MATTER

or K—

In SECTION 245 Proceedings
A-11487130
Decided by Regional Commissioner April 1, 1960
Approved by Assistant Commissioner April 15, 1960

Nonquota status, section 6, Act of September 22, 1959—Applicant under section.
245 is eligible although not related to petitioner at time of arrival.
Spouse of alien admitted for permanent residence under Refugee Relief Act of
1953 qualifies for nonquota status under section 6 of Act of September 22,
1959 despite occurrence of marriage after both parties had arrived in the
United States.
APPLICATION

:

Adjustment of status to permanent residence on basis of eligibility for nonquota status under section 6, Public Law 86-363.
BEFORE THE REGIONAL COMMISSIONER

Discussion: This case has been certified to the Regional Commissioner by the District Director, Hartford, who has approved the
application.
The applicant is a twenty-nine year old married female, a native
and citizen of Greece, who last entered the United States on June 12,
1958, as a visitor for pleasure.
K—, a permanent resiOn July 6, 1958, she married S
G
dent alien who was admitted on November 5, 1956, under section.
4(a) (3) of the Refugee Relief Act of 1953.
A visa petition filed by the applicant's husband to accord her third.
preference quota status under section 203(a) (3) of the Immigration
and Nationality Act was approved on November 24, 1958.
The applicant applied for adjustment of status on September 30,
1959, to that of a permanent resident under section 245 of the Act,
as amended, claiming that she was eligible for nonquota status under
section 6 of Public Law 86-363.
Section 6 of the Act of September 22, 1959 (Public Law 86-363),
reads as follows:
Notwithstanding the provisions of sections 3 and 20 of the Refugee Relief
Act of 1953, as amended, special nonquota immigrant visas may be issued to
aliens eligible to enter the United States for permanent residence under all
the applicable provisions of the Immigration and Nationality Act: Provided,

626

That each such alien is found to be the beneficiary of a visa petition approved by the Attorney General pursuant to section 203(a) (2) and (3) and
section 205 of the Immigration and Nationality Act prior to January 1, 1959,
and such petition was Sled by a person lawfully admitted into the United
States under the provisions of the Refugee Relief Act of 1953, as amended:
Provided further, That, upon his application for an immigrant visa, and for
his admission into the United States, the alien is found to have retained his
relationship to the petitioner, and status, as established In the approved

petition.
All the prerequisites for nonquota status described in section 6 of
the Act of September 22, 1959, supra, are present in this case. The
applicant's husband was lawfully admitted for permanent residence
wider the provisions of the Refugee Relief Act of 1953. A visa
petition in her behalf filed by her husband was approved under
section 203(a) (3) prior to January 1, 1959, and at the time of her
application for adjustment of status she was found to have retained
her relationship to the petitioner, and status, as established in the
appro-ved petiti on.
The sole question before us is whether section 6 of the Act of
September 22, 1959, was intended to benefit persons who were not
related to the petitioner at the time he was admitted to the United
States for permanent residence under the Refugee Relief Act of 1953.
In this case the petitioner was single when he arrived in this country and did not marry the applicant until after he had been in the
United States for over a year.
The wording of the statute is clear and unambiguous. In this instance if the applicant were outside the United States, she would
clearly come within the s c ope of section 6 of the Act of September
22, 1959. We are satisfied that she was a bona fide nonimmigrant
at the time of her last entry. We are satisfied there is nothing in
the provision of section 6 of the Act of September 22, 1959, which
would preclude the exercise of the benefits of the same section
through proceedings under the provisions of section 245 of the
Immigration and Nationality Act. Accordingly, it is held that the
applicant is eligible for a special nonquota immigrant visa.
Order: It is ordered that the application for status as a permanent
resident be granted.

627


Interim Decision 40725

MATTER of ESITADA-BETAZTOMMT

In Exclusion Proceedings
A-17251270
A-17251272
A-14326873
Decided by Board April 10, .1987
Since an alien who does not arrive in the United States at a designated port

of entry is still in the act of entering this country only if the circumstances
at the time of his interception are consistent with his having proceeded directly from the border to the nearest such port for inspection, an entry

into the United States has been made by appellants, natives and citizens
of Cuba, who arrived at other than a designated port (about 20 miles east
of Brownsville, Texas) and proceeded 10 miles inland by automobile to the

airport at Harlingen, Texas where they were taken into custody by Service officers, having been in this country about 3 hours and allegedly en route
to Miami, Florida where they intended to present themselves for inspection
as political refugees: consequently, expulsion, and not exclusion, proceedings are the proper forum for consideration of their cases.
Act of 1952—Section 212(a) (20) [8 U.S.C. 11823—Immigrant, no
visa (all).
ON BEHALF OF Simms: Robert A. Vielhaber
Appellate Trial Attorney
(Oral argument)
Bernabe Q. Maldonado
Trial Attorney
(Brief filed)
ExOLODABLE:

The record relates to three male aliens, natives and citizens of
Cuba, who, on December 12, 1966, crossed to the United States from
Mexico by boat at a point near the mouth of the Rio Grande, about
20 miles east of Brownsville, Texas. They then proceeded by automobile to the airport at Harlingen, Texas, which is approximately
20 miles northwest of Brownsville and 10 miles inland from the international boundry. They were there taken into custody by Service officers, at which time they had been on United States soil nearly
three hours.
191

Interim Decision *1725
The subjects stated that they were en route to Miami, Florida,
and that they intended to present themselves for immigration inspection as political refugees at that place, because: "" * that is
where all other Cubans are living now and being helped * *".
They were, however, transported to Brownsville for further interrogation. Subsequently, they were referred to a special inquiry officer for a hearing in exclusion proceedings, pursuant to sections 235
and 236 of the Immigration and Nationality Act (8 U.S.C. 1225
and 1226).
The special inquiry officer ordered those proceedings terminated,
concluding that expulsion proceedings were required as to these aliens,
under section 242 of the Immigration and Nationality Act (8 U.S.C.
1252). He then certified the case to this Board for review and final

decision.
The Service strenuously urges that the special inquiry officer erred
in ruling that exclusion proceedings were improper in this instance.
It argues that the aliens were still in the act of entering the United
States until they reached their interior destination, to wit, Miami,
Florida. It would have us give full faith and credit to the testimony
of the aliens that they intended to be inspected at that point.
The case of Brazil v. Ahrenal involved a group of Haitian aliens
who arrived in the United States on a vessel which had to be towed
into a port in Florida by a Coast Guard boat. They, too, apparently
desired to be admitted to the United States as political refugees; they
were paroled into the United States pursuant to section 212(d) (5) of
the Immigration and Nationality Act (8 U.S.C. 1182) ; and they were
subsequently referred to a. special inquiry officer for a hearing in exclusion proceedings. In the course thereof, it developed that they had
never been lawfully admitted to the United States for permanent residence; that they desired to remain in the United States indefinitely;
and that they were not in possession of appropriate documents to permit them to do so. In rejecting their claim that they were entitled to
an expulsion proceeding rather than an exclusion proceeding, the court
held :
The controlling question in determining whether Petitioners were entitled to a
deportation proceeding rather than an exclusion proceeding is the issue of
whether they bad in fact made an "entry" within the meaning of that word as
it is used in the Immigration and Nationality Act.

That is the test which must be applied in determining whether exclusion or deportation proceedings are proper in the case now before us
2

LY.S.D.43., S.D., Fla., No 63-883 Civ.-OF, 12/24/63.

192

Interim Decision #1725
for consideration. The question of whether that "entry" is legal or
illegal is immaterial (Lam Fo Sang v. Esperdy, 210 F. Supp. 786).
The case of United States v. In Toy (198 U.S. 2E), involved a person of the Chinese race detained aboard a ship for deportation to
China pursuant to an administrative decision that he was not a United
States citizen. In denying his petition for habeas corpus, seeking a
judicial trial on the issue of his citizenship, the Supreme Court of the
United States pointed to the well-established principle that all persons
attempting to enter the United States are subject to inspeotion by immigration officers for determination of their right to enter, regardless
of the ground on which their claim to that right is based (p. 262) . Accordingly, it is clear that the aliens in this case were subject to immigration inspection.
Section 241(a) (2) of the Immigration and Nationality Act (8
U.S.C. 1251) provides that: "Any alien in the United States * * *
shall, upon the order of the Attorney General, be deported who— * * *
entered the United States without inspection at any time or place other
than as designated by the Attorney General * * *.". Under the law,
then, expulsion proceedings are required as to any alien who has entered the United States at other than a designated "port of entry."
The case of Thaok v. Zurbriek (51 F. 2d 634), involved an alien previously admitted to the United States for permanent residence who
was returning to this country from a visit to Poland, by way of
Canada. He proceeded by train to the last Canadian station before
reaching the Vermont border, where he sought advice from the American consular agent as to how he should get to his home in Massachusetts.' He was advised to go to the immigrant inspector at Newport,
Vermont, six miles south of the border, and got a ride there but found
the Immigration Office closed. He then stayed at a hotel in Newport
overnight, and appeared at the Immigration Office as soon as it opened
the following morning. He was thereupon made the subject of expulsion proceedings, on the ground that he had entered the United States
without inspection. In ruling that the case was improperly in expulsion proceedings, in that the facts recited did not constitute an "entry
without inspection," the court said :
Such entry cannot be, in all cases, completed by that technical entry
•
which occurs when the international line is crossed. If such crossing were not in
connection with or merged into an actual inspection at the appropriate place,
"entered" might have this technical meaning, but if the alien merely follows the
ordinary path from the international line to the nearest inspection point and
presents himself for inspection, his action in so doing cannot be an offense for
' He had apparently been unable to get a visa or reentry permit because of inability to obtain a passport.

193

Interim Decision #1725
which Congress intended be should be sent to his former foreign residence and
forbidden return to this country. • • •

We cannot agree with the Serviee that the aliens involved in this case,
who did not arrive in the United States at a "designated port of entry"
did not have to "follow the ordinary path from the international line
to the nearest inspection point," because they actually intended to be
inspected at some other port, to wit, Miami, Florida. The language of
the court in question is clear and unequivocal. It permits no other reasonable interpretation than the one we have placed upon it.
That aliens who do not cross the border at a "designated port of
entry" must proceed directly to the nearest such port for inspection is,
we think, made clear by the decision in Giaooni v. Corsi (64 F.2d 18).
Therein, a resident alien returning from a short visit in Canada was
arrested by a Customs border patrolman about one-half mile beyond

the Customs and Immigration Office and charged in expulsion proceedings with entry without inspection and a crime prior to entry. The
alien claimed that he intended to be inspected, but could not find the
inspection station. The court, in upholding the propriety of expulsion
proceedings, ruled that the inspector was not obliged to accept the
alien's claim as to his intention where the circumstances of his presence

beyond the inspection point (nearest) contradicted his claims. In that
case they did, the alien having six fur coats and other dutiable items
in his car.
To the 'same effect is the ease of Natali v. Day (45 F.2d In). Therein,
a resident alien went to Montreal to assist another alien to enter the
United States. They paid a taxi driver to convey them to the St.
Lawrence River, and an Indian to row them across the river. They
crossed the border without inspection and were apprehended by a
United States officer shortly thereafter. Under those circumstances,
the court held that Natali was properly ordered deported for "entry
without inspection" at other than a designated port of entry—in
expulsion proceedings.
We think the foregoing authorities clearly call for the conclusion
that these aliens, who did not arrive in the United States at a "designated port of entry," were required to proceed by the ordinary route
to the nearest such port for their inspection. According to the list of
such "ports" for these aliens who arrived in the United States by other
than aircraft, Brownsville, Texas, was that "port" (section 151(c)
(2)*.) We hold that when they evaded inspection at that place their
"entry" was effected and they were thereafter properly the subject of
expulsion proceedings for having "entered without inspection." We do
—

• Statement

of Organisation_

194

Interim Decision #1725
not think that the judicial decisions relied on by the Service, infra, call
for a contrary conclusion.
Two of the cited cases (Era parte Chow Chok, 161 F. 627; U.S. v.
Yuen Pale Sane, 183 F. 260) involved Chinese aliens who were under
continuous observation while still in Canada; while crossing the international boundary; and thereafter while proceeding to a point in the
United States quite proximate to the "line," where it became evident

that they did not intend to be inspected at the "nearest port of entry."
The court held that those aliens were properly the subject of exclusion
proceedings because they never enjoyed any freedom from official restraint. That, obviously, is not true in the present case.
The third case quoted by the Service (Jew Lee v. Brough,, 16 F.2d
492) related to Chinese aliens first observed by inspectors in an automobile three miles south of the Canadian border. They were taken into

custody one and a half miles further south, at which time they had been
in the United States about ten minutes. The court therein found proper
the subsequent administrative proceedings which resulted in an order
for their deportation (expulsion), on the following grounds : (1) they
were not in possession of immigration visas; (2) they had entered the
United States at other than a designated port of entry; (8) they were

likely to become public charges; and (4) they were found in the United
States not in possession of certificates of residence required of Chinese
laborers. On such facts, we fail to see how that case supports a conclusion that exclusion proceedings are proper herein. Actually, it supports the contrary conclusion we have reached. The only additional
comment required in this connection is that the portion of the court's
opinion on which the Service seizes was concerned with the quite
diverse question of whether the aliens were entitled to a judicial trial
on the issue of their citizenship, under the Chinese Exclusion Acts
which have long since been repealed. Obviously, no ruling on that

point could have any bearing on the present problem.
The last Chinese case referred to by the Service (Leto Hoy v. United
States, 237 F. 50) involved an indictment for "a conspiracy to commit
an offense against the United States (•enal Code, s. 37) by knowingly
bringing and causing to be brought from Mexico by land into the
United States persons not lawfully entitled to enter or to remain in
the latter country, and by aiding and abetting therein (23 Stat. 117,
a. 11)." It was expressly averred, inter alga, that the aliens were to be
taken to Rock Springs, Wyoming, and elsewhere in this country. The
argument was advanced that the trial court erred in admitting evidence
of acts subsequent to that of bringing the aliens across the "line" between Mexico and the United States. The Service attaches great weight
195

Interim Decision #1725
to the following language of the Court of Appeals in rejecting that
argument:
Successfully to consummate the unlawful introduction of the prohibited aliens
required more than the mere bringing of them across the line. It was necessary
to evade the immigration officials by transporting them into the interior and
concealing their identity.

We find the case not pertinent here, because of the following additional
statement of the court on this point t
The subsequent assistance by defendants to that end may well have been an
-essential part of the unlawful project It is not necessary that each conspirator
participate in each step or stage of the common general design.

Obviously, in view of this language, the court was not concerned with
tho fact of entry (it apparently conceded it), but with ants subsequent

thereto and related to helping the aliens to remain in this country, as
charged in the indictment. In other words, the indictment charged a
conspiracy consisting of two parts, to wit, introducing aliens into the
United. States, and assisting them to remain herein. The language
under reference was concerned solely with the latter point.
We find no support for the Service view in the fact that under present- day travel conditions aliens can 'proceed by aircraft non stop from
foreign places to cities hundreds of miles inland in this country. We
see no valid reason why they, too, would not be deportable once it becomes evident they did not intend to be inspected at the proper place.
The inhdrent weakness in the Service position on this point is that it
cannot he limited by time or distance and, accordingly, would result
in the loss of controllable primary inspection. But this is precisely
what the Attorney General sought to maintain when he published a
separate and distinct list of "ports of entry" for aliens arriving in the
United States via aircraft (section 1.51(c) (a))
The deferred inspection of aliens at those "ports" is permitted because of adequate control assured by sanctions against carriers, private or commercial, spelled out in the law and the related regulations.°
Obviously, only utter chaos in enforcement of the immigration laws
could result from permitting aliens to proceed to inspection points
they believe will best suit their own interests. The Service action in
-conducting these aliens to Brownsville for inspection despite their
testimony (which the Service asserts it believes) that they would be
inspected in Miami, speaks for itself on this point.
We find it to be of no material significance here that section 287(a)
(2) of the Immigration and Nationality Act (8 U.S.C. 1557) author-

-

-

•Statement of Organization.
a Sections 237, 238, 239;271, 272 and 273.

196

Interim Decision #1725
izes Service officers to arrest without warrant aliens entering or
attempting to enter the United States in their presence or view, in
violation of law. The reason is that the same statute also authorizes the
arrest without warrant of aliens in the United States in violation of
law, if it appears that they are likely to escape before a warrant
can be obtained. Thus, obviously, the statute provides for the arrest
without warrant of two classes of aliens: (1) those entering or attempting to enter the United Stites; and (2) those who have already
entered the United States, if they are likely to abscond. Accordingly,
the fact that these particular aliens were arrested without warrant
still leaves open the question of whether they were entering or had
already entered the United States.
By the same token, it is of no consequence that subsection (3) of
section 287(a) of the Act authorizes Service officers patrolling the
border to prevent the illegal entry of aliens into the United States
to make "transportation checks" within a "reasonable distance" (defined by 8 CFR 2872 as 100 air miles) from the external boundaries
of the United States, and gives said officers access to private lands
within a distance of 25 miles from such external boundaries. The right
of immigration officers to patrol the border, and while so doing to
arrest aliens without warrant, is an issue separate and distinct from
the question of whether aliens have entered the United States. The
latter is the only problem confronting us here.
8 CFR 287.8 does, as the Service points out, authorize Service officers "on the scene" to make a determination as to whether exclusion
or expulsion proceedings shall be instituted in a given case, depending
upon whether there is prima facie evidence of an actual or attempted
entry into the United States. But the regulation does not make that
initial administrative decision binding on this Board, and our jurisdiction to review the question (8 CFR 3 a mg.) would be otherwise
rendered nugatory. The facts of this case, viewed in the light of the
law and the controlling precedents, convinces us' that the original
"local" judgment on the point was incorrect.
We find it completely irrelevant that Mexico might be willing to
accept these aliens as excludees, but would definitely be unwilling to
accept them as deportees and that, therefore, our decision will place
the Service in the position of having on its hands aliens whom it
cannot deport, because of the political situation in which the United
States presently finds itself vis-a-vis Cuba. In the first place, it is so
well recognized as to obviate further discussion that mere convenience
of enforcement does not justify construction of a statute not warranted
by the language thereof, or the facts involved. Second, the situation
thus outlined is not substantially different from that of countless aliens
197

Interim Decision #1725
found in the United States after many years for whom no country of
deportation can be found, solely because of the passage of time. The
peculiar situations thus created by the law are problems with which
the Service must contend 6therwise. They certainly do not justify
this administrative tribunal in. reaching a result unwarranted by the
facts of this case applied in the light of the law and the dispositive
interpretations thereof.
Finally, we agree with the Service that it was improper for the
special inquiry officer to take administrative notice of the fact that
the Service does not always institute exclusion proceedings against
Mexican aliens apprehended as close to the border as these aliens were.
It may well be, as the Service urges, that in the Mexican cases referred
to the evidence was clear that the aliens involved had already "made
good" their entry into the United States. But the Important point is
that the answer to the problem presented depends upon the facts
peculiar to this case and to it alone. By the same token we also think
that the special inquiry officer improperly referred in his
, decision to
cases involving other Cuban nationals, as evidence of the employment

of double standards by the Service in determining whether exclusion
or expulsion proceedings are proper in any given instance. Nevertheless, for the reasons hereinbefore set forth, we conclude that his decision
must be approved.
ORDER: It is ordered that the special inquiry officer's decision of
January ,17, 1967, directing that the exclusion proceedings in this case
be terminated be and the same is hereby affirmed.

198


Interim Decision #1726

MArrmi OP MANDEWIRTE

In Visa Petition Proceedings
A-12194837
Decided by Board April 19, 1967

Acknowledgement

by petitioner, a native or Austria, of fatherhood and agreement of support of beneficiary, who was born out of wedlock in 1945, does

not constitute legitimation for immigration purposes (section 101(b) (1) (0),
Immigration and Nationality Act, as amended), since under the law of
Austria legitimation of a child born out of wedlock is not accomplished by
mere acknowledgment of paternity and agreement to support

The case comes forward on appeal from the order of the District
Director, Washington, D.C., District, dated September 14, 1966 denying the visa petition for the reason that the facts presented disclose
that the petitioner was never married to the beneficiary's mother and
that he has not been otherwise legitimated; it is concluded that the
beneficiary is not a child as defined in section 101(b) (1) of the Act.
The petitioner; formerly a citizen of Austria, now a citizen of

Canada, a lawful permanent resident of the United States, seeks preference quota status on behalf of the beneficiary as his son. The beneficiary is a native of West Germany, born April 24, 1945.
It is admitted by the petitioner that the beneficiary was born out of
wedlock. However, he has submitted a document of Proof of Fatherhood and Support (Document on the acknowledgment of fatherhood
and agreement on support) which acknowledges that the petitioner,
an Austrian citizen, is the natural father of the beneficiary who was
born out of wedlock and contains an agreement of support. The document is dated December 20, 1951.
Inasmuch as the beneficiary is an illegitimate child, he must qualify
as a child under section 101(b) (1) (0) of the Immigration and Nationality Act as a, legitimated child. The document of acknowledgment
of paternity was submitted to the Library of Congress for an opinion.
Under the law of Austria, an illegitimate child has the status rights of
a legitimate child only in respect 'to its mother: it takes her surname
(sec. 165, par. 1, of the Austrian Civil Code, Dab ailgesaeiszoburgerliohz
199

Interim Decision #1726
Gesetibuolt, hereinafter ABGB) ; acquires her nationality status (sec.
3 of the Nationality Act, Staatsburgerschaf Wentz, Bvmdesgezetblatt,
hereinafter 11(31B1, No. 276/1040) ; and is under the jurisdiction of the

court of the mother's domicile (sec. 72 of the Law of August 1, 1895,
as amended, on the Jurisdiction of the Regular Courts in Civil Matters). An illegitimate child does not have the right to bear its father's
name (sec. 165, par. 1, of the ABGB).
The article from the Library of Congress then goes on to set forth
additional information regarding acknowledgment of paternity. It
states that legitimation is distinguished from acknowledgment of paternity in that the former is an act giving the status of legitimacy to a
child born out of wedlock. The Civil Code distinguishes three types of
legitimation:
(a) A child conceived in a marriage concluded by a valid formal act, but void
due to an impediment, shall be considered legitimate if the said marriage was
subsequentiy validated, or if at least one of the parents was bona fide unaware
of the impadiment (tee. 160). This is applicable in cases of the concealed bigamy
of one of the spouses, or their error in considering separation as divorce, or in
taking the declaration of the death of a perSon's spouse as the final act terminating the marriage- This method is applicable today only in rare instances, in
view of later legislation.
(b) A child born out of wedlock may be legitimated by the subsequent marriage of its parents (sec. 161). This is the most common ease of legitimation.
(c) A child may be legitimated by a rescript of grace of the President of the
Republic on the petition of both parents (sec. 162 of the ABOB in conjunction
with Art. 65, par. 2, subpar. (d), of the Austrian Constitution).

The document submitted with the visa petition does not establish
that the beneficiary was ever legitimated' The visa petition based
upon a preference on the ground of alleged relationship of father and
child will be denied.
It is noted that in commotion with the appeal the petitioner states
that the beneficiary has a half-sister who is married to an Americanborn citizen. In the event that the brother-sister relationship is through
the mother, and if the sister is a citizen of the United States, she may
petition for quota preference on behalf of the beneficiary under section 203(a) (5) of the Immigration and Nationality Act. It is also
noted that the quota to which the beneficiary is chargeable is open and
the beneficiary will be eligible for a quota immigrant vise, if he can
secure a labor certification pursuant to section 212 (a) (14) .
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
1

See Matter of 3—, 6I. & N. Dec. 161, 162.

200


Interim Decision #1775

MAI Lac or

ANDERSON

In Section 212(h) Proceedings

A-13243261
Decided by Regional Convraiosioner March 17, 1967
Motion to reconsider a section 212(h) application by a native and citizen of
Panama in the United States for a waiver of the criminal ground of excludability is denied since his application may be considered only in conjunction
with an application for adjustment of status under section 245, Immigration
and Nationality Act, as amended (8 CPR 245.1 (f) ) and his section 245 application, properly adjudicated prior to December 1, 1965, does not fall within the
"savings clause" of section 8 of the Act of November 2, 1966, since on December
1, 1965 his ineligibility for such relief was not solely because of his birth in the
Western Hemisphere but also because of the criminal ground of inadmissibility.
IN BEHALF OF APPLICANT: Ira Gollobin, Esquire
1441 Broadway
New York, New York 10018

The applicant is a 45-year-old native and citizen of Panama. On

July 19, 1963 he filed an application for adjustment of status under section 245 of the Immigration and Nationality Act, as amended. He
stated therein that he had never been charged with any violation of law.

It developed that he had in fact been convicted in Balboa, Canal Zone
on November 8, 1943 of four offenses of petit larceny. He was ineligible
for an immigrant visa and was inadmissible to the United States because of such convictions under section 212(a) (9) of the Immigration
and Nationality Act. He was therefore statutorily ineligible for the
requested adjustment of status which was originally denied by the District Director on November 21, 1983.
On January 10, 1964 counsel filed an application on Form 1-601 for
a waiver of excludability under section 212 (g), redesignated by P.L.
89-236 effective December 1, 1965 as section 212(h), in conjunction
with a motion for reconsideration of the section 245 application for
adjustment. The waiver application was based on a claim of extreme
hardship to his resident alien son, Robert, and a daughter, Gloria, by
his first marriage. The applicant had divorced his first wife on February 16) 1956. He was again married on July 14, 1956 in Mexico City.
399

Interim Decision #1775
Mexico to Urania Garcia de Anderson, a citizen of Panama, and had
one son Juan Javier Anderson, born in Panama City on March 1, 1960
of his second marriage. His wife and son, Juan Javier Anderson were
still residing in Panama. The application for the waiver was denied
as the evidence did not establish the requisite extreme hardship to the
members of his immediate family in the United States. That decision
of the District Director, dated August 10, 1965, also necessarily denied
the motion for reconsideration of the application for adjustment of
status. Our order of October 27, 1965 dismissed the appeal from the
denial of the waiver application.
Counsel now moves for reconsideration of the application for the
waiver of excludability only. He states the wife, Urania Garcia de
Anderson, was admitted to the United States for permanent residence

on May 28, 1966 and the child, Juan Javier Anderson, on January 29,
1967, Counsel asserts the applicant earns $150 a week, supports his
wife and child, and that the wife is taking her Masters Degree in
Education at Columbia University. No evidence has been submitted
in support of the motion.
By published regulations (8 CFR 245.1(f)), an application for a
waiver of excludability under section 212(h) of the Act may be made
in behalf of an alien in the United States only in conjunction with an
application for adjustment of status. We will review both applications
here.
Subsection (c) of section 245 of the Immigration and Nationality
Act was amended by section 13 (b) of the Act of October 3, 1965 (P.L.
R9-236) to read:
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 supplied.)

The emphasized phrase replaced the phrase "of any cotuttry contiguous to the United States". This change was effective December 1,
1965.
Section 3 of the Act of November 2, 1966 added to section 13 of the
Act of October 3, 1965:
(C) Nothing contained in subsection (b) of this section shall be construed to
affect the validity of any application for adjustment under section 545 filed with
the Attorney General prior to December 1, 1965, which would have been valid
on that date; but as to all such applications the statutes or parts of statutes
repealed or amended by this Act are, unless otherwise specifically provided

therein, continued in force and effect.

The application for adjustment of status was properly adjudicated
when before us prior to December 1, 1965. On December 1, 1965, our
applicant's ineligibility for such adjustment was not solely because of

400

Interim Decision #1775
his birth in the Western Hemisphere. He was also ineligible because of
inadmissibility on the criminal ground and did not then qualify for a
waiver thereof. His application for adjustment of status is not within
the "savings clause" of the Act of November 2, 1966. We may not consider the application for a waiver of excludability independently. The
motion will therefore be denied.
It is ordered that the motion to reopen and reconsider be denied.

401


Interim Dea.sion #2525

MATTER OP SHAW

In Deportation Proceedings
A-18492374
A-19182634

Decided by Board July 2, 1976
(1) Respondent:, who are husband and wife, seek adjustment of status under section 245
of the Immigration and Nationality Act as nonpreference immigrants who are exempt
from the labo::, certification requirement of section 212(a)(14) of the Immigration and
Nationality Act based on the husband's investment in a restaurant.
(2) Male respondent failed to meet his burden of proof to show that he qualifies for
exemption fro:n the labor certification requirement as an investor under the evidentiary
requirements set forth in Mattor of Ahmad,

16 L & N. Doc. 81 (BIA 1974) whore

photocopies of checks submitted as the primary evidence of the investment and allegedly issued in payment for items relating to the restaurant did not show what items
had been purchased; where the financial statement submitted was unaudited and based
exclusively on information supplied by respondent to the accountant and which

indicated that the books had not been maintained in an acceptable manner from an
accounting standpoint and from which expenditures could not be verified; and where
respondent failed to submit documentation relating to the affairs of the enterprise or a
satisfactory explanation for the absence of such documentation.
(3) Where the immigration judge concluded that the male respondent had previously been
untruthful in his testimony concerning his prior employment in the United States, and
found that female respondent had entered this country as a nonimmigrant with a
preconceived intent to remain in the United States, denial of the applications for

adjustment of status was warranted in the exercise of discretion notwithstanding the
fact that respondents were the parents of a United States citizen child and may have
developed other ties in the United States.
CHARGE:

Order: Act of 1952—Section 241(aX2) U.S.C. 1251(a)(2)]—Nonimmigrant visitor-remained longer (both respondents)
ON BEHALF OF SERVICE:
ON BEHALF OF RESPONDENT:
Brian H. Simpson
Robert S. Bixby, Esquire
Trial Attorney
30 Hotaling Place
San Francisco. California 94111

This case has been before us on several prior occasions, and it is now
here on the respondents' appeal from the latest decision of the immigration judge, dated October 21, 1975. That appeal will be dismissed.

794

Interim Decision #2525
The respondents are husband and wife. The male respondent is a
native and citizen of China, and the female respondent is a native and
citizen of Japan. They have conceded deportability under section
241(a)(2) of the Immigration and Nationality Act as nonimmigrants who
have remained beyond the authorized length of their stays. Throughout
the course of these proceedings, the respondents have sought adjustment of status under section 245 of the Act. The only issues on appeal
involve their application for that relief.
The respondents seek section 245 relief as nonpreference immigrants.
The male respondent claims to satisfy the labor certification requirements of section 212(a)(14) as an "investor" within the contemplation of
8 CFR 212.8(b)(4). The eligibility of the female respondent for adjustment of status evidently depends on the case of her husband, because
she claims no independent eligibility and apparently has no independent
means of support.
The immigration judge denied the applications for adjustment of
status, finding that the male respondent had not satisfactorily shown
that he qualifies as an "investor," and that the respondents did not merit
a favorable exercise of discretion in any event. We agree with the
immigration judge In both respects.
The male respondent claims an investment of about $13,000 in a
Chinese restaurant located in Santa Clara, California (Tr. p. 80). We
last remanded the record to the immigratitin judge in part to enable the
respondent to further document the alleged investment and thereby
satisfy the burden of proof requirements set forth in Matter of Ahmad.
15 I. & N. Dee. 81 (BIA 1974).
At the reopened hearing, the male respondent presented photocopies
of numerous cheeks allegedly used in payment for such items as furniture, equipment, and fixtures relating to the restaurant (see Exh. 9; Tr.
pp. 64, 66). These checks constitute the primary evidence of the amount
of the male respondent's investment. The checks, by themselves, however, do not show what items have been purchased by the male respondent, and the male respondent did not have any corresponding invoices
to substantiate his testimony.
Many of the checks are merely made payable to the order of "cash."
Others, such as the numerous monthly checks made out to "NCR," could
easily be in payment for leased items. However, the amount of an
investment under 8 CFR 212.8(b)(4) in leased items is limited to the
funds which are devoted toward that item in any one month (i.e. a
monthly rent plus any deposit). The rent on leased premises or equipment will generally come from the current earnings of the business, and
neither the market value of the item nor the yearly rental figure is
representative of the funds necessarily "invested" in that aspect of a
business. Cf. Matter of Ahmad, supra (dealing with the same problem
795

Interim Decision #2525
as it relates to cumulative payments for revolving inventory). It is
therefore not clear whether all of the checks represent payments which
are properly claimable as part of the investment.
The male respondent's other major piece of documentary evidence in
support of his investor claim is a financial statement of his business
prepared by a public accountant in California. The financial statement,
however, was prepared without an audit, and the accountant could not
express an opinion as to the accuracy of the presentation. It appears
that the male respondent's books were not maintained in an acceptable
manner from an accounting standpoint, that certain cash expenditure
items could not be verified by the accountant, and that the financial
statement was prepared exclusively from data for-yarded by the male
respondent to the accountant. We find that the financial statement does
not satisfy th e requirements set forth in Matter of Ahmad, supra. The
male responEent has not shown the amount of his investment, and he
has therefore failed to show that he qualifies for this exemption from
labor certification.
'On appeal, counsel has attacked our holding in Ahmad as an attempt
to single out investors for treatment which is different from that accorded other section 245 applicants with respect to evidentiary requirements. We did not declare in Ahmad that an investor has a higher
burden of proof to meet than other section 245 applicants. Instead, our
ruling merely requires that an investor claimant come forward with the

best available evidence of his investment. There are sound reasons for
such a requirement.
Section 212(a)(14) requires that the Department of Labor issue a labor
certification for certain categories of aliens who seek to enter the United
States to perform skilled or unskilled labor. An alien who qualifies under
8 CFR 212.8(b)(4) is exempt from this requirement. The exemption,
however, should not merely be a means of circumventing the labor

certification requirement for a skilled or unskilled laborer.
In the United States it is difficult to establish and operate a business
of any significant size without generating some documentation reflecting

the affairs of the enterprise. Large purchases of equipment and inventory are rare4 unaccompanied by invoices or other indicia of a contractual arrangeraent. The market value of land, buildings, equipment and
machinery can be appraised. Accounting audits can be conducted to
verify the financial status of most enterprises. Finally, records required
to be kept by various governmental authorities will frequently provide

some indicatian of the nature and extent of a business venture.
In Matter of Ahmad, supra, we merely held that an investor claimant
must be prepared to present some of this documentation, or satisfactorily explain why none of this exists for his business. We adhere to that
ruling.
796

Interim Decision #2525
Counsel also argues that the male respondent gave an explanation for
the absence of supporting documentation. We, however, can find no
satisfactory explanation in the record for the male respondent's failure
to present invoices or other supporting evidence. Even though the male
respondent may have destroyed or lost many of the important documents relating to his business, it is not unlikely that the companies from
which he has made purchases have kept some record of the various
transactions. Thus, as an example, the male respondent could have
satisfied us that the payments to "NCR" were not pursuant to a lease
agreement merely by obtaining a copy of the original contract from that
firm.
Counsel maintains that the male respondent gave credible testimony
that all the checks presented in evidence related to the purchase of
equipment, furnishings and fixtures for the restaurant. The immigration
judge did not make a specific finding regarding the male respondent's
credibility on this point. The immigration judge, however, did reaffirm
his finding, initially made in his decision of August 26, 1970, that the
male respondent was at times untruthful in his testimony at an earlier
hearing. We agree with that finding. We decline to accept the male
respondent's testimony on the amount of his investment because hehas
been untruthful before, he has not presented_ documentation which
appears to us to be available from some source, and he has failed to
adequately explain the absence of that documentation.
The male respondent has not shown that he is admissible to the
United States for permanent residence under section 212(a)(14) of the
Act. Neither respondent is statutorily eligible for adjustment of status.
The immigration judge also concluded that the respondents did not
merit a favorable exercise of discretion on their applications for section.
245 relief. That conclusion, reached after, a weighing of the deinonstrated favorable and unfavorable factors, was correct. See Matter of
Blas, 15 I. & N. Dec. 626 (A.G. 1976); Matter of Arai, 13 I. & N. Dec.
494 (BIA 1970).
The respondents have one United States citizen child, they evidently
hold some property here, and they presumably have developed other
ties to the United States over the course of their stay. They also have
alleged hardship in the potential breakup of the family. The male respondent claims he could not reside in Japan, the country of his wife's
birth, and he doubts that his wife would be permitted to accompany him
to Taiwan. In our decision of August 29, 1975, we remanded in part so.
that evidence of this potential separation could be introduced into the
record. At the reopened hearing, no evidence was presented along these
lines, other than the bare assertions of the male respondent. The respondents, who have the burden of proof on their section 245 applications, have not shown that their family would be separated permanently
797

Interim Decision #2525
upon deportation. The remaining favorable factors do not outweigh the
adverse factors present in their case.
The immig:ration judge found that the female respondent entered the
United States with a preconceived intent to remain permanently. Counsel concedes that finding to be correct. A preconceived intent to remain
permanently is a significant factor bearing upon the exercise of discretion: See Soo Yuen v. INS, 456 F.2d 1107 (C.A. 9, 1972); Ameeriar v.
INS, 438 F.2t1 1028 (C.A. 3, 1971), cert. dismissed, 404 U.S. 801 (1971);
Chen v. Foley, 385 F.2d 929 (C.A. 6, 1967), cert. denied, 393 U.S. 838
(1968); CubiLlos - Gonzalez v. INS. 352 F.2d 782 (C.A. 9, 1965); Castillo

350 F.2d 1 (C.A. 9, 1965). In the past, we have denied adjustment of status to aliens who entered with a preconceived intent to
remain permanently, even though the aliens had significant family ties
in the United States. Matter of Muslemi, 121. & N. Dec. 249 (BIA 1967)
(United States citizen spouse); Matter of Tonga, 12 I. & N. Dec. 212
(BIA 1967) (1Jnited States citizen child and brother); Matter of RubioVargas, 11 I. & N. Dee. 167 (BIA 1965) (lawful permanent resident
spouse). See also Matter of Allotey, 15 I. & N. Dee. 351 (BIA 1975). The
female respondent does not merit a favorable exercise of discretion.
v. INS,

As an adverse factor, the immigration judge found that the male

respondent had been untruthful in his testimony during the hearing in
1970. Counse:. disputes this finding. We, however, agree with the immigratinn judge.

In 1970, the male respondent was a partner in a Chinese restaurant in
Palo Alto, California. He was receiving income of approximately $800 a
month from his participation in that venture (Tr. p. 30). He evidently
spent varying amounts of time working at the restaurant as a busboy,
cook, waiter or cashier (Tr. p. 29).
Prior to revealing his participation in the restaurant on crossexamination, the male respondent testified that he had not been employed in the United States (Tr. p. 11), and that his means of support

consisted of savings and family assistance from abroad (Tr. p. 15). The
nature of the male respondent's employment was brought out on crossexamination and he thereafter amplified his testimony regarding his
means of support (Tr. p. 45).
The immigration judge, who had an opportunity to observe the
witness, concluded that the male respondent's testimony had been untruthful. An immigration judge's evaluation of a witness is entitled to

considerable weight in this respect. Matter of Teng, 15 I. & N. Dec.
516 (BIA 1975); Matter of S—, 8 I. & N. Dec. 574 (BIA 1968); Matter
of T—, 7 I. & N. Dec. 417 (BIA 1957). A denial of adjustment of status in
the exercise of discretion was warranted in view of the male respondent's untruthful testimony.
The immigration judge accorded both respondents the privilege of
798

Interim Decision #2525
voluntary departure in his decision of August 26, 1970. The Service has
not challenged that grant, and the respondents have never been forced
to exercise that privilege because of the various remands of the record
which.we-have ordered. The respondents therefore are still entitled to
the privilege of voluntary departure in accordance with the immigration
judge's order of August 26, 1970.
ORDER: The appeai is dismissed.
Further order: Pursuant to the immigration judge's order, the respondents are permitted to depart from the United States voluntarily
within 28 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondents shall be deported in accordance
with the immigration judge's order of August 26, 1970.

799


Interim Decision 4t1560

31.vrrEn or Rossi
In Deportation Proceedings
A-3459526
De*led by Board March, J0,1966
Since respondent is an alien, having been denaturalized in 1962, he is deportable under section 241(a) (11), Immigration and Nationality Act, as
amended, on the basis or his narcotics conviction in 1954, notwithstanding
the conviction occurred at a time when he was a naturalized U. S. citizen.
CHARGES
Order: Act of 1952—Section 241(10(11) [8 'I7.9-0. 1251(a)(11)3—Convicted of unlawful sale of narcotics.

Act of 1952—Section 241(a) (11) 18 U.S.C. 1251(a) (11)3—Con.
victed of conspiracy to sell narcotics.
Lodged: Act of 1052—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable
at entry under section 3, Immigration Act of 1917
[8 U.S.C. 136, 1946 Ed.)—Convicted of crimes—
aggravated theft (two offenses); sale of military
effects; complicity in inflicting lesions; criminal
association to commit premeditated homicide.

This case is before us on appeal from a. decision of a special inquiry officer denying the application under 8 U.S.C. 1254(a) and directing the respondent's •deportation.
The respondent is a 64-year-old married male who is a native of
Italy and whose present citizenship has not been determined. He
first entered the Tnited States in 1937 as a stowaway. Following
preexamination proceedings; he was lawfully admitted for permanent residence on March 5, 1946- and became a naturalized United
States citizen on December 6, 1951. A denaturalization suit was subsequently filed, and the deeree admitting him to citizenship Nv.' as set
aside on December 26, 1962. On February 17, 1954, in the United
States District Court for the Southern District of New York, the
respondent was convicted on two counts of an indictment for unlawfully conspiring to sell narcotics and for unlawfully selling narcot- 514

Interim Decision #1560.
Ira in violation of 18 U.S.C. 371 and 21 U.S.C. 173474. The convictions for those two offenses are the basis for the two charges in the
order to show cause. The special inquiry officer held that these two
charges were sustained. The issues are whether this ruling is correct
and, if so, 'whether the respondent is eligible for any discretionary
relief. Since we concur in the special inquiry officer's conclusion, concerning deportability, it is unnecessary to determine whether the re- spondent is additionally deportable on the charge lodged at the hearing which was that the respondent was excludable at the time of his
entry because of convictions , occurring in Italy during the period,
from 1919 to 1929.
.
With regard to the issue of deportability, both parties seem to

concede that the question resolves itself into Whether the respondent's
case is controlled by Costello v. low* ration and Naturalisation
Service, 876 U.S. 120 (1964). Costello is similar to the _case of the
respondent with respect• the fact that both individuals were naturalized as United •Stales citizens, were then convicted of crimes,and
were then denaturalized.
. Counsel asserts that the special inquiry officer was in. error in
stating that the court's .decision in the Costello case was based, in
part, upon the use of the present tense "is convicted" in section. 241
(a) (4) of the Immigration and Nationality Act. It is-true that the
third clause of section 241(a) (11), under which :the respondent's deportation is sought, contains The language "who hai been convicted."
However, we agree with counsel that the court's opinion shows that
the Costello decision was not predicated on the fact that the.present
tense "is"'had been used,
In Costello v. Immigration and Naturalisation Service, supra, the
court said that there were two possibl& constructions of s_ eCtion 241
(a) (4) ; that .there is nothing in the legislative history so specific
as to resolve the ambiguity of the statutory language; and that considerable light is forthcoming from Section 241(b) (2). Counsel al:
leged that the court merely stated that -its reference to section 241 .(b)additional evidence why section 241(a) (4) was 'not' appliCable was
to Costello; that this was not the reason for the court's conclusion; .
andthecoursaitwnWgs.decioupn
that factor. Other thin counsel's bare statements, there is nothing in
his brief which supports them. After careful analysis of the court's
opinion, we are satisfied that it 'was, in fact, primarily predicated
on the provisions of section 241(b) and the fact that Costello, being
a naturalized citizen at the time of his convictions, was depriVed
of any opportunity of requesting the sentencing court to recommend
515

•Interim Decision #1560
against his deportation. Accordingly, we reject this contention of

counsel.
As the Supreme Court stated in Costello at page 126, section
241(b) (2) is made specifically applicable to section 241(a) (4).
This is because section 241(b) contains the language: "The provisions of subsection (a) (4) * * * shall-not apply * * (2) if the
court * * * shall make * * * recommendation to the Attorney General that such alien not be deported * *." Since the court's
authority to recommend against deportation was thus limited_ to
deportation charges under section 241(a) (4) • it follows that, under
•

the Immigration and Nationality Act of 1952, a court had no such

authority as to deportation charges based on section 241(a) (11).
Counsel asserts that, notwithstanding this language of section 241(b),
"the Courti had regularly ruled that a judicial recommendation
against deportation, precluded deportation even in a "narcotics case
* *." However, no judicial decisions were cited for this propo-

-

sition. We are satisfied that the cases, involving judicial recommendations against deportation in narcotic cases, were those in
which the recommendations had been made prior to December 24,
1952, the effective date of the Immigration and Nationality Act
and of section 241(b). - In two cases, - recommendations against deportation had been made prior to December 21, 1952; deportation
proceedings were instituted after December 24; 1952; and the courts
held that the status of nondeportability, which the anent acquired prior to the effective date of the immigration and Nationality Act,

continued to protect them from deportation thereafter.
United
States ex rel. De Luca v. O'Rourke, 213 F.2d 759 (8th Cir., 1954),
and Ex parte Robles-Rubio, 119 F. Supp. 610 (N.D. Cal., 1954).
However, this theory was rejected by the Supreme Court in Lehmann v. United, States ex rel. Carson, 853 U.S. 685 (1957), and
Mulcahey v. Catalanotte, 353 'U.S. 692 (1b57). Thereafter, we
specifically held in Matter of 17-31—, 8 L & N. Dec. 94 (1958), that

an alien Was deportable on the basis -of a narcotic conviction not-withstanding the, sentencing court's recommendation against deportation made in 195Section 301(c) of the Act of July 18, 1956 [Narcotic Control Act
of 1956) added to section 241(b) of the Immigration and Nationality
Act [8 U.S.C. 1251(b)] the following sentence: "The provisions of
this subsection shall not -apply in the case of any alien who is
charged with being deportable from the United States under subsection (a) (11) of this section." Counsel •contends that, inasmuch
as the respondent's convictions occurred prior to July 18, 1956, the,
sentencing court could have made s recommendation against deportn.516

Interim Decision #1560
tion if he had not been an ostensible citizen at that time.' The
respondent's convictions occurred on February 17, 1954 which was
subsequent to the effective date of the Immigration and Nationality
Act [Deeernber 24,1.952]: Counsel has not cited any judicial decision
in which a sentencing court made a recommendation against deportation in a narcotic case after December 24, 1952, and we are not
aware of any. As we have indicated above, the opening language
of section 241(b), as originally enacted, made. this provision inapplicable to a deportation charge under section 241(a) (11). Conference Report No. 2546,1 which is part of the legislative history of
the Act of July 18, 1956, indicates that the addition of the quoted
sentence was not for the purpose of changing metion . 211(b) but
merely for the purpoie of clarifying its original meaning., Even
if the respondent had not been a citizen but had been an alien for
all purposes at the time of the convictions in 1954, we are con-•
vinced that the sentencing court could not have made a valid recommendation: against' doportation. We must, therefore; reject counsel's
contention insofar as it is based on the Act of July 18, 1956.
For the reasons indicated above, we are satisfied that the respond - _
ea's case is not controlled by the Costello decision. On the saw;
trary, we believe that the respondent's ease cannot be distinguished.
from United States ex rel. Elehenlaub v. Shaughnessy, 338 -U.S. 521
(1950). That case also involved a conviction during a period when
the individual was a naturalized citizen, and the court held that
he was deportable. Since the respondent is now an 'alien and he
"has been convicted" of a narcotic violation, we hold that he is
deportable in accordance with the provisions of section 241(a) (11)
of the Immigration and Nationality Act.
Counsel's brief does not contain anyargument
art
that. the special
inquiry officer was in error in holding that the respondent was
statutorily ineligible for suspension of deportation or any other
form of discretionary relief. This matter was fully discussed by
the special inquiry officer, and we concur in his conclusions. Accordingly, the appeal will be dismissed.
ORDER: It is ordered that the appeal be .and the same is hereby
dismissed.
'1950 U.S. Code Congressional and Administrative, News, WI 2, p. 3321.

517


Interim Decision *1476

Mars= of &swam
In Deportatioxf Proceedings
A-8101839
A-•3228006
Decided by Board May M. 1966
A conviction for Wining or passing a viurti ►leas check in violation of paragraph
94324 of the Wisconsin Statutes is not a conviction of a crime involving

moral turpitude.
CHARGE:
Order: Act of 1852--Section 241(a) (4) [8 tail 1251(a) -(4)]—Convicted
after entry of two crimes involving moral taipitude,
not arising out. of a single scheme of criminal misconduct, to wit, issue of worthless check.

The special inquiry officer certified his order terminating proceedings.
Respondents, a 40-year-old male and his 30-year-old wife, are
natives and citizens of Polaind lawfully admitted to the United
States for permanent residence: the male on September 11, 1951 and
the female on January 5, 1952_ The deportation of each is sought

because of their, separate -convictions for passing worthless checks
in violation of paragraph 943.24 of the Wisconsin Statutes. The
male was convicted on May 25; 1963 for passing of checks on January 12, 1963 and on February 9, 1963; his wife Ivas convicted onFebruary 7, 1962 for issuing a worthless check on October 3, 1961
and one on November 28, 1961; and she was convicted on May 29,

1962 for issuing a worthless check on March 21, 1962. All convictions were on a plea of guilty; the defense of a single scheme is not
raised.
The statute provides that the crime is committed when one issues a
check "which, at the time of issuance, he intends shall not be paid."
The statute provides that lack of intent to pay may be found prima
facie from proof that at the time of issuance there was no account,
or from proof that there was a failure to- pay within five days after .•
' 202

Interim Decision #1476
notification of nonpayment and the drawer had insufficient funds
either at the time the check was drawn or the time it was presented
for payment. The special inquiry officer terminated proceedings because he found that intent to defraud was not an element of the.'
statute. The Service concedes that intent to defraud has not been ar
element of the offense since 1955 but maintains that moral turpitude
is involved because moral turpitude was found in a similar statute involving the Virgin Islands (Matter of M—, 9 I. & N. Dec. 743). The
Service believes that Matter of Id— has not been modified or overruled. At oral argument, the Service representiltive contended that
while the presence of an intent to defraud establishes moral turpi-

the absence of an intent to defraud does not necessarily establish the nonexistence of moral turpitude. The Service representative
points out that the statute was changed in 1955 to make possible the
conviction of a person who had funds on deposit to pay a check but
had issued a check intending to stop payment upon it. He attempts
to distinguish Matter of Bailie, Int. Dec. No. 1379, from the case
tude,

before us on the ground that Bailie, involving a similar statute,

turned on the fact that a. person could be convicted who had no intent. to defraud whereas in the instant case the change of the statute
was brought about by a desire to convict a person who had the intent
to defraud but who because of the wording of the previous statute
could not be convicted. He contends that an intent not to pay the
check is an element of the crime.
C,ormsAl contends the primary reason for the change in the statute
before us was the inability of courts to cope under previous statutes
with the large number of cases involving the issuance-cif worthless
checks. He distinguishes the instant case from Matter of AL—,
in that, here knowledge that sufficient funds did nut exist to meet
the payment is not required whereas in Matter of M— such knowledge was required. He points out that the ...ecord establishes that
the respondents did not intend to stop payment and that they hoped
to pay the check. In Matter of Bailie, supra, and Matter of Kinney,
Int. Dec. No. 1343, involving statutes similar to the one before us,
we pointed out that since an intent to defraud was not involved,
there was absent the moral turpitude required to support an order of
deportation. We stated that the language in Matter of M—, supra,
involving the Virgin Islands was broad and would be reexamined
when a. ease involving the law of the Virgin Islands was again before us. The issuance of Matter of Bailie, and the caution concerning the language contained in Matter of Af—, is sufficient to prevent
Matter of M— being considered as a precedent for cases not involving the law of the Virgin Islands. Matter of M— will be considered

203

Interim Decision #1476
in light of all the evidence concerning the law of that jurisdiction
'when the issue is again before us. The intent not to pay the check
set up by the Wisconsin statute is found irrespective of the drawer's
actual intent, upon a showing that one of several alternative methods
of payment have not been made; . conviction is possible although the
check was drawn and passed with intent to pay.* intent to defraud
is not an element. It is well settled for the purpose of the immigration laws that it is not the act committed by the alien which is to be
made the basis for deportation proceedings but the act which is
punished. by law. The statute here punishes an act committed without intent. to defraud. It cannot therefore be made the basis for
deportation proceedings (Matter of Bailie, supra, Matter of Siwaey,
supra).
ORDER: It is ordered that no change be made in the order of the
special inquiry officer.

204


Interim Decision #1950

MATTER OF ADAM AND AUGUSTINE
In Visa Petition Proceedings
• A-18246988-9
Decided by Board March 28, 1969
Under the law of British Honduras the legitimation of a child born out of
wedlock occurs only through the marriage of the natural parents of the
child.
ON BEHALF Or PETITIONER:

Ernest N...Idorial, Esquire
1821 Orleans Avenue
New Orleans, Louisiana 10116

The case comes forward on appeal from the order of the District Director, New Orleans District, dated October 16, 1968 denying the visa petition for the reason that the facts presented
disclose that the petitioner never married the mothers of the beneficiaries and that the beneficiaries have never been otherwise legitimated; therefore, it was concluded that the benficiaries are not
children as defined in section 101(b) (1) of the Act.

The petitioner, a native of British Honduras, a naturalized citizen of the United States, 50 years old, male, seeks preference
quota status on behalf of the beneficiaries as his sons. The beneficiaries are natives and citizens of British Honduras, born March

11, 1949 and January 19, 1945, single, The petitioner was married at Gretna, Louisiana on July 12, 1945 to Dorothy Spears.
The younger beneficiary is the illegitimate son of the petitioner
by Mary Galves. The older beneficiary is the illegitimate son of
the petitioner by Ina Broaster.
Section 101 (b) (1) (C) defines the term "child" to mean a child
legitimated under the law of the child's residence or domicile, or
under the law of the father's residence or domicile, whether inside or outside the United States, if such legitimation takes place
before the child reaches the age of 18 years and the child is in the
legal custody of the parent or parents at the time of such legitimation. Both beneficiaries were born in British Honduras. The
Laws of British Honduras of 1958, Volume 4, Chapter 190 (the
177

Interim Decision #1950
British Honduras Legitimacy Ordinance), provide for the legitimation of a person only through the marriage of his natural parents. The Legitimacy Ordinance also provides that an illegitimate
person as regards his or her mother has in all respects the same
status, rights and obligation as if he or she had been born of his
or her mother in lawful wedlock. It is, therefore, clear that the
beneficiaries are not legitimated children under the law of the
place of their birth because there was no marriage of the natural
mothers with the natural father. There is no evidence of legitimation under the law of the father's domicile or residence, Louisiana.
The file contains a copy of In re Howard's Petition, 147 F.
Supp. 676 (W.D_ Mo., 1956). This case involved a petition for

naturalization filed by the mother on behalf of her illegitimate
child. The court held that the term "child" as used in Title III as
defined in section 101(c) (1) of the Immigration and Nationality
Act included an illegitimate child of the mother who might be
naturalized on the petition of his mother under the provisions of
section 322 of the Immigration and Nationality Act of 1952. This
case is not applicable to the instant visa petitions which have
been filed by the natural father of the illegitimate beneficiaries.
ORDER: It is ordered that the appeals be and the same are
hereby dismisied.

178


Interim Decision 112765

MATTER OF CARBAJAL
Application for Permission to Reapply for Admission
A-22870733

Decided by Commissioner October 26, 1978
(1) This case involves an application for permission to reapply for admission under
section 212(2)(17) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(17), by an
applicant who is the beneficiary of an approved visa petition filed under section
203(a)(6) of the Act, 8 U.S.C. 1153(a)(6), by a United States employer. This employer is
in need of the applicant's services and is suffering hardship due to inability to fill the
job which has been offered the applicant.
(2) Applicant has been in the United States unlawfully several times. Each time he came
to Service attention, he was granted the privilege of voluntary departure under section
244(e) of the Act, 8 U.S.C. 1254(e). Since a finding of good moral character is required
for a grant of voluntary departure, this record does not sustain a finding that these
immigration violations rendered applicant a person of bad moral character.
(8) Applicant's four occasions of illegal entry are not to be condoned. However, given the
need for applicant's services in the United States and his eligibility for the issuance of
an immigrant visa, along with the other favorable and unfavorable factors, the
interests of all parties concerned would be best served if the application were granted.
ON BEHALF or

PETITIONER:

Edward Weinstein, Esquire
2305 Las Vegas Boulevard, South
Las Vegas, Nevada 89104

This matter is before the Commissioner on certification an provided
by 8 C.F.R. 1013.4, for review of the Regional Commissioner's decision to
dismiss the appeal from the District Director's decision to deny the
applieation far permission to reapply for admission into the United

States after deportation or removal.
The applicant is a 27-year-old native and citizen of Mexico. The
record shows that the applicant is married to a native and citizen of
Mexico, and has two children, both born in Mexico. The applicant last
entered the United States on or about April 23, 1975, near Columbus,
New Mexico, by evading inspection. He was found by immigration
officers employed on a ranch near Pahrump, Nevada, on May 19, 1976.
The applicant, his spouse, or children have not been admitted for

permanent residence to the United States. He admitted that he had
272

Interim Decision #2765
illegally entered the United States on three previous occasions, and
had been granted voluntary departure prior to the institution of deportation proceedings on each of the previous occasions. The last
previous voluntary departure occurred at Dallas, Texas, in 1971. The
applicant was again granted voluntary departure prior to the institution of deportation proceedings and was granted until June 1976 to
depart. The applicant, through counsel, notified this Service on June 9,
1976, that he did not intend to depart from the United States voluntarily, and an Order to Show Cause why he should not be deported was
issued on June 9, 1976, by the District Director at San Francisco. The
hearing was set for June 16, 1976. The immigration judge found that

upon the basis of the applicant's admissions, the applicant was deportable. The applicant then made application for voluntary departure,
and the judge entered an order granting the applicant until September
16, 1976, to depart the United States voluntarily; and further ordered
that should the applicant fail to depart when and as required, the order
of voluntary departure would be withdrawn and deportation would be
effected. On September 10, 1970, the applicant, through counsel, petitioned the Ninth Circuit of Appeals for review of the deportation
proceedings. On January 3, 1977, this petition was dismissed on a

Service motion that the court lacked jurisdiction since the applicant
had not exhausted all administrative appeals. The applicant was then
deported to Mexico on February 3, 1977.
In support of his application, the applicant calls attention to the fact
that he is now eligible to receive a permanent resident visa by reason
of an approved sixth-preference petition submitted in his behalf by
Theodore Blosser. The petition is supported by a labor certification
issued by the Secretary of Labor which certifies there are no United

States residents available to fill the job which Mr. Blosser is offering,
In addition to establishing a need for the services of the applicant, Mr.
Blosser, in a separate letter of supplication to this Service, points out
the hardship that is occurring to him because of his inability to find a
qualified person to fill the position which he has offered.
The Regional Commissioner, in dismissing the applicant's appeal
from the District Director's order denying the instant application,

cited Matter of Tin, 14 I&N Dec. 371 (BIA 1973), and found that the
adverse factors outweighed the favorable factors. He opined that the
record of previous immigration violations established that the applicant could not establish good moral character or proper respect for law
and order, and that these factors outweighed the need for the applicant's services and the hardship encountered by Mr. Blosser.
The Board of Immigration Appeals addressed the matter of immigration violations with regard to the establishment of good moral
character in Matter of T—, 1 UN Dec. 158 (BIA 1941). In Matter of T—,
273

Interim Decision #2765

id, the Board held that three deportations and two convictions for
reentry after deportation did not substantiate a finding of bad moral
character, since there appeared to be no moral turpitude in the conduct
and attitude of the respondent, and nothing evincing a calloused
conscience.
In the instant case, we have a far less extensive record compared to
that in Matter of 2'—, id. In addition, we find the applicant has, on each
occasion he came to Service attention, been granted the privilege of
volUntary departure, which requires a finding of good moral character.
Therefore, I conclude that the record does not sustain a finding that the
applicant is a person of bad moral character.
The Regional Commissioner's finding that the applicant has failed to
establish that he has proper respect for law and order is also based on
the four illegal entries effected by the applicant. The record is silent as
to any other infractions of law, and I will assume that in all other
aspects, the applicant does appear to abide by the law. The applicant's
last illegal entry into the United States occurred 4 years after having
been granted voluntary departure in 1971. The record is silent as to the
factors that finally motivated the applicant to enter the United States
illegally.
I will not condone these four occasions of illegal entry by the applicant; however, I find that when balanced against the need for the
applicant's services in the United States and his current eligibility for
the issuance of an immigrant visa, as well as all other factors favorable
and unfavorable not specifically mentioned, that the interests of all
parties concerned would best be served if permission to reapply after
deportation were granted in the instant case.
ORDER, The order of the District Director denying the application for permission to reapply after deportation and the Regional
Commissioner's Order dismissing the appeal from that order are set
aside, and the application is hereby granted.

274


Interim Decision #1621

MATTER or Maxotrx
In Deportation Proceedings
A-12041077
Decided by Board Jury 15, 1986

-

Collateral attack on an order of deportation executed in 1953 is warranted
when that order resulted in a gross miscarriage of justice because, upon the
basis of the then existing judicial and administrative decisions, the finding
of deportahuity was not In accord with the law as interpreted at that time.
CHAIM
Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable
at time of entry—Section 212(a) (17) [8 U.S.C.
1182(a) (17)3 and section 242(f) [8 13.8.0. 1252(f) ]
—Entry after deportation as prostitute.

The special inquiry officer certified his order terminating proceedings.
In issue is the propriety of respondent's deportation hi 1953 and
the effect of subseqUent reentries without permission to reapply_

The facts have been fully stated in previous orders. Briefly, respondent, a divorced female, a native and citizen of Canada, was admitted to the United States in 1925 for permanent residence with her
parents and other.members of her family. On December 7, 1953 she
was deported to Canada on the charge that she had engaged in prostitution after entry (section 241(a) (12) of the Act, 8 U.S.C. 1251
(a) (12) ) (administrative appeal was filed, but later withdrawn).
At that deportation hearing, the respondent consistently denied that
she had ever committed an act of prostitution. The evidence presented to sustain the charge was a record of conviction on a plea of
guilty to a charge of soliciting and offering to commit prostitution in
New Orleans in 1953. There was no independent evidence to support
the record of conviction. Respondent explained the conviction as
arising out of an incident in which an individual forced himself upon
her and when the police came upon the scene accused her of offering
to commit prostitution.

730

•

Interim Decision *1621

Respondent never obtained the consent of the Attorney General to
her applying for admission after deportation (section 212(a) (17) of
the Act, 8 U.S.C. 1182(a) (17)). However, she reentered the United
States in 1958 or 1959. On April 21, 1964 she was deported for having reentered without the Attorney General's consent to apply.
She again entered the United States on. November 24, 1964. In
March 1966 the Service started the instant proceedings under section 242(f) of the Act (8 U.S.O. 1252(f) ) to deport respondent on
the basis of the 1953 order of deportation, and because of the fact
she had entered without the Attorney General's consent. The special
inquiry officer ruled that the 1953 deportation was a gross miscarriage of justice, that it most be considered a nullity, and that it
therefore could not serve as a basis for deporting the respondent. The
special inquiry officer ruled as he did because of his belief that the
charge should not have been sustained at the original hearing for at
that time proof of even one not of prostitution. would. not have required a. finding of deportability (U.S. ex rel. Mittleo v. Curran,

8 F.2d 355, 2d Oir., 1925; see Mirabal-Baton v. Esperdy, 188 F.
Snpp. 317, S.D.N.Y., 1960; Matter of 2"—, 6 I. & N. Dec. 474) and at
that time the Service had not even presented proof of one act of
prostitution: the controverted proof merely showed an oiler to commit prostitution.
We concur in the special inquiry officer's well-reasoned conclusion.
Respondent's deportation in 1953 on the charge that she had been a
prostitute is based upon a record which plainly reveals that the Service had failed to sustain its burden of proof. There was a gross
miscarriage of justice; the error should not be perpetuated (McLeod
v. Peterson, 283 F.2d 180 (3rd Cir., 1960); accord, • United States v.
Bowles, 331 F.2d 742 (3rd Cir., 1964) ; see Matter of S—, 3 I. & N.
Dec. 83. But see De Souza v. Rarbar, 263 F.2d 470 (9th Cir., 1959),
cert. den. 359 U.S. 989).
The Service pointing to judicial decisions holding that a collateral
attack on a prior deportation proceeding cannot be made unless there
was a lack of due process or a jurisdictional issue, contends that
neither of these elements is present here. The short answer is that
the special inquiry officer relied upon judicial and administrative
authority permitting collateral attack where there has been a gross
miscarriage of justice.
The Service contends that the issue of deportability should not be
retried so many years after it was decided. We are neither reevaluating evidence nor applying an interpretation of law made subsequent to the time of the original deportation decision. We merely
state that on the basis of judicial and administrative decisions exist731

Interim Decision #1621 •
ing at the time of the original proceeding,' no order of deportation
should have been entered. The finding of deportability In. 1953 was
not in accord with the law as interpreted at that time.
Without citation of authority, the Service contends that the Board
is interfering with the operation of criminal statutes (relating , to the
reentry of deported aliens) by permitting a collateral attack on the
prior deportation proceeding. The contention cannot stand in view
of the judicial authority which permits collateral attack under certain circumstances.
The Service contends that the special inquiry officer acted in the
belief that proof of even one act of prostitution could not have served
as the basis for deportation in 1953, whereas the law then. was that
such proof might be sufficient. The special inquiry officer's statement
must be taken as applied to the facts before him where there, was no
proof that the respondent had engaged in prostitution.
The special inquiry officer properly waived the technical grounds

of deportation which might arise from the fact that the respondent
reentered the United States without proper documents after her deportation. In addition, we shall give the respondent a munc pro tuna
grant of permission to reapply in connection with each of these reentries to eliminate whatever technical objection may arise from the
fact that she reentered without the prior consent of the Attorney
General after having been deported.
ORDER: It is ordered that respondent be granted permission to
reapply mow pro tuna in connection with each entry made after her
deportation in 1953.
It is further ordered that no ehang,e be made in the order of the
special inquiry officer.


Interim Decision 01461'

Mama or Soo Hoo
In Visa Petition Proceedings
A-13881251
Decided by Board April 22, 1966
petitioner in 1938 when the former was 32
years old and the latter was 27 years old does not constitute a valid adoption
in accordance with Article 1073 of the Chinese Civil Code which provides
that the adopter "mist be at least 20 years older than the person to be
adopted.

Beneficiary's adoption in China br

The case comes forward on appeal from the order of the District
Director, New York District, dated January 22, 1965 denying the
visa petition for the reason that it has not been established that
the adoption of the benficiary was effected in writing in accordance
with Article 1079 of the Chinese Civil Code; the mere statement by
the petitioner that an adoption certificate has been obtained and
lost is merely self-serving and does not overcome the burden of proof
resting upon the petitioner.
The petitioner, a native of China, a citizen of the-United States
by naturalization on June 17, 1963, 53 years old, female, seeks quota
preference status under section 203(a) (4) of the Immigration and
Nationality Act on behalf of her married adopted son, a native and
citizen of China, 27 years old.
In a sworn statement before a Service officer on December 9, 1964
the petitioner testified that she adopted the beneficiary in 1938; that
her husband was not present at the time of the adoption, having
already returned to the United States, but that she obtained his
permission before she went through with the adoption. She stated
that just prior to the death of the beneficiary's natural mother she
asked her to bring up her son, and signed a document giving the
son to her. The son was about 12 years old at the time. However,
she has stated that the adoption document was lost and that she. has
no documentary evidence of the adoption. The petitioner arrived
in the United States in 1948 but has never previously mentioned the
151

Interim Decision #1461
existence of this adopted child who was 22 years,old when she left
for the United States in 1948. She stated that she and her husband
had been contributing to the support of the beneficiary but did not
have any check receipts and actually the money was sent to her sister

in Hong Kong who changed the money and sent it to her son in the
village on the mainland of China. She stated that she introduced
the beneficiary as her adopted son to an affiant, Li Jin Chin Yee.
In response to a number of leading questions by her attorney in
which the answers were suggested and only an affirmative reply was
needed, the petitioner indicated that she did not, ention the existence
of her adopted son in 1948 when she came to the United. States

because she feared complications, she was afraid she would be asked
lot of detailed questions regarding her adopted son, and was fearful that perhaps some misstatement as to some minor details concerning her son, such as when he was born and his physical description
br anything of that nature might jeopardize her admission to the
United Stales; that no purpose would be served by mentioning the
adopted son in 1948 because there was no provision of law under

which an adopted son could be brought to the United States; and
that in 1963 when she was naturalized she first mentioned her adopted
son.
The husband of the petitioner was questioned and disclosed that
he first entered the United States in 1923 as the son of a citizen of
the United States; that he was married September 15, 1987 to the
petitioner; that he made a trip to China in 1937 and returned. in

1938; that in 1938, after he returned to the United. States, he consented. by return mail to the request by his wife for permission to
adopt the beneficiary; that she wrote that she had a document concerning the adoption signed by the beneficiary's blood mother.
In a subsequent affidavit the-petitioner submitted a picture allegedly taken in 1948 showing's family group including the beneficiary, a letter written in 1961 addressed to "Pa and Ma" thanking
them for remittance of $60 and $50, the second letter inclosing a
- photograph of the beneficiary and his family, giving the dates of
the marriage, and the names and,birth' dates of his wife and their
children. It is noted that the addressees in the letter are not identified by name.
visa petition proceedings, the petitioner has the burden of establishing eligibility far the benefit sought under the immigration laws.
This burden is the ordinary one applicable in civil matters, i.e., a
preponderance of the evidence. Section 1079 of the Civil Code of the
Republic of China provides that an adoption must be effected in
writing, -unless the person to be adopted has been brought up as a
152

• Intigim Decision #1461
child of the adopter since infancy. The term "infancy" has been
construed to mean a child under seven years of age. 1
The petitioner Olab-se to have adopted. the beneficiary in 1938 in
China and to have had a -enitten adoption document which she
claims to have lost. There are no details furnished as to the nature
of the written dodument. The only corroboration of such an adoption document was furnished by the husband, who stated that he was
in the United States at the time of the adoption and that his -wife
wrote him that she had n document concerning the adoption signed
by the boy's blood mother. The husband's knowledge is, of course,
hearsay. There is no corroboration by any witnesses of a writing..
The affiants have merely testified to the existence of an adoption relationship which may have commenced without a writing. No secondaiy evidence has been offered other than as indicated to establish
that there was in existence a written adoption document.
In addition, Article 1073 of the Chinese Civil Code provides that
the adopter must be at least 20 years older than the person to be
adopted. The petitioner was born August 20, 1911 and the beneficiary was born July 22, 1926. At the time of the adoption in 1938,
the petitioner would have been 27 years old and the beneficiary 12
year's old. There was thus only n difference of 15 years between the
ages of the petitioner and the alleged adopted son.
Upon consideration of the entire record it is concluded that the
petitioner has not borne the burden of establishing eligibility on behalf of the beneficiary as her adopted son, in that there has not been
established a valid. adoption pursuant to Chinese law. • The appeal
will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
2

.1fatter of Lau, int. Dec. No. IWO.

153