MATTER OF

In DEPORTATION Proceedings
A-7139375
Decided by the Attorney General September 10, 1960
Parole—Section 212(d)(5)—Termination does not

change status as applicant

for admission.
Termination of parole requires that alien's case be continued in exclusion proceedings; it does not allow conversion Into deportation proceedings.
CHARGE :
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable
at entry as an alien not In possession of the visa required by
section 13(a) of the Immigration Act of 1924 [8 U.S.C. 213(a)1.
BEFORE THE BOARD

(Jan. 25, 1960)
DISCUSSION: The Board has ruled that the Service can terminate the parole of an excluded alien and then dispose of the case in
expulsion (deportation) proceedings. The Service believes that it
has authority to deal with such an alien only in exclusion proceedings, and asks that the issue be referred to the Attorney General for
review.
Respondent, a 28 year old male, a native and citizen of China,
-

-

sought to enter as a citizen on December 20, 1948. He was paroled
pending a decision in his case. In June 1949, he was ordered excluded. Appeal to the Board was dismissed in November 1949. In
December 1957, the District Director terminated parole, nuns pro
tune, as of December 20, 1948. This was apparently done in order
that the respondent could be considered a resident of the United
States so that he could make an application for subpeuiuti of deportation. In any event, an application for suspension of deportation under the Immigration and Nationality Act of 1952 was submitted on December 23, 1957.
In July 1958, expulsion proceedings were started. In August the
respondent filed a motion for reopening of the exclusion proceedings
for the consideration of new evidence. The motion was denied by
the Board in October on the ground that any evidence which respondent might desire. to submit could be presented during the
expulsion proceedings. The file fails to reflect that the Service
70

representative at the Board made known any position on the motion.
No opposition to the Board order was received.
In January 1959, hearings were held in the expulsion proceedings.
In April the special inquiry officer found the respondent deportable
on the charge stated above. Respondent's application for suspension
of deportation was denied because he had failed to establish existence of the requisite hardship, and because favorable discretionary
action was not merited.
Appeal was taken to the Board. On September 8, 1959, the Board
dismissed the appeal. The Board found that the alien was deportable and that he had failed to establish eligibility for suspension of
deportation. At oral argument, the Service representative had asked
that the proceedings be terminated on the ground that there was nu
authority to try the case in expulsion proceedings. He argued that
a person paroled into the United States cannot be regarded as if he

were "in" the United States and, therefore, could not be proceeded
against in expulsion proceedings

—

used only against a person "in"

the United States. The Service representative is of the belief that
termination of parole places the respondent in the position of an
applicant for admission. (He believes that the respondent is inadmissible to the United States.) Counsel for respondent stated he
had submitted a motion to reopen the exclusion proceedings but had
been informed by Service officials that after the revocation of parole
the case could be beard only in expulsion proceedings.

Parole—the enlargement of the confinement of an excluded alien—
was used in the early 1920's, and probably before. Prior to the Immigration and Nationality Act of 1952 there was no specific authority to release an excluded alien on parole. However, the practice
existed, for ; the need was there, and authority could be found in the
fact that the Attorney General had the pbwer of staying the immediate deportation of an excluded alien. A feature of parole was
the fact that the actual physical presence of .the parolee did not in
the eyes of the law put him "in" the United States. The parole e
was considered as "knocking at the gates." Therefore, one who had
been paroled following an exclusion order could not file an application for those adjustments of status which required him to be "in"
3 541).
the United States (Matte• of
In the ordinary case, the parolee was taken into custody and deported on the basis of the order of exclusion after the purpose for
which he had been paroled had been served. However, with the
approval of the Attorney General, a long-standing practice existed
which did permit a paroled alien to be "in" the United States. In
comparatively few cases, excludable aliens with close family ties
were paroled so that they could adjust their immigration status by
applying for voluntary departure and preexamination, or registry,
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71

suspension of deportation, or naturalization. To be eligible for any
of these reliefs the alien had to be "in" the United States. In other
cases, the administrative authorities desired to put the alien "in"
the Untied States so that they could take advantage of laws relating
to the, expulsion of aliens. These laws permitted a wider latitude
in the choice of countries to which an alien could be deported. To
put the parolee "in" the United States, the administrative authorities terminated parole and abandoned the order of exclusion. The
alien was then considered to be "in" the United States, although in
illegal status. The alien could apply for any of the adjustments of
status for which he deemed himself eligible, and he could be proceeded against in expulsion proceedings. Thus, prior to the Immigration and Nationality Act, it was established that in the discretion of the authorities an alien on parole could be considered as
"in" the United States. Prior to the Immigration and Nationality
Act, the procedure followed in the instant case would not have been
questioned (see, United States ex rel. Milanovic v. Murff, 253 F.2d
941, 943 (C.A. 2, 1958) ; Matter of W , 1 558, 562; Matter of G ,
1 217; Matter of R , 1 389, 393; Matter of R , 3 45 ; Matter of
—

-

—

-

—

-

—

-

F , 2 709; Matter of L—W----1 7, Int. Dec. No. 242, Acting Attorney General, March 23, 1951).
Respondent's parole was terminated, nurse pro tuna, to a time when
—

there was no dispute that administrative authorities could terminate

parole to put an alien "in" the United States. It would seem, therefore, that there should be no issue as to whether respondent is "in"
the United States and as to whether expulsion proceedings were
proper. However, the Service view is broad and would deprive the
Attorney General of an important discretionary right. We believe
it is necessary to discuss it fully.
We come now to the Immigration and Nationality Act of 1952.
Bills which subsequently became the Immigration and Nationality
Act gave the Attorney General discretion to parole an inadmissible
alien for the purpose of receiving medical treatment. The Department suggested the use of the language which is now found in section 212(d) (5) of the Immigration and Nationality Act (8 U.S.C.
1182(d) (5) ), and in doing this indicated that the intent was to
give "statutory force and effect" to the existing administrative "prac
tice" (Revision of Immigration, Naturalization, and Nationality
Lawn, Joint Hearings Before the Subcommittees of the Committee

on the Judiciary, 82d Cong., let Sess., on S. 716, H.R. 2379, and
H.R. 2816, p. 713; S.R. 1137, 82d Cong., 2d Sess., pp. 12-13). After
the passage of the Immigration and Nationality Act of 1952 the
practice of terminating parole and proceeding as if the alien were
"in" the United States continued. A question as to the validity of
72

this practice was raised in 1056 in unreported Matter nf P
A-5452888 (October 18, 1956).' The Board affirmed the validity
of the practice. No further action was taken by the Service for some
time. On January 8, 1958, the Service amended the regulation concerning parole to provide that upon termination of parole "further
inspection or hearing shall be conducted under section 235 or 236
of the act and this chapter, or any order of exclusion and deportation previously entered shall be executed" (8 CFR 212.5, 23 F.R. 142,
January 8, 1959).
On June 16, 1958, the Supreme Court decided the case of Laic
May Ma v. Barber, 357 U.S. 185 (1958). The Service argues that
the case requires that termination of parole be followed by the return
of the alien to the jurisdiction of an exclusion proceeding.
In Leng May Ma v. Barber, supra, the court held that a parolee
(physically present in the United States) was not "within the United
States" for immigration purposes. We think that Leng May Ma says
no more than that the Immigration and 'Nationality Act has not
changed the previous law regarding parole. Long May Ma, was excluded and paroled in August 1952 pending final decision in her
case. Her appeal was dismissed in December 1953. She was notified
to surrender for deportation to China in January 1954. She then
applied for a stay of deportation under section 243(h) of the Immigration and Nationality Act (8 U.S.C. 1253(h) ) alleging that
deportation would subject her to physical persecution. This law
had been held inapplicable to an alien in exclusion proceedings for
it required an alien to be "within the United States." Leng May Ma
—,

I The case concerned an alien who had been paroled in 1954 for prosecution; parole was later terminated and expulsion proceedings were instituted.
The special inquiry officer found the alien subject to deportation. No issue
was raised as to the nature of the hearing. On appeal, the Board reopened
the case to enable the alien to be adequately represented by counsel.
At the
reopened hearing, the special inquiry ufileer terminated proceedings on the
ground that the alien's status could be determined only in exclusion proceedings. The special inquiry officer certified his decision to the Board. Interestingly enough, when the case came before the Board on certification, the
Service representative opposed the position of the special Inquiry officer. He
argued that expulsion proceedings were proper and asked that the case be
returned to the special Inquiry officer for consideration on the merits. The
Board saw no reason to depart from the practice which had existed for so
song a period and remanded the case to the special inquiry officer for hearing
on the merits in the expulsion proceedings. Shortly thereafter, the Service
reversed its position and filed a motion asking that the case be terminated
because the issue of the alien's immigration status could be determined only
In eaclusion proceeding©. It was argued that both the law and regillatiOn
required such a conclusion. On October 18, 1956, the Board entered an order
denying the service motion on the ground that section 212(d) (5) of the Immigration and Nationality Act, considered in the light of administrative practice and legislative history, revealed no intention to curb the administrative
practice.

73

argued that having been paroled, she was physically "within" the
United States and therefore as a matter of right was eligible for
the relief. The court ruled that the alien was not "within the
United States" and was not eligible for the relief. The court stated
that prior to the Immigration and Nationality Act, (1) the detention
of a n alien in custody pending determination of his icim ssi hi 1 i ty
did not legally constitute an entry although the alien was physically
within the United States, and (2) that an alien on parole was "still
in theory of law at the boundary line." The court found no evidence
`that the Congress, in enacting section 243(h) of the 1952 Act, intended to depart from previous interpretations. In reaching its
conclusion, the court relied upon the cases which had been decided
prior to the Immigration and Nationality Act. Since the court's

holding represented no departure from what had existed prior to
the Immigration and Nationality Act, its decision should not demand
a change in the administrative practice which had been established
prior to 1952. As a matter of fact, there is a vital factual difference
between Leng May Ma and the instant case. Leng May Ma does
not involve an alien whose parole had been terminated to enable him,
to be "in" the United States. Kaplan v. Tod, 267 U.S. 228 (1925),
upon which the court relied, did not involve an alien whose parole
had been terminated to enable him to be "in" the United States.
The decision in Leng May Ma should no more prevent the continuance of the administrative practice than did the decision in Kaplan.

' The Service states that it is contrary to the amended regulation
to terminate parole of an alien and then handle his case in other than
exclusion proceedings We cannot agree with this interpretation. In
the first place, the amendment of the regulation occurred after the
termination of parole. In the second place, the Commissioner cannot
by a regulation take from the Attorney General a power that the law
gives him.2
We have pointed out, Congress did not indicate that it desired to change
the administrative practice which existed prior to the Immigration and Nationality Act. This is significant in view of the fact that when Congress
wanted to change an administrative practice of long standing, it did so explicitly_ It would not be proper to deprive the .Attorney General of a power
the law gives him and which he still needs. (An alien paroled after exclusion
is ordered deported under the order of exclusion to the country whence he
came—the only place to which an excluded alien can be deported is to the
country whence he earne that enuntry refuses to accept him the Service
needs the power to terminate parole to place the aliea "in" the United States
so that expulsion proceedings permitting deportation to a wide choice of countries may be utilized. (See, 8 U.S.C. 1227 and 1253, and United States ex rel.
lifilanovie v. Murif. 253 F.2d 941 (CA. 2. 1958).)) Inability to place an applicant for admission in expulsion proceedings may hamper the Government
in its efforts to deport undesirable aliens (see, United States ex rel. Paetau v.
Watkins, 164 F.2d 457 (C.A. 2, 1947)). On the other hand, it may become
—

—

74

The conclusion that an excluded alien must be heard only in exclusion proceedings under all circumstances has been rejected judicially.
Section 212(d) (5) of the Immigration and Nationality Act, which
states that the alien "shall" be returned to the custody from which
he was paroled and that he be regarded as an applicant for admission, does not require that all parolees be heard in an . exclusion
proceeding. In certain cases the Government must give an applicant

for admission the hearing which is given to a resident alien (Kwong
Hai Chew v. Rogers, 257 F.2d 606 (C.A. D.C., 1958) ).
It is appropriate to note an analogy. The Immigration and Nationality Act provides that an alien against whom a warrant of
arrest in expulsion proceedings has been issued may not have a hearing upon a petition for naturalization. Nevertheless, the Attorney
General possesses the inherent discretionary power to terminate expulsion proceedings to permit the alien to adjust his status through
naturalization (Matter of B—, 6-713; see also, Matter of M—, 5622) The power to terminate parole, in exclusion proceedings to

enable an alien to adjust his status is analogous to the power to terminate deportation proceedings to enable a "deportable" alien to apply
for naturalization.
We conclude, therefore, that although an alien excluded and paroled cannot as a matter of right change his status as one standing
at the gates, the administrative authorities may, in their discretion,
in the public interest or for compelling humanitarian reasons, terminate the parole of an alien so that he shall be "in" the United

States for the purpose of availing himself for relief which may enable
him to adjust his status. (The continuance of the administrative
practice should not prove more difficult under the Immigration and
Nationality Act than it has in the past, or than have similar practices as termination of deportation proceedings to enable one to have
a hearing on a naturalization petition, or continuance of an excluded

alien on parole on the ground that, his deportation would result in
physical persecution.)

Of course, the action of the Service in making an issue of this
case is not egregious nor is the Service estopped from making the
issue; however, we do feel the wisdom of raising the issue in this
case is debatable. Respondent is under an order of deportation. He
has been denied suspension of deportation. The order of deportation

was entered after the respondent sought to reopen his exclusion case
and was told that the expulsion procedure being followed was the
proper one. He was told this by the Service, and by the Board without Service objection, even though he attempted to reopen the exclusion case after the Service had started expulsion proceedings. He
apparent that an alien's deportation would result in such serious ennsequences to United States citizens that it should be avoided by permitting the

alien to apply for relief available to aliens "in" the United States.
75

has been put through the expense and trouble of an expulsion proceeding. He has gone through the expense and trouble of an administrative appeal. It has taken 10 years to bring the case to its
present stage. Now the Service would start all over. Why? In
the expulsion proceeding, the only administrative relief left is an
application under section 243(h) of the Immigration and Nationality

Act for a stay of deportation on the ground that he will face physical
persecution. If he is now placed in exclusion proceedings and is
ordered deported, he cannot file the same application but can achieve
a similar result by requesting an extension of parole on the ground
that he would face physical persecution. If he is granted such relief
in the exclusion case, would he not have been granted a stay in the
expulsion case? And, if he is denied the extension of parole in the

exclusion case, can he not be denied a stay in the deportation case?
ORDER: Pursuant to the provisions of 8 CFR 3.1(h) (1) (iii) and
at the request of the Commissioner, this case is referred to the Attorney General for review.
BEFORE THE ATTORNEY GENERAL

(Sept. 12, 1960)
ORDER: It is directed that the deportation proceeding herein be
terminated and that the case be returned to the Immigration and
Naturalization Service for disposition in exclusion proceedings pursuant to section 235 or 236 of the Immigration and Nationality Act,
with consideration being given to an extension of parole status as
long as the alien is in danger of physical persecution in his native
land.
This case is before me in accordance with the provisions of 8 CFR
8.1(h) (1) (iii) for review of a decision by the Board of Immigration
Appeals.
The subject is a native of China who claimed to be a citizen when
he applied to enter the United States on December 20, 1948. Pending determination he was paroled and when his citizenship could
not be established, his parole was terminated as of the date of his
1948 entry. He was then permitted to file an application for suspension of deportation. The question at issue between the Commissioner of Immigration and Naturalization and the Board of Immigration Appeals, and the subject of this reference to me, is whether it
was allowable, within the provisions of the Immigration and Nationality Act, to convert proceedings in the case from exclusion to

deportation, thus permitting application for suspension of deportation following termination of the alien's parole. The Service confesses error in permitting the conversion. The Board would uphold
the procedure although it finds the alien in this case unqualified for
suspension of deportation.
76

For the purposes of this decision the parole provisions in section
212(d) (5) of the Immigration and Nationality Act are notable in
two respects. While they permit the Attorney General to parole
aliens applying for admission to the United States, they impose a
limitation that "such parole of such alien shall not be regarded as
an admission of the alien" and they require that when the purposes
of the parole have been served "the alien shall forthwith return or
be returned to the custody from which he was paroled and thereafter
his case shall continue to be dealt with in the same manner as that
of any other applicant for admission to the United States." In my
opinion, these provisions in section 212(d) (5) form a clear directive to the Attorney General to treat any alien paroled as "an
applicant for admission to the United States" as soon as the purposes
of his parole "have been served." No interval of time is provided
between termination of parole and return "forthwith" to custody
during which an alien could be rendered deportable for any purpose.
The Board finds no ambiguity in the language of the parole provisions but contends that Congress in enacting those provisions did
not indicate an intention to change the administrative practice prevailing prior to the Immigration and Nationality Act. Under the
former practice an alien could be rendered deportable upon termination of parole. If that position were supported by the history
of the legislation, valuable powers would be preserved under which
the Attorney General could, in his discretion, permit adjustments of
status available to him in deportation but not in exclusion proceedings. Unfortunately, the history is barren of such support. Moreover, in the case of Leng May Ma v. Barber, 357 U.S. 185, decided
June 16, 1958, the Supreme Court concluded that when Congress
enacted the Immigration and Nationality Act it gave no evidence of
an intention to depart from the traditional concept that parole is
not an admission of an alien. Specifically, the Court held that section 243(h) of the Act, which authorizes the Attorney General to
withhold deportation of an alien who would be subject to physical
persecution in his native land, is not available to an inadmissible
alien who is in the United States in a parole status. The Court
ruled that the status of Leng May Ma was not changed when her
parole was terminated. As long as she was an excludee, she remained
on the threshold of initial entry and was not entitled to additional

rights and privileges which might be extended to aliens who are
within the United States after an entry, irrespective of its legality.
The Leng May Ma decision is a determinative interpretation in
the instant case. Taken with the language of section 212(d) (5), it
leaves no alternative to the conclusion that the termination of parole
requires that the case be continued in exclusion proceedings. As
ordered, it is therefore returned to the Immigration and Naturalization Service for that purpose.

77


Interim Decision #2382

MATTER OF BHEGANI

In Visa Petition Proceedings
A-20941352
Decided by Board May 16, 1975
The lawful permanent resident petitioner applied for preference classification for the
beneficiary as his adopted son under section 203(a)(2) of the Immigration and Nationality Act. The petition was denied, and the appeal dismissed because the requisite
relationship was not established between petitioner and beneficiary. Petitioner had been
the customary guardian of the beneficiary since 1962 when the child was 10 years old.
However, since the legal institution of adoption does not exist under Islamic law, the
beneficiary could not have been adopted as required under section 101(b)(1)(E) of the Act,
and the petition was properly denied.
ON BEHALF

OF EITUTIONER: Pry be

The lawful permanent resident petitioner applied for preference classification for the beneficiary as his adopted son under section 203(a)(2) of
the Immigration and Nationality Act. In a decision dated March 6, 1975,
the district director denied that petition. The petitioner has appealed
from that denial. The appeal will be dismissed.
In visa petition proceedings, the burden of establishing the claimed
relationship is upon the petitioner. Matter of Branagan, 11 I. & N. Dec.
493 (BIA 1966). In order for the petitioner to establish that the beneficiary is his adopted son, he must show that the beneficiary was adopted
in accordance with the requirements of section 101(b)(1)(E) of the Act,
which includes:
a child adopted while under the age of fourteen years if the child has thereafter been in
the legal custody of, and has resided with, the adopting parent or parents for at least two
years

The beneficiary was born in Uganda in 1952. The petitioner claims
that he became the "customary guardian" of the beneficiary under
Islamic law in Uganda after the death of the beneficiary's mother in
1962.
The district director received a report from the Near Eastern and
African Law Division of the Library of Congress regarding the possibility of adoption by Muslims under the law of Uganda. That report
indicates that the only form of legal adoption available to Muslims in
299

Interim Decision #2382
Uganda is that provided by the Adoption of Children Act of 1943 of
Uganda.' Moreover, the report also notes that the legal institution
of adoption does not exist under Islamic religious law. See also Matter
of Ashree, Ahmed and Ahmed, 14 I. & N. Dec. 305, (BIA 1973);
Matter of Boghdadi, 12 I. &. N. Dec. 666 (BIA 1968).
The petitioner concedes that the beneficiary was not adopted in accordance with the Adoption of Children Act of Uganda. The petitioner points
out that he has raised and supported the beneficiary since childhood, that
he has treated the beneficiary as a member of the family, and that having
been forced to flee from Uganda the beneficiary has nowhere else to
resettle • but in this country. Unfortunately, these sympathetic considerations do not permit us to approve the petition where no legal
adoption has been established. We must dismiss the appeal.
ORDER: The appeal is dismissed.

The Adoption of Children Act states, in part:
Sec. 3 (1). Upon an application in the prescribed manner by any person desirous of
being authorized to adopt an infant who has never been married, the court may,
subject to the provisions of this Act, make an order (in this Act referred to as "an
adoption order") authorizing the applicant to adopt the infant.
Sec. 4 (5). An adoption order shall not be made in favour of any applicant unless he
is a British subject or a citizen of Uganda and is a resident in Uganda or in respect
of any infant unless he is a British subject or a citizen of Uganda and is resident in
East Africa.

300


Interim Decision # 1310

MATTER OR LOUIE

In DEPORTATION Proceedings
A-13681449
Decided by Board December 1R,196.9
Service in the U.S. Navy for 1 year, 9 months, and 20 days does not satisfy the
minimum period of 24 months in active-duty status required by section 244 (b),
Immigration and Nationality Act, as amended, notwithstanding the same period
of service in considered by the Department of Navy to have satisfied the
requirements of 2 years of service on active obligated duty for which inducted.
Crum= :
Order: Act "of 1952—Section 241(a) ( 2 ) ER U.S.C. 1251(a) (2)1—Entered
without inspection.

The case is before us by certification. The special inquiry officer
found respondent deportable upon the charge stated above and denied
his application for suspension of deportation. The issue is whether
the respondent is eligible for suspension of deportation.
Section 244(a) (1) of the Immigration and Nationality Act under
which application is made for suspension of deportation has a requirement that the applicant have been physically present for a continuous
period of seven years in the United States prior to becoming deportable; however an exception to this requirement is made for one who
"has served for a minimum period of twenty-four months in active
duty status of the Armed Forces of the United States * * (section
244(b) of the Immigration and Nationality Act, 8 U.S.C. 1254(b)
(Supp. IV)))." The issue is whether the respondent who actually
spent one year nine months and twenty days on active' duty with the
Navy is within the exception.
Respondent a 82-year-old married male, a native and national of
China, came to the United States in 1951 to join his father who has

been a resident of the United States since 1918. Respondent gained

admission upon a false claim to United States citizenship. He made
short visits to Hong Hong in 1960 and 1962.
Respondent who was inducted into the United States Navy on November 17, 1955, for two years of active service was transferred to the

398

Interim Decision #1310
Reserves on September 6, 1957 after having served one year nine
months and twenty days. He was obligated to serve in the Reserves
until November 16, 1961 but failed to perform any Reserve obligation.
The official Armed Forces Report of Transfer received by respondent from the Navy reveals that he was inducted for two years of service
and that he served one year nine months and twenty days. A letter
dated December 20, 1962, from the Department of the Navy, Bure,au
of Naval Personnel, at Washington, D.C., reveals that under certain
circumstances, enlisted personnel may be separated three months or
less prior to the normal date of expiration of active obligated service,
provided such early separation is in the best interest of the government
and that such service is considered to have satisfied the requirement
that the person serve two years on active obligated duty. The respondent is, therefore, considered by the Navy to have fulfilled his
obligation to serve on active duty for a period of twenty-four months
toward his Naval Reserve obligations (Ex. 5).
The special inquiry officer stated that despite the Navy's view of the
respondent's service, the fact was respondent had not served the full
twenty-four months required by the statute; he therefore did not come
within the exception created by the statute. Counsel believes that the

decision of the Department of the Navy that respondent has served
twenty-four months on active duty should be controlling as to the
length of the respondent's service. He points out that the immigration. law expressly provides in some instances that the decision of
branches of the Department of Defense are conclusive as to the existence of service. He points out that the congressional history of the
legislation reveals that it was desired to benefit aliens who had served
honorably for a stated period of time in the Armed Forces of the
United States. He believes that in fixing the twenty four month
-

period of active duty, Congress was referring to a minimum period

of service, and he points out that the respondent has satisfactorily
completed his minimum period of service. In the event that the decision is adverse to the respondent, counsel requests that the decision
be certified to the Attorney General for a final administrative order.
We believe the special inquiry officer has ruled properly. The law
makes eligibility for relief dependent on proof that an alien has served
at least 24 months in an active duty status. Respondent has not
served this minimum period. The law makes no exception; it does
not provide that acceptance of a lesser period of service by the Department of Defense shall constitute a waiver of the law's requirement.
It is clear, therefore, that respondent who has served less than twenty-

four months has failed to establish his eligibility for relief. While
it may well be that Congress did not envision the situation before us,
and would have made provision to grant relief if it had, the fact re399

Interim Decision #1310
mains that there is no authority to accept less than proof of at least
twenty-four months of active duty service.
There is no procedure for the certification of a case to the Attorney

General at the request of an attorney (8 CFR 3.1(h)). We do not
believe the case merits the attention of the Attorney General.
ORDER: It is ordered that no change be made in the order of the
special inquiry officer.

400


Interim Decision #2757

MATTER OF SHAH
In Visa Petition Proceedings

A-20658899
Decided by Regional Commissioner August 26, 1977
(1) Petitioner sought classification as a member of the professions under section
203(a)(3) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(3), based on a B.S.
(Special) degree in chemistry from Gujarat University. He subsequently received a
Master's Degree in Business Administration from the University of Detroit. The
record indicated that the chemistry degree had been obtained in 3 years instead of the
4 years normally required to obtain a baccalaureate degree in a United States
university. Also, no explanation is given of the meaning of the designation of "Special"
in his degree. Under these circumstances, petitioner has not shown that his degree is
equivalent to a bachelor's degree earned in the United States which is a minimum
requirement to qualify fur third preference classification as a member of the
professions.
-

(2) The record indicated that the petitioner had never engaged in work in his professional field of chemistry. In order to qualify as a member of the professions, petitioner
must intend to engage in the profession on which the claim to the preference classification is based. Here there was no history of employment or appearance of desire to take
employment in the professional field of chemistry. Therefore, petitioner is not eligible
for classification as a third-preference alien who is a member of the professions.
ON BEHALF OF PETITIONER: Samuel D. Myers, Esquire
Freedman, Freedman & Myers, Ltd.
230 West Monroe Street, Suite 2812
Chicago, Illinois OW

This matter is before me on appeal from the decision of the District
Director who on September 23, 1976, denied the petition to classify the
petitioner as a chemist under section 203(a)(3) of the Immigration and
Nationality Act, 8 U.S.C. 1153(a)(3), as amended. The District Director
determined that the petitioner had failed to establish he intends to
pursue his alleged profession in the United States.
The petitioner is a 27-year-old male, native and citizen of India, who
last entered the United States on July 7, 1976, as a nonimmigrant
student. The petitioner claims membership in the professions as a
chemist by virtue of his B.S. (Special) degree, awarded by Gujarat

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Interim Decision #2757
University of India in September 1971. The degree indicates the "special subject" was chemistry. Subsequently, the petitioner entered the
United States on January 21, 1972, and enrolled at the University of
Detroit in September 1972, where he graduated in December 1974 with
a master's degree in business administration. The District Director noted that the petitioner has never been
employed as a professional chemist in any related field, either in India
or the United States, but has "been employed in nonprofessional
occupations while attending school and ... been employed as an assistant to the business manager of an automobile dealership since graduation." It is also significant to note that the petitioner came to the
United States to study in a field completely unrelated to his alleged
profession. The District Director denied the petition on the principle
set forth in Matter of Kim, 13 I&N Dec. 16 (R.C. 1968), which held that
even though an alien is academically qualified as a member of the
professions, he must also intend to engage in the profession for which
the petition is filed.
Before proceeding to the basis for this appeal, I shall examine one
other important factor which the District Director did not consider,
i.e., the academic equivalence of the petitioner's degree from Gujarat
University. The United States Department of Health, Education, and
Welfare advises that a B.S. degree in chemistry from Gujarat University is the equivalent of a B.S. degree in the United States (see Im-

migrant Inspector's Handbook, Appendix 5-F, p. 34-7). However, the
degree certificate on file here indicates the petitioner's degree is a "B.S.
(Special)." We are not told how the term "special" qualifies or limits
this degree. Further, the degree certificate indicates the petitioner's
"special subject" was chemistry, but we are not told if this is the same
as a major subject in the United States, and there are no means by
which to make such a determination since the record contains only the
transcript for one school year, ending in April 1970.
This transcript also raises serious questions about the validity of

the petitioner's degree in that this transcript was issued at the end of
the petitioner's second year of study at Gujarat; yet, the petitioner
completed his studies at Gujarat 1 year later in April 1971. Thus, he
could only have completed a 3-year course of study, which is not
equivalent to a United States baccalaureate degree, usually requiring 4
years of study. The petitioner has failed to establish that his "B.S.
(Special), special subject—Chemistry" is equivalent to a United States
baccalaureate degree in chemistry. Matter of Asuncion, 11 I&N Dec.
660 (B.C. 1966), held that a characteristic common to occupations in
the professions is the minimum attainment of a baccalaureate degree.

Consequently, the petitioner has not established that he is even
minimally qualified as a professional chemist. On this basis alone, we
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Interim Decision #2757
find the petitioner prima facie ineligible for third-preference
classification.
We now turn to the primary basis for the District Director's denial
—that the petitioner has not established he will be employed in the
United States as a professional chemist. On appeal, counsel for the
petitioner has submitted a brief challenging the various points raised
by the District Director. Counsel quite correctly asserts that "... a
third preference petitioner need not be employed in his contemplated
-

profession at the time of filing, approval, or even granting of
permanent residence. See Matter of Stamatiades, 11 I&N Dec. 643 (D.D.
1966); Matter of Semerfian,11 I&N Dec. 751 (R.C. 1966); Matter of Chu,
11 I&N Dec. 881 (R.C. 1966); and Matter of Naufahu, 11 I&N Dec. 904
(R.C. 1966). These cases recognize that there are circumstances which
would prevent an alien professional from gaining employment in his
chosen profession in the United States. Among these are certain
licensing restrictions for foreigners, as well as the unwillingness of
many employers to hire anyone who is not a citizen or lawful
permanent resident of the United States. In this regard counsel stated:
"It is to be expected that Companies will not give a professional job to
one who is not yet a permanent resident. Every professional hired
must be trained by a Company; such training requires a substantial
investment in salary and other expenses. Companies naturally loathe
to make such investments knowing the individual might not be permitted to remain in the United States."
While this is one possible explanation, we must examine more closely the circumstances surrounding the petitioner's lack of employment
in his professional field. Matter of Semerjian, supra, held that, "In
determining whether the alien intends to engage in his profession or in
a field related thereto, consideration may be given to factors such as
whether he is presently so employed and, if not, the length of time he
has not been so 'employed and the reason therefore." The instant
petitioner received his degree from Gujarat University in 1971, but
there is no claim made or evidence to show that he sought employment

as a chemist in India before coming to the United States to study in the
Counsel contends that
"Many professionals ... take graduation training in business administration to enhance their potential for promotion within their profession." This generalization, whether or not relating to the matter at
hand, is not a valid argument as presented. The petitioner had employment opportunities during the summers and from college work programs while studying at the University of Detroit, yet none of them
unrelated field of business administration.

were in chemistry. Furthermore, the petitioner's transcript from that

university reveals he took no chemistry courses at all. Upon completion of his master's degree he obtained employment as the assistant to
246

Interim Decision #2757
the business manager of a car dealership, a position related to his
business degree, but not to chemistry. It is not unreasonable to expect
that someone serious about, and dedicated to, a career in chemistry
would seek to improve his professional knowledge in his subject and
would at least make attempts to seek some type of related employment. For the last 6 years the petitioner apparently has had no
courses, jobs, or experiences even remotely connected with chemistry;
yet, he would now have the Service believe he is a professional chemist
and intends to be employed in that field.
In Seznerjian, supra, the petitioner had received a baccalaureate
degree in mechanical engineering, and had been employed as a junior
mechanical engineer for 3 months and then was released. He was
unable to obtain a permanent position because he was not a citizen, but
he did substantiate his bona fide attempts to seek employment in his
profession.
Here the petitioner has at no time been employed and has apparently made no attempts to find employment as a chemist, but has instead
obtained a degree in business administration andhas held only wirer
lated employment. This situation parallels the most recent decision in
these cases, Matter of Medina, 13 I&N Dee. 506 (R.C. 1970) which held
that an alien who had received a baccalaureate degree some 6 years
earlier, but who had never been employed as a professional in her field
or any other field, was not a member of the professions and couldnot be
said to have prospects for or the intention of obtaining such employment in the United States. The facts in this case would lead a reasonable person to conclude that the petitioner has abandoned his alleged
profession of chemistry, is no longer qualified as a chemist (if indeed he
ever was), and has not established he intends to pursue a career as a
professional chemist.
We find that the petitioner has failed to establish that his degree
from Gujarat University is equivalent to a United States degree and
qualifies him as a professional chemist. Further, Matter of Ulandav,12
I&N Dec. 729 (BIA 1971), stipulates that a petitioner satisfactorily
establish that he has prospects of engaging in his alleged profession in
the foreseeable future_ The petitioner has not satisfied this requirement. The burden of proof to establish eligibility in these proceedings
rests with the petitioner (Matter of Branagan, 11 I&N Dec. 493 (BIA
1966). That burden of proof has not been met. The appeal will be
dismissed.
ORDERS The appeal is dismissed.

247


MATTER OF T—

In SECTION 245 Proceedings
A-11410941
Decided by Commissioner September 8, 1961
Adjustment of status—Section 245, as amended—Eligibility as alien inspected
and admitted—False claim to citizenship.
.An alien who has appeared before an examining immigration WM:el: and has
gained admission to the United States upon a knowing false claim to United
States citizenship has been "inspected and admitted" within the meaning of
section 245 of the Act (Overrules contrary holding in Matter of K—B—N—,
9---50.)*

BEFORE THE COMMISSIONER

DISCUSSION: This case comes forward on appeal from the order
of the District Director denying the application for adjustment of
status under section 245, as amended.
The applicant is a 27-year-old married female, native and citizen
of China, who last gained entry into the United States on July 26,
1950, at the age of 17, upon the false claim that her father was a
citizen of the United States who had resided therein prior to her
birth. While there is some doubt as to her knowledge of the falsity
of her claim, for the purpose of this decision it will be assumed
that she was a knowing party to the successful fraud.
Admission to this country as a United States citizen following
appearance before an examining immigration officer constitutes an
"inspection" within the language of section 245. To that extent,
Matter of K—B—N—, 9 50, is overruled.
The age of the applicant, the degree of intangible pressures exerted, the extent of the fraud, the proximity in time between the
inspection and the application under section 245, are factors properly to be taken into consideration in the exercise of the discretionary powers conferred by section 245. An evaluation of those factors in the instant case does not warrant other than a grant of the
-

application for adjustment of status.
ORDER: It is ordered that the application be granted.
*Editor's Note: See Matter of S—, 9-599, overruling the holding in this decision and adhering to the holding in Matter of K—B—N—, 9-50.

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Interim Decision #3831

Matter of CHRISTO’S, INC.
Decided April 9, 20151
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office
(1) An alien who submits false documents representing a nonexistent or fictitious
marriage, but who never either entered into or attempted or conspired to enter into a
marriage, may intend to evade the immigration laws but is not, by such act alone,
considered to have “entered into” or “attempted or conspired to enter into” a marriage
for purposes of section 204(c) of the Immigration and Nationality Act, 8 U.S.C.
§ 1154(c) (2012). Matter of Concepcion, 16 I&N Dec. 10 (BIA 1976), followed.
(2) Misrepresentations relating to a nonexistent marriage may render the beneficiary
inadmissible under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i)
(2012), when the Director adjudicates the application for adjustment of status.
ON BEHALF OF PETITIONER: Annelise Araujo, Esquire, Boston, Massachusetts

The Vermont Service Center Director (“VSC Director”) determined that
the beneficiary lacked the requisite employment qualifications and thus
revoked a previously approved Immigrant Petition for Alien Worker
(Form I-140). In its decision to dismiss the petitioner’s appeal of the
revocation, the Administrative Appeals Office (“AAO”) affirmed the VSC
Director’s determination with respect to the beneficiary’s qualifications and
further identified the marriage fraud bar at section 204(c) of the
Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2012), as an
additional ground of ineligibility. 2 The AAO subsequently reopened the
matter and permitted the petitioner to submit a supplemental brief and
additional evidence pursuant to 8 C.F.R. § 103.5(a)(5)(ii) (2014). Upon
review, the AAO will sustain the appeal and reinstate approval of the
petition.

1

This decision was originally entered on August 12, 2013. The matter has been
reopened on the Administrative Appeals Office’s own motion for the limited purpose of
making revisions for designation of this decision as precedent.
2
The AAO conducts appellate review on a de novo basis. See, e.g., Dor v. Dist. Dir.,
INS, 891 F.2d 997, 1002 n.9 (2d Cir. 1989).

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Interim Decision #3831

I. PROCEDURAL AND FACTUAL BACKGROUND
The petitioner is a restaurant that seeks to employ the beneficiary
permanently in the United States as a cook. The petitioner filed this
petition seeking classification of the beneficiary under section 203(b)(3)
of the Act, 8 U.S.C. § 1153(b)(3) (2012). As required by section
212(a)(5)(A) of the Act, 8 U.S.C. § 1182(a)(5)(A) (2012), the petitioner
submitted an individual labor certification, the Application for Alien
Employment Certification (Form ETA-750), which was approved by the
Department of Labor (“DOL”). In revoking approval of the Form I-140
petition, the VSC Director determined that the petitioner failed to
demonstrate that the beneficiary possessed the minimum experience
required by the labor certification. Upon reviewing the revocation of the
previously approved Form I-140 petition, the AAO affirmed the VSC
Director’s decision regarding the beneficiary’s qualifications and dismissed
the appeal.
Exercising its de novo review of the record of proceedings, the AAO
also concluded that section 204(c) of the Act required denial of the
Form I-140 petition. The record indicated that the beneficiary of the Form
I-140 petition was also the named beneficiary of a separate marriage-based
Petition for Alien Relative (Form I-130) that was filed with the District
Director, Boston, Massachusetts (“Boston Director”). An Application to
Register Permanent Residence or Adjust Status (Form I-485) was
concurrently filed with the Form I-130 petition. During his interview in the
Boston District Office, the beneficiary indicated that the marriage
certificate filed with the Form I-130 petition was fictitious and that he had
never met or married the petitioner. The Boston Director denied the
Form I-130 petition as abandoned and denied the adjustment application
because the beneficiary was inadmissible under section 212(a)(6)(C)(i) of
the Act for misrepresentations relating to the marriage-based Form I-130
petition.3
In a Notice of Intent to Revoke the Form I-140 petition’s approval, the
VSC Director asserted, inter alia, that the petition could not be approved
because, pursuant to section 204(c) of the Act, the beneficiary had
previously engaged in marriage fraud in relation to the Form I-130 petition
and adjustment application adjudicated by the Boston Director. The VSC
Director did not, however, include a determination regarding section 204(c)
in the ultimate revocation decision.
3

The Boston Director treated the Form I-130 petition as abandoned because the
beneficiary disavowed the existence of a marriage and the putative petitioner spouse
failed to appear for the interview.

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Interim Decision #3831

Upon appellate review of the decision to revoke approval of the Form
I-140 petition, the AAO independently determined that the approval must
be revoked because substantial and probative evidence supported a
reasonable inference that the beneficiary conspired to enter into a prior
marriage for the purpose of evading the immigration laws. See Matter of
Tawfik, 20 I&N Dec. 166 (BIA 1990). The AAO therefore concluded that
revocation of the Form I-140 petition’s approval was required, not only by
the petitioner’s failure to demonstrate that the beneficiary qualified for the
proffered position, but also by section 204(c) of the Act.

II. ANALYSIS
A. Qualifications of the Beneficiary
Section 203(b)(3)(A)(i) of the Act provides for visa preference
classification of immigrants who are qualified to perform “skilled labor
(requiring at least 2 years [of] training or experience), not of a temporary or
seasonal nature, for which qualified workers are not available in the
United States.” To be eligible for approval, a beneficiary must possess all
the education, training, and experience specified on the labor certification
as of the petition’s priority date. See Matter of Wing’s Tea House, 16 I&N
Dec. 158, 160 (Acting Reg. Comm’r 1977). The priority date of the
petition is the date that the DOL accepts the request for labor certification
for processing. 8 C.F.R. § 204.5(d) (2014).
In the prior decision dismissing the petitioner’s appeal, the AAO
identified inconsistencies that precluded the petitioner from establishing the
beneficiary’s qualifications. With supplemental evidence submitted after
the AAO reopened its prior decision, the petitioner has adequately
“resolve[d] the inconsistencies by independent objective evidence.” Matter
of Ho, 19 I&N Dec. 582, 591 (BIA 1988). The petitioner has established
through relevant, probative, and credible evidence that it is more likely than
not that, as of the priority date, the beneficiary possessed the education,
training, and experience specified on the Form ETA-750. See Matter of
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).
B. Application of the Marriage Fraud Bar
For the reasons set out below, the AAO also concludes that the
beneficiary is not subject to the marriage fraud bar in section 204(c) of the
Act, which provides as follows:
Notwithstanding the provisions of subsection (b) no petition shall be approved if
(1) the alien has previously been accorded, or has sought to be accorded, an

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Interim Decision #3831

immediate relative or preference status as the spouse of a citizen of the
United States or the spouse of an alien lawfully admitted for permanent residence,
by reason of a marriage determined by the Attorney General to have been entered
into for the purpose of evading the immigration laws, or (2) the Attorney General
has determined that the alien has attempted or conspired to enter into a marriage
for the purpose of evading the immigration laws.

(Emphasis added.) Congress revised the section 204(c) bar to include cases
where an alien has attempted or conspired to enter into a marriage for the
purpose of evading the immigration laws when it enacted the Immigration
Marriage Fraud Amendments of 1986 (“IMFA”), Pub. L. No. 99-639, § 4,
100 Stat. 3537, 3543.
Construing section 204(c) of the Act prior to the IMFA, the Board of
Immigration Appeals held that the statutory bar is inapplicable in cases
where an alien does not actually enter into a marriage but only falsifies
documents to represent that a marriage exists. See Matter of Anselmo,
16 I&N Dec. 152, 153 (BIA 1977) (“In the absence of an actual marriage,
section 204(c) does not apply.”); Matter of Concepcion, 16 I&N Dec. 10,
11 (BIA 1976) (concluding that section 204(c) did not apply to an alien
who never married but falsified marriage documents, because “it cannot be
determined that she obtained immediate relative status on the basis of a
marriage entered into for the purpose of evading the immigration laws”).
Of course, with the addition of section 204(c)(2), it can no longer be
said that the statute requires an “actual marriage.” By its express language,
section 204(c)(2) states that an attempt or conspiracy to enter into a
marriage will also suffice if the purpose was to evade the immigration laws.
But absent an attempt or conspiracy to enter into a marriage, the IMFA
amendments to section 204(c) of the Act do not negate the continued
applicability of Concepcion and Anselmo.
By its plain language, section 204(c) applies only to an alien who
“entered into,” or “attempted or conspired” to enter into, a marriage. See
Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (“It is well established
that, when the statutory language is plain, we must enforce it according to
its terms.”). An alien who submits false documents representing a
nonexistent or fictitious marriage, but who never either entered into or
attempted or conspired to enter into a marriage, may intend to evade the
immigration laws, but is not, by such act alone, considered to have “entered
into” or “attempted or conspired to enter into” a marriage for purposes of
section 204(c) of the Act.
Section 204(c) aside, however, such conduct may render the beneficiary
inadmissible under section 212(a)(6)(C)(i) of the Act when the Director
adjudicates the Form I-485. See Matter of O-, 8 I&N Dec. 295 (BIA 1959)
(holding that the visa petition procedure is not the appropriate forum for
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Interim Decision #3831

finding an alien inadmissible); see also Matter of Bark, 14 I&N Dec. 237,
240 (BIA 1972) (observing that under section 204(e) of the Act, approval
of a visa petition does not entitle an immigrant to be admitted to the
United States or adjust status), rev’d on other grounds, Bark v. INS,
511 F.2d 1200 (9th Cir. 1975).
In this case, the record contains a fictitious marriage certificate filed
with the Form I-130 petition. Nonetheless, the AAO concludes that the
beneficiary credibly established that the purported marriage never occurred
and that he did not otherwise enter into, or conspire or attempt to enter into,
a marriage for the purpose of evading the immigration laws of the
United States.4 Thus, section 204(c) is inapplicable.

III. CONCLUSION
The burden of proof in these proceedings rests solely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361 (2012). With respect to
the beneficiary’s eligibility for the Form I-140 petition, the petitioner has
met that burden.
ORDER: The appeal is sustained.

4

From his initial interview on the adjustment application through his subsequent
assistance in USCIS’s investigation of a person alleged to be engaged in the unauthorized
practice of immigration law, the beneficiary credibly demonstrated that he did not
willfully misrepresent a material fact or otherwise know that a preparer had done so in
any benefit requests relating to him. The beneficiary persuasively established that he first
realized that he was the subject of a marriage-based immigrant visa petition when he
appeared for an interview with USCIS and was asked about the purported marriage. The
beneficiary confirmed at the interview that he never met or married the purported
petitioner and verified that the presented marriage certificate was false.

541


Interim Decision #2686 *
MATTER OP HAZARD

In Visa Petition Proceedings
A-20878992
Decided by Board January J.7,1979
Decided by Board May 28> 1979
(1) Prior to 1974, the law on adoption in Haiti was governed by the Presidential Decreeof
1966, which authorized adoption of any child less than 16 years of age. Matter of
Mazard, Interim Decision 2686 (BIA January 17, 1979) overruled; Matter ofAladin,
Interim Decision 2425 (BIA 1975) overruled.
(2) Adoptions occurring in Haiti on or after April4,1974,are governed by the Presidential
Decree of April 4, 1974, which authorizes adoption of any child of less than 16 years
of age.
(3) Section 101(b)(1)(E) of the Immigration and Nationality Actincludes,in the definition
of the term "child," a child adopted while under the age of fourteen years if the child has
thereafter been in the legal custody of, and has resided with, the adopting parent or
parents for at least 2 years,
(4) The two-year requirement of section 101(b)(1)(E) with respect to residence may
include periods of residence accumulated prior to formal adoption. Matter of M—, 8 L &
N. Dec, 118 (BIA 1958;A.G. 1959), However, the two-year legal custody requirement
can only be satisfied by custody subsequent to the adoption. Matter of
Lee,111. & N,
Dec. 911 (BIA 1966).
(5) "Where the beneficiary was allegedly adopted in Haiti in 1973 at the age of 12
years, the adoption is governed by the provisions of the Presidential Decree of
1966,and
the petitioner is not precluded from establishing that the beneficiary was lawfully
adopted under Haitian law. The record is remanded for additional evidence that the
adoption document submitted by the petitioner in support of the visa petition constitutes a final decree of adoption and also that he meets the residence and legal custody
requirements of section 101(b)(1)(E).
ON BEHALF OF PETITIONER:Pro se
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

BEFORE THE BOARD
(January 17, 1979)
The United States citizen petitioner applied on July 29, 1977, for
immediate relative status for the beneficiary as his adopted child under
section 201(b) of the Immigration and Nationality Act, 8U.S.C.1151(b).
This petition was denied by the District Director on September 2,1977,
•Replaces #2686 decision of January 17,1979.

662

Interim Decision #2686
on the ground that the adoption was in contravention of the lawsof Haiti
and therefore not recognizable for immigrationpurposes. Anappeal was
filed from that decision. Oh November29,1977, weremanded the record
for further proceedings. On July 5, 1978, the Acting District Director
reaffirmed the District Director's decision of September 2, 1977, and
certified his decision to us for review. The petitioner requests reversal
and the granting of the petition.
The beneficiary is a 17-year-old native and citizen of Haiti. Her date of
birth is September11, 1961. In support of the petition, the petitioner
presented evidence that he adopted the beneficiary in Haiti on May 15,
1973.
The petitioner contends that the Presidential Decree of April4,1974,
governs this adoption and not the decree of 1966 discussed in our
decision in Matter ofAladin, Interim Decision 2425 (BIA1975). Which
decree is applicable is determinative in this case since the decree of
April 4,1974, allows adoptions for the benefit of any child less than 16
years of age while the decree of 1966 authorizes adoptions only for the
benefit of any children less than 6 years ofage. Thebeneficiary wasless
than 12 years of age on May 15,1973.
On remand the District Director obtained a translation of the Haitian
adoption decree of 1974. The District Director also obtained a
memorandum fromthe Library of Congress concerning retroactivity of
the 1974 decree. Our review of both documents satisfies us that the
claimed adoption of May 15,1973,1 is not governed by the 1974 decree
and is therefore in contravention of the applicable Haitian legal provisions. Since the adoption is not recognizable for immigration purposes
on this ground, we need not address the legal custody requirement in
section 101(b)(1)(E) of the Act, 8 U.S.C. 1101(b)(1)(E). Accordingly, we
will affirm the Acting District Director's decision denying this petition.
Considering the fact that the law of adoption in Haiti has changed, a
few comments are proper. The documentation available to the Board
indicates that the decree of 1966 referred to inMatter ofAladin, supra,
is determinative of all adoptions in Haiti occurring after its publication
and before April 4, 1974. The 1974 decree abrogates the provisions of
the 1966 decree inconsistent with its provisions but does not repeal the
1966 decree. Adoption in Haiti is a judicial act. Consequently, only
certified copies of a court order or judgment approving theadoption will
be considered proper evidence of an adoption in Haiti.
ORDER: The Acting District Director's decision of July 5, 1978, is
affirmed.
1

The petitioner in the notice of appeal dated July 22,1978, does not challenge that the
date of the beneficiary's adoption is May 15, 1973.

663

Interim Decision #2686
ADDENDUM

TRANSLATION FROM THE FRENCH
Presidential Decree of April 4,1974
DECREE

Jean-Claude Duvalier
President for Life of the Republic
Whereas. • . . the child is at the center of attention of the family law;
Whereas the evolution of our laws and the provisions on public order
of our constitution, establishing that every decision of justice be motivated, make it possible to fill the gaps and to amend some provisions of
Decree of March 25, 1966, on adoption;
Whereas there is an urgent need to expand the content of said decree,
through a more logical and rational application of its text, and particularly to ensure that in his or her new family the adopted shall possess
the same rights and obligations as those resulting from a biological,
legitimate, and natural filiation;
In view of the Report of the State Secretary of Justice;
And after deliberation in the Council of State Secretaries;
DECREES

Art. 1. Adoption is a solemn act which creates between a person and a
child who is not biologically his or her child a legal relationship similar to
that resulting from paternity and filiation.
It is authorized in favor of minors less than 16 years old, whenever
there are justified reasons resulting in real and sure benefits for the
adopted.
Art. 2. Adoption is permitted only by persons of either sex over 35
years of age. Nevertheless, it can be requested jointly by two spouses
who are not separated and at least one of whom is over 35 years old,
provided that they have been married for more than 10years and donot
have children of their own.
At the moment of adoption, the adopters should have neither children
nor descendants.
The adopters must be 19 years older than the persons they intend to
adopt, except when the latter are children of one of the spouses. In this
case the minimum age difference should be 10 years; it may be further
reduced by dispensation from the President of the Republic.
Art. 3. Except in case of dispensation by the President for Life of the
Republic, adoption is permitted only when there are no legitimate or
natural descendants.
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Interim Decision #2686
Art. U. The existence of adopted children does not hinder new adoptions by the same adopter, provided that the latter can establish that he
or she has economic resources to meet his or her obligations.
Art. 5. A Haitian may adopt or be adopted by a foreigner. Adoption
does not cause a change in the nationality of the adopted.
Nevertheless, a foreigner adopted by a Haitian may acquire the
Haitian nationality through a declaration renouncing his or her foreign
nationality before the parquet of the civil court of his or her residence
when he or she comes of legal age.
A record of this declaration shall be sent to the Department of Justice
which shall publish it in the Moniteur, stating that said person is a
Haitian pursuant to the law.
Art. 6. If the father and mother of the minor to be adopted are still
alive, the consent of both is required for the adoption. If one of the
parents is deceased or incompetent to express his or her will, the
consent of the other parent shall be sufficient.
If the parents are divorced or separated, the consent of the spouse to
whom was granted the divorce or separation as well as the guardianship
of the child shall be sufficient; nevertheless, if the other parent did not
give consent, he or she shall be notified of the act of adoption and it shall
not be approved until at least 30 days after the notification. If during
this period the spouse notifies the registry of his or her opposition, the
court shall hold a hearing before it makes a decision.
Art. 7. If adoption is requested jointly by both spouses, who have
been married 10 years, are not separated, and one of whom is over 85
years old, the age difference requirement of 19 years can be reduced by
dispensation granted by the President of the Republic.
Art. 8. In case of death of the adopter, or of both adopters when it is
made jointly, a new adoption may be pronounced.
Art. 9. If the father and mother of the minor to be adopted are still
alive, the consent of both is required for the adoption.
Provided that one of the parties is deceased or legally incompetent to
express his or her will, the consent of the other party shall be sufficient.
Art. 10. The communal magistrate or the president of the communal
commission of the domicile of the adopted legally represents minors
with unknown father and mother and consents to their adoption, notwithstanding the provisions of Decree-Law of December 3,1973, which
regulates the statute on minors in children's homes.
Art. 11. In the cases mentioned in the preceding articles, the consent
is given in the act of adoption itself or by a separate act authorized
before a notary, the justice of the peace of the domicile of the adopter or
of the ascendents of the adopted, or, abroad, before a Haitian diplomatic
or consular officer.
Art. 12. When the minor has neither father nor mother, or if they are
665

Interim Decision #2686
legally incompetent to express their will, the consent is given by the
Conseil de Famille (Family Council).
Art IS. Adoption creates the same rights and obligations as those
proceeding from legitimate or natural filiation.
Art. U. The adopted and his or her legitimate or natural descendants
possess the same inheritance rights in thefamily of the adopter asthose
of a legitimate or natural child.
Art. 15. Adoption grants to the adopted the name of the adopter, in
addition to his or her original name. When both the adopter and the
adopted have the same family name, no change will occur inthe name of
the adopted. At the request of the adopter the court can approve
modification in the given names of the adopted. In case of adoption by
spouses, the adopted takes the husband's name.
Art. 16. The adopted remains in his or her natural family and retains
all his or her inheritance rights in that family. *
Art. 17. In relation to the adopted, the adopter possesses the rights
and obligations provided by the Civil Code in the law on paternal
authority.
In case of interdiction, of judicially established absence,or of death of
the adopter when the adopted is still a minor, the paternal authority
reverts in full to the minor's ascendants.
Art. 18. The bond of kinship resulting from the adoption extends to
the children of the adopted.
Art. 19. Marriage is prohibited between:
The adopter, the adopted and his or her descendants;
The adopted and the spouse of the adopter and reciprocally between
the adopter and the spouse of the adopted;
The children adopted by the same individual;
The adopted and the children which could be born to the adopter.
Nevertheless, these prohibitions can be lifted for serious reasons by
dispensation from the President of the Republic.
Art. 20. The adopted and his or her descendants do not acquire any
inheritance right on the assets of the adopter's parents. But they possess over the succession of the adopter the same rights granted to
legitimate and natural children or descendants.
Art. 21. The adopter shall provide for the support of the adopted if
need be, and vice versa.
The obligation to provide support continues between the adopted and
his or her [natural] parents. Nevertheless, the father and mother of the
adopted are not obliged to provide support unless the adopted cannot
obtain it from the adopter.
Art. 22. If the adopted dies without descendants, the property donated by the adopter or collected in his or her succession and whichexist
in nature revert to the adopter or the adopter's descendants at the
666

Interim Decision #2686
moment of the death of the adopted, with obligation to pay the debts
and without affecting the rights of third persons. All other assets of the
adopted revert to his or her original parents.
Art. 23. If the adopter lives after the decease of the adopted, and the
children or descendants of the adopted also die without leaving descendants, the adopter collects only the property donated by him or her.
Art. 2U. The person who intends to adopt and the legalrepresentative
of the minor, accompanied by the minor, shall appear before the justice
of the peace of the adopter's domicile to put upon record, free of
charges, their respective consent. However, if the adopter is a
foreigner, they shall appear before the justice of the peace of the
domicile of the adopted.
The adopter shall establish through documents the age difference
required between the adopted and himself or herself, and shall submit a
recent medical certificate to show that heor she is
freeof any contagious
disease.
Art. 25. The adoption act shall be approved in Haiti before the civil
court of the jurisdiction of the adopter, or in the case of a foreign
adopter, before the civil court of the domicile of the adopted.
Art. 26. The Court assembled in Chamber of Council shall verify,
considering the written opinion of the Public Ministry [Public Attorney]:
1) If all the formalities of the law are observed;
2) If the adoption is based on justified causes and is inthe true interest
of the adopted.
Art. 27. After deliberations, the Court shallpronounce a decision that
there is or is not adoption.
In the first ease, the content of the decree of judgment should be in
accordance with the provisions of article 812 of the Code of Civil Procedure.
Art. 28. If the petition for adoption is denied, the parties involved
may, within 30 days after the rendering of the judgment, submit it to
the Court of Appeals, which shall examine it in the same way asdid the
Civil Court.
By means of a founded resolution the Court of Appeals shall either
confirm the decision or decide to grant the adoption.
Art 29. In case of a favorable decision the PublicAttorney may
filean
appeal before the Civil Court and the resolution shall be given in the
manner described above.
Art. 30. The appeal on cassation against the decision rejecting the
petition for adoption shall be made within 30 days
fromthe notification
of the resolution, in the manner established by the Code of CivilProcedure in matters of appeal to higher court.
Art.31. Only the judgment or resolution which approves the adoption
667

Interim Decision #2686
is pronounced in open court. The content of the decree is recorded by
the Officer of Civil Status of the place of adoption in a Special Register
at the request of the Commissioner of Government.
Art. 32. Adoption produces its effects only after the fulfillment of the
formalities established in article 812 of the Code of Civil Procedure.
Nevertheless, the parties are joined together from the moment of the
act of adoption. Adoption may not be opposed by third parties except
after the recording of judgment or of the resolution granting the adoption.
Art. S3. If the adopter dies after the adoption act has been received
and the request granting the adoption has been presented to the Civil
Court, the examination shall continue and adoption shall be admitted if
there is one; but the court may, if it believes the adoption to beinadmissible, return all the records and documents to the Public Attorney.
Art. 3U. The competent Civil Court may pronounce the annulment of
adoption for serious causes at the request of the adopter, of the adopted
if he or she is of legal age, or of the Commissioner of Government if the
adopted is a minor of more than 13 years of age.
The judgment of the Court can be appealed in all cases.
The annulment discontinues from that moment thereafter all the
effects of adoption.
Art 35. The present decree repeals all laws or provisions oflaws,all
decrees or provisions of decrees, all decree-laws or provisions of
decree-laws which are contrary to this decree, and shall be published
and executed by the State Secretaries of Justice and of Social Affairs,
each in the matters related to its jurisdiction.
Given at the National Palace, Port-au-Prince, April 4,1974.171years
of Independence.
Jean-Claude Duvalier, . . . .
Translated by Rubens Medina, Chief, and
Dario C. Perreira, Legal Research Assistant
Hispanic Law Division
Law Library, Library of Congress
January 1978

BEFORE THE BOARD

(May 23, 1979)
On January 17, 1979, we affirmed the decision of the Acting District
Director denying the visa petition filed on behalf of the beneficiary as
the petitioner's adopted child under section 201(b) of the Immigration
and Nationality Act, 8 U.S.C. 1151(b). Matter of Mazard, Interim
Decision 2686 (BIA 1979). Upon our own motion, we will reopen the
668

Interim Decision #2686
proceedings and withdraw our prior decision in this case. See 8 CF.R.
3.2,
The petitioner is a 50-year-old native of Haiti and citizen of the United
States who seeks immediate relative status on behalf of the beneficiary,
a 17-year-old native and citizen of Haiti. In support of his visa petition
filed on July 29, 1977, the petitioner submitted the beneficiary's birth
certificate and a translation of a document entitled "Adoption Act." This
document states, in relevant part, that the petitioner, on May 15,1973,
declared that he was "willing to adopt as his own daughter the minor
Ketly Hazard, twelve years of age" and that the petitioner "declare
adopt and as a concret act adopt the minor Ketly Hazard
[sic]." In his
decision denying the visa petition, dated September 2,1977,the District
Director, relying on our decision in Matter ofAladin, Interim Decision
2425 (BIA 1975), found that, under the law ofHaiti, an adoption isvalid
only if it takes place before the child reaches the age of 6. The
petitioner appealed from this denial, claiming that the law regarding
adoption in Haiti had been revised to raise the age at which a child could
be adopted to 14 years. In a decision dated November 29, 1977, we
noted the fact that a new Haitian adoption law was enacted under a
decree of April 4,1974. We remanded the record to the District Director
for clarification in light of the statement in the adoption papers submitted by the petitioner that the adoption was issued pursuant to the
Presidential decree of April4,1973. On July 5,1978, the Acting District
Director again denied the visa petition, finding that the law regarding
adoptions in Haiti had changed on April 4,1974, and, accordingly, the
beneficiary's adoption by the petitioner on Hay 15,1973, was governed
by the Board's decision in Matter ofAladin, id. The Acting District
Director certified his decision to us for review, and, in Matter of
Mazard, supra, we affirmed his denial of the visa petition.
On April 10, 1979, we requested clarification from the Library of
Congress as regards the age by which a child must be adopted under
Haitian law. In a letter dated Hay 3, 1979, Armando E. Gonzalez,
Assistant to the Chief of the Law Library, Hispanic Law Division,
responded, in pertinent part, as follows:
Prior to 1974 the law on adoption in Haiti was found within the Decree of February
25, 1966 (Le Moniteur, Mar. 18, 1966, Extraordinary Issue). Concerning the age at
which a child could be adopted, that decree provided:
Art. i. Adoption is the act whereby a person takes [as his or her own] a child who
is not his or her natural issue. This act is authorized to the benefit of any child of less
than sixteen years of age, as long as the adopter shows just motives and this is
advantageous to the adopted child.
This decree of 1966 was superseded by the one of April 4,1974 (JLeMoniteur, Apr. 18,
1974), presently in force. Article 1, paragraph 2 of this decree sets the same age
limitation for adoption as that stated in the previous decree.

In light of this new translation of the law of adoption in Haiti, we will j
669

Interim Decision #2686
overrule our prior decision in Matter of Aladin, supra, insofar as it
required that a valid adoption in Haiti could only occur when the child to
be adopted was under the age of 6years. Consequently, the petitioner in
the present case, having adopted the beneficiary at the age of 12years,
is not precluded from establishing that the beneficiary qualifies as his
adopted child under section 101(b)(1)(E) of the Act, 8 U.S.C. 1101
(b)(1)(E).
Section 101(b)(1)(E) defines the term "child" to include an unmarried
person under 21 years of age who is(E) a child adopted while under the age of fourteen years if the child has thereafter
been in the legal custody of, and has resided with, the adopting parent or parents for at
least two years. . . .

The two-year requirement with respect to residence may include
periods of residence accumulated prior to formal adoption. Matter of
M—f 8 1 . & N. Dec. 118 (BIA1958; A.G. 1959). However, the two-year
legal custody requirement can only be satisfied by custody subsequent
to the adoption. Matter ofLee, 111. & N. Dec. 911 (BIA1966).Although
the petitioner is not precluded from establishing that the beneficiary
was validly adopted under Haitian law, we find it necessary to remand
the record to allow the petitioner an opportunity to present evidence
that he has met the residence and legal custody requirements of section
101(b)(1)(E). We note also that the document submitted by the petitioner as evidence of the beneficiary's adoption does not clearly indicate
that it is a final court judgment. Certain of the language contained in the
translation of that document indicates that it may be merely a declaration of intent to adopt. On remand, the petitioner should be given an
opportunity to present additional evidence that the adoption document
constitutes a final decree of adoption, including, if it is deemed necessary by the District Director, a new translation of that document.
ORDER: The record is remanded to the District Director for further
proceedings consistent with the foregoing opinion and the entry of a new
decision.

670


Interim Decision #2867

MATTER OF HANN

In Visa Petition Proceedings
A-21504220

Decided by Board May 19, 1981
(1) Under Article 18, Law 1306-bis, Civil Code of the Dominican Republic, the 2-month

time period within which divorces for cause must be pronounced and registered in the
office of the Civil Registry does not begin to run until after the 2-month time allowed
for appeal from the judgment has expired. Matter of Vaterio, 15 I&N Dec. 659 (BIA
1976); Matter of Gonzalez 16 I&N Dec. 178 (BIA 1977); and Matter of Duero, 16 I&N
Dec. 674 (BIA 1979), modified.
(2) The record is remanded for resolution of the following issues: a) whether Dominican
law allows nonresidents to obtain divorces for cause in the Dominican Republic; b) whether
Article 17, Law 1306-bis, Civil Code of the Dominican Republic, requires the party who
obtains a divorce for cause to appear In person" before an official of the Civil Registry
to have the divorce pronounced and registered; and e) whether Japan, the cuutiLry of
the petitioner's residence at the time of his divorce and the place of celebration of his
marriage to the beneficiary, would recognize his Dominican divorce.
ON BEHALF OF PETITIONER: Gene C. Lange, Esquire
Ragan & Mason
The Farragut Building

900 Seventeenth Street, N.W.
Washington, D.C. 20006

Br:

Milhollan, Chairman; Maniatis, and Maguire, Board Members

In a decision dated March 27, 1981, the Officer in Charge, Hong Kong,
on his own motion reversed his prior decision dated May 5, 1980, and
approved a visa petition filed to accord the beneficiary immediate relative status as the spouse of a United States citizen under section 201(b)
of the Immigration and Nationality Act, 8 U.S.C. 1151(b). The case was
certified to the Board for a decision. The record will be remanded to the
Officer-in—Charge for further proceedings.
The petitioner is an 80-year-old native and citizen of the United States,
'currently residing in Japan. The beneficiary is a 58-year-old native and
citizen of Japan. The petitioner married the beneficiary in Japan on
January 25, 1980. That same day he filed a visa petition in her behalf. In
support of his petition, the petitioner submitted a copy of a divorce
judgment entered on December 7, 1979, at San Cristobal, Dominican
-

59

-

Interim Decision #2867
Republic, purporting to dissolve the petitioner's prior marriage to Ellen
Jane Hann on the ground• of incompatibility of character. The divorce
was pronounced by an official of the Civil Registry on February 9, 1980.

In a decision dated May 5, 1980, the Officer-in-Charge concluded that
the petitioner's prior marriage was not legally terminated and, therefore,
that his present marriage was invalid for immigration purposes. The
Officer-in-Charge found the divorce defective because there was no evidence to indicate that Ellen Jane Hann was represented at the divorce
proceedings, that the petitioner personally appeared before the official
of the Civil Registry to have the divorce "pronounced", or that the
appearance and pronouncement were made within 2 months of issuance
of the divorce judgment.
The petitioner did not appeal, but instead submitted a letter from
Attorney Manuel G. Espinosa, with attachments, indicating that Mr.
Hann did not have to appear personally before the official of the Civil
Registry but that he could be represented by counsel. Mr. Espinosa also
indicated that the 2-month time limit for appearance before the Civil
Registry for pronouncement of the divorce does not begin to run until
after the time for appeal has passed. The Officer-in-Charge requested
an opinion from the Library of Congress. In a response dated March 12,
1981, the Assistant to the Chief, Hispanic Law Division, Library of
-

Congress, in essence agreed with the petitioner. He noted that Article
17 of the Civil Code of the Dominican Republic, Law 1806-bis (1937), as
amended, requires that a divorce judgment for cause be pronounced by
an official of the Civil Registry within 2 months. However, he stated
that under Article 18, the 2-month term for pronouncement of the divorce
does not begin to run until after the expiration of the term allowed for
appeal. He also noted that Articles 64 and 65 of the Law on Acts of Civil
Status (G.O. No. 6114) provide additional support for this conclusion.'
He further stated that under Article 16, the term for an appeal is 2
months. Thus, the Hispanic Law Division, Library of Congress, concluded that as the divorce judgment was rendered on December 7, 1979,
the time for appeal did not expire until February 7, 1980, and as the
divorce in this case was pronounced on February 9, 1980, that the
pronouncement was rendered within the 2 months, and that the divorce
was valid.
According to a translation provided by the Library of Congress, Articles 64 and 65
provide:
Article 64.
In the divorCe registry, which is constituted by folios with printed forms, there shall
be registered the act of pronouncement of divorce pursuant to the provisions of
Article 17 of Law 1:4111 his
-

of June 12, 1037 [sic_),

under which the spouse who •

obtained a divorce judgment issued in last instance or which has become final—except
if an appeal on cassation has been filed against it—is under the obligation to appear
60

Interim Decision #2867
The Library of Congress also indicated that under Article 15 of the
Civil Code, divorce proceedings filed on a given cause are considered
"contentious" proceedings, not ex parte proceedings and that they are

valid even if the defendant fails to appear in court when properly
summoned, as happened in this case.
In view of the Library of Congress' opinion, and particularly the
statutes cited, we agree with the Officer-in-Charge that the pronouncement of the divorce in this case was within the statutory time frame
although it occurred more than 2 months after the judgment was
rendered. We find that the 2-month period for pronouncement of a
divorce for cause under Dominican law begins to run subsequent to the
expiration of the time for appeal. This finding conflicts with our prior
statements to the effect that the pronouncement must occur within 2
months of the date the judgment is rendered. Matter of Valerio, 15 I&N
Dec. 659 (BIA 1976); Matter of Gonzalez, 16 r&N Dec. 178 (BIA 1977);
Matter of Lucero, 16 I&N Dec. 674 (BIA 1979). These cases are hereby
modified insofar as inconsistent with this opinion.
Notwithstanding that the petitioner has prevailed on the question of
the time within which pronouncement of a divorce must be made, the

record will be remanded because several critical questions remain
unanswered. First, the record does not reflect that Dominican law allows

nonresidents to obtain divorces for cause. We note that the judgment of
divorce in this case reflects that the petitioner was at the time of the
divorce a resident of Japan temporarily residing in the Dominican Repub-

lie and that Ellen Jane Hann was then residing in Garden Grove,
California, and that she did not appear. The opinion from the Library of
Congress reflects that Dominican law provides for two kinds of divorce
proceedings: one for divorces filed before the court on specific grounds
,which are governed by Articles 3 through 20 of the Civil Code; and the
second is for mutual consent divorces which are governed by Articles 26
through 33. We are aware that Article 28 provides that foreigners who
are in the country, even though they are nonresidents, may obtain a
divorce judgment on grounds of mutual consent under certain circumthe Civil Registry to hive the divorce
pronounced and the judgment registered in the Registry of Civil Status, provided the
other party is summoned by the bailiff Co appear before the official of the Civil
Registry to hear the pronouncement of the divorce . . . .
Article 65.
For the purposes of the preceding article, the provisions of Article 18 of Law 1306-bis
already cited, shall be taken into consideration, pursuant to which "the term of two
months referred to in the previous article shall not start until after the expiration of
the term to appeal in those cases where the divorce decree has been issued by the
court of first instance; with regard to those decrees [of divorce] issued by default ;A
appearance of appellant in appeal proceedings, the term shall be counted after the
expiration of the term to oppose the appeal."
within two months before the Official of

61

Interim Decision #2867
stances. However, we are not aware of a corresponding authorization
which permits the granting of divorces for cause to nonresidents. Upon
remand, the petitioner should submit evidence to establish that such
divorces are permitted under Dominican law. See Matter of Annang, 14
I&N Dee. 502 (BIA 1973).
A second question in need of resolution involves the requirement for

"pronouncement" of divorce judgments rendered for cause. We have
said that a divorce for cause rendered in the Dominican Republic will
not be valid unless the spouse who obtained the judgment appears personally before an official of the Civil Registry to have that judgment
pronounced. Matter of Valerio, supra; Matter of Gonzalez, supra; Matter of Lueero, supra. The basis for this statement was a translation of
Article 17 of Law 1306-bis provided by the Library of Congress. According to that translation, Articlel7 provides:
The spouse who obtained a divorce judgment issued by a court of last instance of a
judgment which has become final, except if an appeal on cassation which suspends the
effects of the iudgment has been filed; is under the obligation to appear in person before
the Official of the Civil Registry, within two months, in order to have the divorce
pronounced and the judgment registered in the office of the Civil Registry, provided the
other party is summoned by the bailiff in order that he (she) may appear before the
Official of the Civil Registry to hear the pronouncement of thd divorce. (Emphasis
added.)
See Matter of Valerio, supra, n 1.

We note that the record in this case contains another translation of
Article 17, also provided by the Library of Congress, which differs from
the previous translation in that the words "in person", underscored
above, are omitted. Upon remand, the question of whether the spouse
who obtains a divorce for cause must appear "in person" should be
thoroughly explored, and the matter of the conflicting translations of

should be resolved. 2
Finally, assuming the petitioner's divorce is valid under Dominican
law, the remaining question is whether it would be recognized by Japan,
the cot ntry of the petitioner's residence at the time of his divorce and
the place of celebration of his marriage to the beneficiary. Matter of
Weaver, 16 I&N Dec. 730 (BIA 1979). 3
Article 17

2 We are aware that this record also contains a statement in which Gustavo Bastita
Espinosa, proported Civil State Officer of the Municipal District of Lowe Haina, Dominican Republic. states that Article 17 of Law No. 1306-bis does not require that the petitioner appear in person, but that either the petitioner or his lawyer may appear to have
the divorce prone Awed.
We are aware that the facts of this case differ from those in Weaver in that here one of
the spouses resided in Japan and the other resided in California at the time of the divorce,
while both spouses in Weaver resided in the Bahamas at the time of their divorce. However.
inasmuch as the petitioher here was the moving party in this divorce and his spouse did
not participate in the proceedings, we think it appropriate that the validity of his divorce
(and marriage) be judged by the law of his residence, Japan.

62

Interim Decision #2867
Accordingly, the record will be remanded.
ORDER: The record is remanded to the Officer-in-Charge for further proceedings consistent with the foregoing opinion and entry of a
new decision.

63


Interim Dicision #1515

Mamma or LAEITZRT
In Deportation Proceedings
A 8137'778
-

Decided by Board October EA 1965
(1) Conviction for offering to secure another for the purpose of prostitution
in violation of section 780.07 or riorida statutes and section 25-77 of the
City of Tampa Code is conviction of a crime involving moral turpitude.
(2) Conviction for letting or renting rooms with knowledge that the rooms
were to be used for the purpose of lewdness, assignation or prostitution in
violation of section 26 -42 of the City of Tampa Code is conviction of

crime involving moral turpitude.
Manors:
Order: Act of 1952--Section 241(a) (12) [8 U.S.C. 1251(a) (12)]—Allen
who procured Prostitutes.
Lodged: Act of 1952—Section 241(a) (4) (5 U.S.C. 1251(a) (4)]—Convicted
of two crimes—letting rooms for the purpose of
prostitution; offering to secure another for purpose
of prostitution.

This case is before us on appeal from a decision of a special inquiry officer directing the respondent's deportation.
The respondent is a 74-year-old divorced male, native and citizen
of Canada, who was admitted to the United States for permanent
residence on February 4, 1953. He last arrived in the United States
in February 1962 after a short absence in Canada but this arrival
has no relevance to the issue of deportability. The special inquiry
officer found that the respondent had been convicted in the Municipal
Court of Tampa, Florida, on four occasions as follows: on. February 16, 1962 and June 29, 1962 for renting or letting rooms with the
knowledge that such rooms were to be used for the purpose of lewdness, assignation or prostitution (Exs. 3 and 4), and on April 26,
1963 for two offenses committed on January 10, 1963 and March 11,
1963 (Exs. 5 and 6), each involving violations of Florida Statutes
§796.07 and Tampa Code §26-77. The special inquiry officer concluded that the charge in the order to show cause could not be sus340

Interim Decision #1515
tained, and this conclusion was not challenged by the' trial attorney
or the appellate trial attorney. For that reason, we will not discuss
that charge. The sole issue in this case is whether the respondent is.
deportable. on the lodged charge.
, From the special inquiry officer's decision, it appeart that he disregarded the conviction for the offense committed on March 11, 1963.
(Ex. 6), not only in connection with the chargé in the order to slum
cause, but also with respect to the lodged charge. This was based on
the fact that the 'respondent was not convicted of. having on March
11, 1963 actually procured another for the purpose of prostitution or
for any other lewd or indecent aot, but rather

VMS

convicted merely

of having agreed to secure another. The special inquiry officer concluded that the lodged charge as sustained on the basis of the conviction for the offense committed on January 10, 1963 (Ex. 5) and
the convictions of February 16, 1962 and June 29, 1962 (Exs. 3 and
4). The conviction for the offense committed on January" 10, 1963
shows that the respondent offered to secure another for the purpose
of prostitution and directed Brenda Barnes to I. W. Roberts for the
purpose of prostitution. Counsel appears to have conceded during
the oral argument that this latter offense involves moral turpitude,
and we are satisfied that it does.
In view of the foregoing and inasmuch as 8 U.S.C. 1261(a) (4)
requires conviction of two crimes involving moral turpitude, the
question in the respondent's case resolves itself into whether there
was one additional such crime, that is, whether the conviction on
February 16, 1962 or the conviction on June. 29, 1962 relates td
crimes involving moral turpitude. These two convictions pertained
to letting or renting rooms with the lmowledge that such rooms were
to be used for the purpose of lewdness, assignation or prostitution
in violation of section 26-42 of the City of Tampa Code.
In connection with the words "lewdness, assignation or prostitution" in the conviction record, counsel seems to contend that, in order
•that a determination might be made as to whether the crime involved
moral turpitude, there was some obligation on the part of the Service
to adduce additional evidence to show whether the renting of the
room was with knowledge that it was to be used for the purpose oflewdness or for the purpose of assignation or for the' purpose -of
prostitution. Actually, it would have been improper for the Service
to have produced additional evidence since it has long been settled
judicially that the immigration authorities may not go behind the
record of conviction to examine the circumstances under which the
crime was committed, and the determination of whether a crimein-.
volves moral turpitude must be made on the basis of the statutory.
841

Interim Decision #1515
definition of the crime and the record of conviction.' United States
ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Cir., 1983) ; United States
ex rel. Meyer v. Day, 54 F.2d 336, 337 (2d Cir., 1931) ; United States
ow eel. Robinson v. Day, 51 F.2d 1022 (ea Cir., 1981).
Counsel relied on our decision in Hatter of L—, 8 L & N. Dec. 199
(1948), involving a conviction under section 1179 of the Compiled
Ordinances of the City of Tampa, Florida. As stated there, the
exact language of the ordinance was not part of the record but the
special inquiry officer, in his decision concerning this respondent, indicated that it was apparently the predecessor of section 26-42. In
discussing Matter of Z

—

, the special inquiry officer stated (decision,

p. 6) that we had held there that a conviction for operating a house
of assignation for debauchery did not involve moral turpitude, but
this is an erroneous statement because we did not reach such a conclusion and the case did not even relate to whether that alien had
been convicted of a crime involving moral turpitude. However, it
would seem that such a crime would involve moral turpitude. In
Matter of L—, the alien was charged with deportability on only one
ground, that is, that he had been found managing a house of prostitution. We said that, at most, the hotel which he owned had been
used as a house of assignation on occasions but that there was no
evidence that it was a house of prostitution as required by section 19
of the Immigration Act of 1917. Since that charge is not involved
in the respondent's case, Matter of L— is inapposite.
The special inquiry officer has pointed out that, under section
796.07(1) (b) and (a) of the Florida Statutes, the term "lewdness"
shall be construed to include any indecent or obscene aet and the
term. "assignation" includes the making of any appointment or en3 I. &
gagement for prostitution or lewdness. In Hatter of
Dec. 20 (1947), we held.that a conviction under the California Penal
Code for keeping a house of ill-fame resorted to for the purposes of
prostitution and lewdness clearly involved. moral turpitude. We are
satisfied that the respondent's violations on January 26, 1962 and
April 20, 1962 for renting rooms with knowledge that the rooms
were to be used for the purpose of lewdness, assignatibn or prostitution were for crimes involving moral turpitude. Inasmuch as the
respondent has been convicted of three. crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, we
conclude that he is deportable under 8 13.S.C. 1251(a) (4): As the
special inquiry officer indicated, the respondent is not eligible for
any discretionary relief. Accordingly, his appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
34:1