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MATTER OF LAM
In Deportation Proceedings
A-21068985

Decided by Board January 6, 1978
The fact that a labor certification depends upon qualifying experience gained through
unauthorized employment in the United States would not in itself justify refusal to
grant adjustment of status in the exercise of discretion, where the employment has been
determined to be of potential benefit to the United States because of a shortage of
United States workers. Matter of Leung, Interim Decision 2530 (D.D. 1976) and Matter
of Yarden, Interim Decision 2513 (R. C. 1976) are disapproved.
CHARGE:
Order: Act of 1952—Section 241(a)(2), I. & N. Act, [8 U.S.C. 1254*(2)1—
Nonimmigrant visitor—remained longer than permitted
ON BEHALF OF RESPONDENT: Winston W. Tsai, Esquire
Suite 1022
1028 Connecticut Avenue
Wabliingtva, D.C. 20030

BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members

This is an appeal from the immigration judge's denial of the relief of
adjustment of status in a decision entered on February 3, 1977, in which
the immigration judge granted to the respondent the privilege of voluntary departure. The appeal will be sustained.
The record relates to a married male alien, 40 years of age, who is a
native and citizen of China. He was admitted to the United States on
February 6, 1978, as a nonimmigrant visitor. He was originally found

deportable in an earlier decision by the immigration judge on January
12, 1976. The finding of deportability rested on the respondent's admissions. The respondent did not appeal from that decision. He thereafter
obtained reopening of the proceedings in order to apply for adjustment
of status. This appeal is brought from the immigration judge's subs equent denial of that relief.
The respondent is a specialty cook of Chinese style food. He has been
employed as a Chinese cook by the China Shoppe Restaurant in Maryland from May 1976 to the present time. He was previously employed by
tie Red Blazer Restaurant from January 1976 to April 1976 in New

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UCC1siun 5chOZZ5

York, by the Horse River Restaurant in Maryland from May 1974 to
December 1975, and by the Oriental Garden Restaurant in Virginia
from April 1973 to April 1974. The China Shoppe ReStaurant filed a
labor certification application on behalf of the respondent, which was
approved on April 15, 1976. A sixty-preference petition filed by the
China Shoppe Restaurant on behalf of the respondent was approved on
June 30, 1976.
On the labor certification application the China Shoppe Restaurant
specified that two years experience was required for the position offered. All of the qualifying experience shown by the respondent' in
support of the labor certification was gained in the United States as
listed above. At his deportation hearing the respondent testified that his
sole experience as a cook prior to coming to the United States consisted
of part-time work of about ten hours a week for several months during
1970 (Tr. p. 6). Inasmuch as that experience did not amount to the two
years of experience required by the United States employer, the respondent's eligibility for a labor certification must necessarily depend
upon the experience he gained while in the United States.
Because the respondent's qualifying employment experience was
gained while he was here as a nonimmigrant visitor and later ai an

overstay, the immigration judge declined to exercise his discretion
favorably to the respondent and denied him adjustment of status. The
issue posed is whether the fact that qualifying experience for a labor
certification was gained by employ-ment which was not authorized under
the immigration laws constitutes a factor adverse to the exercise of
discretion, when considering an application for adjUstment of status.
We have previously considered the general issue in the case of /Matter
of Arai, 13 I. & N. Dec. 494 (BIA. 1970). Arai, like the present respondent, sought adjustment of status on the basis of an approved labor
certification as a specialty cook. In that ease, as in this, no finding was

made by the immigration judge that the respondent was other than a
bona fide visitor when he first arrived in the United States. The immigration judge, however, considered Arai's taking of employment as an
adverse factor. We reversed the immigration judge and held that the
case presented no adverse factors affecting the respondent's application. We characterized the employment as a potential benefit to the
United States inasmuch as there was a shortage of United States

workers in his field of employment. The Labor Department, by certifying the application, had so determined.
In the case before us the immigration judge, in declining to exercise
discretion favorably, focused on the fact that the unauthorized employment was crucial to eligibility for the labor certification, rather than on
the fact that the employment was unauthorized. While the focus is thus
somewhat different from Arafs case, the immigration judge's considera433

interim .uecision #zorts
tion of the employment as an adverse factor is nonetheless inconsistent
with the decision in Matter of Arai, supra. Inasmuch as the recitation of
facts in Arai did not specify to the contrary, we must assume that Arai's
work experience in the United States was crucial to his labor certification, as was the respondent's. The immigration judge's decision below
that approval of a labor certification should be disregarded in the exercise of discretion when the experience was gained in the United States
by means of unauthorized employment cannot, therefore, be reconciled
with the decision in Matter of Arai, supra.
When a labor certification has been granted concerning employment,

it has been determined that the employment is not detrimental to the
United States labor market. An important concern of our immigration
laws is the protection of our domestic economy. Taking unauthorized
employment in violation of law may be an adverse discretionary factor.
However, this is offset when unauthorized employment is not detrimental, and is in fact of potential benefit to our country, in view of the
shortage of United States workers. In this case not only has a labor
certification been granted for the employment, but a sixth-preference
petition as well.
We are aware that the Service has previously addressed the same

issue in two cases and has held that discretionary relief should be denied
to an alien in the above circumstances in the absence of unusual or
outstanding equities. Matter of Leung, Interim Decision 2530 (D.D.
1976). 1 Matter of Yarden, Interim Decision 2513 (R. C. 1976) (dicta). The
facts in Matter of Leung, supra, were very similar to those in this case.
In that case as in this, the respondent was issued a labor certification
and accorded sixth-preference status on the basis of experience as a
specialty cook, which experience had been acquired while in the United
States, after admission as a nonimmigrant visitor for pleasure_
Neither Service decision, however, makes reference to the decision of
Matter of Arai, supra. While the immigration judge's decision below
does cite Arai for its enunciation of the general standard for the exercise
of discretion, it does not mention that the result reached is directly
contrary to the result reached in Arai. The decision below and those of
Leung and Yarden did not attempt to distinguish Arai, and in our view
are inconsistent with Anti. Accordingly, we disapprove of the Service's
,

decisions in Matter of Yarden, supra, and Matter of Leung, supra. 2
' "In the absence of unusual or outstanding equities, an alien will not as a matter of
administrative discretion be accorded permanent resident status on the basis of a labor
certification issued under section 212(a)(14) of the Immigration and Nationality Act,
"where the labor certification is predicated upon employment while unlawfully in the
limited States." Matter of Leung, supra.
We note that the issue may be mooted to some extent by the Immigration and
Nationality Act. Amendments of October 20, 1076, which took effect on January 1, 1977,

434

111LC11111 IJCLIZIY11 irc+w-to

The respondent has established visa availability and appears to be
otherwise qualified for the requested relief.
ORDER: The appeal is sustained and the respondent is granted
adjustment of status subject to necessary processing by the Service.
FURTHER ORDER: The outstanding order of deportation is withdrawn.

(Public Law 94-571, 90 Stat. 2703). Section 245 of the Act as amended now , provides'
rovides that
the relief of adjustment of status is not available to:
. . . an alien (other than an immediate relative as defined in sections 201(b)) who
hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status. Section 245(c)(2).

435


Interim Decision #2396

MATTER OF RINA

In Deportation Proceedings
A- 13197621

Decided by Board June 11, 1975
(1) Respondent found deportable for entry without inspection (sec. 241(a)(2)), after conviction for such entry in U.S. District Court. Immigration judge, as matter of discretion, denied voluntary departure.
(2) Definition of entry in section 101(a)(13) of Immigration and Nationality Act applies to
both the criminal provisions of section 275 and the deportation provisions of section 241
(a)(2). (Matter of Barragan-Garibay, Intermin Decision 2315—BIA 1974). The definition of "entry" in section 101(a)(13) was interpreted in Rosenberg v. Plead, 374 U.S. 449
(1963). Such decision is dispositive of any possible Fleuti issue, since respondent was
convicted of illegal entry under the Act. Fleuti is likewise inapplicable to an alien who
enters the Fleuti is likewise inapplicable to an alien who enters the United States
without inspe tion (Matter of Kolk, 11 I. & N. Dec. 103 (BIA 1965); d. Palatian v. INS,
502 F.2d 1091 Cir. 1974).
(3) Respondent. by reason of his conviction for illegal entry, is collaterally estopped from
relitigating tie issue of illegal entry in these deportation proceedings,
CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entry without inspection
ON BEHALF 01' RESPONDENT:

ON BEHALF OF SERVICE:

Vincent
Appellate Trial Attorney

Warms Conakothekres, Esquire

Paul C.

515 Madison Avenue
New York, New York 10022

In a decision dated January 24, 1973, upon a remand from this Board,
the immigration judge found the respondent deportable as charged and
denied his application for voluntary departure. The respondent has

appealed from that decision. The appeal will be dismissed.

The Service has introduced a record of conviction showing that on
November 16, 1969, the respondent was convicted in the United States
District Court for the Northern District of New York for entering the
United States without inspection on November 15, 1969 in violation of
section 275 of the Immigration and Nationality Act 3 (Exh. 2).
The definition of "entry" contained in section 101(a)(13) of the Act is
1

8 U.S.C. 13'25.

346

Interim Decision #2396
applicable to both the criminal provisions of section 275 and the deportation provisions of section 241(a)(2). Matter of Barragan-Garibay, 16 I.
& N. Dec. (BIA 1974). We believe that the respondent is collaterally
estopped from relitigating the issue of illegal entry in the present
proceedings. Matter of Barragan-Garibay, supra; Matter of Grandi, 13
I. & N. Dec. '798 (BIA 1971); Matter of Campos, 13 I. & N. Dee. 148
(BIA 1969); Matter of Z , 5 I. & N. Dec. 708 (BIA 1954). See also
Pena-Cabanillas v. United States, 394 F.2d 785 (C.A. 9, 1968); United
States v. Rangel-Perez, 179 F. Supp. 619 (S.D. Cal. 1959); Anselmo v.
—

Hardin, 252 F.2d 165 (CA. 3, 1958).

Since Rosenberg v. Plead, 374 U.S. 449 (1963), relied upon by counsel, was a case interpreting the definition of "entry" contained in section
101(a)(13) of the Act, the respondent's conviction for illegal "entry"
under the Act is also dispositive of any possible Fleuti issue.
Even if it were necessary for us to look beyond the record of conviction, we would reach the same result. On the record as a whole, we are
satisfied that the Service has established the respondent's deportability
under section 241(a)(2) of the Act by clear, convincing, and unequivocal
evidence. Counsel's allegations of illegal arrest, search, and seizure
have not been'established_ The Fieuti doctrine is clearly inapplicable to
an alien such as the respondent who entered the United States without
inspection in violation of the Act. Matter of Kolk, 11 I. & N. Dec. 103
(BIA 1965); cf. Palatian v. INS, 502 F.2d 1091 (C.A. 9, 1974).
Finally, counsel challenges the immigration judge's discretionary denial of voluntary departure. We agree with the immigration judge that
the circumstances of this case do not warrant a favorable exercise of
discretion.
ORDER: The appeal is dismissed.

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Interim Decision #3945

Matter of Sothon SONG, Respondent
Decided November 19, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An applicant for adjustment of status who was admitted on a K-1 visa, fulfilled the terms
of the visa by marrying the petitioner, and was later divorced must submit an affidavit of
support from the petitioner to establish that he or she is not inadmissible as a public charge
under section 212(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(4)
(2012).
FOR RESPONDENT: Eli A. Echols, Esquire, Duluth, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Hilary Rainone, Assistant
Chief Counsel
BEFORE: Board Panel: GREER and WENDTLAND, Board Members; DONOVAN,
Temporary Board Member
WENDTLAND, Board Member:

In a decision dated July 7, 2017, an Immigration Judge found the
respondent removable under section 237(a)(1)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(1)(B) (2012), as a nonimmigrant who
remained in the United States longer than permitted, denied her application
for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a)
(2012), and ordered her removed. The respondent has appealed from that
decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Cambodia who entered the
United States on a K-1 nonimmigrant fiancée visa on November 25, 2011,
and married her United States citizen fiancé, the visa petitioner, within
90 days. On February 3, 2012, the respondent filed an application for
adjustment of status with the U.S. Citizenship and Immigration Services
(“USCIS”), along with a Form I-864 (Affidavit of Support Under Section
213A of the INA) executed by the petitioner. While the application was
pending, the marriage broke down, and on July 10, 2012, the petitioner wrote
to the USCIS to withdraw his affidavit of support. On November 21, 2012,
the USCIS denied the respondent’s adjustment application, finding that she
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Interim Decision #3945

was inadmissible under section 212(a)(4) of the Act, 8 U.S.C. § 1182(a)(4)
(2012), as an alien who is likely to become a public charge. The couple
divorced on December 20, 2012. The Department of Homeland Security
(“DHS”) subsequently initiated removal proceedings.
Before the Immigration Judge, the respondent renewed her application
for adjustment of status and submitted a new affidavit of support from a
family friend. Although the Immigration Judge found that the respondent’s
divorce did not render her ineligible for adjustment of status, she was
required to provide an affidavit of support from the petitioner, her former
husband, to establish that she was admissible to the United States. Because
the respondent could not do so, the Immigration Judge concluded that she
was inadmissible as an alien who is likely to become a public charge and
denied her adjustment application.

II. ISSUE
The issue before us is whether an applicant for adjustment of status who
was admitted on a valid K-1 nonimmigrant visa, fulfilled the terms of the
visa by marrying the petitioner, and was later divorced must submit an
affidavit of support from the petitioner to establish that he or she is not
inadmissible as a public charge.

III. ANALYSIS
“The fiancé(e) visa petition and adjustment processes are hybrid in
the sense that they combine both immigrant and nonimmigrant visa
attributes . . . .” Matter of Le, 25 I&N Dec. 541, 544 (BIA 2011). We have
therefore held that “fiancé(e) visa holders remain similarly situated to
immediate relatives in satisfaction of the section 245(a) immigrant visa
requirements.” Matter of Sesay, 25 I&N Dec. 431, 439 (BIA 2011). Under
section 245(a) of the Act, an alien may be admitted for lawful permanent
residence if, among other things, he or she is admissible. An alien is
inadmissible under section 212(a)(4)(A) if, “in the opinion of the Attorney
General at the time of application for admission or adjustment of status, [the
alien] is likely at any time to become a public charge.”
Section 212(a)(4)(B)(i)(IV) of the Act states that in determining whether
an alien is inadmissible as a public charge, “the Attorney General shall
at a minimum consider” various factors, including the alien’s “assets,
resources, and financial status.” (Emphasis added.) But according to section
212(a)(4)(B)(ii), “the Attorney General may also consider any affidavit of
support.” (Emphasis added.) However, under section 212(a)(4)(C)(ii) of
the Act, aliens with immediate relative status or family-based preference
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Interim Decision #3945

classification are inadmissible unless “the person petitioning for the alien’s
admission . . . has executed an affidavit of support . . . with respect to such
alien.” Although fiancé(e) visa holders differ in certain respects from aliens
in those categories, see Matter of Sesay, 25 I&N Dec. at 439–40, the
governing regulation at 8 C.F.R. § 213a.2(b) (2018) explicitly makes them
subject to the same statutory requirement. That regulation provides:
Affidavit of support sponsors. The following individuals must execute an affidavit
of support on behalf of the intending immigrant in order for the intending immigrant
to be found admissible on public charge grounds:
(1) For immediate relatives and family-based immigrants. The person who filed a
relative, orphan or fiancé(e) petition, the approval of which forms the basis of the
intending immigrant’s eligibility to apply for an immigrant visa or adjustment of
status as an immediate relative or a family-based immigrant, must execute a [sic] an
affidavit of support on behalf of the intending immigrant. If the intending immigrant
is the beneficiary of more than one approved immigrant visa petition, it is the person
who filed the petition that is actually the basis for the intending immigrant’s
eligibility to apply for an immigrant visa or adjustment of status who must file the
an [sic] affidavit of support.

(Emphases added.)
The respondent argues that, as a matter of policy, it is unreasonable for
Congress to require a fiancé(e) visa holder who complied with the terms of
the visa but was later divorced to provide an affidavit of support only from
the petitioner. This assertion is inconsistent with the plain language of the
statute and regulations. We find further support for our conclusion in the
history and context of the provisions regarding affidavits of support.
For well over 100 years, our immigration laws have included a ground
of inadmissibility for persons who are likely to become a public charge.
See 84 Interpreter Releases, No. 47, Dec. 10, 2007, at 2849, 2850 & n.3.
However, the concept of a legally binding affidavit of support was only
introduced in 1996 and implemented on December 19, 1997. Id. at 2851; see
also Affidavits of Support on Behalf of Immigrants, 62 Fed. Reg. 54,346
(Oct. 20, 1997) (interim rule implementing section 213A of the Act, 8 U.S.C.
§ 1183a (Supp. II 1996)).
Subsequently, the DHS clarified that although the sponsor of a fiancé(e)
or other alien relative is under no legal obligation to file a visa petition or
sign an affidavit of support, if a sponsor chooses to facilitate the immigration
of such a relative, he or she must comply with the legal requirements for
doing so. See Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg.
35,732, 35,744 (June 21, 2006) (final rule) (Supplementary Information).
These requirements include the submission of an affidavit of support.
See 8 C.F.R. § 213a.2(b)(1); see also Memorandum from Michael Aytes,
Acting Dir., Domestic Operations, to USCIS officials 3 (June 27, 2006),
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Interim Decision #3945

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_
Files_Memoranda/Archives%201998-2008/2006/affsuppafm062706.pdf
(“Aytes Memorandum”). Further, to successfully complete the process, the
affidavit of support must be valid at the time of filing and at the time the
adjustment application is adjudicated. See Aytes Memorandum, supra, at 1,
13; see also 8 C.F.R. § 213a.2(e).
An affidavit of support is a legally binding contract. See 8 C.F.R.
§ 213a.2(d). The sponsor assumes the obligation of support when the
beneficiary acquires permanent resident status, and that obligation continues
until one of four scenarios has occurred: (1) the alien naturalizes; (2) the
alien has “acquired 40 quarters of coverage under the Social Security Act”
(that is, he or she has been lawfully employed for approximately 10 years);
(3) the alien leaves the United States permanently, abandoning his or her
permanent resident status; or (4) the alien or the sponsor dies. 71 Fed. Reg.
at 35,740; see also sections 213A(a)(2), (3) of the Act.
The commentary to the regulation also addresses the situation where the
alien and the sponsor divorce.
Section 213A of the Act does not provide any basis to say that divorce does, or
does not, affect a support obligation under an affidavit of support. [The] sponsored
immigrant . . . probably can, in a divorce settlement, surrender his or her right to
sue the sponsor to enforce an affidavit of support. The sponsored immigrant and
the sponsor . . . may not, however, alter the sponsor’s obligations to DHS and to
benefit-granting agencies.

71 Fed. Reg. at 35,740. This lends support to the understanding that
Congress intended the affidavit of support to be a legally binding
commitment, unaltered by the circumstance of divorce. See Form I-864
Instructions (Instructions for Affidavit of Support Under Section 213A of the
INA), at 13 (“Divorce does not end the sponsorship obligation.”).
Whether because of a divorce or some other circumstance, the sponsor
may withdraw an affidavit of support for the alien at any time up to
adjudication of the adjustment application. See 8 C.F.R. § 213a.2(f); Aytes
Memorandum, supra, at 13. However, it is by no means a foregone
conclusion that a sponsor will withdraw his or her affidavit of support for a
spouse upon their divorce. Conceivably, just as the alien could surrender the
right to sue the sponsor to enforce the affidavit of support as part of the
divorce settlement, the sponsor might agree not to withdraw the affidavit.
That possibility supports our conclusion that the plain language of the statute
and regulations does not permit an exception to the affidavit of support
requirements in the event of divorce and that none should be implied.
Moreover, the law allows two explicit exceptions to the affidavit of
support requirement: abuse and death. See USCIS, Affidavit of Support,
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Interim Decision #3945

www.uscis.gov/greencard/affidavit-support (follow When NOT to Submit an
Affidavit of Support) (last updated June 26, 2017). First, an alien who is or
was married to an abusive spouse is not required to provide an affidavit of
support from that petitioner. Sections 204(a)(1)(A)(iii), (iv) of the Act,
8 U.S.C. §§ 1154(a)(1)(A)(iii), (iv) (2012); 8 C.F.R. §§ 204.1(a)(3), 204.2(c)
(2018). Second, in cases where the petitioner has died prior to adjudication
of the adjustment application, the alien is permitted to substitute the
petitioner’s affidavit of support with one from another qualifying relative.
Section 213A(f)(5)(B)(i) of the Act.
These two exceptions highlight the absence of any others. See TRW Inc.
v. Andrews, 534 U.S. 19, 28 (2001) (“Where Congress explicitly enumerates
certain exceptions to a general prohibition, additional exceptions are not to
be implied, in the absence of evidence of a contrary legislative intent.”
(citation omitted)). Congress could have made an exception for the divorce
of a K-1 visa holder and the sponsoring petitioner, but it did not. Instead, by
requiring that “the person petitioning for the alien’s admission” must be the
individual who executes an affidavit of support, Congress clearly indicated
its intent that the sponsor who brought the alien to the United States must
be financially responsible for the alien through the period of his or her
adjustment of status. Section 212(a)(4)(C)(ii) of the Act; see also 8 C.F.R.
§ 213a.2(b)(1) (stating that the person who filed the petition upon which the
alien’s adjustment is based must file the affidavit of support).
The respondent argues that we should follow our reasoning in Matter of
Sesay, 25 I&N Dec. at 440–41, where we concluded that the K-1 visa holder
could adjust his status despite his divorce from the petitioner if he was
otherwise admissible. However, as we noted there, the regulations were
silent regarding the consequences of the termination of a valid marriage.
Id. at 439. By contrast, 8 C.F.R. § 213a.2(b)(1) affirmatively states that a
fiancé(e) petitioner must be the person who files an affidavit of support on
behalf of the K-1 visa holder. Further, the K-1 visa holder is inadmissible as
a public charge if the petitioner declines to submit an affidavit of support or
withdraws it before the alien’s adjustment application has been adjudicated.
See section 212(a)(4)(C)(ii) of the Act; 8 C.F.R. § 213a.2(f). Because the
language of both the statute and the regulations is plain and unambiguous,
we are bound to follow it. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
842–43 (1984); Matter of Figueroa, 25 I&N Dec. 596, 598 (BIA 2011).
In this case, the respondent’s former husband, her petitioning sponsor,
wrote to the USCIS and requested that his affidavit of support for her be
withdrawn prior to adjudication of her application for adjustment of status.
Although the respondent may still adjust her status, she is inadmissible
on grounds that she is likely to become a public charge unless she provides
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Interim Decision #3945

an affidavit of support from the petitioner. See section 212(a)(4)(C)(ii) of
the Act; 8 C.F.R. § 213a.2(b)(1); see also Matter of Sesay, 25 I&N Dec.
at 440–41. Because the respondent acknowledged that she no longer has
an affidavit of support from her former husband, the Immigration Judge
properly found her to be inadmissible and therefore ineligible for adjustment
of status. Accordingly, because the respondent conceded removability and
has presented no other applications for relief, her appeal will be dismissed.
ORDER: The appeal is dismissed.

493


Interim Decision ,#2379

MATTER OF SWISSAIR "FLIGHT 164", ET AL.

In Fine Proceedings
.B0S-10/11.284

NYC- 10/52.2851; 52.2900; 52.2843; & 52.2745
Decided by Board December 13, 1974
The carrier moved to reconsider the dismissal of prior appeals from decisions imposing
fines under section 273 of the Immigration and Nationality Act. The motions are denied.
The carrier contends that the transit without visa regulations at 8 CFR 212.1(e) were
suspended without compliance with the rulemaking provisions of 5 U.S.C. 553. The
Service and the Department of State did give notice of suspension by notice published at
37 FR 20176, prior to the dates of arrival of all the passengers herein. The notice made
specific reference to the fact of increased terrorist activities and the need for more
careful screening of applicants for admission. Since the suspension of the rule involved
foreign affairs function of the United States, the suspension of the regulation was
exempt from the notice and comment provisions of the Administrative Procedure Act,
and was properly published.
IN RE: Swissair Airlines Aircraft:
"FLIGHT #164", which arrived at Boston, Massachusetts from foreign, on
November 6, 1972. Alien passenger involved: Marguerite Mufti;
"FLIGHT #110", which arrived at John F. Kennedy International Airport
from foreign, on December 12, 1972. Alien passenger involved: Myong Za So;
"FLIGHT #100", which arrived at John F. Kennedy International Airport
from foreign, on December 28, 1972. Alien passenger involved: Marie Louise
Balmer;
"FLIGHT #110", which arrived at John F. Kennedy International Airport
from foreign, on December 7, 1972. Alien passenger involved: Ana B. Gomez
De Casas;
"FLIGHT #100", which arrived at John F. Kennedy International Ariport
from foreign, on October 24, 1972. Alien passenger involved: Auribel Sanchez
De La Barreda.
BASIS FOR FINE:

Act of 1952—Section 273(a) [9 U.S.C. 1323(a)]
ON BEHALF OF SERVICE:
Paul C. Vincent
Appellate Trial Attorney

ON BEHALF OF CARRIER:
Steven R. Schlam, Esquire
Freeman and Kra
335 Broadway
New York, New York 10013

The carrier has moved for reconsideration of five of our orders in
which we dismissed the carrier's appeals from decisions by the district
291

Interim DeCision #2379
director imposing fines under section 273 of the Immigration and Nationality Act. The motions will be denied.
Counsel contends that the transit without visa regulations, 8 CFR
212.1(e), were suspended without compliance with the rule making
provisions of the Administrative Procedure Act, 4 U.S.C. 553.
The order by the Commissioner of Immigration suspending the Service's transit without visa regulations was in conjunction with the suspension of the corresponding Department of State transit without visa
regulations, 22 CFR 41.6(e). Notice of both of these actions was published as required by law in 37 Fed. Reg. 20176 (September 27, 1972). 1
Thesupnioftrawhuvisegltonarud
a finding by ti e Secretary of State, with the concurrence of the Attorney General, that: "The general increased threat of terrorist activities in
the United States, together with indications that such activities may be
planned during the current sessions of the United Nations General
Assembly, have created an emergent situation in which it is necessary
to screen more carefully applicants for entry into the United States."
The order suspending 22 CFR 41.6(e) made specific reference to the
inapplicability of the Administrative Procedure Act's rule making provisions to regulations involving foreign affairs functions of the United

States. See 5 U.S.C. 553(a)(1). The order suspending 8 CFR 212.1(e)
made reference to the preceding order suspending 22 CFR 41.6(e).
It is evident that in suspending 8 CFR 212.1(e), the Commissioner
was relying upon the joint determination by the Secretary of State and
the Attorney General that such action was necessary and was within the
foreign affairs exemption from the rule making provisions' of the Administrative Procedure Act. This is not the proper forum for review of
whether the foreign affairs exemption was properly invoked. Cf. Matter
of Bilbao Bastida, 11 I. & N. Dee. 615, 616 (BIA 1966), aff'd, BilbaoBastida v. INS, 409 F.2d 820 (C.A. 9, 1969), cert. denied, 396 U.S. 802
(1969); Matter of Tzimas, 10 I. & N. Dec. 101, 102 (BIA 1962).
Moreover, we note that a federal cot-:: has recently held that an order
suspending a 'regulation, defective solely for failure to comply with the
notice of proposed rule making provisions of 5 U.S. C. 553, became valid
30 days after it was actually published. Lewis-Motu v. Secretary of
-

Labor, 469 F.2d 478, 482 (C.A. 2, 1972). Consequently, even if the

regulations in questions were not exempt from the provisions of 5
U.S.C. 553, the suspension would be effective in all of the cases presently before us except "Flight #100" which arrived on October 24, 1972.
Finally, counsel argues that even if the suspension of the transit
' Suspension was initially authorized until January 1, 1973. This period was subsequently extended until July 1, 1073. 37 Fed. Rog. 28273 (December 22, 1972); 37 Fed.
Reg. 28286 (December 22, 1972). However, since all of the violations in question took place

prior to January 1; 1973, only the initial suspension is involved here.
292

Interim Decision #2379
without visa regulations was valid, the reimposition of fines under
section 273 was invalid, because no notice was given that such fines
would be reimposed. We rejected that argument when it was originally
made by counsel in Matter of Swissair "Flight #164," 15 I. & N. Dec.
111 (BIA September 24, 1974). We reject it again here. The fact that a
violation of the law will be treated as such is not a matter which requires
notice by the Service to the carrier.
Our previous orders were correct. The motions for reconsideration
wffi be denied.
ORDER: The motions are denied.

293


MATTER OF SS. BELLINA

In FINE Proceedings
NOR-10/33.103
Decided by Board Auguet 26, 1960
Fine—Section 254—Liability not incurred where crewman's attempt to land is
thwarted by drowning.

No fine liability Is incurred under section 254 of the Immigration and Nationality Act. for failure to detain on board an alien crewman whose body was
found floating near the shore line, having apparently drowned while attempting to escape from the vessel. Landing is the essence of the violation under section 254; and, here, no landing was accomplished.
IN RE: SS. Bellina, which arrived at the port of Norfolk, Virginia, from foreign on April 11, 1960. Alien crewman involved : L--V—.
BAsts cos

FINE:

Act of 1952—Section 254 (8 U.S.C. 1284).
BEFORE THE BOARD

DISCUSSION: This appeal is directed to an administrative penalty of $200 ($1,000 mitigated to the extent of $800), which the
District Director at Washington, D.C., has ordered imposed on
W. J. Browning & Company, agents for the vessel, for failure to
detain on hoard the vessel the above-named alien crewman who was
not granted a conditional landing permit. The appeal will he sustained and the fine remitted.
The basic facts of this case are undisputed. Upon arrival, the
above-named alien crewman was not granted a conditional landing
permit and a Form I-95 "Refused" was issued as to him. The
master immediately picked up the crewman's passport, retained it in
. his possession, and instructed the crewman that he could not advance

him any money while the vessel remained in the United States and
that he was not to leave the vessel. As a further precaution, the
master had the vessel's agents arrange for shore guards to stay
aboard from 7:00 a.m. until 12:00 midnight each day, which were
the hours that the ship-to-shore launch was running while the vessel
was anchored in the stream about 2000 yards offshore. The shore
guards remained on the vessel from April 11, 1960, until the vessel
sailed foreign on the night of April 14, 1960. Thereafter, on the
morning of April 15, 1960, the body of this crewman was found
62

floating in the -water near the Newport News shoreline. He had

apparently jumped overboard after having donned a life jacket and
strapped a plastic bag to his waist in which he placed about $700 in
American money. The cause of his death was determined to be
drowning.
We have carefully considered the opinion of the district director
in this case, the entire evidence of record, and the representations of
counsel for the agents and the Service. On the basis of such consideration, we hold that liability to fine hai not been incurred in
this case.
The statute placed upon the agents, among others, the absolute
duty of detaining this crewman aboard the vessel at all times until
he was granted a conditional landing permit. But the purpose of
this statute is to prevent the illegal landing of crewmen. And, obviously, on the facts of this record, the purpose of the statute was
accomplished. The drowning of the crewman prevented his landing.
Secondly, it is a well-recognized rule of statutory construction that
no statute should be

st,

construed as to lead to an absurd result.

We

are of the opinion that the facts peculiar to this case bring it clearly
within that rule.
For the reasons hereinbefore stated, we think it is immaterial from
a fine liability standpoint that it may not have been the efforts of
the agents which prevented the crewman from effecting a landing
in the United States. The landing is the essence of the violation
and without it there can be no fine.
Additionally, we are aware, as the Service representative has
pointed out, that we have consistently held that where a crewman
has made even a brief contact with shore, except for the purpose- of
carrying on ship's business, there has been a landing and a technical
violation of the law. But here it is conceded that there was no landing. Hence, those decisions are not binding in this instance.
ORDER: It is ordered that the appeal be sustained and that no
fine be imposed.


Cite as 28 I&N Dec. 282 (BIA 2021)

Interim Decision #4015

Matter of A-S-M-, Applicant
Decided April 9, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where the Department of Homeland Security states that an applicant may be removed to
a country pursuant to section 241(b)(2) of the Immigration and Nationality Act, 8 U.S.C.
§ 1231(b)(2) (2018), the applicant may seek withholding of removal from that country in
withholding-only proceedings, even if that country is different from the country of removal
that was originally designated in the reinstated removal order on which the
withholding-only proceedings are based.
FOR APPLICANT: Paula Giron, Esquire, Phoenix, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kaylee J. Klixbull, Associate
Legal Advisor
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge;
MULLANE and HUNSUCKER, Appellate Immigration Judges.
MALPHRUS, Deputy Chief Appellate Immigration Judge:

In a decision dated March 29, 2018, an Immigration Judge concluded that
he lacked the authority to consider the applicant’s application for
withholding of removal to Honduras under section 241(b)(3)(A) of the
Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(A) (2018), and
protection under 8 C.F.R. §§ 1208.16(c) and 1208.18 (2020), the regulations
implementing the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted and opened for signature Dec.
10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (“Convention Against Torture”). The applicant has appealed
from this decision. In response to our request for supplemental briefing, the
parties agreed that the record should be remanded for further consideration
of the applicant’s eligibility for withholding of removal. The appeal will be
sustained, and the parties’ motion to remand will be granted.

I. FACTUAL AND PROCEDURAL HISTORY
In 1998, the legacy Immigration and Naturalization Service (“INS”)
served the applicant with a notice to appear, alleging that he was a native and
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Interim Decision #4015

citizen of Mexico and charging him with being removable as, among other
things, an alien who had entered the United States without being admitted or
paroled. The applicant admitted that he was a native and citizen of Mexico.
On May 11, 1998, an Immigration Judge designated Mexico as the country
of removal and ordered the applicant removed from the United States to
Mexico.
In March 2002, the applicant illegally reentered the United States. The
INS reinstated the May 1998 removal order pursuant to section 241(a)(5) of
the Act and removed him again to Mexico.
In 2004, the applicant again reentered the United States. The Department
of Homeland Security (“DHS”), the successor of the INS, detained him in
2012. During his detention, the applicant stated that he is a native and citizen
of Honduras and expressed a fear of being returned to that country. On
March 6, 2013, the DHS issued a Notice of Referral to Immigration Judge
(Form I-863) after concluding that the applicant had a reasonable fear of
torture in Honduras. In this Form I-863, the DHS stated that the INS had
reinstated the applicant’s 1998 removal order pursuant to section 241(a)(5)
of the Act.
On April 26, 2013, the applicant filed an application for withholding of
removal, asserting for the first time before the Immigration Court that he is
a native and citizen of Honduras who fears returning to that country. He did
not indicate on this application that he fears returning to Mexico. At
a subsequent hearing, the DHS indicated that it intended to remove the
applicant to Honduras and both parties submitted documentation supporting
the applicant’s assertion that he is a native and citizen of Honduras.
On March 29, 2018, the Immigration Judge concluded that he lacked the
authority to consider the applicant’s application for withholding of removal
under the Act and the Convention Against Torture based on his fear of being
returned to Honduras. The Immigration Judge found that he only had the
authority to consider an application for withholding of removal to Mexico
since the applicant had been ordered removed to Mexico, his
withholding-only proceedings were premised on a reinstated removal order
designating Mexico as the country of removal, and he had never been ordered
removed to Honduras. Because the applicant’s application did not
demonstrate a likelihood of persecution or torture in Mexico, the
Immigration Judge denied it.
The applicant challenges the Immigration Judge’s decision, arguing that,
even though he was previously ordered removed to Mexico, the DHS has
indicated he may be removed to Honduras since the record reflects, and the
parties agree, that he is a native and citizen of that country. Because the DHS
may potentially remove him to Honduras, the applicant contends that he may
seek withholding of removal to Honduras pursuant to section 241(b)(3)(A)
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Interim Decision #4015

of the Act, which prohibits the DHS from removing him to a country where
his life or freedom would be threatened. The DHS does not dispute that the
applicant is eligible to seek withholding of removal to Honduras, and it
requests that the record be remanded for this purpose.

II. ANALYSIS
An alien, like the applicant, who is subject to a reinstated order of removal
under section 241(a)(5) of the Act and found to have a reasonable fear of
persecution or torture in the “country of removal” is entitled to a hearing
before an Immigration Judge “for full consideration of the request for
withholding of removal only.” 8 C.F.R. § 1208.31(a), (c), (e) (2020). The
question in this case is whether an applicant in withholding-only proceedings
may seek to have his removal withheld from a country to which the DHS
indicates he may be removed, even if that country is different from the
original “country of removal” designated on the reinstated order on which
the withholding-only proceedings are based. We review this question of law
de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2020). For the following reasons, we
conclude that the applicant may seek withholding of removal to Honduras.
A. Country of Removal
Section 241(b)(2) of the Act prescribes the procedures for determining
the “country of removal” for an alien subject to an order of removal,
including a reinstated removal order. See Jama v. ICE, 543 U.S. 335, 341
(2005). 1 This provision first states that the DHS 2 “shall remove” an alien to
the country he or she designates during the removal hearing, unless
1

The framework set forth in section 241(b)(2) of the Act does not apply to “[a]liens
arriving at the United States,” for whom there are separate procedures for determining the
country of removal under section 241(b)(1) of the Act. See Jama, 543 U.S. at 351 n.11;
see also, e.g., Shuaibu v. Gonzales, 425 F.3d 1142, 1144–45 (8th Cir. 2005) (finding that
the country of removal for an alien who was stopped by immigration officers at an airport
and placed in removal proceedings was governed by section 241(b)(1) of the Act).
2
Although these provisions refer to the “Attorney General” as the party responsible for
determining the proper country of removal, “the discretion formerly vested in the Attorney
General” in this regard was “vested in the Secretary of Homeland Security” pursuant to the
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. Jama, 543 U.S.
at 338 n.1; see also 6 U.S.C. § 251 (2018). Thus, although the Attorney General was
responsible for determining the country of removal when the applicant was first ordered
removed in 1998, the issue in this case is whether Honduras is the proper country of
removal in the applicant’s current withholding-only proceedings. We will therefore refer
to the DHS as the entity responsible for determining the appropriate country of removal.

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Interim Decision #4015

a statutory condition precluding that designation applies. See sections
241(b)(2)(A)–(C) of the Act. 3
If the alien cannot be “removed to [the] country designated,” the DHS
“shall remove the alien to a country of which the alien is a subject, national,
or citizen unless the government of the country” fails to inform the DHS
whether it will accept the alien or is unwilling to accept the alien. Section
241(b)(2)(D) of the Act. And, if the alien cannot be removed to that country,
the DHS “shall remove” him or her to, among other places, the “country in
which the alien was born,” or the “country that had sovereignty over the
alien’s birthplace when the alien was born.” Sections 241(b)(2)(E)(iv)–(v)
of the Act.
The DHS “retains discretion” to determine the proper country of removal
under section 241(b)(2) of the Act. 8 C.F.R. § 241.15(a) (2020). Neither the
Immigration Judges nor this Board has jurisdiction to review the DHS’s
discretionary determination in this regard. 8 C.F.R. § 1241.15 (2020).
However, once the DHS determines the proper country of removal under
section 241(b)(2), it “may not remove” an alien to that country if “the alien’s
life or freedom would be threatened in that country” on account of a ground
protected under section 241(b)(3)(A) of the Act. Nor may it remove an alien
to that country if “it is more likely than not that he or she would be tortured”
there. 8 C.F.R. § 1208.16(c)(2).
B. Application
It is unclear whether the applicant or the former INS designated Mexico
as the country of removal during his 1998 removal proceedings. However,
the DHS stated during the withholding-only proceedings below that it
intended to remove the applicant to Honduras, and the parties presented
evidence showing that he is, in fact, a native and citizen of Honduras. Based
on this evidence, the DHS now indicates that the applicant may be removed
to Honduras pursuant to section 241(b)(2)(D) of the Act since he is
a “citizen” of that country. Thus, the applicant is eligible to seek withholding
of removal from Honduras. See section 241(b)(3)(A) of the Act; 8 C.F.R.
§ 1208.16(c)(2).
Although the prior order of removal against the applicant designated
Mexico as the country of removal, the DHS can nevertheless remove him to
any country permitted under the statute, regardless of whether it is formally
3

For instance, even if an alien designates “a foreign territory contiguous to the United
States” as the country of removal, the DHS may not remove the alien to that territory unless
he or she is “a native, citizen, subject, or national of, or has resided in” that country. Section
241(b)(2)(B) of the Act. Section 241(b)(2)(C) of the Act provides additional statutory
conditions for “disregard[ing] a designation,” but these conditions are inapplicable here.

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Interim Decision #4015

designated on a removal order issued by an Immigration Judge. See sections
241(b)(2)(B)–(E) of the Act. Furthermore, section 241(b)(3)(A) of the Act
prohibits an alien’s removal to a country where the alien’s life or freedom
would be threatened. Therefore, the Immigration Judge was not bound by
the designation of Mexico as the country of removal in 1998, and, once the
DHS stated that it intended to remove the applicant to Honduras, the
Immigration Judge should have given “full consideration” to the applicant’s
request for withholding of removal to Honduras pursuant to section
241(b)(3)(A) of the Act and the Convention Against Torture. 8 C.F.R.
§ 1208.31(e); see also, e.g., R-S-C- v. Sessions, 869 F.3d 1176, 1180 (10th
Cir. 2017) (“This withholding-only rule is consistent with the United States’
nonrefoulement obligation, as well as the statutory prohibition on deporting
aliens to a country wherein the alien would suffer persecution on the basis of
certain personal characteristics.”).
We recognize that 8 C.F.R. § 1241.8(e) (2020) lends some support to the
Immigration Judge’s conclusion because it provides that an alien subject to
a reinstated removal order who “expresses a fear of returning to the country
designated in that order” shall be referred for a reasonable fear interview
pursuant to 8 C.F.R. § 1208.31. 8 C.F.R. § 1241.8(e) (emphasis added).
However, § 1241.8(e) must be read in context, not in isolation. See Matter
of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745, 750 (BIA 2020)
(stating that it is appropriate to read regulations, not in isolation, but in the
context of other related regulations).
As noted, § 1241.8(e) cross-references § 1208.31. That regulation
provides that the reasonable fear process shall be initiated anytime an alien,
who is subject to a reinstated order of removal, “expresses a fear of returning
to the country of removal” during the reinstatement process. 8 C.F.R.
§ 1208.31(a) (emphasis added); see also 8 C.F.R. § 1208.31(b). This
regulation goes on to state that an alien “shall be determined to have a
reasonable fear of persecution or torture,” and be referred to an Immigration
Judge for a withholding-only hearing, “if the alien establishes a reasonable
possibility that he or she would be persecuted . . . [or] tortured in the country
of removal.” 8 C.F.R. § 1208.31(c) (emphasis added); see also 8 C.F.R.
§ 1208.31(e). Thus, unlike § 1241.8(e), § 1208.31 does not condition
a reasonable fear interview or a withholding-only hearing on an alien’s fear
of returning to the “country designated” in the reinstated removal order.
8 C.F.R. § 1241.8(e). Instead, it conditions these proceedings on a fear of
harm in the “country of removal,” a broader term, which we take to mean the
country to which the DHS has stated it will remove the alien pursuant to
section 241(b)(2) of the Act. See also section 241(b)(3)(A) of the Act
(prohibiting an alien’s removal to a country where his or her life or freedom
would be threatened).
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We therefore read § 1241.8(e) as referring to only one reason for initiating
the reasonable fear process—namely, an alien expresses a fear of returning
to the country designated in the reinstated removal order. Section 1208.31
refers to all other reasons for initiating this process, including instances
where an alien expresses, during the reinstatement process, a fear of returning
to any country to which the DHS has stated it may remove the alien.
A contrary conclusion would be inconsistent with the broader language used
in § 1208.31 and impinge on the DHS’s exclusive authority to determine the
appropriate “country of removal” pursuant section 241(b)(2) of the Act.
8 C.F.R. §§ 241.15(a), 1241.15.
We therefore hold that where, as here, the DHS states that an applicant
may be removed to a country pursuant to section 241(b)(2) of the Act, the
applicant may seek withholding of removal from that country in
withholding-only proceedings, even if that country is different from the
country that was originally designated in the reinstated removal order on
which the withholding-only proceedings are based. 4 Thus, the Immigration
Judge erred when he concluded that he could not consider the applicant’s
application for withholding of removal to Honduras. Accordingly, the
applicant’s appeal is sustained, the parties’ joint request for remand is
granted, and the record is remanded to the Immigration Judge for further
consideration of the applicant’s eligibility for withholding of removal to
Honduras under section 241(b)(3)(A) of the Act and the Convention Against
Torture. We express no opinion regarding the outcome on remand.
ORDER: The applicant’s appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and the
entry of a new decision.

4

The DHS has the exclusive authority to place an alien in removal proceedings. See
Matter of W-Y-U-, 27 I&N Dec. 17, 19 (BIA 2017) (stating that we “lack the authority to
review the DHS’s decision to institute proceedings, which involves the exercise of
prosecutorial discretion”). Further, the DHS has the discretion under section 241(b)(2)(E)
of the Act to conceivably remove an alien to any country that is willing to accept him or
her, if it unable to remove the alien to a country designated under sections 241(b)(2)(A)
through (D) of the Act. However, where the DHS states that an applicant in
withholding-only proceedings may be removed to a country where he or she fears
persecution or torture, an Immigration Judge needs to fully consider whether the applicant
is eligible to have his or her removal withheld from that country under the Act and the
Convention Against Torture.

287


MATTER
OF T

In DEPORTATION Proceedings
A-11407466
Decided by Board January 15, 1959
Evidence--Alienage—Effect to be given dismissal of section 503 action in subsequent deportation proceedings.
Special inquiry officer was not justified in refusing to receive evidence on
issue of alienage from respondent admitted temporarily with certificate of
Identity to prosecute action under section 503 of Nationality Act of 1940
whose suit was dismissed by court without entry of final order determining
citizenship.
CHARGE'

Order Act of 1952--Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Remained
longer.
BEFORE THE BOARD

Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation on the ground stated
above.
The respondent, a 32-year-old male, native of China, was admitted to the United Sla t es on February 25, 1952, upon the presentation of a certificate of identity issued under section 503 of
the Nationality Act of 1940 (8 U.S.C. 903). This law provided for
the admission of a claimant to United States nationality who had
filed a judicial action for declaration that he is a national of the
United States. The respondent had filed such an action in the
United States District Court at San Francisco, California. Trial
of the case was postponed while the State Department conducted an
investigation abroad. The action was dismissed by the court on
May 9, 1958, pursuant to a stipulation between counsel for the
respondent and the United States attorney. The Service then informed the respondent that he was required to depart from the
United States by July 7, 1958. Respondent remained beyond the
period authorized and these proceedings were brought. At the deportation hearing, the Service established the fact that the respondent had entered the United States on a certificate of identity, and
that the judicial action had been dismissed without a declaration
241

by the court that respondent is a national of the United States.
The Service then rested. The respondent attempted to introduce
evidence that he was a citizen of the United States. The special
inquiry officer refused to receive this evidence. He held that by
statute the jurisdiction to determine the nationality of a holder of
a certificate issued under section 503 is in the court and that until
the respondent obtained a court ruling to the effect that he is a
national, the special inquiry officer was required to find him to be
an alien.
Tt appears that, counsel entered into the stipulation for the withdrawal of the case because he had been shown evidence which
established that the respondent was not the son of the man he
claimed to be the son of. However, counsel is of the belief that the
respondent is a citizen through the person who is his father and
counsel wishes to present evidence on this issue.' I'he question for
determination is whether respondent should have been permitted to
present evidence on his own behalf on the issue of nationality.
The Service representative asks that the decision of the special
inquiry officer be sustained since he finds it to be the congressional
intent that an individual admitted under section son was to receive

only a judicial trial of his claim to citizenship. He points out that
the regulations interpreting the act, and the certificate of identity
bearing respondent's signature, indicate that the holder of the certificate would depart from the United States unless he obtained a
favorable decision by the court finding him to be a citizen of the
United States. The Service representative states that the issue is of
importance not only to the case before us but because it will serve
as a precedent in other cases which are pending in district courts.
He states that a decision permitting the introduction of evidence
as

by ultizmiship will place a great burden upon the Service and

will permit the individuals who have been in the United States for
periods of time to prolong their residences since they can again
resort to court action to test the administrative decision in deportation proceedings if it is adverse to them.
Section 503 of the Nationality Act of 1940 provides in pertinent
part as follows:
If any person who claims a right or privilege as a national of the United
States is denied such right or privilege by any Department or agency, or
executive official thereof, upon the ground that he is not a national of the
uniten States, such person, rug. alu,s of ohoffici Le i. wuLhiu the TJoltull
States or abroad, may institute an action against the head of such Depart'At the hearing counsel contended that he had been requested by the gaseminent to enter into a stipulation for dismissal of the court action so that
the Service could reexamine the issue. The examining officer has submitted a
brief pointing out that the United States attorney who handled the matter
has denied the allegation.

245

meat or agency In the District Court of the United States for the District of
Columbia or in the district court of the United States for the district in
which such person claims a permanent residence for a judgment declaring
aim io be a national of the United States. If such person is outside the
United States and shall have instituted such an sego' is 'mart. he may.
upon submission of a escorts application showing that the claim of nationality
presented in such action is made in goad faith and has a subStautial basis,
obtain from a diplomatic or consular officer of the United States in the foreign country in which he Is residing a certificate of identity stating that his
nationality status is pending before the court, and may be admitted to the
United States wills such certificate upon the condition ,that he shall be subject to deportation in soon it shall be decided by the court that he is not a
national of the United States. v *

The pertinent regulations in effect at the time of the respondent's
arrival were as fnllows;
8 CFR § 112.2 Entry upon certificate of identity; conditions. me holder of
such a certificate of identity shall he regarded as an alien until otherwise
finally held by the court in the action for a judgment declaring him to be a
national of the United States. He may be admitted to the United States as
a temporary visitor for business on the condition, including, when deemed
necessary, the giving of a bond with sufficient surety, that he shall depart
from the United States if it is discovered that he has obtained admission by
fraud or other illegality or sr the liens action in court to determine his nationality is not to the effect that he is a national of the United States.
The conditions shall be such as may be deemed necessary to safeguard the
piddie and to require periodic reports by the person of his whereabouts to the
immigration authorities or the -Coifed 2tato., so that departure or deportation
therefrom may be effected in the event it is discovered that he obtained admission by fraud or other illegality or if the Anal outcome of his action in
court to determine his nationality is not to the effect that he is a national of
the United. States and if he then fails to depart without delay from the United
States in accordance with directions from the immigration authorities. v v
A person admitted on a certificate of identity shall be informed at the time of
admission that, mail he departs from the United States or there is a decision
of the court that he Is a national of the United states, ho is required hir law
to notify the Commissioner of Immigration and Naturalization, Washington,
D.C., in writing of his address at the expiration of each three months' period
of residence in the United States, Also, at the time of such admission, a
report of the name of such person and the date and port of his admission
shall be made by the immigration office at once to the United States attorney
for the judicial district in which the action by the person Is pending for a
judgment declaring that he is a national of the United States. If the final
decision in such action in court be that he is a national of the United States,
a. record to that effect shall be made by the immigration authorities at the
pur l of admission .
8 Chat § 112.4 When deportation proceedings coats ae tostitorm Steps for
the institution of deportation proceedings against a person admitted on the
basis of a certificate of identity shall be taken by the Immigration and Nature
ralization Service in accordance with the applicable sections of Part 150 of
this chapter if found to have obtained admission to the United States unlaw
fully or if he fails to comply with the conditions under which admitted ti
the United States.

246

These regulations are not applicable at this time. They are included in this discussion for the light they may shed upon the
construction to be given the statute. There are no Service regulations now specifically referring to admission or deportation of
"persons holding a certificate of identity under section 503." The
State Department does have regulations concerning the issuance of a
certificate of identity (22 CFR 50.45).
The laiv and regulations contemplate a situation where the court
has declared either the claimant is a citizen or that he is not. It
does not appear to contemplate a situation where the court took
action other than upon the merits. Here, by reason of a stipulation entered into by the parties who appeared in the action, there

was a voluntary dismissal. This left the situation as if suit had
never been filed (Burger v. United States Blind Stitch Mach. Corp.,
8 F.R.D. 362, D.C. N.Y. (1948) ). Deportation is sought not under
section 503, but under section 241(a) (2) of the Immigration and
Nationality Act. What is presented to us is the case of one who
was admitted as a temporary visitor for business and who has
remained beyond the period for which he was authorized to enter.
Unless somewhere there is a clear statement to the contrary, as is
found in 8 CF1% 214.2(c) relating Cy (attach, aliens, the piocedura

normally followed must control. In such procedure, alienage is a
jurisdictional fact and the special inquiry officer has authority to
make a determination of deportability only after the percon placed

under proceedings has had a reasonable opportunity to present evidence in his own behalf. Moreover, the decision must be based upon
evidence which is reasonable, substantial, and probative (section
242(b), Immigration and Nationality Act, 8 U.S.C. 1252(b); 8
CFR 242). As a matter of fact, the procedure here was instituted
under such a theory. The order to show cause bearing the allegation that respondent is not a citizen or national of the United States
also states that if the allegations are not admitted, the individual
"will be given reasonable opportunity to present evidence" on his
own behalf.
The special inquiry officer's ruling that respondent is deprived
of the right to contest the issue of alienage is apparently based on
the belief that a conclusive presumption of alienage exists. The
special inquiry officer relies upon the language of section 503 and
the regulations promulgated thereunder. However, this proceeding
is not brought under sertion 5n2, and in any event., neither the statute
nor the regulations state that a conclusive presumption of alienage
exists in deportation proceedings concerning an individual admitted
with a certificate of identity. The statute and regulations merely
state that the holder of the certificate shall be admitted upon condition that he shall be subject to deportation in a case where the
247

court decides that he is not a national of the United States. This
may be no more than a warning to the individual that he will not
be permitted to remain in the United States if his application is
rejected by the court; that he receives no right as the holder of
the certificate except the right to prosecute an action; and that
while he is in the United States, he is to be considered an alien
and is not to exercise the rights of a citizen until decision is made
in his favor. The old regulations which we have set fOrth state
that if the holder of the certificate fails to depart from the United
States, steps to effect his removal were to be taken under 8 CFR
150 which then provided for the deportation of aliens against whom
a prima facie case of deportability has been made. The procedure
then used is similar to the procedure followed at present in that
alienage was a jurisdictional matter and the presentation of "all
available evidence" concerning alienage and other matters was required (8 CFR 151). The old regulations contain no express statement concerning a conclusive presumption of alienage.
Deportation proceedings here do not differ from any proceeding
brought under eeetion 241(a) (2) of the Immigration and Nationality

Act. Evidence by the respondent on the issue of alienage should
be permitted so that he can refute the prima facie case of alienage
which exists. The burden of establishing alienage still rests upon
the Service.
In passing, we note that the Service itself apparently has recognized as citizens holders of certificates of identity who have not
been declare' nationals by judicial action. It cannot with consistency take the position that it is not estopped from administratively
weighing the merits of a case which it believes will establish citizenahip, but that it is estopped from considering the merits of a sass

in which in some manner unstated it has formed the opinion that
the holder of a certificate is an alien.
Proceedings will be ordered reopened in accordance with the foregoing.
Order: It is ordered that the proceedings be reopened in accordance with the foregoing and for such further action as the special
inquiry officer may deem appropriate.

248


Interim Decision #2171

rb.R OF ARTEAGA-GODOY

In Visa Petition Proceedings
A-19780667
Decided by Board October 27, 1972
Absent a showing that petitioner was aware of the derogatory evidence which
formed the basis for denial of her visa petition, the Board of Immigration
Appeals remanded the case to the District Director for further proceedings in
order that petitioner be advised of such evidence and offered an opportunity
to rebut it and to present evidence in her behalf, as provided by 8 CFR
I03.2(b)(2).*
ON REHALFOF BENEFICIARY: R. L Pachefsky, Esquire
Brady, Pachefsky & Sullivan
606 West Wisconsin Avenue
Milwaukee, Wisconsin 53203

This is an appeal from the District Director's order dated
August 31, 1972, denying a United States citizen's visa petition to
accord the beneficiary immediate relative status as her husband
under section 201(b) of the Immigration and Nationality Act. For
the reasons stated below, the record will be remanded to the
District Director for further proceedings.
We are met at the outset with a jurisdictional question. The
notice of appeal, which is signed by counsel, appears to have been
filed in behalf of the beneficiary alone. There is no notice of appeal
by or in behalf of the petitioner. The regulation, 8 CFR 204.1(a),
refers only to the petitioner's right to appeal to this Board. Under
comparable circumstances, we have held that only the petitioning
spouse, and not counsel for the beneficiary, has the right of appeal,
Matter of C—, 9 L & N. Dee. 547 (BIA, 1962), Matter of Kurys, 11 L
& N. Dec. 315 (BIA, 1965). There has been no definitive decision in
the courts on whether the beneficiary of a visa petition has
standing to challenge its denial? Recent decisions of the Supreme
* See also, Matter of Holmes, Interim Decision No. 2274 (BIA, 1974).
See Pacheco-Pereira v. INS, 342 F.2d 422 (C.A. 1, 1965); Ham Sin v. Esperdy,
F Sapp_ 903 (S.D.N.Y., 1965).

226

Interim Decision #2171
Court have taken a more expansive view of standing. 2 Since we
conclude that the District Director erred, to avoid any jurisdictional issue we shall take the case on certification under 8 CFR
3.1(c).
The visa petition, filed May 30, 1972, recites that the petitioner,
Luz Minerva Arteaga, is a citizen of the United States by birth in
Puerto Rico on September 25, 1945; that she married the beneficiary, a Mexican native, on May 23, 1972; and that neither was
previously married. The file contains a report of investigation
dated August 28, 1972, made by a Service investigator. It asserts,
,

among other things, that the beneficiary last entered the United

States without inspection on December 15, 1971; that on May 3,
1972 he was found deportable and granted voluntary departure,
extended to June 2, 1972; that on June 23, 1972, in sworn, testimony
before an immigration examiner, petitioner stated she had never
been previously married and that to the best of her knowledge the
beneficiary was never married before. A transcript of that sworn
statement does not appear in the record.
The investigative report recites that on August 4, 1972 the
superintendent of beneficiary's employer' was interviewed; that
the employment records reflect that the beneficiary was employed
there from January 3, 1972 to May 29, 1972; and that he was

married and had three children living in Mexico, and claimed five
exemptions for income tax purposes. The superintendent told the
Service investigator that when he quit on May 29, 1972, the
beneficiary said he was returning to Mexico.
Continuing, the investigative report recites an interview on
August 21, 1972 with a payroll supervisor at the beneficiary's
former place of employment in 1970 and 1971. The employment
record, according to the investigative report, reflects beneficiary's
marital status as married, gives his wife's name as Guadalupe
Martinez-Arteaga, refers to three children, gives Mexico as the
address of his wife and children, and reveals a claim of five
exemptions for income tax purposes.
An interview on August 25, 1972, recited in the investigative
report, reflects that the beneficiary's application for medical insurance on February 29, 1972 shows him as married, states that his
wife is Guadalupe, born June 7, 1951, and that he has three

children, all residing at 651 West Bruce Street, Milwaukee, Wisconsin. (We note that that is the petitioner's address.) The investigative report also reflects that a record of beneficiary's arrest in 1970
gives his marital status as married.
2 See Flast v. Cohen, 392 U.S. 83 (1968); Association of Data Processing Service
Organizations v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970).

227

Interim Decision #2171
The record contains a letter dated August 30, 1972 from the
beneficiary's health insurance carrier, enclosing a copy of his
application dated February 29, 1972. The latter states that the
beneficiary's spouse is Guadalupe, born June 7, 1951, and recites
the names of two children under the age of 19.
In his decision dated August 81, 1972, denying the visa petition,
the District Director relied on the facts recited in the investigative
report and the records disclosed therein. The record contains no
indication that, following her interview on June 23, 1972, the
petitioner was ever confronted with the information and evidence
uncovered by the subsequent investigation and given an opportunity to rebut it. Quite the contrary, it is clear from the sequence of

events that no attempt was made to bring this derogatory information to the petitioner's attention before the District Director
made his decision.
8 CFR 103.2(b)(2) provides, in pertinent part, as follows:
Inspection of evidence. An applicant or petitioner shall be permitted to inspect
the record of proceedings which constitutes the basis for the decision, except as
hereinafter provided. If the decision will be adverse to the applicant or petitioner on the basis of derogatory evidence considered by the Service and of
which the applicant or petitioner is unaware, he shall be advised thereof and
offered an opportunity to rebut it and present evidence in his behalf before the

decision is rendered, except that classified evidence shall not be made available
to him. Any explanation, rebuttal, or evidence presented by or in behalf of the
applicant or petitioner shall be included in the record of proceeding.

There is nothing in the record to indicate that the petitioner was
aware of the evidence impugning the beneficiary's capacity to
contract a valid marriage with her. While the evidence of a prior
undissolved marriage may have seemed overwhelming to the
District Director, it is conceivable that the petitioner, if confronted
with the derogatory information, might have come forward with
some evidence by way of explanation or rebuttal_ At any rate, the

regulations require that she be given that opportunity, and the
demands of due process would appear to be satisfied with no less.
We shall, therefore, remand the case to the District Director for
further proceedings.
ORDER: The record is remanded to the District Director for
further proceedings consistent with this opinion.

228


MATTER OF H—

In VISA PETITION Proceedings
A-12378722
Decided by Board May 1, 196'2
Marriage—Valid-where-performed polygamous marriage not recognized for
immigration purposes—Effect of subsequent divorce from first spouse.

The Dolvramous marriage of honofiriary and petitioner which is valid in Jordan where performed cannot be recognized as a valid marriage for immigration purposes and will not support a visa petition for nonquota status on
behalf of the beneficiary because the marriage is repugnant to United States
public policy. This invalidity is not altered by beneficiary's divorce of first
spouse subsequent to the second (polygamous) marriage.
BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the District Director, New York District, dated March 2, 1962,
denying the visa petition for the following reasons: the documents
submitted by the petitioner in behalf of the beneficiary reflect that
they were married on July 16, 1961; however, the beneficiary's divorce certificate does not indicate that his first marriage was terminated prior to the petitioner's marriage to the beneficiary; and
in view thereof, the petitioner has not established that her marriage
is valid.
The record shows that the petitioner is a native-born citizen of
the United States, born February 5, 1945, at New York. Her birth
certificate discloses that her parents were born in Jerusalem. She
seeks nonquota status on behalf of the beneficiary, a native and
citizen of Jordan, 37 years old, male. Both parties are of the
Moslem faith. Evidence has been submitted that the parties were
married on July 16, 1961, the ceremony being performed by the legal
mazoun of the Amman Sharia Court at Jabal el .Nasr, Amman,
Jordan. The beneficiary was at the time of the ceremony married,
the petitioner being his second wife; multiple or polygamous marriages are permitted among persons of the Moslem faith according
to the laws of the Hashemite Kingdom of Jordan. Subsequently, on
November 21, 1961, the beneficiary divorced his first wife as evidenced
-

640

by the registration of ouch divorce at the Sharia Ts1A.min Conn, at
Amman, Jordan.
The question presented is whether the polygamous marriage of the
parties. which was valid where performed, constitutes a legal marriage for immigration purposes and whether the subsequent divorce
by the beneficiary of his first wife affects the status of the parties.
The general rule is that the validity of a marriage is determined
by the law of the place where it is contracted or celebrated if valid
there, it is valid everywhere.' An exception to the general rule,
however, is ordinarily made in the case of marriages repugnant to
the public policy of the domicile of the parties, in respect to
polygamy, incest, or miscegenation, or otherwise contrary to its
positive laws. Such cases involve marriages which are repugnant
to the public policy of the domicile of the parties or to the laws
of nature as generally recognized in Christian countries.'
The question has been asked whether a marriage contracted in conformity with the local law, in a country allowing polygamy, would
be recognized by the courts of this country. Anglo American writers
-

generally answer this question emphatically in the negative. They
say that such a marriage is not a marriage as understood among the
Christian nations and that its recognition would be opposed to sound
public policy:' Whatever the particular theory of international
law or conflict of laws followed, all recognize that effect will not
be given to "foreign" law insofar as its application would conflict
(1) with any prohibitory statute of the state In which the suit is
brought; or (2) with the public policy of such state. Questions involving polygamous marriage demand a careful consideration of the
facts of each particular case and of the conflicting policies involved,
with a view to discovering whether the recognition of the foreign
law can be brought into harmony with the legal order of the forum.*
The recognition or nonrecognition of the existence of a polygamous
marriage depends on the purpose for which such recognition is invoked.° In distinguishing between matters regarded as essential
and those of pure formality, resort must be had to a functional test,
namely, what is the reason or purpose of a particular legal system in
1

21

Beale, Conflict of Laws

r.:2d 901 (CA. 9,

(1935

ed.), 'Vol. 2, p. 69; Ng Buoy Hi v. Weedin,

1927) ; Cosulich Societe Triestina di Naregazione r. Elting,

66 P.26 534, 536 (C.A. 2, 1933) ; 55 C.J.S. 811, 812; Matter of F—, 4-601
(A.G., 1952).
2 Ng Suet/ Hi v. Weedin, supral; 55 C.J.S. 813, 814; Story, Conflict of Laws
(9th ed., 1883),

/1

1RS.

Minor, Conflict of. Laws (1901), sec. 75; Dicey, Conflict of Laws (3rd ed.,
1922). p. 389; Wharton, Conflict of Laws (3rd ed., 1905), secs. 130, 132; Foote,
Private international Law (6th ed., 1922), pp. 68, 69.
(Yale University Press, 1947), pp. 394-395, 401.
4 Loreezon, Conflict of Lawa
Graveson, Conflict of Laws (3rd ed., 1955), p. 121.

641
fitI 7—f2-32

imposing any requirement for marriage? Applying this test, it will
be found that whether or not any requirement of marriage is an
essential or formality depends on the degree or intensity of the public
or social interest which it embodies and expresses.` There have
-ar2c ,:s marriages,
been exceptions from the nonrecognition of
:.:een upheld
such as American Indian tribal marriages, which
.al laws and
in the, absence of a federal statute rendering s ,
English decustoms invalid. While the statement lies be
van to foreign
cisions to the effect that no recognition will b
mean and one
are not a monogamous union of
m:,rri
life, nevertheless, such marriages, v- ,7 ' under the law
WOMEt1-:,.
id in this coungoverm:ig them, have at times been recognized as
try but such recognition does not. involve ia recognition of the right
to exercise here all the incidents usual to the marriage relationship.'
The public policy of the United States against polygamists. and
polygamy as expressed in the immigration laws has been a part of
the laws since the Act of March 3, 1891 (26 Stat. 1081), which added
polygamists to the lis of excludables wider the immigration laws.
Thereafter, every amendatory act has included polygamists among
the inadmissible classes and the present statute prohibits the admission of aliens who are polygamists or who practice polygamy or
advocate the practice of polygamy. 8 In view of this statutory expression of a strong federal public policy against polygamy, it is
concluded that the polygamous marriage in the instant case falls
within the well-recognized exception to the general rule that the
validity of a marriage is determined by the law of the place of celebration. It is concluded that this polygamous marriay cannot be
recognized as a valid marriage for immigration purposes and will
not support a visa petition for nonquota status on behalf of the
beneficiary. The fact that the prior marriage of the beneficiary was
dissolved subsequent to the second polygamous marria would not
appear to affect the nonrecognition of the polygamous marriage.
The appeal will be dismissed.
ORDER: It is ordered that the appeal from the denial of the visa
petition be and the same is hereby dismissed.
Idem, p. 125.
Goodrich, Conflict of Latin (3rd ed., 1949), pp. 370, 373.
'Section 212(a) (11) of the Immigration and Nationality Act (8 U.S.C.

7

1182(a) (11)).

642


MATTER

or C

In EXCLUSION Proceedings
A-11452V03
Decided by Board December 28, 1959

Loss of citizenship—Retention requirements of section 349(a)(1) of 1952 act
apply to citizen who attains age 23 subsequent to December 24, 1952.
(1) Under section 401(a) of the Nationality Act of 1940, subject, who ac-

quired United States citizenship at birth in Italy in 1933 pursuant to 11.S.
1993 and Italian nationality in 1935 upon his father's reacquisition of Italian
citizenship, could retain his United States nationality only by establishing
residence in the United States before reaching age 23.
(2) However, since subject was 19 years of age and still a citizen of the
United States on December 24, 1952, when the Immigration and Nationality
Act became effective, his case is governed by the more liberal provisions of
section 349 (a ) (1) of that act permitting retention of his citizenship if he
applies for admission to the United States before reaching age 25.
7 1. & N. Dec. 612, overruled.
Matter of C
EXCLITI53PLE A ct of 1552—Section 212(a) (20) [S U.S.C. 1182(a) (201 ]—lmmigrant not in pos s e :St_401.1 or an unexpired immigrant visa.
BEFORE THE BOARD

• Discussion : Ths appellant, a 26-year-old married male. born in
Italy on September 19, 1953, arrived at New York, New York, on
July 8, 1958, and applied for admission to the United States as a
citizen thereof. He had in his possession a United States passport
issued by the United States Consul at Palermo, Italy, on June 9,
1958. The aforementioned passport was valid for a return journey
to the United States and expired on August 8, 1958. The appellant
was ordered detained for further examination by a special inquiry
officer for the purpose of determining his admissibility to the United
States under the Immigration and Nationality Act and he was
paroled into the United States under section 212(d) (5) of the
Immigration and Nationality Act pending a final determination on
his application for admission as a citizen of the United States.
After a hearing conducted at San Francit-cu, California, on September 2, 1959, the special inquiry officer directed that the appellant be admitted to the United States as a citizen thereof and at
the same time he certified the case to the Board for final decision
K11

in accordance with the applicable regulations. The record shows
that the appellant's father, a native of Italy, was naturalized a
citizen of the United States in the Superior Court of Santa Clara
County, San Jose, California, on June 14, 102E. The father was
married to a native-born citizen of the United States at Palermo,
Italy, on April 23, 1930, and the appellant was born in Italy on
September 19, 1933, approximately 2 months after his citizen father
last returned to his native country in July 1933, where he has since
resided. The appellant's father was a citizen of the United States
when he (appellant) was born in Italy on September 19, 1933.
Hence, the appellant, acquired United States citizenship at birth
under the provisions of section 1993, Revised Statutes. A certificate
expatriation approved by the United States Department of State
on April 7, 1958, shows that the appellant's father expatriated himself on or about July 29, 1935, under the provisions of the first paragraph of section 2 of the Act of March 2, 1907, by having automatically naturalized a subject of Italy, a foreign state, pursuant
to article IX (3) of the Italian Nationality Law of June 13, 1912,
and by his-having manifested a voluntary acceptance of such nationality in that he resided in Italy continuously subsequent to his
naturalization without documentation as an American citizen from
July 1933 until January 15, 1958, the date the appellant made application for a United States passport. Moreover, he voted in elections held in Italy on June 7, 1953, May 23, 1.954, and June 5, 1955.
Under the provisions of article XII of the Italian Nationality Law
of 1919, the appellant as a minor nonemancipated child acquired
Italian nationality when his father reacquired such nationality in
July 1935. Consequently, lie acquired dual citizenship when he sae
approximately 2 years of age.
The appellant became subject to the provisions of section 401 of
the Nationality Act of 1940, as amended, when that act becalm
effective in January 1941. Section 401 thereof provides that:
Sac. 401. A person who is a national of the United States, whether by birt
or naturalization, shall lose his nationality by:
(a/ Obtaining naturalization in a foreign state, either upon his own appl
cation Or through the naturalization of a parent having legal custody of sue
person: Provided. however, That nationality shall not he lost as the result
the naturalization of a parent unless and until the cane shalt have obtain
the age of twenty-three years without acquiring permanent residence in t
United States * * *.

On the basis of the foregoing, the appellant had to return to t
United States before attaining the age of 23 or lose his Unit
Staten citizenship acquired at birth. Subsequent thereto, the
tionality Act of 1940, as amended, was repealed pursuant to sect
403(a) (42) of the Immigration and Nationality Act on Decem
24, 1952. The appellant on that date was 19 years of age an ∎
512

c iti zen

of the United St a t es . Accordingly, the issue involved in the
instant case is whether the appellant lost his United States citizenship under the provisions of section 401(a) of the Nationality Act
of 1940, as amended, because of his reaching the age of 23 years
without acquiring residence in the. United States or whether he
retained his United States citizenship under the provisions of section 349(a) (1) of the Immigration and Nationality Act.
The Service representative in oral argument stated that the decision rendered by the Service on November 22, 1957, in the Matter of
C—, 7 T. & N. Dec. 612, is controlling in the instant case. The
Service representative argues that, section 401(a) was continued in
operation by reason of the savings clause of the Immigration and
Nationality Act (section 405(a)). The pertinent paragraph of section 349 of the Immigration and Nationality Act reads as follows:
SEC. 349. (a) From and after the effective date of this Act a person who is
a national of the United States whether by birth or naturaliZation, shall lose
his nationality hy(1) obtaining naturalization in a foreign state upon his own application.
upon an application filed in his behalf by a parent, guardian, or duly authorized agent, or through the naturalization of a parent having legal custody of
such person: Provided, That nationality shall not he lost by any person
under this section as the result of the naturalization of a parent or parents
while such person is under the age of twenty-one years, or as the result of a
naturalization obtained on behalf of a person under twenty-one years of age
by a parent, guardian, or duly authorized agent, unless such person shall fall

to enter the United States to establish a permanent residence prior to his
twenty-fifth birthday: And provided farther, That a person who shall have
lost nationality prior to January 1, 1948, through the naturalization in a foreign state of a parent or parents, may,
one year from the effective
date of this Act, apply for a visa and for admission to the United States as
a nonquota immigrant under the provisions of section 101(a) (27) (E) * a a.

The special inquiry officer concluded that the appellant, herein
retained his United States citizenship, inasmuch as he entered the
United States to establish a. permanent residence prior to his 25th
birthday as provided in section 349(a) (1), supra. The special inquiry officer stated in his decision that a somewhat comparable interpretation of a different section of the Immigration and Nationality
was made by the Regional Commissioner in February 1958
and approved by the Assistant Commissioner in the Matter of 31—,
7 I. & N. Dec. 646. The subject in Matter of 31 8.apra„ was
bOrn in Mexico on April 17, 1935, and he acquired United States
citizenship at. birth under section 1993, R. S., as amended, because
of the fact that his father had always been a citizen of the United
States. The issue raised in Matter of M , mpra, was whether
the subject lost. citizenship under the provisions of sections 201 (g)
and (h) of the Nationality Act of 1940, as amended, because he
entered the United States on May 10, 1952, after reaching his 10th
513

supra, that he had
birthday. It was concluded in Jfatter of Of
an opportunity to regain his citizenship by complying with the provisions of sections 301(b) and (c) of the Immigration and Nationality Act, inasmuch as he had been physically present in the
United States since May 10, 1952, and on May 10, 1957, had fulfilled
the retention requirements of sections 301(b) and (c) of the Immigration and Nationality Act, by having cone to the United States
prior to the age of 23 and by having been physically present in this
country continuously for a 5-year period between the ages of 14 and
28. The decision rendered in Matter of supra, is contrary
to the views originally held on this question as set forth in Matter
of B , 5 I. & N. Dec. 291. Matter of M , supra, made a detqed reference to Lee You Fee v. Dulles, 236 F.2d 885, wherein
there was a situation identical in most respects to those existing in
Matter of 21/ and Matter of B , supra.
The District Court, 133 F. Supp. 160, and the Circuit Court of
Appeals, 236 F.2d 885 . held that Lee You Fee had failed to retain
his citizenship because of his failure to come to the United States
prior to the effective date of the Immigration and Nationality Act
of December 24, 1952, and prior to his 16th birthday. The Supreme
Court. granted certiorari in May 1957 and on November 18, 1957, the
court in a per euriam, opinion (355 U.S. 61) stated that: "Upon
cOnsickration of the confession of error by the Solicitor General
and of the entire record, the judgment of the United States Court of
Appeals for the Seventh Circuit is reversed and tile case is remanded to the District Court with directions to vacate its order
dismissing the complaint.." The Government brief submitted by the
Department of Justice stated among other things that the real issue
in Lee You Fee v. Dulles, supra, is whether, although the petitioner
had lost his citizenship under the. 1340 act, sections 301(b) - and (c)
of the . 1952 act gave him an opportunity to regain that citizenship
by•coming to the United States before he was 23 years of age. The
Solicitor General stated in his brief that the petitioner's position
was correct and the contrary position of the Government below in
the District and Circuit Court of Appeals was incorrect; that section 301(c) states in terms that the new rule established by section
301(b) as to losing citizenship unless one has come to the United
States prior to the age of 23 "shall apply to a person born abroad
subsequent to May 24, 1934." Lee You Fee was, in fact, born in
China on July 16, 1935, a date subsequent to May 24, 1934, The
Government brief referred to the comments and analysis of the
Immigration and Naturalization Service on the proposed 195'2 act
wherein it was stated that "although subsection (b) refers specifically to persons born abroad who are citizens under paragraph (7)
of subsection (a), the apparent effect of subsection (c) is to apply

514

the rules for retention of citizenship 001
in subsection (b) to
all persons born abroad subsequent to May 24, 15)34." The Government brief noted that the language and legislative history in section
301(c) sufficiently indicated a congressional intent. to cover all persons 'porn after May 24, 1934, so that section 301(c) of the 1952 act
should properly be treated as a specific provision rendering the general savings clause inapplicable; that the determination of whether
a particular section comes within the "otherwise specifically provided" part of a general savings clause requires not any particular
form of language, rather only a clear expression of congressional
purpose.. The Supreme. Court action in Lee You Fee v. Dulles,
supra. is the law of the land. Hence, a person in order to retain
his United States citizenship in accordance with the provisions of
sections 301 (b) and (c) of the Immigration and Nationality Act
was required to come to the United States prior to the time. he
reached 23 years of age and immediately following any such coming
to be continuously present in the United States for at. least five
years * *. The confession of error by the Solicitor General of
the United States in Lee You Fee v. Dulles, supra., and the subsequent. action of the Supreme Court, -of the United States in that
case overrules the decision of this Board in .71Iaz!ter of B supra.
Section 349(a) of the Immigration and Nationality Act continued in effect the ten acts listed in the Nationality Act, of 1940. as
amended, by which both native-born and naturalized citizens shall
divest themselves of their nationality. The bill, except for certain
modification, continued in effect the provisions of the Nationality
Act. of 1940 relating to acts which cause loss of nationality but
modifies the conditions under which. the person who may commit
certain expatriating acts while under 18 years of age may repudiate
those acts and thus preserve his United States citizenship (Senate
Report No. 1137, 82d Cong., 2d Sess., which accompanied S. 2550).
This report bears the notation that. the committee, after consideration of all the facts, recommends that the bill be enacted. It was
also stated in Senate Report No. 1137, supra (p. 49), that "a child
under 21 rears of age. who is residing abroad with or under the legal
custody of a. parer.a, who loses American nationality under the 3-year
or 5-year rule. also loses his American nationality if he has or acquires the nationality of the foreign state." Under existing law
(the Nationality Act of 1940) the child may return to the United
States prior i.o reaching the age of 23, establish his residence., and
thereby retain his citizenship. The Immigration and Nationality
Act, of 1952 raises the age limit from 23 to 25. Unquestionably, the
congressional intent at the time the Immigration and Nationality
Act was enacted was to liberalize not only section 301 (b) and (c)
but also section 349(a) (1) of the Immigration and Nationality Act..
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The brief submitted by the Government in Lee Y ow Fee v. Dulles,
supra, states that the language and legislative history in section 301
expressly indicates a congressional intent to cover all persons born
after May 24, 1934, so that section 301(c) should properly be treated.
as a specific provision rendering the general savings clause inapplicable. Therefore., we find that the views expressed by the Department
of Justice in its confession of error to the Supreme Court in Lee
Fee v. Dulles— stayrr t, as to whether a particular section of the
Immigration and Nationality Act comes within the "otherwise specifically provided" part of the general savings clause are applicable
to section 349. Section 319(a) (1) of the Immigration and Nationality Act was intended to liberalize the law so that citizens of the.
1h ited States who had not lost their nationality on December 24,
1952, and had not obtained 23 years of age would have an additional two years within which to come to the United States in order
to preserve their citizenship; that Congress: intended to liberalize
the then existing laws is evidenced by statements made. by Senate
Committee on the Judiciary in Senate. Report No. 1137, supra
(pp. 46, 49).
The expatriation of the appellant's father in July 1935 was
merely a condition precedent to his the appellant's, possible expatriation, which in turn depended upon his subsequent. conduct up
to and including the expiration of the defined limits specified in the
statute in effect at the time the appellant adopted or made a choice
of nationality. The appellant did not lose his United States nationality, inasmuch as he entered the United States to establish a
permanent residence prior to his 25th birthday. It should be noted
that provision was also made in section 349(a) (1) for nonimmigrant.
status for all persons who prior to January 1, 1948, lost nationality
through their parent's naturalization in a foreign state.
The latter proviso of section 349(a) (1) further emphasizes that
it was the intention of the Congress to liberalize the aforementioned
section of the Immigration and Nationality Act. After carefully
considering all the evidence of record, together with the representations by counsel and the Service representative in oral argument,
we conclude for the reasons hereinbefore set forth that the appellant
was properly admitted to the United States as a citizen thereof by
the special inquiry officer. Accordingly, the following order will be
entered.
Order: It is ordered that the order of the special inquiry officer
dated September 24, 1959, directing that the appellant be admitted
to the United States as a citizen thereof be and the :SUMO is hereby
approved.

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