MATTER

or J

In EXCLUSION Proceedings
A-10841893
Decided by Board July 18, 1958
Commissioner's motion August 11, 1958
Beaded ay Boars September 22, 1958 and January 6, 1959
Decided by Attorney General February 26, 1959
Expatriation —Section 349(a)(10) of 1952 act—Not established where primary
purpose in remaining abroad was to fulfill bona fide business commitments—
Presumption that departure or absence was to avoid military service is rebuttable.
(1)

Govoramoneo burden of proving ttsvatiluttou by clear, convincing, and
unequivocal evidence under section 249(a) (10) of the 1952 act is not met
where prospective draftee, under notice to report for induction on May 29,
1951, establishes that his primary purpose in remaining in Mexico from
Taxauary 1051 to May 1827 was is taint/ genuine business commitments and
not because of reluctance to serve in the armed forces.
(2) Presumption in section 349(a) (10) that departure or absence was for
purpose of avoiding military service is rebuttable and is applicable only to
cases- where there was a failure on or after December 24, 1952, to comply
with a provision of the compulsory service law.

EXCLUDABLE: Act of 1952—Section 212(a) (22) [8 U.S.C. 1182(a) (22)]—
neman,,ed outside the nested States to evade or avoid military
service.
Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)7—No Immigrant visa.

BEFORE THE BOARD
(July 18, 1958)

Discussion: This ease is before us on appeal from a decision of
the special inquiry officer dated August 16, 1957, holding the alien
an expatriate under section 349(a) (10) [8 U.S.C. 1481(a) (10)], and
oseluding him on the above-stated grounds. Appellant acquired
United States citizenship at birth on August 28, 1929, at Berkeley,
California.
Appellant was classified I-A by his local draft board in the summer of 1950, but departed to Mexico on January 8, 1951, without
obtaining draft board permission. Appellant remained in Mexico

from January 8, 1951, to May 15, 1957, when he applied for admission to the United States as a citizen.
Appellant was convicted on June 10, 1957, on a plea of guilty in
the United States District Court, Northern District of California,
of knowingly failing and neglecting to report for induction on May

29, 1951, contrary to section 12(a), Selective Service Act of 1948
[50 U.S.C. App. 462(a)]. Appellant was sentenced to 8 months'
imprisonment and fined $5,000.
According to the record, appellant had previously been in the
habit of making trips to Mexico for business (although the visits
were not so prolonged) ; and appellant asserted that he applied for
draft board permission to leave the United States and assumed it
was granted, for he was granted similar permission in 1949. Moreover, several of appellant's trips to Mexico prior to 1951 were made
on behalf of his father's pump company and in 1501 he established
a factory in Mexico for the company, as previously planned. To
this end, he obtained the necessary Mexican work permit and renewed
it in succeeding years.
Appellant testified that the draft board induction order (notice of
which came to him in Mexico after the date specified) intervened
boforo he had finished his company duties and he sought a deferment via the American Embassy. Appellant asserted that before

he could complete his work and return to the United States to join
this country's armed forces, he was indicted for failure to report for
induction and, consequently, did not attempt to reenter this country
while the indictment was outstanding.
On May 31, 1957, as a result of his father's efforts, the indictment
was dismissed to permit appellant to be inducted. However, appellant then being over 26 years of age he was no longer subject to
the draft. On June 7, 1957, the court ordered the reinstatement of
the indictment, with a conviction following on June 10, 1957.
Appellant testified that he has always considered Lafayette, California, as his permanent residence and took no steps to become a
Mexican citizen while there. Appellant registered his child, born
July 8, 1956, in Mexico, at the American Consulate at Monterrey
as a United States citizen within 30 days after the birth. Appellant
specifically testified that it was the necessity of attending to business
interests, not a desire to evade and avoid military service, which
kept him in Mexico from 1951 to 1957.
The special inquiry officer held that appellant was an expatriate
for remaining outside the United States to evade or avoid military
service from January 8, 1951, to May 15, 1957, with the loss of
citizenship occurring under section 349(a) (10) of the Immigration
and Nationality Act. The special inquiry officer stated, "Personal
79

expediency cannot suspend the operation at the sincute and the appiicant's belated appearance for induction into the armed forces."
The special inquiry officer specifically referred to the section 349
(0(10) presumption that "departaTe from a^ shAenre from the

United States was for the purpose of evading or av oiding" military
service in this country in ruling that appellant had lost 'his United
States citizenship. However, since appellant has furnished affirmative evidence that he went to Mexico in 1951 and remained there
for business reasons, this statutory presumption is not controlling.
In support of his arguments against expatriation, counsel cites
as controlling precedents Perez v. Browne% 686 U.B. 44 (l988) ;
Trap v. Dulles, 356 U.S. 36 (1958); and Nisltikau4 v. Dulles, 356
U.S. 129 (1958).
While the Pores case discusses expatriation in general, the case

stands primarily for the principle that while the right to United
States citizenship may be relinquished or abandoned, either by
expressed langUage or by conduct amounting to renunciation, this
loss of citizenship may be accomplished only voluntarily. The specific act of expatriation under consideration in the Perez case was
that of voting in a foreign political election [section 401(e), Nationality Act of 1940].
The Trap case turned on the issue of desertion from the United
States military forces as an act of expatriation [section 401(g),
Nationality Act of 1940] and contains little on the general topic of
loss of citizenship, except a restatement of the Perez holding.
On the other hand, in the Nislakatea case, the Supreme Court
stated:
• • • the parties are agreed that when a citizenship claimant proves his
birth in this country or acquisition of American citizenship in some other way,
the burden is upon the Cieveluulet.11. Lo prays un act Chat bLuws enpaLlitithou

by

clear, convincing and unequivocal evidence. In Gonzales v. Landon, 350 U.S.
920, we held that the rule as to burden of proof in denaturalization cases
applied to expatriation cases under section 401(1) of the Nationality Act of
1940. We now conclude that the same rule should govern cases under all the
subsections of section 401.

Although the Government set up a prima facie case in support of
its allegation of loss of citizenship (departure or remaining in
Mexico for the purpose of evading or avoiding military service),
appellant has produced substantial affirmative evidence that he had
a bona Me business purpose for being in Mexico after January 5,
1951. Hence, the weight of the Government's proof of expatriation
falls short of the "clear, convincing and unequivocal" evidence required by the Gonzales and Nislalcawa cases.
Consequently, the Government has failed to support the bufden
of proof of expatriation. Appellant being a citizen is entitled to
80

immediate entry into this country and the appeal is accordingly
sustained.
Order: It is hereby directed that the appeal be sustained.
BEFORE THE CENTRAL OFFICE

(August 11.

1858)

Discussion: The appellant is a 28-year-old married male who
was born in the United States on August 28, 1929, at Berkeley,
California. He was found inadmissible on the above-stated grounds
by a special inquiry officer, and on July 18, 1958, the Board sustained
his appeal from the special inquiry officer's decision. The issue presented is whether the appellant lout United States citizenship by
remaining outside the United States during a period of national
emergency to avoid military service.
On January 8, 1951, the appellant left the United States for
Mexico, allegedly for a short business visit. He was then 21 years
old and had lived in this country at all times except for short visits
to Mexico in 1948, 1949, and 1950. At the time that he left he
was classified I-A by his local draft board and had been so classified
for at least 6 months. He failed to receive permission to depart,
stating in this regard that he had applied for that permission and
had assumed that it would be granted as it had on a previous

occasion in 1949 when he was absent for a period of 4 months.
On May 23, 1951, the appellant's attorney in Berkeley, California,
addressed a letter to the local hoard advising

of the appellant's

address in Mexico, and further indicating that a request for deferment would follow. By letter dated May 28, 1951, a formal request
for deferment was made, predicated upon the need for the appellant's services in Mexico in establishing, organizing, and managing
a factory engaged in the manufacturing of pumps.
A notice of induction dated May 17, 1951, was mailed to the appellant at his address in Mexico directing that he report for induction
on May 29, 1951. The appellant took no action upon receipt of the
notice of induction. Thereafter, approximately 3 months after the
request for deferment was made, ix ., about the latter part of August
or early part of September, the appellant, according to his testimony, learned of the denial of the request for deferment.
Notwithstanding the fact that as of the beginning of September
the appellant had already been ordered to report for induction, and
was fully aware of the denial of a request for deferment, he took
no action to return to the United States. On the contrary, in October 1951, he conferred with American Embassy officials in Mexico
City respecting a postponement of his induction. According to his
testimony, he made representations that his company was in the
process of moving its factory from Mexico City to Monterrey, and
81

that it was necessary to remain in Mexico to complete the company
plans. He stated that his request was denied with the words, "I have
interviewed thousands of boys in your same condition and I don't see
why your case would be any different." Despite the rejection of this

further request for intervention made by him upon Embassy officials, he made no effort to contact his local draft board thereafter,
nor to return to the United States. When asked for an explanation,
he testified, "I had intended to finish the installation of this plant,
our factory, and then report in a short time thereafter, and the
indictment intervened."
The indictment in question charged him with knowingly failing
and neglecting to report for induction on May 29, 1951, in violation
of section 12(a), Selective Service Act of 1948 (50 U.S.C. App.
402(a) ). It was filed on November II, 1901, approximately o
months after he received notice to report for induction, at least
2 months after he had received notice of denial of any request for
deferment, and approximately 1 month after the denial by American
Embassy officials of his request for intervention.
The appellant continued to reside in Mexico, registering as an
alien in Mexico City on January 20, 1952, February 9.2, 1252, April
12, 1954, and December 14, 1954. Exhibit 4, Docurrtento Migratorio
rinse Del immigrant e, page 19, reflects that on January 13, 1956,
there was conferred upon him the status of an admitted immigrant
in Mexico. The appellant's only explanation for accepting immigrant status in 1956 was that it was necessary in connection with
his carrying on his work in Mexico, but that at no time did he intend to become a permanent resident of Mexico. His testimony
throughout has been that he desired to return to the United States
at all times.
It will be noted that shortly before assuming Mexican immigrant
status in January of 1956, specifically on October 18, 1955, a certificate of loss of nationality of the United States was approved by
the Department of State upon a finding that the appellant had expatriated under the provisions of section 349(a) (10) of the act.
It was not until May 15, 1957, more than 6 years from the date of
his departure from the United States, and long after the termination of the hostilities in Korea, that the appellant sought reentry into
the United States. He was paroled in, and the record reflects that
the indictment was dismissed to permit him to be inducted. No
induction took place, the indictment was reinstated, and on June 10,
1957, the appellant was convicted and sentenced to 8 months' imprisonment and a $5,000 fine. With respect to the failure to be
inducted, there is evidence that the appellant was then over 26 years
of age and no longer subject to the draft; that he signed a waiver
82

of the age limit, but for reasons not established by the record the
draft board refused to accept him.
Under the provisions of section 349(a) (10), nationality , is lost by
departing from or remaining outside of the jurisdiction of the United States
to time or war er thttlet; a yutoU do:hared try the Prettltleat to te a puma or
national emergency for the purpose of evading or avoiding training and service
in the military, air, or naval forces of the United States. For the purposes of
this paragraph failure to comply with any provision of any compulsory service
laws of the United States shall raise the presumption that the departure from
or absence from the United States was for the purpose of evading or avoiding
training or service in the military, air, or naval forces of the United States.
This provision, with the exception of the presumption bet forth
in the last sentence (and the reference to the air force), is identical with the predecessor legislation, section 401(j) of the Act of

October 14, 1940, as amended September 27, 1944_

That the period of the Korean conflict was a "period of national
emergency" within the meaning of the foregoing section is well
established (Matter of B—M—, 6 I. & N. Dec. 756, 757, and
cases cited therein).
The Board, in its order of July 18, 1958, found that since the
appellant furnished affirmative evidence that he went to Mexico
in 11)51 and remained there for business reasons, the statutory presumption set forth in section 349(a) (10) is not controlling. While
it is true that the presumption would have no effect with respect
to a departure prior to the effective date of the Immigration and
Nationality Act, nevertheless it has full force and effect with respect
to conduct occurring after Deember 24, 1952 (Matter of F M—,
6 I. & N. Dec. 379). In view of his conviction, it is clear that the
appellant's continued absence after December 24, 1952, and up to
May 15, 1957, brings him within the scope of the presumption.
While the presumption is rebuttable, it is submitted that, for the
reasons set forth below, the Government has fully met its burden
of proving expatriation in the subject case, both under section. 401
(j) of the Nationality Act of 1940, as amended, and under the provisions of section 349(a) (10) of the 1952 act with respect to the
conduct after December 24, 1952.
The Service is fully mindful of the burden it carries in this type
of case under the rule laid down in Gonzales v. Landon, 350 U.S.
920. However, Gonzales was taken to Mexico when less than 2 years
old by his parents who were citizens of Mexico. During the 30
years he remained in Mexico thereafter, his father died and there
was evidence he failed to return to the United States because his
mother would not let him. It is obvious that on those facts satisfaction of the government burden was more difficult than in the
instant case.
83

Here the appellant is an educated person of considerable means.
He is fluent and literate both in English and in Spanish. He left
the United States when he was 21 years of age. He not only was
eligible for the draft, hot had in fact registered and had been classi-

for several months in class I-A. He must reasonably have
anticipated that induction was imminent. He was fully aware of the
draft requirements respecting obtaining permission to leave the
country, as evidenced by his prior requests for such permission, but
nevertheless chose to depart without receiving such permission. He
was at all times fully aware of his obligation to serve his country
in a period of national emergency.
After his departure he received notice to report for induction.
He chose to ignore this notice, on the plea that his business activities and the interests of the company by which he was employed were
of more importance than the needs of this government. Following
the denial of his request for deferment, his obvious duty was to
terminate his activities in Mexico and return forthwith to the
United States to present himself for military service. In lieu thereof,
he continued to occupy himself with the factory in Mexico.
He pursued this willful course of conduct, notwithstanding a firm
rejection by the United States Embassy in Mexico of his request to
intervene to obtain a deferment for him. In short, notwithstanding
that all of the facts respecting the nature of his employment in
Mexico had been presented to the draft board through competent
counsel and rejected, and notwithstanding the fact that United
States officials on the scene in Mexico were not sufficiently impressed
with the importance of his work to intervene in his behalf, he nevertheless took it upon himself to disregard the order of the draft
board and to continue to remain in Mexico to pursue his business
activiti es
If the judgment of the draft board and of the United States Embassy is respected, there were no compelling reasons and no circumstances beyond his control barring his return at that time. Whether
he was motivated in not returning at that time by fear of military
service in an armed conflict or by a desire not to interrupt his business activities is of no consequence. The fact remains that when
called to serve he deliberately remained abroad to avoid having to
serve at that time and that he continued to remain abroad thereafter
until 1957 in order to avoid military service, notwithstanding his
desire to return and notwithstanding that no circumstances beyond
his control prevented his return.
Clearly it was not for the appellant to say when he would serve
in the armed forces, nor to impose conditions under which he would
present himself to draft authorities. Subsequently, he imposed
still another condition, namely, that the indictment which was finally
fied

entered against him in Isiovember of 1951 for violation of the draft
laws be withdrawn before he would return and serve in the armed
forces of this country. The necessity for an indictment was brought
upon the respondent by his own action in willfully failing to respond
to the draft call. Having thus placed himself in the position where
he was subject to a penalty, he can hardly be permitted to plead
the very result of his misconduct as an excuse for failing to return
and report for induction. The fact remains that by stipulating that
the indictment against him must be withdrawn before he would
return to the United States, and by continuing to remain out of this
country until well after his 28th birthday, he avoided service during

the period of actual hostilities, and ultimately circumvented any
military service whatsoever. It is no excuse that he was willing to
execute a waiver of the age requirement. Whether because he was
over 26 years of age, or for other reasons not shown, the fact remains that by his actions he successfully evaded all military service.
It appears also that the appellant has sought to reap the benefits
of lawful status both in Mexico and in the United States, as evidenced by his acceptance of immigrant status in Mexico in 1956.
Certainly this action is inconsistent with, and casts doubts upon,
his ullegalione that he was willing to return to the United &alma
to serve in our armed forces.
Upon consideration of the record in its entirety, the Service is
of the view that expatriation has been established by "clear, con
vincing and unequivocal" evidence. It is, therefore, moved that the
Board reconsider its order of July 18, 1958, sustaining the appeal,
and that the order of the special inquiry officer directing exclusion
be affirmed.
Motion is hereby mule that the Board reconsider its order of
July 18, 1958, sustaining the appeal, and that the order of the special inquiry officer be affirmed.
BEFORE THE BOARD
(September 22, MS)
Discussion: This case is before us on motion of the Immigration
Service for reconsideration of our decision of July 18, 1958, in
which we ruled that appellant was still a United States citizen, entitled to immediate entry into this country.
Appellant acquired United States citizenship at birth on August 28,
1929, at Berkeley, California. He was classified 1—A by his local
draft board in the summer of 1950, but departed to Mexico on
January 8, 1951, without obtaining draft board permission. Appellant remained in Mexico from the latter date to May 15, 1957, when
he applied for admission to the United States as a citizen.

85

On August 16, 1957, a special inquiry officer held appellant an
expatriate under section 349(a) (10), for remaining outside the
United States to evade or avoid military service between January 8,
1051, and May 15, 1057.

The Board determined on July 18, 1958, that "Although the Goveminent set up a prima facie case in support of its allegation of loss
of citizenship (departure or remaining in Mexico for the purpose of
evading or avoiding military service), appellant has produced substantial affirmative evidence that he had a bona fide business purpose for being in Mexico after January 8, 1951. Hence, the weight
of the Government's proof of expatriation falls short of the 'clear,
convincing and unequivocal' evidence required."
The Immigration Service contends that the presumption set out
in the last sentence of section 349(a) (10) applies and although the
presumption is rebuttable, the burden of proof has been met by the
Government. With regard to this presumption,' we must reiterate
our previously-stated view that since appellant has furnished affirmative evidence that he went to Mexico in 1951 and remained there
for business reasons, this statutory presumption is not controlling.
The Immigration Service argues that the facts of the instant ease
fall within the rule of Gonzales v. Landon [350 U.S. 920 (1955)] ;
apelntbigrducate,hvingkowldfte
English language, being over 21 years of age, and having had considerable United States residence. Moreover, the Immigration Service contends that:
* * Whether he [appellant] was motivated in not returning at that time
by fear of military service in an armed conflict or by a desire not to interrupt
his business activities is of no consequence. The fact remains that when called
to serve he deliberately remained abroad to avoid having to serve at that time
and that he continued to remain abroad thereafter rmtil 1957 in ova." to avoid
military service, notwithstanding his desire to return and notwithstanding
that no circumstances beyond his control prevented his return.
The heart of the issue in the instant case is appellant's motive in
failing to return to the United States after January 1951. According to the record, appellant definitely had a valid business reason
for going to Mexico in 1951 and remaining thereafter in that
country. These genuine business commitments (on behalf of his
father's pump company) constituted his primary purpose in remaining in Mexico, according to substantial affirmative evidence produced by appellant.
'SEC. 349(a) (10) " • • For the purposes of this paragraph failure to comply with any provision of any compulsory service laws of the United States
shall raise the presumption that the departure from or absence from the United
States was for the purpose of evading or avoiding training and service In the
military, air, or naval forces of the United States.

86

Furthermore, certain other evidence tends to corroborate this view.
Appellant had previously been in the habit of making trips to
Mexico for business, although the visits were not so prolonged.
Appellant asserted that he applied for draft board permission to
leave the United States and assumed it was granted, for he was
granted similar permission in 1949. Several of appellant's trips
to Mexico prior to 1951 were also made on behalf of his father's
pump company and in 1951 he established a factory in Mexico for
the company, as previously planned. To this end, appellant obtained the necessary Mexican work permit and renewed it in succeeding years.
Appellant also testified that he has always considered Lafayette,
California, as his permanent residence and took no steps to become
a Mexican citizen while there. Appellant registered his child, horn
July 8, 1956, in Mexico, at the American Consulate at Monterrey

as a United States citizen within 30 days after the birth.
For these reasons, we must reaffirm our conclusion that the weight
of the Government's proof of expatriation falls short of the "clear,
convincing and unequivocal" evidence required by Gonzales v.
Landon [350 U.S. 920 (1055)] and Ni.shikaava v. Dulles [356 U.S.
.129 (1998)]. The motion is accordingly denied.

Order: It is hereby directed that the motion be denied.
BEFORE THE BOARD
(January 6, 1959)

Discussion: This case is before us on motion of the Service
dated October 3, 1958, requesting that the case be certified to the
Attorney General.
The appellant is a 29-year-old married male, native of the United
States and claiming United States citizenship, who applied for
admission to this country on May 15, 1957. The special inquiry
officer held that he had lost his United States citizenship and that,
as an alien, he was excludable on the two grounds stated above.
On July 18, 1958, we held that he was a citizen and sustained his
appeal. The Assistant Commissioner's motion for reconsideration
of that decision was denied by this Board on September 22, 1958. The
present motion dated October 3, 1958, requests that the case be
certified to the Attorney General and advances additional arguments
which we will discuss following a review of the facts.
The appellant's father is the general manager of Jacuzzi Brothers,
Inc., a manufacturer of pumps in California. Commencing about
1946, the company contemplated establishing a plant in Mexico, and
since 1948 the appellant has been involved in this venture. In this
connection he made a few trips to Mexico and during 1949 received
the permission of his Selective Service local board for a 4 months'
trip to Mexico.
87

On January 8, 1951, subsequent to the date when the appellant was
classified 1-A by his local board, he again departed to Mexico. He
stated that he requested permission of his local board to depart and
assumed that it would again bo granted. The appellant stated that

he went to Mexico at that time for the purpose of establishing the
contemplated Mexican branch of Jacuzzi Brothers and hot for the
purpose of avoiding United States military service. The Mexican
factory was, in fact, established at about that time. During October
1951 it was transferred from Mexico City to Monterrey, Mexico,
and the operation has continued successfully since that time. Approximately 200 workers are employed in the factory. The appellant has been in complete charge of the Mexican factory from January 1951 until his return to the United States in May 1957.
The appellant was ordered to report to his local board on May 29,
1951, for forwarding to an induction station for examination, but
the notice reached him in. Mexico subsequent to the appointed day.
Jacuzzi Brothers requested an occupational deferment for the appellant on May 28, 1951. On November 14, 1951, he was indicted on
2 counts of violating the Selective Service Act of 1948. The appellant stated that between that time and May 15, 1057, when he returned voluntarily to the United States, a number of attempts were
made by his attorney to have the indictment dismissed with a view
of permitting him to enter the United States Army. On May 31,
1957, the indictment was dismissed and the appellant reported to
his local board for induction. At that time he was over 26 years
old and no longer subject to compulsory service but he signed a
waiver as to that. However, he was not inducted. Subsequently,
the court reinstated the indictment and on June 10, 1957, the appellant pleaded guilty to the second count which charged that he failed
and neglected to report for induction on May 00, 1051.
The special inquiry officer held that the appellant became expatriated under section 349(a) (10) of the Immigration and Nationality Act (8 U.S.C. 1481(a) (10)) on the effective data of that act
(December 24, 1952). The Assistant Commissioner's motion asserts that expatriation occurred either under that provision or under section 401(j) of the Nationality Act of 1940 (8 U.S.C. 801(j),
1946 ed.) which was in effect from September 27, 1944, until December 23, 1952. Both provided that a person who is a national of
the United States shall lose his nationality by departing from or
remaining outside of the jurisdiction of the United States in time of
war or during a period of national emergency for the purpose of
evading or avoiding military service. The provision which became
effective on December 24, 1952 (8 U.S.C. 1481(a) (10)) contained,
in addition, the statement that failure to comply with any provision
of any compulsory service laws shall raise the presumption that
88

the departure from or absence from the United States was for the
purpose of avoiding military service. In our decisions of July 18,
1958, and September 22, 1958, we stated that this presumption was
not controlling here because the appellant had furnished affirmative
evidence that he went to Mexico in 1951 and remained there for
business reasons. We will discuss later herein the question of
whether the presumption has any applicability to the appellant's'
case.

The special inquiry officer found that the appellant remained outside the United States to avoid military service and his conclusion
of law was to the same effect. Hence, he presumably did not believe
that the appellant departed from the United Slates fur that purpose.
In its motions, the Service did not comment specifically as to
whether there was any allegation that the appellant's departure
from the United State. on January 8, 1951, was for the purpose of
avoiding military service but the motion of October 3, 1958, does con-

tain the statement that the appellant, in remaining outside the United
States from 1951 to 1957, may have been motivated by an incidental
desire "to avoid prosecution for departing to evade military service."
However, neither count of the indictment accused him of having
departed from the United States to evade military service. In the
absence of any specific contention that the appellant became expatriated by departing from the United States and in view of our previous conclusion, we hold that the appellant did not depart for the
purpose of avoiding military service, and the question resolves itself

into whether he remained abroad for that purpose.
The Assistant Commissioner's motion of October 3, 1958, contains
the statement that, after a full examination of the facts, the appellant's local board and American Embassy officials in Mexico "found
that he had no business activities in Mexico urgently requiring his
presence in that country." The record does not indicate that such
findings were made. What it does show is that a request for occupational deferment was addressed to the local board on May 28,
1951 (the decision on this request does not appear of record but
obviously it was not granted) ; that in October 1951 the appellant
had a conference with 2 employees of the American Embassy in
Mexico City ; that he was endeavoring to procure their assistance
in obtaining a Selective Service deferment of several months in
order to permit completion of the Mexican factory ; that he stated
to them that as soon as the factory was completed he intended to
enter the United Slates Army ; and that they refused to take any
action.
The motion of October 3, 1958, contains the statement that the
appellant testified to a continuous desire to return to the United
States following his departure in 1951, and it was indicated that

89
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8

our decision in the case represented a departure by us from our
previous view that expatriation occurs where the individual desires
to return to the -United States but is deterred primarily by reluctance
to serve in the armed forces. Actually, when the appellant spoke
of his desire to return to the United States, he did not say that he
refrained from doing so because of reluctance to serve in the armed
forces, but instead his answers were always coupled with the statement that lie intended to return to the United States for the purpose
of serving in the armed forces. His testimony is to the effect that he
wanted a few months' deferment and then intended to enter the
United States Army; that, following the indictment, efforts were
made to have it dismissed in order that he might enter the Army;
that he voluntarily returned to the United States on May 15, 1937,
for the purpose of entering the armed forces; that he appeared before his local board for induction on May 31, 1957; and that he
signed a waiver insofar as being over military age was concerned.
Accordingly, the record does not show that the appellant refrained
from returning to the United States because of reluctance to serve
in the armed forces, and the conclusion which we reached in his case
represents no departure from the view we had previously followed.
It was also stated in the motion of October 3, 1958, that the issue
is whether United States citizenship was lost by one who remained
abroad from January 8, 1951, to May 15, 1957, "primarily to avoid
military service" although there may have been other incidental
reasons. The motion concludes with the statement that the effect of
the instant decision is to cast into confusion the long line of administrative decisions holding that it is of no consequence what other
motivation may exist "if in fact the appellant remained outside of
the United States primarily to avoid military service." If the facts
were as stated by the Service, expatriation unquestionably would
have occurred. However, the vulnerability of the Assistant Commissioner's entire argument is that the prop which supports it is the
assumption of the Service that the appellant remained abroad
primarily to avoid military service; whereas, we have held in our
previous orders in this case that this fact has not been established.
The statutory provision under which it is asserted that the appellant became expatriated contains three elements applicable to his
case: (1) remaining outside the jurisdiction of the United States,
(2) during a period of national emergency, and (3) for the purpose
of avoiding training and service in the armed forces. It is clear that
the appellant's case contains elements (1) and (2). Hence, the question in the appellant's case is solely the factual issue of whether his
action in remaining abroad was for flee purpose of avoiding military
service. This must be determined on the particular facts in his case
which is an unusual one, involving as it does his presence in Mexico
90

for the purpose of establishing a subsidiary of an American company. Because of the peculiar circumstances of the case, we do not
share the fears expressed by the Service that the decision here will
cast into confusion our decisions in other cases involving entirely
different facts.
We have carefully examined the special inquiry officer's decision
and the two motions of the Service in order to ascertain what evidence is relied on to support the contention that the appellant remained abroad for the purpose of avoiding military service. As far
as we have been able to determine, the only possible matters are (1)
the indictment and conviction, (2) tho presumption in 8 U.S.C.
1481(a) (10), and (3) the appellant's own testimony. The indictment and conviction are of no assistance in showing the appellant's
purpose in remaining outside the United States for, as we have indicated above, the indictment did not accuse him of having departed
from the United States to evade military service, nor did it accuse
him of having remained abroad for that reason. The count to which
he pleaded guilty charged only that he did knowingly fail and neglect to report for induction on May 29, 1951. It was immaterial
to that charge whether there was a purpose to avoid military service or whether the failure to report for induction was for some other
reason, and-the question of whether the appellant was in the United
States or in Mexico between 1951 and 1957 was equally immaterial
in that prosecution.
The second item on which the Government relies is the presumption under 8 U.S.C. 1481(a) (10). We stated above that we would
discuss the question of whether it had any applicability to the appellant's case. The opening phrase in 8 U.S.C. 1481(a), that is, "From
and after the effective date of this chapter * * *," indicates clearly
that paragraphs (1) to (10) of that subsection are prospective only.
Paragraph (10), which relates to departing from or remaining outside the United States to avoid military service, contains a sentence
reading: "(10) * * For the purposes of this paragraph failure to
comply with any provision of any compulsory service laws of the
United States shall raise the presumption that the departure from
or absence from the United States was for the purpose of evading
or avoiding training and service in the military, air, or naval forces
of the United States."
In Matter of F-31—, 6 I. & N. Dec. 379 (1954), we discussed
I TT.S.C. 7451 (n) (tn), and we specifically held that this pimisiun
had no retrospective force and that the presumption was limited to
cases in which, on or after December 24, 1952, there was a failure to
comply with a provision of a compulsory service law. It may be
that the appellant failed to comply with such a provision after
December 24, 1912, but the only "failure to comply .' disclosed by the
91

present record is the appellant's failure to comply with the order to
report for induction on May 29, 1951. Since this was prior to
December 24, 1952, when 8 U.S.C. 1481(a) (10) became effective, it
has 11,1, been established on the present record that the appellant's
case is even within the presumption. In any event, assuming that
the presumption is applicable, we adhere to our previods view that
the appellant has overcome the presumption by affirmative evidence.
The third item on which the Government relies is the appellant's
own testimony. No other witnesses testified. The Government's
case must stand or fall on the has'ie of that testimony alone for we
have indicated above that the record of conviction and the presumption contained in 8 TJ.S.C. 1481(a) (10) would not support a conclusion of expatriation. Since the appellant's own testimony must
afford the principal support for the Government's case, we believe
that his explanation of what might otherwise be considered adverse
factors is entitled to considerable weight.
The appellant made no admission that he remained outside the
United States for the purpose of avoiding military service. On the
contrary, he testified that he did not depart from or remain outside
the TTnited States for the purpose of avoiding military service, and
that he had desired a short deferment but intended thereafter to
serve. He voluntarily returned to the United States - on May 15,
1957, and his counsel had informed officials of the Service and of
the Department of Justice of the date and place where he would
apply for admission to the United States. He knew that the indictment was still outstanding at that time, and it was not until May
31, 1957, that it was dismissed. He did, in fact, appear before his
local board for induction later on that date. In this state of the
record, we do not believe that there is evidence that the appellant
remained outside the United States for the purpose of avoiding
military service. Hence, we hold that it has not been established by
clear, convincing and unequivocal evidence that the appellant became
expatriated in accordance with the rules laid down in Gonzales v.
Landon, 350 U.S. 920 (1955); Nishikawa v. Dulles, 356 U.S. 129;
Trop v. Dulles, 356 U.S. 86; and Perez v. Brownell, 356 U.S. 44,
the latter three having been decided on March 31, 1958. We adhere
to our previous conclusion that the appellant has established that
his primary purpose in remaining in Mexico was to fulfill his business commitments on behalf of the Mexican subsidiary of Jacuzzi
Brothers.
Order: It is ordered that no change be made in our previous
orders in this case.
It is further ordered that, in accordance with the Assistant Corn.
missioner's request, this case be certified to the Attorney General pur•
suant to 8 CFR 3.1(h) (1) (iii).
92

BEFORE THE ATTORNEY GENERAL
(February 26, 1959)

This case is before me for review of the decision of the Board of
Immigration Appeals pursuant to 8 CFR 3.1(h)(1)(iii). The
issue involved is whether the applicant lost citizenship under section
401(j) of the Nationality Act of 1910 or section 349(a) (10) of the
Immigration and Nationality Act.

Order: After review of the record and of the applicable law
and decisions of the United States Supreme Court, it is directed that

the order of July 18, 1958, by the Board of Immigration Appeals,
sustaining the appeal of J B—J— and directing his admission to the United States as a citizen, be approved.

93


Cite as 27 I&N Dec. 551 (BIA 2019)

Interim Decision #3953

Matter of Renata MIRANDA-CORDIERO, Respondent
Decided May 22, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Pursuant to section 240(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229a(b)(5)(B) (2012), neither rescission of an in absentia order of removal nor
termination of the proceedings is required where an alien who was served with a notice to
appear that did not specify the time and place of the initial removal hearing failed to provide
an address where a notice of hearing could be sent. Pereira v. Sessions, 138 S. Ct. 2105
(2018), distinguished.
FOR RESPONDENT: Renee LaRosee, Esquire, Elizabeth, New Jersey
BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK,
Board Members
GRANT, Board Member:

In a decision dated January 9, 2018, an Immigration Judge denied the
respondent’s motion to sua sponte reopen her removal proceedings. The
respondent has appealed from that decision. 1 The appeal will be dismissed.
The respondent is a native and citizen of Brazil who entered the United
States on March 8, 2005, without being admitted or paroled. At that time,
she was personally served with a Notice to Appear (Form I-862) ordering her
to appear for a hearing before an Immigration Judge in San Antonio, Texas,
at a date and time to be set. The respondent refused to provide an address
at which she could be contacted during the removal proceedings. 2 When she
did not appear for her hearing on May 11, 2005, the Immigration Judge
ordered her removed in absentia pursuant to section 240(b)(5) of the
Immigration and Nationality Act, 8 U.S.C. § 1229(b)(5) (2012).
1
As the Immigration Judge pointed out, the respondent submitted documents in support
of her motion to reopen indicating a name and date of birth different from those on the
documents presented by the Government in her prior proceedings. She has offered no
explanation for this disparity. For purposes of this decision, we will assume that the two
names represent the same individual, but we note that the respondent has not established
this as a matter of fact.
2
The respondent’s notice to appear and her Record of Deportable/Inadmissible Alien
(Form I-213) both show that, after she was notified by service of the notice to appear of
her obligation to provide an address where she could be reached during the course of the
removal proceedings, she refused to give that information.

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Interim Decision #3953

On July 5, 2017, the respondent filed a motion requesting sua sponte
reopening of the proceedings to rescind her removal order so that she could
file an Application for Provisional Unlawful Presence Waiver (Form I-601A)
based on her marriage to a United States citizen and her approved visa
petition. The Immigration Judge denied the motion, stating that he declined
to exercise sua sponte authority to reopen the proceedings because he lacked
jurisdiction over the waiver, which she could seek from the U.S. Citizenship
and Immigration Services (“USCIS”). He further found that the respondent
did not allege any exceptional situation or circumstances that would warrant
sua sponte reopening.
On appeal, the respondent argues that the Immigration Judge erred in
stating that a provisional waiver of unlawful presence is available to her
despite her outstanding in absentia order of removal and in providing no
analysis for his finding that she did not present exceptional circumstances.
In addition, the respondent relies on the intervening decision of the Supreme
Court in Pereira v. Sessions, 138 S. Ct. 2105 (2018), to assert that her notice
to appear was invalid because it did not contain a specific date and time for
her initial removal hearing, as required by section 239(a)(1)(G) of the Act,
8 U.S.C. § 1229(a)(1)(G) (2012). In this regard, she claims that if her
proceedings are reopened pursuant to Pereira, she will be eligible for
cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C.
§ 1229b(b)(1) (2012).
We will first address the respondent’s argument regarding Pereira. The
Supreme Court in Pereira, focused on the question whether a notice to appear
that lacks a specific time and place of hearing triggers the “stop-time” rule
for purposes of cancellation of removal under section 240A(d)(1)(A) of the
Act. Pereira, 138 S. Ct. at 2113 (stating that the question before the Court
was “narrow”). It did not hold that such a deficient notice to appear is invalid
for all purposes, including for initiating removal proceedings. Matter of
Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018); see also Matter of
Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. 520, 523–24 (BIA
2019).
The regulations at 8 C.F.R. § 1003.14(a) (2018) provide that
“[j]urisdiction vests, and proceedings before an Immigration Judge
commence, when a charging document is filed with the Immigration Court.”
Furthermore, although 8 C.F.R. § 1003.15(c) (2018) requires that a notice to
appear must provide certain information, the date and time of the hearing are
not included. In any event, § 1003.15(c) states that failure to provide any of
the enumerated items “shall not be construed as affording the alien any
substantive or procedural rights.”
Furthermore, rescission of the respondent’s in absentia order of removal
is not mandated by Pereira. In contrast to the provisions of the Act at issue
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Interim Decision #3953

in Pereira, the statute regarding the entry of an in absentia order provides
that “[a]ny alien who, after written notice required under paragraph (1) or (2)
of section 239(a) has been provided to the alien or the alien’s counsel of
record, does not attend a proceeding under this section” may be ordered
removed in absentia. Section 240(b)(5)(A) of the Act (emphasis added).
Because the statute uses the disjunctive term “or” rather than the conjunctive
“and,” an in absentia order of removal may be entered if a written notice
containing the time and place of the hearing was provided either in a notice
to appear under section 239(a)(1) or in a subsequent notice of the time and
place of the hearing pursuant to section 239(a)(2).
In this case, a notice to appear was personally served on the respondent,
in which she was advised of her obligation to “notify the Immigration Court
immediately” any time she changed her address during the course of the
removal proceedings. See also 8 C.F.R. § 1003.15(d) (2018) (requiring an
alien to provide the Immigration Court with written notice of an address and
telephone number at which he or she can be contacted). However, after
receiving the notice to appear, the respondent refused to provide an address
as specified in section 239(a)(1)(F) of the Act. See Matter of G-Y-R-, 23 I&N
Dec. 181 (BIA 2001) (discussing an alien’s statutory address obligations).
Under section 240(b)(5)(B) of the Act, if “an alien has failed to provide
the address required under section 239(a)(1)(F),” no written notice of the
hearing is necessary to order the alien removed in absentia under section
240(b)(5)(A), which, as noted, permits notice under section 239(a)(1) or (2).
Because the respondent refused to provide an address after she was advised
of her obligation to do so in the notice to appear, notice of the time and place
of her hearing was not required under either section of statute, so in absentia
proceedings were appropriate.
In contrast, the alien in Pereira provided his correct address and
established that he did not receive a notice of hearing. Pereira is also
distinguishable from the respondent’s case because she did not apply for
cancellation of removal in 2005 and she was ordered removed by the
Immigration Judge for reasons unrelated to the operation of the “stop-time”
rule. Under the circumstances of this case, therefore, we conclude that the
Supreme Court’s decision in Pereira is distinguishable and does not require
that the respondent’s in absentia order of removal be rescinded or that her
proceedings be terminated. See Matter of Pena-Mejia, 27 I&N Dec. 546,
550 (BIA 2019) (stating that Pereira “is inapplicable outside of the narrow
context of the ‘stop-time’ rule” of section 240A(d)(1) of the Act, which is
distinct from the rules regarding failure to appear in section 240(b)(5)(A)).
Our holding is supported by the circuit courts that have considered the
implications of Pereira in the context of in absentia proceedings. In
Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 (5th Cir. 2018), the United
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Interim Decision #3953

States Court of Appeals for the Fifth Circuit, in whose jurisdiction this case
arises, upheld our decision declining to reopen or rescind an in absentia order
of removal where the alien did not receive a notice of hearing as a result of
his failure to provide a correct address to the Immigration Court. The court
also noted that because the Supreme Court’s focus in Pereira was on the
narrow question of the operation of the “stop-time” rule for cancellation of
removal, it did not affect the court’s holding in Gomez-Palacios that an in
absentia removal order should not be rescinded where lack of notice resulted
from the alien’s failure to update his mailing address. Id. at 148 & n.1 (noting
that since cancellation and reopening are “entirely different,” in cases
involving reopening “Pereira’s rule regarding cancellation is inapplicable”);
see also Fuentes-Pena v. Barr, 917 F.3d 827, 830 n.2 (5th Cir. 2019).
The Sixth Circuit also addressed a situation involving an in absentia order
of removal in Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019). The alien
there argued that under Pereira, his notice to appear, which did not
specify the date and time of the hearing, did not vest jurisdiction in the
Immigration Court. Rejecting that assertion, the court found that Pereira is
distinguishable because it “(1) dealt with whether the narrow “stop-time”
rule can be triggered by [a notice to appear] omitting the time and place of
the initial hearing, and (2) addressed two statutory provisions distinct from
the regulations at issue.” Id. at 489. The court also stated that the statute
“does not address jurisdictional prerequisites” and that the regulations
governing when and how jurisdiction vests with the Immigration Judge do
not require references to the time and place of the hearing to vest jurisdiction.
Id. at 490–91. Relying on section 240(b)(5)(A) of the Act, the court held that
rescission of the alien’s in absentia order of removal was not warranted
because the notice of hearing mailed to him at his listed address met the
requirements of section 239(a)(2) regarding notice of the time and place of
the hearing. Id. at 491–92; see also Molina-Guillen v. U.S. Att’y Gen., 758
F. App’x 893, 898–99 (11th Cir. 2019) (per curiam) (distinguishing Pereira
where the alien received a notice of hearing supplying the missing date and
time information, which together with the notice to appear “fulfilled the
notice requirements” in section 239(a)(1) of the Act).
In regard to the denial of her motion to reopen sua sponte, the respondent
argues that the Immigration Judge erred in stating that a provisional waiver
of unlawful presence is available to her through the USCIS despite her
outstanding in absentia order of removal. She further asserts that the
Immigration Judge provided no analysis for his finding that she did not
establish exceptional circumstances to warrant sua sponte reopening.
Whether proceedings should be reopened sua sponte is a discretionary
determination to be made based on the totality of circumstances presented in
each case. The respondent argued in her motion to reopen that she and her
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Interim Decision #3953

United States citizen family members will suffer extreme hardship upon her
removal based on their personal circumstances and the country conditions in
Brazil. She is the beneficiary of an approved visa petition filed by her United
States citizen husband, whom she married and had a child with after being
ordered removed in absentia. She submitted evidence regarding her personal
and family circumstances and the country conditions in Brazil, along with
other supporting documents.
Upon our de novo review, we find that the respondent’s case does not
present an exceptional situation that warrants the exercise of discretion to
reopen sua sponte, regardless of the availability of a provisional waiver. 3
Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997) (stating that the power to
reopen sua sponte “is not meant to be used as a general cure for filing defects
or to otherwise circumvent the regulations, where enforcing them might
result in hardship”). Accordingly, we agree with the Immigration Judge’s
decision denying the respondent’s motion to sua sponte reopen her in
absentia removal proceedings, and we will dismiss her appeal.
ORDER: The appeal is dismissed.

3
As the Immigration Judge noted, individuals who are subject to a final order of removal
may qualify for a provisional unlawful presence waiver of inadmissibility under certain
circumstances. 8 C.F.R. § 212.7(e)(4)(iv) (2018).

555


Interim Decision #2267

MATTER OF HERNANDEZ

In Deportation Proceedings
A-18950852
Decided by Board March 5, 1973 and October 2, 1973
Decided by Attorney General March 7, 1974
(1) Under the Civil Code of the State of Tamaulipas, Mexico, a common-law
relationship in that State constitutes a marriage for all legal purposes,
including the legitimacy of the issue of such unions, notwithstanding the
general provisions of Article 130 of the Constitution of Mexico requiring civil
formalities.
(2) Respondent, the issue of a common-law relationship, who was born in the
State of Tamaulipas, Mexico, in 1949 to a United States citizen mother and
Mexican citizen father, and who is considered legitimate as a matter of
Mexican law, did not derive United States citizenship under the provisions of
section 201(g) of the Nationality Act of 1940, since her citizen mother had not
had the requisite 10 years' residence in the United States priur to her
(respondent's) birth.
ON BEHALF OF RESPONDENT:
Eduardo E. de Ases, Esquire
Suite 206, Guaranty Bank Plaza
Corpus Christi, Texas 78401
(Brief filed)

ON BEHALF OF SERVICE:
Charles Gordon
General Counsel
Bernabe Q. Maldonado
Trial Attorney
(Brief filed)

CHARGE:
Order: Act of 1952—Section 241(a)(1) (8 U.S.C. 1251(a)(1)1—Excludable at time
of entry under section 212(a)(20)—no immigrant visa.

BEFORE THE BOARD

(March 5, 1973)
This case is before us on certification from an order of deportation entered by the special inquiry officer on June 9, 1972. We shall
sustain the appeal and find that respondent is a citizen of the
United States.
608

Interim Decision #2267
The record relates to a married female, 24 years of age. She is
charged with being an alien who entered the United States on
December 18, 1967 as an immigrant not in possession of a valid
unexpired immigrant visa or other valid entry document. The
respondent moves that the proceedings be terminated on the basis
that she acquired United States citizenship at birth, through her
mother, Ana Garcia, who was born in Sebastian, Texas on March
11, 1922. Ana Garcia lived in the United States until 1925 or 1926,
at which time she was taken to Mexico. She continued to live in
Mexico until 1964, when she moved back to the United States. She
lived with the respondent's father, Luciano Garcia, from 1947 to
1964 in Tamaulipas, Mexico. The respondent was born in Tamauli-

pas, Mexico on February 25, 1949. Ana and Luciano never went
through a marriage ceremony either civil or religious, but they did
hold themselves out to be man and wife; three children were born
of their relationship.
Whether respondent acquired United States citizenship depends
upon provisions of the Nationality Act of 1940, the law in effect at
the time of her birth:
"See. 201. The following shall be nationals and citizens of the United States
at birth ...

(g) A person born outside the United States and its outlying possessions of
parents one of whom is a citizen of the United States who, prior to the birth of
such person, has had ten years' residence in the United States or one of its
outlying poaseacione, at leapt five of which were after attaining the age of

sixteen years, the other being an alien...."
"Sec. 205. ... a child born out of wedlock ... if the mother had the
nationality of the United States at the time of the child's birth, and had
previously resided in the United States or one of its outlying possessions,
shall be held to have acquired at birth her nationality status."

If the respondent was legitimate, she did not acquire United
States citizenship, pursuant to the provisions of section 201(g),
because her citizen parent had not resided ten years in the United
States prior to her birth. If respondent was illegitimate, the
provisions of section 205 were applicable and she acquired United
States citizenship at birth through her United States citizen
mother. We therefore must determine whether the respondent
was legitimate or illegitimate.
It appears that the respondent's parents were free to marry
each other. Respondent's father, Luciano, gave a sworn statement
(Ex. 14A) in which he testified that he was married two times
ceremoniously before he started living with Ana. He testified that
his first wife died about 1918 and that his second wife and he were
divorced in Reynosa, Mexico, prior to 1947; he could not recall the
exact year. Whether the respondent's parents did marry is a
question before us.
609

Interim Decision #226'7
Validity of marriage is governed by the law of the place of the
alleged celebration; in this case the legal jurisdiction concerned is
the country of Mexico, State of Tamaulipas. The Service contends
that the sexual relationship of respondent's parents constituted an
informal marriage according to a provision of the Civil Code of the
State of Tamaulipas which was in effect during most of the time
that the respondent's parents lived together:
"Article '70: For the purposes of this law, marriage shall be considered, to be
the union, the cohabitation, and the continuous sexual relations of one man
and one woman." 1

This provision was challenged in the Mexican courts. The Supreme
Court of Mexico ultimately held it to be unconstitutional as
contrary to Article 130 of the Mexican Constitution:
"Marriage is a civil contract. This and other acts concerning the civil status
of persons are within the exclusive competence of civil officials and authorities in the manner prescribed by law...."

The Mexican Supreme Court held that Article 70 of the Civil Code
of Tamaulipas violated two principles of Article 130 of the Mexican
Constitution (1) the requirement of involvement by civil authorities in the performance of marriages, and (2) the requirement of
registration of marriages, Virginia Reyes vitcda de Hinojosa v. Jose
Hinojosa, Suprema Corte de Justicia, July 1, 1954.
In deciding whether respondent's parents were married, we
must determine whether the relationship would he considered a

marriage by the courts in Mexico if the question arose there. The
constitution of Mexico states that marriage is within the exclusive
jurisdiction of civil authorities. The supreme court of Mexico has
declared that marriage cannot be created informally because the
constitution requires involvement of civil authorities. Thus it is
clear that if the relationship before us were judicially adjudicated
in Mexico it would be determined not to be a marriage. Inasmuch
as Mexico would not hold the relationship to be a marriage, we
must find accordingly that the respondent's parents were not
married to each other.

Even absent a marriage of the parents, the Service contends
that respondent is legitimate because Articles 268 and 269 of the
Civil Code of the State of Tamaulipas provide that void marriages
produce all "civil effects" in favor of the children. The respondent
is not the issue of a void marriage; respondent is the issue of no
marriage. Therefore whatever the intended effect of Articles 268
and 269, they do not apply to her.2 Respondent is illegitimate. As
1 Article 70 was in effect 1940-1961.
2 The respondent's counsel contends that the sole purpose of these provisions
was to assure children of void marriages a right to support from their fathers.
He claims that these provisions do not relate to inheritance or any other rights.

610

interim Decision #2267
such she acquired United States citizenship through her mother
pursuant to section 205 of the Nationality Act of 1940.
ORDER: The appeal is sustained. The order of deportation is
withdrawn and the proceedings are terminated.
BEFORE THE BOARD

(October 2, 1973)
The Service moves us to reconsider our decision of March 5,
1973. The motion will be denied.
In support of its motion, the Service asserts two legal propositions: (1) a voidable marriage is valid until declared void, and (2)
children of void marriages are legitimate, pursuant to Mexican
law. These propositions, developed to protect the integrity of
marriage recordsl, assume that the parties have gone through the
form of marrying but that there is a legal defect or impediment to
their marriage.
The Immigration and Naturalization Service contends that the
respondent's parents were married by operation of law, pursuant
to Article 70 of the Civil Code, Tamaulipas, the state wherein they
resided. Article 70, under which there would be a marriage here, is
not dispositive, (If it were, there would be a valid marriage here,
not a voidable one.) We construe, the law of Mexico as did the

Supreme Court of Mexico and conclude that there never was any
marriage to begin with.
We recognize that the law of Mexico appears to have an internal
conflict between federal and state authorities as to whether
informal marriages can be created there. It appears that if a
relationship such as that of the respondent's parents were tested
in the state courts in Tamaulipas, it would be deemed to have been
a marriage, Matter of Villarreal, Villanueva Villarreal and Perez
Mantillas as proxy for Villanueva, 724/960, Court of First Instance
of the Fourth Judicial District of Tamaulipas, November 16, 1960,
but that if it were tested in the federal Supreme Court, it would be
deemed not to have been a marriage. Virginia Reyes viuola do
Hinojosa v. Jose Hinojosa, Suprema Corte de Justicia, July 1, 1954.
The Service argues that the federal decision should be disregarded
because, in the Mexican legal scheme, decisions of the federal
Mexican Supreme Court do not operate to repeal state legislation
nor does the doctrine of stare decisis prevail? The position of the
That purpose cannot really be furthered in the case of an unrecorded,
informal marriage, such as is claimed to be the case here.
2 A report prepared by the Library of Congress dated October 7, 1968 (Ex. 12)
so states, but it also states that precedent can become hintiing on lower courts

611

interim Liecibion
Service is that the Tamaulipas state statute, left unrepealed by
the Supreme Court decision, effectively created informal marriages. These relationships would not be considered marriages,
however, by the federal Mexican Supreme Court.
It is not appropriate for the United States Government to
consider a relationship such as that of the respondent's parents to
be a marriage while the federal Mexican Supreme Court would not
do so. We deem it advisable to follow the federal interpretation of
Mexican law.
ORDER: The motion is denied.
BEFORE THE ATTORNEY GENERAL

(March 7, 1974)
This matter is before me for review pursuant to 8 GFR
§ 3.1(h)(1)(iii) upon a referral by the Board of Immigration Appeals
at the request of the Immigration and Naturalization Service. The
Board has denied a motion of the Service for reconsideration of the
Board's order sustaining an appeal from the decision of a special
inquiry officer ordering respondent deported.
Respondent was born in Tamaulipas, Mexico on February 25,
1949. Her father is a Mexican citizen but her mother, having been
born in Sebastian, Texas, is an American citizen. Respondent and
her husband entered the United States without documents on
December 18, 1967. On June 10, 1969 the Service initiated deportation proceedings against respondent and her husband, Rodolfo
Hernandez-Torres. They were found deportable, and an order for
voluntary departure was issued September 10, 1969. When they
did not depart voluntarily, the husband was arrested and was
deported on December 18, 1969, but respondent remained in the
United States. On August 28, 1970 the Service moved to reopen
respondent's case because of a question whether she had derived
United States citizenship from her mother. The Special Inquiry
Officer found that she had not, but the Board reversed.
Under the Nationality Act of 1940,* which controls in this case,
the question of respondent's citizenship depends upon whether she
is legitimate or illegitimate under Mexican law. If she is legitimate, than Section 201 of the Act applies. That section permits a
pursuant to the law of Amparo of 1936, as amended, but that adeqaute digests
and indices were not available to determine whether the Virginia Reyes case,
supra, ever became a fixed precedent. This leaves open the possibility that it did.
* Act of October 14, 1940, ch. 876, 54 Stat. 1137. 8 U.S.C_ § 605, 54 Stat. 1137
(1940) was repealed June 27, 1952, ch. 477, Title IV, § 403(a)(42), 66 Stat. 280, eff.
December 24, 1062.

612

Interim Decision #2267
child born outside the United States to derive citizenship from one
citizen parent only if the citizen parent has had ten years'
residence in the United States prior to the birth of the child. Since
respondent's mother did not have the requisite duration of residence, respondent would not derive citizenship if Section 201 is
applicable. On the other hand, if respondent is illegitimate, then
Section 205 of the Act applies. That section permits an illegitimate
child to derive citizenship from a citizen mother regardless of the
mother's duration of residency in the United States. Accordingly,
if Section 205 applies, respondent would be a United States citizen.
On the basis of the record before me, I have concluded that
respondent is legitimate as a matter of Mexican law and cannot
therefore derive United States citizenship from her mother.
From the record before me it appears to be undisputed that
respondent's parents lived together as man and wife in Tamaulipas, Mexico from 1947 until 1964 and that respondent is the child
of that union. There is no copy of a marriage registration certificate of respondent's parents in the record and both parents have
indicated in their statements that no ceremonial marriage (civil or
religious) ever took place. At the same time, the record contains
certified copies of the birth registrations of respondent and her
two sisters. Respondent's certificate indicates that she is the
"daughter of registered matrimony." Notations on he birth registrations of both of her sisters read "civil union -presented marriage record". There is nothing in the record to explain the
inconsistency between the indication on the birth registrations
that there was a formal marriage and the absence of any record of
a marriage registration, coupled with the statements of both
parents that they were not formally married. It should be noted,
however, that the only documentation in the record suggests an
official, formal marriage.
Article 130 of the Constitution of Mexico, in force at the time of
respondent's birth, provides:
"Marriage is a civil contract. This and other acts concerning the civil status
of persons are within the exclusive competence of civil officials and authorities in the manner prescribed by law. These acts shall have the force and
validity attributed to them thereby."

Pursuant to this Article only marriages contracted in accordance
with civil formalities are recognized. Despite this Article, however,
the law of the State of Tamaulipas where respondent's parents
lived, recognized common law marriages during the period from
1947 until 1961. Article 70 of the Civil Code of Tamaulipas provided:
"Marriage shall be considered, for the purposes of this law, to be the union,

613

Interim Decision #2267
cohabitation, and a continuous sexual relationship between a man and a
woman."

Thus, the law of the place where respondent's parents lived and
where she was born recognized common law marriages as legally
valid, even though the Constitution of the country required civil
formalities.
The Supreme Court of Justice of Mexico held Article 70 of the

Civil Code of Tamaulipas to be unconstitutional in 1954. 1 Virginia
Reyes viuda de Hinojosa v. Jose Hinojosa Silva, cited in Ortiz
Urquida, Raul, Matrimonio por comportamiento. Mexico, D.F.,
Editorial Stylo, 1955 (Thesis). Since Mexico does not have the
doctrine of stare decisis,2 however, this decision is binding only on
the parties before the court and does not have the effect of
automatically invalidating other marriages recognized under the
Tamaulipas Civil Code. Furthermore, in Tamaulipas, marriage
enjoys the presumption of validity until it is dissolved either by
judicial decision or, in some cases, by official administrative action.3 No such action has occurred with respect to the marriage of
respondent's parents.
The material in the record with respect to Mexican law supports
the view that the marriage of respondent's parents, while possibly
voidable, would not be considered void in Mexico, absent some
official action declaring it so.
Even if this interpretation of Mexican law is incorrect, however,
it appears that regardless of the legal state of the marriage, if the
union was entered into in good faith, the children would be treated
as legitimated under both the Federal Mexican Code and the Civil
Code of Tamaulipas. The preamble to the Civil Code of Tamaulipas
states•4
Marriage-is not defined [by the code] as a contract in the sense that the law
generally treats this latter institution. It is rather an actual situation capable
of producing consequences in the field of law regardless of formalities.

The respondent's parents' marriage pre - dates this decision. Moreover, this
decision does not invalidate marriages entered into pursuant to Article 70 of the
Code not before the Court under Article 107, Section II of the National
Constitution.
Report of Dr. Rubens Medina, Hispanic Law Division, Law Library, Library
of Congress, June 29, 1971; Report of Mr. Armando E. Gonzalez, Senior Legal
Specialist, Hispanic Law Division, Law Library, Library of Congress, October 7,
1968.
3 Codigo civil para. el Estado de Tamaulipas, Mexico, D.F., Editorial Culture,
1940. Chapter IV, Arts. 2155 to 2157. See also Art. 239 of the Mexican Civil Code
stating that "a marriage has in its favor the presumption of being valid; it shall
be considered null only when so declared by a definitive judgment."
4 Ortiz Urquidi, Raul, Mixtri -munio per comportainionto. Mexico, D.F., Editorial
Stylo, pp. 27-28, 1955 (Thesis).

614

Interim Decision #2267
The elimination of formalities, it could be argued, puts marriage in the
category of unions advocated by supporters of so-called "free love." But
nothing could be further from the truth. It is clear that the intention of the
drafters was to level off the scale of justice recognizing de facto unions as
having the capacity to produce legal consequences formerly acknowledged to
marriages formally celebrated.

These informal unions under the Civil Code of Tamaulipas constitute a marriage for all legal purposes, including the legitimacy of
the issue of such unions.
Articles 268 and 269 of the Civil Code of Tamaulipas provide that
all the civil effects of marriage apply to the children of such a
union even if the union itself is void. As the child of such a union,

respondent should be treated as legitimate even if her parent's
marriage was void ab intitio as a matter of Mexican law.
While the only documentation in the record suggests a formally
registered marriage of respondent's parents, I cannot ignore the
statements that this, in fact, was not the case. Regardless of the
nature of the marriage, however, I conclude that respondent
should be considered legitimate as a matter of Mexican law and
that she therefore did not derive United States citizenship from
her mother. Accordingly, the order of the Board of Tmmigration

Appeals is vacated and the case remanded to the Board for
further proceedings consistent herewith.

615


Interim Decision #1193U

MATTER OF PIEDRA

In Adjustment of Status Proceedings
A-11884060-1
A-12831083
Decided by Regional Commissioner Arne 19, 1968
A

native and citizen of Cuba who was last inspected and admitted to the united
States on January 1, 1959 is ineligible for adjustment of status to that of a
permanent resident under section 1 of the Act of November 2, 1966, as the
statute requires inspection and admission or parole subsequent to January 1,
1959.

DISCUSSION: These cases relating to a man and wife and their
16-year-old son come forward by certification from the District Director, San Juan, Puerto Rico, who denied the applications on the
basis that the applicants have not been inspected and admitted or
paroled into the United States subsequent to January 1, 1959, as contemplated by the statute.
The applicants are all natives and citizens of Cuba born in Havana.
They last entered the United States on January 1, 1959 at which time
they were inspected and admitted into the United States as nonimmigrant visitors for one month. They were granted extensions of their
temporary stay to the end of 1959. They failed to depart and all were
granted an indefinite period of time within which to depart voluntarily from the United States.
The pertinent part of the Act of November 2, 1966 states that :
The status of any alien who is a native or citizen of Cuba and who has been
inspected and admitted or paroled into the United States subsequent to January 1, 1959 . . . may be adjusted . . . to that of an alien lawfully admitted

for permanent residence ... (italic supplied).

The sole question here is whether the applicants have in fact been
inspected and admitted or paroled into the United States subsequent
to January 1, 1959. It is clear that the granting of extensions of stay
to them subsequent to January 1, 1N9 did not constitute the inspection
and admission or parole into the United States contemplated by the
statute, nor did the later grant of indefinite voluntary departure.
788

The exact wording of the Act is specific, clear and unambiguous
in requiring the alien to have "been inspected and admitted or paroled
into the United States subsequent to January 1, 1959." The meaning
of the word "subsequent" is equally clear both in common usage and at
law. Black's Law Dictionary, Fourth edition, and Webster's International Dictionary, unabridged, 2nd. edition, both define the word
"subsequent" as meaning "following in time; coming or being later
than something else." The applicants' arrival, inspection and admission
all on January 1, 1959 cannot be construed as having occurred subsequent to January 1, 1959. They are, therefore, not eligible for adjustment of status and there is no alternative but to deny their applications.
ORDER: The decisions of the District Director, San Juan, Puerto
Rico, are affirmed and the applications are denied.

789


Interim Decision #1962

MATTER OP LONGS WORTH

In Deportation Proceedings
' A-12732521
Decided by Board April 24, 1969
Respondent, a native of British Honduras, is precluded by the provisions of
section 244 (f) (3) of the Immigration and Nationality Act, as amended,
from establishing statutory eligibility for suspension of deportation since
British Honduras,, a territory bordering the Caribbean Sea, is an "adjacent island" within the purview of that term as defined by section
101(b) (5) of the Act [Matter of Cadle,10 L & N. Dec. 40, overruled].
CHARGE:

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant visitor—student--remained longer.
ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney

ON BEHALF OF RESPONDENT:
Esther Kaufman, Esquire
1028 Connecticut Avenue, N.W.
Washington, D.C. 20036
Gertrude K. Weiner, Esquire
(Attorney of record)
341 Washington Street
Brighton, Massachusetts 02135

The respondent appeals from an order entered by the special
inquiry officer on July 8, 1968 granting him voluntary departure
in lieu of deportation as an alien who is deportable under the provisions of section 241 (a) (2) of the Immigration and Nationality
Act. Counsel on appeal seeks a remand of the case for consideration of the respondent's eligibility for suspension of deportation.
The respondent is a native of British Honduras and a citizen of
the United Kingdom and Colonies. He arrived in the United
States on November 14, 1961 as a refugee from a hurricane and
was paroled. He was granted the status of a nonimmigrant visitor on December 8, 1961 at Boston, Massachusetts. His status was
changed to that of a student (F 1) and on June 25, 1965, his
-

temporary stay was extended to July 2, 1966. He has remained in

225

• Interim Decision #1962
the United States subsequent to July 2, 1966 and is deportable as
charged in the order to show cause.
Counsel, during oral argument, requested a remand of the case
for consideration of the respondent's eligibility for suspension of
deportation under the provisions of section 244 (a) (1). Counsel
points to the fact that pursuant to the Board's decision in Matter
of Cadle, 10 I. & N. Dec. 40 (1962), the respondent does not come
within the proscription of section 244 (f) (3) of the Immigration
and Nationality Act. We held in Cadle (supra) that British Honduras is not an "adjacent island" within the purview of section
101 (b) (5) of the Act because in fact it is not an island. As for
that portion of section 101 (b) (5) which follows the 13 named
countries and islands and reads "and other British, French and

Netherlands territory or possessions in or bordering on the Caribbean Sea" (emphasis supplied), our decision in Cadle noted that
British Honduras is surrounded by land with the exception of the
northeastern and eastern boundaries which border on the Bay of
Honduras or the Gulf of Honduras.
Our decision in Cadle (supra) relied upon the fact that most
maps show the Gulf of Honduras as the body of water on which
British Honduras borders. We have before us an opinion of The
Geographer, Office of Strategic and Functional Research, Department of State, dated April 3, 1969 which states, "British Honduras conforms'
onforms to the geographical description of being a territory
bordering the Caribbean Sea." He refers to the Gulf of Honduras
as an "indefinitely labeled body of water" which "is an open embayment of the Caribbean Sea." Accordingly, we hereby overrule
our decision in Matter of Cadle, 10 I. & N. Dec. 40, that British
Honduras is not an "adjacent island" within the meaning of section 101(b) (5) of the Immigration and Nationality Act (8 U.B.C.
101(b) (5) ). The respondent, therefore, does come within the
proscription of section 244 (1) (3) of the Immigration and Nationality Act and is ineligible for suspension of deportation as an
alien who is a native of "an adjacent island named in section
101(b) (5) " of the Act.
Section 244(f) of the Act also contains a proviso which states
that the Attorney General may in his discretion suspend the deportation of an alien who is a native of an island, territory or
possession in or bordering on the Caribbean Sea "if such alien establishers to the satisfaction of the Attorney General that he is
ineligible-to obtain a [special] immigrant visa." Counsel seeks a
remand of the case to provide the respondent an opportunity to
establish that he cannot obtain an immigration visa for the rea226.

Interim Decision #1962
son that he is unable to obtain a labor clearance as required
under section 212 (a) (14) of the Act.
The respondent has been physically present in the United
States for slightly more than seven years. He has been in a protected status for practically all of this time. Counsel has not made
out a case for suspension of deportation over and above the possibility that the respondent may be unable to obtain an immigration visa because of the labor certification requirement of section
212 (a) (14). Under the circumstances, we will deny counsel's request for a remand. The appeal will be dismissed.
Since the execution of the order entered by the special inquiry
officer on July 8, 1968 has been stayed during the pendency of
this appeal, we will provide for the voluntary departure of the respondent within 30 days from the date of this decision. An appropriate order will be entered.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed:
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special
inquiry officer's order.

227


Interim Decision #2475

MATTER OF LI GANOZA
In Visa Petition Proceedings
A-21773131
Decided by Board March 2, 1976
Since Mexican divorce decrees are not recognized in the State of New York unless the
petitioning spouse has appeared in person and the answering spouse in person or by
attorney, and petitioner, a resident of New York, has stated under oath that he
personally appeared in court in Mexico and initiated divorce proceedings against his
first wife, the case, on appeal in visa petition proceedings, is remanded so that petitioner may offer additional corroborative evidence to establish compliance with the
personal appearance requirement; so that the Mexican decree may be incorporated into
the record file; and so that ,all letters which pertain to this case may be located and
similarly incorporated, a new de-eision thereafter to be entered by the district director
and appropriately served on interested parties.

ON BEHALF OF SERVICE:

ON BEHALF OF PETITIONER:
Stephen Singer, Esquire
Barst & Mukamal.
127 John Street
New York, New York 10038

George Indelicato
Appellate Trial Attorney

The United States citizen petitioner applied for immediate relative
status for the beneficiary as his spouse under section 201(b) of the
Immigration and Nationality Act. In a decision dated September 9,
1975, the district director denied the petition. The petitioner has appealed. The record will be remanded to the district director.
The petitioner, a New York resident, has filed a visa petition on
behalf of his second wife. The issue on appeal is whether the petitioner's
Mexican divorce from his first wife was validly obtained.

In New York, Mexican decrees are not recognized unless the petitioning spouse has appeared in person and the answering spouse in person
or by attorney. Rosenstiel v. Rosenstiel, 262 N.Y.S.2d 86, 209 N.E.2d
709 (1965).
The petitioner has stated under oath that he personally appeared in
the Second Civil Court of Chihuahua, Mexico and initiated divorce
proceedings on January 25, 1966. We have concluded that additional
corroborative evidence is required, however, to establish compliance
with the personal appearance requirement of Rosenstiel.
593

Interim Decision #2475
We shall remand the record so that (1) the petitioner may offer such
evidence and (2) the Mexican decree which the petitioner apparently
submitted to the district director may be incorporated into the record
file and (3) all letters which pertain to this case may be located and
similarly incorporated.
We note in passing that the answering spouse's appearance in this
divorce action satisfies the Rosenstiel requirement. The record contains
a power of attorney executed by the spouse approximately eighteen
months after the final judgement of divorce was rendered in Mexico.
She thereby authorized a Mexican attorney, Amadeo Saroldi, to make a
belated appearancefor her in the Chihuahua action and to state that she
"agrees expressly with said judgement and that she waives her right of
appeal of said judgement."
Mr. Saroldi duly made the appearance and on August 25, 1967, the
Mexican court appended to its January 28, 1966 judgement a decision
accepting the defendant's appearance and submission.
In a parallel factual situation, the New York Court of Appeals held
that although the plantiff's Mexican divorce judgement was defective
under New York law when rendered, it qualified for recognition as of
the date of the defendant's submission to the Court and her consent to
the decree. Ramm v. Ramm, 522 N.Y.S.2d 726, 271 N.E.2d 558 (1971).
See also, Hytell v. Hytell, 2M N.Y.S.2d 851 (Sup. Ut., Special Term)
(1964).
We shall remand the record for the reasons indicated. Before returning the record to the Board, the district director should enter a new
decision, stating his reasons, and make appropriate service on the
interested parties in accordance with Matter of To, 14 I. & N. Dec. 679
(BIA 1974).
ORDER: The record is remanded.

594


Interim Decision #2523

MATTER. OF LIEU
In Section 245 Proceedings
A-20622233

Decided by Acting District Director April 6, 1976
(1) Applicant her been continuously employed by the United States Embassy in Saigon,
Vietnam for 19 years, until April 30, 1975, when the Embassy was closed upon the
capitulation of the Government of the Republic of Vietnam. Thus her employment
abroad was terminated involuntarily by both applicant and the United States Government.
(2) Application for status as a permanent resident under section 245 is granted in the case
of an applicant otherwise eligible where the Coordinator of Ombudsmen, Former
Employees of Indochina Missions recommended applicant be accorded special immigrant status under section 101(a)(27)(E) [now section 101(1)(27)(D)1 on the Laois of her
honorable employment by an agency of the United States Government abroad for a

period exceeding 15 years, and such recommendation was concurred in by the Chief of
the Advisory Opinions Branch of the Visa Office of the Department of the State
exercising the delegated authority of the Secretary of State.
ON BEHALF OF RESPONDENT: Pro se

The applicant is a forty-two year old, unmarried female who was born
in Saigon, Vietnam. She was last admitted to the United States as a
visitor for pleasure on April 22, 1975 with permission to remain in the
United States until October 31, 1975. She maintained status until May 27,
1975 at whic:a time she requested processing as a refugee and for
permission to accept employment in the United States. Her status as a
visitor was terminated and she was authorized to accept employment.

Although she was initially accorded until November 26, 1975 to effect her
departure from the United States, she was subsequently permitted to
remain in the United States indefinitely as a refugee pursuant to the
written directive of the Deputy Commissioner, United States Immigration and Naturalization Service dated June 3, 1975.
On July 8, 1975, the applicant filed an application with the District
Office of the Service in Washington, D.C. for the adjustment of her status
to that of a lawful permanent resident of the United States as a special
immigrant as defined by Section 101(a)(27)(E) of the Immigration and
Nationality Art, as amended, on the basis of her claim that she had been

honorably employed by an agency of the United States Government for a
786

Interim Decision #2523
period in excess of 15 years abroad. In support of her application, she
furnished a statement signed by the Supervisory Personnel Officer,
United States Embassy, Saigon, Vietnam certifying that she was employed at the Embassy in various positions from July 25, 1956 until April
1975; that her service was outstanding; and that in 1972 she was awarded
a step increase in salary for meritorious service. The applicant also
furnished a statement from the Chief, Advisory Opinions Division,
Bureau of Security and Consular Affair, Department of State,
Washington D.C. dated January 20, 1976. That statement verifies that
the coordinator of Ombudsman, Former Employees of Indochina Mission, United States Department of State recommended that the applicant
be granted special immigrant status. The Chief Advisory Opinions
Branch related further that the visa office pursuant to the delegated
authority of the Secretary of State concurred in the recommendation of
the Coordinator and determined that in view of the applicants devoted
service it was in the national interest that the applicant be accorded
special immigrant status.
Section 101(a)(27)(E) of the Act provides that special immigrant status
is accorded to:
an immigrant who is an employee, or an honorably retired former employee of the
United States Government abroad, and who has performed faithful service for a total of
15 years, or more, and his accompanying spouse and children: Provided, That the
Principal Officer of a Foreign Service establishment. is his discretion, shall have recommended and finds that it is in the national interest to grant such status.

The record establishes that the applicant was continuously employed
by the United States Embassy in Saigon, Vietnam for 19 years and that
her service was deemed outstanding by the Senior Personnel Officer at
the Embassy. She was employed by the Embassy at the time of her
departure from Vietnam. She departed the Republic of Vietnam and
entered the United States on April 22, 1975. Subsequent to her departure, the United States Embassy was closed and on April 30, 1975 the
Government of the Republic of Vietnam capitulated. The applicant's
employment with the Embassy was, thereby, involuntarily terminated.
Her honorable termination of employment is attested to by the circumstances of the Embassy's closure. The Department of State has
temporarily reemployed her in the United States since May 1975. In the
absence of a recommendation from the Chief Officer of the United States
Embassy in Saigon which no longer exists, the recommendaton of the
coordinator of Ombudsman, Former Employees of Indochina Missions is
determined to constitute the required recommendation of Chief Officer of
the United States Agency abroad. The Department of State has concurred in the recommendation of the Coordinator that the applicant be
granted special immigrant status.
787

Interim Decision #2523
The record also establishes that the applicant was inspected and
admitted on arrival. She has no criminal record and there is no evidence
that she is other than a person of good moral character. She has been
examined by a Civil Surgeon designated by the United States Public
Health Service and found to be medically admissible. Eligibility for the
benefits of section 245 of the Aet has been established.

ORDER: It is ordered that the application for status as a permanent
resident under Section 245 of the Immigration and Nationality Act be
granted.

788