Interim Decision #2220

MATTER OF ATWATER
In Visa Petition Proceedings
A-20559162
Decided by Board August 17, .1973
(1) Under the law of the Dominican Republic, divorce of nonresident foreigners is

permissible provided that, while at least one of the parties is present at the
hearing and the other represented by the holder of a special power of
attorney, they expressly agree to attribute jurisdiction to the Dominican
court.
(2) Notwithstanding beneficiary in the instant case, a native and citizen of the
Philippines, presented a Dominican divorce decree purporting to terminate
her prior marriage which decree recites that she appeared before the Dominican court and that an attorney appeared to represent the husband, in the light
of evidence of record strongly suggesting that the husband's power of attorney
was a forgery, she has failed to meet the burden of establishing the legal
termination of her prior marriage and, hence, the validity of her subsequent
marriage to the United States citizen petitioner for immigration purposes.
ON BEHALF OF PETITIONER: Joe Reid, Esquire
1204 Tower Life Building
San Antonio, Texas 78205
(Brief filed)

This is an appeal from the District Director's decision to deny
the petition filed on behalf of the beneficiary to accord her status
as an immediate relative, pursuant to section 201(b), as the spouse
of a citizen of the United States, for visa issuance purposes. The
petitioner was born in the United States and is a citizen thereof.
The beneficiary is a native and citizen of the Philippines.
A petition submitted on behalf of a spouse must be accompanied
by a certificate of marriage to the beneficiary and proof of the
legal termination of all previous marriages of both wife and
husband, 8 CFR 204.2(c)(2). The record contains a Texas certificate
of marriage of the parties, dated April 7, 1972. A Massachusetts
divorce decree was submitted which indicates that the petitioner's
prior marriage was legally terminated in 1953. A Dominican
divorce decree purporting to terminate the beneficiary's prior
marriage, to Guerrero Silvestre, was also submitted, but its validity was questioned by the District Director. We agree with the
District Director and shall dismiss the appeal.

410

Interim Decision #2220
The Dominican decree recites that the beneficiary, who was the
laintiff, personally appeared before the court, while her husband,
uerrero Silvestre, was represented, and appeared, by his attorey in fact, by virtue of a power of attorney, signed the twentyrst of February 1972 before a notary public in the Republic of the
hilippines. A photocopy of the power of attorney by Mr. Silvestre,
ated February 24, 1972, is in the record. Whether the signature
iereon is actually Mr. Silvestre's, however, is questionable. He
as sworn in an affidavit, dated November 2, 1972, that he had no
Ake or knowledge of his wife's divorce from him until October 10,
372, when questioned by the United States Immigration and
aturalization Service. The record also contains a photocopy of a
tter from the beneficiary's father, in which he advises her to
,ick to her story that her husband signed the instrument in
.iestion. Notwithstanding a letter from the notary stating that
le signature of Mr. Silvestre was authentic, the evidence strongly
iggests that Mr. Silvestre's signature on the power of attorney
as a forgery.
A copy of the Dominican law under which the divorce was
2rportedly issued has been submitted by the petitioner. Article I,
iragragh (5), permits divorce of nonresident foreigners "provided
tat, while at least one of them is present at the hearing and the
,her represented by the holder of a special power-of-attorney,
Ley expressly agree to attribute jurisdiction" to the Dominican
curt by an instrument executed by a notary public. If Mr.
lvestre, the absent spouse, did not expressly agree to submit
mself to the jurisdiction of the Dominican court, then the
.oceedings were not in conformity with the requirements of
aminican law, were a fraud upon the Dominican court, and were
valid. The fact that an attorney actually appeared to "represent"

Le husband does not meet with the requirement that the absent
louse authorize an attorney to appear on his behalf, or that the
)sent spouse expressly agree to submit to the jurisdiction of the
urt.
In visa petition actions, the burden to establish eligibility lies
ith the petitioner, Matter of Brantigan, 11 I. & N. Dec. 493, 495
,1A,1966); Matter of Soo Hoo, 11 I. & N. Dec. 151, 152 (BIA,1965);
after of Yee, 11 I. & N. Dec. 27, 30 (BIA,1964); Matter of B—, 9 I. &
Dec. 521, 523 (BIA,1961). The petitioner has not met this
irden. It appears from the evidence submitted that the benefiei-

y's divorce from her prior spouse was invalid, and that consetently she is still legally married to him. Thus, she cannot be
emed the spouse of the petitioner for immigration benefits.
ORDER: The appeal is dismissed.
411


Interim Decision #2861

MATTER OF DOURAL

In Exclusion Proceedings
A-23217210
Decided by Board April 14, 1981
.
(1) Since it is evident that the alien, a Cuban applicant for asylum, was placed in exclusion

proceedings solely because he appeared inadmissible by reason of his criminal record under
section 212(2)(9) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(9), it is appropriate that a ruling be made with respect to that exclusion ground.
(2) Where there is reason to believe, by the alien's own admissions or otherwise, that
there has been a conviction and that the underlying crime Involved mural turpitude,
the burden is on the applicant for admission to establish that he is not inadmissible
under section 212(09); a finding of inadmissibility need not be supported by a record of
conviction.
(3) Where credibility is at issue, the immigration judge should make apecific findings an
to the truthfulness of the conflicting evidence presented.
EXCLUDABLE:
Order: Act of 1952—Sec. 212(a)(9) U.S.C. 1182(2)(9)1—Convicted of a crime involving
moral turpitude
Sec. 212(a)(20) 18 U.S.C. 1182(a)(20)1 Not in possession of a valid
immigrant visa
ON BEHALF OF APPLICANT:

Timothy Carmody, Esquire
1110 Grand Avenue, Suite 600
Kansas City, Missouri 64105 •

BY: Milhollsan, Chairman; Maniatis, Appleman. and Maguire, Board Members

In a decision dated September 29, 1980, an immigration judge found
the applicant excludable under section 212(aX20) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(20), denied his requests for asylum
and relief undersection 243(h) of the Act, 8 U.S.C. 1253(4 1 and ordered
him excluded and deported from the United States. The, applicant has
appealed from that decision. The proceedings will be reopened and the
record will be remanded to the immigration judge.
' Technically, the. applicant applied for asylum However, the regulations provide that
asylum requests made in deportation or exclusion proceedings "shall also be considered as
requests for withholding exclusion or deportation pursuant to section 243(h) of the Act." 8
C.F.R. 208.3(b), effective June 1, 1980.

37

Interim Decision #2861
The applicant testified with respect to his crime that he and two
others participated in the break-in of a store at about 10 o'clock at
exodus from Cuba. At his exclusion hearing, the applicant acknowledged that he had not been issued a visa or any other document entitling
him to enter this country. He also admitted that he had been convicted
in 1977 of "robbery"2 and was in the process of serving a 10 year prison
sentence imposed pursuant to that conviction when released for the
purpose of joining the Cuban boat lift.
The applicant testified with respect to his crime that he and two
others participated in the break-in of a store at about 10 o'clock at
night, 3 using a stick to pry open the door and effect entry, and stole
clothing valued at approximately 200 pesos. Questioned by the trial
attorney, the applicant conceded that he and his associates may have
taken some money ane a sewing machine as well.
At the conclusion of the hearing, the immigration judge found the
applicant excludable under section 212(a)(20) as, an immigrant without
the requisite documents. The applicant's testimony regarding his conviction record notwithstanding, the immigration judge made no finding as
to whether he is also excludable under section 212(a)(9) as an alien who
has been convicted of a crime involving moral turpitude. The immigration judge did, however, find the applicant precluded by reason of his
criminal record from establishing eligibility for asylum or section 243(h)
relief.
The statute and the regulations provide that an alien may not obtain a
grant of asylum or section 243(h) withholding of deportation, despite a
valid persecution claim, where it is determined that "there are serious
reasons for considering that the alien has committed a serious nonpolitical crime outside the United States, prior to the arrival of the alien in the
United States." Section 243(h)(2)(C) of the Act; 8 C.F.R. 208.8(f)(1)(v).
On appeal, the applicant insists that he was not convicted of a serious
nonpolitical crime.
We are unable to render a decision based upon the record now before
us. We are not satisfied on the basis of the applicant's testimony alone
that his crime, clearly nonpolitical, may be considered "serious" within
the contemplation of the Act so as to constitute a bar to the relief sought
(see generally Matter of Rodriguez-Palma, 17 I&N Dec. 465 (BIA
1980); Matter of Ballester, 17 I&N Dec. 592 (BIA 1980)), and the record
is not sufficiently developed to permit a finding on the merits of his
persecution claim (see generally Matter of McMullen, 17 I&N Dec. 542
(BIA 1980)). There is reference in the record to an "attached statement"
-

Although the applicant referred to his crime as a robbery, it appears from his description of the offense that he was actually convicted of burglary.
3 The applicant testified that he remained outside the building.
38

Interim Decision #2861
(see Form I-110) in which the applicant purportedly made an admission

against interest. Neither the applicant's statement nor his asylum
application, Form 1 589, both highly relevant to an adjudication of his
asylum request, is contained in the record file. We shall accordingly
direct that the proceedings be reopened for the admission of the foregoing documents into evidence and for further development of the record
with respect to the applicant's request for asylum.
We reopen and remand for the additional purpose of securing a finding by the immigration judge with respect to the section 212(a)(9) ground
-

of excludability. Since it is evident that the applicant was placed in
exclusion proceedings solely because he appeared inadmissible under

section 212(a)(9) by reason of his criminal record, we believe it appropriate that a ruling be made on that exclusion ground. But see Matter of
Castellon, 17 IN Dec. 616 (BIA 1981).
Where there is reason to believe—by the alien's own admissions, as
here, or otherwise—that there has been a conviction and that the underlying crime involved moral turpitude under prevailing United States
standards (see generally Matter of MeNaughton, 16 I&N Dec. 569 (BIA
1978)), it is incumbent upon the applicant for admission to establish that
he is not inadmissible under section 212(a)(9). Section 291 of the Act, 8
U.S.C. 1361. A finding of inadmissibility need not be supported by a

record of conviction. See Matter of B-, 3. I&N Dec. 1 (BIA 1947). See
generally Matter of Rodriguez-Palma, supra; Matter of Ballester,
supra.

On remand, the applicant and the Government should be accorded a
reasonable opportunity to submit whatever additiOnal evidence they
may wish to present on the questions of the applicant's admissibility and
eligibility for asylum. In the event credibility becomes an issue, it would
be helpful to the Board to have the immigration judge's specific findings
as to the truthfulness of the conflicting evidence presented.
ORDER. The proceedings are reopened and the record is remanded
to the immigration judge for further proceedings consistent with the
foregoing opinion and for the entry of a new decision.

39


Interim Decision #3:445

MATTER

Or

DAGAXL0

In Visa Petition Proceedings
A-13768111

Deckled by Board March 29, 1965
Absent a recognition of the validity of petitioner's *Wean "mail order"
divorce by the State of Washington, the State of residence and domicile of
petitioner, a 'United States citizen, it will not be recognized as valid in the
Philippine Islands for the purposes of his subsequent marriage in that
country to beneficiary, a native and citizen of the Philippines; hence, laic

subsequent marriage is invalid for immigration purposes and does not serve
to confer nonquota status on beneficiary.

The case comes forward on appeal from the order of the District
Director, Manila, Philippines, dated January 25, 1965, denying the
visa petition on the ground that the petitioner's marriage to the beneficiary is not a valid one and she is not entitled to nonquota status as
his spouse.
The petitioner, a native of the Philippines, a citizen by naturalization in the United States District Court of Washington, Washington
District, on December 17, 1956, 60 years old, male, seeks nonquota,
status on behalf of the beneficiary, a native and citizen of the Philippines, 30 years old. The parties were married at Pasay City, Philippines on December 18, 1964. The petitioner was married once
previously, the beneficiary was not previously married.
The record contains a memorandum for the file •y the District
Director dated January 7, 1965. The petitioner was questioned under
oath and stated that he had been previously married to Basirma
Labor in Bohol, Philippines and that two children were born of this
marriage; that he went to the United States in 1951 and since 1952
has b een 0, resident of Seattle, Washington, where ha owns his home; •

and that he was naturalized as a citizen of the United States on
December 17, 1956, in -Seattle, Washington. He stated he con :.
suited an attorney in Brooklyn, New York regarding a divorce from
his wife, Basilisa, and the attorney informed him that he, the attorney, would obtain a divorce in Mexico and that it would not be
109

Interim Decision *1445
necessary for the petitioner to go to Mexico. The petitioner further
testified that his first wife had never been in the -United States and
still resides in the Philippines; on November 25, 1964, through his
attorney, the petitioner obtained a divorce from his wife in the Third
Civil Court, Bravos, Chihuahua, Mexico; and that his attorney told
him he was now free to marry again. The petitioner stated that
neither he nor his wife ever went to or resided in Mexico in connection with the Mexican divorce decree. The petitioner further stated
that he returned to the Philippines in December 1964, and on December 18, 1964, married the beneficiary at Pasay City, Philippines. The
visa petition indicates that the petitioner's address in the United.

States is Seattle, Washington, that his present address is Caloocan
City, Philippines and that he and the beneficiary intend to reside in
Seattle, Washington.
The record, therefore, establishes that neither the petitioner nor his

first wife ever resided in Mexico and that the divorce obtained by the
petitioner is of the type commonly referred to as a "mail order"
divorce decree. The parties were thereafter married in the Philippines. The generally accepted rule that the validity of the marriage
is governed by the law of the place of celebration is applicable in this
case." An examination-of the marriage contract of the petitioner and
the beneficiary which is contained in the file shows the nationality of
the husband to be American and that of his wife Filipino. The petitioner, a native-born Philippine citizen, lost such citizenship by naturalization in a. foreign eountry." According to article 66 of the Civil
Code of the Philippines, when either or both of the contracting
parties are citizens or subjects of a foreign country, it shall be neces- .
sary, before a marriage license can be obtained, to provide themselves
with a certificate of legal capacity to contract marriage, to be issued
by their respective diplomatic or consular officials. Article 67 of the
Philippine Code provides that the marriage contract in which the
contracting parties shall state they take each other as husband and
wife, shall also contain: (1) the full names and domiciles of the contracting parties; (2) the age of each; (8) a statement that the
proper marriage license has been issued according to law. Ail examination of the marriage certificate and other documents fails to show
a compliance with the requirements of article *66 although the marriage license itself is not avexhibit. _Article 97 of the Civil Code of the Philippines provides that a
petition for legal separation may be filed: (1) for adultery on the

part of the wife and for concubinage, on the part of the husband as
'Matter of P—, 4 I. & N. Dec. 610 (Acting Attorney General; 1852).
'

The Civil Code 01 the Philippines, article

11Q

49 (1950 ea.).

.

Interim Decision #1445
defined in the Penal Code; or (2) for an. attempt by one spouse
against the life of the other. This provision, enacted in 1949, in
effect, abolishes divorce in the Philippinec2 3 The abolition of absolute

divorce in the Philippines may result in (1) leniency toward, annulment of marriage; and (2) change of nationality. in order to be freed
from the coercive power of Philippine law. If a divorced alien,
residing or sojourning in the Philippines desires to marry there, the
requirement imposed by the Philippine law before a license is issued
is for him to show that he has the capacity to marry under his
national law. If under his national law, the divorce obtained by him

is valid, no reason exists why he should be precluded from marrying
in the Philippines. This liberal attitude commends itself as socially
desirable from the international standpoint. The rule provides a
basis for sound international cooperation in the matter of filing

decrees
The petitioner has resided in the State of Washington since 1952,
was naturalized in Seattle, Washington on December 17, 1956, and
continues to be a United States national and a resident and domicili- ary of the State of Washington. Section 26.08.200 of the Revised
Code of Washington relating to Out-of-State Divorces—Validityprovides that a divorce obtained in another jurisdiction shall be of
no force or effect in this state if both parties to the marriage were
domiciled in this state at the time the proceeding for divorce was
commenced. Research. fails to disclose a case exactly in point in the
State of Washington. A "mail order" decree of divorce of a country
outside the United States, i.e., a decree .obtained by mail by a spouse
not domiciled in the foreign country in proceedings in which neither
the husband, nor wife appeared before the foreign tribunal and the
defendant spouse was not served with process in the divorce forum,
is invalid .and will not be recognized.° A state or country cannot
exercise through its courts jurisdiction to dissolve a marriage when
neither spouse is domiciled .within the state .° A decree of divorce
granted by a court of any country which is not the bona fide and true
domicile is valueless, unless indeed its effectiveness is recognized by
the kw eloraice7ii. 7 •
Summarizing, under the present Philippine Civil Code divorce in
the Philippines among Filipinos is abolished. A divorced alien (a
person of other than Philippine nationality) must show that he has
' Garcia & Alba, MVO Code of the Philippines (1950), p. 253.
Salongsi, Private International Law (1952 revised ed.), pp. 272-275.
5 27B. 0..1.3.. a 352.
' Restatement of the Law of Conflict of Laws, s.
'Padilla, Conflict of Laws (1959), p. 169.
4

111

Interim Decision #1445
the capacity to marry under his national law. 8 It appears that a
Mexican "mail order" divorce decree is not valid in Washington, the
State of residence and domicile of the petitioner, who is a naturalized American citizen, and therefore an alien under Philippine law:
Accordingly, the appeal from the decision of the District Director
' ed.
denying the visa petition will be dismiss
In the event the petitioner can present a certificate of legal capacity to contract marriage in the Philippines issued by a United States
consular officer, such certificate may be submitted together with a
motion to reopen the proceedings.

ORDER: it is ordered that the appeal be and the same is hereby

aifunigsed.

• Supra,t This view is in seeord with the view of the Attorney General

in

Matter of P—, 4 L & N. Dec. 610.

112


Interim Decision #1774

MATTER OF SANABRIA

In Adjustment of Status Proceedings
A-12446809

Deckled by Regional Commissioner March 13, 1967
Admission as a crewman does not preclude a native and citizen of Cuba from
establishing eligibility for adjustment of status under section 1 of the Act of
November 2, 1966.
This matter is before the Regional Commissioner on certification by
the District Director at Hartford, Connecticut who ordered that
the application for permanent residence be approved.
The applicant is an unmarried Cuban citizen, born December 15,
1941 at Havana, Cuba. He was first admitted to the United States at
Miami, Florida on November 26, 1960 as a nonimmigrant crewman
under section 101(a) (15) (D) of the Immigration and Nationality Act,
as amended. He made four subsequent entries in the same capacity, the
last on April 15, 1961. On August 7, 1961, he was granted indefinite
voluntary departure as a Cuban refugee.
The record further discloses that the alien was arrested in. New
York City on June 6, 1965 while operating an automobile which he
had borrowed from a friend. In the vehicle were found a watch, automatic pistol and movie camera, all of whch had been stolen from a
home in Fairfield, Connecticut. The applicant was charged with violation of section 1897 of the New York State Penal Law (carrying a
dangerous weapon), but the charge was dismissed. As a result of the
same incident, he was rearrested at Fairfield, Connecticut on. June 21,
1965 and charged with breaking and entering with criminal intent
and receiving stolen goods in violation of Connecticut General Statutes
53-76 and 53-65. The first count was "I-rolled" in the Circuit Court at
Fairfield on July 17, 1965. He was convicted on the second count of receiving stolen goods valued under $250 and was fined $50. This crime is
classifiable as a petty offense under section 1 (3) of Title 18, United
States Code, thereby overcoming the element of excludability under
section 212(a) (9) of the Immigration and Nationality Act, as
396

Interim Decision #1774
amended. This is the applicant's only conviction for violation of law
and there are no other derogatory factors in his case.
The instant Form I-485A, Application by Cuban Refugee for Permanent Residence, was filed by the alien on December 7,1966 under
the provisions of section 1 of the Act of November 2, 1966 (Public
Law 89-732) which states as follows:
• • • That, notwithstanding the provisions of section 245(e) of the Immigration and Nationality Act, 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 and has been physically present in the United
States for at least two years, may be adjusted by the Attorney General, in his
discretion and tinder such regulations as he may prescribe, to that of an alien
lawfully admitted for permanent residence if the alien makes an application for
such adjustment, and the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence. Upon approval of such
an application for adjustment of status, the Attorney General shall create a
record of the alien's admission for permanent residence as of a date thirty
mouths prior to the filing of such an application or the date of his last arrival
into the United States, whichever date is later. The provisions of this Act shall
be applicable to the spouse and child of any alien described in this subsection,
regardless of their citizenship and place of birth, who are residing with such
alien in the United States.

In the matter at hand, the issue has been raised as to whether the
applicant, who entered the United States as a crewman, is eligible to
adjust his status to that of a permanent resident in view of section
245 of the brunigration and Nationality Act, as amended, which provides in pertinent part as follows :
(a) The status of an alien,

other than an alien orounnon,

'who was inspected

and admitted or paroled into the United States may be adjusted by the Attorney
General, in his discretion and under such regulations as he may prescribe to
that of an alien lawfully admitted for permanent residence if (1) the alien
makes an application for such adjustment, (2) the alien is eligible to receive an

immigrant visa and is admissible to the United States for permanent residence,
and (8) an immigrant visa is immediately available to him at the time his application is approved.
•
•
•
•
•
(c) The provisions of this section shall not be applicable to any alien who is
a native of any country of the Western Hemisphere or of any adjacent island
named in section 101(b) (5); (Emphasis aupplied)

The introductory clause of the Act of November 2, 1966 exempts
any alien who is a native or citizen of Cuba from the restrictive provisions of section 245(c) of the Immigration and Nationality Act, as
amended, insofar as removing the bar to adjustment for natives of the
Western Hemisphere and adjacent islands. However, the Act of November 2, 1966 is not amendatory legislation to section 245 of the
Immigration and Nationality Act, but rather provides a means for

397

Interim Decision #1774
granting Cuban refugees permanent residence which is separate and
distinct from section 245(a). Therefore, we find that the restriction
on crewmen contained in section 245(a) is not applicable to aliens who
are eligible in every other respect for adjustment of status as Cuban
refugees. This position is further buttressed by the language of section
of the Act of November 2, 1966 which states that ". . . the status
of any dien who is a native or citizen of Cuba. * " * may be adjusted. . . ." (Emphasis supplied). Under the circumstances, the following order will be entered.
It is ordered that the application for permanent residence be approved and that the alien's admission be recorded as of June 7, 1964.

398


Interim Decision #1758

Ittak ix. or lklAv
In Deportation Proceedings
A-15881685
Decided by Board July 21, 1967
withholding of deportation pursuant to section 243(h), Immigraand Nationality Act, as amended, on a claim of subjection to economic
persecution by the British government if deported to Hong Kong, is denied
in the case of respondent, a citizen of the Republic of China on Formosa, who,
as well as his wife and children, was horn In Bong Kong and has lived there
all his life; who does not allege that he or any of his family have ever been
subjected to persecution there; and who has presented no substantive evidence that if deported to Hong Kong he would be persecuted by reason of his
race, religion or political opinion.

Application for
tion

GRAMME :

Order: Act of 1952—Section 241(a) (2) IS IIS.O. 1251(a) (2)1—Entered the
United States after haiing been refused permission to
land temporarily as a crewman.
ON BEHALF OF RESPONDENT

: Thomas

Sung,
217 Park flow

Esquire

New York, New York 10038
(Brief tiled)

The case comes forward on appeal from a decision of the special
inqui4Officer denying respondent's motion to reopen the proceedings
to allow him to file an application for withholding of deportation
under section-248(h) of the Imniigration and Nationality Act.
The record relates to a 55-year-old married male alien, who was
born in Hong Kong and who is a native of China and a citizen of the
Republic of China on Taiwan (Formosa), and who arrived in the
United States as a crewman. His ship entered the port of New York
on August 24, 1268, and after examination by an officer of the United
States Immigration and Naturalization Service he was refused permission to land. However, he did effect'entry on August 27, 1968 with-

out authority. He has remained in the United States since that date.
Daportability is conceded and is thus not in issue.
A brief summary of the proceedings, to date would appear to be
305

Interim. Decision #1753
in order. On May 18, 1966, the special inquiry officer found respondent
deportable as charged, but granted voluntary departure. Respondent
failed to leave as and when directed and consequently a warrant of
deportation was issued on June 17, 1966. Subsequent to this, respondent twice filed applications for stays of deportation with the District Director, New York, both of which were denied. Then followed
the motion to reopen the proceedings to allow an application for
withholding of deportation under section 243 (h). On June 1, 1967,
the special inqury officer denied the motion, on the basis that respondent had totally failed to present any substantive evidence that he
would be persecuted if deported to Hong Kong by reason of his race,
religion or political opinion. The present appeal is from this denial.
In cooking to have deportation withheld under section 243(h), the
burden is upon respondent to show that he -would, in fact, be persecuted
on the basis of race, religion or political beliefs. This is required by 8
CFR 242.17 (c) -which specifically places upon the applicant the burden
of proof.' A careful and thorough review of the entire proceedings
in this case, including the newspaper clippings submitted into evidence,
fails to show that the respondent has met 'the required burden of
proof.
Respondent has came forth with a strange admixture of contentions.
The first is that if he should return to Hong Kong he would be subjected to economic persecution by the British Government there. He
states that it is common knowledge that under the present conditions
in the British Crown Colony of Hong Kong an alien such as himself
would be subject to harassment by the British Government there. We
do not agree that this is a matter of common knowledge, and respondent
has not come forth with one item of evidence that he would be persecuted. He, as well as his wife and children, were all born in Hong
Kong and have lived there all their lives. (The record reveals conflicting information as to -whether respondent has three of four children.
When he testified at the hearing on May 13, 1966 he stated he had three
children, but later, on May 10, 1967 when a petition was filed to accord
him a sixth preference visa status he claimed to have four children, all
born before the time of the hearing.) Respondent does not allege that
he or any of his family have ever been harassed, arrested, threatened or
molested by the authorities and he does not give any reasons why such
perSecution would now take place if he returned to Hong Kong. We
reject this first contention. .
Respondent's second contention on appeal is that there is the possibility that the Red Chinese Government on the mainland might take
See also Matter. pi Sihasale, Int. Dec. No. 1565;
207, cert. den. 365 U.B. 860, 5 L. ed. 2d 823.

306

Kern

Ng v. PIMA 279 F. 2d

Interim Decision #1753
over control of Hong Kong and if this should come to pass he would
be persecuted by the new Communist government. It is a matter of
common kowledge, which is supported by the newspaper articles
submitted by the respondent, that since May 1967 there have been repeated, violent riots occurring in Hong Kong, admittedly sponsored
and encouraged to harass Hong Kong's British Government, by Chinese communists. But respondent's conclusion that these events will
result in the Chinese mainland communists taking over control of Hong
Kong from the British is both speculative and conjectural. Indeed,
within the past week reports coming out of Hong Kong by way of
Reuters and Associated Press indicate that recent strong and concerted
action by Hong Kong police and British army troops has greatly curtailed the terrorism and violence of plat. weeks.
The possibility that at some future time there might be a change in
the government of a. country is, a much too tenuous basis to support a
present withholding of deportation to that country. For respondent
to contend that there might eventually be a change in the government
of Hong Kong, and if such does occur he might be subject to persecution
by the new regime, falls far short of entitling respondent to the relief
provided by section 248 (h). As we said in Matter of Vardjan, 10 I. & N.
Dec. 567:
Respondent argues that section 248(h) contemplates . . . protection against
any future vagaries in the political scene under which the likelihood of physical
persecution may be greater than at the present time. We do not agree. Such
future possibilities are not amenable to proof and consequently their determination is not amenable to the adjudicative process. Only where the likelihood of
physical persecution presently exists in a particular situation is withholding of

deportation warranted.
Finally, with complete 'inconsistency respondent furnishes us with
a photocopy of a completed Form 1-140, which is a petition to afford

him a sixth: preference visa classification, and which was filed May
10, 1967. It is recited on this form that if the petition is granted he
will travel to Hong Kong to apply to the American Consulate there
for a visa to enter the United States. (Respondent, being an alien
crewman, is ineligible for a section 245 adjustment.) Thus, in one
breath respondent pleads that he not be deported to Hong Kong for
fear of persecution and in the next breath lie states he plans to voluntarily travel there to obtain a visa.
We will dismiss the appeal and will order that respondent be deported forthwith.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
It is further ordered that the raspondent be deported to Hong Kong
on the charge contained in the order to shoW cause:
307


Interim Decision #1504

MATTER

or

RUSSELL,

et a2.

In Visa Petition Proceedings
A-13168161-2-3
Decided by Deputy Associate Commissioner-September 7, 1965
accord beneficiaries nonquota status as eligible orphans, as defined in section 101(b) (1) (F), Immigration and Nationality Act, as
• amended, is denied since the petitioner and his spouse, on the basis of the
results of the guidance, supervision and. care accorded their 16-year-old
daughter, who was a disciplinary problem at the Navy Dependents' School
in the Philippines, have not established pursuant to section 203(b) of the
Act, that they will properly care for the beneficiaries if they are admitted
to the United States.
Petition to

These cases have been certified to the Deputy Associate Commissioner, Travel Control.
The petitions were denied by the District Director, Manila, Philippine Islands, on June 21, 1965, on the ground that it has not been
Satisfactorily established that the petitioner and spouse will properly
care for the children if they are admitted to the United States (section 205(b) of the'Immigration and Nationality Act).
The petitioner and his spouse, citizens of the United States, were
married on August 22, 1962. No children were born of this union
but the daughter, Karen, born in Los Angeleq, California, on May 12,
1949, the issue of a legally terminated marriage of the petitioner's
spouse, is said,to have been adopted by the petitioner. The Director
of the American Red Cross Unit at the United States Naval Base at
Subic Bay, Philippine Islands, acting as a representative of the International Social Service, has submitted a favorable home study
report. The California State. Department of Public Welfare at Los
Angeles has certified that the preadoption requirements of that State
have been met. Overseas investigation of the mental and physical

health of the beneficiaries reveals no illnesses. or defects aside from
an exposure of two of them to tuberculosis suffered by their natural
mother which has not been shoivn to have 'developed so far in the"
children.
302

Interim Decision #1504
The beneficiaries, two half-sisters and a half-brother, were born
respectively at Angeles, Pampanga, Philippine Islands, on October
28, 1958, December 6, 1962, and February 12, 1960, out of wedlock to
Victoria C. Bucao, a native and citizen of the Philippines, as a
result of relationships with three different members of the United
States Armed Forces stationed there. They were released to the
petitioner and his spouse for adoption and emigration by the natural
mother who, it has been established, is unable to care for and support them. The petitioner and .his spouse have presented a final
adoption decree relating to all three beneficiaries, issued March 30,
1965, by the Municipal Court of San Felipe, Province of Zambales,

Philippine Islands. The court is some distance removed from the
station of the petitioners and hometown of the beneficiaries.
Article 335 of the Civil Code of the Philippines sets forth:
Art. 335. The following cannot adopt:
(1) Those who have legitimate, legitimated, acknowledged natural children,
or natural children by legal fiction; • • •
(4) Non-resident aliens.

The decree recites the petitioners to be residents of the Province of
Zambales, Philippine Islailds, and to have no children. The District
Director has pointed out that the petitioner and his spouse were
admitted to the Philippines in December 1962 pursuant to military
orders of the United States Navy in which organization the petitioner has been enlisted since 1954. It was noted that the petitioner
and spouse occupied United States Government quarters on the
United States Naval Base at Subic Bay and under agreements of
long standing with the Government of the Philippines are accorded
certain tax exemptions and free of duty importation privileges not
ordinarily granted to residents of that country. Nor were members
of the United States Armed Forces subject to the criminal jurisdiction of Philippine courts at the time of the adoption. This has lead
to the conclusion on the parb'Npf the•District Director that the petitioner and his spouse are "non-resident' aliens", for the purpose of
Article 335 cited above. However, the record is silent as to whether
members of United States Armed Forces 'nay for adoption purposes
be con§idered by the courts of that country under any circumstances
as eligible.
The- District Director also notes that the petitioner: and spouse
are the parents of the sixteen-year-Old child, Karen. The petitioners
have related that because of the imminence of their departure for
the United States on military orders, and because their attorney was
a friend of the judge, the decree -was issued and any apparent irregularities therein could have been the result of language difficulties

303.

Interim Decision #1504
. between themselves, their attorney, and the court. There is not contained in the record the petition of March 3, 1965, apparently presented to the court which resulted in the adoption decree of March
30, 1965. Nor is it shown in the record if the daughter of his spouse
has actually been adopted by the petitioner and whether such adoption, or lack of it, if before the court, could have come within an
exception to Article 335 cited above. - Therefore, without further
inquiry, it cannot be concluded that the decree of the court is or
is not on all fours with the statute.
.The petitioner and spouse, having been informed by the District
director of possible invalidity of the Philippine adoption decree, are
presently considering adoption •of the children in California. As
heretofore stated, the California authorities have certified that they
meet the preadoption requirements of that State.
The spouse of the petitioner was revealed to have been arrested on
April 11, 1960, by the Los Angeles, California, • police and charged
with "assault with a deadly weapon". On May 13, 1960, she was convicted in the Los Angeles Municipal Couit on the reduced charge
of "battery", and sentenced to thirty days in the city jail, suspended,
• placed on probation for one year, fined $26.25, and ordered to make
restitution. The charges appear to have" come about following an
• altercation late one night with a person thought by her to be responsible for impounding her 'automobile and in which she struck the
complainant about the head and wrist with her high-heeled shoe.
United States Naval authoikies in the Philippines have reported
that the sixteen year old daughter of the petitioner and his spouse
was a disciplinary problem at the Navy Dependents' School, broke
curfew, was foUnd by Naval police in company with adult members
of the Marine Corps' in bars and night clubs, and required medical
treatment at the Naval Hospital from January 20-24 and October
22, 1964, because of her social behavior. It can be fairly concluded
that this child did notIreceive the degree of parental supervision
customarily to be expected. There is nothing on which to bask a
belief that more could ok would be extended to the three beneficiaries
in spite of assurances by the petitioner and his spouse that Karen is
now a much. wiser, socially adjusted teen-ager.
The Diltrict Director also noted that the affidavit of support executed April 19, 1965, by the petitioner set forth that he owned a \
house unencumbered by mortgage. It was subsequently ascertained
that the house is mortgaged. The petitioner urges only that "as for
my real estate statement, there was a inisinterpertation (sic) of the
fact." However, an examination of the affidavit in question makes
-

-

304

Interim Decision #150i
it apparent that he could well have innocently not correctly interpreted the questions involved.
Section 205 (b) of the Immigration and Nationality Act provides
in part as follows:
... No petition for nonquota immigrant status in behalf of a child as defined
In section 101(b)(1) (F) shall be approved by the Attorney General unless
the petitioner establishes to the satisfaction of the Attorney General that the
petitioner and spouse will care for such child properly if he is admitted to
the United States ...

The desired adoption by the petitioner and his spouse and the
bringing of these waifs into their home in the United States is indeed
a praiseworthy intention. On the basis of the record presented here,
the petitioner and his spouse do have the best intentions for these
children. However, on. the evidence of the results of the guidance,
supervision and care of their teen-age child by the petitioner and
his spouse, it has not been established that the petitioner and his
spouse will properly care for the children. if they are admitted to
the United States. Therefore, the decision of the District Director
that the petitions be denied on that ground is affirmed.
ORDER: It is ordered that the decision of the District Director
be affirmed.

_ 30i1


Interim Decision #1892

MAT=

or MArccoux

In Deportation Proceedings
A-17618499
Decided by Board August 16,1968
In the absence of fraud, an alien who entered the United States as an immigrant
based on a labor certification for employment as a trainee weaver of woven

goods but who because of dissatisfaction with working conditions and low
wages left such certified employment after 5 days and thereafter obtained
non•related employment as a fiber glass repairer for which he did not have
a labor certification, is not deportable for lack of a valid labor certification at
entry. [Matter of Tucker, Int. Dec. No. 1758, distinguished.]
CHARGE:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1))—Exclndable at
entry—not in possession of valid labor certification.
ON BEHALF or SERVICE: R. A. Vielhaber
Appellate Trial

Attorney

The special inquiry officer terminated proceedings and certified his
order. We will make no change in his order.
Respondent, a 32-year-old married male, a native and citizen of
Canada, was admitted to the United States for permanent residence
on November 29, 1967. In Canada, he had been a truck and taxi driver
for three years. He had a labor certification issued to him because he
was coming to Maine for employment as a trainee weaver of woven
goods. He was to be paid about $1.65 an hour. He began this employment the day after his entry.
Respondent was unhappy in his job which required him to sit at a
bench and make five knots every 30 seconds for eight hours a day. He
planned to ask for a transfer. In fact, he was put elsewhere but liked
this even less. A few days after he began to . work, he heard that in
Connecticut work was available at $2.50 an hour. On December 9, 1967,
he went to Hartford, Connecticut, where on about December 13, 1967,
he applied for a job with the Kaman Aircraft Corporation. On December 18, 1967 he started to work for them repairing fiber glass—a job
he did not consider a skilled one. He did not have a labor certification
-

for the second job. •

321-054-69--84

827

Interim Decision #1802
Respondent testified that lie entered the United States with the intention of working for the woven goods manufacturer (Ex. 3,.p. 2),
that he had contact with no other employer before he came to the
United States (p. 12), that he used his own money to come, that he
came willing to work and earn a living, and that he did not see that he
had done anything wrong.
The special inquiry officer terminated proceedings finding that
respondent entered the United States in good faith to take employment
with the woven goods manufacturer, that he had left because he had
found working conditions unsatisfactory and wages low, and that
while he did not have a labor, certification for the second employment,
there was an obvious need foihii services.
At oral argument, the Appellate Trial Attorney contended that if
one comes to take certified employment with which he becomes dissatisfied, he should leave the United States and seek a new certification
because his entrance was conditioned upon his working for a particular
United States employer. He.contended that the putpeSe of the law is
to permit selected people to enter for jobs which cannot be filled by
labor in the United States, and that only by requiring the departure of
the person who did.not:give the job a reasonable trial can the purpose
of the law be achieved. The Appellate Trial Attorney believes that the
respondent did not give the first job a reasonable trial since he only
worked five days, had no previous experience on the job and had been
hired to learn the job. The Appellate Trial Attorney draws an analogy,
between the instant case and that of a person the Board found deportable because he hack taken a job other than the one for whibh he
had a. certification. He also stated that an informal inquiry at the
United States Department of Labor in Boston, Massachusetts, revealed that respondent's job was not one for which a labor certification
would be issued because it required no particular speetalized Skill or
experience and was essentially an apprenticeship.
We believe that the, decision of the special inquiry officer properly
disposed of the case. There was no requirement in the law that an alien
who took a job for which he has a labor certification must remain on
the job any, particular length of time. There is no evidence that respondent took employment in the United States as part of a scheme to
obtain other employinent. The record reveals that he entered the
United states to take the certified employment in good faith. Matter
of Tucker, Int. *Dec. No. 1758, involved an alien who had a labor certification as a domestic but took employment as a machine operator although employment as a domestic appeared to be available. She never
took , certified employment: In the instant case; respondent did take
certified employment.

828

Interim Decision #1892
Respondent made two visits to Canada. He last returned on March 4,
1963 when he brought his wife and children to the United States for
permanent residence. At the time of his reentry he was returning to
continue his employment with the aircraft company.
ORDER: It is ordered that no change be made in the order of the
special inquiry officer.

829


Interim Decision #1578

MATTER OF FICALORA
In Deportation Proceedings* .
A-14341964
Derided by Board April 21, 1066
(1) The special inquiry officer does not have authority in deportation proceedings to determine an alien's elegibility for sixth preference status in conjunction with an application for adjustment of status pursuant to section
245 of the Immigration and Nationality Act, as amended, nor does the Board
of Immigration Appeals have appellate jurisdiction over such question, the
sole determination, thereof resting with the District Director and the Regional Commissioner (8 CPR 103.1(e) (2) and (f) ).
(2) Where a visa petition, filed just prior to the deportation hearing, to accord
respondent status under the then current sixth preference portion of the
Italian quota was not accepted by the Service but was returned because not
accompanied by a certification from the Secretary of Labor, as required, the
special inquiry officer did not err in failing to defer his decision pending
re--pondent's complianie with the certification requirement.
CEIARGE:
Orde- Act of 1952—Section 211(a) (9) (8 U.B.C. 12817 .Nonimmigrant
(temporary visitor. for pleasure changed to student)
—failed to comply with conditions - of status.

The special inquiry officer, in a decision dated December 10, 1965
denied the respondent's application for adjustment of his status to
that of a permanent resident; granted his alternative request for voluntary departure; and provided for his deportation from the United
States to Italy, on the charge contained in the order to show cause,
• in the "event of his failure to so depart. The respondent's appeal from* that decision, which brings the case before this Board for consideration, will be dismissed.
This record relates to a 28-year-old male alien, married,' who is a.
native and citizen of Italy. He last entered the United States on or
about September 20, 1964. He was then admitted as a; nonimmigrant
Be has a wife and child who are „residents of Italy and are apparently
natives abd citizens of that country.

. 592

Interim Decision . 15"1"4
temporary visitor for pleasure. His status was subsequently changed
to that of a nonimmigrant student. He was thereafter authorized to
remain in the United States in the latter status until September 1,
1966.
At the hearing - before the special inquiry officer, the respondent

contended that he was still attending school. It was, hoviever, established that the school which he was then attending and had recently enrolled in was not the school which had been approVed by the
Immigration and Naturalization Service as the institution of learning he was to attend as a student. Also, the respondent had obtained no permission to change from one school to another. He had
attended the school that had been approved for him only one day
because he did not like the school.
The respondent has conceded the correctness of the facts hereinbefore recited. They establish his deportability on the charge contained in the order to show cause. The respondent's deportability

has. in fact, now been conceded. This aspect of the case requires no
fu rt her discussion.
The special inquiry officer has granted the respondent's alternative request for voluntary departure. Suffice it to say, in this connection, that the record before us supports said official's action in
this respect.
The only remaining issue is whether the special inquiry officer has
properly denied the respondent's basic request for adjustment of his
status to that of a permanent resident. Our answer is in the affirmative, for the reasons hereinafter set forth. In reaching this decision,
we hare considered and rejected the respondent's contention that the
special inquiry officer erred in failing to:
assume jurisdiction over the question or tne respondent's eligibility for
sixth preference status; or
(2) defer his decision pending action by the District Director in connection
therewith.
The respondent is allegedly presently employed as a tile setter,
brick layer and stonemason. Just prior to the hearing before the
special inquiry officer, the respondent submitted to the Immigration
and Nationalization Service a petition filed by his employer to have
him accorded sixth preference status under the Italian quota, on the
basis of such employment. Despite the fact that said portion of the
Italian quota appeared to be current, the Service did not accept the
petition, but instead returned it to the respondent. The reason was
that a labor clearance certificate was not submitted With the visa petition. In that posture of the case, then, the .special inquiry_ officer
ruled the respondent ineligible for adjustment of his str. us to that of
593

•
Interim- D,ecisi on #1578
ft. permanent resident, solely on the ground that he did not have a visa
readily available - to him.
8 CFR 204.1(d). specifies that a petition (Form 1-140) to have an
alien classified as a preference immigrant under section 203(a) (6) of ,
the Immigration and Nationality Act 18 U.S.C. 1153) must be accompanied by a certification of the Secretary of Labor before it may
be accepted by the Service and. considered properly filed; and that
no appeal shall lie from a decision denying the petition for lack of
the certification by the Secretary of Labor. 8 CFR 245.1(d) provides.
that an applipioit for- preference status such as this respondent is
not eligible for the benefits of section,. 245 of the Immigration and
Nationality Act (8 :U.S.C: 1255) unless he is the beneficiary of a valid unexpired visa petition filed in accordance with a CFR 204 and
approved' to accord him such status. 8 CFR 103.1(e) (2) and (f)
places the determination of -whether or not an alien possesses the
qualifiCations for sixth preference statm`solely within the jurisdiction
of the appropriate District Director and Regional Commissioner. 8
CPR 242.8 does not vest in the special inquiry officer authority over
such a question: And CFR 3.1(b) (5) specifically excepts appellate
jurisdiction of such a question from this Board:
The foregoing regulations have the force and effect of law (Di
Mimi v. (1M, 96 F.2d 92). ' They are binding on all the parties here
concerned. Clearly• in the light thereof and the specific provision of
the regulations, the special inquiry officer properly ruled this respondent ineligible for adjustment of his status to that of a permanent resident. By the same token, respondent's argument that the
special inquiry officer erred in failing to pass upon the question of
the respondent's eligibility for sixth preference status is completely
devoid of validity. The same is true' of his assertion that this Board
should do so now.'
We likewise find without merit the claim that the 'Special inquiry
officer should have deferred his decision until the respondent had the
opportunity to comply with the foregoing provisions of the regulations, or that this Board should now enter an order to - that effect.
Despite the passage of four months since the entry of the special
inquiry officer's order, there is no showing here of what, if any,
efforts the respondent has, made to comply with the applicable provisions of the pertinent regulations hereinbefore set forth. If he has
made appropriate efforts in this connection, then they would be properly a matter for the consideration of the apprOpriate District Director in setting the time for the respondent's voluntary departure
or, upon his failure to so.depart, in fixing the time for his deportation. In the latter contingency, as we have previously pointed out
-

-

594 .

Interim Decision *1578
(Matter of I—, A-13212,870 10 I. & N. Dec. 372) then would be the
appropriate time for respondent to raise the question of the power of
this Board•to see that justice is done. In any event, resptindent has
available to him the remedy of a motion for reconsideration should
future events in connection with his visa petition render such action
appropriate.
tiAs we have hereinbefore pointed out, the law and the existing
regulations are binding on all parties here concerned. Obviously,
therefore, respondent's complaints about the confusion resulting from
recent changes in the law and poisible delay in obtaining the necessary "clearance order" to be issued by the Secretary of Labor, as required lay the implementing regulations, lie elsewhere than with this
Board. Accordingly, and in view of the foregoing, the special inquiry officer's order will be affirmed.
ORDER: It is, ordered that the appeal_ be and the same is hereby
dismissed,

595


Interim Decision #1996

MATTER OF ANTTALAINEN

In Deportation Proceedings
A-19160785
Decided by Board August 6, 1969
Because deportation proceedings are not the proper forum, request of
respondent on appeal in such proceedings is denied for reopening solely
for the issuance of subpoenas to officials of the Department of Labor with
which to challenge in judicial proceedings that Department's denial of her
request for a labor certification, upon the issuance of which depends her
eligibility for adjustment of status under section 245 of the Immigration
and Nationality Act, as amended.

CHARGE :
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251]—Nonimmigrant
temporary visitor—remained longer.
ON BEHALF OF RESPONDENT: Donald L. Ungar, Esquire
517 Washington Street
San Francisco, California 94111

On May 9, 1969, the special inquiry officer granted the respondent the privilege of departing from the United States voluntarily
without expense to the Government on or before June 8, 1969, or
any extension beyond such date as might be granted by the District Director, and under such conditions as the District Director
should direct. The special inquiry officer also provided for the respondent's deportation from the United States to Finland, on the
charge contained in the order to show cause, in the event of her
failure so to depart. The appeal from his decision, which brings
the case before this Board for consideration, will be dismissed.
The record relates to a female alien, a native and citizen of
Finland, who last entered the United States on or about March 7,
1968. She was then admitted as a visitor for a temporary period
until June 30, 1968. She was thereafter authorized to remain in
the United States in that status until December 30, 1968. She has,
however, remained here since the latter date without authority.
The foregoing establishes the respondent's deportability on the

349

Interim Decision #1996
charge contained in the order to show cause. This was conceded
in the course of the hearing before the special inquiry officer,
when the respondent was represented by counsel, It stands unchallenged on appeal. This aspect of the case, accordingly, needs
no further discussion.
The special inquiry officer has granted the respondent the privilege of departing from the United States voluntarily without expense to the Government. Suffice it to say, in this connection, that
the record ,before us supports the special inquiry officer's action
n this respect.
This appeal is concerned solely with the special inquiry officer's
ienial of the respondent's request for the issance of subpoenas
o appropriate officials of the Department of Labor. The purpose
d this request was to develop the record with respect to their reusal to issue the respondent a labor certification for employment
s a "live-in" domestic by a Mr. & Mrs. C. David Robinson of
an Francisco, for whom the respondent presently works in that
apacity. According to the record, the reason for the denial of the
ibor certification was that the position held by the respondent
mild be filled by a "live-out" domestic, and that qualified workers
ere available in the area involved (p. 4).
The point was raised in this deportation proceeding on the
Rory that if the respondent were issued a labor certification, she
ould be entitled to adjustment of her status to that of a permamt resident under section 245 of the Immigration and Nationalr Act (8 U.S.C. 1255). Concomitantly, it was urged that she
ould be permitted to create a record herein on the basis of
lich she can challenge the denial of the labor certification in ju;jai proceedings. We, however, agree with the special inquiry
icer that these proceedings do not afford the proper forum for
creation of a record on that issue.
The law (section 212(a) (14), Immigration and Nationality
t; 8 U.S.C. 1182) makes the issuance of a labor certification a
tter solely for the consideration of the Department of Labor.
cording to the record, that Department has stated the reasons
its denial of the respondent's request for such a certification,
i she is aware of them. If the respondent believes those reaIs are groundless, it is to the Department of Labor that she
st look for redress. This administrative tribunal is not the
per forum for review thereof. There is, accordingly, no reason
.eopen these proceedings to take testimony on this issue.
'he respondent cites the case of Dong Yup Lee v. INS, 407
d 1110 (9 Cir., 1969), as authority for the proposition that an
.

350

Interim Decision #1996
alien whose eligibility for permanent resident status depends
upon the issuance of an employment certification may, in a deportation hearing, challenge the denial by the Secretary of Labor of
a request for the certification. For the following reasons, we find
that case inapposite here.
Dung Yup Lee was admitted to the United States as one of the
musicians accompanying a touring Korean dance group, in the
status of a nonimmigrant alien of distinguished merit and ability
(section 101 (a) (15) (H) (i) of the Immigration and Nationality
Act; 8 U.S.C. 1101). He subsequently sought to have himself classified as a preference quota immigrant because of his "exceptional ability in the arts," under section 203(a) (3) of the Immigration and Nationality Act; 8 U.S.C. 1153. His petition for such
classification was denied by the Service, for reasons which need
not be discussed here.
Lee's case subsequently came before this Board for consideration on appeal from a special inquiry officer's order denying his
application for adjustment of his status to that of a permanent
resident (A-14609823, November 21, 1967) and thereafter
(April 15, 1969) on a motion for reconsideration of the same
issue. In both instances, we pointed out that since Lee was not
the beneficiary of an approved visa petition, he was ineligible for
adjustment of his status to that of a permanent resident because
an immigrant visa was not readily available to him. We did not
on either occasion review the action of the Service in denying the
respondent's visa petition, for the reason that under the regulations (8 CFR 204.1 (c) and 103.1(e)) we had no authority to do
so. Clearly, the limits of this Board's jurisdiction are as described
in 8 CFR 3.1 (b),' and counsel has pointed to no provision thereof
which gives us the authority he would here ascribe to us. The
only additional comment required in this respect is that the court
itself in the Lee case (p. 1112) stated that it did not and could
not consider the correctness of the Service decisions to deny the
alien's visa petition; and that accordingly, as well as in view of
the foregoing opinion, we approve the special inquiry officer's denial of the subpoenas requested by the respondent.'
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.

2

Mater of DeG—, 8 I. & N. Dec. 325, 335.
See Alonzo v. INS, 408 F.2d 667, 668 (7 Cir., 1969).

351


Interim -Decision *1696

MATTER

or Saw

In Visa Petition Proceedings
A-10522708
Decided by District Director January 16,

1966

. Since "profession" as defined by section 10I(a) (32) of the Immigration and
Nationality Act, as amended by P.L. 89-236, contemplates knowledge er
learning—not merely skill—of an advanced type in a given field gained by
a prolonged course of specialized instruction and study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field
of endeavor, and since a financial economist is a Member of the professions
within the meaning of that section, a visa petition is approved to accord
beneficiary, a qualified financial economist, preference classification under
section 203(a) (3) of the Act, as'amended.

The petition was filed to classify the beneficiary as a preference
immigrant under subsection 203(a) (3) of the Immigration and Nationality, Act, as amended, as it member. of the professions, based
upon his qualifications as a financial economist.
The beneficiary is.a 31-year-old citizen of Korea, presently in • the
United States. Byidence has been presented. that he received 'a master's degree in economics from the University •of Illinois in August
1961. He was employed as a financial economist by A. H. Gruetzmacher and Company, Mortgage Bankers and Financial Consultants,
Chicago Illinois, from September 1961 to September 1963. The
beneficiary has been studying for a doctorate degree in finance at
the University of Illinois since September 1963.
The Department of Labor has issued a certification pursuant to
subsection 212(a) (14) of the Act, as amended. The certification is
to the effect that there are not sufficient qualified financial economists
available in the United States and that the employment of such
economists will not adversely affect wages and working conditions
of workers in the 'United States similarly employed.
The questions to be resolved to determine whether the beneficiary
is entitled to the preference sought are: (1) is a financial economist
a member of the professions and (2), if so, do the beneficiary's
qualifications meet the requirements for that vocation.
686

Interim Decision #1606
Subsection 101(a) (32) of the Aet, as amended, provides that:
"The term 'profession' shall include but not be limited to architects,
engineers, lawyers, physicians, and teachers in. elementary and
secondary schools, colleges, academies or seminaries" As the foregoing is not all-inclusive and is illustrative rather than descriptive,
it is necessary to evaluate the term "profession" in a definitive sense
based on the•general character of the professions specifically recognized to ascertain whether a given activity not named therein may
be included, within the intendment of the Act.
The word "profession" originally contemplated only theology, law
and medicine, but as applications of science and learning are extended to other departments and affairs, other vocations also receive
the name, which implies professed attainments in special knowledge
as distinguished from mere skill'
Webster's New International Dictionary contains, among others,
the following definition of "profession": .
The occupation, if not purely commercial, mechanical, agricultural or the like,

to which one devotes oneself: a calling in which one professes to have acquired some special knowledge need by way either of Instructing, guiding, er
advising others or of serving them in some art; as, the profession of arms, of
teaching, of chemist.

In short, it refers to a status which requires knowledge of an advanced type in a given field of science or learning gained by a prolonged course of specialized instruction and study 2
In addition to the foregoing, a guideline to what constitutes a
.

"profession" within the meaning of the Act is found in a characteristic common to each of the vocations named in the subsection under

reference. That common denominator is the fact that all require
specialized training that is normally attained through high education
of a type for which at least a bachelor's degree pan be obtained, or
through equivalent specialized instruction and experience in. 14c
thereof.. An example of the latter lies.in the field of law whereiln
many members of that profession have obtained their knowledge.
through the medium of intensive work, instruction and study in that
activity under the direction and guidance of members' of that
profession.
To summarize, the vocations included in the term "profession" in
our modern highly industrialized society are constantly expanding,
consistent with the greater knowledge and specialized training that
such a. society demands. These could well include, in addition to
various scientific fields, highly specialized activities in business ad'United Stater v. Laws, 163 U.S. 258, 266.
'Traub v. Goodrich,

145 KY.91.2d 334, 335; 286 App. Div. 927.

687

Interim Decision *1606

•
ministration, finance, journalism and the like provided that the particular activity required at least a baccalaureate level of special
knowledge, not merely skill. The mere acquisition of a degree or
equivalent experience does not, of itself, qualify a person as a mem ,
her of a "profession". The knowledge acquired must also be of nature that is a realistic prerequisite to entry into the particular field
of endeavor. The definition of "financial economist" is given in the Dictionary
of Occupational Titles 3 as follows:
Studies nature of money, credit, and credit instruments, and operation of
banksand other financial institutions to develop monetary policies and to forecast financial activity; Investigates credit structures and credit collection
methods to improve them: Examines banking methods and procedures to titvise techniques for regulation of lending and fixing of interest and discount
rates. Studies money exchanges to recommend or establish domestic and in
monetary policies. investigates relationship between quantity of
money, credit, and purchasing power to /Ind methods for establishing and
maintaining desirable balances.

Financial economics is one of the social sciences and the qualifications for professional employment in that field are also discussed in
the Dictionary of Occupational Titles, supra•, which states that,
generally, a master's degree is the minimum requirement for entry
into that field and that scientists with this degree qualify for college
instructorships in some schools and many nonteaching positions in
Goverment and industry. It adds that in most schools a Ph.D. is
the usual requirement for faculty positions and for the more responsible administrative and research positions. It further indicates
that, for the most part, a bachelor's degree is not adequate preparation for entrance into that field, although supplemental study and
training may later qualify an individual for entry therein. The
latter also applies to eutry applicants without a graduate degree.
On the basis of all of the foregoing, we find that a financial economist requires highly specialized knowledge of an advance type and
is a member of the professions within the meaning of the Act. We
further find that the beneficiary is qualified as a member of that
profession.
Accordingly, the petition will be approved.
ORDER: It is ordered that the petition be and the same hereby
is approved.
'volume I, Definitions of Titles, Third Edition, 1963, page 283, published
by the Department of Labor.
Volume II, Occupational Classification, Third Edition, 1985, page 294.

688