Interim Decision #2584

MATTER OF CABUCANA

In Visa Petition Proceedings
A-21267608
Decided by Board May 20, 1977
(1) The beneficiary, who was born in the Philippines in 1964, was adopted by petitioner in
1973 pursuant to a decree issued by a family court in the State of Hawaii. The District
Director denied the visa petition to classify the child as an immediate relative under
section 201(b) of the Immigration and Nationality Act on the ground that the adoption
decree was not entitled to recognition because the beneficiary had never lived in
Hawaii.
(2) A Hawaiian court has jurisdiction to grant adoption of a child residing outside Hawaii,
and such decree will be recognized for immigration purposes. See Pascual v. O'Shea,
421 F. Supp. 80 (1976). Matter of Dela Cruz, Interim Decision 2470 (BIA 1976) overruled.
(3) Notwithstanding that the adoption decree is valid, there is no evidence in the record
that beneficiary had resided with either the petitioner or her spouse for the two-year
period rfArpireti under section 101(b)(1)(E) of the Act. In the circumstances, the petition
must be denied because the petitioner has failed to sustain that the beneficiary is her
adopted child for purposes of the Act.
ON BEHALF OF PkaTrIONER: Walter S. Kirimitsu, Esquire
531 Avocado Street
Wahiawa, Hawaii 96786
BY: Milhollan, Chairman; Maniatis, and Appleman, Board Members

The United States citizen petitioner applied for immediate relative
status for the beneficiary as her adopted child under section 201(b) of the
Immigration and Nationality Act. The District Director denied the
petition on June 21, 1976, and the petitioner has appealed from that
denial. The appeal will be dismissed.
Under section 201(b) of the Act a child of a United States citizen may
qualify as an immediate relative and be admitted to the United States
without regard to the numerical limitations of the Act. The term "child"
is defined in the Act and, under section 101(b)(1)(E), includes a child
adopted while under the age of 14 years if the child has thereafter been
in the legal custody of, and has resided with, the adopting parent or
parents for at least two years.
The beneficiary was born in the Philippines on November 10, 1064.
The petitioner, the beneficiary's paternal aunt, has submitted a decree
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Interim Decision #2584
issued by a family court in Hawaii showing that the beneficiary was
adopted by the petitioner and her husband in 1973.
The District Director denied the petition on the ground that the
adoption decree is not entitled to recognition. He reasoned that, because
the beneficiary has never been in Hawaii, the court lacked jurisdiction to
issue the decree.
Subsequent to the District Director's decision, however, the United
States District Court for the District of Hawaii rendered its decision in
_Pascual v. O'Shea, Civil No. 76- 0081 (D. 1. lawaii, September 80, 1076),
reversing an order of the Board dealing with the same issues which are
before us now, namely, whether a Hawaii state court has jurisdiction to
grant adoption of a child residing outside Hawaii and whether the
adoption is entitled to recognition under the immigration laws. In Pascual the court held that the state court had jurisdiction to grant the
adoptions and ordered that the visa petitions be approved. Accordingly,
we hold that the adoption decree in the present case is entitled to
recognition. The Board's derision in Matter of Dela Cruz, Interim Decision 2470 (BIA 1976), also reversed in Pascual v. O'Shea, is overruled.
Although it appears as though the legal custo dy requirement of section 101(b)(1)(E) has been satisfied, the record contains no evidence that
the beneficiary has resided with either the petitioner or her spouse for
the two-year period required by the Act. As a consequence, we conclude
that the petitioner has failed to sustain her burden of establishing that
the beneficiary is her adopted child for the purpose of the Act. See
Matter of Brantigan, 111. & N. Dec. 493 (BIA 19466). The result reached
by the District Director was correct and the appeal will be dismissed.'
ORDER: The appeal is dismissed.
-

We note that the record contains evidence that the beneficiary may qualify for
immediate relative status as an orphan under section 101(b)(1.)(F) of the Act. Inquiries in
this regard should be made to the Service.
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Cite as 26 I&N Dec. 555 (BIA 2015)

Interim Decision #3834

Matter of Ulices MONTIEL, Respondent
Decided April 17, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Removal proceedings may be delayed, where warranted, pending the adjudication of a
direct appeal of a criminal conviction. Matter of Avetisyan, 25 I&N Dec. 688 (BIA
2012), followed.
FOR RESPONDENT: Andrew K. Nietor, Esquire, San Diego, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jeffrey Lindblad, Assistant
Chief Counsel
BEFORE: Board Panel:
GREER, Board Members.

ADKINS-BLANCH, Vice Chairman; WENDTLAND and

GREER, Board Member:

The parties have filed a joint motion to administratively close this case
because a direct appeal of the respondent’s criminal conviction remains
pending. The motion will be granted and the proceedings will be
administratively closed.1

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who was admitted to
the United States as a lawful permanent resident on March 14, 2008. He
was convicted by jury on November 14, 2013, in the United States District
Court for the Southern District of California, of unlawful transportation of
aliens in violation of section 274(a)(1)(A)(ii) of the Immigration and
Nationality Act, 8 U.S.C. § 1324(a)(1)(A)(ii) (2012). On December 16,
1

The parties filed the motion to administratively close the proceedings before the
period for supplemental briefing expired. We denied the motion at that stage. However,
supplemental briefing is now complete on the question whether finality is required under
the definition of a “conviction” in section 101(a)(48)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2012). In accordance with the parties’
request, we conclude that administrative closure is appropriate at this time, without
further addressing the issue whether a conviction must be “final” to support removability.

555

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Interim Decision #3834

2013, he filed a direct appeal of his conviction with the United States Court
of Appeals for the Ninth Circuit. United States v. Montiel, No. 13-50609
(9th Cir. filed Dec. 16, 2013). The respondent’s criminal appeal remains
pending at this time.
On June 10, 2014, the Immigration Judge held that the respondent was
convicted of an aggravated felony, as defined in section 101(a)(43)(N) of
the Act, 8 U.S.C. § 1101(a)(43)(N) (2012), and that notwithstanding the
pendency of a direct appeal, the conviction was final for immigration
purposes. The Immigration Judge therefore ordered the respondent’s
removal from the United States under section 237(a)(2)(A)(iii) of the Act,
8 U.S.C. § 1227(a)(2)(A)(iii) (2012). The parties have filed a joint motion
for administrative closure and submitted supplemental briefs in support of
their positions regarding the question whether a conviction is final for
immigration purposes during the pendency of a direct appeal.

II. ISSUE
The issue before us is whether the removal proceedings should be
administratively closed at the parties’ request because a direct appeal of the
respondent’s criminal conviction, which would subject him to removal,
remains pending.

III. ANALYSIS
Administrative closure is used to temporarily remove a case from an
Immigration Judge’s active calendar or from the Board’s docket. Matter of
Gutierrez, 21 I&N Dec. 479, 480 (BIA 1996), overruled on other grounds,
Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). The administrative
closure of a case does not result in a final order. It is merely an
administrative convenience that allows cases to be removed from the
calendar in appropriate situations, subject to being recalendared at a later
date. Matter of Amico, 19 I&N Dec. 652, 654 n.1 (BIA 1988).
In Matter of Avetisyan, 25 I&N Dec. at 695, we held that in determining
whether administrative closure of proceedings is appropriate, an
Immigration Judge or the Board should weigh all the relevant factors
presented in the case. These factors include, but are not limited to, the
following: (1) the reason administrative closure is sought; (2) the basis for
any opposition to administrative closure; (3) the likelihood the respondent
will succeed on any petition, application, or other action he or she is
pursuing outside of removal proceedings; (4) the anticipated duration of the
closure; (5) the responsibility of either party, if any, in contributing to any
current or anticipated delay; and (6) the ultimate outcome of removal
556

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Interim Decision #3834

proceedings (for example, termination of the proceedings or entry of a
removal order) when the case is recalendared before the Immigration Judge
or the appeal is reinstated before the Board.
Whether the pendency of a direct appeal warrants administrative closure
will depend on the particular circumstances of each case. See generally
Matter of Cardenas Abreu, 24 I&N Dec. 795, 797−98 (BIA 2009)
(discussing the history of case law holding that, for immigration purposes, a
conviction must be final, meaning that no direct appeal is pending),
vacated, Abreu v. Holder, 378 F. App’x 59 (2d Cir. 2010).2 Under the
circumstances presented in this case, we conclude that administrative
closure is warranted as a matter of administrative efficiency. 3 See id. at
802–03 (Grant, concurring) (recognizing the interests that are served by
holding proceedings in abeyance, if warranted, until resolution of a pending
direct appeal of right).
Regarding the Avetisyan factors, the parties have filed a joint motion
seeking administrative closure to await resolution of the direct appeal of the
respondent’s conviction, which is pending in the Ninth Circuit.4 Although
we do not engage in a retrial to determine the likelihood of the respondent’s
success with his criminal appeal, we consider the circumstances of the
appeal to be relevant. In this regard, we note that the respondent was
convicted as a result of a jury trial, rather than on the basis of a guilty plea.
Moreover, his direct appeal concerns the validity of the underlying
conviction, as opposed to the sentence imposed.
We recognize that the Ninth Circuit, in whose jurisdiction this case
arises, has held that finality is not required for a conviction, as defined by

2

We distinguish a direct appeal from cases involving a pending post-conviction motion
to collaterally attack a conviction, which does not generally have a bearing on finality.
See, e.g., Matter of Ponce De Leon, 21 I&N Dec. 154, 156–57 (BIA 1996, 1997; A.G.
1997) (recognizing that the availability of post-conviction motions or other forms of
collateral attack does not affect the finality of a conviction for immigration purposes
unless the conviction has been overturned).
3
A continuance is another mechanism to consider in these situations, particularly in the
context of a detained alien’s case. Factors similar to those relevant for administrative
closure may also be relevant in determining whether a case should be continued to await
the outcome of a pending direct appeal. See generally Matter of Hashmi, 24 I&N Dec.
785 (BIA 2009) (identifying factors relevant to the underlying purpose for the
continuance request).
4
We note that a delay would not be warranted where a direct appeal is based on a
facially frivolous argument. See Matter of Sanchez Sosa, 25 I&N Dec. 807, 815
(BIA 2012) (recognizing that a continuance should not be granted where it is being
sought “as a dilatory tactic to forestall the conclusion of removal proceedings”).

557

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Interim Decision #3834

section 101(a)(48)(A) of the Act, to support a charge of removability.5
Planes v. Holder, 652 F.3d 991, 996 (9th Cir. 2011). Nonetheless, should
the respondent prevail on the direct appeal of his criminal conviction, he
would not be subject to removal on that basis.

IV. CONCLUSION
Considering the circumstances in this case, we conclude that the
removal proceedings should be administratively closed. If either party
wishes to reinstate the proceedings, a written request for reinstatement may
be made to the Board. The Board will take no further action in the case
unless a request is received from one of the parties.
ORDER: The parties’ motion is granted and the removal proceedings
are administratively closed.

5

There is a split of authority over whether the right to file a direct appeal of
a criminal conviction must be exhausted or waived for the conviction to be
“final” under the statutory definition of a “conviction” for immigration purposes.
See, e.g., Orabi v. Att’y Gen. of U.S., 738 F.3d 535, 541–42 (3d Cir. 2014) (holding that a
“conviction” under section 101(a)(48)(A) of the Act does not support a charge
of removability during the pendency of a direct appeal as of right).

558


Interim Decision #1972

MATTER

or SURZYCKI

In Deportation Proceedings
" A-13968349
Decided by Board April 23, 1969
Since section 243(h) of the Immigration and Nationality Act, as amended,
does not encompass restraints on freedom of speech of an alien in his native country, a native and citizen of Poland who contends that if, upon return to his native country, he expresses himself freely, he would incur the
displeasure of the authorities and probably be subjected to some sort of
punitive treatment, has not established thereby that he would be subjected
to persecution within the meaning of section 243 (h) of the Act.
CHARGE:

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant—exchange visitor—remained longer.
ON BEHALF OF RESPONDENT:
Norman von Rosenvinge, Esquire
21 Beacon Street

ON BEHALF OF SERVICE:
It A. Vielhaber
Appellate Trial Attorney

Boston, Maaaachueetta 02108

(Brief filed)
The proceedings come forward on appeal from the decision of

the special inquiry officer who found respondent deportable as
charged, and ordered his deportation to Poland after .respondent
declined to apply for the privilege of voluntary departure. Respondent's application for temporary withholding of deportation
to Poland pursuant to section 243 (h) of the Immigration and Nationality Act was denied. He concedes that he is deportable as
charged.
The respondent is a 33-year-old married male alien, a native
and citizen of Poland, who was admitted to the United States on
or about October 10, 1964 as an exchange visitor and was authorized to remain until October 9, 1967. He remained in the country
thereafter without permission.
The special inquiry officer in his decision reviewed at length all

of the evidence presented to show that respondent feared persecu261

Interim Decision #1972
tion if he should return to his native country. He came to the
conclusion, as do we, that respondent has not sustained the burden of proving that he would be subjected to persecution because
of his race, religion or political opinion and is entitled to relief
from deportation under section 243 (h) of the Act.
It is not necessary for us to again set forth in detail the evidence submitted. We conclude that as far as the record shows this
respondent is in no different position than any other Polish person in Poland, and there is nothing here to show he would in any
way be singled out for persecution as claimed. He is a highly educated person, and his studies in the United States were, for the
most part of his stay here, financed by the Polish authorities. He

came here as an exchange visitor under the Soviet and Eastern
European Exchange Program of the United States Department of
State. The object of this program is that those persons selected
come to the United States for advanced studies and research and
then they are to return to their countries where such education
will be of benefit to their nations.
The gist of respondent's argument is that there now prevails in
Poland an anti-intellectual climate in which the Polish authorities
discourage and take a dim view of scientists and other educated
intellectuals who try to speak freely in their chosen fields, where
such speech contravenes the political philosophy of the government. The respondent contends that in view of this anti-intellectual climate, which has intensified recently, if he went back to
Poland and expressed himself freely, he would incur the displeasure of the authorities and probably be subjected to some sort of
punitive treatment.
There is no indiciation that the Congress enacted section
243 (h) of the Act with a view of guaranteeing an alien freedom
of speech in the country of his nativity, and if he is- not afforded
this by his government, then it could be considered that he was
being persecuted. We do not interpret section 243(h) as covering
this situation. -There are many totalitarian governments in the
world today which do not brook dissent of any nature. We do not
hold that an alien who feels compelled to espouse in his native
country beliefs which are looked upon with disfavor by his government is thereby being persecuted if the government acts
against him.
The respondent has not met the burden of proving that he

would be singled out as an individual and persecuted upon his re-

262

Interim Decision #1972
turn to his native country. Accordingly, we will dismiss the appeal.
ORDER: It is ordered that the appeal be and the same is

hereby dismissed.

263


Interim Decision #1464

MATTER OF

Ur

In Deportation Proceedings
A 10221792
-

Decided by Board May 5, 1966
Respondent, a ,28-year-old native of the Philippines and citizen of China, who
entered the United States as a student,. has resided here a few months in
excess of 8 years during which he receiv'ed the degrees of Bachelor of
Science and Master of Science In physics, and who has no family ties in this
country, has not established that his deportation would result in "extreme
hardship" within the meaning of section 244(a) (1), Immigration and Natloirsay Act, as amended, because of the mere fact that he would suffer some
economic hardship. Mt Matter of Hwang, Int. Dec. No. 1218.]
CHARGE:

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Remained
longer, student.

- The case comes forward pursuant to certification by the special
inquiry officer of his order dated February 10, 1965 finding the re-,
spondent deportable on the charge stated in the order to show cause
and granting him the,priyilego of voluntary departure in lieu of deportation with the further order that if he failed to depart when
and as required he be deported to the Republic of the Philippines,
alternatively to the Republic of China on Formosa.
The record relates to a native of the Republic of the Philippines,
a citizen of China, 28 years old, single, who was admitted to the
United Statei at Honolulu, Hawaii on or about September 3, 1956
as a student and was authorized to remain in that status until September 2, 1957. Subsequently, he was granted voluntary departure
in yearly increments conditioned on his maintaining studies or
educational assignment and on May 15, 1968 a first prefetence visa
petition was approved and he was granted permission to remain
in the United States until May 14, 1964, further extensions being
conditioned upon his remaining the beneficiary of an unexpired
visa petition. However, on April 3, 1964 he left 'the employment
159

Interim Decision. #1464
of the first preference visa petitioner and has since remained in
the United States.. Deportability on. the charge stated in the order
to show cause is established.
The respondent has established good ' moral character for the
period he has resided in the United States. He attended universities
where he was awarded a degree of Bachelor of Science in Physics
in September 1960 and a degree of Master of Science in Physics on
December 15, 1962. At the University of Minnesota he was employed as a technician and engineer trainee and after graduation
he worked for UNIVAC for 14 months at a salary of $160 per
week. The respondent is now attending classes at Stanford Uni-

not for credit, but merely as an auditor. He has done parttime work as a Russian translator and is presently living on his
versity,

savings which total about $1800. His parents, also of the Chinese
race, were naturalized in the Philippines in 1956 or 1957 and
although he apparently derived Philippine citizenship through his
parents' naturalization, he has had some difficulty in securing a
Philippine passport because of a question of identity. The respondent has five brothers and seven sisters in the Philippines, all of his
brothers being employed. He is in possession of a valid passport of
the Republic of China on Formosa.
The quota for the Philippines is oversubscribed and respondent
cannot obtain an immigrant visa for that reason. He testified his
deportation would result in hardship to himself because he would
find it difficult to adjust to a new environment outside of the United
States and he would have limited opportunities in his field of

academic training. He believes that he might obtain work as a
teacher.
The respondent has applied for suspension of deportation under
section 244(a) (1) of the Immigration and Nationality Act as
amended. As one of the necessary qualifying ingredients, he must
establish that his deportation would, in the opinion of the Attorney
General, result in extreme hardship to himself since he has no
qualifying relatives in the United States.
The respondent is 2• years of age and has resided in the United
States only since September 1956'or a few' months in excess of eight
years. He was. about nineteen and a half years old when he came
to this country as a student intending to return to his native country
at the completion of his echication. However, while in the United
Stites he underwent a change of mind and now desires to remain
in this country. All of his family ties are in the Philippines where
his father was formerly engaged in the textile business and whore
his fivebrothers are all employed. In additions he has seven sisters
• 160

Interim Decision #1464
there. Apparently, the-respondent left 1TNIVAC, the company
which petitioned for his. first preference because of difficulties as the
result of undue pressures on him. He is presently doing part-time
work as a Russian transistor. Bearing in mind that the respondent.
entered the United States as a student, that he has no family ties
in this country and•all of his ties are in the Philippines, the mere
fact that the respondent would 'suffer some economic hardship does
not constitute "extreme hardship" so as to qualify him for the discretionary relief of suspension of deportation. Upon the record it
is believed that voluntary departure is the maximum relief which
should be granted.
The special inquiry officer has referred to Matter of Hwang, int.
Dec. No. 1319, and to certain decisions rendered by him in the
belief that he was bound by the guide lines laid clown in Matter
of Hwang, Matter of Hwang does not lay down any hard and
fast rules. It states that the personal privation contemplated in a
situation characterized by "extreme hardship" within the meaning
of the statute is not a definable term of fixed, and inflexible content
or meaning but necessarily depends upon the facts and circumstances
peculiar to each case. It was pointed out that the term "extreme
hardship" admits of varying degrees of severity; the limits of personal deprivation and economic detriment contemplated in the term
"extreme hardship" cannot be stated in a hard. and fast rule: It•
was conceded that it could be found that the return of an alien who
was admitted as a foreign student to the country whence he came
might result in extreme hardship within the meaning of section
21.4(a) (1), as amended, in certain circumstances, but the absence of
substantial equities arising from the fact that after admission as a
student and the residence in the United States for approximately
eight years did .not. affirmatively establish extreme hardship.
Thus it can be seen that we did not preclude an alien who entered
the United States as a nonimmigrant - student from a grant of suspension of deportation pursuant to section 244(a) (1) where there
existed in a case equitable factors which resulted in a finding of
exceptional hardship within the meaning of the statute. A close
examination of the cases selected by the special inquiry officer discloses the existence of other favorable and equitable factors which
resulted in a finding of exceptional hardship? Each case must be
1 1n one of the eases there was long residence of 25 years; in another, the
-

alien bad spent her formative years in the United States, all of her family ties
and meaningful associations were in the United States and she was no longer
familiar with the dialect which was the prevailing language of the island to
which she would return; in still another case the alien bad not resided in her
native country, China, since she was 17 years old.

161

Interim Decision #1464
analyzed on the basis of the factual details present therein and each
case must be considered on its own merits in making a finding of ex-

ceptional hardship. The line which may separate a finding of extreme hardship nray be at times close, but it is-based. upon a study
. of the circumstances of each case and the presence of substantial
equities.
•
ORDER: It is ordered that the order of the special inquiry officer
dated February 10, 1965' ibe- and the same is hereby approved.

162


Interim Decision #2750

MATTER OF CAVAZOS
In Deportation Proceedings
A-22365153
Decided by Board January 8, 1080

(1) While an Immigration and Naturalization Service Operations Instruction binds
neither an immigration judge nor the Board, the Service policy manifest therein may
appropriately be considered by the immigration judge and the Board in exercising
discretion.
(2) Notwithstanding evidence establishing preconceived intent, an application for adjustment of status should as a general rule be granted in the exercise of discretion in
the case of an immediate relative or other specified alien who under Operations
Instruction 245.3(b) and 8 C.F.R. 242.5(a)(2) and (4) could be granted voluntary
departure until invited to appear before a United States consul to apply for an
immigrant visa.
(3) Where a finding of preconceived intent was the only negative factor cited by the
immigration judge in denying the respondent's application for adjustment of status as
the beneficiary of an approved immediate relative visa petition and no additional
adverse matters are apparent in the record, and where significant equities are
presented by the respondent's United States citizen wife and child, a grant of adjustment of status is warranted as a matter of discretion.
CHARGE:

Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)}—Nonimmigrant—remained
longer than permitted
ON BEHALF OF RESPONDENT:
ON BEHALF or SERVICE:
Laurier B. McDonald, Esquire
Richard M. Casillas
P.O. Drawer 54
Trial Attorney
Edinburg, Texas 78539
BY:

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

This case is before us on appeal from the December 21, 1977, decision
of an immigration judge, rendered in reopened deportation proceedings, which denied the respondent's application for adjustment of
status pursuant to section 245 of the Immigration and Nationality Act,
8 U.S.C. 1255. The appeal will be sustained.
The respondent, a 26-year-old native and citizen of Mexico, entered
the United States as a nonimmigrant visitor for pleasure on July - 1,

215

Interim Decision #2750
1976, upon presentation of a border crossing card, Form 1-186, issued to
him in 1972.' On that same date, he married his United States citizen
spouse whom he had known for a considerable period of time prior to
their marriage; a ehild was born in the United States in 1974 as a result

of that relationship.
A.t the initial deportation hearing, the respondent conceded deportability as a nonimmigrant who remained longer than permitted
and was granted the privilege of voluntary departure in lieu of deportation. Prior to the expiration of the authorized period of voluntary
departure, the respondent filed the present motion to reopen for consideration of his application for section 245 relief predicated upon his
status as the beneficiary of an approved immediate relative visa petition. The immigration judge granted the respondent's motion to reopen the deportation proceedings, found him statutorily eligible for
adjustment at the reopened hearing that ensued, but denied him the
relief sought in the exercise of discretion on the ground that he had
entered the United States in July of 1976 with a preconceived intent to
remain permanently.
We find that the record, while providing some support. for the
immigration judge's findings, is ambiguous at best with respect to the
respondent's actual intentions at the time of his entry. We need not

dwell on that question, however, in light of our conclusion that the
adverse factor of preconceived intent, if it existed, has been overcome

by the equities presented.
We note with approval present Immigration and Naturalization
Service policy, as reflected in Service Operations Instruction 245.3(b),
regarding the discretionary grant or denial of an adjustment application. Operations Instruction 245.3(b) provides that notwithstanding
evidence establishing an intent on the part of 'a nonimmigrant to
circumvent the normal visa process, i.e., a preconceived intent to
remain permanently at the time of entry as a nonimmigrant, an
adjustment application should not be denied in the exercise of discretion where substantial equities are present in the case. Under that
Instruction, substantial equities are considered to exist if the facts are
such that the alien would be granted voluntary departure until he is
invited to appear at a United States consulate to apply for an immigrant visa. The Code of Federal Regulations, 8 C.F.R.
242.5(a)(2)(vi)(A) and 245.5(a)(3),2 authorizes the District Director in
I The respondent, who resided in a community adjacent to the United States border
prior to his July 1976 entry, testified that he had traveled to and from this country
frequently, "[miore than one hundred times," (Tr. p. 7) and never experienced

any

difficulties with the immigration authorities.
The subject matter of the foregoing regulation was previously covered by Service
Operations Instruction 242.10(0(6) and 242.10(b)(1).

216

Interim Decision #2750
his discretion, to grant voluntary departure to an immediate relative
of a United States citizen,3 prior to the commencement of his deportation hearing, until such time as the United States consul abroad is
ready to issue an immigrant visa.
The Service's internal Operations Instruction 245.3(b) binds neither
the immigration judge nor the Board; moreover, under the express
terms of the regulation which gives effect to the Instruction, whether
an alien may benefit from the Instruction as one who would be granted
extended voluntary departure is a discretionary determination to be
made by the District Director prior to the commencement of the
hearing. We believe, however, that the policy manifest in the Instruction, i.e., to favor immediate relatives seeking a grant of adjustment of
status by essentially negating preconceived intent as an adverse factor
in meritorious cases, may appropriately be adopted by the immigration judge and the Board in exercising discretion on applications for
relief under section 245.
The finding of preconceived intent was the only negative factor cited
by the immigration judge in denying the respondent's adjustment
application and no additional adverse matters are apparent in the
record. A significant equity is presented by the respondent's United
States citizen wife and child. We conclude that a grant of adjustment
of status is warranted in this case and will accordingly sustain the
appeal and remand the record to the immigration judge for further
processing of the application for adjustment of status filed by the
respondent and for the entry of an order not inconsistent with this
opinion. In light of our holding, we need not reach the alternative
arguments advanced by the respondent on appeal.
ORDER. The order of the immigration judge is vacated and the
record is remanded for further proceedings in accordance with the
foregoing opinion.

a See 8 C.F.R. 242.5(a)(3) for other classes of aliens eligible for a prehearing grant of
extended voluntary departure.

217


Interim Decision #1608

'km= or

Purses

In Visa Petition Proceedings
A-12814567
Decided by Board Arno

30, 2966

Since the adoption on 3anuary 21, 1983 of beneficiary (born out of wedlock in
1047) by her natural father and his wife by decree of the Municipal Court
of Saint Croix, Christiansted, Virgin Islands, in accordance with Title 10,
section 482, of the Virgin Islands Code, when the beneficiary was under 18
years of age, constitutes an acknowledgement and legitimation pursuant to
said section of the Virgin Islands Code, beneficiary is a legitimated child
within the meaning of section 101(b) (1) (0), Immigration and Nationality
Act, as amended. • ' •

The case comes forward on appeal from the order of the District
Director, San Juan, Puerto Rico dated April 6, 1966 den 'ying the
visa petition for the reason that at the time of the adoption, the
beneficiary had passed her 14th birthday and, therefore, could not
be considered as the petitioner's child within the definition of the
Immigration and Nationality Act.
The petitioner, a native of Antigiia , British West Indies, a naturalizod citizen of the United States, lies filed a petition to classify
the status of his alien relative for issuance of an immigrant visa. The beneficiary is a native and citizen of Antigua, British West
Indies, born September 2, 1947, female.
The beneficiary is the adopted daughter of the petitioner. There
has been submitted a certified copy of a decree of the Municipal..
Court of Saint Croix Christiansted, Virgin Islands showing that
the beneficiary and herI brother, Sylvanus, were adopted by the petioner and his wife, Eileen, whom he had married on May 81, 1955,
on January 21, 1968. The adoption_ papers indicate that the children
were residing with the petitioner in the Virgin Islands. There is
also contained in the Inovin
. g papers a consent to the adoption executed by the natural. mother of the children who declares that they

were born out of wedlock and that their natural father is Samuel
It. Peters, the petitioner. In addition, two ministers under date of
691

Interim' Decision #1608
January 11, 1966 have certified that the two children have resided
with the adoptive parents for the past three years.
The visa petition was denied by the District Director for the reason that the beneficiary, at the time of the adoption, was over the
age of 14 years and could nob be considered an adopted child within,

the definition of Section 101 (lb) (1) (E) of the Immigration and
Nationality Act. Counsel, while taking issue with the denial of the
visa petition on the adoption ground, also asserts that the beneficiary .
is a legitimated child. He relies upon the provisions of Title 16,.
Virgin Islands Code, Section 462, which provides:
The father of an illegitimate child, by pubncly acknowledging it as his own,
with the consent of his wife, if he is married, into his farmer, and otherwise

treating it as if it were a legitimate child, thereby adopts it as such; and such
child is thereafter deemed for all purposes legitimate from the time of its
birth.
The revision note in the Code explains that section 462 is new
and is designed to ameliorate the rigors of the common law with
respect to illegitirnates and that wording of the section is based
upon section 230 of the Civil. Code of California. Section 230 of
the California Civil Code provides that the father of an illegitimatechild, by publicly acknowledging it his own, receiving it as such,.
with the consent of his wife, if he is married, into his family, and
otherwise treating it as if it were his legitimate child, thereby
adopts it as such; and such child is thereupon deemed for all .purposes legitimate from the time of its birth. The slight difference•
in language is not regarded as significant.
Section 230 of the California Civil Code has been construed ae
a statute of legitimation.1 The birth Certificate of the beneficiary
does not name the father. Counsel in his brief alleges, without
corroboration or documentation, that in a child support action,
brought against the 'petitioner by the natural mother on or about
1951, the petitioner made public acknowledgement to the court that
the beneficiary (age 4) was his daughter and that St. John's Police
Court, St. John, Antigua, West Indies, after the public acknowledgement, entered a support order.
However, it is believed unnecessary to remand the case for
evidence of this support order. The beneficiary was adopted by
the petitioner and h is wife on January 21, 1968 when the beneficiary
was under the age of 18 years. This legal adoption conformed with
the requirements of the Virgin Islands Code, Title 16, section 462 .
set out above. This adoption .constitutes an acknowledgement and
1 Ballantine v. De Riles, 226 F.2d 623 (9th Cis, 1955) affirmed 851 TIS 5TO,
rehearing denied 352 VS 907.

692

IRteriiii'Deolsion #1608
legitimation pursuant to Title 16, Virgin Islands Code, section 462. 2

It is concluded that under Title 16, section 462, Virgin Islands
Code, the beneficiary has been legitimated while under the age of '
18 years and qualifies as a child within the meaning of section 101
(b) (1) (C) of the Immigration and Nationality Act. The appeal
will be sustained.
ORDER: It is ordered that the appeal be and the same is hereby
sustained and that the visa petition be approved.
'See Matter of Palaefo, Int. Dee. No. 1470; See also Matter of Dar , 6
L & N. 825.
—

693


Interim Decision 4E1639

MATTER OF TOM

In Deportation Proceedings
A-12642213

Decided by Board September 14, 1966
Application for classification as a refugee under the proviso to section 203(a)
(I), Immigration and Nationality Aet, as amondad by P.T, 8O -238 and for

adjustment, of status pursuant to section 245 of the Act, is denied since a
record of permanent residence as a refugee under section 203(a) (7) can
be created only in accordance with the procedures established for section 245 and respondent, who, upon a false claim to 'United States citizenship, entered this country without inspection, is statutorily ineligible for
the benefits of section 245.
Onessz:
Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)1—Entered
without inspection.
The respondent, a native and citizen of China, appeals from an
order entered by the special inquiry officer on March 16, 1966 which
directs his deportation to 'the Republic of Chini on a charge laid
under section 241(a) (2) of the Immigration and Nationality Act
(8 U.S.C. 1251 (a) (2)) as an alien who entered without inspection. .
The appeal is directed to a denial of the respondent's application
for status as a permanent resident alien under the provisions of section 245 and 203 (a) (7) of the Immigration and Nationality Act
(8 U.S.C. 1255 and 1153(a) (7)). The respondent, a male alien, 32
years of age, last arrived in the United States at the port of San
Francisco, California on November 4, 1951. He was admitted upon
the false claim that he was a. citizen of the United States. Deportability on the charge stated in the order to show cause is conceded.
The respondent's application for suspension of deportation was
granted on October 14, 1961. Congress, however, took adverse action to the order and the proceedings were reopened to permit further application for discretionary relief. The respondent at the reopened hearing of March 16, 1966 applied for status as a permanent

798

Interim Decision #1639
resident alien and for his classification as a refugee pursuant to
section 203(a) (7) of the Immigration and Nationality Act. The
special inquiry officer denied the application on the ground that the
respondent is not eligible for the discretionary relief he seeks.
Section 203(a) (7) of the Immigration and Nationality Act (8
U.S.C. 1153(a) (7)) provides in pertient part that a 7th preference
classification may be granted an alien found to be refugee from a
communist controlled country if such aliens "have been continuously physically present in the -United. States for a period of at least
two years prior to application for abutment of status ..
(Emphasis supplied) It is contemplated that such adjustment of status
will be made under section 245 of the Immigration and Nationality
Act. Senate Report No. 748, 89th Cong. 1st Sess. at page 22 (1965).)
Section 245 of the Act precludes the adjustment of status of aliens
who are not "inspected and admitted or paroled in the United
States." It is clear, therefore, that an adjustment of status under
section 203(a) (7) must be accomplished within the procedures of
section 245 and it has been so held. Tai Hui (815729160) v. Esperdy,
66 Civ. 316 U.S.D.C. S.D., N.Y., May 4, 1966.
Counsel 'argues that there is nothing in section 203(a) (7) of the
Act which requires the adjustment of a refugee's status pursuant
to the provisions of section 245 of the Act. Counsel also argues
that section 203(a) (7) makes no reference to the manner in which
an eligible refugee alien entered the.United States. He maintains
that the regulations which implement the adjustment of a refugee

alien's status creates additional substantive requirements for eligibility separate and apart from the requirements contained in section 203(a) (7) of the Act.
The argument of counsel is fully answered in the opinion of
Judge Levet when he said in the Tai Mui case (supra) ". . . the Act
requires that adjustment of status under section 203(a) (7) be accomplished. within the procedures of section 245 . . . the disputed
regulations are, in my opinion, valid . . . the inclusion of the words
`adjustment of status' in the proviso to section 203(a) (7) does no
more than refer to the process of application; the presence of those
words does not create any new substantive rights."
An appropriate order dismissing the appeal will be entered.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.
1 8 CPR 245.4 provides "the provisions of section 240 of the Act and this
Part:shall govern the adJnohntnt of statue provided for in the proviso to
section 209(a) (7)."

799


Interim Decision #1785

MATTER OF 'TISZA!

In Visa Petition Proceedings
A-14570254
Decided by Board August 81, 1967
Since beneficiary, who was born in Mexico at a time when her father was a
diplomatic officer representing the Japanese government in that country, is a
"special immigrant" as defined in section 101(a) (27)(A), Immigration and
Nationality Act, as amended, anti Is not chargeable to any quota or subject to
any numerical restriction affecting the issuance of a visa to her, a visa petition
filed by her husband to accord her preference classification under section
208(a) (2) of the Act is denied.
Os BEHALF or PETITIONER Hiram W. Kwan, Esquire
:

1011 N. Broadway, Suite 203
Los Angeles, California 90012
(Brief filed)

The District Director at Los Angeles, California, has denied the
petition of the appellant to classify status of his wife under section
208 (a) (2) of the Immigration and Nationality Act. From that decision the petitioner through counsel has appealed to this Board.
The beneficiary was born in Mexico City, Mexico, at a time when
her parents were living in Mexico, and when her father was representing the Japanese Government as a diplomatic officer. Her birth took
place on the Japanese Embassy grounds in Mexico City, Mexico. It is
the contention of the appellant that because of the above circumstances

of birth, the beneficiary is properly chargeable to the Japanese quota
and hence requires, and is entitled to, status under section 208(a) (2)
as the spouse of a legal resident of the United States. Appellant bases
her contention on the provisions of section 202(b) (4) and 22 CFR
42.54. It is counsel's position that these sections fail to state or even to
imply that the country of birth of the alien has to be a country outside
the Western Hemisphere. He further contends that the clear intention
of the above stated sections is to be applied uniformly regardless of
where the person is born. The appeal will be dismissed.
Section 202(b) (4) states in pertinent part: "For the purposes of

this Act the foreign state to which an immigrant is chargeable shall
be determined by birth within such foreign state except that . . . .
(4) an alien born within any foreign state in which neither of his

425

Interim Decision #1785
parents was born and in which neither of his parents had a residence
at the time of such alien's birth may be charged to the foreign state of
either parent." [Emphasis supplied] Paragraph (4) is then one of four
exceptions to the method described in part (b) of section 202 for ascertaining quota chargeability. Section 202 in general speaks of quotas
and numerical limitations set forth in order to control the issuance of
visas for persons chargeable to quota countries.
Counsel for appellant contends that 22 CFR 42.54 relates to and
supports his argument. Section 42.54 states:
Exception for alien born in foreign state of which neither of his parents was a
resident. An alien who was born in a foreign state in which neither of his parents
was born, and in which neither of his parents had a residence at the time of his
birth, may be charged to the foreign state of either parent as provided in section
202(b) (4) of the Act, the parents of such an alien shall not be considered as
having acquired a residence within the meaning of section 202(b) (4), if at the
time of such alien's birth within the foreign state they were merely visiting
temporarily or were stationed there under orders or instructions of an employer,
principal or superior authority foreign to such foreign state in connection
with the business or profession of the employer, principal or superior authority.

Under 22 CFR the particular section referred to comes under the
heading of "FOREIGN STATE CHARGEABILITY", and is obviously relevant only to persons who are chargeable to a quota. We see
no reason to apply it to the present case where the beneficiary is not
chargeable to any quota by reason of the fact that she was born in
Mexico City, Mexico. We hold that under section 101(a) (27) of the
Immigration and Nationality Act the beneficiary is a "special immigrant". She is a native of a country of the Western Hemisphere and
hence is not chargeable to any quota or subject to any numerical restriction affecting the issuance of a visa to her. No preference then is
needed far the issuance of such a visa. Quite obviously, the intention
of section 101(a) (27) of 611e Act was to assist native born persons of
independent countries in the Western Hemisphere to immigrate to the
United States. For this Board. to now hold that a person such as the
beneficiary, born under such circumstances, is required to await the
allocation of a number to her, would result in an injustice to others in
similar situations and would be, in effect, a. distortion of the clear intent of Congress in its legislative processes. We hold that the appellant's spouse is a special immigrant and needs no preference in order to
secure an immigrant visa. In this particular case it may well be that our
ruling will deprive the appellant's wife of the benefits of section 245
of the Immigration and Nationality Act. This, however, is but a slight

burden compared with the absurd effect that our ruling to the contrary would have. Accordingly, the following order will be entered.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
426


Interim Decision #2200

MATTER

OF

PEREZ-ECHEVERRIA

In Deportation Proceedings
A-19998844

Decided by Board May 7,-1978
Notwithstanding he possesses the requisite familial relationship, an alien who
entered this country without an immigrant visa on a willfully fraudulent
claim to United States citizenship, is ineligible for the benefits of section 241(f)
of the ,Immigration and Nationality Act, as amended. (Decision of the Attorney General in Matter of Lee, 13 1. & N. Dec. 214, adhered to, notwithstanding
Ninth Circuit dictum in Cabueo-Flores v. INS, 477 F2d 108 (C.A. 9, 1973),
indicating continued adherence by that Circuit to contrary view.)
CHARGE:

Order: Act of 1952—Section 241(a)(1) (8 U.S.C. 1251(a)(1)]Excludable at
entry—not in possession of valid unexpired immigrant
visa, etc., and not exempted-from possession under section
212(o.X20) of the Act.
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Mark W. Rollins, Esq.
Boggust & Dotson
Second and E Streets
Brawley, California 92227
(Brief filed)

William S. Howell
Trial Attorney

This is an appeal from an order of an immigration judge, finding
the respondent to be deportable, denying his request for termination of the proceedings, and granting his application for voluntary
leparture. The appeal will be dismissed.
Respondent is a 26-year-old male alien, a native and citizen of
Mexico, who last entered the United States on or about August 20,
1972 when he was admitted as a United States citizen on fraudu'ently presenting the birth certificate of his deceased brother, who
aad been born in the United States. At a hearing before an
mmigration judge on September 13, 1972, at which he was
represented by present counsel, respondent admitted the truth of
;he factual allegations of the order to show cause but denied
leportability. It was brought out that respondent is married to a

jnited States citizen and they have two United States citizen
347

Interim Decision #2200
children, born respectively in 1968 and 1971. On the basis of these
relationships and the fraud involved in obtaining admission as a
citizen, respondent requested that the proceedings be terminated
under section 241(f) of the Immigration and Nationality Act. The
immigration judge denied termination, found respondent to be
deportable, and granted him the privilege of voluntary departure
on or before October 13, 1972.
On appeal, counsel argues that termination under section 241(t)
is required by Lee Fook Chuey v. INS, 439 F2d (C.A. 9, 1970). That
decision, it is true, held that an alien who, like respondent, entered
without inspection as an alien and without the required immigrant visa is not barred from the benefits of section 241(f) as one
not "otherwise admissible." In Cabuco-Flores v. INS, 477 F2d 108
(C.A. 9, 1973) the same court by way of dictum indicated its
continued adherence to the rationale of its decision in Lee Fook
Chuey. As we pointed out, however, in Matter of Mangabat,
Interim Decision No. 2131 (B IA, 1972), we are bound by the
Attorney General's decision in Matter of Lee, 13 I. & N. Dec. 214
(AG, 1969). The Attorney General therein held that Congress did
not intend by section 241(f) "to permit the complete circumvention
of the immigration visa system established by the Act. Such a
circumvention would result from a holding that section 241(f)
applies to an alien who neither was granted nor applied for an
immigrant visa, but obtained his initial entry by posing as a
citizen."
While the Attorney General's holding in Matter of Lee, supra,
was reversed on judicial review in Lee Fook Chuey v. INS, supra,
the court's expansive reading of section 2.41(f) in that case still
represents a minority view. The failure of the Solicitor General to
seek review of that decision in the Supreme Court does not indicate
acquiescence. For the reasons elaborated in Matter of Mangabat,

supra, with due deference to the views of the Ninth Circuit, we feel
justified in continuing to adhere to the Attorney General's conclusion that section 241(f) does not benefit an alien who entered
without visa or inspection as an alien on a wilfully false citizenship
claim.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension
beyond that time as may be granted by the District Director; and
that, in the event of failure so to depart, the respondent shall be
deported as provided in the immigration judge's order.

348


Cite as 27 I&N Dec. 803 (BIA 2020)

Interim Decision #3980

Matter of R-A-V-P-, Respondent
Decided March 18, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The Immigration Judge properly determined that the respondent was a flight risk and
denied his request for a custody redetermination where, although he had a pending
application for asylum, he had no family, employment, or community ties and no probable
path to obtain lawful status so as to warrant his release on bond.
FOR RESPONDENT: Alexandra L. Lampert, Esquire
BEFORE: Board Panel: MALPHRUS, Acting Chairman; LIEBOWITZ, Board Member;
MORRIS, Temporary Board Member.
MALPHRUS, Acting Chairman:

In a decision dated June 5, 2019, an Immigration Judge denied the
respondent’s request to be released on bond, providing the reasons for the
denial in a bond memorandum issued on July 17, 2019. The respondent has
appealed from that decision. The appeal will be dismissed.
The respondent is a native and citizen of Honduras who arrived in the
United States on February 24, 2019. He did not attempt to enter at a port of
entry but entered unlawfully instead. He was detained soon thereafter by the
Department of Homeland Security (“DHS”) and requested a change in his
custody status. The Immigration Judge denied that request based on a finding
that the respondent failed to meet his burden to establish that he would not
present a significant risk of flight if he is released on a monetary bond.1
The respondent argues that the Immigration Judge erred by not ordering
his release on bond. Specifically, he asserts that the DHS should bear the
burden of proof to demonstrate that he should not be released on bond, which
it has not met. Alternatively, the respondent contends that the Immigration
Judge erred in denying bond by mischaracterizing the record, giving
insufficient weight to the evidence provided, and impermissibly elevating the
burden of proof.
1

The Immigration Judge determined that the respondent would not pose a danger to
community or a threat to national security if he is released on bond. The DHS has not
challenged the Immigration Judge’s determination in this regard. Therefore, the sole issue
presented in this case is whether the respondent is “likely to abscond, or [is] otherwise a
poor bail risk.” Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006).

803

Cite as 27 I&N Dec. 803 (BIA 2020)

Interim Decision #3980

The “setting of bond is designed to ensure an alien’s presence at
proceedings.” Matter of Urena, 25 I&N Dec. 140, 141 (BIA 2009). Whether
an alien should be allowed to remain in the United States is determined in
removal proceedings, but whether the alien should be detained pending that
determination is considered in a separate bond proceeding. See section
236(a) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a) (2018);
Matter of Guerra, 24 I&N Dec. 37, 37–38 (BIA 2006). Bond hearings
provide a preliminary evaluation of the facts and evidence presented by the
parties and are less formal than removal proceedings, where conclusive
factual findings and legal determinations are made based on the testimony
and evidence presented at a full hearing on the merits. See Matter of
Chirinos, 16 I&N Dec. 276, 277 (BIA 1977).
Neither section 236(a) of the Act nor the applicable regulations confer on
an alien the right to release on bond. See Matter of D-J-, 23 I&N Dec. 572,
575 (A.G. 2003) (citing Carlson v. Landon, 342 U.S. 524, 534 (1952));
8 C.F.R. §§ 1003.19(a), 1236.1(d)(1) (2019). An alien requesting a
redetermination of his or her custody status under section 236(a) “must
establish to the satisfaction of the Immigration Judge and the Board that he
or she does not present a danger to persons or property, is not a threat to the
national security, and does not pose a risk of flight.” Matter of Siniauskas,
27 I&N Dec. 207, 207 (BIA 2018). The respondent’s assertion that the DHS
should bear the burden to demonstrate that he is a flight risk by clear and
convincing evidence lacks merit because we have clearly held that section
236(a) places the burden of proof on the alien to show that he merits release
on bond. See Matter of Fatahi, 26 I&N Dec. 791, 795 n.3 (BIA 2016) (stating
that the Board has “consistently held that aliens have the burden to establish
eligibility for bond while proceedings are pending”); Matter of Guerra,
24 I&N Dec. at 40.2
In conducting a custody hearing, the Immigration Judge should first
consider whether the respondent is a danger to the community or a threat to
national security before considering whether he presents a risk of flight. See
Matter of Urena, 25 I&N Dec. at 141. Bond determinations depend heavily
on the alien’s circumstances and the specific facts of the case, and any
“probative and specific” evidence may be considered in assessing whether
his release on bond is warranted, including unfavorable evidence of his
conduct. See Matter of Guerra, 24 I&N Dec. at 40–41. The Immigration
Judge is in the best position to analyze these considerations and “may choose

2

The respondent also argues that placing the burden of proof on the alien to establish that
he merits release on bond is constitutionally deficient. However, we do not have the
authority to entertain constitutional challenges to the statutes and regulations we administer.
See Matter of Cruz de Ortiz, 25 I&N Dec. 601, 605 (BIA 2011).

804

Cite as 27 I&N Dec. 803 (BIA 2020)

Interim Decision #3980

to give greater weight to one factor over others, as long as the decision is
reasonable.” Id. at 40.
In determining whether an alien merits release on bond and what amount
of bond is appropriate, the Immigration Judge may consider a variety of
factors, including
(1) whether the alien has a fixed address in the United States; (2) the alien’s length
of residence in the United States; (3) the alien’s family ties in the United States, and
whether they may entitle the alien to reside permanently in the United States in the
future; (4) the alien’s employment history; (5) the alien’s record of appearance in
court; (6) the alien’s criminal record, including the extensiveness of criminal activity,
the recency of such activity, and the seriousness of the offenses; (7) the alien’s
history of immigration violations; (8) any attempts by the alien to flee prosecution
or otherwise escape from authorities; and (9) the alien’s manner of entry to the
United States.

Id. The Immigration Judge may also consider the likelihood that relief from
removal will be granted in determining whether an alien warrants bond. See
Matter of Andrade, 19 I&N Dec. 488, 490 (BIA 1987) (stating that an alien
with a greater likelihood of being granted relief has a stronger motivation to
appear for a hearing than one who has less potential to obtain relief).
The respondent argues that the Immigration Judge mischaracterized the
record and did not give sufficient weight to the evidence he submitted. We
disagree and will affirm the Immigration Judge’s decision.
The record reflects that the Immigration Judge properly considered and
weighed the relevant factors in determining that the respondent presents a
significant risk of flight and should remain in immigration custody pending
the outcome of his removal proceedings. See Matter of Guerra, 24 I&N Dec.
at 40 (stating that an Immigration Judge has broad discretion in deciding the
factors that he may consider in custody redeterminations). The respondent
only recently arrived in the United States, having entered without inspection,
and he has made no claim to lawful status in this country, either now or in
the past. He also has no family ties, no employment history, no community
ties, or any record of appearances in court in the United States. These factors
militate against the respondent’s release on bond because they indicate that
he is less likely to appear for his removal hearing. By contrast, we have
found that an alien who had prior lawful status and a probable path to future
lawful status, as well as immediate family members with whom he could
continue to reside in the United States, did not present a flight risk. See
Matter of Patel, 15 I&N Dec. 666, 667 (BIA 1976) (relying on the facts that
the alien was admitted as a student, was living with his wife and United States
citizen child, and was seeking lawful status through a labor certification filed
by his employer).
805

Cite as 27 I&N Dec. 803 (BIA 2020)

Interim Decision #3980

In support of his request for release on bond, the respondent maintains
that he has a fixed address where he will reside and that he has demonstrated
eligibility for relief from removal. He submitted a signed statement from an
individual who indicated his willingness to support the respondent and
provide him a place to stay in the United States. The statement was
accompanied by this person’s Honduran passport and a copy of a utility bill
with his residential address. At the bond hearing, counsel for the respondent
also proffered that this friend is willing to pay for a bus ticket for the
respondent to travel to Texas and that his wife is familiar with the Houston
Immigration Court.
While the friend’s willingness to assist the respondent is laudable, we
agree with the Immigration Judge that it is insufficient to adequately ensure
the respondent’s appearance for his removal proceedings and, if necessary,
his removal from the United States. In considering the friend’s written
statement, the Immigration Judge properly noted the lack of independent
evidence establishing his present immigration status, as well as his ability to
support the respondent and ensure his appearance at future immigration
hearings.3
In addition, the respondent’s friend is not an immediate family member
and does not appear to be related to him. The statement he provided does not
include any information regarding how he knows the respondent or the nature
of their relationship. The Immigration Judge properly concluded that
counsel’s proffer that the friend is willing to pay for a bus ticket for the
respondent to travel to Texas and that his wife is familiar with the Houston
Immigration Court falls far short of meeting the respondent’s burden of proof
to establish that he should be released on bond.
The respondent also asserts that he has a high incentive to appear
for his hearings because he is seeking asylum. He maintains that he has
demonstrated past persecution and a well-founded fear of persecution based
on past threats of violence and homophobic harassment in Honduras.
However, for various reasons, eligibility for asylum can be difficult to
establish, and an Immigration Judge may consider an alien’s circumstances
in determining how likely it is that his application for relief will ultimately
be approved. Even for aliens who are found to have a credible fear, a grant
of asylum is uncertain, in part because the legal standard for establishing
eligibility for asylum is higher than that for a credible fear.
3

The respondent contends that it was not proper for the Immigration Judge to consider
these factors since they are not listed in Matter of Guerra, 24 I&N Dec. at 40. Although
not specifically enumerated there, these facts are relevant to determining whether the
respondent’s friend will provide a fixed address for him and will ensure his presence at
future proceedings.

806

Cite as 27 I&N Dec. 803 (BIA 2020)

Interim Decision #3980

The Immigration Judge concluded that the respondent did not
demonstrate a sufficient likelihood that he would be granted asylum.4 The
respondent’s limited avenue for relief, combined with his other minimal ties
to the United States, support the Immigration Judge’s determination that the
respondent poses a high flight risk and should be held without bond pending
the outcome of his removal proceedings. See Matter of Guerra, 24 I&N Dec.
at 40. We therefore agree with the Immigration Judge that the respondent
failed to meet his burden to demonstrate that he does not present a significant
risk of flight and that his release on bond is warranted. Accordingly, the
respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

4

Although not controlling in this case, the internal records of the Executive Office for
Immigration Review reflect that the Immigration Judge denied the respondent’s application
for asylum and related relief and protection in removal proceedings on November 7, 2019.
His appeal from that decision is pending before us, and the Immigration Judge’s decision
is not administratively final. However, the current posture of the case does not improve
the likelihood that the respondent will be granted relief from removal.

807


Cite as 27 I&N Dec. 124 (BIA 2017)

Interim Decision #3903

Matter of Saif Ur REHMAN, Beneficiary of a visa petition filed
by Younas Mohammad Chaudry, Petitioner
Decided September 20, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where a petitioner seeking to prove a familial relationship submits a birth certificate that
was not registered contemporaneously with the birth, an adjudicator must consider the birth
certificate, as well as all the other evidence of record and the circumstances of the case, to
determine whether the petitioner has submitted sufficient reliable evidence to demonstrate
the claimed relationship by a preponderance of the evidence.
FOR PETITIONER: Eric H. Singer, Esquire, Bethesda, Maryland
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Associate Counsel

Michael Ammerman,

BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; MANN and KELLY,
Board Members.
MANN, Board Member:

In a decision dated March 24, 2015, the Service Center Director
(“Director”) denied the Petition for Alien Relative (Form I-130) that the
United States petitioner filed on behalf of the beneficiary to accord him status
as his brother under section 203(a)(4) of the Immigration and Nationality
Act, 8 U.S.C. § 1153(a)(4) (2012). The petitioner has appealed from that
decision. The record will be remanded.

I. FACTUAL AND PROCEDURAL HISTORY
In support of his visa petition, the petitioner submitted a birth certificate
that was registered in 1958, indicating that the beneficiary was born in
Pakistan in 1956. The Director denied the visa petition, concluding that
the petitioner did not submit sufficient evidence to meet his burden of
establishing that the beneficiary qualifies as his brother for immigration
purposes. Specifically, the Director found that the beneficiary’s Pakistani
birth certificate did not prove his parentage because it was registered 2 years
after his birth, and the petitioner did not submit sufficient secondary evidence
to support the delayed registered birth certificate.
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II. ANALYSIS
In this case, we will address the factors to be considered when assessing
whether a petitioner has established a familial relationship by a
preponderance of the evidence where a birth certificate submitted to prove
the relationship reflects that it was not registered contemporaneously with
the birth. We review all questions arising in visa petition proceedings de
novo. See 8 C.F.R. § 1003.1(d)(3)(iii) (2017).
A. Preponderance of the Evidence
In visa petition proceedings, the petitioner bears the burden of
establishing the claimed relationship by a preponderance of the evidence.
See, e.g., Matter of Ruzku, 26 I&N Dec. 731, 731 (BIA 2016). We have
defined a “preponderance of the evidence” as “evidence which as a whole
shows that the fact sought to be proved is more probable than not.” Matter
of Lemhammad, 20 I&N Dec. 316, 320 n.5 (BIA 1991) (quoting Black’s Law
Dictionary 1064 (5th ed. 1979)). Whether evidence is sufficient to meet the
preponderance of the evidence standard
will often turn upon the factual circumstances of each case. There are no magic
words or mathematical formulas that can describe a preponderance of the evidence
so it can be applied mechanically in every case. Nonetheless, when we consider that
the purpose of evidence is to ascertain the truth, then we can make certain
generalizations. For example, when something has to be proved beyond a reasonable
doubt, the proof must demonstrate that something must be almost certainly true. And
when something has to be proved by clear and convincing evidence, the proof must
demonstrate that it is highly probably true. But, when something is to be established
by a preponderance of the evidence it is sufficient that the proof only establish that
it is probably true.
. . . [T]he application of the “preponderance of the evidence” standard may require
the examination of each piece of relevant evidence and a determination as to whether
such evidence, either by itself or when viewed within the totality of the evidence,
establishes that something to be proved is probably true.

Matter of E-M-, 20 I&N Dec. 77, 79–80 (Comm. 1989) (citation omitted).
B. Primary Evidence
To establish a claimed family relationship in visa petition proceedings by
a preponderance of the evidence, a petitioner should submit primary
evidence, if it is available. 8 C.F.R. §§ 103.2(b), 204.1(f)(1) (2017). For
siblings, that primary evidence includes birth certificates showing a common
parent. 8 C.F.R. § 204.2(g)(2)(i) (2017). To determine whether primary
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Interim Decision #3903

evidence is unavailable, adjudicators may refer to the Department of State
Foreign Affairs Manual (“FAM”) Reciprocity Schedule and may consider
any other evidence in the record regarding the availability of such evidence.
In assessing whether a petitioner has met his or her burden of proof in
cases where a birth certificate is submitted to establish a family relationship,
“we have been reluctant to accord delayed birth certificates the same weight
we would give birth certificates issued at the time of birth.” Matter of Bueno,
21 I&N Dec. 1029, 1032 (BIA 1997) (citing Matter of Ma, 20 I&N Dec. 394
(BIA 1991)). We reasoned that birth certificates with delayed registration
dates are less reliable because “the opportunity for fraud is much greater with
a delayed birth certificate.” Matter of Serna, 16 I&N Dec. 643, 645 (BIA
1978). However, we have noted the difficulty in balancing situations in
which a delayed birth certificate may be the only type of birth certificate
available. Id. at 644–45 (“To penalize these persons because they were not
born in hospitals or other facilities where births are registered would be
unjust.”). To balance the competing concerns of fraud and fairness, we have
held that a delayed birth certificate is not generally conclusive evidence and
must instead “be evaluated in light of the other evidence of record and the
circumstances of the case.” Matter of Bueno, 21 I&N Dec. at 1033.
Although we have never specified that a birth certificate must reflect
registration within a specific period of time after the birth in order to be valid
evidence of parentage, we have seen a pattern in decisions where the Director
has determined that birth certificates registered 1 year or more after the birth
are considered delayed. Such a bright-line standard has no basis in the
regulations or our precedent.
Instead, we have consistently considered the record as a whole to
determine whether there is sufficient evidence of the relationship. In Matter
of Bueno, the beneficiary’s birth was registered in the Dominican Republic
7 years after he was born and only 9 months prior to the filing of the visa
petition. We concluded that these circumstances raised questions regarding
the beneficiary’s paternity, particularly given that the FAM did not reflect
whether independent verification of paternity was necessary in the
Dominican Republic to obtain a birth certificate after the birth date. Id.
(citing Vol. 9, Foreign Affairs Manual, Part IV, Appendix C, “Dominican
Republic”). We held that additional proof was needed to establish paternity
in that case and that the sole additional relevant document—an affidavit—
was insufficient to establish the relationship by a preponderance of the
evidence.
Similarly, in Matter of Ma, 20 I&N Dec. at 397, we evaluated the
reliability of a Chinese notarial certificate that was issued 40 years after the
beneficiary’s birth. We determined that although such certificates were
generally reliable, the delay in the registration of the birth raised a concern
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Interim Decision #3903

about fraud, so the case should be considered in light of “any and all
supporting evidence that the petitioner may be able to produce.” Id.
Having reviewed the regulations, our precedent decisions, and the
arguments of the parties, we conclude that in evaluating whether a birth
certificate is “delayed” and therefore raises concerns about fraud, an
adjudicator must consider all the other evidence of record and the
circumstances of the case to determine whether a petitioner has submitted
sufficient reliable evidence to demonstrate the claimed familial relationship
by a preponderance of the evidence. See Matter of Bueno, 21 I&N Dec.
at 1033. The adjudicator should always examine the evidence for its
reliability and persuasiveness, given the circumstances presented.
Even if a birth certificate does not reflect that its registration was
contemporaneous with the birth, an adjudicator may conclude that it is
sufficiently reliable to establish parentage, depending on the circumstances.
In making this determination, the adjudicator should consider all relevant
factors, including, but not limited to, (1) information in the FAM regarding
the availability and reliability of birth registrations in the country of birth
during the time period at issue; (2) the length of time between the birth and
the registration; (3) any credible explanation proffered by the petitioner as to
the personal, societal, or historical circumstances that prevented a particular
birth certificate from being registered contemporaneously, and any evidence
in support of that explanation; (4) any credible explanation for why a
particular birth certificate was lost or destroyed; (5) any evidence that the
parental relationship was independently corroborated prior to the registration
of the birth; (6) the length of time between the birth registration and the filing
of the visa petition; and (7) information regarding whether the document was
based on facts that were contemporaneous with the birth or on facts that were
more recently established.
C. Secondary Evidence
If the adjudicator determines that a birth certificate is not sufficiently
reliable to meet the preponderance of the evidence standard in light of all of
the circumstances, he or she should require and consider secondary evidence
to determine whether the petitioner has established parentage. See 8 C.F.R.
§ 103.2(b)(2); see also Matter of Pagan, 22 I&N Dec. 547, 550 (BIA 1999).
The regulations do not specify the secondary evidence to be considered
in sibling petition cases like the one before us. However, we find instructive
the regulation that lists the types of secondary evidence petitioners may
submit to establish their United States citizenship or lawful permanent
resident status. 8 C.F.R. § 204.1(g)(2) (providing that secondary evidence
may include, but is not limited to, baptismal certificates, affidavits sworn by
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Interim Decision #3903

persons with personal knowledge of the event to which they attest, early
school records, and census records). Similarly, we consider relevant the
secondary evidence listed in the regulations pertaining to petitions filed on
behalf of sons and daughters, because in sibling petition cases, it is the
siblings’ relationship through the parent that must be established. See, e.g.,
8 C.F.R. § 204.2(d)(2)(v), (vi) (providing that secondary evidence may
include historical evidence issued contemporaneously with the birth or other
event that it documents, such as medical records, school records, religious
documents, affidavits by those with personal knowledge of the event, and
DNA evidence). All secondary evidence should be evaluated for its
authenticity and credibility. 8 C.F.R. § 204.1(g)(2).
Thus, the types of secondary evidence that a petitioner may submit to
establish his or her relationship with a sibling beneficiary include, but are not
limited to, (1) governmental, medical, religious, school, financial,
employment, insurance, or residential records that reflect the names of
the parent(s) and child; (2) family photographs with notations indicating
the persons photographed, as well as the date and place they were taken;
(3) correspondence, preferably with the original envelope, showing the date
written and referring to the parent(s) and child; (4) affidavits by persons who
have personal knowledge of the birth; and (5) the results of DNA testing
conducted in a prescribed manner, as explained to the petitioner by the
United States Citizenship and Immigration Services (“USCIS”). Given the
advances in DNA testing in recent years, the USCIS should encourage
petitioners to pursue this option, particularly if little other secondary
evidence is available. A Request for Evidence should provide detailed
guidance with regard to secondary forms of evidence.
Although we agree with the petitioner that all secondary evidence
should be considered, we also agree with counsel for the USCIS that
secondary evidence that was created contemporaneous with the birth will be
the most persuasive. As with all visa petitions, an adjudicator’s decision
should explain his or her reasoning in evaluating the reliability and
persuasiveness of all the evidence in the record and state whether it is
sufficient to meet the preponderance of the evidence standard.
D. Application to the Beneficiary
In this case, the beneficiary’s birth was registered in 1958, when he was
2 years old. Unlike in Matter of Bueno, where the birth was registered just
months before the visa petition was filed, the petitioner filed the visa
petition 52 years after the beneficiary’s birth was registered. Under these
circumstances, the risk of fraud is greatly reduced.

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Interim Decision #3903

In addition, the Director did not indicate that she considered the FAM,
which states the following in regard to birth records in Pakistan:
Birth certificates for older Pakistanis, particularly those born before partition in
1947, are often unavailable. These Pakistanis may present a “No Entry Certificate”
issued by the Municipal Corporation or a late-registered birth certificate. . . .
Even today, birth records are not uniformly kept, particularly in rural areas. . . .
....
In lieu of a birth certificate, Pakistanis often use school records attested by the
headmaster or principal of the school or matriculation certificates, both of which
identify the father and the date of birth. “B” Forms, which are family registration
forms listing all family members, are also available [to show’ family relationships.
These documents are issued by [the National Database and Registration Authority
(“NADRA”)], though pre-NADRA versions are sometimes available as well.

U.S. Dep’t of State, Pakistan Country Reciprocity Schedule, https://travel.
state.gov/content/visas/en/fees/reciprocity-by-country/PK.html (follow the
hyperlink to “Birth, Death, Burial Certificates”). The FAM indicates that
birth certificates for those Pakistanis of the beneficiary’s generation—
namely, those born shortly after the 1947 partition of India—may often be
unavailable. The Director should weigh this fact when considering the
persuasiveness of the beneficiary’s birth certificate, which was registered in
1958.

III. CONCLUSION
We will remand this case for the Director to apply the framework set forth
above and determine whether the beneficiary’s birth certificate is sufficient
to establish his parentage by a preponderance of the evidence. If the Director
determines that the birth certificate alone is not sufficiently reliable, the
Director should consider whether the birth certificate, in combination with
the secondary evidence submitted by the petitioner, is sufficient to meet his
burden of proof. As with all decisions, the Director must discuss the facts
and weigh the evidence in light of the applicable legal standards and
determine whether the burden of proof has been met. Accordingly, the record
will be remanded for further proceedings.
ORDER: The record is remanded for further proceedings consistent
with the foregoing opinion and for the entry of a new decision.

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Interim Decision #1407'

MATTER OF ALBERGA

In VISA PETITION Proceedings
A-10383415
Decided by Regional Commissioner' October 16, 1964
Petition to accord first preference quota status under section 203(a) (1), Immigration and Nationality Act, as amended, as a sample stitcher of ladies' gar
ments is denied because beneficiary has not had a minimum of 5 years'
experience as such a stitcher as required by the clearance order.

This petition, seeking first preference quota status for beneficiary
as a sample stitcher, was denied by the District DireeLor on June 10,
1964. That denial is before us on appeal.
The clearance order from the Bureau of Employment Security
furnished in support of the petition calls for a person who has had a
minimum of 5 years' all-round experience as a sample stitcher of
ladies' garments.
That Bureau's Dictionary of Occupational Titles defines the position of sample stitcher as follows : "Prepares sample garments, such
as dresses, pajamas, suits, or shirts, usually for use in making production patterns: Cuts material according to a pattern or designer's
sketch. Drapes and fits garment on either a dress form or living
model. Performs hand and machine sewing to complete garment.
Frequently. performs hand finishing and pressing."
The petitioner is a manufacturer of expensive clothes for women_

Claim has been made that their dresses are sold at prices ranging from
$160 to $650 and that some of their coat, suit and dress ensembles retail
for as ranch as $1500. Pages from VOGUE magazine have been furnished as evidence of the quality of petitioner's creations.
The beneficiary is a native and citizen of Jamaica, age 41, married.
She has been in the United 'States since her entry as a visitor on
May 3, 1959. On August 20, 1960, she was granted status as a nonimmigrant student to attend the Maison Sapho School of Dressmaking
and Design for which she had enrolled on February 16, 1960.
She received one extension of temporary stay to February 20, 1961,
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to finish a course of 255 hours, another to July 31, 1961, to take a
course in draping, and a further extension to July 31, 1962, to study
advance designing, all at the same school. Her attendance there terminated on June 20, 1962. In addition to the foregoing, Mrs. Alberga
took a course in dressmaking at Fashion Institute in New York from
February to June 1957 while here previously as a visitor.
Upon completion of her last course at the Maison Sapho School,
beneficiary applied for permission to engage in practical training with
the firm, Trigere, the petitioner in the matter now before us. Beneficiary was granted permission to engage in two periods of such train-

ing until July 15, 1963, and was informed that a request for
permission to remain beyond that date would not be favorably entertained. The petition seeking to accord beneficiary first preference
immigration quota status was filed July 3, 1963, or at a time when
beneficiary was still in "practical training."
As pointed out in the district director's notice of denial, inquiry
by a Service investigator at petitioner's place of business on February
27, 1964, disclosed that beneficiary was not engaged in pattern-making
or in the cutting of cloth from which sample garments were being
made. Instead, she was then found employed as one of a group of

seven ladies performing the sewing operations (both by hand and
machine) cm the garments under productiOn. While it was then stated
that beneficiary was experienced in pattern-making and cloth-cutting,

she had done very little of that work as those duties were performed
by the supervisor of the sample room. Of the seven ladies, including
beneficiary, working on the sewing operations, three were receiving
a higher wage than beneficiary.
Although beneficiary attended a dressmaking school in New York
for two and one - half years, and followed this with a, year's practical
training, she alleges that she was a competent dressmaker in Jamaica
before coming here.. This is supported only by her own affidavit, by
ft

letterhead and business card (both in the name "Hyacinth Alberga,

Custom Made Gowns, 5 Union Square, Room 3, Cross Roads, Jamaica,
W. I.") and two letters written in Jamaica in 1959 (one by the Chairman, Garment Industry Group, Jamaica Manufacturers Association
and the other by the Secretary, Jamaica Industrial Development
Corporation) introducing Hyacinth Alberga as a dressmaker specializing hi embroidered dresses who was interested in making business contacts in the United States.
On appeal petitioner has submitted a letter dated September 11,
1904, wherein the comptroller of the firm insists that beneficiary now
earns a salary of $90 a week and is engaged by them as a sample
stitcher as that term is applied to the tailoring industry. In that
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letter petitioner insists that an on-premises inspection of their sample
room at this time would show that beneficiary is working as a sample
stitcher.
We have carefully considered the entire record including oral argument of counsel. The clearance order in this case calls for a person
who has had a minimum of five years' all-round experience as a sample
stitcher of ladies' garments. The evidence of record shows that beneficiary was a student in dressmaking from February 1960 to July
1962, followed by practical training in that field for one year. We
can only conclude therefore that petitioner has failed to establish that
beneficiary has had the minimum of five years' all-round experience
as a sample stitcher as required by the clearance order. The denial
will be allirm.ed.
ORDER: It is ordered that this appeal be and the same is hereby
dismissed.

766


Interim Decision *1469

Mamie or Mawr
In Visa Petition Proceedings
A.-19459969
Decided by Board May 14,1965
43ince the beneficiary, a native sad &tie= of Zordan, through a duly arecnted

pow,er of attorney designating his brother in Jordan as his proxy, obtained,
under Jordanian-Moslem law, in the Maria Court in Jordan on May 8, 1982,
a valid decree of divorce from his first wife, a resident of Jordan, his subsequent marriage on July 18, 1982, to a native of Puerto Rico and citizen of the
United States is a valid marriage and serves to confer nonquota status.

The case comes forward on appeal from the order of the District
Director, San Juan District, dated March 19, 1965 denying the visa
petition for the reason that the petitioner had failed to establish
that the beneficiary has obtained a divorce from his first wife in
Jordan.: the document submitted as his divorce decree did not indicate that the beneficiary's first wife was ever advised of the divorce

action and no evidence has been presented that she has ever been so
advised; under Jordanian law, it is necessary that the wife . be advised of the divorce action before such divorce can become final;
the petitioner's marriage certificate indicates that the beneficiary
then claimed never to have been previously married, which was a
misrepresentation of a material fact.
The petitioner, a native of Puerto Rico and a citizen of the United
:States, 25 years old, female, seeks nonquota status on behalf of the
beneficiary as her husband. The beneficiary is a native and citizen
.of Jordan, 37 years old. The parties were married on June 16, 1962
at Arecibo, Puerto Rico.
The application for the marriage license shows the husband's name
-as Orman. Said Hamden, the son of Otman Said and Arifi Hamdan,
not previously married. The visa petition indicates that the beneficiary was married -once previously.
As evidence of the termination of the beneficiary's first marriage
there was presented a docunient issued by the Sharia Court, Nablus,
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Interim Dicision #1469
Jordan which stated there appeared in person Irsan Ben Said Hamdan on behalf of his brother, the beneficiary, as per duly; executed
power of attorney who declared that in accordance with the official
power of attorney he divorced With the first instance Rasnaieh, the

daughter of Mouse, Mahmoud, the legal wife of the beneficiary, and
requests that this be registered and confirmed to her, she being
absent. His declaration was supported by two witnesses and accordingly his act was duly confirmed by the judge of the Sharia
Court who notified Irsan that he has made in behalf of his brother,
Othman, the act of divorce, with first instance, of his wife Rasmieh,
and that his brother, Othman, is at liberty to call on her during the

official period by word• or deed, provided that he should register
same at the Sharia Court, and in ease he does not appear during the
period, she is considered automatically divorced from him as from
this date: 6.5.62.
In connection with' the appeal the petitioner submitted a bill of
complaint for diviiree on the ground of separation in the Superior
Court of Puerto Rico at Caguas reciting that because of doubt as
to the validity of the judgment of divorce at Nablus, Jordan on
June 5, 1952 (sic), due to the fact that it is not evident from said
judgment that said defendant was duly served at the time of the
petition therefor o; of the judgment entered, also due to the fact
that neither is it evident from said judgment that same was final
and conclusive praying for divorce on the ground of continuous and
uninterrupted separation for more than three years. This complaint for divorce is dated April 1, 1965.
In further connection with the appeal counsel for the petitioner
has submitted a communication dated April 23, 1965 inclosing photo
copies of • the completion certificates that have been received from

Jordan showing that the first wife of the beneficiary was duly notified of the divorce proceedings against her; also showing that the
divorce decree became final upon her appearance subsequent to the
judgment and the "test period". The translation of the Arabic
document refers to a revocable divorce certificate dated 6.5.1962
showing that it was served on the first wife, Rasmiyya Mira
Mahmoud on 13.5.1962. There was also a notice of judgment given
in the presence of both parties, the plaintiff being named as Rasmiyya Mum Mahmoud and the beneficiary, Breen Said Minden (the
proxy), regarding the subject of alimony issued by the Sharia Court,
Nablus, Jordan, declaring that the plaintiff has applied.for alimony
from the respondent as the representative to his brother who divorced her revocably according to the divorce certificate given by the'
court on 6.5.1962; and since he did not return her to him, and since
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Interim Decision #1469 .
the respondent -has carried, the divorce according to his power of
attorney which was given to him by her previous husband and since
he has given a declaration before the Magistrate of Nablus to support her during his, brother's absence in America, etc., therefore, and
since revocable divorce does not cancel marriage definitely, during the
test period in whiCh wife may return to her husband in word or in
deed, and sines alimony during test •period is regarded as ordinary
- wife alimony the judge of the Sharia Court decides in accordance
with Article 62 of Family Rights Law an amount of fifteen Dinars
representing alimony during the whole period and covering all her
requirements which she may -legally require starting from. the date
of the divorce• till the termination of that period.. The , judgment
is dated 12.6.1962. • '
The communication, from counsel also indicates that the beneficiary
is proceeding with his action for divorce in the Puerto Rican court
and .requests that the beneficiary should be given every opportunity
to clarify. the matter by (1) in the event such evidence is obtained
as will leave no doubt as 'to the validity of the divorce from the first wife, the case should either be remanded to the District Director at
San Juan, Puerto Rico or an extension should be granted during
which to clarify this matter; or (2) if the beneficiary is for any
reason unable to obtain such clarification, he should be granted an
extension in order to bring to a successful termination the divorce
proceeding in Puerto Rico for which his presence as a witness in
his own behalf will be necessary.
The date of the judgment of divorce rendered by the Sharia Court
at Nablus, Jordan is indicated as 6.5.1962. It has been confirmed
that this is the usual continental European manner of writing the .
date and is equivalent to May 6, 1962, rather than June 5, 1962. The
document submitted by counsel Andicates that the wife, Ratmiyya,
was served on May 13, 1962 and she obtained a judgment for alimony from the Sharia Court at Nablus, Jordan on June 12,1962. - '
Jordanian Law No. 92 of -1-951 on Family Rights is set forth in
Appendix A of Matter of Atoadarla, Int. Dee. No. 1348. Jordanian..Moslem law as it relates to divorce is summarized in Matter of M—,

7 I. & N. Dec. 556, in which it is set forth that a divorce is effected
by means of repudiations of the wife by the husband. The modes of
accomplishing the required repudiations are various: by a single
pronouncement of repudiation which is revocable within three
months by express words or conduct; by three successive pronouncements during three successive periods, with the marriage finally
being dissolved on the third repudiation; by three successive pronouncements of repudiation made on a
occasion, probably

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Interim Dicision #1469
before 'witnesses; or by a single irrevocable declaration in writing
(bill of divorce) which is final immediately, but must be communicated to the wife.
In the Instant case the judgment of May 6, 1062, made by a single

pronouncement, was a. revocable divorce and did. not cancel the Marriage definitely during the test or idda period of three months thereafter. The beneficiary was represented by hi; brother with a duly
executed power of attorney and this type of proxy divorce constitutes a valid divorce- in Jordan. The divorce decree of the Sharia
Court at Nablus, Jordan was served on the Wife on May 13, 1962 and
thereafter she obtained a judgment for alimony against the proxy of
her foimer husband on June 12, 1962. There is no indication that

+he beneficiary returned to his first wife during the revocable period,
that is, during the idda period of three months. The divorce, therefore, became fmal as of May 6, 1962.
The evidence establishes that the beneficiary, through a duly executed power of attorney designating his brother as his proxy, obtained a valid divorce decree under Jordanian-Moslem law. Under
ordinary rules of international comity, the divorce should be recognized unless there are strong reasons of public policy in the forum
where the subsequent marriage was celebrated. No such policy has
been shown to exist.' It is not known why the beneficiary represented that he did not have any previous marriages when he married
the petitioner on June 16, 1962 at Arecibo, Puerto Rico. However,
according to the evidence of record, the beneficiary, properly and
legally terminated his prior marriage by a decree of divorce. obtained in the Sharia Court in Jordan on May 6, 1962. The present
marriage of the petitioner and the beneficiary appears to be valid.
The petition will be approved.

ORDER: It is ordered that the visa petition be approved for nonquota status on behalf of the beneficiary.
See Matter of Ateadalla, Int. Dec. No 1348.

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