Interim Decision #2892

MATTER OF ALPHONSE,

et al.

In Exclusion Proceedings
A-26006595

Decided by Board November 17, 1981
(1) An immigration judge lacks jurisdiction to consider a motion for a change of venue
where an alien is detained by the Immigration and Naturalization Service pending
exclusion proceedings notwithstanding the provision in 8 C.F.R. 236.1 granting immigration judges the power to take such actions "as is appropriate and necessary
for the disposition of such cases." Matter of Wades, 17 I&N Dec. 346 (BIA 1980)
distinguished.
(2) A change of venue issue may not be reviewed by an immigration judge in exclusion
proceedings in the case of a detained alien because such a review would necessarily
involve consideration of parole and detention matters which are exclusively within
the jurisdictional powers of the District Director. 8 C.F.R. 212.5(a), 233.1, and 235.3.
EXCLUDABLE:

Order. Act of 1952—Sec. 212(2)(20) [8 U.S.C. 1182(2)(20)1—No valid, unexpired immigrant visas or other valid entry documents
ON BEHALF OF APPLICANT:
Arthur C. Helton, Esquire
Mailman & Ruthizer, P.C.
1290 Avenue of the Americas
New York, New York 10104

ON BEHALF OF SERVICE:
James W. Grable
Chief Legal Officer

BY: Milhollan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members

On September 9, 1981, the immigration judge considered and denied
the applicants' motion for a change of venue. Both the Service and the
applicants submitted interlocutory appeals. The Service appeal will be
sustained and the applicants' appeal will be dismissed.

The applicants are natives and citizens of Haiti who arrived in the
United States on July 5, 1981, near Miami, Florida. They were served
with notice that they may be excludable pursuant to section 212(a)(20) of
the Immigration and Nationality Act, 8 U.S.C. 1182(a)(20). They were
held in detention pending conclusion of their exclusion proceedings and
resolution of their application for asylum. These applicants were transferred to the. Bureau of Prisons' detention facility in Camp Ray Brook,
Plattsburg, New York, as part of a program to reduce overcrowding at
the Krome Service detention center in Miami, Florida.
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Interim Decision #2892
In an August 11, 1981, exclusion hearing, the immigration judge permitted the applicants' counsel to enter a special appearance for purposes
of submitting a motion to change the venue of the exclusion proceedings
from. Camp Ray Brook, in Plattsburg, New York, to New York City,
Miami, or any other large population center. The immigration judge
ruled that he had jurisdiction to consider the motion but denied it after
concluding that the applicants had failed to establish that such a change
of venue was warranted. Interlocutory appeals were submitted by both
parties.
The Service contends that the immigration judge did not have. authority to consider the applicants' motion for a change of venue because the
applicants were still detained and, therefore, within the sole jurisdiction
of the District Director. The applicants submit that a change of venue
was warranted. We will entertain this interlocutory appeal because it
raises an important issue in the administration of the immigration laws
concerning the jurisdictional powers of immigration judges and district
directors.. Matter of Ruiz-Campuzano, 17 I&N Dec. 108 (BIA 1979).
Sections 233 and 226 of the Act, 8 US_ C_ 1728 and 1225, prescribe
that an alien arriving in the United States may be detained pending
resolution of his admissibility. See Shaughnessy v. Mezei, 345 U.S. 206
(1953): United States ex rel. Russo v. Thompson, 188 F.2d 244 (2 Cir.
1951), cert. denied, 341 U.S. 954 (1951). The place of detention is determined by the immigration officer at the port of entry pursuant to 8
C.F.R. 233.1. Sec generally - lA Gordon and Rosenfield, Immigration
Law and Procedure, section 3.17(b) (1980).
The immigration judge relied on two precedent decisions by this Board
as authority for his conclusion that he had jurisdiction to entertain the
motion tc, change venue. In Matter of Seren, 15 I&N Dec. 590 (BIA
1976), we interpreted the language hi 8 C.F.R. 242.8(a) that grants
immigration judges the power to take such action as "may be appropriate to the disposition of the case" as including the power t9 consider
questions of change of venue in deportation proceedings. In 'Matter of
Wadas, 17 I&N Dec. 346 (BIA 1980), we read similar langiiage in 8
C. F.R. 236.1 as including within it a similar power by immigration
judges to consider applications for a change of venue in exclusion
proceedings. However, in Matter of Wallas, supra, we also specifically

stated the following regarding venue jurisdiction:
Such jurisdiction does not affect the District Director's jurisdiction to set parole, or the
conditions to be met by the parolee. It also does not affect the District Director's
authority to detain an applicant for admission; nor does it infringe on his authority to
limit the applicant's enlargement on parole to the vicinity of the port of entry. Here, the
applicant was paroled into the United States and allowed to travel outside the district of
the port. of entry. Here, the applicant was paroled into the United States and allowed
to travel outside the district of the port of entry. (Emphasis supplied.) In such a coze,
where it appears with good reason that another venue should be designated after the

179

Interim Decision #2892
hearing commences, the immigration judge has the authority to hear a motion to change
venue, weigh the factors involved, and to make a new designation if he considers it
necessary. The procedure will enable him to "regulate the course of the hearing" as
provided in 8 C.F.R. 236.2(b).
Unlike the alien in Wadas, the applicants here have not been paroled

by the District Director and remain detained. When aliens are detained,
change of venue questions involve more than whether the exclusion
hearing can be better conducted in a different Service district. Ina case

such as this, ordering the change of venue for all of the 36 applicants
here involves also the allocation of suitable detention facilities to hold
these applicants pending conclusion of their exclusion proceedings.
8 C.F.R. 242.2(b) prescribes the authority for immigration judges to
review the District Director's detention decisions in deportation cases.
There is no similar provision regarding detained aliens in exclusion
proceedings. Section 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5), prescribes
the authority for the Attorney General to parole aliens into the United
States temporarily pending resolution of their admissibility. Such parole
jurisdiction has been delegated exclusively to the District Director's
discretion pursuant to 8 c.F.n. 212.5(a). Matter of Lepofekg, 14 I&N
Dec. 718 (BIA 1974); Matter of Conceiro, 14 I&N Dec. 278 (BIA 1973),

aff'd Conceiro v. Marks, 360 F.Supp. 454 (S.D.N.Y. 1973). Operations
Instruction 233.1 specifies that transferring an alien detained pending
exclusion proceedings requires the District Director's permission. While
not binding on this Board, the prescriptions of the Operations Instructions are often persuasive. See Matter of Garcia, 16 I&N Dec. 653 (BIA
1978).
We conclude that an immigration judge lacks jurisdiction to consider a
motion for the change of venue of an alien detained pending exclusion
proceedings. Such jurisdiction would interfere with the District Director's
sole jurisdiction to detain aliens in exclusion proceedings pursuant to 8
C.F. R. 233.1 and 235.3 or parole such aliens pursuant to 8 C.F.R.
212.5(a). We find that the procedures prescribed in deportation cases by
8 C.F.R. 242.2(b) are not available in exclusion proceedings. Consequently, we find that the regulations do not contemplate a review of.
detention decisions by immigration judges by way of a motion to change
venue, despite the similarities between the language of 8 C.F.R. 236.1
and 242.8(a).
Therefore, our decision in Matter of Wadas, supra, is limited to situa' tions where the alien in exclusion proceedings has been paroled by the
District Director. Accordingly, there can be no interference with his
exclusive power to parole pursuant to 8 C.F.R. 212.5(a). The Service
appeal will be sustained.
Our decision sustaining the Service's appeal renders the applicant's
appeal from the denial of the motion to change venue moot, since we

conclude that the immigration judge lacks jurisdiction to grant such a
180

Interim Decision #2892
motion. Therefore, the applicants' appeal will be dismissed.
ORDER The Service appeal will be sustained and the applicants'
appeal will be dismissed.

FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing opinion.

181


Marrer or L——
In EXCLUSION Proceedings
A-11152100
Decided by Board May 11, 1960

‘Commuter statas—Two hours employment in United States during ten-month
period insufficient ¢o confer commuter status.

Canadian national who was employed in United States for only two hours
between January and November 1959 never acquired eligibility for com-
muter status; hence, temporary incapacity for employment during that pe-
Tiod due to pregnancy was immaterial to disposition of case.

EXciupaBie: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20) ]—Immi-

grant not in possession of a valid unexpired immigrant visa.

BEFORE THE BOARD

Discussion: The case comes forward pursuant to certification by
the special inquiry officer of his decision entered January 4, 1960,
directing that the applicant be admitted to the United States as a
commuter.

The applicant is a married female who was born at Windsor,
Ontario, Canada, on August 30, 1935. She has testified that her
mother is a native-born citizen of the United States but that prior
to her entry into the United States on January 16, 1959, as a non-
quota immigrant, she had resided in this country only for a period
of 6 or 7 months while attending school in 1951. She also testified
that she voted in a municipal election in Canada in 1957. Although
the evidence on this point appears to be rather sketchy, from the
facts of record it does not appear that the applicant ever perfected
aay claim to citizenship under the nationality laws; and, in any
event, she appears to have expatriated herself under the provisions
of 8 U.S.C. 1481(a) (5) by voting in a foreign election in 1957.

The applicant is an alien, a native and citizen of Canada, married,
female, 24 years of age, who was originally admitted to the United
States for permanent residence in possession of » nonquota immi-
grant visa on January 16, 1959. At that time her status was imme-
diately converted to that of a commuter since she was then seeking
employment in the United States. She last sought admission to the
United States at the port of Detroit, Michigan, on November 30,

643
1959, presenting a Form J--151, Alien Registration Receipt and
Border Crossing Identification Card, with which she sought admis-
sion as a returning immigrant of the commuter class.

It has been established that between the date of her original entry
in January 1959 and her present application for admission in No-
vember 1959, the applicant had been employed in the United States
for a period of only two hours on May 29, 1959. It has further
been established that the applicant gave birth to a child in Canada
on August 14, 1959, and that she was incapacitated for work by
reason of pregnancy and childbirth during the period July 1, 1959,
to September 15, 1959.

The principal question to be resolved is whether the applicant
was, in fact, ever qualified for the commuter status. It has been
held that where an alien was admitted for permanent residence, on
the same day procured a Resident Alien’s Border Crossing Card
with which she returned to Canada where she resumed residence,
and subsequently entered the United States only it unsuccessful
attempts to secure employment, she was not entitled to the com-
muter status. .

By way of review, aliens who seek to make temporary visits to
perform labor in the United States are regarded not as nonimmi-
grants but as immigrants? The- strict enforcement of this rule
would have created a troublesome situation along the Canadian and
Mexican borders where many thousands crossed the international
line each day to employment on the other side. Where this employ-
ment was permanent in character, administrative ingenuity devised
a “commuter” status which enabled the Canadian or Mexican to
obtain lawful admission for permanent residence in order that he
might be able to pursue his employment here. His right to enter is
attested by his Alien Registration Receipt Card. This, of course,
is an amiable fiction, since the commuter is actually coming to this
country temporarily and usually returns to his home in Canada or
Mexico each night. However, it is a device which allows the entry
of many aliens in contiguous territory who have stable jobs in this
country.*

It can thus be seen that the commuter status device has been used
where the employment in this country is of a permanent and stable
nature. An applicant’s employment in the United States which has
aggregated a ‘total of 2 hours performed during one day since
January 1959 would scarcely seem to qualify as stable or regular
employment so as to enable the applicant to retain her commuter
status, in view of the lapse of time since she has been employed in

4 Matter of D-——O——, 8 I. & N. Dec, 519,
3 Karnuth v, United States ex rel. Albro, 279 U.8. 281 (1929).
*Gordon and Rosenfield, Immigrated Low 4 Procedure (1959), p. 127.

844
this country. We, therefore, conclude that the applicant is not
eligible at this time to enter as a reiurning resident of the com-
tmuter class.

In other respects, we believe the case is governed by the prin-
ciples enunciated in Matter of S——, G—— & C-—~, A-11135619,
A-11132260, A-10367889, Int. Dec. No. 967. In that case the history
of commuter status was extensively reviewed. We there reaffirmed
the rule that commuter status is lost, as before, when the alien has
been out of employment in the United States for more than 6
months. We also indicated that a commuter remains entitled to
such classification, notwithstanding an absencs of 6 months and
interruption of his work for that period, if his employment, job
or position has not been lost and if the interruption was due to
circumstances beyond his control, such as serious illness, pregnancy
or a disabling injury, all of which would toll this 6-month period
until commuter was again employable. We need not consider
whether the applicant’s employment, job or position had not been
Jost in the instant case inasmuch as we have already concluded that
the single, brief, 2-hour-period of previous employment in this
country does not support the commuter status. Permission to re-
apply will be granted.

Order: It is ordered: that the alien be excluded under section
212(a) (20) [8 U.S.C, 1182(a) (20)] as an immigrant not in pos-
session of a valid unexpired immigrant visa.

It is further ordered that permission to reapply for admission
after exclusion and deportation be granted.

645


Interim Decision #2018

MATTER OF PON

In Deportation Proceedings
A-10490469
Decided by Board December 31, 1969
An alien who entered the United States as a nonimmigrant visitor upon
presentation of a certificate of identity obtained upon a fraudulent claim
to United States citizenship, thereby avoiding inspection and determination of admissibility as an immigrant alien, was not "otherwise admissible" at time of entry and, therefore, is ineligible for the benefits of section
241 (f) of the Immigration and Nationality Act, as amended [Matter of
Lee, Interim Decision No. 1960•].
CHARGES:

Warrant: Act of May 24—Immigrant—no visa
Act of May 22, 1918, as amended
Act of Feb. 5, 1917—Did not present unexpired passport.
ON BEHALF OF RESPONDENT:

Joseph P. Fallon, Jr., Esquire
80 Hotaling Place
San Francisco, California 94111
(Brief filed)

The case has been certified to us by the special inquiry officer
vho denied respondent's motion to reopen proceedings for the
purpose of applying for adjustment of status under section 245 of
he Immigration and Nationality Act. Our careful study of the isues herein persuades us that the motion should be granted.
The respondent originally entered the United States on Novemer 29, 1951, as a nonimmigrant visitor pursuant to section 3 (2)
f the Immigration Act of 1924. At the time of entry, he preented a certificate of identity issued by the American Consul
nder section 503 of the Nationality Act of 1940, which certifiate was obtained upon the respondent's fraudulent claim to
1nited States citizenship. On January 8, 1953, the United States
)istrict Court for the Northern District of California denied re*See, Matter of Yee, Interim Decision No. 2104.

446

Interim Decision #2018
spondent's claim to United States citizenship and dismissed his
complaint with prejudice. Thereafter, on April 30, 1953 the respondent was found subject to deportation as an immigrant not
in possession of a valid immigration visa under sections 13 and
14 of the Immigration Act of 1924 and under the Passport Act of
May 22, 1918 for failure to present, at entry, an official passport
or document in the nature of a passport. The respondent presently
alleges that his wife and two children entered the United States
on October 6, 1968, for permanent residence and that, therefore,
he is eligible to apply for adjustment of status.
The special inquiry officer, relying on Muslemi v. INS, 408 F.2d
1196 (9 Cir., 1969), concluded that the respondent was already a
permanent resident by virtue of section 241 (1) and that an application for adjustment would serve no purpose. The special inquiry officer noted a recent opinion of the Attorney Genera!
(Matter of Lee, Interim Decision No. 1960 (1969)), which he interpreted as being in direct conflict with the decision of the Ninth
Circuit in Muslemi. He nevertheless determined that the ruling of
Muslemi applied here since the instant matter arose in the same
circuit.
At first blush, this conclusion appears tenable. A careful reading of both Muslemi and Matter of Lee, however, leads us to conclude that there is no conflict between those cases since Muslemi
in our view is not subject to the broad interpretation given it by
the special inquiry officer. Muslemi dealt with the basic question
of whether an alien, who entered as a nonimmigrant and is found
deportable as an immigrant without visa, comes within the scope
of section 241 (f) as construed by INS v. Enrico, 385 U.S. 214
(1966). The court in Muslemi concluded that he did, but remanded the case for a determination of whether Muslemi was
"otherwise admissible" within the meaning of section 241(f). The
issue of whether an alien who entered as a nonimmigrant,
thereby evading the visa issuing process applicable to immigrants, is "otherwise admissible" within the meaning of section
241 (f) was never raised or argued in Muslemi and we cannot
broadly state that that issue has been decided by the Ninth Circuit sub sitentio. To the extent that the latter issue was not resolved by Muslemi, it remains an open question in the Ninth Circuit and the Attorney General's opinion in Matter of Lee is
dispositive of that issue.
In Matter of Lee, the Attorney General noted that section
241 (f) only encompassed fraud or misrepresentation committed
by an alien in furnishing information in the course of being proc447

Interim Decision #2018
essed for entry as an immigrant. In his view, "the otherwise admissible requirement of section 241(f) would be meaningless if it
were not interpreted to mean that an alien, at the time of entry,
must have satisfied all of the other requirements necessary to
enter as an immigrant, apart from his inadmissibility derived
from the particular facts or status as to which he made his misrepresentations." Consequently an alien, such as the respondent,
who never applied for or obtained an immigrant visa, has not
met all the "otherwise admissible" requirements for entry as an
immigrant. As the Attorney General correctly noted, most of the
immigration requirements are waived for aliens who came here
as nonimmigrant visitors. Although the Attorney General noted
the Muslemi decision, nevertheless, he emphasized that, "... [A]n
alien who has evaded most of the immigration requirements by
fraudulently entering as a nonimmigrant visitor also does not appear to be an 'otherwise admissible' immigrant." (Emphasis supplied.)
The situation to which the Attorney General was alluding is
precisely the one before us since the respondent entered as a nonimmigrant to prosecute a fraudulent claim to United States citizenship. The respondent's fraudulent claim to United States citizenship and entry as a nonimmigrant permitted him to avoid
inspection as an immigrant alien and consequently a determination of whether he was admissible as an immigrant was never
made. We must hold, in keeping with the Attorney General's position that the respondent was not "otherwise admissible" at the
time of entry and therefore cannot benefit from the relief granted
by section 241 (f). As a result, the respondent must seek relief
through adjustment of status and we order these proceedings reopened so that consideration may be given to this application
under section 245.
ORDER: It is ordered that the motion to reopen proceedings
be and the same is hereby granted.

448


Cite as 27 I&N Dec. 481 (A.G. 2018)

Interim Decision #3943

Matter of Daniel Girmai NEGUSIE, Respondent
Decided by Attorney General October 18, 2018
U.S. Department of Justice
Office of the Attorney General

BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2018), I direct the Board of
Immigration Appeals (“Board”) to refer this case to me for review of its
decision. The Board’s decision in this matter is automatically stayed
pending my review. See Matter of Haddam, A.G. Order No. 2380-2001
(Jan. 19, 2001). To assist me in my review, I invite the parties to these
proceedings and interested amici to submit briefs on: Whether coercion
and duress are relevant to the application of the Immigration and Nationality
Act’s persecutor bar. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i),
1231(b)(3)(B)(i) (2012).
The parties’ briefs shall not exceed 15,000 words and shall be filed on
or before November 8, 2018. Interested amici may submit briefs not
exceeding 9,000 words on or before November 15, 2018. The parties may
submit reply briefs not exceeding 6,000 words on or before November 15,
2018. All filings shall be accompanied by proof of service and shall be
submitted electronically to AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice
Office of the Attorney General, Room 5114
950 Pennsylvania Avenue, NW
Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or
before the pertinent deadlines. Requests for extensions are disfavored.

481


I nterim Decision #1740

Aavaa

Or M/V

"Sorrm Aramaic Vicroxr"

In Fine Proceedings
NOL-10/61.284
Decided by Board February 13, 1967
Slam as intent to conceal one's self aboard a United States-hound vessel for the

purpose of obtaining passage thereon is an element essential to constituting
an alien stowaway within the meaning of section 273(d), Immigration and
Nationality Act, where the two aliens involved, longshoremen by occupation, boarded the ship in Colombia in search of food, thereafter fell asleep
until the vessel was at sea, and the evidence demonstrates they lacked any
intention whatsoever of obtaining passage to the United States, fine does not
lie wider section 278(d) of the Act, notwithstanding upon arrival they were
preoenti'd for Inspection as stowaways.
IN au: M/V "South African Victory," which arrived at the port of New Orleans,
La., from foreign, via another United States port, on August 17, 1960.
Aliens involved: Raul Sanchez-Pena and Isaic Aristobulo MendozaLopez.
J. Dwight LeBlanc, Jr., Esquire,
ON BENALIP or ALITELLANT •
Chafe, McCall, Phillips, Burke, Toler & Hopkins
1500 National Bank of Commerce Building
New Orleans, Louisiana 70112

This appeal is directed to an administrative penalty of $2000, $1000
as to each of the aliens named above, which the District Director at
New Orleans has ordered imposed on Hansen & Tideman, Inc., as
agents for the vessel. The specific violation charged is failure to detain
the above-named aliens aboard the vessel, as stowaways, pursuant
to an immigration officer's order to do so.
It appears from the record before us that the following material
facts exist without substantial controversy. The above-named aliens,
natives and citizens of Colombia, are longshoremen by occupation.
They boarded the ship in Colombia in search of food, and thereafter
fell asleep in. a rope locker. They did not awaken until the ship was
well at sea, when they were discovered by a. crewman. Following their
discovery, an arrangement was made whereby they worked as deck
boys for their meals.
253

Interim Decision #1740
The aliens were still aboard when the vessel made its first United
States port call at Mobile, Alabama, on August 14, 1966. They were
then and there presented to the boarding immigration officer by the
master for inspection, as stowaways. The boarding immigration officer ordered them detained on board the vessel and deported from the
United States thereon , as stowaways, serving appropriate notices to
9) upon the vessel's master and agents.
that effect (Forms 1 25
While the vessel remained at the port of Mobile, the two aliens were
locked in the ship's hospital and professional guards were stationed
outside it, with the sole duty of preventing the escape of the aliens.
This same arrangement was put into effect after the vessel had proceeded coastwise to New Orleans, ante. Nevertheless, while the vessel
was still in that port, and specifically at approximately 10 :45 p.m. on
August 17, 1966, the aliens succeeded in breaking the lock on the door
of the ship's hospital and going ashore in the United States, while
the professional guard was on watch at the porthole on the other side
of the ship's hospital.
The escape was reported to the Immigration Service approximately
one-half hour after it occurred. One hour later, border patrol officers
of the Immigration and Naturalization Service took the aliens into
custody in a bar in the dock area. They were subsequently remanded
to the carrier's custody aboard the vessel and removed from the United
States thereon.
The District Director's decision to impose the fines herein is predicated on the following factors :
-

the master presented the aliens to the boarding Immigration officer for
inspection, as stowaways;
(2) that official ordered the aliens detained on board and deported, as stowaways;
(2) the aliens did eseape from the ship;
(4) it is unnecessary in fine proceedings such as this to go beyond the record,
or to delve into the thoughts of the aliens involved when they hid themselves aboard the vessel ; and
(5) it is immaterial that criminal prosecution of the aliens as stowaways was
declined by the appropriate United States Attorney.
(1)

We, however, conclude that the fines have been improperly ordered
imposed, for the reasons hereinafter set forth.
It has been judicially held * * a 'stowaway' * * * is one who con- ,
tealshimfbordnutgveslfohpr btaing
free passage." 1 The courts have also ruled that "* * * It is quite clear
that * * * the word 'stowaway' is used to indicate one who steals his
passage * * *." 2 Likewise, it has been judicially stated that to justify
oandrece v. Smith, 27 T.2c1 842.
D'Amato v. Williams, 198 F. 228.

254

Interim Decision #1740
the conviction of a person for stowing away on a vessel it is necessary
to establish intent to go and remain on board without paying for a
ticket, and that an accidental remaining aboard does not suffice. 3
In our opinion, the foregoing eases establish that, under the general
principles of maritime law, a stowaway is one who conceals himself
on board a vessel about to leave port in order to obtain passage, and
that when he lacks such intent he is not properly classifiable as a

stowaway: On this point, while it may well be true that in oases involving immigration laws a somewhat different rule may prevail,
e.g., a stowaway who is signed on the vessel's articles by the master
would be regarded as a seaman"; it must also be noted that such exceptions occur only where definitions peculiar to the immigration laws
are involved.° We find no such distinguishing feature present in the
instant case.
On the facts, the occupation of these aliens was that of longshoremen, so that they cannot reasonably be held to fall within the provisions of section 101(a) (15) (D) of the Immigration and Nationality
Act (8 U.S.C. 1101), which reads:
The term "immigrant" means every alien except an alien who is within one
of the following classes of nonitasnigranta

—

an alien serving in good faith as each

in any capacity required for normal operation and service on board a vessel
(other than a fishing vessel having its home port or an operating base in the
United States) or aircraft, who intends to land temporarily and solely in pursuit
of his calling as a crewman and to depart from the United States with the vessel
or aircraft on which be arrived or some other vessel or aircraft.

Nor do we think they can logically be held to fall within the terms
of section 101(a) (10) of the Immigration and Nationality Act (8
U.S.C. 1101) defining the term "crewman" as meaning:
a person serving in any capacity on board a vessel or aircraft.

The reason is that, in -view of the circumstances under which the aliens

were aboard this vessel, and absent evidence that they were signed on
the ship's articles (and there is none here), they cannot properly be
classified as members of the ship's crew or its company;' and they certainly were not engaged as such. Rather, in the eyes of the law, they
were properly classifiable as trespassers on board the vessel at their
own peril.°
In view of the foregoing, we are satisfied that the element essential
Mined States v. ilusso,172

F.2d 553.

°Norris, The Law of Seamen, Vol. 1, aeo. 7, pp. 8 & 9.

" United States v. Sandrev, 48 F. 550.
a See footnote 4, ante.
Norris, The Law of Seamen, Vol. 1, secs. 1 & 5.
8

The ease of the Western World. Malley v. Hupper, 31 F. Sapp. 340.

255

Interim Decision *rip
to constitute an alien a stowaway under section 273 (d) of the Immigration and Nationality Act (8 U.S.C. 1323) is the intent on the part of
the alien involved to conceal himself aboard a vessel bound for the
United States for the purpose of obtaining passage thereon. The evidence of this record, however, definitely demonstrates that such intent
was not present in this case, it being conceded that the aliens involved
were longshoremen by occupation who boarded this ship in search of
food and thereafter fell asleep until the vessel was out at sea; and that
they lacked any intention whatsoever of obtaining passage to the
United States, free or otherwise. Therefore, we conclude that the charge
that the master and/or the agents failed to detain the stowaways on
board was improperly posited.
Contrary to the District Director, we find it immaterial that these
aliens were presented by the master to the boarding immigration officer
for inspection as stowaways, and that the immigration officer ordered
them detained on board and deported as such. The reason is that it is
substance rather than form which is controlling in such situations. To
illustrate this point, we need only refer to a prior precedent decision
of ours wherein an alien arriving in the United States aboard a vessel
was presented for inspection with a crew list showing him to be a
s 'workaway"; his name was transferred to a separate passenger manifest, pursuant to instructions of the inspecting immigration officer; the
latter then admitted the alien (who was in possession of a B-2 visa)
as a' temporary visitor; and the alien was thereafter found. eligible for
adjustment of his status to that of a permanent resident, under section
945, Immigration and Nationality Act (8 U.S.C. 1255) .
We do not necessarily disagree with the District Director's views
that the failure of the appropriate United States Attorney to prosecute
these aliens criminally as stowaways, ostensibly under the provisions of
18 U.S.C., is not determinative in these proceedings. The only comment
required on this aspect of the case is that, in substance, said statute
defines a stowaway as a person who boards or secretes himself on a
vessel with the intent to obtain transportation; and that the evidence
of this record does not establish the existence of such intent. The only
other point worth noting, in this connection, is that the element of
intent not to pay for the transportation has been omitted from the
statute as being unnecessary, for the obvious reason that payment for
the transportation would have the effect of purchasing the master's
consent.
In conclusion, it is our opinion that there are certain rules of statutory construction which have a specific and definite bearing on the
• Hotter of 9-0—, AL1277
. 4443, 83.A., 1/14/64; Int Dec. No. 1516.

256

Interim Decision #1740
disposition of this matter. In the first place, fine statutes such as this
must be strictly construed in all respects because of their quasi-penal
nature." Secondly, carriers must be favored in the construction of such
statutes, as a matter of law; and mere convenience of enforcement
cannot justify a strained construction of the statute." In this latter
connection, there would appear to be no sound basis for the possible
argument that our ruling herein will create an enforcement problem,
because of the availability of other sanctions found in the presently
existing framework of the law."
On the basis of all the foregoing, it is our conclusion that these fine
proceedings based on the charge that the master and/or the agents
failed to detain stowaways on board the vessel necessarily fall. We so
hold.
ORDER: It is ordered that the appeal be sustained and that the
fines be not imposed.
s° Miner v. Robertson, 260 U.S. 248.

United States v. I. H. Winolmter d Co., 40 Ltd 472.
"Bee sections 287 and 271 of the Immigration and Nationality . Act (817.8.C.
1227 and 1821).
31

257


Interim Decision #2818

MATTER OF KIM
In Deportation Proceedings
A-14516808
A-14409745
Decided by Board August 22, .1974
Suspension of deportation under section 244(a)(1) of the Act based on seven years physical
presence in the United States will not be granted on a claim of extreme hardship, where
the only facts presented tended to show better economic and educational opportunities
for the respondent's United States citizen children in the United States than in Korea.
CHARGE:
Order Act or 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))—Nonimmigrant student,
remained longer than permitted (both respondents).

ON BEHALF OF RESPONDENTS:
Leslie J. Frank and
Bert D. Greenberg. Esquires
California Federal Building
Suite 1800
5670 Wilshire Boulevard
Los Angeles, California 90036

ON BEHALF OF SERVICE:
William S. Howell
Trial A ttornay

David L. Iffilhollan
Appellate Trial Attorney

In a decision dated April 27, 1973, the immigration judge found the
respondents deportable as charged, and granted their applications for

suspension of deportation. The Service has appealed from that decision.
The appeal will be sustained, and the record will be remanded to the
immigration judge.
At the hearing, the respondents conceded deportability and applied
for suspension of deportation under section 244(a)(1) of the Immigration
and Nationality Act. Neither of the respondents is within any of the
categories listed in section 244(a)(2) of the Act, each respondent is a
person of good moral character, and each respondent has satisfied the
seven-year physical presence requirement of section 244(a)(1). The sole
issue on appeal is whether the respondents have established the "extreme hardship" which is a requisite for eligibility for suspension of
deportation under section 244(a)(1).
The respondents, husband and wife, are both natives and citizens of
Korea. They both entered the United States as nonimmigrant students,
88

Interim Decision #2318
and they both remained longer than their authorized stay. The respondents were married in 1966 and are the parents of two United States
citizen children. One child is six and one half years old and the other
child is three years old. The respondents claim that their deportation
would result in extreme hardship to them and to their United States
citizen children.
The respondents base their claim of extreme hardship to themselves
on their alleged inability to find suitable employment if they returned to
Korea. They also testified that if deported they would take their sons
with them Lo Korea. They contend that this would be extreme hardship

on the children because they would. be deprived of the educational and
economic advantages that are available to United States citizens in this
country. The respondents also claim that the oldest child would suffer
hardship because he has not learned to speak Korean.
The immigration judge stated that, he was skeptical of the respondents' claims that they would have great difficulty in securing suitable
employment in Korea. In this respect, he noted that both respondents
have college educations, and that therefore they would both have more
opportunities than the average person in Korea. Moreover, the mere
fact that an alien's economic opportunities in a foreign country may be
somewhat less than they are in the United States is not, by itself,
sufficient to establish the "extreme hardship", required for suspension of
deportation under section 244(a)(1) of the Act. Matter of Kojoory, 12 I.
& N. Dec. 215 (BIA 1967); Matter of Sangster, 11 L & N. Dec. 309 (BIA
1965); Matter of Uy, 11 I. & N. Dec. 159 (BIA 1965). We agree with the
immigration judge's conclusion that the respondents' deportation would
not result in "extreme hardship" to them.
The immigration judge went on to find, however, that the respondents' United States citizen children should be raised in the United
States. He concluded, after considering the rights and interests of the
citizen children, that it would be "extreme hardship" on the children to
take them to Korea. We agree with the Service's contention that this
conclusion is erroneous.
"Extreme hardship" is not a term of fixed and inflexible content or
meaning. The question of whether there is "extreme hardship" depends
upon the facts and circumstances peculiar to each case. Matter of Sangster, supra; Matter of Eiy, supra; Matter of Hwang, 10 I. & N. Dee. 448
(BIA 1964). In the present case, no facts have been presented to show
that the respondents' citizen children would suffer "extreme hardship."
The only "facts" presented in the record are several general statements
by the respondents to the effect that their children would have better
economic and educational opportunities in the United States than in
Korea.
This case does not involve the separation of a family. As the immigra89

Interim Decision 42318
tion judge pointed out, the children are so young that no claim can be
made that they could not adjust to living in Korea (Tr. p. 50). Nor is
there any evidence that the respondents could not support and educate
the children in Korea.
One of the respondents' children is preschool age, and the other is so
young that the move to Korea would not be a significant disruption of his
educational p:rogram. It is not apparent that the children will lack
educational and economic opportunities in Korea, nor is it evident that
the educational and economic situation in Korea would be such as to
preclude their ever returning to the United States. Both of the respondents were able to obtain college educations in Korea, to learn English,
and to come to the United States and adapt to life here; there is no
reason to believe that their children will not be able to do the same.
Under the circumstances present in this case, we find that the respondents have not shown their deportation would result in "extreme
hardship" to their citizen children. We note that Congress has specifically precluded minor United States citizen children from conferring
preferred immigration status upon their parents under section 201(b) of
the Act.
We will sustain the Service appeal and reverse the immigration

judge's order granting suspension of deportation. The record' will be
remanded to the immigration judge for further proceedings.
ORDER: The Service appeal is sustained, and the order granting
suspension of deportation is reversed.
Further order: The record is remanded to the immigration judge for
whatever further proceedings may be necessary and the entry of an
appropriate order.
Warren R. Torrington, Board Member, concurring:
The dissenting opinion assumes certain facts which simply are not

true. Aliens have never been "compelled, on departing from the United
States, to leave behind their American citizen children." [Emphasis
added.] Such children are not "banished from the country of their birth"
when they join their deportable parents in the parents' home country. I
find particularly uncalled for the dissenter's intimation that the majority
decision may be "based on some notion that there is a Congressional
policy favoring the departure of United States citizen minor children of
deportable aliens." There has, of course, never been, and could never
have been, such a Congressional policy which would be in clear violation
of the Constitution of the United States. On the other hand, the courts
have consistently held that a deportation order entered against the
parents of United States citizen children does not deprive the children of
any Constitutional rights. Application of Amoury, 307 F. Supp. 213
(S.D. N.Y. 1969);Perdidov.INS, 420 F.2d 1179 (C.A. 5, 1969);Dayao v.
90

Interim Decision #2318
Staley, 303 F. Supp. 16 (S.D. Tex. 1969); affd 424 F.2d 1131 (C.A. 5,
1970); and Faustino v. INS, 302 F. Supp. 212 (S.D.N.Y. 1969). This

view was also shared by the writer of the present dissenting opinion in
Matter of Lopez, 14 I. & N. Dec. 424 (BIA 1973), in which the Board

stated, inter alia:
"Two grounds for appeal are set forth in the notice of appeal. The first is that the
respondents have a minor child born in the United States whose constitutionally
guaranteed rights to parental care would be violated if the respondents are required to
depart. The short answer is that whatever rights the child may have under the
Constitution do not authorize the respondents to remain here in violation of the immigration laws. The respondents have it within their own power to avoid the alleged
hardship that would befall the child on separation by taking the child with them when
they depart."

The statute (section 244(a)(1) of the Immigration and Nationality Act)
has been on the books for many years. Congress knew what it meant.
We have known what it meant. The novel theories advanced by the
dissenters would now expand grants of suspension of deportation in
previously unheard-of ways.
Any American-born child was born in what we believe to be the
greatest country on earth. Thus, such a child may indeed be considered
to suffer some hardship of one kind or another the moment it leaves with
its parents for their home country, in which, by definition, conditions
cannot be equal to those in the United States. That kind of hardship,
however, has never been considered by Congress, the courts, or otherwise, to be the "extreme hardship" required for eligibility for relief
under section 244(a)(1) of the Act.
AU but one of the cases cited in the dissenting opinion have nothing to
do with the provisions of section 244(a)(1) of the Immigration and
Nationality Act, the only statute here involved. Young v. INS, 459 F.2d
104 (C.A. 9, 1972), does not support the novel notions presented in the
dissenting opinion.
I concur in the majority opinion.
Maurice A. Roberts, Chairman, dissenting:

I respectfully dissent. I would dismiss the Service appeal or, in the
alternative, would on remand give the respondents an opportunity to
present additional evidence on the issue of extreme hardship to their
children.
The respondents are the parents of two United States citizen children; born in this country and now aged respectively six and a half and
three years old. The immigration judge found that respondents' deportation would result in extreme hardship to the children. Since the
statutory provisions for suspension of deportation are remedial in nature, they should not be strictly and technically construed, Wadman v.
91

Interim Decision #2318
INS, 329 F.2d 812 (C.A. 9, 1964). I would not disturb the immigration

judge's finding of extreme hardship.
If the respondents were compelled, on departing from the United
States, to leave behind their American citizen children, it is hardly
conceivable that their forced separation would not result in extreme
hardship to ean.h. In a suspension of deportation setting, the courts have

noted the hardship involved in breaking up ,close family ties, Yong v.
INS, 459 F.2e. 1004 (C.A. 9, 1972).
The mere fact that the respondents will take their children to Korea
with them anc that the children are young enough to adjust to living in
Korea does not eliminate extreme hardship to the children in being thus
banished from the country of their birth. Merely because such a child
may not be deprived of the loving care of his parents does not mean that
other significg.nt deprivations will not ensue. The possibilities of extreme hardship to a United States citizen child under these circumstances are numerous. Depending on the circumstances prevailing
in the foreign ,country, the child may be deprived of the educational and
economic opportunities, the health services and other benefits readily
available to him in this country. He may be deprived of the great democratic freedoms which are ours. If brought up in a home, such as
respondents', where English is not the usual language, he is likely to
grow up without a knowledge of our language; or, if he does learn to
speak it, is likely to do so with a foreign accent. On becoming aui juris

and returning to this country, as is his right as a United States citizen,
he may find Cut his absence from his homeland during his formative
years has placed him at a great disadvantage economically, educationally, socially and health-wise. In my estimation, elements such as these
can add up to the "extreme hardship" Congress designed section 244 to
ameliorate.
The majority opinion' notes (p. 4) "that Congress has specifically
precluded minor United States citizen children from conferring preferred immigration status upon their parents under section 201(b) of the
Act." That is undoubtedly true; but it has no relevance to this ease,

which arises under an entirely different provision of the Act. If, by this
reference, the majority opinion indicates that its decision is based on
some notion that there is a Congressional policy favoring the departure
of United States citizen minor children of deportable aliens, I must
demur.
Insofar as •2oncerns a Congressional policy with respect to minor
American-horn children of deportable alien parents, I know of nothing
which evinces a generalized Congressional desire that such children
should leave this country. A child born in the United States of alien
parents is as much a citizen as one horn to citizen parents and has the

same legal right to remain here. It is true that in the provison to section
92

Interim Decision #2818
201(b) of the Act, Congress declined to confer immediate relative status
on the alien parents of minor children: Without going into the legislative
history of that provision, it seems clear that Congress did not intend to
encourage aliens to come here illegally by giving then quota exemption
if they managed to beget a child here before they could be deported. The
courts have held that this discrimination with respect to the alien
parents of minor citizen children does not impair the latter's rights
under the Constitution.
It by no means follows that section 201(b)'s proviso evinces a
generalized Congressional policy that minor American-born children of
deportable aliens should depart under all circumstances. Quite the
contrary, other provisions of the Act set up various forms of relief from
exclusion or deportation, most of which are discretionary- but one of
which is mandatory, for alien parents of American children, who by
definition must be minors.' See, e.g., sections 212(e), 241(1), and 244(a).
Thus, in construing section 241(f) to apply in a situation where the
citizen child was born ,here not long after the alien's arrival, the courts
have stressed the underlying Congressional policy of uniting families,
INS v. Errico, 385 U.S. 214 (1966); Godoy v. Rosenberg, 415 F.2d 1266
(C.A. 9, 1969).
Section 244(a) of the Act authorizes discretionary suspension of deportation to an alien parent who meets certain eligibility requirements
and whose deportation would cause extreme hardship to his citizen
child. Since the latter is by definition a minor, this provision seems
clearly incompatible with the notion that there is a general Congressional policy that deportable alien parents of minor American-born
children should depart and take their American-born children with
them.
Under section 244(a), the alien parent seeking suspension must show
at least seven years' continuous physical presence here in addition to the
"extreme hardship" requirement. This is a far cry from the situation
Congress sought to guard against in enacting the proviso to section
201(b). The Congressional policy underlying its deliberate failure to
provide preferential treatment in the issuance of visas to alien parents
of minor United States citizen children can have little to do with the
type of situation presented in section 244(a) cases, which involve both
long residence here and extreme hardship, neither of which is relevant
under section 201(b).
In Wadman v. INS, supra, the court enunciated an approach to
suspension cases which should guide us here. The court stated, 329 F.2d
at 816-817:
Section 101(b)(1) states that the term "child" means an unmarried person under

twenty-one years of age.

93

Interim Derision #2318
In construing §244 we are in an area in which strict construction is peculiarly
inappropriata. The apparent purpose of the grant of discretion to the Attorney General
is to enable that officer to ameliorate hardship and injustice which otherwise would
result from a strict and technical application of the law. A strict and technical construction of the language in which this grant of discretion is couched could frustrate its
purpose. A liberal construction would not open the door to suspension of deportation in
cases of doubtful merit. It would simply tend to increase the scope of the Attorney
General's reiriew and thus his power to act in amelioration of hardship.

In keeping with the foregoing rule of construction, I would not disturb
the immigration judge's finding of extreme hardship to the children
here.
The majo:Ity decision reverses the immigration judge's grant of suspension of deportation and remands "for whatever further proceedings
may be nece ssary and the entry of an appropriate order." I assume this
contemplates that the immigration judge will now give the respondents
an opportunity to apply for voluntary departure in lieu of deportation.
On remand, I think the respondents should also have the oppeirtunity to
present further evidence to prove that their deportation will result in
extreme hardship to their.children.
Louisa Wilson, Member, dissenting!

I concur in the foregoing dissenting opinion.

94


Interim Decision #2840

MATTER OF SAN MARTIN

In Bond Proceedings
A-19041533
Decided by Board December 26, 1974
Respondent was in custody pursuant to the revocation of ball by the immigration judge at
a bond redetermination hearing under 8 GFR 242.2(b) at which respondent was seeking
redetermination of the $15,000 bond set by the district director. Respondent then
appealed to the Board from the judge's decision. The immigration judge took into
consideration the respondent's prior conviction for possession of marijuana; his prior
deportation; his reentry after deportation without permission; his prior failure to appear
on a charge of possession of cocaine, when under $5,000 bond; that he was then under a
$15,000 appearance bond on a criminal charge; and the lack of family ties in the United
States. The Board noted that bail had been awarded him in the pending criminal
proceedings, and all factors considered held that a $15,000 immigration bond was
sufficient to assure his appearance in the deportation proceedings.
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Shaya Estrumsa, Esquire
200 S.E. 1st Street, Suite 200
Miami, Florida 33131

Paul C. Vincent, Esquire
Appellate Trial Attorney

The respondent appeals from the November 15, 1974 decision of the
immigration judge, who ordered that the respondent be held without
bail. We shall order his release from custody upon the posting of a bond
in the amount of $15,000.
The respondent is a married male alien, 32 years of age, a native and
citizen of Colombia. His wife and children reside in Colombia, of which

country they are citizens. He was previously ordered deported from the
United States during 1969 on the charge of overstaying his visa. Prior to
deportation the respondent was convicted, by a court in Texas, of the
offense of illegal possession of marijuana. The Immigration Service has
no record of his readmission to the United States since his deportation in
1969, and has no knowledge of how or when he returned. He was
arrested in New York during 1972 and charged with illegal possession of
cocaine. The sum of $5,000 was set as ball, by the United States District
Court for the Southern District of New York, to assure appearance at
those proceedings. The respondent was scheduled to appear in court on
December 18, 1972, but failed to appear, and a bench warrant was
167

Interim Decision #2340
issued for his arrest. He was apprehended in Miami, Florida during
November 1974, and was released upon the posting of $15,000 bail.
The respondent was thereafter arrested by the Immigration and
Naturalization Service and charged with deportability for having reentered the United States after deportation without permission. Bond was
set at $15,000 by the district director to assure appearance at the

immigration proceedings. The respondent sought a redetermination of
his custody status pursuant to 8 CFR 242.2(b), moving for release upon
his own recognizance, or in the alternative, for reduction of bond. The
Government opposed any reduction in the amount of bond. The immigration judge sua sponte decided to deny bail entirely. We have decided
to reinstate the order to release the respondent from custody upon the
posting of tend in the amount of $15,000, as set by the district director.
The immigration judge determined that the factors involved were of
sufficient gravity to warrant the respondent's detention without bail,
because of the potential threat posed by the respondent to society. The
immigration judge considered the gravity of the criminal offense with
which the respondent is charged and the lack of ties to bind the respondent to answer to lawful process as factors in his decision. We believe
that, notwithstanding the pending criminal charges, the respondent
should be released under bond. We are concerned, primarily, with
assuring his appearance in the immigration proceedings. Bail has been
awarded him in the criminal proceedings.

Counsel .:ontends that when an alien in deportation proceedings must
first appear in criminal proceedings, for which bail has been set, the
alien should be released on nominal bail, at most, in the immigration
proceeding;. Counsel cites Application of Maringolo, 303 F. Supp. 1389
(S.D.N.Y. 1969), and the Bail Reform Act, 18 U.S.C. 3146, as support
for this proposition. The Maringolo case, otherwise somewhat similar
on the facts, did not involve aliens, • such as the respondent, with a
deportation record and with a history of nonappearance at proceedings,
flight to another jurisdiction, and forfeiture of bond previously posted.
With reference to the Bail Reform Act, it provides that various factors

should be taken into account, which were taken into account in this case,
and of which we shall take account. 1 • '
We shall deny the respondent's motion for release on his own recognizance and for reduction of bond. There are a number of factors present
in this case which require setting substantial bail. The amount of $5,000
bail was insufficient to assure appearance at court proceedings; He has a
z "In determining which conditions of release will reasonably assure appearance, the
judicial offi.xer shall, on the basis of available information, take into account [among
other items] . . . family ties . . . his record of convictions, and his record of appearance
at court proceedings or of flight to avoid prosecution or failure to appear at court
proceedings." 18 U.S.C. 3146.

168

Interim Decision #2340
record of nonapp earance at court proceedings; in fact, he left the jurisdiction in which criminal proceedings have been pending. He has a criminal
conviction record. He has a history of violation of immigration law. He
utilized a surreptitious method to return to the United States after
deportation. These facts all evidence disrespect for lawful process. In
addition, his lack of close family ties in this country is an important factor_

After giving careful consideration to all the above factors, we have
concluded that the respondent should be released upon the posting of a
$15,000 bond to assure his appearance at immigration proceedings.
ORDER: The appeal from the denial of release under bond is sustained.
Further order: The motion for release on own recognizance is denied.
Further order: The motion for reduction of the amount of bond to
$2,500 is denied.
Further order: The respondent shall be released from custody upon
posting of a bond in the amount of $15,000.
Louisa Wilson, Board Member, Concurring:
I concur in the opinion of the majority which reverses the order of the

immigration judge denying bond and authorizes his release on bond.
However, I do not agree with the decision of the majority requiring
bnnd in the amount of $15,000.00. It is my opinion that considering all
circumstances of this case, a bond in the amount of $5,000.00 is adequate
to assure the respondent's appearance in immigration proceedings.

169


MA

R

or 0

In VISA PETITION Proceedings
VP 07-1-22106

Decided by Board March 28, 1959
Viza petition--Determining admissibility not within the scope of visa petition

procedure.
Visa petition procedure is not the forum for determining substantive questions of admissibility under the immigration laws. When eligibility for the
claimed status is established, the petition should be granted.
BEFORE THE BOARD

Discussion: The case comes forward on certification by the
Assistant Commissioner, Examinations Division, under the authority
contained in section 3.1 (c), Title 8, Code of Federal Regulations.
The petitioner, a native - born citizen of the United States, seeks
nonquota status on behalf of the beneficiary, her husband, a native
and citizen of Italy. The parties were married on September 25,
1929, at Fulton, New York. The petition is supported by the birth
certificate of the petitioner and by a marriage certificate. The
beneficiary appears, upon the basis of the documents submitted,
prima facie eligible for nonquota status under section 101 (a) (27)
(A) of the Immigration and Nationality Act as the alien husband of a citizen of the United States.
The beneficiary is the subject of immigration file A-3458045 (E076779). He claims to have entered the United States from Italy in
April 1924, as a stowaway, and was found deportable under the Immigration and Nationality Act on the ground that he entered without
inspection and that he entered as a stowaway. On July 19, 1954, this
Board dismissed his appeal and denied an application for suspension
of deportation. At that time the alien alleged that his deportation
would result in exceptional end extremely nnusnal hardship fn him-

his citizen wife, and adult daughter. The special inquiry officer denied the application for suspension of deportation, finding
that his deportation would not result in exceptional and extremely
unusual hardship within the meaning of section 244(a) (1) of the
Immigration and Nationality Act ; and further, that respondent has
not established that he has been a person of good moral character
self,

295

since 1946. Although the alien had actually been convicten or
four traffic violations in the United States, examination of the
roco,l revealed instances of misrepresentations and false claims in
connection with an attempt t o obtain a certificate of legal residence
in 1938 by falsely claiming the name of one E
A-- -- Attempts
to establish residence in the United States prior to July 1, 1921, by
affidavits of witnesses claiming to have first met him in April or
May 1924, turned out, upon examination, to be false or the allia,nts
had no knowledge of the alien. It was also established that the
alien had been convicted in absentia in Italy in May 1928 of two
offenses of murder and as an accomplice in two murders and he
admitted that an arrest in Italy when he was 18 years old which he
had described as "for fighting" was actually an arrest on suspicion
of murder. It was noted that the alien's conviction in absentia in
Italy would not support a charge of deportability for conviction of
a crime prior to entry because of the nature of the conviction. He
has been arrested on several other occasions but was acquitted of a
charge of murder and a charge of conspiracy to defraud the United
States.
Based upon the alien's past history as revealed in his immigration
files, the Service concludes that the beneficiary would be ineligible
to receive a visa and would be excluded from the United States
under section 239.(x)(27) of the Immigration and Nationality Act
which encompasses aliens who the conoular officer or the Attorney,
General knows or has reason to believe seek to enter the United
States solely, principally, or incidentally to engage in activities
prejudicial to the public interest, or endanger the welfare, safety or
security of the United States. Relying on the words "or the Attorney General" in section 212(a) (27), the Service concludes that the
beneficiary is ineligible to receive a visa and is inadmissible to the
United States under that section and accordingly denies the visa
petition. At oral argument the same contentions were advanced,
and the argument was also made that circuity of action should be
avoided wherever possible; that it would be anomalous to require
approval of the visa petition when a subsequent determination upon
the alien's application for admission to the United States will result
in a finding of inadmissibility upon the grounds already set forth.
It is believed that the finding of inadmissibility as a basis upon
which to deny approval of a visa petition is not sanctioned under
the procedure set forth in granting vioa petitions. The visa petition
procedure for granting nonquota immigrant status under ooctinn
101(a) (27) (A) or quota immigrant status under sections 203(a) (2),
203(a) (3) or 203(a) (4) is set forth in section 205 of the Immigration and Nationality Act. Subsection (c) of section 205 provides
that after an investigation of the facts in each case the Attorney
—

296

General shall, if he determines that the facts stated in the petition
are true and that the alien with respect to whom the petition. is
made is eligible for a nonquota status or for preference quota immigrant ettitue, 0.11 approve the petition and forward one copy
thereof to the Department of State and the Secretary of State shall
then authorize the consular officer to grant the approved status.
It is obvious from a reading of section 205 that no provision is
made therein for determining admissibility under the immigration
laws. The sole concern of this procedure is eligibility for the status
claimed. In relationship cases, the only evidence submitted is documentary or in affidavit form. It is true, of course, that the consular
officer must be satisfied as to the admissibility of the alien to the
United States under other provisions of the immigration laws and
that the alien when seeking athili,tion may also again be e.samincil
as to admissibility by the Attorney General or other officer to whom
he has delegated authority. However, this authority is contained in
sections 104 and 221(g) of the Immigration and Nationality Act as
to consular officers and in sections 235 and 236 as to immigration
officers. The fact that section 206 grants the Attorney General
authority to revoke approval of any petition at any time for good
and sufficient cause is not pertinent because the revocation of an
approved petition is not here involved, and we need not concern
ourselves as to the scope of good and sufficient cause.
The procedure set forth in section 205 is generally a reenactment
of the provisions contained in the prior law as set forth in section
9 of the Immigrant Act of 1924. It has previously been held that
neither section 9 of the Immigration Act of 1924 nor regulations
promulgated thereunder require a general inquiry into an alien's
admissibility under all the immigration laws; and that if there is
no challenge to the truthfulness of the claim of relationship or to
the claim of citizenship or permanent residence, there is no basis for
denial (Matter of 0—, 3 I. & N. Dec. 376). The visa petition
procedure is concerned merely with the question of status. It does
not concern itself with substantive questions of inadmissibility
which may be explored by the consular officer before issuing the
visa or by the Service in connection with the inspection and exclusion procedure set forth in sections 235 and 236. The Service position would deprive the consular officer of the opportunity to determine whether a visa should be issued, and would also circumvent
the statutory hearing available to an applicant for admis s ion into

the United States.
The evidence supporting the visa petition establishes the citizenship of the petitioner and the claimed relationship of husband and
wife between the petitioner and the beneficiary. The visa petition
will accordingly be approved for nonquota status. This approval
297

constitutes no assurance of admission into the United States inasmuch as the question of admissibility under the general immigration
laws is still to be determined by the consular officer and by the
Service.
Order: It is ordered that the appeal be sustained and the visa
petition be approved for nonquota status under section"101 (a) (27)
(A) of the Immigration and Nationality Act.

9aS


Interim Decision #1381

MATTER OF PISOTOTTA

In VISA PETITION Proceedings
.A-12338226
Decided by Board Aseguet 1.9,1984
Since the approval of the prior visa petition filed by beneficiary's first wife to
accord him nongnota status was revoked and such revocation resulted in the
denial of hie application for adjustment of statue under section 246, Immigration and Nationality Act, as amended, beneficiary has not been previously
accorded a nonquota status within the meaning of section 205(c) of the Act,
as amended Dimarante v. Rosenberg, 326 P. 2d 58 (CA. 9, 1964) j.

The case comes forward on appeal from the order of the Officer in
Charge, Palermo, Italy dated April 3, 1964 denying the visa petition
for the reasons more fully set forth in the attached order of April 2,
1964 accompanying such denial.
The facts are summarized in the memorandum accompanying the
order. The petitioner, a native and citizen of the United States, 32

years old, seeks nonquota status on behalf of the beneficiary, a native
and citizen of Italy, 32 years old. The parties were married at
Palermo, Italy on October 19, 1963. The petitioner was not previously
married. The beneficiary was previosuly married to a citizen of the
United States on August 16, 1961 in Hempstead, Long Island, New
York. This marriage was terminated by annulment by decree of the
Supreme Court of New York, Nassau County, New York in an interlocutory judgment dated April 19, 1963 which became final as of course
three months after the entry and filing, the filing date being April 22.
1963. The petitioner and the beneficiary are cousins. A certificate
reciting their marriage on October 19, 1963 at Palermo, Italy has been
submitted and it is assumed that the marriage is valid. Both the
petitioner and the beneficiary have executed sworn statements at
Palermo, Italy before an immigration officer in which they declare

they are living together as man and wife and that the marriage was
not for the purpose of aiding the beneficiary to enter the United
States.

685

Interim Decision #1381
The beneficiary's file discloses that he entered the United States as
a visitor on January 20, 1961 and the terminal date of his temporary
stay in the United States was on or before August 20, 1961. However, the petitioner married his first wife, a United States citizen, on

August 16, 1961 and the following day a visa petition for nonquota
status and application for status as a permanent resident were filed
at the New York office. The visa petition, after being approved on
September 12, 1961, was withdrawn by the first wife and was revoked
on January 26, 1962. As the result the application for permanent
residence status was denied on February 2, 1962 on the ground that
an immigration visa was not available. The beneficiary was found
deportable in deportation proceedings under section 241 (a) (2) of the
Immigration and Nationality Act and was granted the privilege of

voluntary departure with an alternate order that should he not depart
when required, he be deported to Italy on the charge contained in
the order to show cause. The memorandum of the Officer in Charge
indicates that the beneficiary was deported on June 29, 1962 but the
file before us does not contain any verification thereof.
The basis for denial by the Officer in Charge of the visa petition
is predicated upon section 205 (c) of the Immigration and Nationality
Act as amended which provides that no petition shall be approved if
the alien previously has been accorded, by reason of marriage determined by the Attorney General to have been entered into for the
purpose of evading the immigration laws, a nonquota status under
section 101(8) ,(27) (A) as the spouse of a citizen of the United States.
The Officer in Charge concludes that the beneficiary was "accorded"
a nonquota status when the visa petition filed by the first wife of the
beneficiary, Amalia Pisciotta nee Gubbo, was approved by the New
York office. He likewise concluded that that first marriage had been
entered into for the purpose of evading the immigration laws.
The conclusion that the alien had been accorded a nonquota, status
when the visa petition was approved followed the administrative decision in Matter of A—, 9 I. & N. Dec. 705. However, that conclusion
was reversed in the case of Amarante v. Boienberg, 326 F.2d 58 (1964),
which held that when the consular officer acts favorably on a visa or
when the Attorney General acts favorably on an application for adjustment of status of an alien married to a citizen, the alien is thereby
"accorded" nonquota immigrant status within the meaning of section
205 (c) of the Immigration and Nationality Act, but not when the
petition of the citizen spouse is approved.
In the instant case the visa petition for nonquota status on behalf
of the beneficiary filed by the first -wife was granted and then revoked
and as the result of that revocation, the application for permanent

resident status was denied. Under the holding of the court in
686

Interim Decision #1381
Amarante v. Rosenberg, supra, the alien beneficiary has not previously

been accorded a nonquota status and he does not fall within the proscription contained in section 205 (c) of the Immigration and
Nationality Act. The appeal will be sustained.
ORDER: It is ordered that the appeal be sustained and that the
visa petition be approved for nonquota status on behalf of the
beneficiary.

687


Interim Decision #2212

MATTER OF CASTANEDA
Application for Permission to Reapply

A-14044979
Decided by Regional Commissioner June 29, 1973
Notwithstanding applicant is the mother of two minor children born in this
country, permission to reapply for admission after deportation is denied in the
light of her persistent false testimony as to her United States citizenship until
faced with incontrovertible proof to the contrary, her spurious remarriage to
her husband under the false identity of a native-born citizen for the purpose
of enabling him to obtain an immigrant visa as the spouse of a United States
citizen, and the fact applicant and her husband were both in the United
States illegally when the children were born.

The applicant was deported from the United States April 6, 1945
at government expense. This case is now before me on appeal from
the decision of the District Director, who on April 9, 1973 denied
the application for permission to reapply for admission.
The applicant states her reason for desiring to reenter the

United States legally for permanent residence is to be able to raise
and educate her two United States citizen sons, ages 13 and 11, in
the United States and plan their future.
The applicant is a 32-year-old married female alien, a native and
citizen of Mexico. She last entered the United States at Laredo,
Texas, on or about August 28, 1958, at which time she was
admitted as a nonimmigrant visitor for pleasure upon presentation of a non-resident Mexican alien border-crossing card. She was

then authorized only to visit neighboring border areas for a period
not to exceed '72 hours_

In deportation proceedings, the applicant testified that she was
first married to one Carlos Diaz in Mexico on March 4, 1957, at
which time she was almost 17 years of age; that her husband was
then approximately 35 or 36 years of age; that she and her
husband came to Chicago, Illinois, and that as a result of this
marriage, she had two children, both born in the United States.
Two statements made by the applicant were introduced in evidence. In the first statement, which is dated August 24, 1964, the
applicant appeared before an immigration officer and testified
that her tree and correct name was Juanita Diaz and that her
maiden name was Juanita Pizano-Saiichez. She claimed that she
387

Interim Decision #2212
was born on June 24, 1940 at East Chicago, Indiana and that she
was a citizen of the United States. She presented as proof of her
birth a record issued in the city of East Chicago, Indiana, showing
that one Juanita Pizano was born on June 24, 1940 at East
Chicago, Indiana. The applicant claimed that after being born in
the United States, she was taken at age five to Mexico by her
parents. She further testified that she has only been married one
time to Carlos Diaz, which marriage she claimed took place on
March 25, 1961 and that as a result of that marriage she has two
children, Francisco Javier, born on September 9, 1959, and Carlos,
Jr., born on February 27, 1962. She stated that she began to reside
and live with her husband as man and wife from October or
November of 1958, thus explaining the birth of the child, Francisco, whom she alleged was born on September 9, 1959. She
testified that her husband had returned to Mexico in December
1962 for the purpose of obtaining an immigration visa, that she
had known that her husband was illegally in the United States
and that was the reason he had returned to Mexico.
Thereafter, on October 28, 1964, the applicant appeared before
the same immigration officer. At that time, she again reiterated
the fact that she is a citizen of the United States and that her
name is Juanita Pizano-Sanchez and testified that she had communicated with her husband subsequent to the statement taken
on August 24, 1964. The applicant was again advised concerning
the penalty for perjury and was again asked when and where she
was born. She again testified that she was born in East Chicago,
Indiana, on June 24, 1940, that she was a citizen of the United
States and that her full, true and correct name at birth was
Juanita Pizano-Sanchez. She claimed that the birth certificate she
presented was one that was sent to her by her father in 1956. The
immigration officer at that time informed the applicant that he
had affidavits from Manuel Pizano, her alleged father, and from
Juanita Garza, the real Juanita Pizano-Sanchez. The applicant
then admitted that she was not Juanita Pizano-Sanchez but was,
in fact, Francisca Castaneda-Abrego, who was born in Abasolo,
Coahuila, Mexico, on September 28, 1940, and that she is a citizen
of Mexico. She further testified that the reason she married her
husband the second time and used the name of Pizano was for the
purpose of enabling her husband to return to Mexico and apply for
a visa, claiming to be the husband of a United States citizen.
It is clear that the respondent gave false testimony for the
purpose of obtaining a benefit under the Immigration and Nationality Act. She also conspired with her husband to obtain for him a
benefit under the Immigration and Nationality Act.
The record of proceedings shows that the applicant's husband
388

Interim Decision #2212
was in the United States illegally when the children were born
and that in an attempt to gain admission to the United States
permanently in 1956 he committed perjury before a special inquiry
officer at Laredo, Texas and was excluded from admission. Also, in
connection with an immigrant visa application to rejoin his alleged
citizen spouse, he unsuccessfully attempted to obtain a waiver of
that ground of excludability. The record also shows that the

applicant persisted in her perjured testimony as to United States
citizenship until she was confronted with overwhelming proof to
the contrary. The record indicates, but does not positively establish, that the applicant and her husband have separated.
The only appealing factor in the applicant's case is that she is
the mother of two children apparently born in the United States.
In balance against this factor is the past course of conduct of the
applicant before this Service and the factor that she and her
husband were both in the United States illegally when the children were born.
We are asked to exercise our statutory authority to consent to

this alien reapplying for admission to the United States after
deportation (section 212(aX17) of the Immigration and Nationality
Act) It is our decision that the facts of the case do not warrant
such consent.
It is ordered that the appeal be and the same is hereby
dismissed.

3 89


MATTER or

T--

In DEPORTATION Proceedings
A-7080184
Decided by Board January 20, 1900
Marriage—Between uncle and niece—Lawful for immigration purposes in some
instances—Voidable, not void, in Pennsylvania.
(1) Marriage of undo and niece valid under the law of Czechoslovakia where
ceremony was performed and not subject to criminal sanctions under the
law of Pennsylvania where the parties cohabit is held lawful for immigration purposes.
Uuder Pour.slvania Marriage Law of 1913, marriages between uncle and
niece, although within prohibited degree of eocconculnity, are regarded as
voidable rather than void. (Modifies :gutter of G--, 6 1. & N. Dec. 33r.)

(2)

CLIAnons
Order: Act of 1952—Section 241(a) (1) 18 U.8.u. 12labal (1)1---Not nonquota as specified in the visa.
Act of 1952—Section 241(a) (1) 18 U.S.C. 1251 (a) (1)I—Visa procured by fraud or misrepresentation.

BEFORE THE BOARD
Discussion : The cues. cones fm-ward on appeal from the order of
the special inquiry officer dated September 24, 1959, tindiug the respondent subject to deportation solely on the first charge set forth
in the order to show cause and granting her the discretionary relief
of voluntary departure in lieu of deportation.
The fasts she fully set forth in the decision of the special inquiry
officer. The record relates to a native and citizen of Czechoslovakia,
48 :years old, female, who last entered the United States through the
port of New York on December 21, 1948, and was admitted upon
presentation of a nonquota immigrant visa. The nonquota immigrant visa was issued to her as the pou:se of a United States citizen
whom ohs had married on June 7, 1948, at Prague, Czechoslovakia,
It has been established that the respondent's husband is her uncle,
the brother of her mother. The marriage certificate which was attached to the visa application and made a part thereof indicates that
dispensation was granted by the proper authority to waive the obstacle to the marriage by reason of "relation of third degree." The

529

respondent testified that when she appeared before the American
Consul in Czechoslovakia she informed him that she was married to
her uncle. It appears that at the time of the marriage the respondent was about 37 years of age and that her husband was 63 years of
age. Despite the fact that the special inquiry officer was of the belief
that the parties were married for the sole purpose of facilitating the
respondent's entry into the United States and that the marriage was
not consummated, it nevertheless appeared that the parties regarded
themselves as married and that there was every intention to enter
into a bona. fide relationship of husband and wife which has been
maintained for over 11 years past. Accordingly, the special inquiry
officer found no fraud had been established and that the second
charge stated in the order to show cause was not sustained. We
agree with the result reached by tire special inquiry officer as to the
second charge.
The special inquiry officer has sustained the first charge in view
of the fact that the parties to the marriage were uncle and niece and
that such a marriage was void under the law of Pennsylvania, the
residence of the uncle. This conclusion was reached in reliance upon
Matter of 0 — , 3 I. & N_ Dee. 337 (B.T•A., Oct. 14, 1954). That
ease likewise involved a citizen male resident of the State of Pennsylvania who married his niece in Italy on February 10, 1934. As
in this near, a special dispensation had been granted; the marriage
was undoubtedly valid in Italy, but the pander intended to reside
in the Commonwealth of Pennsylvania where cohabitation of the
parties to a marriage between uncle and niece was regarded as constituting the crime of incest.
A careful examination of the decision in Matter of 0 — , supra,
reveals that the decision was greatly influenced by, and largely
predicated upon, opinions furnkheri by the Attorney General to the
Governor's office of the Commonwealth of Pennsylvania in November
1.941 and March 1953, which were to the effect that a marriage between uncle and niece, no matter where contracted, would be regarded
as void in Pennsylvania and that the cohabitation in Pennsylvanit
of the parties to such a marriage could result in conviction of th
crime of incest.
It is evident that had it not been for the information receive ,
fromtheGvn'sicadtheAornyGlfStaec
Pennsylvania, a contrary result would have been reached as it
made apparent from a study of Ifettc(n, of 0
4 1. & N. Des. 63
In that case the citizen uncle married his alien niece in Rho(
Island, where the marriage was regarded as lawful. The uncle w
a resident of the State of Pennsylvania and intended to reside the
and cohabit with his wife after the marriage. A question as to t
validity of the marriage was raised because of the statute in Per
530

Sylvania (Act of June 24, 1931, 18 I" urdon:8 Pa. Stahr:tee, section
4507) forbidding incestuous marriages and including within the
statutory definition of prohibited marriages those between uncle and
nioess. 1- t was found that such a marriage was voidable rather than
void in the State of Pennsylvania and in the absence of specific
authority to the contrary, there was no justification for assuming
that it was the intention of the legislature of Pennsylvania to criminally prosecute persons lawfully married in another state because
they cohabit in Pennsylvania where the celebration of such marriages is unlawful. Finding the marriage merely voidable rather
than void at, initio, the conclusion was reached that the marriage
was a valid one.
It is the general rule that the legality of a marriage is to be
derided by the low of the plane where it is celebrated, ond if valid
there, it is valid everywhere. Certain exceptions are recognized,
and the rule is not applied to sustain polygamous marriages or those
that are regarded as incestuous and immoral by the law of civilized
nations. The presumption of the validity of a marriage duly celebrated is a very strong one and should be overturned reluctantly,
and then only by persuasive specific evidence requiring a contrary
finding. The marriage of an uncle and niece has long been considered lawful for immigration purposes if valid where performed
and in the absence of proof that the state of the locus of their intended residence regarded the cobabilation ut sash peso's
as criminal. It is to be noted that Congress has not expressed any
public policy excluding a spouse on the ground of consanguinity
and that immigration laws are silent on this point; recourse must
be had to state law for expressions of such public policy.' The position represented by the trend of the more modern cases is in accord
with the general rule "that a marriage between persons of a class
that the statute simply says shall not marry * * * is not void in the
absence of a declaration in the statute that such a marriage is void."'
In the present case counsel for the respondent has, in connection
with the appeal, pointed out that since the date of the authority
relied upon in 31 alter of G , G I. Sz N. Dec. 337, there has occurred a change in the law of the State of Pennsylvania. The Pennsylvania "Marriage Law of 1935" effective January 1, 1954,' provides
in section 1-16 as follows:
All marriages within the prohibited degree of consanguinity or affinity as
toidolde to an intent, end plIrpo,n,

rat forth in this ra,f. are Lerehy declared

f 37 Op. Atty. Gen. 102 (Mar. 2, 13331 involved a case where a resident of
Virginia legally married his niece in Poland and the marriage was found
valid in the absence of proof that the Linde went to Poland with the intention of marrying his niece, which he could not legally do in Virginia.
.71oltiugssvorth. Estate, 201 P. 403; State 7. Totter, 130 N.W. 10.
Purdon's Pa. Statutes, Title 48, Section 1, Act of August 22, 1013, P.L. 1344.

531

but when any of said marriages shall not have been dissolved during the lifetime of the parties, the unlawfulness of the same shall not be inquired into
after the death of either of the parties thereto.

Section 1-24 of the same statute provides that all other acts and
parts of acts are hereby repealed insofar as they are inconsistent
with the provisions of this act. It, therefore, appears that a marriage of an uncle to a niece under Pennsylvania law is no longer
a void marriage but is simply a voidable marriage, and unless dissolved, constitutes a valid marriage. Accordingly, the basis for the
decision in Matter of G—, 6 I. & N. Dec. 337, which is predicated
upon an Attorney General opinion that such marriages are void, is
no longer applicable and the decision, therefore, can no longer be
regarded as controlling. We shall, therefore, terminate the proceed

ings without remanding as requested by the Service Representative,
since all that is involved is a question of law and not one of fact.
Order: It is ordered that the proceedings be and the same are
hereby terminated.

532

-


Interim Decision #2692

MATTER OF

SENA

In Visa Petition Proceedings
A-21685633
Decided by Board March 8, 1979
(1) Under the provisions of Decree Law 261/75 of May 27, 1975, corrected June 21, 1975,
which amended the Civil Code, divorce by Catholics in Portugal is allowed as of May 27,
1975; prior thereto it was forbidden. Matter of Ferreira, 141. & N. Dec. 723 (BIA 1975),
qualified.
(2) In a case involving an immediate relative visa petition, the record will be remanded to
the District Director for clarification of the petitioner's domicile, at the time of her
divorce where the petitioner and her ex-husband were both citizens of Portugal, were
divorced while living in Rhode Island, and where the petitioner later remarried in New
Jersey, to determine whether or not New Jersey would recognize the petitioner's
divorce.
One

BEHALF OF PETITIONER: Pro se

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The United States citizen petitioner applied for immediate relative
status for the beneficiary as his wife under section 201(b) of the Immigration and Nationality Act, 8 U.S.C. 1151(b). In a decision dated May
24, 1978, the District Director denied the petition on the ground that the

petitioner had previously been married and that this marriage had not
been dissolved. The petitioner appeals from this decision. The record
will be remanded.
The petitioner is a 43-year-old native of Portugal and a naturalized
citizen of the United States. The beneficiary is a 42-year-old native and
citizen of Portugal, who married the petitioner on June 8, 1977, at
Newark, New Jersey.
The District Director based his denial of the petition on two grounds.
He found that neither the petitioner nor his first wife had been present
at the divorce hearing in Portugal on November 17, 1976, and that the
State of New Jersey would not therefore recognize such a "mail order'"
divorce. He also found that the parties were not able to divorce, as they
had entered into a Catholic marriage in Portugal after August 1, 1940,
and that Portuguese law forbids divorce in such cases.
It is true that divorce in Portugal, by Catholics, was formerly forbi
688

Interim Decision #2692
den by Portuguese law, as held by this Board in Matter of Ferreira, 14 I.
& N. Dec. 723 (BIA 1974). Recent revisions in Portuguese law, however, have changed this situation. The Library of Congress has
informed the Board that the Decree Law 261/75 of May 27, 1975,
corrected June 21, 1975, amended the Civil Code to allow divorce by
Catholics. According to the new law:
The value and effectiveness of Catholic marriages continues to be acknowledged in
accordance with the provisions of article 1587 of the Civil Code so that Catholics, as
heretofore, may opt between the two forms of marriage [civil and religious]. Hereafter,
simply, once the marriage has been celebrated through either civil or Catholic-religious
ceremony, its effects shall be governed by the laws of the State [civil] only, regardless of
the form of celebration chosen. . .. Catholic marriages may therefore be dissolved by
civil tribunals on the same terms and for the same reasons that civil marriages may be
dissolved. (Preliminary statement at page 539.) 1

We therefore hold that Catholics in Portugal have been free to obtain
divorces under this new provision of law, since it went into effect on
May 27, 1975. The petitioner here was divorced on November 17, 1976,
and thus comes under this provision. His divorce was consequently valid
under Portuguese law_

On the second point of appeal, we agree with the District Director
that New Jersey does not recognize "mail order" divorces. The situation
here is not quite so simple, however. The divorce in question occurred
when the petitioner was living in _Rhode Island. The issue therefore is
whether or not Rhode Island would recognize the Portuguese divorce,
and whether New Jersey would in turn consider it valid if Rhode Island
does.
But before this question can be resolved, it is necessary to establish
what law was applicable when the divorce occurred. The divorce decree
indicates that both parties were "resident in" Rhode Island at the time
of the divorce action. It is not clear what this statement means. Since
recognition of the divorce by Rhode Island may hinge on the domicile of
the parties at the time of the divorce action, further evidence in this
regard is necessary. The record will accordingly be remanded to the
District Director so that further information concerning the parties'
domicile at the time of the divorce may be provided.
ORDER: The record is remanded to the District Director for further
proceedings consistent with the foregoing opinion and the entry of a new
decision.

Boletin do Ministerio da Justice, No. 247, June, 1975.
689


Interim Decision #1232

MATTER OF JONG, DUN° LIU

In DEPORTATION Proceedings
A-12659657
Dealt:led by Board July 13, 196's
Revocation of a nonimmigrant visa by the Department of State under section
221(i) of the 1952 Act and 22 CPR 41134, after respondent's entry into the
United States, automatically terminates his legal status in this country. (8
CPR 2141(b) ) Deportabilits is established upon his failure to depart within
the period given him to do so.
CHARGES :
Order: Section 241(n) (2), I. & N. Act (8

1251(a) (2) )—Remained

longer—nonimmigrant
Section 241(a) (1), I. & N. Act (8 U.S.°. 1251(a) (1})—Excludablevisa obtained by fraud
Lodged: None

This is an appeal from the order of the special inquiry officer finding the respondent deportable upon both grounds stated above and
denying his application for voluntary departure as a matter of discretion. Respondent is found deportable on the first ground and
voluntary departure is granted.
Respondent, a 33-year-old married male, a native and citizen of
China, received a visitor's visa to come to the United States from
the American Consular Unit at Okinawa on September 1, 1961; he
entered the United States on the same date and was admitted as a
visitor to October 1, 1961. On September 11, 1961, his status was
changed to that of a student and his stay was extended to February
12, 1962.
Section 221(i) of the Immigration and Nationality Act (8 U.S.C.
1201(i)) authorizes the revocation of a visa by the Department of
State. Section 41.134 of Title 22 provides for the revocation of nonimmigrant visas ab,initio where the visa was obtained improperly
or the alien was ineligible to receive the visa at the time of issuance;
these regulations provide that a nonimmigrant visa may be revoked
even if the alien is in the -United States at the time action is taken.
11

Interim Decision #1232
Having concluded that the respondent obtained his nonimmigrant
visa by concealing from the consular officer the fact that his wife was
in the United States, the consular officer revoked the visa on November
8, 1961. The respondent appeared at the Immigration Office on January 25, 1962 at which time the visa was invalidated and the respondent informed that he must depart from the United States by February
28, 1962. Termination of legal stay in the United States was based
upon 8 CFR 214.1(b) which states in pertinent part that—
Within the period of initial admission or extension of stay, the nonimmigrant
status of an alien shall be terminated by * * * the revocation and invalidation
of his visa pursuant to section 221(i) of the Act. (26 F.R. 12067, December 16,
Counsel argues that the Department of State had no authority to
revoke a visa in the case of an alien in the United States unless the
alien had a multiple entry visa which would still be good and had not
expired. He has forwarded a copy -of a letter received from the
Department of State which reveals under the date May 16, 1962, the
Department of State has been advised by the Service that the revocation of the visa "will not in itself be used as the basis to terminate
his nonimmigrant status." The Service representative argued that
the revocation of the visa had nothing to do with the fact that the
respondent was deportable for having remained after the time for
which his stay was authorized in the United States.
The record. establishes that the Service officers in the field believed
that respondent's stay hi the United States was automatically terminated by the revocation of the visa. Both the investigator who
handled the case and his superior reveal the belief that section 214.1(b )
was controlling and that. it was self-executing requiring no further
action to terminate respondent's student status (pp. 24, 27, 30, 33).
Indeed the regulation can be interpreted in no other manner. L.
removes respondent's legal status in the United States and leaves
nothing for the Service to grant him but a stay of deportation.
While it appears to us that the Immigration and Nationality Act
contemplates that deportation for having procured a visa by fraud
or having been ineligible for the issuance of a. visa should be a. matter
to be determined by the Service under the safeguards of a. deportation
hearing with a Ana decisionky,the Attorney General ,(section 242 (a.),
Immigration and Nationality Act, 8 U.S.C. 1252), rather than upon
a finding by the Department of State without a hearing being afforded
the alien, we are bound by the terms of 8 CFR. 214.1(b) which appears
to allocate to the Board the sole function on appeal of determining
whether or not there was a revocation or invalidation of the visa.
The record establishes the respondent's nonimmigrant visa was revoked. His status in the United States has been automatically ter-

12

Interim Decision #1232
minated. He had no right to remain beyond the period which was
given to him to depart. He has failed to depart. The first charge
must be s-ustained. Counsel's contention that the Department of
State cannot revoke this visa must be addressed to the attention of
that Department.
The second charge will not be sustained. The record does not contain the documents executed by respondent. Respondent applied for
voluntary departure. He is willing and able to depart voluntarily.
Voluntary departure will be granted.
ORDER: It is ordered that the outstanding order of deportation
be withdrawn and the alien be permitted to depart from the United
States voluntarily without expense to the Government, to any country of his Aviles, within such period of time and under such conditions
as the officer in charge of the district deems appropriate and if he
fails to depart that he be departed from the United. States pursuant
to law only on the first charge contained in the order to show cause.

13