Interim Decision #2707

MATTER OF FAVELA

In Exclusion Proceedings
A-13577232
Decided by Board May 31, 1979
(1) Where an applicant in exclusion prOceedings first entered the United States in 1963 as
a lawful permanent resident at the age of four, and returned to Mexico with his parents
two years later because the father bad decided not to live in the United States, the loss
of permanent resident status could be imputed to the applicant as he was under the
custody and control of his parents. Matter of Winkens, Interim Decision 2429 (BLA
1975).
(2) An alien convicted for entry of goods by false statements under the Federal Youth
Corrections Act can still be excluded under section 212(a)(23) of the Act, 8 U.S.C.
1182(a)(23), on evidence establishing that a Service officer had reason to believe that he
was a trafficker in marihuana(3) The provision in section 212(a)(23) respecting exclusion based on a Service official's
belief that an alien has been a drug trafficker is distinct from that part of section
212(a)(23) requiring a conviction, and exclusion or deportation proceedings brought
under this part are not within the Service Operations Instruction requiring a deferment
of deportation proceedings where there is a possibility an expungement certification will
issue under the Federal Youth Corrections Act.
(4) The Congressional intent behind the Federal Youth Corrections Act is not violated by
bringing charges under section 212(a)(23) of the Immigration and Nationality Aet,
which is one of several provisions in the Act disclosing a strong Congressional intent to
combat marihuana trafficking by excluding traffickers, regardless of age.
EXCLUDABLE:

Act of 1952—Section 212(a)(20)

U.S.C. 1182(n)(20)1--Immigrant

without valid visa
Section 212(a)(23) [8 U.S.C. 1182(a)(23))—Narcotics

trafficker—marihuana
ON BEHALF OF APPLICANT:

Timothy S. Barker, Esquire
Legal Aid Society of
San Diego, Inc.

1144 N. Euclid Avenue
San Diego, California 92105
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated November 17, 1978, an immigration judge found
the applicant excludable as charged and ordered him deported. The
applicant appeals from this decision. The appeal will be diemseeed.

The applicant is a 20-year-old native and citizen of Mexico. He was
753

Interim Decision #2707
admitted into the United States as a lawful permanent resident on
February 14, 1963, with his parents and brothers and sisters. He was
about four years old at that time. He remained in the United States for
approximately- two years, at the end of which time he returned to
Mexico with his family, where he attended school. He returned to the
United States with his father on several occasions following the family's
departure from the United States. In 1975, the applicant returned to
the United States and obtained employment in a restaurant in California for the net two years. On October 5, 1977, as he was attempting to
enter the United States after a trip to Mexico, he was stopped at the
port of entry at San Ysidro, and arrested. He subsequently was paroled
into the United States to stand trial. On November 14, 1977, he was
convicted of a, violation of 18 U.S.C. 542, entry of goods by means of
false statements. On January 19, 1978, a Notice to Applicant For Admission Detained For Hearing Before Immigration Judge was issued,
informing the applicant that he was detained for an exclusion hearing
before an immigration judge because he appeared to the immigration
officer to be excludable under sections 212(a)(9) and (20) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(9) and (20). A further notice
was issued on October 13, 1978, informing the applicant of his apparent
excludability under section 212(a)(23) of the Act, 8 U.S.C. 1182(a)(23),
as an illicit trafficker in marihuana. An exclusion hearing was held on
February 9, 1078, October 27, 1978, and November 3, 1978. The immigration judge found that the applicant was excludable under both section 212(a)(20) and section 212(a)(23) of the Act. The basis of the first
finding was that the applicant's father and Mother had both abandoned
their lawful permanent resident status in 1965 or 1966, and that this
abandonment was imputed to the applicant. The basis of the second
finding was that the applicant had admitted his conscious participation
in an attempt to smuggle a kilogram of marihuana into the United
States. He also concluded that the 'fact that the applicant had been
convicted under the Federal Youth Corrections Act did not foreclose a
finding of excludability under section 212(a)(23) of the Act, as it pertained to traffickers, and that a conviction was not required to sustain a
finding of excludability.
The applicant on appeal simply contends that the immigration judge's
decision was incorrect.
After reviewing the record, we have concluded that the immigration
judge correctly found that the applicant had abandoned his permanent
resident status when he returned to Mexico with his parents. The
testimony amply showed that the applicant's father had decided not to
live in the United States, and that when he returned to Mexico he
bought land there and was employed in Tijuana (Tr_ pp. 12, 13, .80).

Matter of Sias, 11 I. & N. Dec. 171 (BIA 1965).
754

Interim Decision #2707
The record also shows that the applicant's mother abandoned her
permanent resident status. The testimony established that although she
had returned with her husband to Mexico, she made no attempt to
return to the United States even after the husband had abandoned the
family. This occurred in 1970, although the husband had been living
with someone else in Tijuana for five years_ She testified that she could
not return without documents, but apparently made no attempt to find
the ones the family had, or obtain any, although she was in a border
town (Tr. pp. 36-47). The immigration judge found her testimony to be
implausible and not worthy of belief. As the trier of fact, his judgment in
this regard cannot lightly be set aside. Vasquez-Mondragon v. INS, 560
F.2d 1225, 1226 (5 Cir. 1977). We are satisfied that given both the
mother's version of events and the immigration judge's evaluation of her
testimony, that she did in fact abandon her permanent resident status.
Since the parents' abandoment occurred when the applicant was about
six years of age, and under their control and custody, this abandonment
can be imputed to the applicant in turn. Matter of Winkerts, Interim
Decision 2429 (BIA 1975). His testimony that he, when he was so young,
intended to return and work in the United States is not credible.
The second finding of excludability is grounded on a violation of
section 212(a)(23) of the Act. The immigration judge concluded that the
applicant was a trafficker in marihuana. We agree with the immigration
judge that the applicant was a conscious participant in an attempt to
smuggle a kilogram of marihuana into the United Sties (Tr. pp. 53-57).
The quantity was sufficient to find that the applicant was a trafficker,
although he appears to have made a single attempt to smuggle
marihuana into the United States. Matter of Rico, Interim Decision 2576
(BIA 1977); Matter of P—, 5 I. & N. Dec. 190 (BIA 1953).
We also do not agree with the applicant that this finding subverts the
Congressional intent behind the Federal Youth Corrections Act. The
theory behind the applicant's contention is basically that when a person
is brought within this Act, not only the conviction but the underlying acts are incorporated into any possible expungement under 18
U.S.C. 5021(b) and that such expungement destroys the conviction as a
basis for deportation or exclusion. He contends that since this is the
ease, the exclusion proceedings should have been deferred under Operations Instruction 242.1(a)(26) while the possibility of expungement still
existed (Tr. pp. 49-50). This Operations Instruction states in part:
,

When the district director determines that there is a probability that an expungement
certification will be issued under the Federal Youth Corrections Act .... he shall, for
the period during which the expungement certificate may be issued, defer institution of
deportation proceedings based on the conviction for which expungement is being sought
in Anticipation that the certification will issue.

It is clear from this that if the conviction is the basis of the charge of
755

Interim Decision_ #2707
deportability, proceedings may be deferred. In this instance, the conviction, which was for violation of 18 U.S.C. 542, entry of goods by
means of false statements, did not constitute the basis for the charge
under section 212(a)(23) of the Act. This section classifies as excludable a
person convicted of narcotics violations or ". . . any alien who the consular officer or immigration officers know or have reason to believe is or
has been an illicit trafficker in any of the aforementioned drugs." It was
under this latter provision that the applicant was found excludable. This
provision by its clear terms is entirely distinct from the provision

requiring conviction for deportability to be established.
While the applicant has expressed the view that the enactment of the
Federal Youth Corrections Act showed Congressional interest in not
branding youthful offenders for life, it is equally apparent that Congress
has shown a strong intent to combat marihuana and narcotics traffic and
has imposed harsh sanctions in the immigration law against aliens
convicted for, or believed to have been engaged in, this activity. Sections
212(a)(23), (a)(11), 241(b), 244(a) and 244(e) of the Act. While this policy
has been attacked as unduly harsh, it has been upheld in the deportation
context as not without rational justification_ Guan Chow Tok v. INS,
538 F.2d 36, 38 (2 Cir. 1976). Given the apparent purpose behind these

provisions—which nowhere include provisions for different treatment
depending on the age of the alien—this Board has held that even where
a criminal complaint has subsequently been dismissed, an alien could be
excluded under section 212(a)(23) of the Act as a trafficker when the
immigration officer had reason to believe that the alien was a trafficker.
Matter of Rico, supra. As we pointed out there, the criminal action
against the applicant was a separate judicial matter and the administrative decision in an exclusion proceeding is predicated upon a review of
the evidence of record and the application of the appropriate immigration law.
We do not find the present situation substantially distinguishable. In
Rico, supra, prosecution was dropped. In this case prosecution and
conviction were had for an offense not necessarily including a finding of
illicit trafficking in marihuana, but simply entering goods by false statements. We found that the lack of a conviction in Rico did not foreclose a
finding that the alien was a trafficker, in keeping with the purpose of the

immigration law sections dealing with the control of narcotics and
marilipana. In this case, the conviction was for an offense not related to
marihuana per se. To require the Service to forego proceedings because
the conviction exists would be inconsistent with the purpose of the
trafficking provision. We find that the trafficking provision of section
212(a)(23) was meant to forestall any such result through its ploin
language, although the consequences are severe. See Jay v. Boyd, 051
U.S. 345, 357 (1956).
756

Interim Decision #2707
We consequently conclude that the applicant is excludable under
section 212(a)(23) of the Act on the evidence presented in the record, as
the immigration officer could reasonably believe that the applicant was
an illicit trafficker in marihuana. Hamid v. INS, 538 F.2d 1389, 1391 (9
Cir. 1976). The appeal will accordingly be dismiSsed.
ORDER: The appeal is dismissed.

757


Interim Decision #1723

MATTER OF Ilonn
In Deportation Proceedings
A-14127754

Decided by Board September 27, 1966 and April 14, 1967
(1) Since the test for determining aPPlicahnitY of the labor certification requirements of section 212(a) (14) of the Immigration and Nationality Act, as
amended, is whether the nature of an alien's immigration will necessitate
competition in the labor market, respondent, a 32-year-old divorcee desirous of
remaining in the 'United States to rear her 3 children here, who engages in
labor-part-time employment doing ironing at Home, having previously been
employed as a full-time housekeeper—is not exempt from the labor certification
requirements for the purpose of qualifying for adjustment of status under
section 245 of the Act, as amended.
(2) As the section 245 application for adjustment of status filed prior to December 1, 1965 by respondent, a native of Tonga, was not previously barred from
consideration by the provisions of section 245(c) of the Act as amended by
the Act of October 3, 1965, it may not now be considered pursiant to the 1968
amendment (section 3, Act of November 2, 1956) to section 245(e), since such
amendment is applicable only to the classes mentioned in section 245(c)—
native of countries of the Western Hemisphere and of adjacent islands named
in section 101(b) (5) of the Act..
CHARGE:

Order: Act of 1952—Section 241 (a) (2) (9 U.S.C. 1251 (a) (2)1—Non-Immigrant
remained longer.

Oa BonAts or RESPONDHiri
Donald L. Ungar, Esquire
220 Bush Street
San Promisee California 94104

Bras's or Seams:
Donald B. Anderson
Acting Trial Attorney
(Brief submitted)

Os

BEFORE THE BOARD

The SIO certified his order denying respondent's application for
adjustment of status. Voluntary departure was granted. No change
will be made in the order.
Respondent, a 32-year-old divorced female, a native and citizen of
Tonga, was admitted as a, visitor for pleasure on August 6, 1963 and
has remained in the United States without authorization since November 1, 1964. Deportability is clearly established.
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Interim Decision #1728
Respondent married in Tonga in 1957 and divorced her husband in
1965. There are three children of the union, the oldest is eight. Two of
the children live with her; the third child lives with respondent's
father in Tonga. Respondent expects to bring this child to the United

States. Respondent was given custody of all three children by the
court. The decree provided that the husband was to pay respondent
$60 a month for her support and $100 a. month for the support of the

children. She has never received any assistance from public welfare.
The respondent depends mostly upon the money she receives from her
husband for her support and the support of her children. She had bean
working full time as a housekeeper, but learning that such employment would require her to get a. labor certification she took part-time
work. Two or three days a week, she spends about four hours a day
ironing for people who bring their washed clothing to her home. She

desires to remain in the United States so she can raise her children
in the United States and give them a good. education.
Respondent's application for adjustment of status was denied on

the ground that she cannot show eligibility for an immigrant visa
until she receives a certification under section 212(a) (14) of the Act
from the Secretary of Labor that her entry will not be in competition
with available labor or that it will not adversely affect workers similarly employed. Counsel contends respondent is exempt from the
requirement of a certification because such a requirement applies to
one whose primary purpose in entering is to perform the labor whereas
the respondent's primary purpose is to care for her children. The
Service does not take issue with the contention that the primary purpose of entry is controlling but believes that in the instant case that
since the respondent admittedly quit a full-time job as a housekeeper
and began her part-time employment (ironing at home) to bring herself within the immigration laws, she is actually a person who seeks
to enter primarily to engage in full-time gainful employment.
In view of the history of full-time employment as a housekeeper and
the fact that respondent is divorced and has family obligations, we
believe that it may be found her primary purpose in entering is to
take full-time employment. A labor clearance is required.
ORDER : It is ordered that no change be made in the order of the
special inquiry officer.
BEFORE THE BOARD

On September 27, 1966, the Board ordered respondent's application
We
found that respondent, a 32-year-old divorced female, was a, native
and citizen of Tonga, that she illegally entered the United States, that
for adjustment of status under section 245 of the Act denied.

she had been employed full time and that she intended to be employed
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Interim Decision 4t1723
in the future. We concluded that she could not show eligibility for an
immigrant visa until she received a labor certification under section
212(a) (14) of the Act from the Secretary of Labor (a statement that
her entry would not be in competition with available labor or that it
would not adversely affect workers similarly employed).
In the motion for reconsideration, counsel contends that respondent
never had hill time employment, that now she works about 12 hours
a week doing ironing in her own apartment, that the support of her
children (two with her in the United States; one in Tonga) is chiefly
the obligation of her former husband who is under court order to support them, and that her primary purpose in seeking to enter the United
States is not to perform labor, but to be at home with her children in
-

the United States and to give them a good education. Counsel contends

that under these facts respondent is exempt from obtaining a labor
certification.
The Service which formerly contended that it was the primary purpose of entry which determined whether a certification is needed, in
opposing the motion, contends that it is not the alien's primary purpose in entering which is controlling, but whether "it is the purpose
of the alien to perform any labor in the -United States, whether full
or part time, primary or incidental, which may impinge, however
remotely, on workers already in the United States * "." The Service contends since respondent is engaged in some labor, she must produce a labor certification. (The Service asks that we delete the words
"primary" or "primarily" where they appear in our decision of September 27, 1966.)
Certain dependents and others listed in 8 CPR 212.8 (February 1,
1967) do not require a labor certification. Oar discussion should be
read with this in mind. The statute itself does not condition the obtaining of a labor certification upon a finding that an alien is entering
prima.* for the purpose of performing labor. The statute makes the
certification requirement applicable to "Aliens seeking to enter the
United States, for the purpose of performing skilled or unskilled labor,
* * *." The test making the certification provisions dependent upon
a finding that the immigrant's primary purpose is to engage in employment was based upon a misreading of language in Congressional
reports:
• a • The primary responsibility is placed upon the intending immigrant to
obtain the Secretary of Labor's clearance prior to the issuance of a visa • * •.
Hemisphere, other
than immediate relatives, nonpreference immigrants, and those preference immigrants who seek entrance into the United States for the printorli purpose of
gainful employment, whether In a semiskilled or skilled category or as a member of the professions, arts, or sciences. * • *. (Emphasis supplied.) S. Rep. No.
The provision is applicable to Immigrants from the Western

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Interim Decision. #1723
748, 89th Cong., let Seas. 15 (1965) as set forth in 2 U.S. Code Cong. & Adm.
News 8888-4 (1983) ; to similar effect, H.R. Rep. No. 745, 89th Cong., let Sees.
14 (1965).

The reference, in the cited report, to an entry for the primary
purpose of employment does not attempt to state a test for determining
when the three classes of immigrants must obtain a labor certification;
it is merely de.soriptiro of one of the three classes. This can be seen
from the mere fact that the words do not even refer to two of the
three classes of aliens mentioned in the cited report : The words do not
apply to the immigrants from the Western Hemisphere,) or to the
immigrant who has a preference only by reason of relationship. In
referring to the third group, the words describe not the purpose of
alien workers in entering, but the kind of immigrant who is given a
preference primarily because his services are needed (sections 203(a)
(8) and (6) of the Aet).
The test, drawn from a careful consideration of the statute, the
Congressional history, and the regulations, is that the immigrant's
purpose in coming,' will not immediately require employment. The
purpose will not require competition with the American labor market.
The nature of migration will not necessitate competition in the labor

market. (Where employment, if taken, will only be after a bona. fide
period of preparation, as in the case of one who has come to the
United States to study, a certification will normally not be needed
when the alien applies to enter as a student, Matter of RedekopRempening, Int. Dec. No. 1608.) Respondent is not within the exempted classes. She engages in labor. She is required to obtain a labor
certification.
A. contention of counsel based of the effect of an amendment to section 245 (c) on November 2, 1966 (P.L. 89-782, 80 Stat. 1161) requires
some discussion. Originally natives of the Western Hemisphere -were
eligible to file applications for adjustment of status under section .245 ;
many such applications were filed. The Act of October 2, 1965 .(79 Seat.
919) made such aliens ineligible to file applications under section 245.
Even applications filed before December 1, 1965 and not acted upon
could not be considered (Matter of George and Lopez-Alvarez, Lat.
Dec. No. 1583). The 1966 amendment (although the bar to the filing of
applications by Western Hemisphere natives was retained) permitted
Representative Celler in speaking of the immigrant from the Western
Hemisphere said :
* * * in each instance, in every single instance there must be issued by the
Secretary of Labor a certficate to the effect that as to the person coming from
the Western Hemisphere, his coming will not have the effect of depressing wages
or adversely affecting the conditions of employment (111 Cong. Rec. 21591.
August 24, 1965).

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Interim Decision #1728
applications which had been filed before December 1, 1965 to be considered and provided that they were to be adjudicated under the laws in
effect before December 1, 1965. This was before the labor certification
provisions came into effect Counsel contends that respondent was
meant to be benefited under the 1966 amendment since her application
was filed. before December 1, 1965 and the Act requires equal treatment
of aliens. We find that Congress intended the 1066 amendment to
benefit only persons whose applications were on file before December 1,
1965 and could not be previously considered because of the provisions
of section 245 (c).
The purpose of the 1966 amendment was explained in a conference
report as follows:
Section 8 of the Senate amendment provides that any application for adjustment of status under section 245 of the Immigration and Nationality Act tiled

with the Attorney General prior to December 1, 1965, may be adjudicated notwithstanding the provisions of section 245(c) of the Immigration and Nationality Act.
This objective ia identical with B. 12596, which was approved by the House of
Representatives August 1, 1966. The language of the Senate amendment with
respect to this provision is slightly different from the House version but accomplishes the same objective. The conferees agreed to adopt the Senate provision.
(Conference Report No. 2884 H.R. Rill 15182 as reported in 3 U.S. Code Cong. &
Adm. News 89th Cong., 2d Sess., 3802 (1966). )

The bill 'to which the conferees referred (KR 12596) provided for
the amendment of section 245 of the Act by adding a new subsection
(d) to read as follows:
(d) The provision of paragraph (c) of this section shall not apply to any
application for adjustment pending before the Attorney General on December 1,
1965.

We conclude that the 1966 amendment of section 245 (c) created an
exception for those mentioned in the section (natives of the Western
Hemisphere and adjacent Islands) who had Bled applications for adjustment of status before December 1, 1965. It was not meant for others.
We have no authority to extend the exemption to classes of aliens whose
applications filed before December 1, 1965 were not barred from consideration by section 245(c). If this constitutes unequal treatment of
aliens, the remedy is with Congress.
We shall not modify any particular words in our order of September 27, 1966; the present order disposes of the issues.
ORDER : It is ordered that the motion be and the same is hereby
denied.

186


Interim Decision #2826

MATTER OF APHRODITE INVESTMENTS LIMITED
In Visa Petition Proceedings
PHO-N-2277
Decided by Commissioner August 22, 1980
A corporation is a separate entity from its stockholders for the purposes of qualifying an
alien beneficiary as an intra-company transferee under section 101(a)(15)(L) of the
Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L). Cf. Matter of M—, 8 I&N
Dec. 24 (131A 1958; A.G. 1958).
ON BEHALF OF PETITIONER:

Michael Margrave, Esquire
Nency4o Merritt, Esquire

Pearistein & Margrave
2100 Valley Bank Center

Phoenix, Arizona 85073

This case is before the Commissioner on certification as directed.
The petitithier is seeking to classify the beneficiary as an intra-company transferee (L-1) as defined in section 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(L), as amended.
The petition was denied by the District Director of this Service in
Phoenix. Appeal was taken to the Regional Commissioner, Western
Region. The Regional Commissioner upheld the decision of the District
Director and dismissed the appeal.
Aphrodite Investments is an investment holding company head

quartered in London, England. The company is owned by three
brothers, each of whom possesses approximately a one-third share of
the eompany. Aphrodite Investments has created two subsidiary companies located in Arizona. The purpose of these companies is to

purchase and develop real estate within Arizona for resale.
The District Director and Regional Commissioner hold that the
beneficiary cannot be classified as an intra-company transferee because he is "an entrepreneur, a speculative investor, and not an employee of an international company." Section 101(a)(15)(L) defines an
intra-company transferee as:
An alien who immediately preceding the time of his application for admission into the
United States, has been employed continuously for one year by a firm or corporation or

530

Interim Decision #2826
other legal entity or an affiliate or subsidiary thereof and who seeks to enter the
United States temporarily in order to continue to render his services to the, same
employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge ...
In the nmiens brief submitted by the Association of Immigration

and Nationality Lawyers the principle of clear language enforcement
of a statute is properly mentioned. When the meaning of the language
of a statute is plain, there is no room for a constructed interpretation.
Cominetti v. United States, 242 U.S. 470 (1917). When relying upon the
plain language we look first to relevant definitions within the same
title that are also used in the same or similar context. In the absence of
such definition the every day usage of the terms becomes important.
The Regional Commissioner attempted to establish the everyday
usage of a term he thought was relevant to the L-1 statute. How ever
"employee" is not used in section 101(a)(15)(L). The term used is
"employed." The present tense "employ" is defined in Webster's New
Collegiate Dictionary, in part, as "to provide with a job that pays
wages or a salary." If we were to adopt the definition of "employee" we
would exclude some of the very people that the statute intends to
benefit: executives. Webster's defines "employee" to be "one employed

by another usually for wages or salary and in a position below the
executive level."

In Matter of M—, 8 I&N Dec. 24 (BIA 1958; A.G. 1958), precedent was
established which held that the sole stockholder of a corporation was
able to be employed by that corporation as the corporation has a
separate legal entity from its owners or even its sole owner. While that
case concerned a visa petition for preference classification, I find its
conclusions are equally valid in other areas of concern where an
employer/employee relationship needs to be examined by the Service.
The Regional Commissioner found that the requisite relationship
exists between Aphrodite Investments and MN&S Corporation. The
petitioner's statements established that the beneficiary was employed
for the statutory period by Aphrodite Investments in a managerial
position for their subsidiary in the United States.
Therefore, the following order will be entered.
ORDER' The nonimmigrant visa petition be approved to accord
the beneficiary classification as an intra-company transferee.

531


J

iterim Decision #1999

MATTER OF SANTANA

In Deportation Proceedings
A-14884798
Decided by Board August 15, 1969
.n alien who, following arrival for permanent residence, did not proceed to
her employment as a "sleep-in" maid for which she had been issued a
labor certification but instead resumed the employment (linking machine
operator) she had prior to departure to obtain her visa for entry for permanent residence, is deportable for lack of a valid labor certification at
entry as required by section 212 (a) (14) of the Immigration and Nationality Act, as amended, notwithstanding she belatedly (more than a year
after entry, and following the institution of deportation proceedings) took
the employment for which she was certified at entry.

7HARGE :
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251]—Excludable by
law existing at time of entry (section 212(a) (14),
I. & N. Act; 8 U.S.C. 1182)—coming to perform
skilled or unskilled labor—no valid labor certification.
)N BEHALF OF RESPONDENT:
Albert Mayer, Esquire
274 Madison Avenue
New York, New York 10016

ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney

The case is before us on appeal from a special inquiry officer's
order of June 6, 1968, granting the respondent the privilege of
voluntary departure, but providing for her deportation from the
United States to the Dominican Republic, on the charge contained
in the order to show cause, in the event of her failure to so depart. The special inquiry officer's decision will be affirmed and the
appeal dismissed.
The record relates to a 34-year-old female alien, a native and
citizen of the Dominican Republic, who last entered the United
States on May 17, 1967. She was then admitted for permanent
residence upon presentation of an immigrant visa supported by a
certification from the Secretary of Labor. The latter document

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Interim Decision #1999
showed that she was destined to a Mr. Alfredo Colon, Uniondale,
New York, for employment as a "sleep-in" maid. However, she did
not take up that employment until May 25, 1968, which was more
than a year following her last entry, and was also after deportation proceedings had been instituted against her and two hearings held therein.
The respondent and her husband, who is apparently in the
United States illegally, originally came to this country as temporary visitors in 1964. They remained in Puerto Rico for more
than a year thereafter, and then proceeded to New York in about
August of 1966. The respondent then obtained employment as a
linking machine operator for Circle Jewelry Products, Inc., 148
West 124th Street, New York, and continued in that employment
until December of 1966. In January of 1967, after having made
arrangements with Mrs. Colon for employment as a domestic, she
returned to the Dominican Republic, while her husband remained
in this country.
Immediately following her last entry, the respondent proceeded
directly to the residence of her husband and remained with him
the rest of that day and night. The following day, she proceeded
to Circle Jewelry Products, Inc., where she had previously
worked, allegedly only to give presents from the Dominican Republic to her former colleagues, but with the result that she resumed her former employment. She retained this employment
until after the institution of these deportation proceedings. She
claims however that at the time she obtained her immigrant visa,
her labor certification, and her last entry, she intended to work as
a domestic for Mr. & Mrs. Colon.
Section 212(a) (14) of the Immigration and Nationality Act
provides that, with stated exceptions not here applicable; an
alien shall be ineligible to receive a visa and/or for admission
into the United States unless in possession of a certification by
the Secretary of Labor. 29 CFR 60.5 provides generally that the

requisite labor certification is invalid if the representations upon
which it is based are incorrect. Insofar as this particular case is
concerned, the regulation limited the application of the labor certification to the position described in the job offer submitted in
behalf of the respondent.
Focusing upon the moment of this respondent's admission, as
we must since she is charged with deportability under section
241(a) (1) of the Immigration and Nationality Act, the key question presented is whether the labor certification the respondent
presented at that time was valid under the Department's regula-

363

Interim Decision #1999
tion, 29 CFR 60.5. For the following reasons, our answer is in
the negative.
Reduced to its essence, the contention here is that the respondent's deportation can be defeated simply because, more than a
year after her entry and following the institution of these proceedings, she took the job to which she was apparently destined
at the time of arrival. Application of the foregoing facts of record, in the light of the pertinent provisions of the law and the related regulations outlined above, convinces us that the special inquiry officer has properly decided this question adversely to the
respondent. Accordingly, his decision is affirmed.
Summarizing briefly, the validity of the respondent's labor certification depended on the correctness of the representations contained therein at the time of her entry. That document then
showed that she was destined to a Mr. & Mrs. Colon for employment as a "live-in" maid. However, she proceeded immediately to
eturn to employment she had engaged in for several months
)rior to her departure from the United States to obtain her visa.
;he did not assume the employment designated in her labor certification until after a year subsequently and, in fact, not until she
lad been made the subject of deportation proceedings. Under
hese circumstances, we find that the respondent's post-entry
elay in taking up the certified employment shows clearly, conincingly and unequivocally that her intention at entry was not to
omply with the certification provision of section 212(a) (14) of
le Immigration and Nationality Act.
We cannot agree with the respondent that she is saved by the
elated assumption of her duties as a "sleep-in" maid. It is clear
•om her conduct, which speaks louder than her present protestaons, that at entry she did not intend to comply with the terms
her admission, viz. to fulfill the obligations of section
2 (a) (14) of the Immigration and Nationality Act. Accordingly,
id in line with a more recent and pertinent precedent on the
)int, Matter of Paulin, A-18151469, May 2, 1969, BIA, Interim
ecision No. 1973, we find it unnecessary to comment on the speal inquiry officer's ruling that our decision in Matter of Tucker,
L & N. Dec. 328, is controlling here.
Insofar as the discrimination claimed by the respondent under
ction 202 (a) of the Immigration and Nationality Act (8 U.S.C.
52) is concerned, we find that her argument is completely witht merit. Public Law 89-732 (80 Stat. 1161, 1966) was enacted
create a distinction rather than discrimination between Cubans
d other Western Hemisphere aliens. The Congress has an abso,

364

I

Interim Decision #1999
lute and unqualified power to prescribe the conditions under
which an alien may enter the United States,' as a power inherent
in sovereignty.' And the proper function of this tribunal in the
administrative scheme does not encompass passing upon constitutional questions such as this.'
In conclusion, we note, again, that the respondent's husband is
in the United States illegally; that their two children are in the
Dominican Republic; that the respondent designated the Do-,
minican Republic as the country to which she desired to be deported in the event such action should become necessary; that it
is the country of her nativity and nationality; and that she stated
that she did not fear persecution because of race, religion, or political opinion if deported thereto. All we can add is that the respondent has already been granted the privilege of voluntary departure by the special inquiry officer; and that the execution of
the special inquiry officer's order has been stayed during the pendency of this appeal, Matter of Aguirre, A-18102434, February
13, 1969, Interim Decision No. 1940.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special
inquiry officer's order.

Volpe v. Smith, 289 U.S. 422 (1933).
Fong Yue Ying v. United States, 149 U.S. 698 (1893).
3 Panitz v. District of Columbia, 112 F.2d 39 (D.C. Cir. 1940).
1

2

365


Interim Decision #2452

MATTER OF TENG

In Deportation Proceedings
A-34395590-1-2-3-4

Decided by Board November 26, 1975
(1) Where the re is a sham marriage and no actual familial relationship between the
stepchildren and the United States citizen stepparent has ever existed, the stepchildren
are not entitled to be considered the children of the United States citizen stepparent
within the meaning of section 101(b)(1)(B) of the Immigration and Nationality Act, as
amended, notwithstanding the stepchildren may be innocent of any fraudulent intent.
(2) Since, in the instant cases, the marriage between respondents' mother and the U.S.
citizen petitioner has been found to be a sham marriage and no actual familial relationship between the respondents (stepchildren) and the petitioner (stepfather) has ever
existed, respnndents, who were admitted in possession of immigrant visas issued them

as the benefiziaries of approved visa petitions filed by the citizen petitioner/stepfather
to accord them immediate relative classification as "stepchildren", were not entitled to
such status and are deportable under section 241(a)(1) of the Act because exeltidable at
entry for lac:t of valid immigrant visas_ This is true even though respondents may be
innocent of any fraudulent intent, the marriage between their mother and the petitioner
has not been terminated, and there is still a legal step-relationship in existence.
(3) The fact that the visa petitions on behalf of the respondents were approved at a time ,
when the Service was investigating the validity of the marriage (apparently in connection with the mother's application for adjustment of status) does not amount to the type
of "affirmative misconduct" required to find that the Service is equitably estopped from
deporting reapondents.
CHARGE:
Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of
entry—no valid immigrant visas.
ON BEHALF OF RESPONDENTS: Norman Stiller, Esquire
995 Market Street
San Francisco, California 94103
This case is before us on certification of the immigration judge of his
decision dated August 20, 1975 in which he ordered the deportation
proceedings against the respondents terminated. The decision of the
immigration judge will be reversed.
The respondents, all brothers and sisters, are natives of the Philippines and citizens of China_ They range in age from fifteen to twenty
years old. The mother of the respondents entered the United States in
516

Interim Decision #2452
1968 as a nonimmigrant visitor. On July 31, 1970 she married a United
States citizen in Reno, Nevada. He thereafter submitted a visa petition
for the mother as his spouse, and for the respondents as his stepchildren. The latter petitions were approved and the respondents were then
issued immigrant visas as immediate relatives of a United States citizen. See section 201(b) of the Immigration and Nationality Act. They
were admitted to the United States on August 13, 1973. The petition for
the mother was withdrawn.
The Service alleges that the marriage between the respondents'
mother and the citizen who petitioned on their behalf was a sham

marriage entered into solely for the purpose of obtaining immigration
benefits. The order to show cause charges that the respondents were
not, and are not, entitled to be considered the children of a United
States citizen within the meaning of section 101(b)(1)(B) of the Immigration and Nationality Act and, therefore, they are deportable under
section 241(a)(1) of the Act.
The immigration judge found that the marriage in question was in fact
a sham marriage in that the partners never resided together and never
intended to. He nonetheless concluded that this did not render the
respondents deportable. The immigration judge found that the respondents did not participate in any fraudulent scheme and in fact were

unaware that the marriage was a sham.
At the hearing, the respondents disputed the allegation that the
marriage between their mother and the claimed stepfather was entered
into solely for the purpose of obtaining immigration benefits for either
the mother or the respondents. It is not disputed that the mother
presently lives in San Francisco, California and her husband resides in
Seattle, Washington. However, the mother testified that for at least six
months after the marriage she resided in San Francisco with her husband and that they intended to live as husband and wife. A witness, who
with her husband owns the house in which the mother lived at the time
in question, gave similar testimony.
The mother's husband did not appear at the hearing. However, his
deposition was taken and made part of the record. 1 In the course of the
deposition, the husband repudiated substantial portions of earlier
statements he had.made. Moreover, statements made by the husband,
and which were made part of the record, show' that on almost each
occasion on which he was questioned, he has given inconsistent statements. Despite this apparent unreliability, he nonetheless has consistently maintained that he never lived with the respondents' mother.
Investigations made by the Service, the reports of which were introThe deposition was taken before an immigration judge in Seattle, Washington. Counsel for the respondent, as well as a trial attorney, wore present and questioned the
husband.
517

Interim Decision #2452
duced into evidence, also support a conclusion that the respondents'
mother never lived with her husband. The immigration judge found, on
the basis of demeanor evidence as well as on the basis of inconsistencies
in the statements made by the mother and the other witness, that
neither of them were credible witnesses. The finding of an immigration
judge with respect to the credibility of a witness will ordinarily be given
great weight. Matter of
7 1. & N. Dec. 417 (BIA 1957). We are
satisfied from a review of all the evidence in the record that the Service
has established by clear,. convincing and unequivocal evidence that the
marriage between the mother of the respondents and her husband was

entered into solely for the purpose of conferring immigration benefits,
and that they never resided together in a marital relationship.
It is clear that such a relationship would not be sufficient to confer
immigration benefits on the mother of the respondents. Matter of
Phillis, Interim Decision #2407 (BIA July 7, 1975); Matter of Kitsalis,
11 I. & N. Dec. 613 (BIA 1966); Matter of M—, 8 I. & N. Dee. 217 (BIA
1958). Cf. Li,1wak v. United States, 244 U.S. 604 (1953); Johl v. United
States, 370 i'.2d 174 (C.A. 9, 1966).
The record shows that the respondents did not know that their
mother and her husband had entered into a sham relationship. The

testimony of the oldest child also indicates that until the respondents
arrived in the United States, they believed that their mother was in fact
living with her husband. It also appears from the record that only one of
the respondents has ever met their mother's husband. That meeting
was evidently very brief. The other respondents have never met their
"stepfather". The marriage still exists in form and apparently no attempts have been made to dissolve it.
The narrow question here is whether the respondents were entitled to
be considered the stepchildren of their mother's husband within the
meaning of section 10I(b)(1)(B) of the Act where the underlying marital

relationship was a sham and the respondents have never lived with the
stepparent.
One of the primary concerns of the Immigration and Nationality Act
is the preservation of the family unit. See H.R. Rep. No. 1365, 82d
Cong., 2d Sess., [1954] 2 U.S. Code Cong. & Adm. News 1653, 1680.
Where a marriage is terminated by divorce, a step-relationship created
by that marriage is also considered terminated. Matter of Simicevic, 10
I. & N. Dec. 363 (BIA 1963). Where the marriage is terminated by

death of the natural parent but there is an ongoing relationship, the
step-relationship is deemed to continue. Matter of Pagnerre, 13 I. & N.
Dec. 688 (BIA 1971).
In the present case, no family tie has ever existed between the
respondents and their mother's husband, nor between the mother and
the husband. We do not lightly disregard the fact that the marriage has
518

Interim Decision #2452.
not been terminated and that there is still a legal step-relationship in
existence. However, we conclude that where there is a sham marriage
and no actual familial relationship between the stepchildren and the
United States citizen stepparent has ever existed, the stepchildren are
not entitled to be considered children of a United States citizen for
purposes of the Immigration and Nationality Act. The fact that the
respondents may be innocent of any fraudulent intent does not protect
them. An alien who has derived an immigration benefit from another
may be deportable where the person from whom the status was derived
was not in fact eligible to confer any benefits. Cf. Matter of Ideis, 14 L &
N. Dec. 701 (BIA 1974). The respondents consequently are deportable
under section 241(a)(1) of the Act.
We do not find that the Service is equitably estopped from deporting
these aliens. The visa petitions submitted on behalf of the respondents
were approved at a time when the Service was investigating the validity
of the marriage, apparently in connection with the mother's application
for adjustment of status. This, however, does not amount to the type of
affirmative misconduct which is required to find equitable estoppel. See
Immigration and Naturalization Service v. Hibi, 414 U.S. 5 (1973);
Matter of Morales, Interim Decision #2416 (BIA, July 28, 1975).
The respondents applied for voluntary departure. The immigration
judge did not consider the request because of the disposition he made of
the ease. Aeenrdingly, we shall remand, the record for the immigration
judge to consider the respondents' application.
ORDER: The decision of the immigration judge is reversed.
Further order: The record is remanded for further proceedings.

519

Interim Decision #2453
****
(6) Being a person who has no nationality he is, because the circumstances in
connexion with which he has been recognized as a refugee have ceased to exist, able to
return to the ccuntry of his former habitual residence. . . .

The respondent's refugee certificate is dated January 6, 1969. In
January 1970 the Civil War in Nigeria ended and the Federal Military
Government declared a general amnesty. In a case decided by the
Regional Commissioner in December 1971, only several months after
the hearing in this case, a State Department communication was quoted
as saying: "In January, 1970, at the conclusion of the war, the Federal
Military Government declared a general amnesty, invited Nigerians
living abroad to return, and announced a policy of reconciliation and
reintegration of Nigerians (mostly Ibos) who had supported the secession." The communication went on to say that there had been no evidence of mass arrests, trials, imprisonments, or executions and that,
despite some problems, there was ample evidence that the Federal
Military Government was sincerely interested in bringing about the
reintegration of the Ibos, including former government officials. Matter
of Iregbuiem, 13 I. & N. Dee. 805, 806 -807 (Reg. Corn. 197],). Although
there has been a change in the government of Nigeria since January
1970, we are unaware of any policy changes affecting the treatment of
former supporters of the Biafran secession.
Counsel contends that the United States is compelled to honor the
finding of the delegation in Belgium of the United Nations High Commissioner for :Refugees, made in 1969, that the respondent is a refugee.
We disagree. The United Nations Convention does not provide that a
person considered a refugee in one contracting nation must, for that
reason, also be considered a refugee in the other contracting nations.
We have nevErtheless given sympathetic consideration to the determination made in Belgium. However, we have also considered the circumstances under which that determination was made. We find, under
Article 1, seelon C(6) of the United Nations Convention, supra, that
the circumstances in connection with which the respondent was found
by the United Nations authorities in Belgium to be a refugee have
ceased to exist.
The respondent has been given the time and the opportunity to
pursue his claim that he is a refugee and therefore either is not deportable or is entitled to the temporary withholding of his deportation pursuant to section 243(h) of the Act, He has not come forward with any
evidence to support any of these claims except for the 1969 refugee
certificate. Whether he relies upon the United Nations Protocol and
Convention Relating to the Status of Refugees or upon section 243(h) of
the Immigration and Nationality Act, the burden is still his to establish
that he has a well -founded fear that his life or freedom will be
522

Interim Decision #2453
threatened in Nigeria on account of his race, religion, nationality, membership in a particular social group, or political opinion. Matter of
Dunar, supra. He has not sustained his burden.
Upon the record before us, we conclude that the respondent is not a
refugee. Moreover, we find, on the basis of the record before us, that
the deportation hearing was far, and that deportability has been established by clear, convincing and unequivocal evidence. Accordingly, the
following order will be entered.
ORDER: The appeal is dismissed.

523


Interim Decision #2607

MATTER OF MARQUES

In Deportation Proceedings
A-17241244

Decided by Board August 18, 1977
(1) An applicant for adjustment of status under section 245 of the Immigration and
Nationality Act who meets the objective prerequisites is merely eligible for adjustment
of status. He is in no way entitled to adjustment. When an alien seeks favorable exercise
of the discretion of the Attorney General, it is incumbent upon him to supply the
information that is within his knowledge and relevant and material to a determination of
whether he merits adjustment.
(2) In this case, respondent was arrested on July 15, 1972 with $54,000 cash in his car and
$32,000 in bare( books. He Invoked the Fifth Amendment privilege when questioned
about the source of the money by the immigration judge adjudicating his section 245
application.
(3) Respondent had every right to assert his fifth amendment privilege. He also had a
requirement as an applicant for section 245 discretionary relief to provide information
relevant to the exercise of the Attorney General's discretion. The source of this money
was such a relevant factor. In refusing to disclose it, the respondent prevented the
immigration judge from reaching a conclusion as to respondent's entitlement to section
245 relief. Under these circumstances, respondent has failed to sustain the burden of
establishing that he is entitled to the privilege of adjustment of status, and his application was properly denied.
CHARGE!
Order Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9))—Failed to comply with
conditions of nonimmigrant status
00 14 BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:
B. J. Rumaker
Trial Attorney

Ruth G. Finn, Esquire
51 West Weldon
Phoenix, Arizona 85013

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

This is an appeal from an order of an immigration judge, dated
December 3, 1976, denying the respondent's application for adjustment
of status under section 245 of the Immigration and Nationality Act in
the exercise a discretion. The appeal will be dismissed_
The record relates to a single male alien, a native and citizen of Spain,

314

Interim Decision #2607
43 years of age, who last entered the United States on July 23, 1964, as a
nonimmigrant sheepherder. He was found deportable because of his
failure to comply with the conditions of his nonimmigrant status- Thereafter, on March 11, 1975, we dismissed his appeal from denial of his
application for suspension of deportation. Then, on January 24, 1975,
the respondent's United States citizen brother filed an 1 - 130 petition
seeking fifth preference for his brother. The petition was approved. The
respondent next moved to reopen the proceedings to permit him to
apply for relief under the provisions of section 245 of the Act. In our
order we made the following observation:
. in applying for adjustment of status (just as in applying for suspension of
deportation) the respondent must bear the burden to establish eligibility and it will be
incumbent upon him to supply whatever evidence is necessary for proper adjudication of
his application.

The record discloses that the respondent was arrested on July 15,
1972, when he had $54,000 in the trunk of the automobile that he was
driving (mostly in bills of $100 and $50 denominations) and had bank
books for accounts totaling more than $32,000.
Tn his decision, the immigration judge noted that the respondent
invoked the privilege against self-incrimination when asked to state the.
source of ownership of the $54,000 he had in hispossession on July 15, '
1972, or the ownership of approximately $32,000 that was related to the
bank books in his possession, thus cutting off an important line of
inquiry required for a proper exercise of his discretion.
Counsel on appeal contends (1) that the immigration judge abused his
discretion in denying the section 245 application because the respondent
invoked his constitutional right against self-incrimination, and thus cut
off the line of the immigration judge's inquiry whether he merited the
privilege of adjustment of status; and (2) -that the immigration judge's
determination that the respondent's reliance on his constitutional right
against self-incrimination is an adverse factor and was erroneous and
contrary to modern constitutional law which forbids' any "penalty" for
invoking the Fifth Amendment. Counsel contends that the respondent
is entitled to adjustment of status under section 245 of the Act.
We have reviewed the record de nova and considered counsel's contentions on apical. We have decided that adjustment of status is not
warranted in the exercis e of discretion.
Section 245 of the Act reposes with the Attorney General and his
delegates the discretionary power to grant an adjustment of status.
Thomaidis v. INS, 431 F.2d 711 (9 Cir. 1970), cert. denied 401 U.S. 954
(1971); Matter of Arai, 13 I. & N. Dec. - 494 (BIA 1970). Adjustment of
status is, therefore, a matter. of administrative grace, not mere statutory eligibility. Hintopoutos v. Sletcuyhmessy, 363 U.S. 72 (1957); A/724207.jar v. INS, 438 F.2d 1028 (3 Cir. 1971). Thus, an applicant who meets
315

Interim Decision #2607
the objective prerequisites is merely eligible for adjustment of status;
he is in no way entitled to such relief. Jarecha v. INS, 417 F.2d 220 (5
Cir. 1969); Chen, v. Foley, 385 F.2d 929 (6 Cir. 1967), cert. denied 393
U.S. 838 (1968). The burden of proof is squarely upon the respondent to
establish not only that he meets all statutory requirements for eligibility but also that he ie worthy of the exercise of discretion in his favor. 8
C.F.R. 242.17(d); Ameeriar, supra, at 1030; Thomaidis, supra, at 712;

Chen, supra, at 934. See, Jarech,a, supra, 4223. Since the adjustment
of status of an alien is an extraordinary relief, it should be granted only
in meritorious cases. Ameeriar, supra,, at 1032; Chen, supra, at 934.
We have consistently taken the position that when an alien seeks the
favorable exercise of the Attorney General's discretion, it is incumbent
upon him to supply such information that is within his knowledge and is
relevant and material to a determination of whether he merits the relief.
Matter of Mariani, 11 I. & N. Dec. 210 (BIA 1965); Matter of De Lucia,
11 I. & N. Dec. 565 (BIA 1966); Matter of Francois, 10 I. & N. Dec. 168
(BIA 1963); Matter of Pires Da Silva, 10 I. & N. Dec. 191 (BIA 1963).
This position has been judicially upheld; De Lucia v. INS, 370 F.2d
305 (7 Cir. 1966); Kimm v. Rosenberg, 363 U.S. 405 (1960); United
States v. Anastasio, 120 F. Supp. 435 (D. N.J. 1954), reversed on other
grounds 226 F.2d 912, cert. denied 351 U.S. 931.
There is, as counsel argues, no proof of illegality or immorality with
respect to the "unexplained large sum of money" which was found in the
respondent's possession at the time of his arrest for a traffic violation.
Good moral character is not a statutory requirement for relief under
section 245, as is the case, for example, with suspension of deportation
(244). Nevertheless, an explanation of how one in the respondent's
circumstances acquired such a large sum of money-is obviously relevant
to the exercise of the Attorney General's discretion. Lacking this information, the immigration judge was thereby prevented from reaching a
conclusion about the respondent's entitlement to the discretionary relief
he seeks. The respondent had every right to assert his claim under the
Fifth Amendment. However, in so doing he runs the risk that he may
fail to carry his burden of persuasion with respect to his application for
discretionary relief. In these circumstances, the respondent failed to
sustain the burden of establishing that he is entitled to the privilege of

adjustment of status. In Jimenez v. Barber, 252 F.2d 550 (9 Cir. 1958),
the court stated, at p. 554 as follows:
. . . the refusal to answer questions was in a proceeding in which the applicant
sought nothing to which was entitled as a matter of right. He asked only for an act of
grace, dependent upon an official exercise of sound discretion. The hazards in adopting
an obstructive attitude in such proceedings must be at least as great as those involved in
eases where established rights are sought to be enforced or prnteetod
Counsel cites Spevack v. Klein, 385 U.S. 511 (1967), for the proposi216

Interim Decision #2607
tion that an attorney at a bar disciplinary hearing had a full right to
invoke the Fifth Amendment without the imposition of a "penalty,"
which makes that right costly. We do not perceive the analogy of any
penalty in this factual situation. The respondent here had no right to an
adjustment of his status, a purely discretionary matter. We adhere to
the reasoning in Rin2117, V. Rosenberg, supra. He had a right to file an
appliCation and to hdve it fairly considered on the evidence laid before
the immigration judge and this Board. This we have done and find a
serious gap leaving a question in our minds as to his suitability for the

Attorney General's largesse. That doubt we will not resolve against the
government as, in effect, he asks us to do. See Jay v. Boyd, 351 U.S.
345, 354 (1956); U.S. ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489 (2
Cir. 1950). Accordingly, the following order will be entered.
ORDER: The appeal is dismissed.

317


141ArrEa

OF

C

In SECTION 245 Proceedings
A-10799770
Decided by Regional Commissioner June 16, 1960

Approved by Assistant Commissioner June 21, 1960

Adjustment of status—Section 245 of 1952 act—Denied as matter of discretion
to alien twice refused immigrant visa by one consul who then obtained
nonimmigrant visa from another consul.
Section 245 adjustment of status denied in the esercise of discretion to an
applicant who after having twice been found ineligible by an American Counsul in Germany for an immigrant visa travelled to Mexico where she obtained a nonimmigrant visa by purporting to visit a friend in the United
States at a fictitious address and who immediately after entry was married
to a United States citizen.

BEFORE THE REGIONAL COMMISSIONER

Discussion : The applicant, a native and citizen of Germany, born
at Halle, Germany, on October 28, 1923, was admitted to the United
States as a nonimmigrant visitor on May 2, 1958, at San Ysidro,
California. On May 5, 1958, at Emporia, Virginia, she married
C
, a citizen of the United States, and on October 21,
1958, she filed this application for status as a permanent resident.
On January 28, 1960, the District Director at Baltimore denied the
application on the ground that the applicant was not a bona fide nonimmigrant at the time of her admission to the United States and the
ease has come forward on appeal.
Prior to her entry into the United States on May 2, 1958, the applicant had twice applied to the American Consulate General at
Frankfurt, Germany, for an immigrant visa to enter the United

States for permanent residence. On September 8, 1956, she was
refused an immigrant visa on the ground that she was inadmissible
to the United States under the provisions of section 212 (a) (28)
of the Immigration and Nationality Act. Subsequently, she made
another application and on October 31, 1957, she was again refused
an immigrant, visa on the ground that she was inadmissible to the

United States under the provisions of sections 212(a) (19), 212(a)
(27), and 212(a) (23) of the 1952 act. Both refusals were based
683

primarily on classified information, the disclosure of which would
be prejudicial to the best interests of the United States. On November 17, 1957, after the second refusal, the applicant wrote the American Consulate General at Frankfurt and requested an explanation
as to the grounds on which the immigrant visa was refused. She
was invited to the consulate and the applicable provifsions of the
law were explained to her. It is clear from the record, therefore,
that the applicant was well aware that she had been found to be
ineligible to receive a visa by the proper authority.
The applicant has testified that she met the man she married on
July 1, 1956, while he was stationed in Germany. She has further
testified that she fell in love with him, but they could make no plans
to iriarry prior to his return to the United States in October 1957,
since he had a wife and two children. He was divorced from his
first wife on February 22, 1958. The applicant has testified that
they corresponded and talked by telephone and decided to meet
someplace to determine what could be done. The applicant then
flew from Germany to Tijuana, Mexico, on April 20, 1958, transiting
the United States under the transit-without-visa provisions of the
law. The applicant has stated that she went to Tijuana, Mexico,
for the purpose of visiting a friend who is married to a doctor in
that city. However, it has been determined that at that time her
friend was visiting relatives in Germany. In Tijuana she met her
intended husband and on April 30, 1958, she applied for and was
issued a nonimmigrant visitor's visa at the American Consulate in
Tijuana, Mexico, for the purpose of visiting a friend, L
F
,
3970 North Sheridan Road, Chicago, Illinois It was with this visa
that she subsequently gained admission to the United States on May
2, 1958. At the time of her admission she stated that she was
destined to the friend in Chicago. It has now been determined
that the Chicago address she gave was fictitious.
Instead of proceeding to Chicago, the applicant went directly to
Washington, D.C., in company with the man she married and
within three days after her admission to the United States she
married in Emporia, Virginia.
The committee reports from both houses of the Congress which
accompanied the Immigration and Nationality Act at the time of
enactment contain ample evidence of the concern with which Congress viewed just this type of case. In commenting on adjustment
of status in the United States, both reports containing the following statement:
« The committee is aware, too. of the progressively increasing number
of cases in which aliens are deliberately flouting our immigration laws by the
processes of gaining admission into the United States illegally or ostensibly as
nonimmigrants but with the intention of establishing themselves in a situation
in which they may subsequently have access to some administrative remedy

684

to adjust their status to that of permanent residents. * " * This practice is
threatening our entire immigration system and the incentive for the practice
must be removed. [Senate Report No. 1137, 82nd Congress, 2d Session, p. 25;
House Report No. 1365, 82nd Congress, 2d Session, pp. 62-63; emphasis supplied.]

Furthermore, the committee report which accompanied the Act
of August 21, 1958, amending section 245, stated in part:
The language of the instant bill has been carefully drawn so as not to grant
undeserved benefits to the unworthy or undesirable immigrant. This legislation will not benefit the alien who has entered the United States in violation
of law. * * * (House Report No. 2258, 85th Congress, 2d Session, p. 3.)

Here we have the case of an alien who applied to an American
consular officer for an immigrant visa, not One time but twice. Both
times the consular officer determined that she was ineligible to receive a visa and she was so informed. After the second refusal
she requested further information as to the ground of inadmissibility and she was invited to the consulate where the officer explained the provisions of law under which she was found ineligible
to receive a visa. Despite the fact that she was well aware that
she was ineligible to receive a visa, she then proceeded to another
American consulate in another continent, several thousand miles
from her home where she applied for and was successful in obtaining a nonimmigrant visa. With that nonimmigrant visa she gained
admission to the United States on her claim that she was going to
visit a friend and gave as her destination a fictitious address.
Immediately after that entry she married a citizen of the United
States and subsequently submitted this application.
Under these circumstances, we have concluded that no determination need be made in this case as to whether the applicant meets
the statutory requirements of section 245, since, even if she meets
those requirements, this is clearly not the type of case which warrants favorable exercise of the Attorney General's discretion. Therefore, the district director's order will be withdrawn and an order
will be entered denying the application as a matter of discretion.
Order: It is ordered that the district director's order of January 28, 1960, be withdrawn and that the application be denied as
a matter of discretion.

685


MATTER OF 5--

In. DEPORTATION Proceedings
A-10516130
Deckled by Board September 6, 1061
Nonquota status—Marriage to United States citizen—Invalidity of Turkish
canonical divorce.
Canonical or religious divorce obtained by respondent lu Turkey In 1801 held
invalid under Turkish Code of Civil Law (in force since October 4, 1926)
which provides that a tlivorce may be granted only by the judge of a competent court. As respondent's prior Turkish marriage was not legally terminated, he was not entitled to the nonquota visa which he obtained on thebasis of his purported marriage to a United States citizen in 1954.
CHARGE:
Order: Act of 1952—Section 241(0(1) [S U_S_C. 1,251(x) (1)]—Excludable

at time of entry—Not nonquota immigrant as specified in immigrant visa.

BEFORE THE BOARD

DISCUSSION: The case'comes forward on appeal from the order
of the special inquiry officer dated June 16, 1961, ordering respondent deported from the United States in the manner provided by law
on the charge contained in the order to show cause.
The record relates to a native and citizen of Turkey, 40 years old,
male, who last entered the United States at Blaine, Washington,
on or about January 5, 1958, and was admitted as a nonquota immigrant upon presentation of an immigrant visa issued to him on the
basis of his marriage on June 23, 1954, at Long Beach, California,
to a citizen of the United States.
Prior to his marriage to an American citizen on June 23, 1954,
upon which his nonquota status as the spouse of an American citizen is predicated (and from whom the respondent has procured an
interlocutory decree of divorce in the State of California), the respondent was married twice. His second marriage, which occurred
in 1953 in the State of Washington, was terminated by divorce in
Seattle, Washington, on August 13, 1953, having lasted approximately 5 or 6 months. The respondent was first married in Turkey
on October 2, 1944, and claimed that his first marriage was termi430

nated in Turkey by divorce. He has submitted a copy of a document which states that on January 2, 1951, the request of the respondent and his first wife that they be considered canonically
divorced was approved. The document is signed by an official called
an "Imam," which is translated as "chaplain" in the document.
The respondent testified that he and his first wife appeared in person before the Imam in Izmir, Turkey, in 1951, and that he was
advised to return at the end of the Ramadan, a period of fasting
in the Moslem religion. After thirty days, respondent testified, he
was on his way to America but his wife went to the Imam, took the
papers, and sent them to him in 1960 for the children's sake. He
stated that under the law in effect at that time the religious divorce
was a legal one.
The purported religious divorce decree was submitted to Turkish

authorities for an opinion as to its validity. A communication
dated March 31, 1961, was received from the Deputy Governor at
Izmir, Turkey, to the effect that this canonical divorce decree does

not now have and never has had any legal validity whatsoever in
the Republic of Turkey; that since October 4, 1926, divorce in the
Republic of Turkey may only be granted by the judge of a competent court under the articles of Turkish Code of Civil Law;' and
every kind of document contrary to this Civil Code is not legal in
the Republic of Turkey, A report from the Library of Congress
indicates that since October 4, 1026, when Turkey enacted the Swiss
Civil Code, which, with minor modifications, went into force, TurkThe Near Eastern and North African Law Division, Library of Congress,
has furnished a translation of the pertinent provisions of the Turkish Civil ,
CodeinfrcsOtb4,1926:
Title IV. DIVORCE
Article 136. The proper court of divorce Is the court of plaintiff's domicile..

Article 138. Where a ground for divorce has been proven, the Judge must
grant either a divorce or judicial separation.
Where only judicial separation is asked for, he cannot grant a divorce.
Where the suit is for a divorce, he can grant judicial separation only if a.
reconciliation between the husband and the wife seems probable.
Article 150. On divorce or on judicial separation the judge shall take Into.
consideration the following provisions:
1. The judge nowt not take or approved any essential fact on which

the

claim for divorce or judicial separation is based without being himself convinced that the fact took place as asserted.
2. No oath or affirmation in the place of an oath can be administered to
dither husband or wife in regard to such essential fact.

3. No statement of any kind made by the husband or wife is binding on
the judge.
4. All evidences are under the discretion of the judge.
5. Agreements relating to the Subsidiary effects of the divorce nr judlydsi
separation require for their validity to be confirmed by the judge.

431

ish law applies to domestic relations without regard to the religious
affiliation of the parties involved?
It, therefore, appears from an opinion by a high government
official in Izmir, Turkey, that the canonical divorce obtained by
respondent did not constitute a valid termination of his Turkish
marriage. Counsel hascited no Turkish law to the contrary but
merely relies upon the uncorroborated assertions of the respondent
as to the validity of the divorce. It is not shown that the respondent is an expert in Turkish law and his testimony does not appear
to be competent on this issue. We have noted counsel's complaint
of the inadequacy of the interpreter, but the answers appear to be
responsive to the questioning and counsel's complaint that the term
"Imam" was incorrectly translated as "priest" does not appear to
affect the issue of the validity of the religious divorce decree. Inasmuch as respondent has offered no evidence to overcome the proof
that the religious divorce was not a valid termination of the first.

marriage, it appears that he was not entitled to a nonquota status
as the lawful spouse of a United States citizen. It is concluded
that the charge stated in the order to show cause is sustained and
that the respondent is subject to deportation.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed
"'The law of divorce applicable to non-Moslems in the Ottoman Empire and
in modern Turkey," prepared by Edmund C. jann (1955).

43'2


..Interim Decision *1571

MATZ= or MILLER
In Vies. Petition Proceedings •
A-14356955
Decided by Board 4pra 4, 1966 .
Beneficiary, who was born out of wedlock daring the existence of her Putative
fathers marriage to U S. stenos petitioner, and who has not been legitimated, in not a child within the contemplation of section 101(b) (1), .1mmigation and Nationality Act, as amended, since there was no close family
relationship between the parties until beneficiary's arrival in the 'Milted
States in.jnly lOSS when 15 years of age, theretofore having always lived
with her mother. ,

The District Director at -New York City in a decision dated
February 18, 1966, denied the . application .of the petitioner on the
ground that the facts disclosed that the petitioner's husband, the
putative father of beneficiary, was never married to beneficiary's
mother and that the beneficiary has not otherwise been legitimated.
It is concluded by the District Director that the beneficiary is not,

therefore, a child as defined under section 101(b) (1) of the Act.
From that decision the petitioner through counsel has appealed to
this Board. The appeal will be dismissed.
A reading of this re,cord4ndicates that the beneficiary of the
petition is adniittedly the daughter of the petitioner's spouse. Tile
petitioner is a naturalized citizen of the United States and she
married the putative father of the beneficiary in January 1945 at
'Kingston, Jamaica. ' The petitioner stated that "in 1950 .her husband
told her that he. was going to be the father of a child born to
Millicent Morgan. The child (beneficiary) was born in 'July of 1950
and she resided with her natural mother, although allegedly receiving suppoft from the petitioner and her spouse. The petitioner
also stated that the beneficiary had on :Accession visited with the
petitioner and her putative. father for extended lengths of time and
that a close personal relationship had been maintained. The 'petitioner stated futther that she came to the United States in 1958
and that she had not seen the beneficiary until 1965 when she, the
•

54%

Interim Decision #1571
beneficiary, arrived in the United States. Counsel for petitioner
seeks to compare the petition in the instant case with that in the
case of Nation v. &wordy, 239 F. Supp. 531. Counsel contends that
the Service has disregarded this decision in its denial of the present
petition.
This Board has given careful consideration to the facts contained
in this case. We note that the beneficiary has stated under oath that
she has always lived with her mother and has stayed with her father
only on vacations and on visits. It is noted that the beneficiary
made her home with her natural mother until 1965, when she was
15 years of age and when she came to the United State as a visitor.
The Supervisory Immigrant Inspector for the Immigration and
Naturalization Service has subfrtitted a memorandum for the file in
which he urges that the fact that the spouse of the petitioner and
the petitioner have supported the child should not be considered
any more than a legal obligation to support the beneficiary born
out of wedlock.
Our conclusion after a review of the entire file is that this case
cannot be considered analogous to the Nation decision, supra. We
do not find herein the close family relationship contemplated and
present in the Nation decision. It is obvious that there was indeed
no close family relationship until the beneficiary arrived in the
United States in July 1965.* Vor these reasons we do not consider
the beneficiary to be S. child within the contemplation of the Nation
opinion or within the provisions of section 101(b) (1) of the Immigration and Nationality Act. Accordingly, the following order
will be entered.
ORDER: It is ordered that the appeal be dismissed.

550


aatvc1.1111 1.0V,40./LVII

/rGOULd

MATTER OF GONZALEZ

In Deportation Proceedings
A-34297537

Decided by Board July 26, 1978
(1) Section 241(f) of the Immigration and Nationality Act, 8 U.S.C. 1251(0, is not effective
to relieve from deportation an alien who entered the United States in violation of
section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14).
(2) The familial relationship, prerequisite for relief under section 241(f) of the Act, need
not exist at the time of the alien's entry for lawful permanent residence.
(3) A native of the Western Hemisphere was not exempt at entry before December 31;
1976, from the labor certification requirements where he acquired the then exempting
familial relationship three months after entry.
(4) Section 241(f) in not operative where the alien is not "otherwise admissible" at the time
of entry for lack of a labor certification and was not exempt therefrom.
(5) Denial of an adjournment so as to allow the adjudication of a spouse visa petition is not
an abuse of discretion where the visa petition has not been filed and appears not to be
presently approvable on account of a prior undissolved manage.

CHARGES:
Order: Act of 1952—Section 241(a)(1) (9 U.S.C. 1251(a)(1)]—Excludable at entry under
section 212(a)(14)—not in possession of valid labor certification
nor exempt therefrom
Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)j—Excludable at entry under
section 212(a)(19)—secured visa by fraud or misrepresentation
of a material fact
Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under
section 212(a)(20)—immigrant not in possession of valid visa or
other document.in lieu thereof
ON BEHALF OF RESPONDENT: Timothy S. Barker,. Esquire
Legal Aid Society of San Diego
1760 Euclid Avenue
San Diego, California 92105

1E3Y: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision. dated June 21, 1977, an immigration judge found the
r-espondent deportable on the charges contained in the Order to Show
Cause, but granted him the privilege of departing voluntarily in lieu of
deportation. The respondent was found to be ineligible for the relief
564

Interim Decision #2662

provided by section 241(f) of the Immigration and Nationality Act, 8
U.S.C. 1251(f). The immigration judge declined to grant a continuance
of the proceeding until the pending visa petition in behalf of the respondent is adjudicated by the District Director. The respondent has appealed from the immigration judge's decision with regard to relief under
section 241(f). He also alleges that the immigration judge's refusal to
grant a continuance was an abuse of discretion. The appeal will be
dismissed.
The respondent is a 35-year-old native and citizen of Melico. lie
married a Mexican national, Francisca Serrano-Hernandez, in April,
1967. Four children were born of this marriage. Without having obtained a divorce from his Mexican wife, the respondent married Olivia
Garza, a United States citizen, on September 29, 1973. Based on this
second marriage, the respondent applied to the American consul in
Guadalajara, Mexico, for an immigrant visa in 1974. The respondent
deliberately misinformed the American consul by telling Min that he had
no prior marriages. At the deportation hearing the respondent claimed,
in extenuation of his misrepresentation, that he believed that his attorney had obtained a divorce for him, but that he had received no divorce
document. He testified that he did not learn the truth, namely that there
was no record of his having been divorced, until April, 1977. He then
instituted a mutual consent divorce proceeding in Guadalajara (Ex. 4).
At the time of the immigration judge's decision, no divorce decree had
been obtained. Nor has such a decree been submitted to us on appeal.
On May 1, 1977, the respondent and Olivia Garza went through a
church marriage ceremony in San Diego. It is not clear what legal effect
this had, since the respondent apparently had not yet obtained a divorce
from his Mexican wife.
Based on his misrepresentation to the American consul, the respondent was admitted to the United States as a permanent resident on
March 22, 1974. About three months later, on June 26, 1974, the respondent's United States citizen wife gave birth to a United States
citizen child.

The respondent's deportability on the charges contained in the Order
to Show Cause was established by clear, convincing, and unequivocal
evidence. This is not contested in the respondent's appellate brief.
The respondent contends that he is saved from deportation by section
241(f) of the Act. The child born in 1974, issue of the bigamous marriage
with Olivia, is legitimate under the law of California, where the child
was born and where the respondent has been domiciled. See Matter of
Sczndin-Nava, 14 I. & N. Dec. 88 (BIA 1972). One element of section
241(f) is thus satisfied. The issue is whether section 241(f) was effective
to excuse excludability at entry under section 212(a)(14) of the Act, S
1182(a)(14), along with sections 212(0(19) and (20), or whether
565

interim iieusion /F400,c,
the respondent was not "otherwise admissible," for lack of a labor
certification.
Counsel argues that the respondent is eligible for relief under section
241(f) of the Act despite the fact that, at the time he entered the United
States, he was inadmissible under section 212(a)(14), 8 U.S.C.
1182(a)(14), for lack of a labor certification. Counsel points out that the
birth of the respondent's United States vitizen son, three months after
the respondent's entry into the United States, had the effect of exempting him from the labor certification requirement. 1 He urges that it
should make no difference whether the exemption from the labor certification requirement existed at the time of the respondent's entry into the

United States or whether, as in this case, it arose subsequent to the
time of entry. Alternatively, he argues that the section 241(f) waiver
should be held to reach excludability under section 212(a)(14) as well as

sections 212(a)(19) and 212(a)(20), 8 U.S. C. 1182(a)(19) and (a)(20).
In Reid v. INS, 420 U.S. 619, 630 (1975), the Supreme Court stated:
.... Congress, in enacting section 241(f), . . . did not intend to arm the dishonest
alien seeking' admission to our country with a sword by which he could avoid the
numerous substantive grounds for exclusion unrelated to fraud, which are set forth in
section 212(a) of the Immigration and Nationality Act.
Subsequent to Reid, no court has held that the section 241(f) waiver
reaches excludability under section 212(a)(14). See Cacho v. INS, 547
F.2d 1057, 1062 (9 Cir. 1976); Guel-Parales v. INS, .519 F.2d 1372 (9 Cir.
1975); Escobar-Ordonez v. INS,526 F.Zd 969 (5 Cir. 1976); CastroGuerrero v. INS, 515 F.2d 615 (5 Cir. 1975); De Leon v. INS,547 F.2d
142 (2 Cir. 1976); Pereira-Barreira v. INS, 523 F.2d 503 (2 Cir. 1975).
See also Jolley v. INS, 441 F.2d 1245 (5 Cir. 1971), cert. denied, 404
U.S. 946 (1971); de Vargas v. INS, 409 F.2d 335 (5 Cir. 1969), cert.
denied, 396 -U.S. 895 (1969); Velasquez-Espinosa v-. INS, 404 F.2d 54.4
(9 Cir. 1968). One circuit has left the issue open. Persaud v. INS, 53'7

F.2d 776 (3 Cir. 1976).
Section 241(f) provides:
The provisions of this section relating to the deportation of aliens within the United
States on the ground that they were excludable at the time of entry as aliens who have
' Prior to its recent amendment, section 212(a)(14) of the Act provided, in pertinent
pa rt:
"The exclusion of aliens under this paragraph shall apply to special immigrants

defined in section 101(a)(27)(A) (other than the parents, spouses, or children of United
States citizens or of aliens lawfully admitted to the United States for permanent
residence), . . ."
'The effect of this provision was to create an exemption from the labor certification
requirement for Western Hemisphere natives who had a child born in the United States.
"The provision was removed by the Immigration and Nationality Act Amendments of
Oetober20, 1976, Public Law 94-571, 90 Stat. 2703, which became effective on January 1,
1 9 77.
-

566

Interim Decision #2662
sought to procure, or have procured visas or other documentation, or entry into the
United States by fraud or misrepresentation shall not apply to an alien otherwise
admissible at the time of entry who is the spouse, parent, or child of a United States
citizen or of an alien lawfully admitted for permanent residence. (Emphasis supplied.)

We stress the importance of the phrase "at the time of entry" which
modifies the words "otherwise admissible." 2 There is no reason to read
this modifying phrase out of the Act:
[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no
clause, sentence, or word shall be superfluous, void, or insignificant. Market Co. v.
Hoffman, 101 U.S. 112, 115-116. See erareeki v. G. D. Searle S., Cn., 367 U.S. 303,
307-308. [United States v. Campos-Serrano, 404 U.S. 293, 301, n. 14 (1971).]

It is significant that the various provisions of the Act which authorize
discretionary relief from deportation have carefully defined limitations.
By contrast, the waiver provision of section 241(f) is mandatory and
unqualified. If section 241(f) covered aliens who become "otherwise
admissible" after entry, it would tend to preempt the discretionary
relief provisions of the Act, particularly adjustment of status under
section 245. It is a well-settled principle of statutory construction that
all sections of an act must be reconciled if possible so as to produce a
symmetrical whole. De Leon v. INS, supra, at 149; General Motors
Acceptance Corp. v. Whisnant, 387 F.2d 774 (5 Cir. 1968); Malaga) v.
United States, 302 F.2d 880 (D.C. Cir. 1962).
We conclude that section 241(1) of the Art is not effective to relieve
from deportation an alien who entered in violation of section 212(a)(14).
Counsel for the respondent also argues that the immigration judge
should have granted a continuance until a visa petition in behalf of the
respondent could be adjudicated by the District Director, so that the
respondent could, upon approval of the visa petition, file an application
for adjustment of status under section 245 of the Immigration and
Nationality Act, 8 U.S.G. 1255. 3
It is obvious that the immigration judge's refusal to grant the requested continuance did not involve any abuse of discretion. See Matter
of Ching, Interim Decision 2518 (MA 1976). We need not decide
whether, if an application for adjustment of status is properly filed, it
should be denied as a matter of discretion in the circumstances of this
case.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
2 It is clear that the phrase "at any time of entry" does not apply to the requirement,
also contained in section 241(f), that the alien be the spouse, parent, or child of a United
States citizen. See INS v. Errito, 385 U.S. 214, 217 (1966); Reid v. INS, supra., at 630.
3 It is not even clear from the record that a visa petition has been filed. The respondent's
mppcllatc brief, at p. 2, indicates that a visa petition will be filed after the Mexican divorce
decree is issued.

567

interim Decision

InbbZ

respondent is permitted to depart from the United States voluntarily
within 30 days from the date of this order or any extension beyond that
time as may be granted by the District Director; in the event the
respondent fails so to depart, the respondent shall be deported as
provided in the immigration judge's order.

568