Interim Decision #2645

MATTER OF FERREIRA
In Visa Petition Proceedings
A-20833647

Decided by Board April 19, 1978
(1) In order to support the claimed "sister" relationship under section 203(a)(5) of the
Immigration and Nationality Act, the petitioner must establish that she and the beneficiary once qualified as the "children" of a common "parent" as those terms are defined
by section 101(b)(1) and (2) of the Act.
(2) The petitioner, the legitimate offspring of her father, qualifies as his "child" within the
meaning of section 101(b)(1)(A) of the Act; however, since the beneficiary was born out
of wedlock and was neither adopted in accordance with section 101(b)(1)(E) of the Act
by her putative natural father, the petitioner's father, nor legitimated in accordance
with section 101(b)(1)(C) of the Act by the marriage of her mother and her putative
natural father when she was over 18 years of age, the beneficiary does not qualify as his
"child" within the meaning of section 101(b)(1) of the Act and a visa petition predicated
upon the relationship of the petitioner and the beneficiary to a common father must be
denied as a matter of law.
(3) The petitioner became the stepchild of the beneficiary's mother pursuant to section
101(b)(1)(B) of the Act upon the marriage of the petitioner's father to the beneficiary's
mother when the petitioner was under 18 years of age and the beneficiary qualifies as the
"child" of her mother by reason of section 101(b)(1)(D) of the Act; hence, the petitioner
and the beneficiary are "children" of a common "parent" within the meaning of section
101(b)(1) and (2) of the Act and may be regarded as "sisters" for purposes of section
203(a)(5) of the Act.
ON BEHALF OF PETITIONER: Joseph Taboada, Jr., Esquire
11 Hill Street
Newark, New Jersey 07102
BY: 14hlhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board

Members

This case is before us on appeal from a decision of the District
Director dated June 1, 1977, denying the visa petition sled by the

'United States citizen petitioner to accord the beneficiary preference
status as her sister pursuant to section 203(a)(5) of the Immigration and
Nationality Act, 8 U.S.C. 1153(a)(5). The appeal will be sustained.
The petitioner was born in 1953, a legitimate child of her parents,
Antonio Vilaverde and the former Maria Alves, who were married in
1949. It appears from the record that the beneficiary, a native and
citizen of Portugal, was born out of wedlock in 1944 to the petitioner's
494

Interim Decision #254o
father, Antonio Vilaverde, and a different mother, Rosa Alves. The
petitioner maintains that the beneficiary had been legitimated by their
father's marriage in 1969 to Rosa Alves, the beneficiary's natural
mother, and that the beneficiary is accordingly entitled to preference
status as her half sister. The petitioner's mother, Maria Alves, died in
1963.
In order to support a claimed "sister" relationship under section
203(a)(5) of the Act, the petitioner must establish that she and the
beneficiary once qualified as the "children" of a common "parent" as
those terms are defined by section 101(b)(1) and (2) of the Act, 8 U.S.C.
1101(b)(1) and (2). See Matter of Bourne, Interim Decision 2618 (BIA
1977); Matter of Gur, Interim Decision 2560 (BIA 1977); Matter of
Garner, Interim Decision 2357 (BIA 1975); Matter of Hueng, Interim
Decision 2334 (BIA 1974). The cases relied on by the petitioner, Matter
of D—M—, 7 I. & N. Dec. 441 (BIA 1957); Matter of C—, 6I. & N. Dec.
617 (BIA 1955), were expressly overruled by the Board insofar as they
hold that the requirements set forth in section 101(b)(1) are not applicable in determining whether a "brother" or "sister" relationship exists
under section 203(a)(5). See Matter of Garner, supra.
In the instant case, the petitioner claims preference status for the
beneficiary by virtue of their relationship to a common natural father,
Antonio Vilaverde. Under section 101(b)(1)(A), 8 U.S.C. 1101(b)(1)(A),
the petitioner, as the legitimate offspring of Antonio Vilaverde, clearly
qualifies as his child within the meaning of the Act. However, since the
beneficiary was born out of wedlock, the petitioner must establish that
the beneficiary falls within one of the other definitions of the term
"child" enumerated in section 101(b)(1). There has been no allegation
that the beneficiary has been adopted by Antonio Vilaverde pursuant to
section 101(b)(1)(E), 8 U.S.C. 1101(b)(1)(E); therefore, if she is to qualify as his child for the purpose of obtaining immigration benefits, it must
be shown that she has been legitimated by him in accordance with the
provisions of section 101(b)(1)(C), 8 U.S.C. 1101(b)(1)(C).
Section 101(b)(C) defines the term "child" to include "a child legitimated under the law of the child's residence or domicile, or under the
law of the father's residence or domicile, whether in or outside the
United States, if such legitimation takes place before the child reaches
the age of eighteen years and the child is in the legal custody of the
legitimating parent or parents at the time of such legitimation." (Emphasis supplied.) Inasmuch as the marriage of the beneficiary's natural
parents took place when the beneficiary was 24 years of age and there is
no evidence in the record suggesting that legitimation had been accomplished by any other means prior to the beneficiary's reaching the
age of 18 years, compliance with the requirements of section
101(b)(1)(C) has not been established. Accordingly, the District Direc495

Interim Decision #2645
for correctly found that a visa petition predicated upon the relationship
of the petitioner and the beneficiary to a common natural father must be
denied as a matter of law.
We nevertheless conclude that the beneficiary qualifies as the sister of
the petitioner through the operation of section 101(b)(1)(B) and (D) of
the Act, 8 U.S.C. 1101(b)(1)(B) and (D), which includes in the definition
of the term "child":
(B) a stepchild, whether or not born out of wedlock, provided the child had not reached
the age of eighteen years at the time the marriage creating the status of stepchild
occurred; or
(D) an illegitimate child, by, through whom, or on whose behalf a status, privilege, or
benefit is sought by virtue of the relationship of the child to its natural mother. . . .

The petitioner, the legitimate child of Antonio Vilaverde, was under
the age of 18 years at the time of her father's marriage in 1969 to Rosa
Alves and thus became the stepchild of Rosa Alves within the meaning
of section 101(b)(1)(B) by virtue of that marriage. See Matter of Hueng,
supra. The beneficiary, illegitimate at birth, qualifies as the child of
Rosa Alves by reason of section 101(b)(1)(D). Therefore, the petitioner
and the beneficiary have a common parent within the context of the
Immigration and Nationality Act, namely, Rosa Alves, the petitioner's
stepmother and the beneficiary's natural mother.
Since the petitioner and the beneficiary are "children" of a common
"parent" within the meaning of section 101(b)(1) and (2) of the Act, they
may be considered as "sisters" under section 203(a)(5). We shall accordingly sustain the appeal.
ORDER: The appeal is sustained and the visa petition is approved.

496


Interim Decision #2289

MATTER OF IDELS
In Deportation Proceedings
A-17800136

Decided by Board May 22, 197.4
Notwithstanding respondent committed no fraud in connection with her admission for permanent residence as the unmarried daughter of a lawful permanent resident father, who, in fast, was not a lawful permanent resident, her
innocent misrepresentations in that regard are sufficient to bring her within
the purview of the provisions of section 241(f) of the Immigration and
Nationality Act, as amended.

CHARGE:
Order: Act of 1952•Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time
of entry, not in possession of valid immigrant visa.
ON BEHALF OF RESPONDENT:
K. Fred Ajluni, Esquire
2432 Guardian Building
Detroit, Michigan 48226

ON BEHALF OF SERVICE:

Adolph F. Angelilli
Trial Attorney

The alien respondent is a native of Jerusalem and a citizen of

Jordan. She was admitted to the United States in January of 1968
as an immigrant on the basis of her status as the unmarried
daughter of an alien lawfully admitted for permanent residence.
Deportation proceedings were instituted when it appeared that the
respondent was not in fact entitled to the status upon which her
admission was predicated. In a decision dated July 31, 1973, the
immigration judge found the respondent deportable, but granted
her the privilege of voluntary departure. She has appealed that
decision. The appeal will be sustained.
The respondent's admission as an immigrant was based upon

her father's status as an alien lawfully admitted for permanent
residence. It was through her relationship to him that the respondent was accorded the preference which allowed her to immigrate to the United States in 1968. In August of 1972, however, the
respondent's father was found to be excludable and he was denied
admission as a returning resident immigrant. The respondent's
father was ordered excluded primarily because he was found not
to have been entitled to the immigrant visa which he had earlier
received, and, accordingly, never to have qualified as an alien
lawfully admitted for permanent residence.

The Service's contention that the respondent's father never

701

Interim Decision #2289
properly had a status capable of according immigration benefits to
the respondent was an integral part of the case against the
respondent; and the respondent held the Service to its burden of
proof in this regard. In support of this portion of its case, the
Service introduced a copy of the immigration judge's decision in
the exclusion proceeding of the respondent's father. That opinion
fully sets forth the facts upon which the respondent's father was
found excludable. It is clear that the immigration judge there
found the respondent's father to have been improperly admitted
as a permanent resident.
Counsel for the respondent did not object to the introduction
into evidence of a copy of that decision. The respondent does assert
that she was denied due process of law because she was not
included as a party to the proceedings against her father, especially since the outcome of that case could have a material impact
upon her presence in the United States. The respondent's contention in this regard appears to be premised on the assumption that
the adjudication in the proceedings against her father is binding
on her. This assumption is incorrect.
The determination in the case of the respondent's father should
be accorded considerable wleght in this proceeding. The decision
there was similar to an adjudication of status; the opinion was not
a summary order, but instead set forth fully the law and the facts
upon which the result was predicated; except for the precise
parties, the interest to be protected by the respondent's father in
his case was identical to the interest which the respondent
presently is protecting; and, the immigration judge in the case of
the respondent's father imposed the same burden of proof on the
Service which it bears in this proceeding. Nevertheless, the decision regarding the respondent's father is only evidence of the
status to which he was entitled under the immigration laws; it is
not conclusive of that status as against the respondent. Cf. Jung
Yen Loy v. Cahill, 81 F.2d 809 (C.A. 9, 1936); Sanders v. Clark, 76 F.
Supp. 489 (E.D. Pa. 1948). The respondent is free to challenge the
accuracy of the determination in her father's case during these
proceedings; however she was not entitled to be made a party in
the case against her father.I
' Compare U.S. ex rel. Harrington v. Sehlotfelelt, 136 F.2d 935 (C.A. 7, 1943),
cert. denied sub nom., Krause v. United States, 327 U.S. 781 (1946), and
Rosenberg v. United States, 60 F.2d 475 (C.A. 3,1932) (in which the courts refused
to permit affected relatives to intervene in denaturalization proceedings), with
Battaglino v. Marshall, 172 F.2d 979 (C.A. 2, 1949), cert. den., 338 U.S. 829 (1949)
(in which a child of a denaturalized citizen was found not be be a citizen himself,
but in which the court was careful to point out that the child did not claim his
father's denaturalization to have been erroneous).

702

Interim Decision #2289
The respondent has only vaguely asserted that the decision in
her father's case was erroneous. She has failed to make a prima
facie showing that her father was in fact entitled to status as an
alien lawfully admitted for permanent residence. Accordingly, the
copy of the decision in her father's case is the only substantial
evidence bf record as to his proper status. The admissions of the
respondent together with the documentary materials submitted
by the Service constitute clear, convincing and unequivocal evidence that the respondent was excludable at entry as charged.
On appeal the respondent has argued that the provisions of
section 241(1) of the Immigration and Nationality Act prevent her
deportation on the charge contained in the Order to Show Cause.
We agree

Section 241(f) saves from deportation any alien who would have
been deportable for procuring entry or documentation by fraud or
misrepresentation, if the alien was otherwise admissible at entry
and is the spouse, parent or child of a United States citizen or of
an alien lawfully admitted for perrnanent residence. The respondent is the parent of two United States citizen children. The record
indicates that she was admissible at entry under the "qualitative"
provisions of the Act. The Service, however, argues that the
respondent has not satisfied the requirements of section 241(f),
because she had not committted the requisite fraud in obtaining
entry or documentation.
Although the record indicates that the respondent did not
commit fraud in obtaining either her visa or entry, it is clear that
she made an innocent misrepresentation in this regard. That
innocent misrepresentation is sufficient to bring the respondent
within the terms of section 241(1). Matter of Louie, Interim Decision No. 222.3 (BIA 1973); Matter of Lim, 13 I. & N. Dec. 169 (BLA.
1969); Matter of Torbergsen, 13 I. & N. Dec. 432 (BIA 1969).
A remand of this case appears unnecessary. Although the
respondent raised her section 241(f) claim on appeal, the record
adequately establishes the applicability of this provision. The
proceedings will be terminated.
ORDER; The appeal is sustained and the deportation proceedings against the respondent are terminated.

703


Interim Decision #2046

MATTER, OF GROVE

In Deportation Proceedings
A-14597358
Decided by Board March ,27, 1970
The special inquiry officer does not have authority to rule upon the qualifications of respondent (a nonpreference applicant for section 245 adjustment of status) fur precertilicativn under Schedule C of 29 CFR 60.3,
since, by regulation, such authority lies solely with the District Director.

CHARGE :
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2))—Remained
longer than permitted after admission as nonimmigrant visitor under section 101(a) (15).
ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney

ON BEHALF OF RESPONDENT:
Robert T. Reynolds, Esquire
Snyder and Reynolds
1000 National Press Bldg.
14th & F Streets, N.W.
Washington, D.C. 20004
Of counsel:
Ronald R. Bonaparte, Esquire
3600 Wilshire Blvd.

Los Angeles, California 90005

The respondent is a native and citizen of New Zealand who
was admitted to the United States at the port of Honolulu, Hawaii on or about June 16, 1965 as a nonimmigrant visitor for
pleasure. She has been found deportable under the provisions of
section 241 (a) (2) of the Immigration and Nationality Act as an
alien who remained longer than permitted. An order entered by
the special inquiry officer on May 26, 1966 granted her the priviege of voluntary departure with an alternate order of deportation in the event she failed to depart when and as required. There
was no appeal from this order. A warrant for the respondent's
leportation was issued on May 15, 1969.
The respondent on May 26, 1969 moved for a reopening of the
,

572

Interim Decision #2046
deportation proceedings to permit application for adjustment of
status under section 245 of the Immigration and Nationality Act.
An order entered by the special inquiry officer on July 25, 1969
denied this motion. The appeal from this order is now before us.

The special inquiry officer denied the respondent's motion on
the ground that the respondent was ineligible to apply for an ad-

justment of status under section 245 (a) (3) of the Act since there
was no showing that an immigrant visa was immediately available for her (8 CFR 245.2 (a) (2)). The special inquiry officer also
found that the respondent could not qualify as a nonpreference
alien by reason of the fact that "it has been determined by the
District Director that she is not entitled to be considered under
the precertified list of occupations under 29 CFR, Part 60, and
she does not possess an individual certification of the Secretary of
Labor issued under section 212(a) (14) of the Act, as required
under the provisions of 8 CFR 245.2(b) (2)." The District Director at Los Angeles ruled on July 2, 1969 that the petitioning employer's request for the respondent's employment as a secretary
would not be approved because the respondent did not meet the
two-year training period required for precertification under
Schedule C.
Counsel on appeal urges error on the part of the special inquiry officer in that he failed to review the evidence to determine
whether the respondent was qualified as a secretary and, therefore, entitled to precertification under 29 CFR 60.3. He argues
that the broad authority granted the special inquiry officer by 8
CFR 242.8(a) 1 is adequate to permit consideration of the respondent's qualifications for precertification under 29 CFR 60.3.
We do not agree.
Under 8 CFR 245.1 (e) the burden is upon the respondent to establish that she is within Schedule C of the precertified list set
forth in 29 CFR, Part 60. 8 CFR 245.2 (b) is the regulation which
governs an application by a nonpreference alien seeking an adjustment of status under section 245 of the Act and whose occupation is included in Schedule C of the precertified list set forth
in 29 CFR 60.3. It reads in part:
1 8 CFR 242.8(a) provides in part: "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 determine applications under sections 244, 245 and 249 of the Act; . . . and to take any other action
consistent with the applicable provisions of the law and regulation as may
be appropriate to the disposition of the case." (Emphasis supplied.)

573

Interim Decision #2046
Determination concerning certification under section 212(a) (14) of the Act
will be made in accordance with the pertinent provisions of section
204.1(d) (2) of this Chapter.

The pertinent provisions of 8 CFR 204.1 (d) (2) read:
An alien whose occupation is currently listed in Schedule C—Precertification List—will be considered as having obtained a certification under section

212 (a) (14) of the Act upon determination by the District Director that the
alien is qualified for and will be employed in such occupation and that the
alien will not reside in an area excluded from precertification by the Secretary of Labor. (Emphasis supplied.)

We conclude on the basis of the foregoing regulations that the
special inquiry officer does not have the authority to rule upon
the respondent's qualifications for precertification under Schedule

C of 29 CFR 60.3. This authority lies solely with the District
Director. We affirm the action taken by the special inquiry officer
in denying the respondent's motion and will dismiss the appeal.
ORDER: It is directed that the appeal be and the same is
hereby dismissed.

574


MATTER or C—H-

In SECTION 245 Proceedings
A-11908700

Decided by Regional Commissioner March 14, 1961
Approved by Assistant Commissioner

Adjustment of status—Section 245—Exclusion order does not bar eligibility
when alien has been inspected and paroled—Alien's good faith as favorable
element in exercising diecrotion.
Native and citizen of Guatemala with unexpired visitor's visa who was inspected and paroled into the United States and, after special inquiry officer
hearing, was ordered excluded as an Immigrant not in possession of proper
entry documents meets eligibility requirements for adjustment of status
under section 245 of the 1952 Act and merits favorable exercise of discretion upon findings that she was a bona fide nonimmigrant when she first
obtained her visitor's visa from the U.S. Consul; that thereafter on two
occasions when ate entered the United States she complied with the terms

of her admission as a nonimmigrant and departed within the time authorized; and that at the time she last applied for admission she was acting in
good faith, although under an erroneous assumption, and made no attempt
to mislead the inspecting officer as to her intent to reside here permanently.

BEFORE THE REGIONAL COMMISSIONER
DISCUSSION: The applicant, a 22-year-old female, native and

citizen of Guatemala, applied for admission into the United States
as a nonimmigrant visitor for pleasure at New Orleans, Louisiana,,
on June 23, 1960. She presented a valid passport and valid nonimmigrant visa but when inspected she failed to establish that she
was admissible under the nonimmigrant classification contained in
section 101(a) (15) [B-2]. She was ordered detained for hearing
before a special inquiry officer and the District Director authorized her parole into the United States and permitted her to proceed to Chicago, Illinois.
After the hearing, which was conducted in Chicago on July 1,

and 7, 1960, the special inquiry officer found the applicant inadmissible to the United States under the provisions of section 212(a)
(20) of the Immigration and Nationality Act on the ground that she
was an immigrant not in possession of a valid unexpired immigrant
visa as required by the Act. The special inquiry officer ordered that
265

she be excluded from the United States and be deported to the
country from which she came.
Before that order was executed the applicant applied for status
as a permanent resident under the provisions of section 245, as
amended by the Act of July 14, 1960. The District Director found
that she was eligible for the status sought and granted the application. It is now before us on certification for review of that
decision.
An applicant for status as a permanent resident under the amended
provisions of section 245 must establish that he was inspected and
admitted or paroled into the United States, that he is eligible to
receive an immigrant visa and is admissible to the United States
or permanent residence, and that an immigrant visa is immediately
available to him at the time his application is approved. The
applicant also has the burden of establishing that his application
merits favorable exercise of the Attorney General's discretion (Matter of 0 , 9 323).
The applicant in this case was inspected when she applied for
admission as a nonimmigrant at New Orleans on June 23, 1960.
She was found inadmissible as a nonimmigrant and was paroled
into the United States. The purpose and duration of the parole is
not material in making a finding as to whether the applicant was
inspected and paroled, although it is material in determining
whether favorable discretionary action is warranted. Therefore,
the applicant has established that she was inspected and paroled
into the United States.
Although the applicant has been ordered excluded and deported
from the United States, she is not precluded by that order from
now establishing that she is eligible to receive an immigrant visa
and that she is admissible to the United States as an immigrant,
since the order was based solely on a finding that she was an immigrant not in possession of proper entry documents at the time she
was accorded the hearing. Permission to reapply is not required,
as the order of deportation was not executed. In this application
she has established that she is eligible to receive an immigrant
visa and that she is otherwise admissible to the United States as
—

-

an immigrant. An immigrant visa is immediately available to her

since she has established that she was born in Guatemala and is
eligible for status as a nonquota immigrant under section 101(a)
(27)(C) of the Act.
The remaining issue is whether the applicant has established
that her application merits favorable exercise of the Attorney General's discretion. On June 15, 1959, she applied for and was issued
a nonimmigrant visa as a visitor for pleasure under section 101
(a) (15) [B-2] of the Act, valid until June 14, 1963, for unlimited
.

266

applications for admission to the United States. There is no question but that she then was a bona fide nonimmigrant who had no
intention of residing in the United States. She was thereafter
admitted to the United States as a nonimmigrant visitor for pleasure
on two occasions and she complied with the terms of those admissions and departed from the United States within the time authorized. At the time, she last applied for admission at New Orleans
she was no longer a bona fide nonimmigrant, since she intended to
remain permanently in the United States. She had acted on the
erroneous assumption that she could enter the United States as a
nonimmigrant with the still valid nonimmigrant visa and thereafter apply for status as a permanent resident. However, she acted
in good faith and made no attempt to mislead the inspecting officer
as to her purpose in coming nor did she conceal her intent to reside
permanently in the United States. The record shows that she is a
person of good moral character. She is married to a United States
citizen and the stability of that marriage has been established. On
the basis of all the facts, it is concluded that her application warrants favorable action.
ORDER: It is ordered that the order of the District Director be
affirmed.

267


Interim Decision #2543

MATTER OF MOELLER

In Deportation Proceedings
A-12371591
Decided by Board December 16, 1976
(1) Respondent, a 35-year-old native of Germany who was admitted for permanent
residence in 1962 was convicted in 1974 for the felonious possession of marihuana.
Respondent contended on appeal that the destruction of his record of conviction under
section 11361.5 of the Health and Safety Code of California made him not amenable to
deportation under section 241(a)(11) of the Immigration and Nationality Act.
(2) Where the marijuana or narcotics conviction is not under the Federal Youth Corrections Act or its Statp prynivalent, unconditional pardons. erasures of criminal records,
expungements and annulments of records of convictions do not affect deportability
under section 241(a)(11) of the Act. Similarly, destruction of records of conviction
pur.%iant to a statute designed to benefit the convicted population at large (Imstead of
just the youthful offender) has no effect on deportability under section 241(a)(11).
Matter of Lima, Interim Decision 2490 distinguished.
(3) Since respondent has a record of lawful admission for permanent residence dating back
to 1962, and there is no record that he departed the United States following his
marihuana conviction, the record will be remanded to the immigration judge to permit
respondent in deportation proceedings to file an application for a waiver of the instant
ground of deportability under section 212(e) of the Act.
CHARGE:

Order Act of 1952—Section 241(a)(11) t8 U.S.C. 1251(a)(11)]—Convicted of violation
relating to illicit possession of marihuana
ON BEHALF OF SERVICE:
Philip P. Leadbetter
Trial Attorney

ON BEHALF. DP RESPONDENT:

Terence Hallinan, Esquire
819 Eddy Street
San Francisco, California 94109

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

The respondent appeals from a decision of an immigration judge dated
April 19, 1976 where he was found deportable as charged and his
deportation to Germany was ordered. The record will be remanded for
further proceedings.
The respondent is a 35-year-old native of Germany who was admitted
65

Interim Decision #2543
for lawful permanent residence on February 12, 1962, at New York City.
On December 20, 1974, the respondent was convicted in the Superior
Court of the State of California of the felonious possession of marihuana.
The respondent contends on appeal that the destruction of the record
of conviction pursuant to section 11361.5 of the Health and Safety. Code
of California makes him not amenable to deportation under section
241(a)(11) of the Immigration and Nationality Act. The respondent's
contention is rejected.
In eases involving narcotics and marihuana violators not convicted
under the Federal Youth Corrections Act or its State equivalent, we
have limited our inquiry to the issue of whether a conviction existed.
Matter of Varagianis, Interim Decision 2537 (BIA October 15, 1976).
We have held that as far as narcotics and marihuana violations are
concerned, when the conviction is not under the Federal Youth Corrections Act or its State equivalent, unconditional pardons, erasures of
criminal records, expungements and annulments of records of convictions do not affect deportability under section 241(a)(11) of the Act. See

Matter of Varagianis, supra; Matter of Espinoza, Interim Decision
2391 (BIA 1975); Matter of Lindner, Interim Decision 2341 (BIA 1975).
We see no reason why the destruction of records should be treated
differently. Deportation is a function of Federal and not State law. It
-would be anomalous for a Federal action based on a State conviction to be
controlled by how the State chooses to subsequently treat the event.

Cruz-Martinez v. INS, 404 F.2d 1198 (9 Cir. 1969). 1
The present case is distinguishable from Matter of Lima, Interim
Decision 2490 (BIA 1976). There, the court records were sealed under a
statute having objectives similar to the ones expressed by Congress
when it approved the Federal Youth Corrections Act. Here, the statute
under which the destruction of the records is ordered is not intended to
benefit youthful offenders by provisions designed to eliminate or
ameliorate the lifelong stigma that may.result from a conviction. This
statute is directed to benefit the convicted population at large.
The record discloses that the respondent has a record of lawful permanent residence dating back to 1962. His deportability resulted from a
marihuana violation. The record shows no evidence that he departed

from the United States following his conviction.
Since the appeal was filed by the respondent, we have decided that
relief under section 212(c) of the Act is available to a lawful permanent
resident alien in deportation proceedings even if there is no subsequent
entry after the ground of deportability arises. See Matter of SilvaOzalle, Interim Decision 2532 (BIA September 10, 1976). Therefore, we
We are aware of Rehman v. INS, 544 P.24 71, Civ. No. 76-4022 (2 Cir. October 14,

19 76). However, that decision is not controlling in this case.
66

Interim Decision #2543
shall remand the record so as to allow the respondent an opportunity to
file an application for relief under section 212(c) of the Act. We make no
intimation as to the merits of such an application.
ORDER: The record is remanded for further proceedings and the
entry of a new decision.

67


Interim Decision #1308
MAirta or MIS "Bourrrr"
In FINE Proceedings
BOS-10/11.73
Decided by Board December 10, 1963

(1) Even though the vessel was touring the United States engaged in a promotional scheme for a motion picture rather than in a "normal commercial
maritime operation," fine lies under section 256, Immigration and Nationality
Act, for paying MI and discharging 5 alien crewmen without first having
obtained the consent of the Attorney General.
(2) Section 256 provides for the imposition of a separate penalty for each
crewman who is illegally paid off or discharged, as opposed to a single penalty
per vessel regardless of the number of crewmen involved.
IN as : HMS "BOUNTY" which arrived at the port of Boston, Mass., from foreign,
via other United States ports, on August 25, 1962. Alien cewmen
involved :'Michael Lushington, Hugh Boyd, Ellsworth G. Goggins, Eric
S. Hillis and Percy Coffin.
BASIS FOR Fnm : Act of 1952—Section 256 (8 U.S.C. 1286).

The District Director at Boston, Mass., in a decision dated April 12,
1963, held that the Boston Shipping Corp., as agents for the IBIS
"Bounty," had incurred liability to administrative penalties totaling
$5,000, $1,000 as to each of the alien crewmen (Canadian nationals)

named above, for paying them off and/or discharging them without
prior permission from an immigration officer acting for the Attorney
General. However, said official found present herein factors which,
in his opinion, merited mitigation of the fines to the extent of $2500,
$500 per crewman. He then permitted fines in like amount to stand.
The appeal from his decision, which brings the case before this Board
for consideration, will be dismissed.
The HMS "Bounty" is a wooden sailing vessel, a replica of the
original historic vessel of the same name, which was constructed for

the purpose of making a motion picture entitled "Mutiny on the
Bounty." Upon completion of filming, it was decided to send the
vessel on a promotional tour. Said tour was to include port calls
at several ports on both coasts of the United States.
.391

Interim Decision #1308
The first such call was made at Seattle, Wash., on June 22, 1962.
Immigration inspection was then and there accorded the vessel's crew,
with the result that the crewmen here involved were granted D-1
conditional landing privileges. Under the terms thereof, they were
permitted to land in this country for the time the vessel was to remain
in United States ports, but in no event to exceed 29 days; and they
could not be paid off and/or discharged without permission of the
Attorney General, acting through an immigration officer. 1
The vessel sailed coastwise from Seattle and eventually arrived at
the port of Boston, Mass., on August 25, 1962. From that port, it was
scheduled to sail foreign for France, but these five crew members did
not desire to continue the voyage further. Accordingly, they were
"separated" from the ship, they were paid off and discharged before
the Canadian Consul at Boston, and they returned to their homes
in Canada.
The facts recited in the foregoing paragraph constitute this case
a classic example of a "pay off or discharge" as those terms are used
in the statute here under consideration. 3 Therefore, the fines have
properly been ordered imposed unless appropriate permission had
first been obtained.
Appellant's claim that the requisite permission was obtained rests
on an affidavit submitted by the Master. It recites that when the vessel arrived at the port of Boston, it received a tumultuous welcome
and was met by a large number of visitors and port officials. It states
that one such official, believed to be an immigration officer, was informed of plans to permit these five crewmen to leave the ship. It
concludes that he informed the Master it was permissible to do so.
This affidavit, however, is unavailing—for several reasons.
First, since the vessel merely sailed coastwise from Seattle to Boston
no further immigration inspection was required at the latter port by the
regulations' Second, according to the record no immigration officer
boarded the ship at Boston to make such an inspection, or otherwise.
Third, the regulations spell out a procedure for obtaining permission
to "pay off or discharge" crewmen entirely different from that followed
by the Master.° Fourth, the Service record indicates that the specified
procedure was not followed, and no claim has been advanced that it
was. Fifth, the parties responsible for the vessel's operation—includSae arirval manifest (Form 1-418) ; Section 252(a) (1), Immigration and
Nationality Act (8 U.S.C. 1282) ; and 8 ont 252.1(d) (1).
2 See manifest (Form I-418) submitted for the vessel's foreign departure on
August 81, 1962.
a II v. Seaboard Surety Co., 239 F. 2d 667.
' 8 OFR 251.1 and 252.1.
5 8 CFR 252.1 (d) and (f).

392

Interim Decision #1308
ing the agents and Master—are charged with knowledge of the pertinent regulations. Finally, the record reveals that the Master is an
experienced mariner who presumably had personal knowledge of them.
We cannot agree with appellant that it would be unconscionable to
permit the fines to stand because this vessel was engaged in an enterprise of great public appeal rather than in a normal conunercial maritime operation. Factually, we find no logic in this argument since
the ship was touring the United States as a "promotional" scheme
which obviously involved the "profit motive." Legally speaking,
moreover, the statute applies to "any vessel" so that it includes even
privately owned pleasure craft engaged in no commerce whatsoever.
While there have been cases in which the question of "normal commercial maritime operation" was dimmed, those cases involved the
question of "sovereign immunity," to wit: public vessels operating
solely for the public purposes of a sovereign nation, 6 which is not the
situation presented here.
We also reject the contention that this section of law limits the fine

that can be imposed hereunder to $1,000 per vessel no matter how
many crewmen are involved. The decisive factors on this point are
that the statute makes it unlawful to pay off or discharge "any alien

crewman" and provides for the imposition of a penalty "in the sum
of $1,000 for each such violation." The clear meaning of the quoted
phraseology is that the Congress meant nothing more than that a
separate penalty should be assessed for each crewman who is paid of
and discharged, as opposed to creating a single violation of the statute
per vessel—no matter how many crewmen were involved.' While
there are no precedents precisely on this point, the fact remains that

it. has been generally accepted and recognized, by a. long line of administrative and judicial interpretation, that this section does justify
the imposition of a fine of $1,000 as to each crewman involved_' We

so hold.
Finally, the request that the fines be further reduced must be and
is denied. ' The reason is that the penalty provided for in the statute
cannot be reduced to less than $500 per crewman, and the District
Director has already granted this relief.
.ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
°See .3faiter of SS "Wave Sovereign," 51. & N. Dee. 336.
See Grant Brothers Construction, Co. v. U.S., 58 L. ed. 776; and see also the

Kate /angora, 18 F. za 113.
° See the Limon,14 F. 2d 153, and 22 F. 2d 270.

4

392


Interim Decision #1323

Matcry.ac

OF TINSLEY

In VISA PETITION Proceedings
A-13710282

Decided by Board February II, 1964
A child born out of wedlock in the Philippines and reared in a home maintained
there by his father (married) and his mother (unmarried paramour of father)
has not been legitimated under section 230, California Civil Code, absent a
showing that the father brought the child into his home "with the consent
of his wife."

The district director approved the visa petition on June 18, 1963,
and granted nonquota status to the beneficiary as the petitioner's child.
On September 17, 1963, the petitioner was notified of the intention
to revoke the approval and that he might offer evidence in opposition
within 15 days. No evidence was submitted and the approval of the
visa petition was revoked on October 14, 1963. The case is now before
us on appeal from that decision.
We kayo carefully reviewed the entire record. The petitioner was
born in the Philippines and acquired. United States citizenship through
"parentage." He originally stated that he was married on April 21,
1951, to one Eleanor; that he had not been previously married; and
that the beneficiary was born in the Philippines on March 21, 1952.
From information subsequently received by the Service and which
the petitioner now concedes, it appears that he was previously married
to Gloria Tibre on May 10, 1943, and that this marriage has not been
terminated. The Service revoked the approval of this visa petition
on the ground that the beneficiary, being illegitimate, was not a "child"
of the petitioner under the definition in section 101(b) (1) of the
Immigration and Nationality Act [8 U.S.C. 1101(b) (1)]. Counsel
contends that the beneficiary has been legitimated under section 230
of the California Civil Code which provides, in part, as follows :
§ 230 Adoption of illegitimate child—The father of an illegitimate child, by
publicly acknowledging it as his own, receiving it as such, with the consent of
his wife, if he is married, into his family, and otherwise treating it as if it were
a legitimate child, thereby adopts it as such and said child is thereupon deemed
for all purposes legitimate from the time of its birth. * * *

466

Interim. Decision #1323
In his brief, counsel stated that, following the marriage on April 27,
1951, the petitioner and Eleanor maintained a home and held themselves out as husband and wife; that, when the beneficiary was born,
the petitioner held him out as his child and received him into the
home which he maintained with Eleanor; that the petitioner moved
to California in 1960; and that he sent money to the Philippines for
the support of his family. However, the record contains no evidence
to support any of these factual allegations and there is not even an
affidavit by the petitioner to that effect. Regardless of whether the
beneficiary's case meets other requirements of section 230, we do not
believe it has been established that the petitioner received the beneficiary as his own child into his family with the consent of his wife.
Counsel stated that the courts of California "declare that such legitimating acts under Civil Code 230 are operative although the only
home the father has and the home in which he receives the child is a
home in which he is living with the mother as husband and wife,
although they are not married." He cited three cases in support of
this proposition which will be discussed briefly.
Garner v. Judd, 150 Cal. 304, 68 Pa,e. 1026 (1902), related to a man,
apparently previously unmarried, who lived with a woman from 1876
to 1897. There was some evidence that a marriage had occurred
between them but this was not definitely established. He held her out
as his wife. His illegitimate child was born in 1878 of another woman,
and the child was held not to have become legitimated under section 230
because the father had not received her into his family.
In re Jones' Estate [Baker v. Jones], 166 Cal. 108, 135 Pao. 288
(1913), involved two unmarried persons who cohabitated at the man's
residence on a ranch commencing in 1897. In May 1902, the woman
became pregnant and in November of that year she left the ranch and

did not again return to cohabit with him. The illegitimate child was
born on February 27, 1903. He lived at the ranch with his father for
two months about 1908 which the court held constituted receiving the
child into the father's family, the family consisting of the father and
the son.
In re McNamara's Eetate, 181 Cal. 82, 183 Paz. 552 (1919), had
reference to a married woman and an unmarried man who cohabited
from December 1913 until his death. Their illegitimate child lived
with them and was acknowledged by the father. It was held that this
child was legitimated tin der section 230.
In re McNamara's Estate, supra, does support counsel's proposition
quoted above but the other two eases do not. However, the McNamara
case is distinguishable from the respondent's case. There, the father
received the illegitimate child into the home he had maintained in
California with the child's mother. This beneficiary has never been
46T

Interim Decision #1828
received into the petitioner's home in California although counsel
attempts to utilize the beneficiary's alleged residence with the petitioner and Eleanor in the Philippines.
A more important distinction is that, in cases where the father of
the illegitimate child is married, section 280 specifically requires that
the wife must consent to receiving the child into the father's family.
In the McNamara case, the father was unmarried. However, there is
no question that Eleanor, the mother of the beneficiary, is not the
petitioner's wife, and there is no evidence that his legal wife, Gloria,
consented to the beneficiary being received into the petitioner's family.
The facts in this beneficiary's case are entirely analogous to those in
Louie Wale You v. Nagle, 27 F. 2d 573 (9th Cir., 1928), and Matter of
1176219, Int. Dec. No. 1287 (1963) , in which it was held that legitimation
was not established under section 230 of the California Civil Code.
We consider those decisions controlling here and hold that the petitioner has not established that the beneficiary was legitimated under
section 230. In view of the foregoing, we conclude that the district
director's action, revoking the approval of the visa petition, was
correct and the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby

dismissed.

468


nterim Decision #2370

MATTER OF NIGOGHOSSIAN
In Visa Petition Proceedings
A-20318610
Decided by Board April 16, 1975

ie lawful permanent resident petitioner filed a visa petition under section 203(a)(2) of the
Immigration and Nationality Act, which was denied because the petitioner was previously married ii. Iraq and failed to establish that the prior marriage had been legally
terminated., The second marriage took place in California. Petitioner claimed that the
first marriage could be considered terminated under section 4401(2) of the California
Civil Code because she and her first husband had been separated for over five years
prior to her seco ad marriage and he had not been heard from since. Such assertion is not
sufficient to corsider the marriage terminated under section 4401(2), because that
section requires a good faith belief that the previous spouse is dead, and there was
iothing in the record to indicate petitioner entertained such belief.
BEHALF OF ISTMONER: Joseph S. Hertogs, Esquire
Jackson & Hertogs
580 Washington Street
San Francisco, California 94111

Me lawful permanent resident petitioner applied for preference clascation for the beneficiary as her spouse under section 203(a)(2) of the

migration and Nationality Act. In a decision dated October 17, 1974,
district director denied that petition. The petitioner has appealed
m that decision. The appeal will be dismissed.
rhe petitioner and the beneficiary went through a marriage ceremony
San Francisco, California on December 7, 1973. The record shows
.t the petitioner was previously married in Iraq in 1962. The district
ector based his denial on the petitioner's failure to establish that her
Dr marriage had been legally terminated.
)n appeal, counsel argues that the petitioner's present marriage is
id in California, the place of celebration, by virtue of section 4401 of

California Civil Code, which provides:
subsequent marriage contracted by any person during the life of a former husband or
illegal
d void from the beginning, unless:
} The former marriage has been dissolved or declared a nullity prior to the date of the
bsequent marriage.

Ye of such pennon, with any person other than such former husband or wife, is

256

Interim Decision #2370
(2) The former husband or wife is absent, and not known to such person to be living for
the space of five successive years immediately preceding the subsequent marriage, or is
generally reputed or believed by such person to be dead at the time such subsequent
marriage was contracted, in either of which cases the subsequent marriage is valid until
its nullity is adjudged pursuant to subdivision (b) of Section4425. (Emphasis supplied.)

Counsel alleges that the petitioner's first spouse left her in 1965 and has
not been heard from since. Counsel therefore contends that the petitioner's present marriage to the beneficiary is valid under the provisions
of section 4401(2) of the California Civil Code.
We have previously had occasion to deal with the provisions contained
in subsection (2) of section 4401 of the California Civil Code (formerly
section 61 of the California Civil Code). In Matter of S—, 7 I. & N. Dec.
469 (BIA 1957), we held that subsection (2) required that the person
seeking to rely on it establish that he or she had a good faith belief in the
death of his or her prior spouse. Our holding was based on the decisions
of tile- California courts in Wilcox v. Wilcox, 171 Cal. 770, 776, 155 P. 95
(1916), and Goff v. Goff, 52 Cal. App. 2d 23, 28, 125 P.2d 848 (1942). The
view that section 4401(2) requires a good faith belief in the death of the
prior spouse was reaffirmed in Neareither v. Workmen's Compensation
Appeals Board, 15 Cal. App. 3d 429, 93 Cal. Rptr. 162 (1971).
The only evidence submitted by the petitioner regarding her prior
spouse consists of two affidavits from friends indicating that the petitioner's first husband left her in Iraq in 1966 and has not returned to her
or been heard from since. There is nothing in the record to indicate that
the petitioner entertained a good faith belief that her husband was dead
as required under section 4401 of the California Civil Code.
In visa petition proceedings, the petitioner has the burden of establishing the validity of the claimed relationship. Matter of Brantigan, 11
I. & N. Dec. 493 (BIA 1966). The present petitioner has failed to
establish that her marriage to the beneficiary is valid under the law of
California. Consequently, the appeal will be dismissed. If the petitioner
has evidence that might place her present marriage within the provisions of section 4401 of the California Civil Code, as interpreted by the
California courts, she may submit a new petition.
ORDER: The appeal is dismissed.

257


Interim Decision #2615

MATTER OF DIXON
In Deportation Proceedings
A-20262126

Decided by Board September 15, 1977
(1) Respondent was admitted to the United States under section 301(a)(15)(K) of the
Immigration and Nationality Act as the fiancee of a U.S. citizen. Within 90 days of entry
she contracted a lawful marriage with the United States citizen which had become
nonviable at the time she applied for recordation of lawful admission for permanent
residence under section 214(d) of the Act. The District Director denied recordation on
the ground that respondent's marriage was no longer viable.
(2) A nonviable or terminated marriage does not bar an applicant from section 214(d)
benefits if she can establish that she entered into a lawful marriage with the petitioning
fiance within 90 days after entry and she is not within any of the classes of individuals
who are excludable from admission under section 212 of the Act.
(3) Since lawful permanent residence is accorded a section 214(d) applicant as an immediate relative. and the marriage, whether viable or not, is sufficient basis to accord
that status, the labor certification requirements of section 212(a)(14) of the Act should
not be made a part of the consideration in determining whether an applicant is "otherwise admissible" for purposes of section 214(d) of the Act under the circumstances of
this case.
(4) Matter of Harris, Interim Decision 2336 (BIA 1974) overruled.
CHARGE:

Order: Act of 1952—Section 241(n)(2) [S U.S.C. 1251(a)(2)]—Nonimmigrant-longer than permitted
ON BEHALF OF RESPONDENT:
Carolyn J. Biermann, Esquire
4484 West Pine Boulevard ,
St. Louis, Missouri 63108

remained

ON BEHALF OF SERVICE:

Mary Jo Grotenrath
Appellate Trial Attorney

BY: Milhollan, Chairman; Wilson, Maniatis, Applernan, and Maguire, Board Meinbers

The respondent has appealed from the September 28, 1976, decision of
the immigration judge in which he found her deportable as charged,
denied her motion to terminate deportation proceedings, and granted
her voluntary departure. The appeal will be sustained and the proceedings will be terminated.
The respondent, a native and citizen of the Philippines, was admitted
366

Interim Decision #2615
to the United States as a K-1 nonimmigrant fiancee on February 27,
1974. She married her United States citizen fiance within the 90-day
period required by sections 101(a)(15)(K) and 214(d) of the Immigration
and Nationality Act. On December 13, 1974, the respondent filed an
application for recordation of lawful admission for permanent residence
pursuant to section 241(d) of the Act. That provision provides that:
In the event the marriage between the said alien and the petitioner shall occur within
three months after the entry and they are found otherwise admissible, the Attorney
General shall record the lawful admission for permanent residenee of the alien and
minor children as of the date of payment of required visa fee.

In Service interviews pertaining to the application, the respondent
admitted that her marriage to Mr. Dixon had quickly deteriorated to a
point beyond salvaging, that she had ceased living with her husband on
June 19, 1974, and that she did not intend to return to him. On the basis
of this testimony, the Acting District Director concluded that the applicant's marriage was no longer viable and denied recordation, citing our
decision in Matter of Harris, Interim Decision 2336 (BIA 1974).
In Harris, we concluded that the standard of marriage should be the
same in applications for recordation of lawful admission for permanent

residence under section 214(d) and in applications for adjustment of
status under section 245. As a consequence, we held that "neither a
nonviable marriage nor a terminated marriage will support section
214(d) recordation of lawful admission for permanent residence, and
that, just as a marriage must exist in fact as well as in law for it to
support adjustment of status pursuant to section 245, so must it exist to
support recordation of lawful admission for permanent residence pursuant to section 214(d)." Harris, at 5.
At her deportation hearing and again on appeal, the respondent
contests departability by challenging the denial of relief under section
214(d). She has renewed her application for recordation before the
immigration judge, pursuant to 8 C.F.R. 245.2(d).
The respondent contends that our decision in Harris is an invalid
construction of section 214(d) because in imposing the "viability requirement," we have placed greater restrictions on an alien fiancee than
are set out in the statute. It is the respondent's position that section
21-4(d) requires 'only that the alien fiancee enter into a lawful marriage
with the citizen petitioner within 90 days of entry and that the alien be
found otherwise admissible. According to the respondent's argument, if
compliance with these requirements is established, the Attorney Genera! is required to record the alien's lawful admission for permanent
residence. The Immigration and Naturalization Service joins the respondent in urging this interpretation. We note, moreover, that the
Service has adhered to this position since 1972. See Matter of Blair, 14
I. q& N. Dee. 153 (R.C. 1972); Matter of Hays, 14 I. & N. Dec. 188 (D. D. ,
356

Interim Decision #2615
R. C. 1972); see also the dissenting opinion in Matter of Harris, Interim
Decision 2336 (BIA 1974).
After careful consideration of the arguments advanced in the respondent's excellent brief, we have concluded that the viability requirement,
which is applicable in section 245 proceedings, is not relevant in applications for benefits under section 214(d). While the regulation, 8 C.F.R.
245.2(d), requires the filing of an application for permanent resident
status pursuant to section 214(d) to be made on Form 1-485, and is
included in the regulations generally relating to adjustment of status, it

is in fact adjustment under a separate and distinct provision of the
statute, carrying its own requirements, and having no relationship to
the requirements of section 245. Thus, a nonviable or terminated marriage does not bar an applicant from section 214(d) benefits, if she can
establish that she entered into a lawful marriage' with the petitioning
fiance within 90 days after entry and that she is otherwise admissible. 2
Matter of Harris, Interim Decision 2336 (BIA Henc,wshalovru
1974) and shall endorse the Service's decisions in Matter of Blair, supra,

and Matter of Hays, supra.
The record indicates that the respondent entered into the planned
marriage within 90 days of her arrival—there is no suggestion that the
marriage was legally invalid or fraudulent—the respondent appears
otherwise admissible. The statute is satisfied; recordation is required.
Hence, the lawful admission of the respondent for permanent residence
shall be recorded and deportation proceedings against her will be terminated.
ORDER: It is ordered that the respondent's application for status as
a permanent resident under section 214(d) of the Immigration and
Nationality Act be granted and deportation proceedings against her be
terminated.
For immigration purposes, the validity of a marriage is judged not only by the law of
the place of celebration, but also by the intentions of the parties involved. Thus, even if
individuals enter into a legally binding ceremonial marriage, the relationship will not be
recognized for immigration purposes if it was contracted solely for the purpose of obtaining immigration benefits. See Lutwak v. INS, 344 U.S. 604 (1953); Johl14U.S., 370 F-2d
174 (9 Cir. 1966); U.S. v. Sacco, 428 F.2d 264 (9 Cir. 1970), cert. denied, 400 U.S. 903
(1970); U.S. v. Lozano 511 F.2d 1 (7 Cir. 1975).
2 The term "otherwise admissible" refers to a finding that the alien is not within any of
the classes of individna Is who are excluded from admission under section 212 of the Act: In
214(d) applications, such as this, which involve a nonviable or terminated marriage, the
alien would normally be expected to secure skilled or unskilled labor in the United States
and would thereby fall within the excludable class set out in section 212(a)(14). We note,
however, that lawful permanent residence is accorded a section. 214(d) applicant as an
immediate relative, a status exempt from the provisions of section 212(a)(14). Since Ave
have concluded that an applicant's marriage remains a basis for section 214(d) benefits,
whether viable or not, we do not believe that the requirements of section 212(a)(14) should
b e made applicable in determining whether the alien is otherwise admissible.
357


Interim Decision #2162

MATTER OF HAYS
In Section 214(d) Proceeding s
A-19789845

Decided by District Director August 29, 1972
Affirmed by Regional commissioner September 6, 1972
•

in the absence of fraud, an alien admitted as the nonimmigrant fiancee of a U.S.
citizen under section 101(a)(15XK) of the Immigration and Nationality Act, as
amended, who concluded a valid marriage to the citizen within 90 days after
entry, is eligible for permanent resident status pursuant to section 214(d) of
the Act, notwithstanding she and her citizen husband separated about 17
days after their marriage and chances for reconciliation are doubtful.
ON BEHALF OF APPLICANT: Pro se
BEFORE THE DISTRICT DIRECTOR

(August 29, 1972)
The applicant is a 53-year-old native and citizen of Honduras.
She arrived in the United States on May 7, 1971 in possession of a
visa issued pursuant to section 101(a)(15)(K) of the Immigration
and Nationality Act. Her purpose in coming to the United States
was to conclude a marriage with a United States citizen. On May
24, 1971, seventeen days after her arrival, the petitioner concluded
this marriage, and, on July 29, 1971, submitted the application for
status as a lawful permanent resident.
The applicant was scheduled for an interview on her application
several times, but declined to appear because the dates could not
be worked into her schedule. When she did appear, it was developed that her marriage had lasted less than seventeen days, that
her husband was imprisoned, and that her only means of support
was employment as a housekeeper. In a letter to the Service the
applicant's husband stated:
I am writing to you concerning my wife, I'm not signing any papers where
she is concerned, her and I aren't living together any more and haven't since
June, you can send her back if you want to, she isn't anything like she is
supposed to be, she lies. Everything she put in writing is lies. All she came for is
my name so she could be a United States citizen.

When interviewed, the husband stated he lived with the appli-

188

Interim Decision #2162
cant only until June 10, 1971, when he left her because they did
not get along. He met the applicant in Honduras in a bar in 1970.
They dated several times, and after he returned to the United
States they corresponded for about one and one-half years before
deciding to marry.
The applicant was questioned in considerable depth about her
reason for coming to the United States. She steadfastly maintained her reason was to conclude a valid marriage and establish a
home. Nothing has been presented to refute this.
The applicant entered the United States with a valid nonimmigrant visa issued in accordance with the provisions of section
101(aX15)(K) of the Act, which describes a fiancee as:
(K) an alien who is the fiancee or fiance of a citizen of the United States and
who seeks to enter the United States solely to conclude a valid marriage with
the petitioner within ninety days after entry, and the minor children of such
fiancee or fiance accompanying him or following to join him.

Section 214(d) of the Act states, in part:
In the event the marriage between the said alien and petitioner shall occur
within three months after entry and they are found otherwise admissible, the
Attorney General shall record the lawful admission for permanent residence of
the alien and minor children as of the date of the payment of the required visa
fee.

Although the applicant and her husband lived together for only
about 17 days after marrying, and chances for a reconciliation are
doubtful, she nevertheless did conclude a valid marriage within

the statutory 90-day period. It has also been established she was
the beneficiary of an approved petition to accord her fiancee
status, and that she and her husband were legally entitled to
marry. No element of fraud is indicated.
ORDER: It is ordered that the application for status as a
permanent resident under section 214(d) of the Immigration and
Nationality Act be granted.
It is further ordered that the decision be certified to the Regional
Commissioner, Northwest Regional Office, Immigration and Naturalization Service, for review.
BEFORE THE REGIONAL COMMISSIONER

(September 6, 1972)
This matter has been certified to me by the District Director at

Portland, Oregon, who has approved the application for status as a
permanent resident.
I find the District Director's order in this case complete and
copies have been furnished to all interested parties. There is no
need to restate the facts in this case which are not in dispute.
It is ordered that the District Director's decision be and hereby
is affirmed.
189


Interim Decision #2031

MATTER OF QUINTANILLA-MONTES
In Exclusion Proceedings
A-18464888
Decided by Board March 20, 1970
"Sunday marching" and drill for about an hour in Mexico under the direction of a soldier from the regular Mexican Army, uver a period of approximately a year, during which no rank was held, no firearms were
issued nor instructions given in the use of weapons, no uniforms, pay nor
allowances of any nature were received, and no food, transportation nor
medical services were furnished, did not constitute service in the armed
forces of a foreign state so as to expatriate under section 349(a) (3) of
the Immigration and Nationality Act.
EXCLUDABLE; Act of 1952 — Section 212 (a) (20) [8 U.S.0 1182 (a) (20)]
migrant—no immigrant visa.

—

Im

The special inquiry officer, at the request of the Immigration
and Naturalization service, has certified to us for final decision
his order in these exclusion proceedings that the applicant be admitted to the United States as a citizen thereof. The question de-.
cided by him was whether the applicant was a United States citizen or whether he was an immigrant not in possession of an
immigrant visa and thus excludable under section 212(a) (20) of
the Immigration and Nationality Act.
The applicant is a 33-year-old married male who was born in
Laredo, Texas to a Mexican citizen father and a United States
citizen mother. Under these circumstances he acquired at birth
dual citizenship of the United States and Mexico. 1 At the age of
three he was taken to Mexico by his parents and resided there
ever since with the exception of several one day visits when he
was seven or eight years old and again when he came to the
United States in 1968 for two months, entering as a visitor for
pleasure.
On November 21, 1968 the applicant applied for admission to
1 Section 301(a), I. & N. Act (8 U.S.C. 1401 (a) ); Article 30 (as amended
in 1934) of the Mexican Constitution of 1917 (Ex. 3).

508

Interim Decision #2031
the United States as a United States citizen. He was detained for
a hearing. The question arose as to whether the applicant who
had acquired United States citizenship at birth had not subsequently expatriated under section 349 (a) (3) of the Immigration
and Nationality Act by reason of having served in the armed
forces of a foreign state. Section 349(a) (3) of the Act provides:
From and after the effective date of this Act a person who is a national of
the United States whether by birth or naturalization loses his nationality by
entering, or serving in, the armed forces of a foreign state unless, prior to
such entry or service, such entry or service is specifically authorized in writ-

ing by the Secretary of State and the Secretary of Defense.

Applicant's alleged military service in Mexico lasted for approximately a year, from December 1955 to December 1956, during which time he engaged in "Sunday marching." This consisted
of his meeting once a week with a small group of eighteen and
nineteen year old boys who would then, under the direction of a
soldier from the regular Mexican Army, march and drill for about
an hour, after which they engaged in sports.
Those engaged in Sunday marching held no rank. They were
not issued firearms or instructed in the use of weapons. They received no uniforms, but those who could afford it purchased khaki
pants and shirts. They received no pay or allowances of any nature. No food, transportation or medical services were furnished.
The marchers did, however, salute the Mexican flag and on certain occasions would recite a verse which amounted to a pledge of
allegiance to the flag. From the testimony of the applicant it appears the entire activity was conducted in a most informal manner. The marchers were subject to being drafted into the regular
armed forces of Mexico, but all male citizens over the age of 18
were subject to this whether they engaged in Sunday marching
or not.
There have been several cases before this Board in which Sunday marching was involved. In Matter of Vargas-Calderon,
1611-10445 (BIA, 1954) (unreported), the question arose
whether the applicant had made an affirmation of loyalty to Mexico while serving as a Sunday marcher so as to expatriate himself

under section 401 (b) of the Nationality Act of 1940. Our decision
with expatriation by oath taking rather than by
service in the army of a foreign state.
In Matter of M—G—, 6 I. & N. Dec. 641 (BIA, 1955), we decided the case on two grounds. The first was that there was no
proof that the marcher had taken an oath of allegiance to a foreign state so as to expatriate under section 401 (b) of the Nationwas concerned

509

Interim. Decision #2031
ality Act of 1940. The second was that there was in force at that
time Executive Agreement No. 323 between the United States
and Mexico 2 which provided exemption from loss of nationality
under section 401 (c) of said Act to United States nationals who
were required to serve in the armed forces of Mexico.' A similar
result was reached in Matter of Lopez Vasquez, A-8943473
(RT A, 1956) in which we said: "Since the evidence before us affirmatively establishes that the applicant was conscripted into the
armed forces of Mexico while Executive Agreement No. 323 was
in force and effect, we find that he did not expatriate himself
under section 401 (c) ."
In all of the above cases it was assumed that Sunday marching
constituted military service. Each case was then decided upon a
different ground, e.g., oath taking and/or the effect of Executive
Agreement No. 323. The case before us now aPpears to be the
first in which the specific question of whether Sunday marching
is tantamount to military service, has been raised and argued.
We conclude that Sunday marching as described above does not
constitute service in the armed forces of a foreign state so as to
expatriate one under section 349 (a) (3) of the Immigration and
Nationality Act. To deprive one of his United States citizenship
we feel that the statute contemplates much more than simply
marching an hour or so each week. We hold that applicant's
"Sunday marching" was not an act in derogation of his allegiance
to the United States or inconsistent with his obligations, responsibilities and loyalty as a United States citizen.
The record contains substantial evidence that the Sunday
marching by the applicant was compulsory under Mexican law.
Since we hold that the marching itself was not within the ambit
of section 349(a) (3), we need not confront the conclusive presumption of voluntariness that would otherwise apply under section 349 (b) of the Act. Compulsory military service, of course,
does not expatriate' Further, the pledge of allegiance to the Mexican flag that applicant was compelled to take, even if such pledge
is considered as an oath of allegiance, is not expatriating under
-

2

In force from January 22, 1943 to October 28, 1952.

A Circular of the Minister of National Defense of Mexico, dated Decem14, 1948 states that the Mexican Government considers men engaged in
Sunday military service to be a part of the active, regular army of Mexico
during their year's service. The State Department regarded the circular as a
statement of the status of persons engaged in Sunday marching.
4 Lehmann v. Acheson,
206 F.2d 592,594 (3 Cir., 1953) ; Dos Reis exrel.
Camara v. Nicholls, 161 F.2d 860 (1 Cir., 1947) ; Podea v. Acheson, 179 F.2d
306 (2 Cir., 1950); Pondolfa v. Acheson, 202 F.2d 38 (2 Cir., 1953).
3

er

510

Interim Decision #2031
section 349 (a) (2) of the Act as it was a concomittant of his nonexpatriating marching and not a separate and distinct act.'
ORDER: It is ordered that no change be made in the order of
the special inquiry officer and that the applicant be admitted to
the United States as a United States ciizen,

Matter cf V—L—, 5 I. & N. Dec. 497 (BIA, 1953) ; Moldoveanu v.
Dulles, 168 F. Supp. 1 (E.D. Mich., 1958).

511


MATTER OF T—

In VISA PETITION Proceedings
A-12330560
Decided by Board November 6,1961
Visa petition- Eligibility of mentally incompetent United States citizen to file

petition for spouse.
Mentally incompetent United States citizen, acting through a legally appointed guardian, held eligible to file visa petition in behalf of beneficiary5—"i21.)
spouse. itiverrines mailer Of

BEFORE THE BOARD

DISCUSSION : The case comes forward on appeal from the order
of the District Director, New York District, dated August 17, 1961,
revoking pursuant to 8 CFR 206.2 the prior approval of the visa
petition on July 6, 1960, on the ground that a guardian of a mentally
incompetent citizen is not considered to be a person eligible to file
a visa petition.
The petitioner, a native of China, born September 8, 1920, was admitted at the port of Seattle, Washington, on June 27, 1934, as a
United States citizen under section 1993, Revised Statutes, as the
foreign-born son of a native-born citizen of the United States. His
citizenship status is conceded for the purpose of this proceeding.

The petitioner married the beneficiary, a native and citizen of
China, now 38 years old, on April 24, 1940, at Wong Leung Village,
Toyshan, China, and reentered the United States at Seattle, Washington, on May 11, 1941, as a United States citizen. The order of
the District Director indicates that the petitioner was adjudged an
incompetent on April 15, 1952, by the Superior Court of the State of
Washington for the County of King, and was committed to a mental

institution. L—K—K— was appointed his guardian on October 30,
1959, by the court, and on March 22, 1960, filed a visa petition as
guardian of the husband on behalf of the husband's wife for non-

quota status as the wife of a United States citizen. The petition was
approved by the District Director, New York District, on July 6,
1960, but was revoked on August 17, 1961, subsequent to notice served
on the guardian on July 11, 1961, on the ground that a guardian of
503

a mentally incompetent citizen is not considered to be a person eligible to file such a petition.
The revocation is apparently based upon the authority of Matter
of C—, 5-721 (1954), in which it was held that the guardian of a
mentally incompetent citizen is not eligible to file a visa petition. In
that case, nonquota status was sought on behalf of the incompetent's
children. It held that there was no provision in section 205 of the
Immigration and Nationality Act granting authority for the execution of a visa petition by a guardian and no provision in the pertinent
regulations, whereas there was in existence a regulation, 8 CFR
10.1(d),1 permitting a person or a guardian to file an application or a
petition on behalf of a son, daughter, or ward under 14 years of age.
The decision of the, Board in Matter of C , supra, was specifically ruled upon in the case of Moon S. Wong, Incompetent, by his

guardian Ad Litem, Kenneth Wong v. Hoy. 2 In that case the guardian filed a visa petition on behalf of the citizen's wife, a native and
citizen of China. Pointing out that the statute, section 205 of the
Immigration and Nationality Act, provides that any citizen of the
United States may file a visa petition, the court held that the wording in the statute was all inclusive and includes those who are suffering from disability, whether it ...)e from immaturity, physical impairment, or mental impairment ; and that legally, one who is unable
to act for himself because of disability acts through his guardian.
The court concluded that refusing the benefits of the statute to either
a mentally or physically ill citizen, whose need is perhaps greatest,
would not be consistent with the congressional "policy of maintaining the family union," nor would it conform to the mandate "any
citizen of the United States * * * may file a petition * * *."
As previously noted above, the regulations do permit a person or
guardian to file a petition on behalf of a son, daughter or ward under
14 years of age, whereas there is no regulation dealing with guardians of incompetents. However, upon consideration of the provisions of the statute, and in view of the legislative history making
provision for preferential treatment of close relations of United
States citizens and alien residents consistent with the well-established
policy of maintaining the family unit whenever possible, it is concluded that a construction which would deprive a citizen, unable to
act except through a guardian, of the benefits of the statute would
appear to be inconsistent with both the language of the statute and
its stated purpose. Accordingly, we shall adopt the construction of
the court in Wong v. Hoy, 173 F. Supp. 855, as superseding our prior
I Now 8 CFR 103.2.
2 173 F. Supp. 855 (S.D. Cal., 1959).
504

holding in Matter of 6,- , 5

721. The appeal will be sustained and
the visa petition approved for nonquota status on behalf of the
beneficiary.
ORDER: It is ordered that the appeal be sustained and the visa

petition be approved for nonquota status on behalf of the beneficiary.

505


Interim Decision #1860

MATTER

Or ZAVALA.

In SECTION 245 Proceedings
A-12920329
Decided by Acting Regional Commissioner August 1, 1963
Application for adjustment of status under section 245, Immigration and Nationality Act, as amended, will be denied in the exercise of discretion to a 31-yearold widow, a native and citizen of Honduras, who has 5 minor children residing in Honduras.

The application was denied by the District Director, New Orleans,
Louisiana, on June 27, 1963, and the case is now before this office on
certification for cons - rleration of the decision in accordance with Part
103.4, Title 8, Code of Federal Regulations.
Applicant is a 31-year-old widowed female native and citizen of
Honduras. She last entered the United States at New Orleans on
August 22, 1962, and was admitted as a temporary visitor for pleasure
for three months. This application, which was filed within two months
after her admission, has been denied in the exercise of discretion for the
reason that she has five minor children whom she left behind in Honduras and who need her care and protection. The District Director
concludes that her plans to bring the children to the United States as
permanent residents, coupled with the lack of her suitable employment
and the total insufficiency of her sponsor's affidavit of support, offer her
no satisfactory financial security in this country. As a further unfavorable factor, the applicant, since her entry into this country, has
been arrested by the New Orleans police.
The record reflects that the applicant has five children ranging in
ages from 8 to 15 years who are residing with their paternal grandparents in Honduras. At the time she entered the United States it was
her intention to seek permanent residence in this country if she liked
it here, after which she planned to bring them to the United States,
provided she was financially able to do so. Since being in the United
States she has not contributed to the support of her children and has
herself been supported in the main by funds received from her sisters
628

Interim Decision #1360
in Honduras. Since the denial of the application she has become employed as a domestic servant.
Applicant was arrested by the New Orleans Police Department together with another female three days after she entered the United
States and charged with theft of currency. The charge was dismissed
and the alien was released.
While the factor relating to the applicant's arrest is not pertinent
to the application, favorable exercise of the Attorney General's discretion is not warranted in this case as the approval of the application
would be to sanction the applicant's abandonment of her children. Accordingly, the District Director's decision will be approved and the
application will be denied.

ORDER: The decision of the District Director, New Orleans,
Louisiana, is approved and the application is denied.

629


Interim Decision #2566

MATTER OF GREAT WALL
In Visa Petition Proceedings
A-19784032
Decided by Acting Regional Commissioner March 16, 1977
(1) Petitioner sought to classify beneficiary for the issuance of an immigrant visa under
section 203(a)(6) of the Immigration and Nationality Act as a store manager at a salary
of 5850.00 per month. The record reveals that at the time the petition was filed the
petitioner did not and could not pay the proffered wage indicated in the job offer (Form
MA 7-50B) nor did the petitioner establish on appeal that he could and would be able to
pay the beneficiary the salary offered in the future.
(2) A visa petition for sixth-preference classification will be denied where it is found that
the beneficiary io not being- paid the wages specified in the Job Offer for Alien Employ
ment at the time the petition was filed becafise section 204(b) of the Act requires a
determination that all the facts stated in the petition are true before the petition may be
approved.
ON BEHALF OF PETITIONER: Ahvin S. M. Tan, Esquire
700 West Towers Building
1200-35th Street
West Des Moines, Iowa 52065

This matter comes forward on appeal from the order of the District
Director who on November 18, 1976, denied the petition for sicth

preference to classify the beneficiary as a store manager. The District
Director determined that the petitioner had failed to establish that Ile
was financially able to pay the salary rate as stated in the job offer.
The petitioner is an Oriental gift shop and food store. The beneficiary
is a 25-year-old male, single, native of China, and citizen of Hong Kong,
who last entered the United States as a nonimmigrant student. Review
.Dfhis Statement of Qualifications submitted with the petition and signed
D ecember 19, 1975, reflects that his major field of study from July 1970
through November 1974 was industrial engineering without receipt of a
degree. In January 1974 he began study at Simpson College and received a Bachelor of Arts Degree with an economics major on May 25,
1975.
The petitioner in his job offer, which is dated December 16, 1975,
stated he wished to hire the beneficiary as a store manager at the rate of
8350.00 per month for a 40 -48 -hour week. In the job offer and the
-

142

Interim Decision #2566
petition itself (filed with the Service on April 9, 1976) he stated that the
annual income of the organization was $50,000.00, and that there were
two to three other employees at the establishment. There is no question
that the beneficiary meets the requirements as set forth in the certified
job offer. The issue herein is whether the petitioner is qualified to proffer
the employment. It is noted that the petitioner's original request for labor
certification was denied on January 22, 1976, but the denial was reversed
on March 24, 1976, on the basis of the petitioner's assurance that the wage
offer would be increased.

Further Service inquiry of the petitioner's business revealed that
Great Wall, Inc., has issued $21,000.00 worth of common stock. Mr.
Shau Chung Hu, who signed the petition, owns $10,000.00, the beneficiary owns $10,000.00 and the beneficiary's sister owns $1,600.00
worth of stock in the company.
The beneficiary has also loaned the corporation $3,000.00 which admittedly was to cover operating expenses rather than for expansion of
the business. The source of these funds was his mother. The beneficiary
also admitted that although he had been employed by Great Wall, Inc.,
since September 1975, he had Tint received a salary as of September 14,
1976. It was further revealed that the two to three employees shown on
the petitioner's job offer were, in fact, two part-time employees. The
estimated inventory of Great Wall, Inc., as of September 14, 1976, was
$10,000.00. At that time the following total sales were shown in the
corporation's books:
November 1975 — $4,190.00
December 1975 — 8,278.00
January 1976 — 2,223.00
February 1976 — 1,802.00
March 1976
April 1976
May 1976
June 1976

— 2,086.00
— 1,700.00
— 1,736.00
— 2,222.00

There were no figures for July and August, 1976. Monthly rent for the
shop was $538.00, electricity $40.00—$100.00, and salary for the two
part-time employees was $200.00 $300.00 per month.

On appeal, the petitioner, through counsel, concedes that the shop
will not realize a profit, and, in fact, will suffer a loss. However, the
petitioner urges that a prospective view of the venture be taken since it
is relatively new. An uncertified income statement was submitted on
appeal covering the period June 1, 1975 to May 31, 1976, which reflects a
net loss (based on fiscal year) of $2,110.37. The petitioner also stated for
the record in a letter dated December 29, 1976, that the beneficiary is
now receiving his wages and will continue to receive them; however, no
142

Interim Decision #2566
evidence to support such claim has been produced. The brief on appeal,
among other things, stated that the beneficiary's salary will be paid in
stocks at the next annual meeting of the corporation.
The fact that the petitioner may, sometime in the future, be able to
pay the wage of $850.00 per month has been taken into consideration.
However, in visa petition proceedings the burden of proof to establish

eligibility rests with the petitioner (Matter of Brantigan , 11 I. & N.
Dec. 493). The record in the instant case reflects that at the time the
petition was filed with this Service the petitioner did not and could not

pay the offered wage. Prospectively, the petitioner has not conclusively
borne his burden and established on appeal that he can and will be able
to pay the beneficiary the salary of $850.00 per month as offered on
December 16, 1975.
The certification required by section 212(a)(14) of the Immigration
and Nationality Act, as amended, (the Act) was issued on March 24,
1976. At the time that Section 212(a)(14) was originally enacted, the
drafters of the Immigration and Nationality Act stated that the purpose
of the provision was "to provide strong safeguards for American labor
and to provide American labor protection against an influx of aliens

entering the United States for the purpose of performing skilled or
unskilled labor where the economy of individual localities is not capable
of absorbing them at the time they desire to enter this country." (Emphasis supplied.) H.R. Rep. No. 1365, 82nd Cong. 2nd Session (1952),
reprinted in (1952) U.S. Code Cong. & Ad. News 1705.
The petition, if approved, would establish a priority date as of the
date that the job offer (Form MA 7-50B) was accepted for processing by
any office within the employment service system of the Department of
Labor. In the instant case the priority date for visa issuance to the
beneficiary would be January 2, 1976, pursuant to Federal Lea -illations at
8 C.F.R. 204.1(c)(2).
Section 204(a) of the Act requires the filing of a visa_ petition for
classification under section 203(a)(6). Section 204(b) states, among other
things, "After an investigation of the facts in each case, and after
consultation with the Secretary of Labor with respect to petitions to
accord a status under Section 203(a)(3) or (6), the Attorney General
shall, if he determines that the facts stated in the petition are true

and

that the alien in behalf of whom the petition is made is . . . eligible for a
preference status under Section 203(a), approve the petition . . ." (Emphasis supplied.)
When a sixth-preference petition is filed, it seeks to establish that the
employer is making a realistic job offer to an alien who is Qualified, and
that the proposed employment will not displace United States workers
dL Lhe time the petition is filed. I du nut feel, nor du I believe the
Congress intended, that the petitioner, who admittedly could not pay
144

Interim Decision #2566
the offered wage at the time the petition was filed, should subsequently
become eligible to have the petition approved under a new set of facts
hinged upon probability and projections, even beyond the information
presented on appeal.
Eligibility for the preference being sought at the time of filing of the
petition was previously decided by the Regional Commissioner in Ratter of Katigbak, 14 I. & N. Dec. 45. I am aware that Katigbak is not
foursquare with the instant case in that the Regional Commissioner
considered the beneficiary's eligibility for third preference at the time
the petition was filed. However, it was determined that the beneficiary
must be qualified at the time the petition is filed with this Service if a
priority date for visa issuance is to be established.
In sixth-preference visa petition proceedings the Service must consider the merits of the petitioner's job offer, so that a determination can
be made whether the job offer is realistic and whether the wage offer
can be met, as well as determine whether the alien meets the minimum
requirements to perform the offered job satisfactorily. It follows that
such consideration by the Service would necessarily be focused on the
circumstances at the time of filing of the petition. The petitioner in the
instant case cannot expect to establish a priority date for visa issuance
for the beneficiary when at the time of making the job offer and the filing
of the petition with this Service he could not, in all reality, pay the
salary as stated in the job offer. See Matter of Sonegawa, 12 I. & N.
Dec. 612, wherein it is held that the petitioner must demonstrate financial ability to meet the wage requirements of the certified job offer.
The brief and documentation in support of the appeal before me do not
substantially challenge the initial material on file considered by the
District Director in his decision. I have carefully considered the entire
record in this matter and T concur with the findings of the District
Director. Accordingly, I will order that the appeal be dismissed.
The denial of this petition is without prejudice to the submission of a
new petition accompanied by a new labor certification establishing facts
as they now exist.
IT IS ORDERED that the appeal be and the same is hereby
dismissed.

145


Interim Decision #2527

MATTER OF MEJIA
In Deportation Proceedings
A-21327181

Decided by Board September 1, 1976
(1) In this case the immigration judge relied upon a Record of Deportable Alien (Form
1-213), an official Service record which bore the signature of a Service officer. Respondent did not challenge the reliability of this official record nor submit evidence to show
any impropriety in his arrest by customs officers or interrogation by a Service officer.
Absent proof that the Form 1-213 contains information that is incorrect or which was
obtained by coercion or force, that document is inherently trustworthy and would be
admissible even in Court as an exception to the hearsay rule as a public record and
report under Rule 803(8) of the Federal Rules of Evidence.
(2) Although evidence actually seized during an illegal arrest may be suppressed In a
criminal proceeding, the mere fact of illegal arrest has no bearing on a subsequent
deportation proceeding.
(3) The circumstances of respondent's arrest and detention by customs officers are not
relevant to the admissibility of the Record of Deportable Alien because it is an official
record of the Service which is admissible in deportation proceedings to show respondent's unlawful entry into the United States and constitutes the evidentiary basis for
finding that the respondent is deportable.
CHARGE:

Order. Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)l—Entered without inspection
ON BEHALF OF RESPONDENT:
Donald L. Ungar, Esquire
517 Washington Street
San Francisco, California 34111

ON BEHALF OF SERVICE:

Brian H. Simpson
Trial' ttorney

On April 22, 1976, we dismissed respondent's appeal from a decision of
an immigration judge dated December 19, 1975, finding the respondent
deportable and granting him voluntary departure. This case is now
before us on a motion to reconsider our previous decision. Counsel has
also requested us to grant a stay of execution of our order of April 22,
1976, pursuant to 8 C.F.R. 3.8(a) pending consideration of the respondent's motion to reconsider. Counsel has advised us that the respondent
isms filed a Petitinn fnr Review in the United States Court of Appeals for
the Ninth Circuit. The motion to reconsider and the request for a stay of
execution of our decision of April 22, 1976, will be denied.
6

Interim Decision #2527
The respondent is a 33-year-old single male alien, a native and citizen
of El Salvador. An Order to Show Cause issued on October 22,, 1975,
alleged that the respondent entered the United States without inspection near San Ysidro, California on or about January 1, 1972. At his
hearing, the respondent denied the factual allegations contained in the
Order to Show Cause and did not concede deportability. On the advice
of counsel, respondent refused to answer questions concerning the
charge claiming the privilege against self-incrimination under the Fifth
Amendment of the Constitution of the United States. He also did not
make an oral or written statement on the issue of his deportability.
In this case the immigration judge relied upon a Record of Deportable
Alien (Form 1-213) (Ex. 2). That report contained information that the
respondent was apprehended by a United States Customs Service patrol officer at Pier 50 in San Francisco, California, on October 22, 1975,
during a patrol of the pier area. The respondent was turned over to
officers of the Immigration and Naturalization Service on the same date.
During an interview by Service investigators, the respondent stated
that he last entered the United States on or about January 1, 1972,
without inspection; and that he was smuggled into the United States for
$150. The respondent stated to the Service investigators that he is
living with a woman who is the mother of his United States citizen child;
that he intends to marry this woman; and that he has three sisters who

are United States citizens.

At the hearing, Gary Patterson, the United States Customs Service
patrol officer who apprehended the respondent on October 22, 1975,
testified that during a routine stop of a truck on Pier 50 in San Francisco, he inquired of the respondent (one of the occupants of the truck) if
he was in the United States legally; and that the respondent replied to
the officer that he was not in the United States legally. Charles L.

Deatrick, a supervisory officer of the United States Customs Service,
testified that the respondent was detained by officers of the United
States Customs Service and subsequently turned over to two officers of

the Immigration and Naturalization Service who were identified as
"Guthrie" and "Smart."
Counsel argued at the hearing that the Record of Deportable Alien
(Form 1-213) was inadmissible as the product of an illegal seizure by
officers of the United States Customs Service. The immigration judge
properly rejected counsel's contention and overruled his objection to the
admissibility of the Record of Deportable Alien. Counsel raises the
same issue in his motion papers.
We note that courts have indicated that, although evidence actually
seized during an illegal arrest may be suppressed in a criminal proceeding, the mere fact of illegal arrest has no bearing on a subsequent

deportation proceeding. U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149
7

Interim Decision #2527
(1923); Avila-Gallegos v. INS, 525 F.2d 666 (2 Cir. 1975); MedinaSandoval v. INS, 524 F.2d 658 (9 Cir. 1975); Guzman-Flores v. INS,
496 F.2d 1245 (7 Cir. 1974). The contention that the physical presence of
an alien is "evidence" that may be suppressed as the "fruit of the
poisoned tree" if the alien was illegally arrested was flatly rejected by
the court in Guzman-Flores v. INS, supra, and to our knowledge has no
judicial support. See also Matter of Burgos and Burgos-Godoy, Interim
Decision 2375 (BIA 1970).
Exhibit 2, a Record of Deportable Alien (Form 1-213), is an official
Service record showing that the respondent is a native and citizen of El
Salvador who entered the United States unlawfully. That report bears
the signature of R. C. Smart, a Service investigator. Counsel has
submitted nothing to challenge the reliability of the official record.
Further, counsel has offered no evidence of impropriety in the respondent's arrest and detention by officers of the United States Customs
Service or his subsequent interrogation by an officer of the Immigration
and Naturalization Service. • In the absence of any proof that the Form
1-213 contains information which is incorrect or which was obtained by

coercion or force, we find that this form is inherently trustworthy and

would be admissible even in court as an exception to the hearsay rule as
a public record and report. Fed. Rules of Evid., Rule 803(8). See Matter
Tnterim Decision (BIA, August 23, 1976); Matter of
Swissair "Flight SR 168," Interim Decision 2403 (BIA 1975).
Furthermore, we conclude that the circumstances of respondent's
arrest and detention by United States Customs Service patrol officers
are not relevant to the admissibility of the Record of Deportable Alien.
The Record of Deportable Alien is an official record of the Service and
constitutes the evidentiary basis for finding that the respondent is

of Davila,

deportable. The United States Court of Appeals for the Ninth Circuit
has held that a Record of Deportable Alien (Form 1-213) is admissible in
deportation proceedings to show a respondent's unlawful entry into the
United States. See Trias-Heruandez v. INS , 528 F.2d 367 (9 Cir. 1975).
In view of the foregoing, we find no basis for reconsidering the
proceedings as requested. Furthermore, we conclude that the respondent's request for a stay of execution of our decision of April 22, 1976, is
unnecessary. Accordingly, the following order will be entered.
ORDER: The motion to reconsider and the request for a stay of
execution of our order of April 22, 1976, are denied.

8