United States passport—revealed that she voted in municipal elections on March .30, •1946 and May 25, 1952, in national elections on June 2, 1946, April 18, 1948 and June 7, 1953, and that she
voted without knowing that she should not vote. The vice consul
executed a Certificate of Loss of Nationality on February 3, 1954
stating.that petitioner had lost United States nationality by voting
12.

Interim Decision #1422
in a political election in Italy on March 80, 1946 (section 401(e),
Nationality Act of 1940; 54 Stet. 1168).
Other admissions were made at a hearing before a naturalization
examiner on May 18, 1963. Petitioner testified she had furnished

truthful information concerning voting to the American consul in
Naples (pp. 6-8), that she then could recall the dates of voting but
cannot now (pp. 7-8, 11) and that she does not remember whether
she voted in 1946. Somewhat inconsistent with the testimony that
she cannot recall the dates of voting, she testified that she voted on
the dates shown in the questionnaire (pp. 6-8, 15). She stated she
was not permitted to read the questionnaire before she signed it (pp.
6-7). The Service officer in charge at Naples, Italy has furnished
the information that evidence of voting which was available when
petitioner made her statement to the vice consul, has been destroyed.

The fact that the petitioner voted at the times shown, in the ques -tionnaire is deemed established by the admissions in the questionnaire, her present admission that she voted and that she told the vice
consul the facts about her voting, the certificate of loss of citizenship
executed by the vice consul and the presumption of official regularity
existing in connection with its execution (Vaeoctro v. Bentsen, 267
F.2d 265 (5th Cir., 1959) ).
Petitioner claims she was forced to vote. She explained her statement of 1954 (about voting without knowing she should not vote)
meant that she did not want to vote, but that she did because she was
told to vote to help democracy in Italy (pp. 7,11-13). She said that
before she voted in 1948, a high church official, stating that he had
received a telegram from the American consul urging all American
people to vote, told the congregation of which she V751-4 a part to vats
in order to prevent the Communists from gaining power and taking
away their children; the church official threatened those who did not
. vote witli excommunication (pp. 13-14). She stated that after she
voted in one election the pastor of the church suggested that she vote
in tie other? (p. 6). Petitioner submitted a letter dated January 25,
1962 from a church official who stated that in 1948, he "insisted" that
the petitioner' vote ,becauie it was her moral responsibility. Petitioner testified' that in municipal elections there was no pressure to
participate (pp. 14-15).
The contention that duress was present in the petitioner's voting
cannot IA considered a defense as to any voting after December 24,
1952 (she voted on June 7, 1953) ; the provisions of section 349 (b)
of the Act, 8 1481 (b) (as the hearing officer has fully pointed
out) raise a conclusive presumption in circumstances such as exist

liZ

Interim Decision #1422
here that expatriation occurred as of June 7, 1953 (Matter of C—, 9
I. & N. Dec. 41; Matter of C—S—, 9 I. & N. Dec. 670).
If it were necessary to consider petitioner's acts of voting prior to
• December 24, 1959 the conclusive presumption would not apply. Ac
to voting prior to December 24, 1952 the rule as to duress depends
upon whether the issue as to loss of citizenship was raised before or
after September 26, 1961. In this proceeding, the issue was raised
after September 26, 1961 by the filing of the visa petition on October
16, 1961; the governing rule is that the person claiming duress has
the burden of•proving the claim by a preponderance of the evidence
(section 349 (0) of the Act, 8 U.S.C. 1461(u)). Petitioner failed to
carry her burden: voting in a municipal election is expatriatory (Bisereglia v. Acheson, 196 F.2d 865 (D.C. Cit.:, 1952)) and by her own
admission her voting in the municipal elections was voluntary, and
in this case, expatriation occurred in 1946 under section 401(e) of the
Nationality Act when the first expatriative act occurred.
The petitioner's claim that when she voted she did not know she
was a United States citizen need not be considered for loss of United
States citizenship is conclusively establisiled by reason of her voting
in 1953. Moreover she voted in 1952 and in 1953 after. she had
learned she was a citizen of the United States and before she had
been informed that she had lost United States citizenship. The voting in 1952 was in a local election where duress was not involved; the
voting in 1953 was in an election where duress cannot be offered as a
defense. It is not necessary to discuss the contention further- .Roger
v. Patokoski, 271 F.2d 858 (9th Cir., 1959) which concerned the commission of acts of expatriation by a. person who at the time had not
known that he had a. right to United States citizenship is therefois
not pertinent. We may add for the record that it is our belief that,
even prior to 1950, the petitioner must have known she was a United
States citizen. She wanted to come to the United States but gave as
reasons only the fact that she had no money or that her birth mad-.
cate was not available—documentary grounds were not advanced;
furthermore, even before 1940, there was a question in her mind as to
whether or not she was entitled to a United States passport (pp.
2-10.
The fact that petitioner did not intend to lose United States citixessip by voting does not save her from the consequences of voting
(Peires v. Brownell, 356 U.S. 44 (1958) ; Acheson v. Marilee SuniyukV,190 F.2d 897 (9th Cir., 1951), certiorari denied. 342 U.S. 942).

ORDER: It is ordered that no change be made in the order of the
District Director.
14