Interim Decision # 2729

MATTER OF MAGANA
In Deportation Proceedings

A-34262770
Decided by Board September 27, 1979
the relation-back doctrine, which treats marriages as
if they had never existed, is a legal fiction designed to insure substantial justice, audit
need not be applied in every case where a court has declared a marriage to be void or
invalid ab initio.
(2) In immigration cases dealing with the retroactivity of annulments, or of decrees of
(1) With regard to annulments,

invalidity, the relation -back doctrine will he applied only where to do so would bring

about a more just result.
(3) Where fraud and manipulation of the immigration laws are present in a case, justice
is better served by not relating back an annulment or decree of invalidity to cure the
illegality of an alien's entry.

(4) Where the respondent entered the United States as the spouse of a citizen, concealing the fact of his prior marriage in Mexico, a decree from a Washington state court
declaring the Mexican marriage invalid from its inception will not begiven retroactive
effect for immigration purposes. Matter of Astorga, Interim Decision 2711 (BIA 1979)
distinguished.
(5) The Federal Rules of Civil Procedure are not applicable in deportation proceedings,
and there is no requirement that interrogatories propounded by an alien be answered
by the Immigration and Naturalization Service.
CHARGE:

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(I)jExcludable at time of entry under section 212(0(19) T&N Act

(8 U.S.C. 1182(a)(19))—visa procured by fraud or willful
misrepresentation of a material fact
ON BEHALF OF RESPONDENT: Charles H. Barr, Esquire
1207 George Washington Way

Richland, Washington 99352
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members

In a decision dated July 8, 1977, an immigration judge found the
respondent deportable as charged, denied his application for voluntary

departure in the exercise of discretion, and ordered him deported. The
respondent appealed. The appeal will be dismissed. We will, however,
grant the respondent voluntary departure under section 244(e) of the
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Interim Decision #2729
Immigration and Nationality Act, 8 U.S.C. 1254(e).
The respondent is a 37-year-old native and citizen of Mexico who
entered the United States as an immigrant on October 2, 1972. He
obtained his visa based on his marriage to a United States citizen,
Renee Bosch. In an Order to Show Cause dated February 11, 1975, it
was alleged that at the time of his entry as a permanent resident, the
respondent was not lawfully married to Renee Bosch, in that he had
previously been married, and that marriage had not been terminated.

It was further alleged that because of this prior marriage, the respondent had procured his visa by willfully misrepresenting a material fact.
The respondent was therefore charged with deportability under section 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1), as an alien excludable at
entry under section 212(a)(19) of the Act, 8 U.S.C. 1182(a)(19).

The facts as set forth at a deportation hearing held on March 18,
1977, indicate that the respondent went through a civil marriage
ceremony with Maria Elena Martinez-Valenzuela on June 20, 1971, in
Guaymas, Mexico. The respondent alleges that he was intoxicated at
the time . of this marriage, and that the marriage was never consummated. He states that he left Mexico for the United States immediately
after the ceremony. Approximately 1-year later, on May 15, 1972, the
respondent married Renee Bosch in the State of Washington.
According to testimony taken at the hearing from Lhe respondent's

counsel, the respondent early in 1974 sought a Mexican annulment of
his marriage to Maria Elena. Rather than an annulment, a divorce was
decreed by a Mexican court on June 15, 1974. The respondent's counsel,
"recognizing the possible consequences" of a Mexican divorce (see
transcript at 8), began a proceeding in the State of Washington to have
the respondent's marriage to Maria Elena declared invalid. A
"Declaration of Invalidity" was issued by the Superior Court of the
State of Washington, Franklin County, on October 3, 1975. This decree
stated that the parties to the marriage had never consummated their union, nor lived together as man and wife, that the
marriage was voidable under Mexican law for lack of consummation,
that the respondent was inebriated at the time of the marriage, and
hence incapable of consent to the marriage, that the parties never
intended to marry, unless through a Roman Catholic religious ceremony, and, finally, that the marriage "should be declared invalid for
lack of capacity to consent as of the date it was purportedly contracted
and for being voidable under the laws of Mexico for lack of consummation." It was argued both at the hearing and on appeal that this
Washington decree voided the respondent's marriage to Maria Elena
ab iniLiu, and that, due to the Full Faith and Credit clause of the

Constitution (U.S. CONST. Art. IV, Section 1), the Washington decree
of invalidity overrode the earlier Mexican divorce decree.
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Interim Decision #2729
It is true that the judgments of a state court are entitled to full faith
and credit, while those of a foreign tribunal are only given effect under
principles of comity. However, even assuming that the Washington
court judgment takes precedence over the prior Mexican judgment, the
respondent is still deportable. This is so because we find that, for
immigration purposes, the Washington decree does not relate back to
cure the illegality of the respondent's entry.
In a recent precedent decision, Matter of Astorga, Interim Decision
2711 (BIA 1979), this Board analyzed a declaration of invalidity issued
by a Washington state court under the applicable provisions of the
Marriage Dissolution Act (Washington Revised Code Section

26.09.040). We held there that the declaration of invalidity related back
for immigration purposes, but we emphasized that no fraud, misrepresentation, or manipulation of the immigration laws had been
alleged in that case. Astorga involved a visa petition filed on behalf of a
beneficiary spouse who allegedly had been previously married in Mexico. The Immigration and Naturalization Service argued that the
previous marriage had not been terminated, and that the beneficiary's
marriage to his citizen wife was therefore invalid. We held the declaration of invalidity to apply retroactively because "there is no purpose of
the immigration laws that could be furthered by finding his [the
beneficiary's] possible previous marriage still valid and a bar to his
present marriage." We distinguished those cases where an alien's
entry into the United States was dependent upon his being unmarried,
where the alien was in fact married when he entered, but later had the
marriage annulled ab initio and then argued that he hadn't been
married at the time of his entry (see, e.g., Hendrix v. INS, 583 F.2d 1102
(9 Cir. 1978); Matter of Wang, 16 I&N Dec. 87 (BIA 1977); Matter of

R—J—, 7 I&N Dec. 182 (BIA 1956)).

In a converse situation, as noted in Astorga, supra, in some cases we
refused to relate back annulments where no immigration law fraud
was noted, and where injustice would result by applying the relation
back concept. Matter of Castillo-Sedano, 15 I&N Dec. 445 (BIA 1975);
Matter of B—, 3 I&N Dec. 102 (BIA 1947). Our analysis of prior cases
dealing with annulments that had been declared void ab initia led us to
the conclusion that "annulment decrees may have different effects
depending on the nature of the case and the purposes to be served by
giving an annulment decree retroactive effect." Astorga, supra, at 5.
Having carefully studied the record in the present case, as well as
the prior precedent decisions, we have concluded that the decree of
invalidity in this case should not he given retroactive effect. The
respondent testified that he stated on his visa application that he had
not been previously married because his attorney and the judge who
performed the ceremony for him and Maria Elena had both told him
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Interim Decisiosi #2729
that that marriage was invalid (transcript at p. 15: "the judge told me I
didn't have to do anything [about his marriage to Maria Elena] because
the marriage was invalid when the parents wanted the marriage to be
celebrated, performed by the church"). The immigration judge found
this testimony to be totally unbelievable. An immigration judge's
findings with regard to the credibility of witnesses appearing before
him are entitled to considerable weight (Matter of Teng,15 I&N Dec.
516 (BIA 1975); Matter of T--, 7 I&N Dec. 417 (BIA 1957)), and in this

case especially we are inclined to agree with the immigration judge's
analysis of the respondent's testimony. In Mexico, civil ceremonies
only, not religious ceremonies, result in valid marriages. See generally
Matter of A—E—, 4 I&N Dec. 405 (BIA 1951). It is incredible that a
judge and a lawyer in Mexico would have informed the respondent that
a civil ceremony was ineffective if a religious ceremony was desired.
We find that the respondent did materially misrepresent his marital
history when he applied for an immigrant visa.
As mentioned previously, in those cases dealing with the retroactivity of annulments (and, in Astorga, supra, with Washington decrees of
invalidity), we have applied the relation back doctrine only where to do
so would bring about a more just result.' In the present case, given the
respondent's misrepresentations, we find that justice would be better
served by not relating the Washington decree back for immigration
purposes? We thus consider the respondent to have been married to
Maria Elena at the time he entered the United States as the husband of
Renee Bosch, and we therefore agree with the immigration judge that
the respondent is deportable as one who procured his immigrant visa
through fraud or misrepresentation.
The respondent, through counsel, makes several procedural arguments on appeal. He contends that a witness should have been called at

the hearing to authenticate the Mexican divorce decree. 8 C.F.R. 287.6
governs the admissibility of official records in immigration proceedings, and that regulation does not require that such records be authenticated by witnesses appearing in person. Rather, for foreign records,
The respondent argues in his brief that the full faith and credit clause requires us
absolutely (regardless of the justness of the result) to apply the 'Washington decree
retroactively, since that decree declared the marriage invalid as of the date it was
contracted. However, the cases have recognized that the "relation back" doctrine, which
treats marriages as if they had never been, is a legal fiction designed to insure substantial justice, and that it need not be applied in every case where a court has declared a
marriage void ab initio. See Matter of Wong, supra; Matter of Castillo-Setlano, supra;
Matter of 2'—, 8 I&N Dec. 493 (BIA 1959). See also Sefton v. Sefton, 45 Cal. 2d 872 (1955).
Because we find that the declaration of invalidity will not relate back for immigration purposes, we need not decide whether this decree should override the Mexican
divorce which, by its very existence, acknowledges the validity of the marriage which the
Washington court declared invalid from its inception.

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Interim Decision #2729
it requires an attestation of genuineness by a person having custody
over the records, and a certification by a United States Foreign Service
officer as to the genuineness of the signature, and as to the official
position of the person having custody over the records. In the present
case, the genuineness of the copy was attested to by an officer of the
Civil Registry in Guaymas, Sonora, Mexico, and there was a certification by an Immigration officer. While the certification should have
been made by a Foreign Service officer, we do not believe that this
deviation from the exact procedures set forth in the regulation requires a remand, especially as our decision in this case does not in any
way depend on the Mexican divorce.
The respondent further alleges that he was denied procedural due
process because the Service did not honor his requests for admissions
or answer interrogatories, and that the failure to respond to the
interrogatories "constituted admissions of those matters." Brief at 6.
Suffice it to say that the Federal Rules of Civil Procedure are not
applicable in deportation proceedings, and there is no requirement
that requests for discovery be honored. Son FED. R. CIV. P. 1, describing the score of the rules.
The respondent's counsel protested at the hearing that he had had
no notice that a deportation hearing would be held that day, and that
when he appeared at Service offices on March 18, 1977, he believed it
was only for an 1 120 interview regarding the respondent's wife. The
Acting Trial Attorney stated that counsel had been advised of the
deportation hearing by telephone on March 11, 1979. The immigration
judge refused to continue the hearing, pointing out that counsel had
been representing this respondent for two years, and was therefore
familiar with the case, and noting that the hearing had been scheduled
in advance, and that there was evidence that counsel had notice of the
hearing. We find no error in the immigration judge's denial of the
request for a continuance.
Finally, the respondent contends that the immigration judge was
strongly biased against him, and that the immigration judge had
prejudged the case. He argues that he was thereby denied a fair
hearing. We have examined the record carefully, and, while we find
that the immigration judge may have made some ill-advised comments
at the hearing, he was by no means so biased as to be incapable of
rendering a fair decision.
Although we are dismissing this appeal with regard to the findings
of deportability, we find that the respondent should have been granted
the privilege of voluntary departure. We will therefore sustain the
appeal as to the denial of voluntary departure.
ORDERS The appeal is dismissed, except as regards the denial of
voluntary departure.
-

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Interim Decision #2729
FURTHER ORDER' The outstanding order of deportation is
withdrawn, and in lieu of an order of deportation the respondent is
allowed to depart voluntarily, without expense to the Government,
within 30 days from the date of this order or any extension beyond that
time as may be granted by the District Director and under such
conditions as he may direct. In the event of the respondent's failure so
to depart, the order of deportation will be reinstated.

116


Interim Decision #2749

MATTER OF FONG
In Visa Petition Proceedings
A-21324649
Decided by Board January 7, 1980
(1) A visa petition by the natural child of his father and his father's "second" Chinese
wife, for his father's "first" wife as his stepmother, is not based on a polygamous
"marriage," and the beneficiary is eligible to derive an immigration benefit through
the petitioner. Matter of Stultz,15 I&N Dec. 362 (BIA 1974,1975; A.G. 1975) followed.
Matter of Man, 16 I&N Dec. 543 (BIA 1978) distinguished.
(2) The fact that a petitioner has already successfully petitioned for his natural mother
does not preclude approval of a visa petition filed on behalf of a stepmother in the
absence of a statutory bar such as that existing in section 101(b)(1)(E) of the Immigration and Nationality Act with respect to the natural parents of an adopted child.
ON BEHALF OF PETITIONER:

Pro se

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

On December 5, 1978, the District Director entered a decision denying the visa petition filed on behalf of the beneficiary as the petitioner's
stepmother. He has certified his decision to the Board for review. The
decision will be reversed, and the record will be remanded.
The petitioner is a 41-year-old native of China and citizen of the
United States. The beneficiary is a 72-year-old native and citizen of
China. The petitioner claims that the beneficiary is his stepmother and
that he lived in the same household with her from the date of his birth
until 1969. It appears from the record that the beneficiary married

Fong Tack-Wah, the petitioner's father, on April 1, 1924. Fong TackWah "married" a second woman, the petitioner's mother (Tsang BikLin) on June 10, 1933. The record contains the sworn statement of
Tsang Bik-Lin, dated October 14, 1976, in which she states that she is
Fong Tack-Wah's "second" wife, that she bore him three children, one
of whom is the petitioner herein, and that she, her husband, his "first"
wife (the beneficiary herein) and their children all lived in the same
household.
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In his decision denying the visa petition, the District Director determined that the only relationship between the petitioner and the beneficiary was as a result of a "quasi-polygamous" marriage, and accordingly, the visa petition could not be approved. We disagree.
In Matter of Man, 16 I&N Dec. 543 (BIA 1978), we were presented
with a visa petition filed on behalf of a "second" wife (or concubine) by
the child of her "husband" and his "first" wife. The petitioner in that
case claimed that the beneficiary was his stepmother within the meaning of the immigration laws. We reviewed our previous cases dealing
with concubinage' and found that we had never held that the secondary wife could derive or bestow immigration benefits through children
born to her "husband" and his principal wife. We denied the visa
petition, therefore, because the sole relationship between the beneficiary and the petitioner in Matter of Man, supra, was the polygamous
"marriage," finding that "Congress did not intend to accord preference
status on the basis of such relationships in view of the clear disfavor it
expressed towards polygamy by excluding polygamists from entry into
the United States under section 212(a)(11) of the Act, 8 U.S.C.
1182(a)(11)." Id. at 3.
The instant case presents a situation quite different from Matter of
Man, supra. Here, the petitioner is claiming a relationship to his
father's "first" wife. In Matter of Stultz, 15 I&N Dec. 362 (BIA 1974,
1975; A.G. 1975), we were presented with a visa petition filed by a child
born of an illicit relationship between the married natural father and a
woman to whom he has never married. Finding the existence of a bona
fide family unit (see generally Matter of Moreira, Interim Decision
2720 (BIA 1979)), we granted the petition. The Attorney General
affirmed our decision, recognizing that, regardless of whether the
illegitimate child was born before or after the marriage, the natural
father's wife could be considered the child's stepmother within the
meaning of section 101(b)(1)(B) of the Act.
We find no crucial distinction between the facts in the present case
and those in Matter of Stoltz, supra. The petitioner herein was born
subsequent to his father's marriage to the beneficiary, as was true in

Stoltz. That marriage was not polygamous, thereby distinguishing this
case from Matter of Man, supra. Accordingly, we find no bar in the
statute to approval of the instant petition, nor do we find the presence
of the policy considerations that led us to deny the petition in Matter of
Man, supra.
The decision of the District Director indicates that the petitioner
' See, e.g., Matter of Kw ortg,15 I&N Dec. 312 (BIA 1975) (child of a concubine with the
status of flip can be considered a legitimate child under Hong Kong law) modifying
Matter of Kwan, 13 1&N Dec. 302 (BIA 1969).

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Interim Decision #2749
also filed visa petitions on behalf of his father and his natural mother
which have been approved. The approval of these petitions, unlike the
situation in Matter of Man, supra, is not based solely on the relationship created by the polygamous "marriage": the petitioner qualifies as
his father's and mother's legitimate child under section 101(b)(1)(A) of
the Act. See Matter of Kummg, 15 I&N Dec. 312 (BIA 1975). The fact
that the petitioner has already successfully petitioned for his mother
does not preclude approval of a visa petition filed on behalf of his
stepmother. Existing legislation regarding familial relationships constrains us to find that a petitioner can successfully petition both fora
stepmother and a mother. Compare section 101(b)(1)(E), which specifically cuts off any immigration rights of the natural parents of an

adopted child. No similar provision exists with respect to steprelationships.
Although we have determined that there is no statutory bar to
approval of the present visa petition, the inquiry into the relationship
between the petitioner and the beneficiary has not ended. In addition
to meeting the requirement of section 101(b)(1)(B) of the Act that the
marriage creating the stepchild relationship occur before the
stepchild's eighteenth birthday, the petitioner must also establish that
the stepparent had an active parental interest in the stepchild's support, instruction, and general welfare prior to the child's eighteenth
birthday. See generally Matter of Moreira, supra. The record in the
present case states only that the petitioner, the beneficiary, her husband, and his concubine lived together in one household. There is no
indication whether the beneficiary merely tolerated the petitioner's
presence in the family home, or if she took an active part in his
upbringing. Accordingly, we will remand the record to enable the

petitioner to introduce additional evidence in support of the petition.
The District Director should then enter a new decision in accordance
with Matter of To, 14 I&N Dec. 679 (BIA 1974).
ORDER* The record is remanded to the District Director for
further proceedings consistent with this opinion.

214


Interim Decision #2166

MATTER OF ST. JOSEPH'S HOSPITAL
In Visa Petition Proceedings
NYC-N-34469
Decided by Regional Commissioner September 27, 1972
(1) Notwithstanding an alien may qualify for third preference classification as a
member of the professions, in order to qualify for nonimmigrant classification
under section 101(a)(15)(H)(i) of the Immigration and Nationality Act, as
amended, as an alien of distinguished merit and ability who is coming to the
United States temporarily to perform services which require such professional
abilities, it must be established that the alien will be able to engage in his
profession immediately in this country. (See also, Matter of Essex Cryogenics
Industries, Inc., Interim Decision No. 2164.)
(2) In the instant case, the visa petition to accord beneficiary classification under
section 101(a)(15)(H)(i) of the Act as an alien of distinguished merit and ability
as a pharmacist is denied, since beneficiary will be unable to work as a
pharmacist at the place of intended employment until she has had additional
training and has passed the New York State licensing examination.

This matter is before the Regional Commissioner on appeal from
the denial of the petition to classify the beneficiary as a nonimmigrant worker of distinguished merit and ability under section
101(a)(15)(H)(i) of the Immigration and Nationality Act, as
amended.
The petitioning voluntary hospital seeks to engage the beneficiary as a pharmacist over a period of two years at a salary of $120
per 40-hour week. The alien is a 54-year-old native and citizen of
the Philippines who presently resides in that country. She is also
the beneficiary of an approved preference immigrant visa petition
filed by the same petitioner under section 203(a)(6) of the Act, as
amended, for her services as a pharmacist. The records of this
Service disclose that the sixth preference petition was forwarded
to the United States Consulate at Manila, Philippines on November 10, 1971 together with the documentary evidence relating to
the alien's qualifications as a pharmacist.
The District Director denied the instant H-1 petition on the
grounds it has not been satisfactorily established that the beneficiary is a person of distinguished merit and ability and that the
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Interim Decision #2166
services to be performed are of an exceptional nature requiring
such an individual. It was pointed out that the proposed salary of
$120 per week is not indicative of a person of such caliber. On
appeal, the Director of the Medical House Staff of the petitioning
hospital has asserted that she personally interviewed the alien on
a trip to the Philippines last year; that in addition to being a
qualified pharmacist, she has worked for years as chief pharmacist
in one of the most modern pharmaceutical companies in the
Philippines; that she nevertheless has to undergo additional pharmaceutical training in the United States to qualify for a license
here; that while she is earning credits towards licensure, she will
be paid the minimum salary.
The entire record in this matter has been very carefully reviewed in the light of the representations made on appeal. Section
101(a)(15)(H) of the Immigration and Nationality Act, as amended,
includes within the classes of nonimmigrant workers:
... an alien having a residence in a foreign country which he has no intention
of abandoning (i) who is of distinguished merit and ability and who is coming
temporarily to the United States to perform services of an exceptional nature
requiring such merit and ability ...

In the case at hand, we find that the alien is the beneficiary of
an approved sixth preference petition but there is insufficient
evidence in the record upon which to arrive at a determination as
to whether she also meets the requirements for third preference

status as a member of the professions. Conceding arguendo that
she is a fully qualified professional pharmacist in the Philippines
and can readily satisfy the prerequisites for third preference
classification, we would find her to be "of distinguished merit and
ability" within the meaning of section 101(a)(15)(H)(i) of the Act, as
amended.' However, in contrast to a third preference case, where
it has been held that Lhe petition may be approved even when it is

known the alien will not qualify to engage in his profession in the
United States for an appreciable period of time, in an H-1 case
where the beneficiary is coming to the United States temporarily,
it must be established that the alien will be able to engage in his

profession immediately.
The petitioner in the instant matter has advised that the
beneficiary will not be able to work in this country as a pharmacist
until she has had additional training and has passed the New
York State licensing examination. Inasmuch as the alien is not
fully qualified under the laws governing the place of intended
For "H-1" classification, where professional status has already been established, the remuneration to be received by the beneficiary is not material.
Compile Matter of Essex Cryugenice hautaries, INC, Interim Detiblun. No. 2104
(1972).

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Interim Decision #2166
employment to perform the duties of the position for which she is
being sought, the services which she would be called upon to
perform cannot be regarded as being of an exceptional nature
requiring a person of distinguished merit and ability within the
contemplation of section 101(a)(15)(H)(0, supra. Accordingly, this
appeal will be dismissed.
It is ordered that the appeal be and same is hereby dismissed.

204


Interim Decision #2044

MATTER OF PEIGNAND
In Deportation Proceedings
A-11862196
Decided by Board May 1, 1970
Since respondent, who was born out of wedlock on January 29, 1936, was
never legitimated, he did not, through the naturalization of his mother in
December 1943, acquire U.S. citizenship under the Nationality Act of
1940, neither did he derive citizenship under section 321(a) of the Immigration and Nationality Act since he was over 16 years of age on December 24, 1952, the effective date of the Act.*

CHARGE:
Order: Act of 1952— Section 241(a) (11) [8 U.S.C. 1251 (a) (11) I—Convicted of violation of any law or regulation
relating to the illicit traffic in narcotic drugs, to
wit, heroin.
ON BEHALF OF SERVICE:
R. A. Vielhaber
Appellate Trial Attorney

ON BEHALF OF RESPONDENT:
Antonio C. Martinez, Esquire
77 Seventh Avenue

New York, New York 10011
(Brief filed)

The respondent appeals the decision of the special inquiry
officer who denied his motion to reopen the proceedings to give
further consideration to the question of his deportability. We will
dismiss the appeal.

At the deportation hearing on September 25, 1964, the special
inquiry officer found that the respondent was deportable as
charged and ordered that he be deported to his native country,
the Dominican Republic. He also found that respondent was not
eligible for any type of discretionary relief. The appeal alleges
that the respondent was not accorded due process of law at the
hearing because he was not represented by counsel and also that
the respondent is a United States citizen and thus is not subject
to deportation.
* Reaffirmed. See 440 F.2d 757 (1971).

566

Interim Decision 4#2044
The respondent is a 34-year-old unmarried male, born in the
Dominican Republic on January 29, 1936, who at last arrived at
San Juan, Puerto Rico on July 30, 1963, at which time he was admitted as a visitor for pleasure. On March 6, 1964, he was convicted in the Superior Court of Puerto Rico, San Juan Division,
of possession of heroin and was sentenced to serve a term of five
to nine years in prison.
The record is quite clear that at the time of the original deportation hearing, the respondent was duly advised of his right to
counsel and that he intelligently and knowingly waived the right.
It is settled law that in a deportation hearing the respondent has
the absolute right to waive counsels and if the hearing is eminently fair in all respects, respondent's constitutional rights are
not violated by the absence of counsel, since a deportation hearing is a civil and not a criminal matter. 2 A respondent has not
been denied counsel when he waives his privilege to be
represented.' In the instant case the respondent received a fair
hearing in accordance with the law and there was no denial of
due process of law.4
The respondent's claim that he is a United States citizen is
without foundation. He was born on January 29, 1936 and was an
illegitimate child. He was never legitimated. His mother came to
the United States and was naturalized on December 2, 1943.
Under the Nationality Act of 1940, which was in effect when the
mother was naturalized, a child born out of wedlock and never
legitimated could not derive United States citizenship from the
naturalization of either his father or his mother. 5 Moreover, he
did not derive citizenship under the Immigration and Nationality
Act of 1952, which became effective on December 24, 1952. Section 321(a) of the Act, which expanded the 1940 Act, provides
that an illegitimate child will derive citizenship when the mother
is naturalized provided the child is under age 16 at the time of
naturalization, which was the case here. However, it has been
1 Murgia-Melendrez v. INS, 407 F.2d 207 (9 Cir., 1969) ; Millan-Garcia v.
INS, 343 F.2d 825, 828 (9 Cir., 1965), reversed on other grounds 382 U.S. 69
(1965).
385 U.S. 276 (1966); Harisiades v. Shaughnessy, 342
2 Woodby v. INS,
U.S. 580 (1952); U.S. ex rel.. Bilokurnsky v. Tod, 263 U.S. 149 (1923); Diric
v. INS, 400 F.2d 658 (9 Cir., 1968) ; Murgia-Melendrez v. INS, supra; Espinosa v. INS, 404 F.2d 544 (9 Cir., 1968).
3 Burr v. INS, 350 F.2d 87 (9 Cir., 1965). See also U.S. ex ref. Mustafa v.
Pederson, 2117 F.2d 112 (7 Cir., 1953).
4 Hee Chan v. Pilliod, 178 F. Supp. 793 (U.S.D.C., N.D. Illinois 1959).
5 Espindola v. Barber, 152 F. Supp. 829 (U.S.D.C., N.D. Calif., 1957).

567

Interim Decision #2044
specifically held that this provision of the 1952 Act is not retroactive, and if the child is over 16 years of age on the effective date
of the Act, he has no claim to citizenship by derivation. 6 Respondent was almost 17 years old on December 24, 1952.
The respondent is not entitled to the privilege of voluntary departure because section 244 (e) specifically prohibits this discretionary relief to anyone who has been convicted of a narcotics
violation. Further, the discretionary relief of suspension of deportation under section 244 (a) (2) is precluded by the fact that the
person seeking such relief must have resided in the United States
for at least 10 years after the offense was committed. Respondent
cannot meet this requirement.
Accordingly, the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.

6 E$pindola v. Barber, supra.; Matter of 1,—, 8 I. & N. Dec. 272 (BIA,
1959).

568


Interim Thaeision #2288

MATTER OF LAU

In Deportation Proceedings
A-19060170
A-19082734
Decided by Board May 17, 1974
(1) Notwithstanding the precertification was obtained from a district director
and not from a consular office abroad, respondent, a section 245 applicant for
adjustment of status, wile in February 1569 obtained a labor certification as a
master tailor under the Schedule C—Precertification List of the Department
of Labor, but who was prevented from using it by the improper suspension of
the Precertification List, comes within the rationale of Lewis Biota v. Secretary of Labor, 469 F.2d 478 (1972), which, in effect, held that the suspension
was invalid until March 4, 1971. Therefore, respondent, who had a nonpreference priority date of at least July?, 1969, falls within the functional class of
aliens entitled to the benefits of the Lewis-biota decision and implementing
order which coml./Ilse precertified Western Hemisphere aliens with visa
priority dates earlier than January 1, 1970, and precertified Eastern Hemisphere nonpreference aliens with visa priority dates earlier than April 1, 1970.
Hence, an immigrant visa is immediately available to him, assuming he
qualified for his labor percertification.
(2) Notwithstanding the district director lacked authority under the regulations
to determine on February 10, 1969, that respondent was precertified under
Schedule C—Precertification List, since the precertification determination
was made at a time when such action was contemplated by regulations not yet
effective, and since the respondent evidently complied with the necessary
requirements, he is considered to have been validly "precertified" as of March
18, 1969, the date of publication of the Service regulations authorizing district
directors to make precertification determinations.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Nonimmigrantremained longer than permitted (both aliens).
DH BEHALF OF RESPONDENTS:

Hiram W. Kwan, Esquire
840 North Broadway
Les Angeles, California 90012

The alien respondents have appealed the January 3, 1973 decision of an immigration judge in which they were found deportable,
vere denied adjustment of status under section 245 of the Immi-

694

Interim Decision #2288
gration and Nationality Act, and were granted the privilege of
voluntary departure. The appeal will be sustained.
The respondents, natives and citizens of China, are husband and
wife. They have conceded deportability as nonimmigrants who
have remained beyond the authorized length of their stays. Prior
to the institution of these proceedings the respondents had applied
for adjustment of status before a District Director. Those earlier
applications were denied; however, the respondents renewed their
requests for relief under section 245 at the hearing before the
immigration judge. See 8 CFR 245.2(a)(4). The only issues on
appeal involve these applications for adjustment of status.
An alien may not be granted adjustment of status under section
245 unless he establishes that he is statutorily eligible for the
relief. In order to satisfy the basic statutory prerequisites the alien
must demonstrate that he has been inspected and admitted or
paroled into the United States, that he is eligible to receive an
immigrant visa and admissible for permanent residence, and that
an immigrant visa is immediately available to him at the time his
application is approved. The respondents were inspected and
admitted as nonimmigrants. They do not appear to be inadmissible
under any of the "qualitative" provisions of the Act. Consequently,
there eligibility for relief under section 245 depends on whether
they qualify for the immigrant status which they seek, and
whether immigrant visas are immediately available to them in
that status. The respondents, as natives of an Eastern Hemisphere country, have sought adjustment of status as nonprefermce immigrants. There are two primary issues in this case: (1)
whether the respondents have met the labor certification requirements of the Act for nonpreference status; and (2) whether
immigrant visas are currently available to them in that status.

At the hearing below the male respondent maintained that he
was exempt from the labor certification requirements of section
212(a)(14) as an investor within the contemplation of 8 CFR
212.8(b)(4). The immigration judge apparently found that the male
respondent had not adequately substantiated his claim to the
investor exemption, and on that basis found the male respondent
statutorily ineligible for adjustment of status. The female respondant was also found ineligible for section 245 relief because her
ilaim was inextricably tied to that of her husband. Subsequent to
he immigration judge's decision in this case the regulation gov-

?rning the "investor" exemption was amended. See 38 FR 1380
January 12, 1973), 38 FR 8590 (April 4, 1973). The Service will now
?valuate any claim made prior to the amendment under which?ver version of the regulation is most favorable to the alien. Matter
),f :17o, Interim Decision No. 2201 (Dep. Assoc. Comm. 1973); see also
695

Interim Decision #2288
Matter of Heitland, Interim Decision No. 2259 (BIA 1974). The male
respondent's assertions regarding the amount of his investment
would appear to bring him within the terms of the present version
of 8 CFR 212.8(b)(4). However, the male respondent's proof as to
the amount of his investment is less than satisfactory. Accordingly, we concur in the finding that the male respondent has failed
adequately to substantiate his investor claim.
The male respondent has raised another question on appeal
regarding his satisfaction of the labor certification provisions of
the Act. He basically contends that he should be found statutorily
eligible for adjustment of status because he had obtained labor
certification under the Schedule C—Precertification List of the
Department of Labor, but was prevented from utilizing his precertification in seeking adjustment of status by the improper suspen-

sion of the precertification list.
Section 212(a)(14) of the Act basically precludes the issuance of
visas to certain aliens, including nonpreference immigrants, who
seek to enter the United States for the purpose of performing
skilled or unskilled labor, unless the Secretary of Labor has
certified that: (A) at a given alien's proposed destination there are
insufficient United States workers able, willing, qualified and
available for employment in the alien's field; and (B) the alien's
employment will not adversely affect the wages and working
conditions of similarly employed United States workers. As an aid
in the certification process, the Secretary of Labor has published
schedules which list various occupation categories. Schedule C,
which was incorporated into 29 CFR Part 60 on February 1, 1967, 1
setforhalicupnswherfodtbins

supply generally, but not nationwide. Initially, an alien employed
in one of the listed occupations and destined for a geographic

area where his occupation was in short supply was eligible for an
individual labor certification without demonstrating that he had a
specific job offer. See 8 CFR 212.8(c)(4) (1968), 32 FR 852 (January
25, 1967), deleted, 34 FR 5326 (March 18, 1969). The Schedule C
which appeared in 29 CFR Part 60 was revoked effective March 1,
1969, and a new Schedule C—Precertification List was established? The Schedule C—Precertification List was not published in
the Federal Register; however, copies of the list were available
from the Department of Labor which maintained and continually

2

32 Fed. Reg. 867 (January 25, 1967).
34 Fed. Reg. 1018 (January 23, 1969).

696

Interim Decision #ZZ88
reviewed the list? The Department of Labor regulations governing precertification provided that "Consular offices abroad and

Immigration and Naturalization Service offices will be notified
that any alien whose occupation is described in such Schedule CPrecertification List and whose intended place of residence is not
excluded from precertification is certified under section 212(aX14)
of the Immigration and Nationality Act." 4 As with the original
Schedule G, an alien qualifying under the Schedule C—Precertification List did not need to establish that he had a specific job offer
in the United States.
The Schedule C—Precertification List was suspended by the
Secretary of Labor on February 9, 1970. An indication of the
suspension was finally published in the Federal Register on
February 4, 1971,6 when 29 CFR Part 60 was revised and the
Schedule C—Precertification List was eliminated. The earlier unannounced suspension of the Schedule C—Precertification List
was successfully attacked in Lewis-Mota v. Secretary of Labor, 469
F.2d 478 (C.A. 2, 1972).
Lewis-Moto, was a class action instituted by aliens who had
received labor precertifications endorsed by United States consular officials. The court determined that the suspension of the
Schedule C—Precertification List was invalid until 30 days after
notice of the suspension had actually been published in the
Federal Register. The district court order implementing the court
of appeals decision benefits aliens whose precertification determinations were adjudicated by consular officials, and who had
priority positions for the issuance of immigrant visas which would
have been reached by March 4, 1971. 6 Qualifying aliens are to be
given two years from June 11, 1973, the date of the district court
order, in which "to request appointments to apply for immigration

3 The Schedule C—Precertification List appears to have included all but 24 of
the occupations originally published in Schedule C. See Department of State
Airgram No. A-6857 (August 9, 1973). Pertinent portions of Airgram No. A-6857
have been reprinted by the American Council for Nationalities Service in Interpreter Releases, Vol. 50, No. 37, September 4, 1973. The Immigration and
N aturalization Service has provided us with a copy of Airgram Nu. A-0857.
4 29 CFR 60.3(c) (1970), 34 FR 1018 (January 23, 1969).
5 36 FR 2462.
6 The United States Court of Appeals for the Second Circuit declared the
suspension of the precertification list invalid until 30 days after February 4,
1971, the date on which the Schedule C—Precertification List was eliminated by
the revision of 29 CFR Part 60. On remand the district court held the suspension
invalid until March 4, 1971, but valid thereafter. Since the month of February
1971 had only 28 days, there would appear to be a slight discrepancy between
these two decisions.

697

Interim Decision #2288
visas," and thus retain their precertifications and priority dates.
Civil No. 71 Civ. 469 MP
(S.D.N.Y. June 11, 1973). The Visa Office for the Department of
State has determined by extrapolation that the class of persons
benefited by the Lewis-Mota decision would comprise precertified
Western Hemisphere aliens with visa priority dates earlier than
January 1, 1970, and precertified Eastern Hemisphere nonpreferenee aliens with visa priority dates earlier than April 1, 1970. 7
Exhibit 2 of the record contains a form which indicates that the
male respondent was found to be precertified as a Master Tailor on
February 10, 1969. This determination appears to have been made
by a district office of the Immigration and Naturalization Service
and not by the Department of Labor. The male respondent's
precertification was not endorsed by a United States consular .
precise class of ofical;nsequty,hdofalwinte
Lewis-Mota v. Secretary of Labor,

aliens benefited by the district court order in Leuns Mota. Furthermore, there is some question as to whether the District Director
-

had authority to determine Schedule C precertifications in February of 1969.
On the date that the male respondent was found to be precertified, the applicable Service regulations required that information
regarding an alien claiming to fall within Schedule C be forwarded
to the Department of Labor for actual issuance of the labor
certification. 8 CFR 212.8(c)(4) (1969), 32 FR 852 (January 25, 1967);
8 CFR 245.2(b)(1) (1969), 32 FR 853 (January 25, 1967). However,
prior to February 10, 1969, the Department of Labor had published
the new regulations governing the Schedule C—Precertification
List. These new regulations became effective on March 1, 1969, 8
was subsequent to the District Director's precertification whic

determination in this case. Shortly after the February 10, 1969
date, the Service regulations were amended to permit district
directors to determine whether an alien was precertified under the
Schedule C—Precertification List. 8 CFR 204.1(dX2) (1970, 34 FR
5325 (March 18, 1969); 8 CFR 245.2(b)(1) (1970), 34 FR 5326 (March
18, 1969). Although in a sense "obsolete," it was the individual
certification procedure which technically governed when the male

respondent was found to be precertified. Consequently, the District Director's precertification determination appears to have
been made at a time when such action was cont emplated by
regulations not then effective . 8
7

Department of State Airgram No. A-6857, supra, footnote 3.

a 24 FR 1018 (January 22, 1060).
9

There is no indication in the announcements of these regulations that a

formal directive authorizing this procedure was previously issued to the district
offices.

698

4

Interim Decision #2288
Nevertheless, the male respondent evidently complied with ev?ry requirement placed upon him during this period of time.
Accordingly, we shall consider the male respondent to have been
validly found "precertified" on March 18, 1969, the date of publication of the Service regulations authorizing district directors to
make precertification determinations. 10 This, then, is the date on
which we deem him to have "obtained a certification under section
212(a)(14) of the Act ...." 8 CFR 204.1(d)(2) (1970), 34 FR 5325
',March 18, 1969).
As noted earlier, the male respondent does not fall within the
precise class of aliens benefited by the district court order in
Lewis-Motet, v. Secretary of Labor, Civil No. 71 Civ. 469 MP
;S.D.N.Y. June 11, 1973). However, the basic holding of the United
States Court of Appeals for the Second Circuit was that the
suspension of the Schedule C—Precertification List was not valid
until 30 days after notice of the suspension was published in the
Federal Register. Levrig - ltinto. v. Secretary of Labor, 469 F.2d 478
:C.A. 2, 1972). The only appearent distinction between the male
respondent and the class of aliens benefited by the district court
order is that the male respondents precertification was endorsed
by a district director of the Service, and not by a United States
consular official. We can perceive no sound reason for refusing to
apply the terms of the district court order to the male respondent.
[here is no functional difference between his situation and that of
aliens found to be precertified by consular officials. Accordingly, as
nonpreference immigrant from the Eastern Hemisphere, the
nale respondent will be entitled to retain his precertification and
ie eligible for the issuance of an immigrant visa if: (1) he had a
ziority date earlier than April 1, 1970; (2) he did in fact qualify as
Master Tailor under the Schedule C—Precertification List; and
3) he is not otherwise inadmissible.
The record in this case does not entirely explain the immigration
iistory of the male respondent; however, it appears that he
3stablished a priority date for the issuance of an immigrant visa in
luly of 1969. Exhibit 2 of the record contains the male respondmt's application for adjustment of status (Form 1-485). The
xpplieation, with fee paid, was received by the Service no later

;han on July 7, 1969.
The pertinent portion of 8 CFR 245.1(g), in effect as of that filing,
;tated:
The priority date of a nonpreference applicant shall be fixed by the
following factors, whichever is the earliest: ... (2) the date on which application Form 1-485 is filed, if the applicant establishes that the provisions of
10

34 Fed. Reg. 5325.

699

interim Decision #2288
section 212(a)(14) of the Act do not apply to him or that he is within the
Department of Labor's Schedules A or C—Precertification List (29 CFR Part
60) . 11

Since the male respondent had obtained a labor certification
pursuant to the Schedule C—Precertification List, his filing of the
Form 1-485 established a nonpreference priority date in accordance with this regulation 3 2
Having had a priority date of at least July 7, 1969, the male
respondent falls well within the functional class of aliens entitled
to the benefits of the Lewis Mote decision and the implementing
order. Accordingly, an immigrant visa is immediately available to
the male respondent, assuming he qualified for his labor precertification.
The record at present therefore indicates that the male respondent is statutorily eligible for adjustment of status. The case must
be remanded, however, fur a determination as to whether the male
respondent's representations concerning his qualifications for
Schedule C—Precertification were factually correct, 13 as to
whether he is otherwise admissible, and as to whether discretion
should be favorably exercised in his behalf. Since the availability
of adjustment of status to the female respondent depends upon
the case of her husband, we shall also remand her case.
ORDER: The appeal is sustained and the records are remanded
for further proceedings in accordance with this opinion.
-

34 FR 5326 (March 18, 1969).
The Service cumidered the male respondent to be eligible for adjustment of
status as a sixth preference immigrant; nevertheless, on the date of his filing he
demonstrated eligibility for a nbnpreference visa in conformity with this regulation. He is presently a nonpreference applicant and may avail himself of the
11

"

nonpreference pr iority date established earlier.
13 The immigration judge may not rule on the accuracy of the District
Director's conclusions regarding the sufficiency of the stated qualifications for
precertification. Matter of Grave, 13 I. & N. Dec. 572 (BIA, 1970). On remand, the
inquiry in this regard must be limited to whether the male respondent actually
had the work experience and training which he claimed at the time of the
precertification determination. See Matter of Belmares-Carrillo, 13 I. & N. Dec.
195 (BIA, 1969); Matter of Hernandez-Uriarte, 13 I. & N. Dec. 199 (BIA, 1969).

700

4


Interim Decision #2431

MATTER OF KASHRI
Application for Permission to Accept Employment
A-19391793
Decided by District Director September 16, 1975
Application by a nonimmigrant student for permission to accept parttime employment
under the provisions of 8 CFR 214.2(f)(6) is denied for failure to establish economic
necessity for such employment due to unforeseen circumstances arising subsequent to
his acquisition of student status where the application reveals that his income for the
year from his parents and other family members exceeds his total annual expenses for
tuition, board, and incidental expenses.

The applicant is a male native of Iran and citizen of Israel who was
admitted to the United States on July 11, 1971 as a visitor for pleasure.
He was subsequently granted a change of nonimmigrant status to that
of a student in order to complete his high school education. On August 5,
1974 he was permitted to transfer to Fairleigh Dickinson University and
he was granted subsequent extensions of stay until June 30, 1975. He
now seeks permission to accept employment.

In his application the alien shows that his need for employment is
based upon an increase in tuition at Fairleigh Dickinson University from
$66 a credit to $75 a credit. The annual tuition was $2,084, .and with the
increase, it will be $2,300. The applicant's additional yearly expenses
are $850 for board, and $200 for other expenses, thus totalling $3,350 for
the year. His sources of income for the year are shown as $2,300 from
parents in Israel, $900 from family members and $600 given to him by
his brother. His total income for the year will be $3,800.
The subject's prior application for permission to transfer indicated
that he had sufficient finances to support himself during the entire

period of his studies. His sponsor, an uncle, stated that he would fully
support the subject, and the alien's own statements indicated that his
income was sufficient to meet his expenses.
A review of the application reveals that the alien's present income is
more than sufficient to meet his needs. Therefore, the alien has failed to
establish that there is a need for employment due to economic necessity
which has arisen as a result of an unforeseen change in financial circumstances since his status was changed to that of a nonimmigrant
student.
ORDER: It is ordered that the application for permission to accept

employment be denied.
457


--Interim Decision #1421

MA'rrsa on Lammas

In Visa Petition Proceedings
9.1128711251

Decided by Regional amiltd88i07141: Jooritary 7, 1966
Petition to accord' beneficiary first-profeecnee -Olossitiostion tmdse keetion
'203(0(1). Immigration and Nationality Aet,'as amended,'as 'a masseuse,
is denied for failure to establish that beneficiary possesses the high degree
of skill required or that the position requires a person Potiseseing. such
qualifloations sines tho position requires the care, of Petlfiloner;,:wfig
is afflicted with multiple sclerosis in an advanced stage, beneficiary had 110
training or experience, as a masseuse, or in the field of titiraf;eatrdii, ii4Oett;
her arrival in the United States in•1961, her qualifying experience FfOillithe
position in question has been gained basically from a two-week period kit lni
tensive instruction wpich he received in 1981 from the' physlotherapist.and
physician of the petitioner, and her duties since that time have generally'
. Involved vatting such training into. practice with : some occasional piodipca:
lion of proosfiness under the direction of the,physician or the therapist—.
,

-

•

This matter is before the Regional Cominissioner on 'appeal from
the decision of the District Director at New York, New York, who
has denied the Petitioner's request for preference in the issuance bf
immigrant visa on the ground that the petitioner has failed to satisfactorily establish that the services of:the beneficiary are needed
because of her high ethic:akin, technical training,:sPeoializeirexperP
trice or exceptional ability and further that the beneficiary's enip1oy-,
meat does not meet the additional statutory requirements of being
substantially beneficial prospectively to the national economy, cultural interest or welfare of the United States.
The clearance order provides for a masseuse. It' sets out specific
experience requirements as follows:
At least 2 years experience in the massage and exercise techniques used in
the management of multiple sclerosis and familiarity with the use of a massage vibrator, Hoyei lift, and the customary pulley and other exercise equipment.

9

Interim Decision *1421
The duties of the position require the holder to perform:

Therapeutic massage with and without electric vibrator, three times daily,
and assistance with supervision of various therapeutic exercises with and
without eanisment. all under medical supervision. The incidental care and
comfort of the patient also includes personal washing and feeding, "and lifting,
moving and turning.

The petition and supporting documents disclose that the 64-yearold petitioner is amicted with multiple sclerosis in an advanced stage
and is confined to honie; is not ambulatory, lacks motor control and
requires constant care and therapy. She has been unable to secure the
services for olly of someone to stay in attendance with her and give

her the care that she needs. The beneficiary is the petitioner's 40was admitted to the United States as a
visitor destined to the petitioner at the time of her arrival on April

year- old single niece who

29, 190L For the 10 years prior to her arrival she was employed as
a worker in a tobacco factory in Italy. Since arrival, the beneficiary
has been the petitioner's principal attendant. The alien is supervised in the care of the petitioner by the family physician who visits

once a month and by a licensed physiotherapist who comes to the
home weekly. The therapeutic care, which calls for musage three
times daily with and without electric vibrators, requires different
techniques according to the part of the body involved.
It has been claimed on appeal that without the beneficiary's assistance, the petitioner will eventually have to be institutionalized at
public expense; that, for this reason, the alien's services should be

regarded as prospectively beneficial to the economy and welfare of
the United States. There has been submitted in support of the appeal
a statement by the petitioner's family physician in which he sets
forth the beneficiary's training and qualificationis for the position.
The alien's instruction began in the summer of 1961 and continued

for about two years. Initially, she received daily instruction over a
two-week period from both the physician, and therapist regarding the
nature of the petitioner's disease, the anatomy of the muscle groups
involved, and the techniques to be employed in massaging and moving the patient. Since such time, the beneficiary has been supervised
weekly by the therapist and monthly by the physician. In view of
the progressive character of the disease, it has been necessary from
time to time to 'change the positioning of the patient and massage.
According to the physician, the alien has demonstrated natural aptitude in the field of physiotherapy, adeptness in handling the petitioner and ability to cope with the changing situations attributable to

to the vagaries of the disease. '

10

Interim Decision #1421
After very careful consideration of this matter, we are convinced
that the petitioner requires the constant care of an attendant and that
the beneficiary has served her well in this regard. We are also cognizant of the difficulties encountered in filling a position of this
nature and the loving care and devotion which the alien has accorded
the petitioner. Despite the sympathetic factors involved, we cannot
authorize the approval of first preference quota status for the beneficiary as a means of perpetuating her stay in the United States.
The record in this case reflects that the alien had no training or
experience either as a masseuse or in the field of therapeutics prior to
her arrival in this country. Her qualifying experience for the position in question has been gained basically from the two weeks of
intensive instruction which she received in 1961 from the family
physician and the physiotherapist. Her duties since that time have

generally involved. putting such training into practice with some
• occasional modification of procedures under the direction of the
physician or therapist. In view of the foregoing, we do not find it
has been satisfactorily established that the beneficiary possesses the
high degree of skill or ability necessary for first preference quotat
classification or that the duties of the position require a person having these qualifications. The appeal, therefore, will be dismissed for
these reasons.
It is ordered that the appeal be and same is hereby dismissed.

11


Interim Decision #2085

MATTER OF OCAMPO-OCAMPO

In Deportation Proceedings
A-19720615
Decided by Board June 25, 1971
Since there is no invariable rule as to the period of voluntary departure
time, the special inquiry officer has authority to fix voluntary departure
time for a period of less than 30 days where the circumstances of the case
so warrant. In assessing the factors pertinent to a judgment as to what
constitutes a proper time limit, the special inquiry officer must take into
account not only the needs of effective law enforcement, but also the individual circumstances of the alien involved.

CHARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2) ]—Entered
without inspection.
ON BEHALF OF RESPONDENT: Samuel D. Myers, Esquire
134 N. La Salle Street, Suite 1616
Chicago, Illinois 60602
(Brief filed)

Respondent appeals from an order of a special inquiry officer
dated April 1, 1971 finding him deportable on the above-captioned
charge and granting him until April 7, 1971 to depart voluntarily
from the United States. The appeal will be dismissed.
The facts are not in dispute. Respondent is an unmarried 24year-old male alien, a native and citizen of Mexico, who entered
the United States without inspection on or about February 1,
1971. At a deportation hearing before the special inquiry officer
on April 1, 1971, at which he was represented by present counsel,
he admitted the truth of the factual allegations of the order to
show cause and conceded deportability. Our review of the record
satisfies us that deportability has been established by evidence
which is clear, convincing and unequivocal.
The only point urged on appeal is that the time allowed for voluntary departure is too short. Since less than thirty days was

707

Interim Decision #2085
fixed, appeal is not precluded by 8 CFR 3.1 (b) (2), as amended,
36 Fed. Reg. 316 (January 9, 1971) .
There is very little in the record relating to voluntary departure. On examination by his attorney, respondent testified, among
other things, that he has no close relatives in the United States ;
that this was his first trip to the United States ; that he was not
presently employed ; that he could pay for his own ticket if granted
voluntary departure; that he had $150 and a ticket to Mexico would
cost about $116; that prior to his apprehension by the Service
about a week previously, he had had no difficulty with the Service. All that appears with respect to departure time is the following (p. 4):
Q. If you were given the privilege of leaving the United States voluntarily rather than being deported and you were given a period of
thirty days or less, could you, and would you, leave within thirty
days?
A. Yes.

On examination by the special inquiry officer, respondent testified that he had not worked since he had been in the United
States; that he had been "here" (presumably, meaning Chicago)
only two weeks; and that he was then residing in Chicago. Counsel for respondent, when asked, stated he had nothing further to
offer. The special inquiry officer then entered his order on Form
1-39, giving respondent until April 7, 1971 (a period of six days)
within which to depart.
While the record does not reflect why the special inquiry officer
fixed such a short departure time, counsel for respondent has
given us an explanation in his brief on appeal. With refreshing
:andor, he states:
The S.I.O. explained, off the record, that respondent had been in the U.S.
)nly a few months, testified that he had not worked, and that he had about
;160. The Hearing Officer felt he, the respondent, would do better to go back
o Mexico quickly with a few dollars in his pocket while he could pay for a
icket. Frankly, I sought to persuade my client to do exactly that because I
hink that position makes some sense. The respondent, however, feels he
hould be allowed one month to leave. He is getting free room and board, he
ells me.

Counsel asserts that this Board has said that, absent unusual
'actors, thirty days was an appropriate time for voluntary deparure. He contends that, in actual practice, thirty days has been
`almost an invariable rule."
An alien granted the privilege of voluntary departure should be
•ven a reasonable time within which to depart. In Matter of
708

Interim Decision #2085

M—, 4 I. & N. Dec. 626 (BIA, 1952), we referred to voluntary departure "within a reasonable time, usually at least 30 days," and
stated, "The normal period of voluntary departure is 30 days .
There is, however, no invariable rule and it would be inappropriate to set up any hard and fast formulation. What is a reasonable time in any case must depend upon the circumstances of that
case.
The fixing of voluntary departure time, originally committed
exclusively to the Service's District Directors, is now confided initially to special inquiry officers, 8 CFR 244.1. This grant of authority to special inquiry officers apparently resulted from
charges by the organized immigration bar that District Directors
could frustrate the grant of voluntary departure by arbitrarily
fixing an inordinately short departure time.' In assessing the factors pertinent to an informed judgment as to what constitutes a
proper time limit, the special inquiry officer must take into account not only the needs of effective law enforcement, but also the
individual circumstances of the alien involved.
The time specified for voluntary departure should be sufficient
to make the privilege a meaningful one. It would certainly be improper to adopt a pat formula that 30 days will be sufficient in
each case, on the notion that additional time can always be
sought, if needed, from the District Director under 8 CFR 244.2.
On the other hand, where the alien's circumstances are such that
he can readily and conveniently depart in less than 30 days, there
appears to be no reason why he should be accorded any more time
than he actually needs or asks for.
Although the six-day period fixed in this case is shorter than
usual, counsel has not indicated that that it is unreasonably short
under the circumstances. Indeed, he agrees that the special inquiry officer's position "makes some sense." By taking this appeal, respondent has obtained the benefit of the automatic stay
accorded by 8 CFR 3.6, and has gained an additional period of almost three months. We see no reason to disturb the special inquiry officer's order.
ORDER: It is ordered that the appeal be and it is hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
I See Immigration Bar Bulletin, Vol. XX, No. 1, January—June, 1967, pp.
5-6.

709

Interim Decision #2085
United States voluntarily within six days from the date of this
order or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special
inquiry officer's order.

710


Interim Decision #2472

MATTER OF TAKAYANAGI

In Deportation Proceedings
A-19854263
Decided by Board February 12, 1976
Denial of respondent's adjustment of status based on a claim to investor exemption under
8 CFR 212.8(b)(4) is affirmed on appeal in deportation proceedings since respondent's
claimed investment of 310,000 is considered an attempt to circumvent the normal labor
certification procedure where the investment is in shares of stock of a corporation which
operates a beauty salon in which respondent had been illegally working as a hairdresser,
for months, prior thereto; the investment followed unsuccessful attempts to obtain a
labor certification as a hairdresser; the record shows that the investment is, at best, an
adjunct to respondent's employment; that the stock shares are to be returned to the
corporation upon termination of respondent's employment; that respondent has no
co„ rul over his "investment"; and that he is, in fact, an ordinary employee competing
with United States workers for an available position.
CHARGE:
Order: Act of 1952.—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Remained longer,

nonimmigrant visitor.
ON BEHALF OF RESPONDENT:
Elmer E. Poston, Esquire
770 Kapiolani Boulevard #514
Honolulu, Hawaii 96813
Jack Wasserman, Esquire
1707 "H" Street, N.W.
Washington, D. C. 20006

ON BEHALF OF SERVICE:
George Indelicato
Appellate Trial Attorney

On March 11, 1975, an immigration judge found- the respondent deportable as charged, granted him the privilege of voluntary departure,
and entered an alternate deportation order, but denied the respondent's
application for adjustment of status. The respondent has appealed from
the denial of adjustment of status. His appeal will be dismissed.
The record relates to a single male alien, 34 years of age, a native and
citizen of Japan, who entered the United States at Honolulu, Hawaii on
April 15, 1971. He was classified as a nonimmigrant student and was
eventually authorized to remain in the United States until December 31,
1973. He has failed to depart.
The respondent's deportability has been established by clear, convine585

Interim Decision #2472
ing and unequivocal evidence. Through counsel he has also conceded his
deportability.
Since December 31, 1973, the respondent has remained in this country illegally. Since that time he has also steadily worked in this country
as a hairdresser, again illegally. He has never had a labor certification.
Attempts to procure a labor certification for him failed.
The respondent now seeks adjustment orstatus as an investor claiming eligibility under the provisions of 8 CFR• 212.8(b)(4). He claims to
have invested $10,000 in shares of stock of Honey of Hawaii, Ltd., a
corporation which operates a. beauty salon in which he had been working, for months, prior to the claimed investment. Except for a letter
signed by the chairman of the board of that corporation, there is no
evidence that the amount of $10,000 was actually invested. The chairman of the board, who lives in Japan (Tr. p. 4), stated in that letter that
the respondent was going to be issued a stock certificate under the
express condition "that upon termination of his employment by the
corporation for any reason whatsoever, the said shares shall be returned
to the corporation and cancelled and that he shall receive the book value
of said shares."
We consider the respondent's stock purchase an attempt to circumvent the normal labor certification procedure. His "investment" followed unsuccessful attempts to obtain a labor certification as a hairdresser. Under the agreement with his employer his shares of stock must be
returned to the corporation upon termination of his employment.
The investor exemption should not become a means of circumventing
the normal labor certification procedure for ordinary skilled or unskilled
laborers, Matter of Ahmad, Interim Decision No. 2316 (BIA 1974). The
nature of the investment must be such that it tends to guard against the
possibility that the alien will compete with American labor for available
skilled or uns:silled positions, Matter of Heitland, 14 I. & N. Dec. 569
(BIA 1974). The record shows that the alleged purchase of shares of
stock of Honey of Hawaii, Ltd. is, at best, an adjunct to the respondent's employment; that the shares of stock are to be returned to the
corporation on the termination of his employment; that he has no control
over his "investment"; and that he is, in fact, an ordinary employee
competing with United States workers for an available position.
There is no merit to the respondent's contention that the immigration

judge improperly considered denials of applications for a alabor certification as adverse factors. The adverse determination by the immigration judge was not based on the denial of those applications. They
merely show the sequence of the respondent's attempts to find some
way for remaining in the United States.
We reject the respondent's contention that a denial of his application
for adjustment of status would violate the Treaty of Commerce and
586

Interim Decision #2472
Navigation between the United States and Japan. The treaty has no
bearing on applications for permanent residence.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 80 days from the date of this order or any extension beyond that
time as may be granted by the district director, and that in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

587


Interim Decision #2622

MATTER OF EXANTUS AND PIERRE

In Deportation Proceedings
A-20420690
A-20420691
Decided by 'oard November 7, 1977
(1) When the authenticity of an affidavit, allegedly signed by the respondent, was challenged during the hearing, the immigration judge erred in not giving the Service an
opportunity to present the Service officer who prepared the affidavit before admitting it
into evidence.
(2) When the respondent submits an application for asylum persuant to articles 32 and 33
of the Convention Relating to the Status of Refugees during a deportation hearing, the
immigration judge is required under applicable instructions to adjourn the hearing until
after a decision on the asylum application has been rendered by the District Director.

CHARGE:
Order. Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)}—Entered without inspection
ON BEHALF OF RESPONDENTS:
Michael I. Rose, Esquire
Suite 330 – Roberts Building
28 West Flagler Street
Miami, Florida 33130

ON BEHALF OF SERVICE:
George Indelicato
Appellate Trial Attorney

BY: Milhollan, Chairman; Wilson, Mamiatis, Appleman, and Maguire, Board Members

The respondents appeal from a decision, dated October 15, 1976, in
which the immigration judge found them deportable as charged, denied
their applications for political asylum, withholding of deportation and
voluntary departure, and ordered their deportation to Haiti. The record
will be remanded.

The respondents were arrested by Service officers on August 11,
1976, and charged with being natives and citizens of Haiti who entered
the United States without inspection on October 10, 1974. At a deportation hearing on August 19, 1976, the respondents, through counsel,
refused to testify on the grounds that anything they said could be used
against them in a possible criminal prosecution. Although the Service's
trial attorney promised them immunity from prosecution, the respon282

Interim Decision #2622
dents continued to claim the Fifth Amendment privilege against selfincrimination.'
When it became apparent that the respondents would continue to
refuse to testify or plead to the allegations in the Orders to Show Cause,
the trial attorney requested that the proceedings be continued because
the investigator who had arrested the respondents was unable to be
present that day. The immigration judge denied this request and proceeded to accept into evidence affidavits allegedly signed by the respondents at the time of their arrest. One respondent denied signing the
affidavit bearing his name, and the other respondent, after identifying
his signature on the affidavit, stated that he could not understand
English and he had no idea what he was signing. Thus, we find error in
the immigration judge's admission of these affidavits without proper
authentication.
In an earlier case, Matter of Pang, 11 I. & N. Dec. 213, 217 (BIA
1965), aff'd 368 F.2d 637 (3 Cir. 1966), we held that an affidavit, allegedly signed by the respondent, was properly admitted into evidence,
but the investigator who had prepared the affidavit testified at the
deportation hearing and the respondent in that case did identify his

name. By contrast, in the case before us, the investigator who prepared
the affidavits did not testify at the respondents' deportation hearing. In
fact, the trial attorney on at least two occasions attempted to have the
hearing continued in order to have the investigator testify (Tr. at 7-8
and 19-20). Thus, inasmuch as no witness testified as to the authenticity
of the affidavits, they were improperly admitted.
The respondents' final argument concerns the immigration judge's
denial of their applications for asylum pursuant to articles 32 and 33 of
the Convention Relating to the Status of Refugees. The immigration
judge apprently refused to review the evidence submitted in this regard

or permit the respondents to call witnesses in their own behalf, until
after they had testified themselves. Inasmuch as they refused to testify
on Fifth Amendment grounds, the immigration judge denied their applications and ordered them deported. to Haiti.
Pursuant to the Service's Operations Instructions, the hearing should
have been adjourned until a decision on the asylum application was
rendered by the District Director. Operations Instructions 242.13.' In
his decision, the immigration judge considered the effect of the Opera' We note that the trial attorney has no apparent authority to promise immunity from
prosecution in return for the respondent's agreement to testify. If the respondent refuses
to testify, the District Director is authorized to request the United States Attorney to
seek a court order compelling the repondent to respond and testify. See 8 C.F.R. 287.4(d);
Lvafulas v. United States, 81 F.2d 966 (3 Cir. 1936).
2 Operations Instructions 242.13. Aliens requesting asylum after issuance of an
Order to Show Cause. A hearing after issuance of an Order to Show Cause shall be

383

Interim Decision #2622
lions Instructions upon the published regulations.- In particular, 8
C.F.R. 242.8(a) reads as follows:
Section 242.8 Special inquiry officers.
(a) Authority. In any proceeding conducted under this part the special inquiry
officer shall have the authority to determine deportability and to make decisions,
including orders of deportation as provided by section 242(b) of the Act; to consider
claims for relief from deportation under Articles 32 and 33 of the Convention Relating to
the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees;
to reinstate orders of deportation as provided by section 242(f) of the Act; to determine
applications under sections 244, 245, and 249 of the Act; to determine the country to
which an alien's deportation will be directed in accordance with section 243(a) of the Act;
to order temporary withholding of deportation pursuant to section 243(h) of the Act, and
to take any other action consistent with applicable provisions of law and regulation as
may be appropriate to the disposition of the case. A special inquiry officer shall have
authority to certify his decision in any case to the Board of Immigration Appeals when it
involves an unusually complex or novel question of law or fact. Nothing contained in this
part shall be construed to diminish the authority conferred on special inquiry officers by
the Act.

The immigration judge found that the Operations Instructions conflicted
with the above regulation and he concluded that the regulation should
prevail. We, however, fail to see the conflict.
Although this regulation permits the immigration judge to rule on
asylum requests under Articles 32 and 33 of the Convention Relating to
the Status of Refugees, the Operations Instructions require that this

request he first considered by the District Director. Operations Instructions 242.13. This is given the effect of a rule by 8 C.F.R. 108, wherein
an alien is required to submit an application for asylum to the District
Director having jurisdiction over his place of residence in the United
States. The District Director is then required to request the views of
the Department of State before making his decision, 8 C.F.R. 108.2.
More importantly, a denial under this section does not preclude an alien,
in a subsequent deportation hearing, from applying for the benefits of
section 243(h) of the Immigration and Nationality Act and of Articles 32

v.

R.
and 22 of the Convention Relating to the Status of Refugees. 8 C..
108.2.
Thus, we fail to see the direct conflict between the regulation au-

thorizing the immigration judge to consider claims of asylum, 8 CFR.
242.8, and the Operations Instructions 108.1(f)(c) and 242.13. The regu lations do not grant aliens the right to have their asylum requests
considered solely by the immigration judge when they are requested
during the course of a deportation proceeding. We hold that 8 C. F. R.
242.8 merely grants the immigration judge the authority to entertain
such requests. Under Operations Instructions 242.13 the immigration
deterred pending disposition of a request for asylum. Any such request shall be processed
pursuant to Operations Instructions 108.1(f).
884

Interim Decision #2622
judge is required to adjourn the deportation proceedings until after a
decision has been rendered on the asylum request by the District Director.
Inasmuch as the District Director has not yet rendered a decision on
the respondents' request for asylum, the immigration judge improperly
considered the matter. Therefore, we need not consider whether his
decision to deny the request was merited. Accordingly, the record will
be remanded to permit the respondents' application for asylum to be
adjudicated by the District Director.

ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion and the entry
of a new decision.

385