MATTER

of W—

M DEPORTATION

Proceedings

A-1041470
Decided by Board April 25, 1960

Deportability—Section 241(a)(3), 1952 act--Imposes upon alien burden of es abEshing that mental disability did not exist prior to entry.
An alien institutionalized at public expense within five years of entry because
of mental disability ha3 the burden of establishing that the disability did
not exist prior to his entry. Burden Is not met where the only evidence
offered to show that his mental illness did not exist prior to admission is
the testimony of respondent, who is confined under a court order of commitwent, and his wife's testimony which is inconsistent with previous statements.
.CHARGE :
Order: Act of 1952—Section 241(a) (3) [8 U.S.C. 1251(a) (3)]—Institutionalized at public expense within five years after entry.

BEFORE THE BOARD

Discussion : This case comes forward on appeal by the examining
officer from a decision of the special inquiry officer dated December
17, 1959, terminating the proceedings
The record relates to a native of Poland, presently stateless, 36
years old, male, who last entered the United States on February 14,
1957, and was admitted for permanent residence. The respondent
was on May 22, 1959, ordered committed to the New Jersey State
Hospital for the Insane at Marlboro, New Jersey, at public expense
pursuant to a final order of commitment of the Union County Court
of Union County, New Jersey. The commitment paper was predicated upon the certificates of two duly qualified physicians and the
testimony of the wife.
In discussing the burden of proof under section 241(a) (3) of the
Immigration and Nationality Act under which deportability is
charged, the special inquiry officer sets forth that the Government
must establish by reasonable, substantial and probative evidence that
the respondent is deportable as charged; that the burden is upon
the respondent to show initially that he did not have the disease
630

before he came to the United States. The special inquiry officer
concludes that the respondent has by his own testimony and the
testimony of his wife during the course of the hearing sufficiently
carried the burden of showing that the illness had not existed prior
to his entry into the United States so as to require the Government
to controvert that showing by reasonable, substantial and probative
evidence.
It is believed that the standard of burden of proof in this type
of case is governed by the decision in Matter of C R— 7
I. & N. Dec. 124. Ordinarily, the burden of establishing deportability is upon the Government in an expulsion case. However, the
statute in question, section 241(a) (3) of the Immigration and Nationality Act, provides for the deportation of an alien who thereafter, within five years after entry, becomes institutionalized at public expense because of mental disease, defect, or deficiency, unless
the alien can show that such disease, defect, or deflciency did not
exist prior to his admission to the United States. Thus, the statute

specifically places the burden upon the alien to establish that the
mental disease for which he "becomes institutionalized" did not
exist prior to his admission to the United States. The respondent,
if lie does not meet this burden which is shifted to him by the specific language of the statute, is subject to deportation if the evidence
affirmatively establishes that within five years after his entry he
became institutionalized at public expense.
By way of analogy, comparison may be made with a somewhat
similar ground of deportation in a prior statute, section 19(a) of the
Immigration Act of 1917 (8 U.S.C. 155(a)) which provided for the
deportation of any alien who, within five years after entry, became a
public charge from cause not affirmatively shown to have arisen
subsequent to landing. This section was judicially construed to mean
that the alien had the burden of proving that the disease did not
antedate his landing in the United States.'
In the instant case the only evidence offered to sustain the burden
upon the alien of establishing that his mental illness did not exist
prior to his admission was the testimony of the respondent and of
his wife. The respondent is confined to a mental institution pursuant to a. court order of commitment and his wife has given testimony which is inconsistent with previous statements. It is not
believed that this type of evidence is sufficient to sustain the burden
placed upon the respondent.
The case will be remanded for further hearing in order that the
correct standard of burden of proof be applied. The respondent
should 119 VP an opportunity to introduce testimony by a psychiatrist
1 Canciamilla v. Half, 64 F.2d 875 ; Er parte Wong Ming, 30 F.2d 766; United
States ex rel. Casimano v. Commissioner of Immigration, 15 F.2d 555 (1926).

631

to support his contention that his mental illness did not exist prior
to his admission to the United States. In addition, he may submit
affidavits of persons who knew him abroad relating to his behavior
and other characteristics which might be helpful in assessing the
onset of his mental illness. The service may produce such evidence
as it deems appropriate.
Order: It is ordered that the case be remanded for further proceedings in accordance with the foregoing paragraph.

632


Interim Decision #1760

MA'FTER OF LEE

In Deportation Proceedings
A-10773765
Decided by Board July 31 1 1967
Notwithstanding respondent's full and unoonditional pardon by the Governor

of the State of California for his narcotics conviction, motion to reopen to apply
for the benefits of section 249, Imnilgration and Nationality Act, as amended,
is denied since the pardon is ineffective under section 241(b) of the Act to
immunise him from deportation on the ground of his narcotics violation (and

once admitted, he would be subject to immediate deportation under section
241(a) (11)), nor does it remove the narcotics ground of inadmissibility under
section 212(a) (23).
OHAI1DE:

Order: Act of 1952—Section 241(a) (11) 18 U.S.C. 1251(a) (11)7—Narcotics
possession, conviction : possession of opium, violation
of section 11500, California Health and Safety Code.
ON BEHALF

or RESPONDENT: Joseph S. Hertogs, Esquire
Jackson & Hertogs
580 Washington Street

San Francisco, California 94111
. (Brief filed)

The respondent, a native of the mainland of China and a citizen of
the Republic of China on Formosa, has been found deportable as one
convicted of a narcotic violation pursuant to section 241(a) (11) of the
Immigration and Nationality Act (8 U.S.C. 1251(a) (11)). An order
providing for the respondent's deportation to the Republic of China
on Formosa was issued by the special inquiry officer on January 9,
1963. There was no appeal from this decision.
The respondent now moves for a reopening of the proceedings to
afford him an opportunity to apply for the creation of a record of lawful admission for permanent residence under section 249 of the Immigration and Nationality Act (8 U.S.C. 1259). The special inquiry
officer, in an order dated June 14, 1967, denied the motion. The respondent appeals from this order.

335

Interim Decision #1730
The respondent is a married male alien, 54 years of age, who last
entered the United States through the port of San Francisco, California on July 21, 1939. He was admitted as a citizen on this occasion.
He revealed his true identity and citizenship in 1960.
The respondent, on June 3, 1955, was convicted in the Superior
Court of the State of California in and for the County of San
Joaquin, of unlawful possession of opium in violation of section
11500 of the California Health and Safety Code. He served 90 days
in the county jail for the narcotic conviction.
The respondent, on December 23, 1962, was granted a full and unconditional pardon by the Governor of the State of California for
the narcotic offense. The special inquiry officer denied the motion on
the ground that the respondent is ineligible for relief under section 249 of the Immigration and Nationality Act because of the provisions of section 241(b) and section 212(a) (23) of the same Act.
The special inquiry officer reasons that notwithstanding the fact that

there is no expressed provision of the Immigration and Nationality
Act rendering a pardon ineffective to prevent excludability, the respondent would immediately upon reentry be deportable under section 241(a) (11) as section 241 (b) renders his pardon unavailable
as a waiver of deportability.
Counsel urges error in the conclusion reached by the special inquiry officer. He argues that the respondent is not inadmissible under section 212(a) (23) of the Act because the restriction found in
section 241(b) has no application in an exclusion proceeding. Counsel maintains that our decision in Matter of R—G---, 8 I. & N. Dec.
128 (B.I.A., September 2, 1958) is distinguishable from the respondent's case. We held in Matter of R—G (supra) that notwithstanding
the lack of a specific statutory ground of exclusion, an alien who upon
entry would immediately become subject to deportation should be
found excludable. Counsel refers to a statement in Matter of R—G
(supra) which said that our holding in Matter of V—, 7 I. & N. Dec.
565, was merely that the language of the exclusion provision governs in exclusion proceedings and not the language of some related
deportation provision.
Counsel, on the basis of the foregoing reasons that the inadmissibility required under section 249 must be determined under section
212 of the Act since section 212(a) (23) contains a provision relating
to a narcotic violation. Counsel argues that the special inquiry officer
is in error when he relied on section 241 (b) of the Act as a sufficient
basis to conclude that the respondent is excludable under section
212(a) (23) of the same Act and that this conclusion is contrary to
the precedent decisions of this Board.

Interim Decision #1760
Section 249 provides, inter alia, "a record of lawful admission for
permanent residence may . . . be made in the case of any alien . . .
if . . . such alien shall satisfy the Attorney General that he is not
inadmissible under section 212 (a) insofar as it relates to . . . violators of the narcotic laws . ." Accordingly, a record of lawful admission cannot be created in behalf of the respondent unless the
pardon granted him by the Governor of California removes the ground
of inadmissibility set forth in section 212(a) (23) of the Act.
We believe that the respondent's ineligibility for relief under section
249 is controlled by the last sentence of section 241(b) which renders
a pardon ineffective in the case of any alien who has been convicted of
a narcotic violation. A grant of permanent residence under section 249
would not make the respondent immune from deportation because his

pardon does not waive a narcotic conviction. Since the respondent

would be subject to immediate deportation under section 241(a) (11)
of the Act once he was admitted and since there is a provision of section 241 ( a) which renders an alien deportable if he was excludable
by law at the time of entry, we find no logical reason to support a
conclusion that the pardoning provisions of section 241(b) apply to
a narcotic ground of excludability without the limitation which denies

the waiver to an alien "who is charged with being deportable" as a
Under the circumstances, we find that the respondent
is ineligible for the creation of a record of lawful admission under
section 249 of the Immigration and Nationality Act. Regardless of the
pardon which sets aside the respondent's conviction, nevertheless he is
a "violator" as that term is used in section 249 (supra).
Counsel also urges that that portion of section 241(b) (supra) which
limits the pardoning power of the executive branch of the Government
is unconstitutional and not properly the subject of legislative control.
Counsel relies upon a case decided by the Supreme Court wherein it
was stated that "a pardon reaches both the punishment prescribed for
the offense and the guilt of the offender; and when the par.don is full,
it releases the punishment and blots out of existence the guilt, so that
in the eye of the law the offender is as innocent as if he never committed
the offense." Eat parts Garland,71 U.S. 366, 377 (1867).
This Board has consistently held that it is nat within our province
to pass upon the constitutionality of the statutes we administer. Matter
of L—, 4 I. & N. Dec. 556 (B.I.A. November 21, 1951) . We affirm the
order entered by the special inquiry officer denying the respondent's
motion to reopen the proceedings and will dismiss the appeal.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
narcotic -riolator.

337


Interim Decision 4E1303

MATTER OF NAPELLO
In VISA PETITION Proceedings
A-12363457
Decided by Board September 7, 1963
A. marriage by proxy In Mexico, following a divorce obtained in absentia in
Mexico to terminate a prior marriage, is not valid under the immigration laws
and will not sustain a visa petition to accord nonquota status on behalf of
the second spouse.

The petitioner filed a visa petition to obtain nonquota status for the
beneficiary as his spouse, and on May 11, 1962 the petition was approved by the District Director of the Service in New York City.
On November 23, 1962 the petitioner was informed of the intention
of the Service to revoke approval of the petition, and on February 1,
1963 an order of revocation was entered. The case is before us on the
petitioner's appeal from that decision.
The petitioner has established that he is a native-born citizen of the
United Statm He was first married to Amelia Casalone on September 24, 1960 at New York City, New York. On April 30, 1900 he
obtained a divorce from her in a Mexican court. The petitioner and
his first wife were not in Mexico at that time. On April 19, 1962 the
petitioner married the beneficiary at Washington, D.C. After the
Service informed the petitioner concerning the intention to revoke the
approval of the visa petition, the petitioner and the beneficiary were
married by proxy in Mexico on January 16, 1963. The sole issue to be
determined is whether the beneficiary is the spouse of the petitioner
as required by section 101(a) (27) (A) of the Immigration and
Nationality Act (8 U.S.C. 1101 (a) (27) (A) ).
We have carefully reviewed the entire record. On January 31,
1963 the petitioner wrote to the District Director of the Service enclosing a certificate concerning the Mexican marriage on January 16,
1969. This evidence was not before the District Director at the time

his decision of February 1, 1963 was rendered. However, we have
given consideration to that marriage and to the petitioner's letter
addressed to this Board on June 15, 1963 enclosing a photostatic
copy of the original Mexican marriage certificate of January 16, 1963.
370

Interim Decision #1303
The petitioner no longer relies on his marriage to the beneficiary
at Washington, D.C. on April 19, 1962 but instead on the proxy
marriage in Mexico on January 16, 1963. He has stated that the
marriage has been consummated. He contends that the validity of
his marriage is to be determined by the law of the place where it was
contracted; that his proxy marriage in Mexico is valid in. that country;
and that a marriage that is valid where contracted is valid everywhere

unless contrary to public policy.
The controlling decision concerning Mexican divorces is Matter
of P , 4 I. 80 N. Dec. 610, decided by the Acting Attorney General
on March 18, 1952. In that case, the Acting Attorney General had
stated that the rule to be applied was: "that the validity of a marriage
is governed by the law of the place of celebration." There, the parties
to a marriage mutually agreed that it should be terminated; and the
wife went to Mexico for the purpose of instituting divorce proceedings after which she returned to the United States. The Mexican
divorce was granted in 1947 and a few days thereafter the woman
remarried. In 1951, the man was married in Germany and subsequently filed a visa petition for his wife. He was in the armed
forces of the United States and his superior officers had advised him
that the Mexican divorce was legal. We ascertained that Mexican
divorce decrees had apparently been accepted as valid by German
authorities. Under the circumstances, we held that the validity of
that petitioner's marriage in Germany should be recognized.
The case of this petitioner presents an entirely different factual
situation. In Matter of P—, supra, the parties had mutually agreed
—

that the marriage should bo terminated, and we stated that we were

impressed with the evident good faith of the parties. In the case
before us, it is not clear that the first wife had any actual knowledge
concerning the institution of the Mexican divorce proceeding. As indicated in the District Director's order of February 1, 1963, it appears
that, by reason of the Mexican divorce, the petitioner's subsequent
marriage to the beneficiary at Washington, D.C., is not recognized as
valid in the District of Columbia. We believe it is obvious that Matter of
does not sanction such a, procedure as was resorted to in this
case, that is, the expedient of a proxy marriage in Mexico for the purpose of curing a marriage which was invalid under the laws of the
District of Columbia. Accordingly, we hold that the petitioner has
not established that the beneficiary is his lawful spouse within the
meaning of 8 U.S.C. 1101 (a) (27) (A). It follows that the action of
the District Director in revoking . approval of the visa petition was
correct, and the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
371


Interim Decision #2438

MATTER OF TRILLERA
In Deportation Proceedings
A-20357073
Decided by Board October 14, 1975
(1) Assuming, arguendo, the Service learned of respondent's presence and location in the
United States by some unlawful means, the affidavit executed by respondent during the
course of an interview with a Service investigator (and which constitutes the primary
basis of a finding of deportability; is free of any possible taint, since it is the product of
respondent's %oluntary acts.
(2) Even assuming the Service became aware of respondent's presence and location in the
United States as a result of some sort of communication from either the Department of
Labor or the :)epartment of State, there was no impropriety in such assumed interagency cammrnieation No rights of respondent, a nonimmigrant visitor who was and
who remains unlawfully in the United States, could have been violated by such assumed
communication. Hence, respondent's allegations that the Service unlawfully learned of
her presence in this country are unfounded; her motion to suppress was properly
denied.

CHARGE:
Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2))—Nonimmigrant visitor—
remained longer.
ON BEHALF OF RESPONDENT; William H. Oltarsh, Esquire
225 Broadway
New York, New York 10007

In a decision dated July 31, 1975, the immigration judge found the
for
voluntary departure. The respondent has appealed the finding of
deportability, contending that the evidence introduced to establish deportability should have been suppressed by the immigration judge. The
appeal will be dismissed.
Exhibit 4 of the record is an affidavit signed by the respondent on
December 13, 1974, during the course of an interview before a Service
investigator. The respondent has acknowledged that she signed the
affidavit, and she does not dispute the accuracy of the information
contained therein. Primarily on the basis of this affidavit, we find that
respondent deportable, but granted the respondent's application

the responde nt is a native and citizen of Colombia who entered the

United Staters as a nonimmigrant visitor, and that she has remained
474

Interim Decision #2438
beyond the authorized length of her stay. The evidence is clear, convincing and unequivocal that she is deportable as charged by the Service.
The respondent does not challenge the sufficiency of the evidence of
deportability. She does, however, contend that that evidence should not
have been employed in determining deportability. The respondent basically argues that the Service unlawfully obtained knowledge of her
presence in the United States, and that it was on the basis of this
knowledge that she was requested. to appear for the interview at which
she executed the damaging affidavit.
We note that the respondent made a conscious voluntary decision to

meet with a representative of the Service and then voluntarily provided
the Service with the requested information. The record indicates that
the respondent was represented at the interview by either present
counsel or someone acting in behalf of present counsel (Tr. pp. 10-11;
Exh. 5). Even assuming that the Service learned of the respondent's
presence and location in the United States by some unlawful means, the
affidavit executed on December 13, 1974 is free of any possible taint
because it is the product of the respondent's voluntary acts. Cf. Mims
v. INS, 361 F.2d 529 (D.C. Cir. 1966).
We are also convinced that the respondent's allegations regarding
unlawfully obtained evidence are unfounded. The respondent contends
that she was erroneously denied access to the Service's records which
pertain to her. Counsel for the respondent sought to review these
records in an attempt to determine how the Service became aware of the
respondent's presence in the United States. Counsel argues that the
Service probably received inforthation regarding the respondent from
either the Department of Labor or the Department of State. It appears
that both of these departments had information relating to the respondent because she had submitted an application for a labor certification,
which was subsequently approved and forwarded to the United States
consulate in her home country.
Although counsel's request for discovery was denied by the immigration judge, 1 we shall assume for the purpose of this appeal that counsel's contentions regarding the method by which the Service acquired its
information on the respondent are correct. We therefore assume that
the Service learned of the respondent as a result of some sort of communication from either the Department of Labor or the Department of
State.
Counsel contends that this assumed communication violated the respondent's rights. We initially disagree with counsel's assertion that
' Counsel also made a written request to the Service, which he claims was under the
Freedom of Information Act, for this information. The record does not disclose the
disposition of that written request. The Service's trial attorney did refuse counsel's oral
request for the information during the course of the hearing (Tr. p. 11).

475

Interim Decision #2438
these departments have no powers relating to the entry of aliens into
the United States. See section 212(a)(14) and section 104, Immigration
and Nationality Act. Furthermore, the Act specifically provides for
liaison between the Service and the Department of State. Section 105
and section 104(b), Immigration and Nationality Act. We know of no
right possessed by the respondent, a nonimmigrant visitor who was and
who remains unlawfully in the United States, which could have been
violated by such a communication.
We find no impropriety in the assumed interagency communication.
Counsel's motion to suppress was properly denied. There was no infringement on any rights possessed by the respondent, even if counsel's

factual contentions are correct. The decision of the immigration judge
was correct.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 31 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

476


Interim Decision #2401

MATTER OF STUVZ

In Visa Petition Proceedings
A-20099775

Decided by Board November 20, 1974 and March 18, 1975
Decided by Attorney General June 30, 1975
The petitioner, a naturalized United States citizen is married to the beneficiary's father;
the beneficiary was born over 3 years after this marriage as the result of an illicit
relationship between the married natural father and a woman to whom he was never
married. The petitioner alleges that her husband, the beneficiary's father, has supported the child since it was abandoned by its mother; that the petitioner took care of
the child about 2 years in Jamaira; and that the petitioner and her husband adopted the
child in Jamaica, when the child was 14 years and nine months old. The district director
denied the vim petition filed under section 201(b) of the Immigration and Nationality
Act. The Board sustained petitioner's appeal finding a stepchild relationship arose even
though the illegitimate child was born after the present marriage, based on the evidence

that there is an existing bonafide family unit. It held that adulterine children, irrespective of the time of their birth, should be treated like other illegitimate children under
section 101(b)(1)(13) of the Act. On an application to reconsider by the Service, the prior
decision was affirmed. The Attorney General, on review, affirms the grant of the
petition; regardless of whether the illegitimate child was born before or after the
present marriage, the granting of the petition is consistent with the legislative history
and policy of section 101(b)(1)(B) of the Act, where, as in this case, the spouse of the
natural parent desires to raise that child and to maintain the family unit as evidence by
support, adoption, etc. [Matter of Young, 12 I. & N. Dec. 340, 544 (BM. 1967) and
Matter of Gre on, 11 I. & N. Dec. 546 (BIA 1965) were overruled by the Board insofar as
they are incolsistent with this opinion.]
ON BEHALF OF SERVICE:
Irving A. Appleman
Chief Trial Attorney

ON BEHALF 0:? PETITIONER:
David Scheinfeld, Esquire
41 East 42nd Street
New York, New York 10017

Sam Bernsen
General Counsel

BEFORE THE BOARD
(November 20, 1974)

The United States citizen petitioner applied for immediate relative
status for the beneficiary as her child under section 201(b) of the Immigration and Nationality Act. In a decision dated March 1, 1974 the
562

Interim Decision #2401
district director denied the petition. The petitioner has appealed from
that decision. The appeal will be sustained.
The petitioner was married on January 1, 1955 in Jamaica. On June
19, 1958 the beneficiary was born in Jamaica to the petitioner's husband
and a woman other than the petitioner. An affidavit signed by the
petitioner and her husband, the beneficiary's father, contains the following additional averments: The beneficiary lived with her natural mother
until August 1960, a little over two years after her birth, when her
natural mother abandoned her. Her father has supported her since that
time. The beneficiary's father came to the United States in December
1960. Until the petitioner herself came to the United States in 1962, she
took care of the beneficiary in Jamaica. The petitioner and her husband
have made frequent trips to Jamaica and have visited the beneficiary
each time. The petitioner became a United States citizen in 1968. She
and her husband, also a naturalized United States citizen, have sent
approximately $100 per month to the couple with whom the beneficiary
has been staying, for her clothing, tuition, and maintenance.
The record contains a copy of an adoption order from the Supreme
Resident Magistrate's Court of Halfway-Tree, St. Andrew, Jamaica,
showing that the petitioner and her husband legally adopted the beneficiary on March 28, 1973, when the beneficiary was 14 years and nine
months old.
The petitioner believes that the beneficiary qualifies as her stepchild 1, and hence as her child, under section 101(b)(1) of the Act. This is
the question that must be resolved. In his denial of the petition the
district director stated that because the beneficiary was illegitimate, she
could not qualify as the petitioner's child.
In section 101(b)(1)(B) of the Act a "child" is defined as an unmarried
person under the age of 21 who is:
(B) a stepchild, whether or not born out of wedlock, provided the child had not
reached the age of eighteen years at the time the marriage creating the status of
stepchild occurred. . . .
Several significant eases have helped to clarify the definition of a

"stepchild." In Nation v. Esperdy, 239 F. Supp. 531 (S.D.N.Y. 1965),
the court noted that despite common dictionary definitions of a stepchild
as a child by a former marriage, the language of section 101(b)(1)(B)
contemplates that an illegitimate child may also be considered a stepchild for immigration purposes. Id. at 533. In the Nation case, the
beneficiary had been abandoned in infancy by his natural mother. The
petitioner began caring for the beneficiary when he was two years old,
3 Although the beneficiary was legally adopted, the petitioner is not seeking her admission as an adopted child because the beneficiary was not under the age of 14 when she was
adopted, and is therefore not a "child" for immigration purposes under section 101
(3)(1)(E), the subsection governing adopted children.

-

363

Interim Decision #2401 and she married his natural father three- years later, in 1952. They all
lived together until the petitioner immigrated to the United States in
1957. Her h•sband followed in 1958. The petitioner and her husband
adopted the beneficiary when he was 16. As soon as the petitioner
obtained Uir.ted States citizenship, she sought to reunite the family by
petitioning for non-quota status for the beneficiary. The court held that
the child was the petitioner's stepchild, within the meaning of section
101(b)(1)(13) and was eligible for nonquota status.
We followed Nation in Matter of The, 11 I. & N. Dec. 449 (BIA 1965).
In that case the petitioner was the stepchild, who had been born out of
wedlock, and the beneficiary was her stepmother. We found that there
was ample evidence of a bona fide family unit including the petitioner,
the beneficiary, and the natural father, which continued until after the
petitioner reached the age of 21 and was married. She immigrated to the
United States in 1953, and ten years later filed a petition on behalf of her
stepmother. Unable to distinguish The from the Nation case, we approved the Nisa petition.
The one factor which distinguishes the present case from Nation and
The is that the marriage of the petitioner and the beneficiary's father
took place before rather than after the birth of the beneficiary. In
Matter of Green, 11 I. & N. Dec. 546 (BIA 1965), and Matter of Young,

12 I. & N. Dec. 340 (BIA 1967), cases involving children born of adulterous relationships, we followed Nation and dismissed the appeals on two
grounds: (1) the marriage creating the asserted steprelationship had not
taken place subsequent to the birth of the beneficiary, and (2) there was
no preexisting family unit.
The petitioner in Young made a motion for reconsideration by this
Board on the basis of an intervening decision, Andrade v. Rsperdy. 1 In
that case the court held that the petitioner's husband's illegitimate
daughter was classifiable as a stepchild under the immigration law,

despite the fact that there was no preexisting family unit including the
petitioner, the beneficiary; and the beneficiary's father. 3 In denying the
motion we stated that adulterine children are the issue of adulterous

intercourse and are regarded more unfavorably than the illegitimate
offspring of tingle persons. We went on to say that ". . . it is difficult to
understand the argument that the beneficiary in this case can be regarded as a stepchild. The beneficiary is simply an illegitimate adulterine child. The child was born during a then existing marriage as the
result of illicit intercourse between the married natural father and a
270 F. SupP. 516 (S.D.N.Y. 1967).
In Matter of Soares, 12 I. & N. Dec. 653 (D.D. 1967; BIA 1968), we refused to apply
the holding of Andrade beyond the Second Circuit, and in Matter ofAmado and Monteiro,
2

3

13 1. & N. Dec. 179 (BIA 1969), we further limited the application of Andrade to the

Southern District of New York, where that ease arose.

364

Interim Decision .#2401
female servant and there never has been a subsequent marriage by the
natural parents of the child so as to create a steprelationship." Matter of
Young, 12 L & N. Dec. 544, 545 (BIA 1967). We declined.to discuss the
holding in Andrade, and based our decision to dismiss the appeal on the
ground that there was no steprelationship because the marriage which
would have created such a relationship had not' taken place after the
birth of the beneficiary. We now recede from that position.
Section 101(b)(1)(B), which defines "stepchild;" does not in terms
require that the marriage take place after the child is born. 4 All it
requires is that the marriage have taken place before the child's 18th
birthday. The intent of Congress was obviously to preclude recognition
of an adult as a stepchild where the marriage creating the relationship
took place after the child reached age 18. Recognizing this beneficiary is
in keeping with, and does no violence to, that intent. Here the beneficiary had not reached the age of 18 when the marriage between the
petitioner and the beneficiary's father occurred; she had not even been
born then. Moreover,"a close family unit, including the beneficiary, her
father, and the petitioner, appears to have existed from August 1960,
when the beneficiary's mother abandoned her, until December 1960,
when her father departed for the United States. The petitioner continued to care for the beneficiary for. two more years, until the peti-

tioner's own departure for the United States. In addition, the petitioner
and the beneficiary's father maintained their relationship with the beneficiary through frequent visits and regular financial support.
We hold that the petitioner has established the existence of a steprelationship between herself and the beneficiary, since the marriage between the petitioner and the beneficiary's father,, which created the
status of stepchild, occurred before the beneficiary reached the age of
18. We further hold that adulterine children. should be treated like other
illegitimate children. • - •
We overrule our holding inMatter of Young, AL& N. Dec. 544 (BIA
1967), Matter of Young, 12 I. & N. Dee. 340 (BIA 1967), and Matter of
Green, 11 I. & N. Dee. 546 (BIA 1965), insofar as they are inconsistent
with this opinion.
ORDER: The appeal is sustained and the petition is approved, classifying the beneficiary as the child of the petitioner.
BEFORE THE BOARD
(MARCH 18, 1975)

The Immigration and Naturalization Service has moved that we reconsider Our decision of November 20, 1974, in which we held that the
4 That the definition of "stepchild" deviates from the generally accepted definitinn is
recognized in Nation v. Esperdy, supra at 533.

365

Interim Decision #2401
beneficiary is the stepchild of the petitioner, although she was born out
of wedlock alter the marriage of the petitioner and her husband, to the
petitioner's E.usband and another woman. The motion will be denied.
Having carefully considered the arguments of the Service in support
of its motion to reconsider, as well as those of counsel for the petitioner
in his brief in opposition to the Service motion, we see no reason to alter
our decision.
ORDER: The motion is denied.
David L. Milhollan, Chairman, and Irving A. Appleman, Board
Member, abstained from consideration of this case.
Louis P. Maniatis, Board Member, dissents without opinion.
BEFORE THE ATTORNEY GENERAL
(June 30, 1975)

Petitioner, Ida May Stultz, a United States citizen, has applied for
immediate relative status for the beneficiary, Susan Stultz, as her child
under section 201(b) of the Immigration and Nationality Act (hereinafter referred to as the Act), 8 U.S.C. §1151(b). In a decision dated March
1, 1974, the district director denied the petition. On appeal to the Board
of Immigration Appeals the district director's decision was reversed. In
accordance with the request of the Commissioner of the Immigration
and Naturalization Service (Service), this matter has been referred for
my review pursuant to 8 CFR §3.1(h)(1)(iii). The question involves the

proper interpretation of the term "stepchild" as used in §101(b)(1)(B) of

the Act, 8 U.S.C. §1101(b)(1)(B).
The facts are as follows:
The petitioner was married on January 1, 1955, in Jamaica. On June
19, 1958, the beneficiary was born in Jamaica to the petitioner's husband
and a woman other than the petitioner.' An affidavit executed by the
petitioner and her husband states that the beneficiary lived with her
natural mother until August 1960, a little over two years after her birth,
when her natural mother abandoned her, and that the beneficiary has
since been supported by her natural father, petitioner's husband. Petitioner's husband came to the United States in December 1960. Follow-

ing his departure, the petitioner cared for the child until she herself
came to the United States in 1962. The affidavit further declares that
the petitioner and her husband have made trips to Jamaica and have
visited the beneficiary each time, and that they have sent approximately
While the Immigration and Naturalization Service argued before the Board that there
was insufficient evidence to establish the existence of any relationship between petitioner's husband and the beneficiary, that issue is not raised here. See Request for

CertYleutiou to ..44torney General of the Imudgratiun and Naturalization Service, Sled
April 15, 1975.

366

Interim Decision #2401
$100 a month to the couple with whom the beneficiary has been staying,
for her clothing, tuition and maintenance. Petitioner was naturalized as
a United States citizen in 1968. Her husband is also a naturalized United
States citizen.
The record contains a copy of an adoption order issued by the Supreme Resident Magistrate's Court of Halfway-Tree, St. Andrew,
Jamaica, showing that the petitioner and her husband legally adopted
the beneficiary on March 28, 1973, when the beneficiary was 14 years
and 9 months of age. Although the beneficiary was legally adopted, the
petitioner is not seeking her admission as an adopted child because the
beneficiary was not under the age of 14 when she was adopted and is
therefore not a "child" for immigration purposes under §101(b)(1)(E) of
the Act, the subsection governing adopted children.
If the beneficiary is petitioner's "child" she is eligible for immediate
relative status. "Child" is defined in §101(b)(1) of the Act to include:
(1) ... an unmarried person under twenty-one years of age who is* *
*
(B) a stepchild, whether or not born out of wedlock, provided the child had not
reached the age of eighteen years at the time the marriage creating the status of stepchild
occurred. . . . 4
The question here is a narrow one: Whether the illegitimate child of one
spouse becomes the stepchild, as the term is used in the Act, of the
other spouse when the child is conceived and born during the existence
of the marriage. It is clear that an illegitimate child of one spouse
becomes the stepchild of the other spouse when the child is conceived
prior to that marriage. See Nation v. Esperdy, 239 F. Supp. 531
(S.D.N.Y. 1965); Andrade v. Esperdy, 270 F. Supp. 516 (S.D.N.Y.
I967). 3

The Service argues that the Board's inclusion of illegitimate children
conceived during the existing marriage within the term "stepchild" does
violence to the commonly accepted definition of that word as a relationship of a legitimate child created through the remarriage of a parent.
See, e.g., Merriam Webster New International Dictionary 2237 (3d ed.
1961). While apparently conceding that Congress departed from this
strict definition through the explicit inclusion of an illegitimate child
conceived and born prior to an existing marriage, the Service argues
that Congress did not intend to include children who are adulterine with
respect to the existing marriage.
-

2 The phrase "whether or not born out of wedlock" in subsection (B) was added in the
1957 amendments to the Act. Pub. L. No. 85416, 71 Stat. 639.
This would be so whether or not conception resulted from an adulterous relationship.
The bovine of subsection (B) makes no distinction between adulterine children "born out
of wedlock," and other children "born out of wedlock." Nor does the legislative history
contain any hint of such a distinction.

367

Interim Decision #2401
Initially, .the Service asserts that use of the :language ". . .provided
the child had not reached the age of eighteen at the time the marriage
creating the status of stepchild occurred. .•." in subparagraph (B) presupposes the birth of the child prior to that marriage. It further argues

that, starting from a definition of stepchild as (1) legitimate and (2) born
prior to the existing marriage, Congress, in explicitly removing only the

first qualification, left the second intact.
While the Service's arguthents are plausible, the language of subsection 101(b)(D(B) does not lead inevitibly to this result. The quoted
language seams intended only to insure that the relationship (through
the natural parent) between the petitioner and the child sought to be
admitted as an immediate relative existed in the child's formative years,
when the emotional bonds of:a parent-child relationship are primarily
formed. The provision-deals with birth prior to the existing marriage
simply, because only that •situation presents the disqualifying factor of
concern to the Congress. Nor is the normal definition of the word
"stepchild" controlling when, as here, the "step" prefix of that term has
been expressly modified by Congress in such a fashion that the prefix
can as easily be read to denote only a relationship dependent solely upon
marriage to a natural parent as to establish some intermediate category
requiring marriage subsequent to the child's birth.
Ultimately, however, the issue must turn not on refined semantic
analysis, bu: on a realistic assessment of the intent of Congress. The
legislative history' does not •speak directly to the point. 4 What does
emerge, however, from the legislative history of the amendments adding the phrase "whether or not born out of wedlock" is a distinct sense
that any doubt in interpretation is to be resolved in favor of recognition
of a "stepchild" relationship.
In view of the clearly expressed legislative intention [regarding the Immigration and
Nationality A.ct] to keep together the family unit wherever possible, it would appear to
, be a desirable result, based upon legal and equitable considerations, to adopt a liberal
construction. No harm could possibly result from such a construction, and the consequaices woad fulfill the humane considerations involved in keeping intact the famgy
unit.

House Report, 1957 Congressional & Administrative News at 2021.
While the : egislative history does in some places allude to children "born out of
wedlock prior to the marriage of (their] mother to a United States citizen," see, e.g.,
Rapt. No. 1199, 85th Cong., 1st Sess. (1957) (hereinafter' referred to as the House
Report), U.S. Code Congressional & Administrative News, 2016, 2020; 103 Cong. Rec.
16301 (Remarks of Representative Celier), these references are to the facts involved in
the "particular 3bnoxious administrative action" which highlighted the need for Congressional action. -Se• Andrade v. Esperdy, supra, 270 F. Supp. at 519. For the reasons sdt out
below, as well as those'set out in Nation v. Esperdy, supra and Andrade v. Esperdy.
supra, it is my 'new that the amendments passed by Congress in 1957 were limited solely
to the facts of the specific case which prompted their consideration.

368

Interim Decision #2401
In the same report, the House Committee on the Judiciary stated:
Sympathetic and humane considerations dictate an interpretation which would not
separate the child, whether legitimate or illegitimate, from its alien parent, particularly
in those cases where the citizen parent has executed a petition for the issuance of a
nonquota visa to such child and has evidenced an intent to regard the illegitimate
stepchild of his spouse as part of his own family and to raise that child as a part of the
famUy unit.

Id. Granting of the petition in the present ease would be far more
consistent with this policy than a denial based on the Service's narrow
reading. There is no indication that Congress anticipated the specific
distinction urged by the Service. Nor, when the spouse of the natural
parent desires to raise the child as part of the family unit, is the value of
such a distinction apparent.
Finally, it appears that if petitioner and her husband were to obtain 'a
divorce and then remarry, the sole obstacle to the child's admission
under the Service's theory would be eliminated. And yet there would
have been no change in the nature of the child's birth, the emotional
relationship within the family, or any other factor of conceivable relevance to the immigration laws. It is difficult to impute to Congress the
establishment of such a scheme in an act designed to "provide for a fair
and humanitarian adjudication of immigration cases." Id. at 2020.
For the reasons stated above, it is my view that adulterine children,
irrespective of the time of their birth, should be treated like other
illegitimate children under section 101(b)(1)(B) of the Immigration and
Nationality Act. The order of the Board of Immigration Appeals approving the petition and classifying the beneficiary as the child of the
petitioner is affirmed.

369


1116e1:1111

-

MATTER OF PATEL
In Section 246 Proceedings
A-20289698

Decided by Board January 25, 1978
(1) Under the provisions of 20 C.F.R. 656.30(d), effective February 18, 1977, a labor
certification issued by the Labor Department is subject to invalidation by the Immigration and Naturalization Service or the Department of State only upon a finding of fraud
or willful misrepresentation of a material fact involving the labor certification application.
(2) Matter of Hernandez-Uriarte, 13 I. & N. Dec. 199 (BIA 1969) interpreting 29 C.F.R.
60.5(g), the regulation superseded by 20 C.F.R. 656.30(d), is superseded.
(3) Since under the new controlling regulation a finding of fraud or willfulness is required
to invalidate a labor certification duly issued by the Labor Department, and the
immigration judge specifically refrained from making such a finding in view of our
interpretation of the previously controlling regulation, the record is remanded for a new
evidentiary hearing to allow the respondent and the Service an opportunity to explore
the issue.
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Peter D. Williamson, Esquire

Daniel L. Kahn

1320 Americana Building
Houston, Texas 77002

Trial Attorney

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

This is an appeal from a decision of an immigration judge dated April
13, 1977, ordering the rescission of the adjustment of status granted to
the respondent. The appeal will be sustained and the record will be
remanded for further proceedings.
The record relates to a married female alien, native and citizen of
India, whose status was adjusted to that of an alien admitted for
permanent residence on May 7, 1975. Her status was adjusted primarily
on the basis of a labor certification approved on January 22, 1974. The
Service concluded that this labor certification was invalid- These rescission proceedings were instituted.
The immigration judge found that the respondent's labor certification
was invalid because it was obtained on the basis of materially incorrect
representations to the Labor Department both as to the background of
employment, and the potential employment in the United States. Although fraud was alleged by the Service in the Notice of Intention to
444

1111,C1111/ I/et:Mit/1i ffGeOG

Rescind, the immigration judge specifically refrained from making a
determination on the alleged fraud. The immigration judge found that
the material misrepresentations found by him to have been made were
sufficient to invalidate the labor certification under 29 C.F.R. 60.5(g).
The immigration judge's finding as to the requirements to invalidate a
labor certification under 29 C.F.R. 60.5(g) was correct under our interpretation of that regulation. See Matter of Hernandez-Uria.rte, 13 I.
& N. Dec. 199 (BIA 190); Matter of Gonzalez-Becerra, 13 I. & N. Dec.
387 (BIA 1969).' However, this case is not governed by that regulation.
Effective February 131,, 1977, 29 C.P.R. 60.5(g) was superseded by 20
C.F.R. 656.30(d). See 42 F.R. 3440 (January 18, 1977). This new controlling regulation reads:
After issuance labor certifications are subject to invalidation by the INS or by a
Consul of the Department of State upon a determination, made in accordance with those
agencies' procedures or by a Court, of fraud or willful misrepresentation of a material
fact involving the labor certification application. If evidence of such fraud or willful
misrepresentation becomes known to a Regional Administrator, Employment and
Training Administration or to the Administrator, the Regional Administrator or Administrator, as appropriate, shall notify in writing the INS or State Department, as
appropriate.

In view of the fact that a finding of fraud or of willful misrepresentations of a material fa ct involving the labor certification application

is required under the new regulation to invalidate a labor certification,
findings not made by the immigration judge because they were unnecessary under our interpretation of the previously controlling regulation,

the record will be remanded for further proceedings before the immigration judge. A new evidentiary hearing should be conducted to allow
the respondent and the Service to explore the issue.
We note that the Service may deem it appropriate to amend the
Notice of Intention to Rescind in light of our decision in Matter _of
Darlquak, Interim Decision 2578 (BIA 1977), rendered subsequent to
the institution- of these proceedings.
ORDER: The appeal is sustained and the record is remanded for
further proceedings.

However, our interpretation of 29 C.F.R. 60.5(g) was disapproved by the United
States Court of Appeals for the District of Columbia Circuit in Castaneda-Gonzalez v.
INS, 564 F.2d 417 (D. C. Cir. 1977).

445


Interim Decision #1338

Ms.Trps

OP KELLY

In DEPORTATION Proceedings
A-8442318

Decided by Board May 16,1964
A conviction of illicit traffic in narcotics in tho State

of

Oalifernia resulting

in

a suspended sentence and probation constitutes a conviction of sufficient
finality to support an order of deportation under section 24.1(a) (31), Immigration and Nationality Act, and the finding of deportability is not affected
by the expungement or erasure of the conviction record as authorized under
sections 1203.3 and 1203.4 of the Penal Code of California.
Onanom: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11)]--Convicted
of violation of narcotic law—Illicit traffic in marijuana.

The case comes forward. on appeal from the order of the special
inquiry officer dated January 27, 1964, ordering respondent be deported from the United States on the charge contained. in the order
to show cause.
The record relates to a native and citizen of Great Britain, 26 years
old, male, who last entered the United States on or about August 1959.
He was originally admitted to the -United States for permanent residence on February 13, 1953, under section 6 (a) (3) of the Immigration
Act of 1924 (Exhibit No. 0).
The respondent was convicted on his plea of guilty on May 27, 1963,
in the Superior Court in the State of California in and for the City
and County of San Francisco to count three of an indictment charging him with violation of section 11531 of the Health and Safety Code
of the State of California, in that on or about the second day of March
1963 in the City and County of San Francisco in the State of California, the respondent unlawfully sold and gave away a narcotic,
to wit, marijuana (Exh. 2). The court ordered respondent placed
on probation for a period of three years on condition that he be conlined in the county jail for the term of six months. During the pendency of the hearing, the respondent obtained on October 8, 1963, from

the Superior Court of the State of California, County of San Francisco, where his conviction had occurred, an expungement of the con526

Interim Decision #1338
viction pursuant to sections 1203.3 and 1203.4 of the Penal Code of
California (E.h. 5). On the basis of this expungement, the attorney
for the respondent moved that the proceedings be terminated. The
only issue presented in this case is the effect of this expungement.
A conviction in all respects similar to that of the respondent was
considered in Matter of A—F--, 8 I. & N. Dee. 429 (Atty. Gen., 1959) .
The contention was raised that expungement of the conviction under
section 1203.4 of the California Penal Code erased the record and that
consequently there could be no conviction within the meaning of section 241(a) (11) of the Immigration and Nationality Act. The
Attorney General held, that for the purposes of section 241(a) (11),
it was immaterial that pursuant to a State statute like section 1203.4
of the California Penal Code or section 1772 of the Welfare and Institutions Code, the verdict of guilty has been set aside and the criminal
charge dismissed. The Attorney General stated that the history of
section 241(a) (11) convinced him that Congress did not intend that
aliens convicted of narcotic violations should escape deportation, because, as in California, the State affords a procedure authorizing a
technical erasure of the conviction.
The respondent in the above -cited case obtained an expungement
of his conviction under section 1203.4 of the California Penal Code
on May 13, 1960, but his motion to reopen was denied on May 16, 1960,
on the ground that no useful purpose would be served by reopening
in view of the decision of the Attorney General. Court action was
subsequently instituted and on November 9, 1962, in the case of
Arellano-Flores v. Rosenberg, 310 F. 2d 188, the -United States Circuit
Court of Appeals affirmed the holding of the District Court that,
despite the expungement of the conviction, the respondent was subject to deportation under section 241(a) (11) of the Immigration and
Nationality Act .2
The respondent was admitted to the United States for permanent
residence on February 13, 1953. He has testified that he has resided
in the United States except for a sight-seeing trip to Mexico from
May to August 1959 when he reentered the United States as a returning resident. Under section 241(a) (11) of the Immigration and
Nationality Act, the charge of deportability is not predicated upon
any specific entry into the United States but the charge simply provides that any alien who at any time has been convicted of a violation
of any law relating to illicit traffic in narcotic drugs or marijuana is
subject to deportation. Thus the principle of the ease of Rosenberg v.
Fleuti, 374 U.S. 449, has no bearing.
I Cert. den. 374 U.S. 838.

527

Interim Decision #1838
The respondent testified that his mother is a permanent resident of
the United States and his father is a naturalized citizen of this country.
He served in the United States Army from August 1961 to August
1063 when he received an undesirable discharge because of his conviction of the narcotics violation. Discretionary relief does not appear
to be available.
In connection with the appeal, counsel for the respondent urged that
the case be held in abeyance pending a decision in the Court of Appeals
for the Ninth Circuit in the case entitled Carcia-Gonzales v. I. 4:6 N.
Service, No. 18,375 in which he alleged the same issue is present. The
holding in this case is not set forth and we are not aware that the same
issue is presented which was disposed of in the ease of Arelkato-Flores
v. Rosenberg, 310 F.2d 118, cert. den. 374 U.S. 838. We do know however that in the ease of Gutierrez v. I. .c5 N. Service, 323 F.2d 593 (9th
Circuit, 1963), in which an alien was convicted of possession of marijuana by a California Court and was placed on probation for three
years, the Court cited with approval its earlier holding in ArellanoFlores v. Hoy 2 to the effect that California would consider on this
record that there was a conviction. The Court held that there was no
merit to the contention that the criminal proceedings which resulted
in petitioner's conviction do not have sufficient finality to support the
order of deportation.'
We conclude that the conviction of illicit traffic in narcotics in the
State of California which results in a suspended sentence and probation constitutes a conviction of sufficient finality to support an order
of deportation under section 241(a) (11) , and that this finding of
deportability is not affected by the expungement or erasure of the
conviction record as authorized. under section 1203.4 of the Penal Code
of the State of California. The appeal will be dismissed. •
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
262 F. 2d 667, cert. den. 362 U.S. 921.
' Lithe Gutierrez case, certiorari was denied on April 20, 1964.

528


Interim Decision #1629

MATTER

or

STRAWS=

In Deportation Proceedings
A-14682948
Decided by Board August 5, 1956

(1) Respondent, a native and citizen of Indonesia, has not established that because of anti-American sentiment in Indonesia and because of her employment there from 1957 to 1904 by a United States Government agency and
by an American company that she would be subject to persecution within
the meaning of section 243(h), Immigration and Nationality Act, as
amended, if deported to Indonesia, as the political conditions in that country have been substantially corrected since her departure therefrom, she
testified that she was never politically active in Indonesia, or elsewhere, she
bad no difficulty in obtaining documentation to depart therefrom for the
United States, she was not persecuted in that country prior to her departure,
and her family there has not been subjected to persecution(2) Evidence in the form of newspaper articles, which pertained to the issue at
band and which was offered by respondent, a section 243(h) applicant, in
support of her claim of fear of persecution and was received into evidence
by the special inquiry officer, should have been considered for what it was
worth, despite the limitations on the evidentiary value thereof.
GEASOE:

Order: Act of 1952 Section 241(a) (2) [8 U.S.C. 12511 Nonimmigrant—

—

temporary visitnr—remalned longer_

This case originally came before us on. appeal from a special inquiry officer's order of DecenTher IT, 1965, granting the respondent
the privilege of voluntary departure, providing for her deportation
from the United States to Indonesia on the charge contained in the
order to show cause in the event of her failure to depart, and denying her application for temporary withholding of deportation to
Indonesia. On March 23, 1966, we remanded the case to the special
inquiry officer to give the respondent an opportunity to present
any additional obtainable evidence in support of her application
for temporary withholding of deportation . to Indonesia, and for
the further purpose of having the special inquiry officer evaluate
all the evidence in a manner consistent with the concept of funda75D

Interim Decision #1629
mental fairness. The special inquiry officer complied with our decision to the best of his ability: He permitted his original decision
to stand, and he then certified the case to this Board for final decision.
The record relates to a 3'7 year old single female alien, a native
-

-

and citizen- of Indonesia, who last entered the United States on or
about August 25, 1964. She was then admitted as a non-immigrant
temporary visitor. She was thereafter authorized to remain in the . United States in that status until June 25, 1965. She has remained
here since that date without authority.
The foregoing establishes the respondent's deportability on the
charge contained in the order to show cause. This was conceded in
the course of the hearing before the special inquiry officer when the
respondent was represented by counsel. The point is unchallenged
here. This aspect of the case needs no further comment.
The special inquiry officer granted the respondent's alternative

request for voluntary departure. The record 'before us supports
his action in this respect. Further discussion of this phase of the
matter is unnecessary.
On October 8, 1965, section 11(f) of Public Law •89-236 was
enacted (79 Stat.- 911), amending section 243(h) of the Immigration and Nationality Act (8 U.S.C. 1253). That amendment struck
out the words "physical persecution" and inserted in lieu. thereof,
as a test for temporary withholding of an alien's deportation, "persecution on account of race, religion, or political opinion." Accordingly, and in view of the foregoing, the only issue remaining for
our consideration is whether the respondent has met the burden of
establishing that she would be subjected to persecution if returned
to Indonesia .(8 CFR 242.17(c)).
Between 1957 and 1954, the respondent worked for an agency of
the United States Government and for an American company in In-

donesia. She originally testified that she feared she would be persecuted by the communists if returned to Indonesia because of that
employment.. She claimed that on one occasion in 1961 or 1982 some
people threw stones at a, United States Government car in which
she was riding. She stated that anti-American feeling has grown
worse since her arrival in the United States.
At a continued hearing, the respondent asserted that she based
her fear of persecution on. the fact that there might still be communists in the government of Indonesia, notwithstanding the recent
1 He stated in his opinion that while he realized our decision was a precedent one and binding on him, he was unable to apply it because he did not
understand it.

760

Interim Decision #1629
purge in that country, and because other communists' not in the
government might harm her. She presented a number of letters
indicating that it might be dangerous for her to return to Indonesia.. She stated that these were in reply to letters she had sent
t here. At the reopened hearing accorded the respondent pursuant to
our order of Match 23, 1966, she had nothing 'further to oiler on
the point (p. 61).
Unexpected and dramatic political events have taken place in
Indonesia since October 1, 1965. The Communist Party in that
country has been eliminated as an organized political force. Relations with Communist China have boon strained since that (Ills.
There is presently hope for an expectation of an improvement in
United. States-Indonesia relations.
The foregoing assessment of conditions presently obtaining in Indonesia is a political (factual) matter. This inform-MI6 is now
a matter of widespread general and public knowledge. It does not '
support the reasons given by the respondent for fearing -persecution
in Indonesia generally.

The respondent has testified that her father, mother and brother
aro still in Indonesia. Her father is retired on a government pension. IIer mother was once emplived as a clerk in an office of. the
Dutch Government.• lIer brother is self-employed, workine. with his

uncle in a business described as peeking personal household goods,
sometimes for Americans. NO claim has been advanced or showing
made that they have aver been'perseented. These fgctors obviously
do not form a soufid basis on which to predicate a claim of persecution. Also, the specific "stone throwing" incident mentioned by
the respondent is too remote in point of time and. too impersonally

connected with her

to be a persuasive factor here.

The respondent testified that she was never politically active in
Indonesia, or elsewhere. She.had no difficulty in obtaining documentation to depart from Indonesia for the United States. She
had satisfactory employment in. Indonesia before coming to the
United States, and there is no reason to believe that equally satisfactory employment would not now'be available to her there. These
factors do not constitute justificatinn for favorable exercise of the
discretionary relief here requested.
We can sympathize with respondent's preference for life in the
United. States to that in Indonesia. This, however, is not a determining factor in cases such as this.
Summarizing briefly, none of the circumstances cited by-the respondent appear persuasively pertinent to the point here at issue.
The conditions of which she complains in Indonesia have been sub- 761

Interim Decision #1629
stantially corrected since her departure therefrom. No member of
her family there has been subjected to persecution. She has not
established that she was persecuted in that country prior to her departure for the United States. Accordingly, we concur in the.
special inquiry officer's conclusion that the respondent has not established that she will be subjected to persecution on account of her
race, religion or political opinion. Therefore, his decision will be
approved. Before entering an order to that effect, however, brief
comment is required with respect to his conduct of the proceedings
of this case. .
As pointed out in our prior decision, the section of the lay/ here

involved, as is true of several other provisions of the Immigration
and Nationality Act, vests in the Attorney General or his duly designated delegate the discretion to grant or deny relief from deportation. In all snob. cases, favorable exercise of relief is manifestly
not a matter of right under any circumstances, but rather is a matter of grace. The very wording of the statute provides freedom of
decision, to wit: the possibility of denial on. purely discretionary
grounds. In the last analysis, therefore, the decision in an individual
case depends upon the facts peculiar to. it.
Again referring to our prior decision herein, the respondent has
the burden of establishing that her case is a satisfactory one for
favorable action (8 OFR 242.17(c) ). She has the obligation to set
forth the conditions relating to her personally which support her
anticipation of persecution. She has available to her no better methods for ascertaining current political conditions abroad than does the. average person. Therefore, although the respondent may ultimately
have the burden of persuasion, her own testimony may be the best—
in fact the only—evidence available to her. It' must, therefore, beaccorded the most careful and objective evaluation possible, in the
light of all available pertinent evidence, as liereinbefore discussed.
In connection with the foregoing, we are aware, as the special
inquiry officer has indicated in his latest opinion, that an evaluation
of the evidence in a case such as this is always subjective (personal)
on the part of the evaluator. We are also aware that the special inquiry officer enjoyed the advantage of seeing and hearing this 'respondent. He was in the best position to deterMine the accuracy,.
reliability and truthfulness of her testimony. His evaluation. thereof
is entitled to great weight. However, our review of the record originally submitted for consideration clearly indicated an arbitrary
regard of the respondent's testimony by the special inquiry officer.
He also displased of it quite brusquely upon reconsideration.
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Interim Decision #1629
Also, we note that the respondent offered some newspaper articles
in support of her olaim to fear of persecution in Indonesia • that
the special inquiry officer received them into evidence; but that he
stated in. the course of the hearing that they were "notoriously unreliable" and that he intended. "to give them absolutely no weight."
We are Cognizant of the obvious limitations on the evidentiary value
of such items, for reasons which need no recitation here. However,
it is well recognized that the strict legal rules of evidence do not apply in administrative proceedings such as this. The evidence here
under consideration did pertain to the issue at hand; it was apparently the best obtainable by the respondent; it was made part of
the record by the special inquiry officer; and we think it should
have been considered. by him for what it was worth.
Despite the foregoing procedural improprieties, we are •convinced
that the special inquiry officer's decision to deny the requested relief .
to this respondent must be approved. Those defects were not of
such a nature as to deprive the respondent of the fundamental fairness required in this eximin;etrative proceeding. The record evidence
was preserved for review purposes, and it does not support respondent's claim to fear of persecution if returned to Indonesia within
the contemplation of the statute. The grant of the relief requested
is not warranted in these premises.
ORDER: It is ordered that the appeal be and the same is hereby
diernissed. The special inquiry officer's decision of December 7,
1065, is hereby approved.

703