Interim Decision #2098

MATTER OF LEE
In Visa Petition Proceedings
A-17523878
Decided by Board September 30, 1971
Petitioner's alleged adoption of beneficiary in China in 1943 when latter was
8 years of age has not been established for immigration purposes since
there was no written adoption agreement nor was beneficiary brought up
as a child of the adopter since infancy (under 7 years of age) in accordance with Article 1079 of the Chinese Civil Code. Further, even if adoption occurred as alleged, beneficiary's subsequent return in 1946 to Indonesia where he lived with his natural mother from 1946 to 1956 raises the
possibility of mutual termination of the adoptive relationship under Article 1080 of the Chinese Civil Code, and petitioner has failed to offer sufficient evidence to explain away the doubt raised as to the continuing effect
of the "adoption".
ON BEHALF OF PETITIONER: Sanford A. Peyser, Esquire
401 Broadway
New York, New York 10013

Petitioner, a permanent resident alien, applied for preference
status for the beneficiary as her adopted unmarried son under
section 203 (a) (2) of the Immigration and Nationality Act. The
District Director denied the application in an order dated June
19, 1970, and the petitioner appeals from that denial. The appeal
will be dismissed.
The beneficiary is an unmarried male, age 38, who was born in
China in 1933. His natural father is Lee Ming Sam. Lee Ming
Sam married the beneficiary's natural mother, Lam Tjon Ho, in
1928. There were three other children issue of their marriage
who were born in 1935, 1940 and 1953.
In 1933, the beneficiary's father, Lee Ming Sam, moved his
family to what is now Indonesia. In 1941, Lee Ming Sam, accompanied by the beneficiary who was then eight years old, returned
to his native village in China to visit his mother. Shortly thereafter the Japanese invaded the Dutch East Indies and Lee Ming
Sam, losing all communication with his wife, Lam Tjon Ho, and

766

Interim Decision #2098
his other two children, assumed that they had perished. The Japanese soon therafter occupied the village in China where Lee
Ming Sam was staying with the beneficiary.
In 1943, Lee Ming Sam, out of concern for the upbringing of
the beneficiary, and upon the advice of his mother, purportedly
married Sao Kin Louie, the petitioner in this case. Sao Kin Louie
then went through a "ceremony," dinner party and public announcement to Lee Ming Sam's clansmen, which allegedly constituted an adoption of the beneficiary. Shortly thereafter communication with Indonesia was reestablished, and it was learned that
Lam Tjon Ho and the other children were alive. The petitioner
claims that Lam Tjon Ho wrote to her in 1943 and assented to
Lee Ming Sam's marriage to the petitioner, and also to the "adoption" of the beneficiary. No independent evidence was presented
to prove this allegation. All that the file contains in this regard
are letters from Lam Tjon Ho to the petitioner, written in 1958,
1959 and 1960, containing Lam Tjon Ho's consent to the "adoption" which took place over fifteen years earlier in China.
Lee Ming Sam took the beneficiary back to Indonesia with him
in 1946, leaving the petitioner in China. The beneficiary lived
with his father and natural mother in Indonesia from 1946 until
1956. He then went to Taiwan. The petitioner left China and
went to Hong Kong in 1954, where she stayed until 1967, when
she was admitted to the United States as an immigrant. The beneficiary joined the petitioner in Hong Kong in 1959, and stayed
with her until 1967. The petitioner apparently supported the beneficiary while he was attending school in Taiwan, "with funds received from my husband in Indonesia."
Section 203 (a) (2) provides for visa preference for qualified
immigrants who are the unmarried sons or daughters of aliens
admitted for permanent residence. There is no definition of "son"
or "daughter" in the Immigration and Nationality Act, but
"child" is defined in section 101(b) (1) (E) to include a child
adopted while under the age of fourteen years if the child has
thereafter been in the legal custody of, and has resided with, the
adopting parent or parents. We have previously held that a child
adopted in compliance with section 101 (b) (1) (E) of the Act
qualified as a "son" or "daughter" for purposes of receiving preference status, Matter of Ate, 12 I. & N. Dec. 296 (BIA, 1967);
Matter of Yue, 12 I. & N. Dec. 747 (BIA, 1968).
The issue in this case is whether there was a valid adoption
which also meets the requirements set forth in section
101(b) (1) (E) of the Immigration and Nationality Act. To deter-

767

Interim Decision #2098
mine the validity of the adoption, we must look to the applicable
adoption law. Inasmuch as we are concerned with an adoption
which was supposed to have been accomplished in China in 1943,
the provisions of the Civil Code of the Republic of China are controlling.
Article 1073 of the Civil Code required that the adopter be at
least twenty years older than the person to be adopted. In the
present case the petitioner, born in 1926, is only five years older
than the beneficiary. In a prior precedent decision, this Board
recognized an adoption as valid for immigration purposes where
there are only a sixteen-year age difference, Matter of Chan, 12 I.
& N. Dec. 513 (BIA, 1967). We held that such an adoption was
not automatically void, but only voidable. We need not decide
whether we will extend the Ckan rule to the present case, because
there are even more fundamental defects in the claimed adoption.
Article 1079 required that the adoption be in writing, unless
the person adopted had been brought up as a child of the adopter
since infancy. Infancy has been construed by the Supreme Court
of China to refer to that period of time during which a child is
under the age of seven years, Matter of Lau, 10 I. & N. Dec. 597
(BIA, 1964). In the present case the beneficiary was eight years
old when the purported adoption took place. This could not have
been an infancy adoption, and there was no written adoption
agreement.
Article 1080 of the Code provided for the mutual termination
of the adoptive relationship. The fact that the beneficiary went
back to Indonesia in 1946 to live with his natural mother until
1956 raises the possibility that the relationship may have been
terminated. The petitioner has failed to offer sufficient evidence
:o explain away the doubt raised as to the continuing effect of the
`adoption."
The District Director was correct in holding that the petitioner
ias not borne the burden of establishing the beneficiary is an
Ldopted child as defined in section 101 (b) (1) (E) of the Immigraion and Nationality Act. Since he is not an adopted child for imnigration purposes, the beneficiary is not eligible for preference
tatus under section 203 (a) (2) of the Act. The appeal will be dismissed.
ORDER: The appeal is dismissed.

768


Interim Decision #2093

MATTER OF GABOURIEL

In Deportation Proceedings
A-19872688
Decided by Board September September 7, 1971
Respondent, who entered this country while asleep, who was not interrogated
by an immigration inspector, who made no representation or statement of
any kind at entry and who possessed no entry documents, is ineligible for
the benefits of section 241(f) of the Immigration and Nationality Act, as
amended, since there was no fraud or misrepresentation involved in her
entry into the United States.

CHARGES:
Order: Act of 1952

Section 241 (a) (2) [8 U.S.C. 1251(a) (2)1—Entered
without inspection.
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable at entry under section 212(a) (26), nonimmigrant without visa.
ON BEHALF OF RESPONDENT: Steve Hollopeter, Esquire
Community Legal Assistance Center
1440 West Ninth Street
Los Angeles, California 90015
(Brief filed)

The special inquiry officer, in his decision dated March 22, 1971
found the respondent deportable under the lodged charge only, refused to terminate the proceedings under section 241(f), and denied her the privilege of voluntary departure. From that order
the respondent appeals. Her appeal will be dismissed.
The record relates to a female alien, 36 years of age, a native
and citizen of British Honduras, who entered the United States
on or about January 10, 1968. She is the mother of an illegitimate
United States citizen child.
Deportability was conceded. We agree with the special inquiry
officer that there is clear, convincing and unequivocal evidence in
the record to support the finding of deportability under the
lodged charge.

742

Interim Decision #2093
The respondent testified that she was never interrogated by an
immigrant inspector when she entered the United States. She
stated that she was asleep in an automobile at the time.
Counsel moved that the proceedings be terminated pursuant to
section 241 (f) of the Immigration and Nationality Act, based on
the fact that the respondent has a United States citizen child.
The issue in this case is whether the respondent is saved from
deportation by section 241 (f) of the Immigration and Nationality
Act, which 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 sought to procure, or have procured ... 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 . . . parent . . . of a
United States citizen....

The precise question is whether an alien who entered the
United States while asleep, and who made no representation or
statement of any kind, but who possessed no entry documents,
procured entry by fraud or misrepresentation within the meaning
of 241 (f).
Respondent's counsel, in his brief, contends that respondent's
silence at entry, though due to the fact that she was then asleep,
constitutes, in the eyes of the law, a misrepresentation because
she had a duty to speak. We cannot accept this thesis. We agree
with the special inquiry officer, who found no fraud present.
Fraud was not an "essential ingredient" of the charge under
which she was ordered deported, Matter of Koryzma, Interim Decision No. 2033 (BIA, 1970).
Respondent's counsel cites the decision in INS v. Errico and
Scott, 385 U.S. 214 (1966). We feel that decision is not controlling in this case, because each of the aliens there involved had
committed fraud in the procurement of his immigrant visa.
The case of Muslemi v. INS, 408 F.2d 1196 (9 Cir. 1969), also
cited by counsel, is not in point. In that case the deportation
charge (entry without an immigrant visa) resulted directly from
the alien's fraudulent concealment of his intention to remain in
the United States permanently.
Counsel's reliance on Lee Fook Chuey v. INS, 439 F.2d 244 (9
Cir. 1971) and United States v. Osuna-Picos, 443 F.2d 907 (9 Cir.
1971) is misplaced. Those cases both concerned aliens who entered the United States upon a fraudulent claim of United States
citizenship. There is no wilful fraud in the present case.
We note that Supreme Court review of the Ninth Circuit decision in Lee Fook Chuey, supra, has not been sought. That deci743

Interim Decision #2093
sion has been endorsed and followed in two subsequent decisions
in the same court, United States v. Osuna-Picos, supra, and Vitales v. INS, 443 F.2d 343 (May 28, 1971). We are now informed
that the Solicitor General has authorized the filing of a certiorari
petition in Vitales. Although the Ninth Circuit's construction of
section 241 (f) may thus soon be definitively reviewed, we see no
reason to hold further proceedings in this case in abeyance pending possible Supreme Court action. This case presents a narrow
issue, not within the scope of any of the Ninth Circuit decisions
cited above, viz., whether the provisions of section 241 (f) extend
to a case where no fraud or misrepresentation is involved. We
shall therefore decide this appeal on its merits.
In Errico and Scott, supra, the issue was the interpretation of
the phrase "otherwise admissible" in section 241 (f). The present
case, on the other hand, concerns an entirely different element in
the statute, i.e., determining which aliens are "excludable at the
time of entry as aliens who have ... procured ... entry into the
United States by fraud or misrepresentation ...." Consequently,
there is no reason to go into the question of whether the ground
of inadmissibility in the present case is quantitative or qualitative. That question bears only upon the "otherwise admissible"
issue. See Lee Fook Chuey, supra.
The respondent testified that she had been asleep when the
other occupants in the car were interrogated by an immigrant
inspector. We agree with the special inquiry officer's conclusion
that there was no fraud involved in her entry into the United
States. Because there was no fraud involved, the special inquiry
officer found that the lodged charge is not based upon any
claimed misrepresentation or fraud, but solely upon the absence
of the entry documents required by section 212 (a) (26) of the
Act. We agree with the special inquiry officer's conclusion in this
regard.
We have found no decision, judicial or administrative, holding
that an alien who physically entered the United States without
making application for admission, either as an immigrant or as a
nonimmigrant, and without any inspection by the immigration
authorities, is saved from deportation by operation of section
241 (f). There is one case which seems to point to the opposite
conclusion. In Gambino v. INS, 419 F.2d 1355 (2 Cir., 1970),
cert. denied 399 U.S. 905, a similar situation was presented of an
alien who entered the United States without inspection or documents, as a stowaway. The court found the alien deportable notwithstanding the provision of section 241 (f).

744

Interim Decision #2093
The Gambino court noted that section 241 (f) would appear to
apply literally only to an alien charged with entering in violation
of section 212 (a) (19) of the Act, but observed that its application had been extended administratively to include cases brought
under any deportation charge resulting directly from misrepresentation, regardless of the section under which the charge was
brought. The court pointed out that the alien, a stowaway, had
not been, and indeed could not have been, charged with misrepresentation under section 212 (a) (19). The same is true of the present case, where the respondent did not even have the opportunity
to make a misrepresentation. The same result should ensue.
In Matter of Lim, Interim Decision No. 1947 (BIA, 1969), the
alien had innocently misstated that she was the spouse of a
United States citizen and was admitted as a nonquota immigrant,
without knowledge that her husband was an alien. We concluded
that her innocent misrepresentation brought her within the purview of section 241 (f). The same sort of "derivative misrepresentation" was found in Matter of Torbergsen, Interim Decision
No. 2015 (BIA, 1969), where we also held that section 241(f)
applied. However, in the present case, no representations of any
sort, derivative or otherwise, are present.
Based upon our examination of the statute, court decisions and
prior Board precedents, we conclude that the special inquiry
officer was correct in his decision that the provisions of section
241(f) do not authorize termination on the facts in the present
case.
We also agree with the special inquiry officer's decision not to
grant the privilege of voluntary departure, for the reasons stated
by the special inquiry officer.
Accordingly, we will affirm the order of the special inquiry officer and dismiss the appeal. The following order will be entered.
ORDER: The appeal is dismissed.

745


Interim Decision #2881

MATTER OF

You Fu WANG

In Deportation Proceedings
A-16007602
Decided by Board May 16, 1975
On appeal from the immigration judge's denial of voluntary departure, using the short
form 1-38 order, the record is remanded for the entry of a proper denial order. A
summary decision on form 1-38 is permitted only if the alien makes no application under
8 CFR 247.17, or if the alien applies for voluntary departure under section 244(e) of the
Immigration and Nationality Act, and such relief is granted.

CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entered after being refused permission to land temporarily se a crewman, in violation
of section 252(a).
ON BEHALF OF RESPONDENT:

David W. Walters, Esquire
100 Biscayne Blvd., North
Suite 1001
Miami, Florida 33182

This is an appeal from an order of an immigration judge finding the
respondent deportable as charged and directing his deportation to
Taiwan. The record will be remanded to the immigration judge for
further proceedings.
The record indicates that the respondent, through counsel, applied
for a grant of sufficient voluntary departure to enable him to earn money
to depart at his own expense. This application was denied by the
immigration judge using summary order Form 1-38.
The immigration judge erred in entering the deportation order on the
short Form 1-38, which states that "Respondent has made no application for relief from deportation." We note that the immigration judge
predicated his request for counsel's consent to a "short form" order, on
the finding "the respondent has made no application for relief from
deportation because he is unable to show that he has funds. . . ." (Tr. P.
8). A summary decision on Form 1-38 or I-39 is permitted only if the '
alien makes no application under section 242.17 or if he applies for
voluntary departure only and the immigration judge grants the application. The action here was in violation of 8 CFR 242.18(b), and a remand
297

Interim Decision #2381
is required for the entry of a proper order by the immigration judge.
Accordingly, the following order will be entered.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion.

298


MATItER

OF

Y—K—W-

In VISA PETITION Proceedings
A-12693027
Decided by the Attorney General February 28,1961
.

Adopted child—Custody and residence with one adoptive parent.
Two-year legal custody and residence requirement imposed upon an adopted
child under the 1957 amendment to section 101(b) (1) of the 1952 Act is
satisfied when custody and residence have been with only one of the adoptive parents rather than both. (Overrules Matter of C F L , 8-151.)

BEFORE THE ATTORNEY GENERAL

ORDER: The order of the Board of Immigration Appeals, dated
January 27, 1961, dismissing an appeal herein is disapproved. The
petition, to classify the status of the beneficiary as the adopted

child of the petitioner for the purpose of issuance of a nonquota
immigrant visa, is granted.
This case is referred to me by the Board of Immigration Appeals,
pursuant to the provisions of 8 CFR 3.1 (h) (1) (ii), with a request
that the holding in Matter of C—F—L—, 8 151, which is cited as
authority for the decision denying the application herein, be reappraised in light of District Court decisions which disagree with it.
Under sections 101(a) (27) (A) and 205 of, the Immigration and
Nationality Act (8 U.S.C. 1101(a) (27) (A) ; 8 U.S.C. 1155) a child of
a citizen of the United States is entitled to nonquota immigrant
status. Section 101(b), as amended by section 2 of the Act of September 11, 1957 (P.L. 85-316, 71 Stat. 639), provides that:
(1) The term "child" means an unmarried person under twenty - one years
of age who is*
(E) a child adopted while under the age of fourteen years if the child has
thereafter been in the legal custody of, and has resided with, the adopting
parent or parents for at least two years * * •. (8 U.S.C. 1101(b))

Matter of C—F—L, supra, involved a family of Chinese derivation. The father, a naturalized United States citizen, brought his

176

wife to the United States in 1957 wheii lie returned from a brief

visit to Hong Kong leaving behind the child they had adopted in
1947.1 The boy had lived with his adoptive mother for 10 years
but he had not lived for any appreciable time with his adoptive
father.
The then Attorney General held the child not to be a child entitled to nonquota status within the meaning of the provisions of
section 101(b) set forth above. In his decision he stated:
These provisions are remedial in nature and were enacted by Con4
gress to reunite an adopted child with his parent or parents where a bona
fide family relationship has been interrupted.
Consistent with this Congressional purpose, I interpret the provisions of the
law to require that the 2-year legal custody and residence of the adopted
child be had with both the adoptive parents where 2 exist or with one when
the family unit consists of only one adoptive parent.
In other words, it is
restoration of a bona fide, family relationship which is the Congressional objective. Since the child in this case has not resided with his adoptive father,
the petitioner herein, for the required 2 years. the petition must be denied.

Thereafter, the issue presented by Matter of C—F—L— was conby the courts in three cases. In the first of these, Ng Fun
Yin v. Esperdy, 187 F. Supp. 51 (S.D. N.Y., 1960), the adoptive
father was a naturalized citizen. He had married a Chinese alien
in 1921 and emigrated to the United States in 1923. He subsequently
returned to China on three occasions, residing with his wife there
from approximately June 1928 to May 1933; July 1934 to April
1935; and July 1947 to May 1949. On the occasion of his last stay
in China the husband and wife adopted a son, in accordance with
the laws of China, in October 1948. The husband remained with
his wife and child until May 1949, a period of somewhat less than
eight months, before returning to the United States. The wife and
adopted child continued to reside together in China and Hong Kong.
The father at all times supported both his wife and his adoptive son.
In May 1959, the father filed a petition with the Immigration
Service on behalf of his wife and adopted son. The petition was
approved as to the wife. However, it was denied as to the son on
the ground that the son could not be considered a "child" within
the meaning of section 101(b) (1) (E) because he had not resided
with plaintiff for at least two years, the decision being based on the
sidered

Attorney General's ruling in Matto?.

.0 --F

L , supra.

The

father then instituted an action to declare the decision invalid. In
granting the petition, District Judge Cashin stated:
I Actually, the petitioner's wife had adopted the child with the petitioner's
consent. The Board of Immigration Appeals concluded that underXhinese
law this accomplished an effective adoption by both adoptive parents. The
validity of this conclusion has been assumed in Matter of C — F— L — and In
subsequent cases.

177
654377-63-13

I must respectfully disagree with the conclusion of the Attorney General.
In so disagreeing I do not at all reject the general principle relied upon by
the Attorney General that the purpose of the amendment in question is to
foster continued bona fide family relationships. Rather, I believe that general purpose can be implemented only by granting plaintiff's adopted son nonquota immigrant status. There is no doubt whatsoever that plaintiff and his
wife have, for years, Lad a bona fide family relationship. There is also no
doubt that plaintiff's wife and plaintiff's adopted child have had, for years, a
bona fide family relationship. The only way in which these two relationships can be maintained is to allow all three of the individuals involved to
maintain a single residence. This result cannot at all be achieved merely by
allowing the wife to rejoia her husband. If only that were done, the bond
between mother wad child would be broken. If the bond between the mother
and child is sought to be maintained, the bond between the wife and husband
must he broken. I cannot ascribe to Congress an intent to condone such an
illogical result. A true family relationship can exist only if the family is a
unit. Each member is an integral and essential part of that unit. To maintain that unity all of the individuals must reside together. Thus, I determine
that the Congressional intent is fully met in the instant case, and the plaintiff's son is entitled to nonquota immigrant status. (187 F. Sum. at no. 53-54.1

The Attorney General's ruling in Matter of C—F--L— was also
considered in two unreported District Court cases. In Toy You
Wong Ng v. Esperdy (S.D. N.Y., Civil Action No. 60-4043, 1960)
the plaintiff was a naturalized citizen of the United States and a
49-year-old native of China. She married her husband in China in
192,8 and resided there until she left China in 1949 to join her husband in this country. In April 1942., with the consent of her husband,
she adopted the child who was born on June 28, 1940. The husband
resided with his wife and the adopted child in China for approximately 4 or 5 months in 1949. Plaintiff and her husband supported
the child continuously since his adoption. The petition was administratively denied on the ground that, although the child had resided
with the adoptive mother for over 7 years, he had not resided with
the husband for two years and did not satisfy the statute as interpreted in Matter of C—F--L—,,supra. On November 7, 1960, Judge
Palmieri granted the plaintiff's motion for an injunction relying on
Judge Cashin's decision in the Ng Fun Yin case. Judgment was
entered in favor of the plaintiff declaring the beneficiary a child
within the meaning of section 101(b) (1) (E) of the Immigration
and Nationality Act.
The second unreported case is Gim Leong Fong v. Swing, et al.
(D.C. D.C., Civ. No. 1068-60, 1960). Plaintiff was a citizen of the
United States and a resident of California. In 1933 he married a
Chinese alien in China and thereafter returned to this country. In
1946, with the plaintiff's consent, his wife in China adopted a child
born there in 1944. Since adoption, the child had remained in the
wife's custody, accompanying her to Hong Kong in 1953. After
1953, the plaintiff made three trips to Hong Kong to be with his
178

family, the total time spent with the family being approximately
one year. On the principle that the judicial determinations should
be uniform, Judge Hart followed Judge Cashin's holding in Ng Fun
Yin, rather than the Attorney General's decision in Matter of
In the instant case, the petitioner is a naturalized citizen of the
United States. He and his wife were married in China in 1921.
His wife is a permanent resident of the United States who has re
sided with him in this country since her admission in 1954. Both
are natives of China. The beneficiary of the petition for nonquota classification is their adopted son. He is also a native of
China and will reach his 21st birthday on March 18, 1961. He was
adopted by the petitioner and his wife in China in 1948, and lived
there continuously with the latter between 1948 and 1954, when the
adoptive mother was admitted to the United States for permanent

residence. No claim is made that the child ever resided with his
citizen adoptive father. However, the child has been wholly supported by his adoptive parents since adoption. The father has
applied for nonquota status for him in order that he may obtain a
visa and come to the United States to make his home with his parents.
The record discloses that no question has been raised as to the
legality of the adoption or of the bona fides of the relationship
between the husband and wife or between either of them and the
adopted son. Nevertheless the petition for nonquota status has been
administratively denied on the authority of Matier of C

—

F

—

L

,

supra. As a consequence, both parents are in the United States

and the son is prevented from joining them.
An adopted child falls within the definition contained in section 101(b) (1) (E) of the Immigration and Nationality Act, as
amended, only if he has "been in the legal custody of, and has resided with, the adopting parent or parents for at least two years
•." In context, the phrase "adopting parent or parents" is not
precise and is susceptible, as the previous decisions show, of more
than one interpretation.
Although the legislative history of section 101(b) (1) (E) is not
extensive, it provides support for a liberal interpretation of the
statutory language in accordance with the result reached in Ng Fun
Yin v. Esperdy, supra. The provision was enacted "to prevent
hardship in cases where the child is chargeable to a heavily oversubscribed quota and would not otherwise be able to accompany
his adoptive parents. Adequate safeguards are included to prevent
abuse." H. Rept. No. 1057, 85th (Jong., 1st Sess., p. 4. Each of the
differing interpretations recognizes the provision as being remedial
in nature and as intending to preserve bona fide family relationships.
Against this statutory history of preventing separation of families
179

should be weighed the "adequate safeguards" also referred to. It
does not appear, however, that a more strict interpretation of the
statutory qualifications would be reasonably related to ascertaining whether or not the family relationship was bona fide. It would
seem that this safeguard may be better established by looking at
the surrounding circumstances of the adoption and Making a determination on the facts that, assuming the statutory qualification
to be met, the legislative purpose would be served in a particular
case.

Once the remedial purpose of preserving, rather than interrupting,
bona fide family relationships and permitting the family to live
as a unit in this country—is recognized, the reasoning in Ng Fun
Yin v. Eeperdy, ,y•wpru,

appears to be compelling. The citizen

father and the resident mother must either leave this country to
maintain the family unit or the son must be accorded nonquota
status and a.dmitte,d In view of the general remedial intent of
section 101(b) (1) (E), the latter choice appears to me to be required, and I conclude that the requirement of the statute that
legal custody and residence be had with "the adopting parent or
parents" is satisfied if had with only one of the adopting parents
for the requisite two years. 2 Therefore, the holding in Matter of
C—F—L—, supra, is reversed, and I direct that the order of the
Board of Immigration Appeals in the instant case be disapproved_
I further direct that petitioner's application to classify the status

of the beneficiary as the adopted child of the petitioner for the
purpose of issuance of a nonquota immigrant visa be granted.
In reaching my decision, I wish to emphasize that in this case
there has been no challenge to the bona fides of the family relationships involved. The validity of the marriage of the parents and
the adoption of the child are unquestioned. Nor is any question
raised as to whether the child was in the legal custody of and resided with the wife for the required period. There is, therefore,
no evidence of fraud. The remedial and humanitarian purposes of
section 101(b) (1) (E) would not be applicable in any future case in
which such evidence is present.
°In its report, the Senate Committee on the Judiciary indicated that it be

-

lieved section 101(b) (1) (E) to contain "[a]dequate safeguards • • • to prevent abuse." S. Rept. No. 1057, supra, p. 4. Nothing in the report or elsewhere in the legislative history indicates that legal custody and residence
with one parent alone fails to supply the safeguards which were regarded as

adequate.

180


Interim Decision #2427

MATTER OF CASTILLO—SEDANO

In Exclusion Proceedings
A-31284721

Decided by Board September 5, 1975
As the California decree of annulment of applicant's marriage to a United States citizen
was a default judgment procured by applicant's wife, and the evidence adduced at the
hearing before the immigration judge showed that no fraud was involved, the relationback doctrine as set forth in Matter ofSandi, 14 I. & N. Dec. 625, is not followed with
respect to the annulment of applicant's marriage, since to do so would result in a gross
miscarriage of justice (Matter of B-, 3 I. & N. Dec. 102).
EXCLUDABLE:

Act of 1952—Section 212(a)(14) [8 U.S.C. 1182(a)(14)]—No valid labor
certification.
Act, ur 1902—Section 212(0(10) [13 U.S.C. 1182(x)(19) —Obtained visa by

fraud or willful misrepresentation of material facts.
Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(200J—No valid immigrant visa.
ON BEHALF OF SERVICE:

ON BEHALF OF APPLICANT:

Anthony M. DeGaeto
Appellate Trial Attorney

Robert S. Fox, Esquire
Room 226, Dool Budding
Calexico, California 9231

In a decision dated May 1, 1974, the immigration judge ordered the
applicant's admission to the United States as a returning resident immigrant. The Service has appealed from that decision. The appeal will be
dismissed.
The alien applicant is a native and a citizen of Mexico who was
originally admitted to the United States for permanent residence on
November 10, 1971. He was issued an immigrant visa and exempted
from the labor certification requirements of section 212(a)(14) of the
Immigration and Nationality Act on the basis of his marriage to a
United States citizen on July 10, 1971.
In April 1972, the applicant became a commuter, residing in Mexico
and entering this country on a daily basis to work. On August 14, 1973,
in a California court, the applicant's spouse procured a decree of annulment of her marriage to the applicant.
When the applicant attempted to return to the United States on

445

Interim Decision #2427
approximately September 21, 1973, he was referred for an exclusion
hearing. The Service contends that the applicant's marriage to a United
States citizen was fraudulent and that he is therefore excludable under
sections 212',a)(14), (19) and (20) of the Act.
The applicant testified at the hearing. His former wife did not. On the
basis of the evidence adduced at the hearing, the immigration judge
found that the applicant and his wife were close friends for approximately 18 months before their marriage and that they had resided
together as husband and wife for approximately nine months. He also
found that the judgment of nullity of the applicant's marriage was a

default ordeT and that it should not be considered an adjudication on the
merits that the marriage was fraudulent. He found that the annulment
was obtained as the result of incompatability or some other cause
unrelated to evasion of the immigration laws.
The immigration judge considered the effect of Matter of Samedi, 14
I. & N. Dec. 625 (BIA 1974), which holds that annulments in California
relate back to the date of marriage and constitute a finding that no
marriage ever existed. However, relying on language in Matter of B—, 3
I. & N. Dec. 102 (BIA 1947), he stated that it was clear that the relation
bask doctrine was not followed blindly where to do so would result in a
gross miscarriage of justice. He found that to apply the relation back
doctrine in the present case would result in just such a miscarriage of
justice.
We concur in the immigration judge's findings of fact. We also agree
with his statement that the relation back doctrine, as set forth in Matter
of Samedi, supra, cannot be applied blindly where to do so would result
in a gross miscarriage of justice. This view has been recognized by both
the California Supreme Court, Sefton v. Sefton, 45 Cal. 2d 872, 291 P.2d
439 (1955), and this Board, Matter of B—, supra; Matter of M—, 3 I. & N.
Dec. 25 (BIA 1947); Matter of T—, 8 I. & N. Dec. 493, 496 (BIA 1959);
Matter of Yaldo, 12 I. & N. Dee. 830, 832n.1 (BIA 1968), aff'd Yaldo v.
INS, 424 F.2d 501 (CA. 6, 1970).
Under the circumstances present in this case, where there was a
default decree of annulment procured by the applicant's wife, and the
evidence adduced before the immigration judge actually showed that no
fraud was involved, we agree with the immigration judge's decision not
to apply the relation back doctrine to the applicant's annulment. Consequently, the immigration judge's decision was correct, and the Service appeal will be dismissed.
ORDER: The appeal is dismissed.

446


Interim Decision #2874

MATTER OF ANABO

In Deportation Proceedings
A-34164113
Decided by Board July 10, 1981
(1) The married son of a United States citizen was excludable at entry under section 212
(a)(19) of the Act, 8 U.S.C. 1182(a)(19), for failing to disclose his marriage and was,
therefore, also excludable under section 212(a)(20), of the Act, 8 U.S.C. 1182(a)(20), for
having entered the United States with an invalid first-preference visa as the unmarried
son of a United States citizen, but was not excludable under section 212(a) (14) of the
Act, 8 U.S.C. 1182(a)(14), for failure to possess a labor eertMeation. Matter of Wong,
16 I&N Dec. 87 (BIA 1977); Matter of Montemayor, 15 l&N Dec. 353 (BIA 1975), distinguished.
(2) The legislative history of section 212(a)(14) reflects that Congress did not intend that
the son of a petitioning United States citizen be excludable under that section.
(3) Section 241(1) of the Act, 8 U.S.C. 1251(0, waives excludability at entry under sections
212(2)(19) and 212(ag20) where the alien was otherwise admissible at entry.
(d) The evasion of restrictive quotas by improperly entering as a first-preference immigrant does not render a respondent a nonpreference alien at entry for purposes of
excludability under section 212(a)(14) when he was classifiable as a fourth-preference
immigrant if his marriage had been disclosed and, therefore, respondent is entitled to
a waiver of the charges of deportability under section 241(0.
(5) Acknowledgement by the father renders a child legitimate under the Uniform Parentage Act, California Civil Code Sections 7000-7018.
CHARGE:
Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)1—Excludable at time of entry
under sec. 212(a)(20)18 U.S.C. 1182(a)(20)1—No valid immigrant
visa
Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)1—Excludable at time of entry
under Sec. 212(0(10) [8 U.S.C. 11E2(0(19)1 —Visa obtained by

fraud or misrepresenting a material fact
Lodged: Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)1—Excludable at time of entry under sec.
212(a)(14) [8 U.S.C. 1182(a)(14)1—No valid labor certification
OF Seevice:
Brian H. Simpson
Trial Attorney

ON BEHALF

ON BEHALF OF RESPONDENT:

Donald I.. Ungar, Esquire
Simmons, Ungar and Pohlam
517 Washington Street
San Francisco, California 94111

By: Milhollan, Chairman; Maniatis, Maguire, and Morris, Board Members
87

Interim Decision #2874
The respondent appeals from the August 14, 1979, decision of the
immigration judge denying his application for termination of the proceedings pursuant to section 241(t) of the Immigration and Nationality
Act, 8 U.S.C. 1251(f). The appeal will be sustained and the proceedings
terminated.
The respondent is a native and citizen of the Philippines who was

admitted into the United States as a lawful permanent resident cm
January 26, 1973, in possession of a first-preference immigrant visa as
the unmarried son of a United States citizen. See section 203(a)(1) of the
Act, 8 U.S.C. 1153(a)(1). On August 14, 1979, the immigration judge
concluded that the respondent was deportable by virtue of being excludable at entry under sections 212(a)(19) and (20) of the Act, 8 U.S.C.
1182(a)(19) and (20). The basis for excludability was the fact that he had
entered into a marriage ceremony prior to entering the United States as
the unmarried son of a United States citizen.
On December 27, 1969, the respondent had married a Filipino woman
at Tanag, Bezal, the Philippines, and had not terminated that marriage

prior to immigrating into the United States as the first-preference unmarried son of a United States citizen instead of as a married son, entitled
only to a fourth-preference immigrant visa pursuant to section 203(a)(4)
of the Act, 8 U.S.C. 1153(a)(4) (Tr. pp: 1-3) (Ex. 1, 3, 4, 5). Deportability
was clearly established that the respondent was excludable at entry
under sections 212(a)(19) and 212(a)(20) since he immigrated with an
invalid first-preference visa he obtained by concealing his marriage.
This constitutes clear, convincing, and unequivocal evidence of deportability as required by Wood* v. INS, 385 U.S. 276 (1966) and 8 C. F. E. .
242.14(a).
The respondent then claimed that he was entitled to a waiver of the
charges of deportability pursuant to section 241(f) of the Act, 8 U. S. C.
1251(0. The Service responded by contending that the respondent was
ineligible for section 241(0 relief because he was also excludable at entry
under section 212(a)(14) of the Act, and lodged a charge under that
section at the deportation hearing.
The respondent is listed as the father of a United States citizen in a
Certificate of Live Birth issued by the State of California (Ex. 2). It
states that on August 2, 1977, a female child was born to the respondent
and a woman named Judy Jackson in Oakland, California. Such acknowledgement renders the respondent's daughter his child for immigration
purposes. See Kaliski v. District Director, 620 F.2d 214 (9 Cir. 1980);
Matter of Fulgencio, 17 UN Dec. 471,(BIA 1980); 1976 Uniform Parentage Act, California Civil Code Sections 7000-7018. Consequently, the
respondent sought a waiver r f deportability pursuant to section 241(f)
which reads as follows:
(f) The provisions of this section relating to the deportation of aliens within the United

88

Interim Decision #2874
States on the ground that they were excludable at the time of entry as aliens who have
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 et 'entry who is the spouse, parent, or a child ea United Slates
citizen or of an alien lawfully admitted for permanent residence. (Emphasis supplied.)

The language of the section expressly covers the language of section
212(a)(19) of the Act, mandating a waiver of deportability for being
excludable at entry for qualifying respondents. In addition, the waiver

provision has been read liberally to reach evasion of quota restrictions in

INS v. Errico, 385 U.S. 214 (1966), and excludability under 212( a)(20)
for the entry with the invalid visa which results from the fraud. Matter
of Da Lonzba, 16 I&N Dec. 616 (BIA 1978); Matter of Agustin, 17
I&N Dec. 14 (BIA 1979).
However, when the respondent is also excludable under section
212(a)(14) of the Act, section 241(f) is ineffective to remove deportability
because such a respondent does not meet the statutory requirement
that he be "otherwise admissible at the time of entry for 241(0 relief."
Reid v. INS, 420 U.S. 619 (1975); Chow v. INS, 641 F.2d 1384 (9 Cir.
1981), Matter of Gcntzatez, 10 I&N Dec. 564 (BIA 1978). The respondent's

position is that he was "otherwise admissible" because he was not excludable at entry under section 212(a)(14). He contends that he was exempt
from the requirements of section 212(a)(14) because he was the son of a
United States citizen and thus entitled to preference status under section 203(a)(4) of the Act. The immigration judge disagreed, concluding
that the respondent was not entitled to be considered a fourth-preference
immigrant for 212(a)(14) excludability purposes because such a preference had not been accorded him in a visa petition approved by the
Attorney General pursuant to section 203 of the Act (i.j. dec. pp. 3-4).
The respondent appealed to this Board.
• Neither this Board nor the courts have previously addressed the question of whether an alien who would have been exempt from the labor
certification requirement under another preference classification than
the one improperly received, would be eligible for section 241(f) relief as
being "otherwise admissible" at the time of entry into the United States.
The great majority of cases involving a section 212(a)(14) charge as a
result of material misrepresentation of marital status involve married
sons or daughters of lawful permanent residents and sham marriages.

Section 212(a)(14) operates as an alternative ground of inadmissibility
for aliens concealing a marriage that precedes admission into the United
States as the second-preference son or daughter of a lawful permanent
resident pursuant to section 203(a)(2). Matter of Wong, 16 I&N Dec. 87
(BIA 1977); Matter of Agustin, supra. This results from the fact that
there is no preference classification under the Act for the married sons
and daughters of lawful permanent residents, therefore, uptin marriage,

such an alien becomes a nonpreference immigrant.
89

Interim Decision #2874
A similar outcome occurs when the alien sought entry as a spouse
pursuant to a sham or invalid marriage. See Cacho v. INS, 547 F.2d
1057 (9 Ch.. 1976); Matter of Montemayor, 15 I&N Dec. 353 (BIA 1975).
That outcome, however, is not necessarily applicable when the respondent sought entry as a first-preference unmarried son of a United States
citizen, despite having married. The language of section 212(a)(14) specific/illy limits its application to "preference immigrant aliens described under 203(a)(3) and (6) and to nonpreference immigrant aliens described
in section 203(a)(8)" which do not require a petitioning relative. The
married son or daughter of a petitioning United States citizen is entitled
to a fourth-preference immigrant visa pursuant to section 203(a)(4).
The legislative history of the last amendments to section 212(a)(14)
indicates that Congress did not intend to make close relatives of United
States citizens excludable under that section. The Senate Report accompanying the bill explicitly states ". . . these provisions are not applicable
in the case of immediate relatives or in the case of certain other close
relatives of United States citizens . . . where petitions have been filed
by citizens . . . . In those cases there is a clear responsibility assumed by

citizens ... who have filed petitions for their relatives to come to the
United States and as a consequence such certification by the Secretary
of Labor is deemed unnecessary." S. Rep. No. 748, 89th Gong. 1st Sess.
7, reprinted in 1965 U.S. Code Cong. and Ad. News 3320, 3334. It is clear
that Congress did not intend section 212(a)(14) excludability to include
sons and daughters of a United States citizen who qualify for a preference immigration status and who are the beneficiaries of a visa petition
filed by their citizen parent, merely because they failed to disclose a
marriage, and thereby obtained a higher immigration preference.
A key element in qualifying for the 212(a)( 14) exemption is that the
citizen relative must have filed a visa petition on the alien's behalf that
would result in the exemption. Thus, in Matter of Haller, 12 I&N Dec.

319 (BIA 1967), we held that an alien seeking adjustment of status as a

nonpreferenee,immigrant was not entitled to an exemption from the
labor certification requirement despite the fact that he was married to a
United States citizen because she had not filed a visa petition on his
behalf. In visa petition proceedings only the petitioner has standing to
confer immigration benefits and contest a denial of a, visa petition by the

District Director. Matter of Kurys, 11 I&N Dec. 315 (BIA 1965); Matter
of C-, 9 I&N Dec. 597 (BIA 1962). In the present case, the respondent's
United States citizen father had filed a visa petition on his behalf. An
unrebutted finding had been made that the respondent was the son of a
United States citizen. The failure to disclose his married status rendered him excludable under section 212(a)(19) for failing to disclose
material facts, and section 212(a)(20) for holding an invalid first.;

preference visa, since he was not unmarried as described in section
90

Interim Decision #2874
203(a)(1). However, the nondisclosure does not render him excludable
under section 212(2)(14) where the same visa petition filed would have
entitled him to fourth-preference status and a section 212(a)(14) exemption, had the marriage been timely disclosed. See 8 C.F.R. 204.5(a).
The Service finally contends that the respondent should also not be
considered otherwise admissible for section 241(f) purposes because visa
numbers were not available for fourth prefeienee immigrants when he
was admitted into the United States. In Matter of DaLomba, supra, we
specifiCally held that section 241(f) operated to waive the evasion of
restrictive quotas because of overriding family considetations. In Da
Lomba, we adopted the Ninth Circuit's position as stated in Cacho v.
INS, 547 F.2d 1057, 1060 (9 Cir. 1976). The court in Cacho explained
that the failure to have a quota number available was a requirement of
the former section 211(a) of the Act, 8 U.S.C. 1181(a) and that such
inadmissibility under section 211(a) of the Act, was held subject to a
section 241(0 waiver by the Supreme Court's decision in INS vs. Errico,
supra at 220. Cacho v. INS, supra, at 1060; cf. Reid v. INS, supra, at
-

027; Mum, N. INS, supra, at 1084. Consequently, we find that the respondent was otherwise admissible under the terms of section 241(f) and is,

therefore, entitled to such mandatory relief. The deportation proceedings are hereby terminated.
ORDER: The appeal is sustained and the deportation proceedings
are terminated.

91


D

MATTER OF A

IJ

In DEPORTATION Proceedings
A-8961899
Decided by Board May 26, 1959
Decided by Board March 10, 1960

Citizenship—Acquisition through naturalized Hawaiian citizen—Burden of
proof—Prior administrative holdings recognizing parent's citizenship not
overcome by inability to find Hawaiian law conferring Hawaiian nationality

on minor children of naturalized Hawaiian citizens.
(1) A person born in China in 1889 of a father who had been naturalized as a
citizen of Hawaii in 1892
(a) Did not acquire Hawaiian nationality under the doctrine of jus sanmauls and, accordingly, did not thereby become a citizen of the United
States under the terms of the Act of April 30, 1900.
(b) Did not acquire United States citizenship under R.S. 1933 as he was
born prior to his father's acquisition of United States citizenship on
April 30, 1900.
(c) Did not acquire United States citizenship after birth by derivation
ihrougli his father under R.S. 2172 and section 5 of the Act of March 2,
1907, since he did not commence residence in the United States until
1315 when he was 26 years of age and his earlier stay in Hawaii from
1392 to 1808 was prior to the time that his father became a United
States citizen.
Hence, this person's sou (Lhe respondent in these proceedings) born in China
in 1919 cannot be found under any of the above concepts to have acquired or derived United States citizenship through his father.
(2) However, when administrative rulings through the years on many occasions have recognized the respondent's father as a United States citizen and
the respondent himself has been issued a United States passport and admitted as a United States citizen, the Government has the burden of overcoming - a prima facie case of citizenship. This burden is not met by the mere
inability of the Service, unsupported by legal or authoritative sources, to
find any law or decree in force in the Kingdom of Hawaii conferring Hawaiian citizenship on minor children of naturalised citizens who took up

residence in Hawaii during their minority.
CHARGE
Order: All ur 15)32—Section 241(a) (1) [3

U.B.C.

1254 ( ) (1)]—Immig ant

without visa.

BEFORE THE BOARD
(May 26, ].959)

Discussion: The case comes forward on appeal from the order of
the special inquiry officer dated October 30, 1958, finding the respond347

ent to be an alien, subject to deportation on the charge contained
in the order to show cause and granting him the privilege of voluntary departure in lieu of deportation.
The issue in the case is whether the respondent is an alien or a
citizen. The facts are not in dispute and have been stipulated. The
status of respondent is dependent on that of his father, for if the
father was not a citizen, neither is the respondent.. The respondent
was born December 4, 1919, in Chungshan, China. His father is
L S L , who was born March 7, 1889, in Han How Hee,
, who was born in China
China. The father is the son of L
in 1864, came to Hawaii in 1888, and was naturalized as a citizen
, left
C
of Hawaii on July 15, 1892. The grandfather, L
Hawaii in 1898 for China where he resided until about, August 15,

1910; he was readmitted into Hawaii as a citizen of the United
States on September 15, 1910, and remained there until his death
nn June 25, 1912.
The respondent's father, L
L, came to Hawaii when he
S
was about three years old (1892) and remained there until he was
about nine years old (1898), when he returned to China; he returned
at Honolulu, T.H., ex SS. Nippon Mara on October 19, 1915, and
was admitted as a United States citizen as the foreign-born child of
L C who had resided in Hawaii during L S L 's
minority. He was issued Certificate of Identity No. 18097 on December 21, 1915, showing his admission as the "son of L C
7
solely because of his status as a naturalized citizen of Hawaii holding Certificate of Identity No. 720." Thereafter the citizenship
status of the respondent's father was conceded on various occasions,
to wit, the issuance of a passport on June 12, 1919; admission as a
United States citizen on November 4, 1919; and issuance of United
States Passport No. 1012 on September 15, 1921, by the Governor's
Office, Honolulu, T.H.
The respondent was issued United States Passport. No. 183 (FS
6779) on January 12, 1953, by the American Consulate General at
Hong Kong and was admitted as a citizen at Honolulu ex SS. President Cleveland on January 26, 1953, and has since remained in this
country. However, an application for a certificate of citizenship
under section 341 of the Immigration and Nationality Act filed by
respondent on February 1, 1956, was denied on October 10, 1956,
and such denial was affirmed on appeal to the Southwest Regional

Office of the Immigration and Naturalization Service on November
27, 1956.
The United States citizenship of the respondent's grandfather,
, is conceded. He was naturalized as a citizen of Hawaii
L C
on July 15, 1892, and became a United States citizen under section 4
of the Act of April 30, 1900 (31 Stat. 141; 48 U.S.C. 494) which
provided: "That all persons who were citizens of the Republic of
348

Hawaii on August twelfth, eighteen hundred and ninety-eight, are
hereby declared to be citizens of the "United States and citizens of
the Territory of Hawaii."
It is the citizenship status of the respondent's father, L- —S
L
, which is crucial insofar as the respondent is concerned. The
father was born in China on March 7, 1889. This date was prior to
the acquisition of United States citizenship by the grandfather under
the Act of April 30, 1900. The father, therefore, did not acquire
United States citizenship at birth under section 1993 of the United
States Revised Statutes. 1 The respondent's father did not come to
the United States to reside until October 19, 1915, when lie was 26
years of age. He did not acquire United States citizenship after
birth by derivation through his father under section 2172 of United
States Revised Statutes nor under section 5 of the Aet. of March 2,

1907 since he did not take up residence in the United States during
his minority. The father's residence in the United States from about
1899 to 1898 would not have conferred citizenship upon him since
it occurred prior to the time that the grandfather became a citizen
of the United States and there is no evidence he retained residence
in the United States during his absence from 1898 until his return
to Hawaii in 1915.
The argument as to acquisition of citizenship by the respondent
rests on the theory that the father acquired citizenship in Hawaii
C
was naturalon July 15, 1892, n lieu the grandfather, L
ized as a citizen of Hawaii, such Hawaiian citizenship being acquired
by the father by derivation through the grandfather; further, that
the father became a citizen of the United States under the Act of
April 30, 1900, on that date by virtue of the fact that he was a
citizen of Hawaii. This argument contemplates that the father acquired Hawaiian citizenship at birth through the grandfather and
that. he thereafter became a United States citizen under the Act of
April 30, 1900. It must be rejected because such meager authority
as is available on this point is to the contrary-. 2 Under the authori-

Sec. 1993. All children heretofore born or hereafter born out of the limits
and jurisdiction of the United States, whose fathers were or may be at the
time of their birth citizens thereof are declared to be citizens of the United
States: but the riEhtg of citizenship shall not descend to children whose fathers never resided in the United States.
2 Hackworth, Digest of International Law, vol. III (3d ed.), pp. 119 to 123;
Wong Foong v. United States, 69 F.2d 681 (C.C.A. 9, 1934). In Cummings v.
I6cmborg, SO F.2d 489, the Court of Appeals was reluctant to accept a case
reported in a newspaper in 1868 which contained correspondence in which the
Minister of the Interior of the Hawaiian Islands is reported to have stated
that no one acquires citizenship in the Kingdom of Hawaii unless he was
burn there or born abroad of Hawaiian parents either native or naturalized
during their temporary absence from the Kingdom; the court then proceeded
to decide the case, which was a suit under section 9 of the Trading with the
Enemy Act as amended, on another point.

349

ties, it appears that a person born in China of a. father who had been
naturalized as a citizen of Hawaii prior to April 30, 14100, did not
acquire Hawaiian nationality under the doctrine of jure sanguinis.
However, there remains for consideration another point, namely,
whether the respondent's father, through whom the respondent's
claim of citizenship rests, acquired United States citizenship subsequent to birth. It is to be remembered that the citizenship status
of respondents father was conceded on various occasions, as evidenced by the issuance of a passport on June 12, 1919; admission
as a United States citizen on November 4, 1919; and issuance of
United States Passport. No. 1012 on September 15,• 1921, by the
Governor's Office, Honolulu, T.H. Similarly, the respondent himself
was issued United States Passport No. 183 (FS 6779) on January
12, 1953, by the American Consulate General at Hong Kong and was
admitted as a citizen at the port of Honolulu on January 26, 1953.
The respondent's application for a certificate of citizenship was
denied in 1956. The denial of the certificate of citizenship, as appears from a memorandum dated March 22, 1956, goes back to a
letter dated June 4, 1917, addressed by the Assistant Commissioner
General of Immigration to the State Department, in which it was
stated that the Immigration Bureau had been unable to find that
there was any law or decree in force in the Kingdom of Hawaii
which granted citizenship to the minor children of naturalized aliens
upon their taking up residence in Hawaii; the conclusion was stated
therein that the applicant did not become a citizen of the Kingdom
of Hawaii and had not acquired United States citizenship by the
annexation of the Islands. That memorandum of March 22, 1956,
also notes that despite this communication to the State Department,
the respondent's father was thereafter on June 12, 1919, issued a
United States passport by the Consulate General of the United States
at Hong Kong. The memorandum concluded that the issue was
entirely unsettled and that in the absence of any opinion on the
matter the proper course would be to recommend denial of the certificate on the ground that the father did not acquire Hawaiian
citizenship and could not have acquired United States citizenship
on April 30, 1900.
Apparently the original determination as to the citizenship of
respondent's father was made in connection with the father's application for admission at the port of Honolulu ex SS. Nippon. lIcIN
when a written decision was made by an immigrant inspector on
October 19, 1915, which was approved by the Inspector in Charge.
The decision considered the specific question of derivation of Hawaiian citizenship subsequent to birth. Unable to find any Hawaiian
law on the subject, the conclusion was reached that the naturalization of the grandfather about July 1892 as a citizen of Hawaii and
350

the father's residence in Hawaii during his minority from 1899 to

1898 made him a citizen of the United States under the same rule
that children of naturalized citizens became citizens of the United
States in like manner; and that notwithstanding the fact that. Chinese
were not eligible to be naturalized as citizens of the United States,
they were eligible to be so naturalized under the laws of Hawaii.
The memorandum notes that the act referred to was not passed until
1907, but knowing of no other rule by which to go, and taking the
general principle that the naturalization of a father naturalized Isis
wife and children, it was recommended that the appliant be admitted as the foreign-born child of a naturalized citizen who was
born previous to the naturalization of his father and became a citizen
of Hawaii by coming to and residing in the Hawaiian Islands during minority, and subsequently became a citizen of the United States
upon the annexation of Hawaii.
The burden of proof in establishing alienage in deportation proceedings is upon the Government.. 3 Inasmuch as the respondent had
been admitted to the United States on January 26, 1953, as a United
States citizen in possession of a United States passport, the special
inquiry officer finds that the respondent has made a vi iliba facie case
of citizenship and that the burden is upon the Service to establish
by clear, convincing, and unequivocal evidence that the respondent
is not a citizen of the United States and was not such a citizen at
the time of his entry. The special inquiry officer is adopting that
rule of burden of proof which is most onerous to the Government. 4
We find it unnecessary to take a stand on the degree of proof
required to overcome a. prima. facie. or preexisting finding of citizenship, for, even if the rule less rigorous to the Govermnentbe applied,
the proceedings in the instant case must be terminated. At the very
least, the burden is upon the Service to establish alienage in a deportation proceeding by a preponderance of reasonable, substantial,
and probative evidence. The facts are not in dispute and there is
no indication of fraud. There is no case for acquisition of citizenship at birth inasmuch as the authorities appear to hold that prior
to the Act of April 30, 1900 Hawaiian citizenship was not transmitted to alien-born children under the doctrine of :lure wagitivis.
However, the case against derivation of citizenship subsequent to
is predicated upon an old 1917 communication addressed by
the Assistant Commissioner General to the State Department in
which the Service. stated it had been unable to find there is any law
United States ex rel. Bilokumsky v. Tod, 263 U.S. 149.
Lee Hon Lung v. Dulles, 261 F.26 719 (C.A. 9, 1958) ; Delmore T. Brownell,
236 F.2d 598 (C.A. 3, 1956). A less rigorous rule from the Government's
standpoint has been applied by some courts. See cases cited in Lee ion
Lung v. Dulles, supra, footnote 8; also Reyes v. Neelly, 264 F.2i1 673 (C.A. 5,
1959), but note strung dissent of Judge Rives.
3
4

351

or decree in force under the Kingdom of Hawaii which grants citizenship to minor children of naturalized aliens by taking up their
residence in Hawaii and that, therefore, the applicant did not become a citizen of the Kingdom of Hawaii and did not acquire
United States citizenship by the annexation of the Islands. Despite
this communication, the State Department issued the i'espondent's
father a passport in 1919.
No legal authority is cited to overcome the prior administrative
holdings as evidenced by the issuance of passports and by the admission to the United States as a citizen of the respondent and his
father, other than a reiteration of the negative declaration by the
Immigration Bureau in 1917 as to lack of success in finding any law
or decree on the subject. The extent or thoroughness of the search
for such law is not indicated. No legal source is glinted to establish
this position. There is no indication that an attempt was made to
seek an opinion from a valid authoritative source, such as the Governor or the Attorney General for Hawaii who might search the law
or the Hawaiian Archives in order to hand down a ruling which
would he sufficient to overcome the prior administrative finding of
citizenship.
The record reflects that the citizenship of the respondent's father,
through whom the respondent claims citizenship, was conceded on
many occa sions in the past and that the father, as well as the respondent, had been issued United States passports with which they
were duly admitted into the United States. Such a prima facie case
of citizenship is not overcome by a mere statement that the Service
has been unable to find any cases on the particular point involved.
The holding by the special inquiry officer, which is correct in itself,
to the effect that a child born of Hawaiian parents does not acquire
Hawiian nationality jure 8angui,ndR, is, however, irrelevant to the
point of derivation of citizenship subsequent to birth by taking up
residence in Hawaii during minority. It is, therefore, concluded
that the respondent has prima facie shown that he is a citizen of
the United States and that the Service has failed to establish alienage by a preponderance of reasonable, substantial, and probative
evidence, and has failed to overcome the case for citizenship presented by respondent. Accordingly, the proceedings must be terminated.
Order: It is ordered that the proceedings be and the same are
hereby terminated.
BEFORE THE BOARD
(March 10, 1960)

Discussion: The case comes forward upon motion of the District
Director, Honolulu District, dated October 7, 1959, requesting that
the deportation proceedings be reopened in accordance with
CFR 3.2.

352

We last considered this case on May 96, 1959, and the facts are
fully set forth in that decision. Briefly, the record relates to a
native of China, born December 4, 1919, who last entered the United
States at the port of Honolulu on January 12, 1953, in possession
of a United States passport. The father of respondent, L
, was born March 7, 1889, in China, the son of L
L
whose citizenship status is not contested. The citizenship status of
the father was conceded on a number of prior occasions, as was the
citizenship status of this respondent, until the denial of an application for a certificate of citizenship under section 341 of the Immigration and Nationality Act on October 10, 1956. In our prior order
we fully reviewed the case and held that the respondent had made
a prima facie showing that he is a citizen of the United States
which the Service has not overcome by a preponderance of reasonable, substantial and probative evidence, thus failing to sustain its
burden of establishing alienage in the deportation proceedings.
In support of the instant motion there have been submitted copies
of pages from the bound volume of Hawaiian Civil Code published
in 1884 dealing with article VIII, "Naturalization of Foreigners,"
furnished by the Hawaiian Department of Archives; copies of an
Act of November 25, 1887 amending the naturalization law, sections
428, 429, 431 and 433; articles 17, 18 and 19 of the Hawaiian Constitution of July 3, 1894; and a decision in the cases of K K—
. We have examined these exhibits as well as cerII
and K
tain supplemental information contained in a publication entitled
"Naturalization in Hawaii" by Maude Jones, Archivist, Public
Archives of Hawaii.
Neither the statutory material nor the Hawaiian Constitution contains any reference to acquisition of citizenship by foreign-born
children of citizens of Hawaii. The cases of K K and
support the premise that Hawaiian citizenship could
K H
not be acquired at birth by nonresident alien children. The cases
are not deemed to be dispositive of the issue present herein inasmuch
as the applicants for admission in those cases were 27 and 22 years
of age, respectively, at the time of first coming to the United States
and, therefore, no derivation of citizenship during minority was
poasible The supplement to the motion refers to a, rase which holds
that no one acquires citizenship in the Hawaiian Kingdom unless he
is born abroad of Hawaiian parents, either native or naturalized,
during their temporary absence from the Kingdom, a holding contrary to that enunciated in the K cases. The second reference
in the supplemental material merely refers to a denial of an application because of the fact that there was no law in the Kingdom of
Hawaii at that time (1903) to cover a case which involved a Chinese
child born shortly before his father was naturalized and who came
to Hawaii at the age of 13.
353

In our decision of May 26, 1959, we referred to the numerous
prior administrative findings that the petitioner's father had acquired
United States citizenship as well as the fact that as late as 1953 the
respondent himself was granted a United States passport. We concluded that the respondent had established a prima facie case of
"United States citizenship and that the Service had fail e d to establish alienag-e, by a preponderance of reasonable, substantial and
probative evidence. We do not believe that the allegedly new "evidence" submitted should make any change in our prior decision.
In addition, we note that the burden of proof on the Service to
overcome a prior adjudication of citizenship in the District of
Hawaii is a stronger one than we enunciated previously and inasmuch as this case arises in the same district, the burden upon the
Service is to establish by clear, convincing and unequivocal evidence
that respondent is not a. citizen of the United States and was not
such a citizen at the time of his entry. In the case of Lee Hon
Lung v. Dulles, 171 F. Supp. 830 (1959), the United States Court
for the District of Hawaii was hearing a case which the Court of
Appeals for the Ninth Circuit had remanded after setting forth the
standard of proof referred to above.' The Court held that in view
of the appellate court's ruling that the trier of fact may only set
aside a finding of a board of special inquiry for fraud or error by
evidence which is clear, unequivocal and convincing, that the 1924
decision of the board of special inquiry admitting plaintiff as an
American citizen, although not res judicata, was determinative of
the issues in the case.
In view of the standards set forth by the appellate and District
Courts in the same jurisdiction in which the present case is being
heard, we have no other course but to come to the conclusion that

the prior determinations of citizenship, while not res judicea, are
.determinative of the citizenship issues in this case in the absence
of a showing of error by evidence which is clear, unequivocal and
convincing. That burden has not been met by the Service in the
instant deportation proceeding.
Order: It is ordered that the motion be and the same is hereby
denied.
Lee Hon Lung v. Dulles, 261F. 2d 719, 724.

354


Interim Decision #1956

MATTER OF IIERNANDEZ-TIRIARTE

In Exclusion Proceedings
A-10735954
Decided by Board March 14, 1969
Appellant, who obtained an immigrant visa supported by a labor certification issued to him on the basis of false representations as to his full time

employment as a machinist by two different companies when, in fact, he
had worked only part-time for the companies in question and not for the
periods represented, is excludable under section 212(a) (14) of the Immi-

gration and Nationality Act, as amended, for lack of a valid labor certification (29 CFR 60.5), notwithstanding other evidence of record establishes
he is a skilled machinist as claimed.
EXCLUDABLE: Act of 1952—Section 212(a) (14) [8 U.S.C. 1182(a) (14)3—No
valid labor certification.
Section 212(a) (19) [8 U.S.C. 1182(a) (19)]—
Willful misrepresentation of material facts.
Section 212(a) (9) [8 U.S.C. 1182(a) (9)]—Admits commission of crime involving moral
turpitude, perjury.
ON BEHALF or APPELLANT: Luis A. Velarde, Jr., Esquire
U.S. Catholic Conference
700 South Santa Fe Street
El Paso, Texas '79901

The case comes forward on appeal from the order of the special inquiry officer dated October 28, 1968 finding the appellant
inadmissible solely under section 212 (a) (14) of the Immigration
and Nationality Act and ordering that he be excluded and deported from the United States.
The appellant, a native and citizen of Mexico, 37 years old,
male, married, arrived at the port of El Paso, Texas on April 18,
1968 and applied for admission as a special immigrant. He presented an unexpired immigrant visa which had been issued to
him at the Unted States Consulate, Juarez, Chihuahua, Mexico on
March 19, 1968 and a valid Mexican passport.
The face of the visa recites that a certification under section

212(a) (14) of the Act was attached. The visa was issued upon
199

Interim Decision #1956
appellant's execution under oath of an application for a visa before an American Consul at Juarez, Chihuahua, Mexico on March
19, 1968. Among the documents attached to the application for
the immigrant visa, and forming a part of said application, was
an application for an alien employment certification, Form
ES-575A., executed by the appellant on October 21, 1967. Endorsed on the front of this Form ES-575A is the certification for
the appellant's employment as a machinist issued by an official of
the Department of Labor on December 29, 1967 pursuant to section 212(a) (14) of the Act. In his application for this certification the appellant stated that he was seeking work in this country
as a machinist, and in Item 16 of the application under "Experience" he showed that he worked for Taller Faxa, Chihuahua,
Chihuahua, Mexico from June 12, 1953 until October 21, 1967 as
a machinist. Also under the same heading he showed that he
worked for the Tuberia de Acero in Chihuahua, Chihuahua, Mexico from November 22, 1946 to June 10, 1953 as a machinist. Submitted with the Form ES-575A were two letters which corroborated the experience with the respective employers for the periods
stated on the Form ES - 575A. There was also submitted to the
American Consul as part of the application for the immigrant
visa a Form ES-575B, a job offer by a prospective employer, the
employer being the Menasco Manufacturing Company of Burbank, California.
In a sworn statement made before an immigration officer on
April 22, 1968 (Ex. 7), the appellant admitted that he had not
worked at all for Taller Faxa and that he worked only on a parttime basis, or a piecemeal basis, for the Tuberia de Acero, and
that he first began working for them around 1962. Concerning
the two letters from the two employers which he presented with
his Form ES-575A, the appellant in his sworn statement described them as being letters of recommendation. When he made
the sworn statement to an immigration officer on April 22, 1968,
the appellant presented two additional letters, from Papelera de
Chihuahua and from Elaboradora de Metales, both of Chihuahua,
Chihuahua, Mexico, to corroborate that he worked for these two
companies as a machinist. He stated further that these two letters had never been presented to the American Consulate nor had
they been used to obtain the Labor certification. A sworn statement executed before an immigration officer on January 27, 1961
(Ex. 4) discloses that the appellant had been admitted for permanent residence on September 17, 1956 but that two weeks after
his departure in 1958, he was involved in an automobile accident
,

200

Interim Decision #1956
and that he had not worked until the time of making the statement on January 27, 1961. He was served with a notice that he
was being detained for an exclusion hearing scheduled to be
heard on January 30, 1961 (ex. 5) but did not appear for such
hearing. In his latest sworn statement on April 22, 1968 the appellant repeated that he had not worked between March 1958 and
January 1961.
The appellant claims that he is a skilled machinist and that he
has successfully demonstrated his ability to his prospective employer, the Menasco Manufactuing Company of Burbank, California which is seeking to employ him as a machinist. The appellant
introduced into evidence a letter from a recruiting agent of the
Menasco Manufacturing Company stating that he was qualified
for work as a machinist for that company (Ex. 8), and corroboration of his claim of having proved his qualifications as a machinist to the satisfaction of the recruiting agent by a demonstration
of his work as a machinist in a machine shop in Juarez, Mexico
(Ex. 15, 16, 17 and 18). The appellant testified that he was furnished with a blueprint of an object in a machine shop in the test
which was held in Juarez pursuant to the foregoing.
At the hearing the appellant testified that he worked as a machinist in Chihuahua, Chihuahua, Mexico with the Elaboradora
de Metales from 1956 to 1960 and that he worked with that company full-time and he worked part-time for the Taller Faxa only
when needed, either in the morning or in the evening after he
had completed his regular daily employment with the Elabora
dora de Metales. He testified he next worked for the Papelera de
Chihuahua from 1961 until 1968 and that he worked on a parttime basis for the Tubas y Tanques de Acero of the same city on
a part-time basis when there was work to do after he had finished his regular job with the Papelera de Chihuahua. However )
theonlywrsubmitedhFoES-57Awer
from Taller Faxa and from Tubos y Tanques de Acero, his parttime employers.
It is evident that the appellant is a machinist and that he has
demonstrated his skill as a machinist to the satisfaction of his
prospective employer, the Menasco Manufactuing Company of
Burbank, California which wishes to employ him as a machinist.
The regulations of the Department of Labor, 29 CPR 60.5, provide that certifications are invalid if the representations upon
which they are based are incorrect. The representations made by
the appellant on the basis of which the Labor certification was issued to him were that he worked for the Taller Faxa from June
201

Interim Decision #1956
12, 1953 up to October 21, 1967 and for the Tubos de Acero from
November 22, 1946 until November 11, 1953 as a machinist with
each employer_ The evidence which has been adduced shows that
the appellant did not actually work for either of these organizations for the period or periods represented by him. The additional
evidence of employment with the Papelera de Chihuahua and
with the Elaborador de Metales was not presented in support of
the Labor certification on October 21, 1967 but was presented at
a later date. He may be able to obtain a Labor certification on the
basis of new evidence.
The representations made by the appellant to the Secretary of
Labor on the Form ES-575A executed on October 21, 1967 were
incorrect and were material in that they did not show the true

employment or experience of the appellant. Pursuant to 29 CPR
60.5, the Labor Certification issued on December 29, 1967 to the
appellant as a machinist is invalid and the appellant was properly
excluded under section 212 (a) (14) of the Immigration and Nationality Act for not presenting a valid certification by the Secretary of Labor.
As to the grounds of exclusion based upon section 212 (a) (19)
that the appellant obtained a visa by willful misrepresentation of
material facts and section 212(a) (9) that he admits the commission of crime involving moral turpitude, to wit, perjury, the special inquiry officer has not sustained those charges for the reasons set forth in his decision at length. The Service has not
appealed these findings and we find that the reasons for the conclusion set forth by the special inquiry officer were correct.
ORDER: It is ordered that the appellant be excluded and de- ,
ported from the United States solely under section 212 (a) (14) of
the Immigration and Nationality Act for not presenting a valid

certification by the Secretary of Labor.

202


interim Decision #2627

MATTER OF CARRILLO-GUMERREZ

In Section 246 Proceedings
A-66'70757

Decided by Board December 21, 1977
The five-year period of statutory limitations in section 246(a) of the Immigration and
Nationality Act, 8 U.S.C. 1256(a), (dealing with rescission of adjustment of status) as it
applies to Cuban aliens with a retroactive date of permanent residence granted pursuant to the Act of November 2, 1966 (P. L. 89-732,8.0 Stat. 1161), commences to run
from the date the application for adjustment was approved and not from the retroactive
date of permanent residence.
ON BEHALF OF SERVICE:
Leonard Leopold
Trial Attorney

ON BEHALF OF RESPONDENT:
Clemente L. Vazquez-Bello,
Esquire
1395 Coral Way
Miami, Florida 33145

BY: Milhollan, Chairman;

Maniatis, Appleman, and Maguire, Board Members

The Service appeals from an order of the immigration judge, dated
March 11, 1977, terminating the rescission proceedings under section
246 of the Immigration and Nationality Act on the ground that they are
barred by the five -year period of statutory limitations. The appeal will
be sustained and the record remanded for further proceedings.
The respondent is a 30-year-old native and citizen of Cuba who was
admitted to the United States on July 9, 1960, as a nonimmigrant

student. On December 23, 1965, he was granted indefinite voluntary
departure and on March 31, 1972, he applied for status as a-permanent
resident pursuant to the Act of November 2,166 (P. L. 89-732, 80 Stat.
1161). On October 24, 1974, his status was adjusted to that of a permanent resident, retroactive to September 30, L969.
On September 9, 1975, the Service issued the respondent a Notice of
Intention to Rescind, alleging that at the time of his adjustment, the
respondent failed to advise the immigration officer that he had applied
for relief from training and service in the Armed Forces of the United
States on August 14, 1965.

The respondent, through counsel, has admitted most of the above
429

Interim Decision #2627
facts. However, he contends thut, September 30, 1969, is the effective
date of his permanent residence for all purposes and, thus, rescission is
barred by section 246 of the Act, which provides for a five-year limitation on rescinding the adjustment of status. The Service argues that the
five-year limitation period was from October 24, 1974—the date the
action was taken adjusting the status. The only issue before us, therefore, is whether the five-year limitation period runs from the date of
permanent residence or from the date the action was taken granting the
permanent residence.
Under the provisions of the Act of November 2, 1966, the effective

date of the respondent's permanent residence is September 30, 1969. 1
Theimgratonjudclehtisaonrlfpuse
and, thus, the statutory five-year limitation period runs from the date of
permanent residence created by the adjustment regardless of the date
of the action taken granting the adjustment of status. Since the Notice
of Intention to Rescind was issued on September 9, 1975, more than five
years after the date of permanent residence, he found that the rescission
proceedings were barred by the five-year period of statutory
limitations. We conclude that the immigration judge's conclusions were
incorrect and that his decision to terminate proceedings was in error.
The Service has pointed out that it was the Congressional intent in
enacting the Act of November 2, 1966 (P. L. 89-732, 80 Stat. 1161), to
provide certain Cuban aliens with a head start toward meeting the

residence requirement for naturalization. Matter of Riva, 12 I. & N.
Dec. 56 (Reg. Comm'r 1967). They argue, further, that there is nothing
in the legislative history of the statute to show that Congress intended
the retroactive date of permanent residence to control for all purposes.
We recognize the respondent's argument that the five-year limitation
in section 246 is remedial in nature, as its purpose is to grant an alien
relief from the harsh results of rescission of status and, thus, any doubt

or ambiguity is to be interpreted and resolved in a manner favorable to
the alien. Scott v. INS, 385 U.S. 214, 225 (1966); Costello v. INS, 376
U.S. 120, 128 (1964). See also Quintana v. Holland, 255 F.2d 161, 164 (3
Gin 1958). However, our reading of the legislative history of the Act of
November 2, 1966, convinces us that its retroactive provision was designed merely as a means of allowing the beneficiaries of the legislation
to count some of the time spent in the United States in a status other
than that of permanent residents towards their residency requirements
far naturalization. See f1966] U.S. Code Cong. and Admin. News 3792
The pertinent provision in section 1 of the Act of November 2, 1966 (P. L. 89-732, SO
Stat. 1161), provides: /I. . . upon approval of such an application for adjustment of status,
the Attorney General shall create a record of the alien's admission for permanent residen ce as of a date 30 months prior to the filing of such an application or the date of his last

arrival into the United States, whichever is later . . .

430

Interim Decision #2627
et seq. Any other reading of the statute would do violence to section 4 of
the Act of November 2, 1966, wherein it is provided in pertinent part
that:
Nothing contained in this Act shall be held to repeal, amend, alter, modify, affect or
restrict the powers, duties, functions, or authority of the Attorney General in the
administration and enforcement of the Immigration and Nationality Act or any other
law relating to immigration, nationality or naturalization.
Thus, we disagree with the immigration judge's interpretation of the
applicable law and hold that the five-year period of statutory limitations
in section 246(a) of the Immigration and Nationality Act, 2 as it applies to
Cuban aliens with retroactive date of permanent residence granted
pursuant to the Act of November 2, 1966 (P. L. 89-732, 80 Stat. 1161),
commences to run from the date the application for adjustment was
approved and not from the retroactive date of permanent residence.
Accordingly, the appeal will be sustained and the record remanded for
further proceedings.
ORDER: The appeal is sustained and the record is remanded for
further proceedings consistent with the foregoing opinion.

2 Section 246(a) of the Act provides in pertinent part:
. . . If, at any time within five years after the status of a person has been otherwis e
adjusted under the provisions of section 245 or 249'of this Act or any other provision of
law to that of an alien lawfully admitted for permanent residence, it shall appear to the
satisfaction of the Attorney General that the person was not in fact eligible for such
adjustment of status, the Attorney General shall rescind the action taken granting an
adjustment of status to such person and cancelling deportation in the case of such person
if that occurred and the person shall thereupon be subject to all provisions of this Act to
the same extent as if the adjustment of status had not been made.
By our decision we hold thei this section of the statute refers to the date the adjustment
occurred and not the date of lawful entry created.

431


Interim Decision #1545

•

MASTER OF

Hama

In Section 212(e) Proceedings
A-12237808
Decided by District Director December 22,1965

.,

An exchange visitor from Egypt is granted a waiver of the 2-year foreign res;deuce requirement of section 212(o), immigration and Nationality Act, as
amended, because compliance therewith would result in exceptional hardship to hie IJ.S. citizen wife and. child for whom he would be able to provide only a meager existence if they accompanied him abroad, plus the difficulties they would encounter-by being forced to live in a strange country;
,and if they were to remain in the United States while he fulfills his com_ mitment, he would be unable to support two households, his wife is unable
to work because of the tender age of their child, and an indefinite family
" separation would result from the practice of his government not to permit its
'citizens who have been out of the country as students or exchange visitors
to again ldave the country.
The applicant 'Is a" thirty-three year old physician, a native and

citizen of Egypt,. born on January 9, 1932' at Cairo. He 'was admitted to the United States. at Boston, Massachusetts on June 25,
is all ekellitare visitor, destined to Memerial Hospital, Houston,
Texas, under Exchange Visitor Program P—II-1063. In July 1959
he transferred to the Methodist Hospiial, Houston, Texas under
Exchange Visitor Program' P—II-2421. In July 1960 he transferred
to the Robert B. Green Hospital, San Antonio, Texas under Exchange Visitor Program P—II-1249. In July 1961 he transferred
to Charity Hoipital, New Orleans, Louisiana under Exchange Visitor Program P—II-284. Since July 1963 he has been serving as a
...:rssilent physician at Laurel Heights Hospital, Shelton, Connecticut.
On February 24, 1962 he married Joy Alice Hoelzer at San
Antonio, Texas. His wife was born in Brooklyn, New York on
June 2, 1938. A daughter, Lisa Kay Habib, was born on May 20,
1963 in New Orleans, Louisiana.
The applicant's United States citizen spouse and child reside with
him. His wife is unable to work because of the tender age of the
464

Interim Decision #1545
daughter. This limits their income to $175 per month and resident
facilities. The cost of transportation for the family to go to Egypt
would be close to $2000. He is unable to save this amount and would
be obliged to borrow the money. If he were to live in Egypt and his

family in the United States, he would be unable to support two
households. If his family were with him in Egypt, they would be
able to afford only a meager existence on the salary he might earn
as a physician in a small remote village.
In addition to the financial hardship, the applicant has asserted
that it is the practice of his government not to permit its young
citizens, who have been out of the country as nonimmigrant students
or exchange visitors, to again leave the country. In December 1962,
and again on May 19, 1965, the Department of State, in a similar
case, confirmed that this practice still prevailed. This would result

in an indefinite separation in the family relationship. On the other
hand, if the spouse • and child accompanied the applicant abroad,
they would not be able to adjust to the new customs, food, language,
and other difficulties to. be encountered by being forced to live in a
strange 'country.
In view' of the: fofegOing, it has been determined that compliance

with the two-year foreign residence requirement of section 212(e) of
the Iniiiiigfation Na:tiodality Act, as amended, Would impose
exceptional hardship upon Dr. Habib's United States citizen spouse
and child. The Department of State has - recommended that the
•waiver be granted.
ORDER: It is ordered that the recommendation of the Department. of State be followed and that the waiver be granted.

465


Interim Decision #2391

MATTER OF ESPINOZA

In Deportation Proceedings
A-10846768
Decided by Board June 2, 1975
Where respondent was an adult, at the time of commission of the crime, and plead guilty in
a state court in Arizona to the charge of possession of marijuana for sale, the subsequent
expungement of the conviction under Arizona Revised Statute section 13-1744 did not
foreclose deportation. The appeal, from the deportation order entered pursuant to
section 241(a)(1.1) of the Immigration and Nationality Act, is dismissed.
CHARGE:

Order

Aet of 1952—Section 241(aX11) [SILS_C 1251(a)(11))—Convieted of violation

of law relating to control of marijuana.
ON BEHALF OF RESPONDENT

ON BEHALF OF SERVICE

William E. Weinert, Esquire
Trial Attorney

John A. Tull, 3squire
Legal Aid Soc:ety
55 West Congress Street
Tucson, Arizona 83701

This appeal is from an order of deportation entered by the immigration judge on December 4, 1972. The appeal will be dismissed.
The record relates to a married male alien, 52 years of age, a native

and citizen of Mexico, who was lawfully admitted to the United States
for permanent residence on August 28,1956, in possession of an immigrant visa. On Decmeber 7, 1970, a judgment suspending sentence was
entered in the Arizona State Superior Court for the County of Santa
Cruz, which recited that the respondent, on the basis of having pled
guilty, had been convicted of the crime of illegal possession of marijuana
for sale. The respondent moved in the courts of Arizona to withdraw the

plea, on the ground that he had not known that his plea would render
him susceptible to deportation. The Superior Court denied his motion to
set aside the conviction on that ground, but did permit withdrawal of the
plea, entry of a plea of not guilty, and dismissal of the information,
pursuant to Arizona Revised Statutes, Section 13-1744 (the general
expungement provisions).
The respondent acknowledges awareness of the precedents which
have held that expungements of state convictions relating to narcotics
328

Interim Decision #2391
and marijuana have been held not to foreclose deportation, Kelly v.
INS, 349 F.2d 472 (C.A. 9, 1965), cert. denied 382 U.S. 932 (1965);
Matter of A— F—, 8 I. & N. Dec. 429 (LG. 1959). He asks us, however,
to apply the case of Mestre-Morera v. INS, 462 F.2d 1030 (C.A. 1, 1972)
(involving a Federal conviction), to hold that the expungement of his
conviction pursuant to Arizona Revised Statutes, Section 13 - 1744, eliminates his conviction as a ground for deportation.
This Board adopted the rule ofMestre-Morera in Matter of Zingis, 14
I. & N. Dec. 621 (WA_ 1974). That rule, however, is not applicable to the
respondent's case. Mestre-Morera was convicted of an offense involving
simple possession of marijuana; he was sentenced under the Federal
Youth Corrections Act, pursuant to which the sentence was set aside.
We held that the setting aside of the conviction removed it as a basis for
deportation. In Matter of Andrade, 14 I. & N. Dec. 651 (BIA 1974), we
decided to accord like treatment to expungements of state convictions
involving simple possession of marijuana by youths who were sentenced
under a state provision similar to the Federal Youth Corrections Act,
upon the recommendation of the Solicitor General.' Andrade, like Zingis
and Mestre-Morera, was a youth offender who was convicted of an
offense involving simple possession of marijuana. Andrade was sentenced under the Youth Offender Authority of the California Welfare
and Institutions Code.
The respondent's case is unlike the situation in Andrade. The respondent was 47 years of age at the time of his conviction. Inasmuch as he

was not a youth, he could not have obtained expungement under the
Federal Youth Corrections Act had he been subjected to Federal prosecution. Furthermore, his conviction did not involve simple possession
of marijuana, but rather possession of marijuana for sale.*
The respondent contends, further, that his conviction lacks finality,
because he is contemplating appeal to the United States Supreme Court
from the denial by the Arizona Superior Court of his motion to withdraw
the plea of guilty. We find the respondent's contention to be lacking in
merit. A conviction is final upon a plea of guilty, Matter of Robinson, 15
I. & N. Dee. 197 (BIA March 5, 1975). In the respondent's case, in
addition to a plea of guilty, there was a judgement entered by the court
accepting the plea and finding that the respondent was guilty of the
offense (Exh. 3). The respondent's conviction is clearly final.
The Solicitor General, in a memorandum printed in Andrade, supra, cited a softening
of a congresssional policy towards persons convicted of simple possession of marijuana.
The memorandum recommended "not requiring deportation on the basis of a state
marijuana conviction of a youth offender which has been expunged or set aside pursuant to
a law comparable to the Federal Youth Corrections Act if the youth offender upon
ennvietion could have obtained expungement under the federal law if he had been subjected to federal prosecution."
* See Matter of Berker, 15 I. & N. Dec. 725.
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Interim Decision #2391
Finally, the respondent raises the argument that the conviction was
invalid because he was not informed that deportation would be a consequence thereof. This contention has been made in other eases and has
been rejected, Matter of Marin, 13 I. & N. Dec. 497 (BIA 1979); Merin
v. INS, 438 ]?.2d 932 (C.A. 9, 1971); Joseph v. Esperdy, 267 F. Supp.
492 (S.D. N.Y. 1966); U.S. ex rel. Durantev.Holton, 228 F.2d 827 (C.A.
7, 1956), cert. denied 351 U.S. 963 (1956). We shall not address ourselves to it, because he has already litigated this very issue in the
Arizona courts, unsuccessfully. The decision of the Arizona Supreme

Court is res judicata and binding.
For the above reasons, we shall dismiss the respondent's appeal.
ORDER: The appeal is dismissed.

330