Interim Decision #2923

MATIMIt. OF RUIS
In Deportatioxi Proceedings
A-31199203
Decided by Board September 80, 1982
(1) Section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), relates
to any entry made by an alien who fails to submit to inspection.
(2) A lawful permanent resident's deportability for entering without inspection may not
be prevented by his subsequent departure and readmission to the United States upon
presention of an Alien Registration Receipt Card.
(A) The immigration judge improperly terminated deportation proceedings against a lawful permanent resident who entered the 'United States without inspection and subse-

quently departed and returned with his Alien Registration Receipt Card.
CHARGE:
Order: Act of 1069—Sec. 541(o)(2)(6

1261(a)(0))--Enatered without inspection

ON BEHALF OF RESPONDENT:

ON BEHALF F SERVICE:

Vincent Agresti, Esquire
56-58 Ferry Street
Newark, New Jersey 07105

Joanna London
Acting Appellate •
Trial Attorney

By: Milhollan, Chairman, Maniatis, Dunne, Morris, and Vacca, Board Members

The Immigration and Naturalization Service has appealed from a decision of the immigration judge dated May 28, 1981, terminating the
proceedings against the respondent. The appeal will be sustained and
the record will be remanded to the immigration judge.
The respondent is a 41-year-old native and citizen of Colombia who
was admitted to the United States as a lawful permanent resident on
May 24, 1970. The record reflects that he left this country in order to
return to Colombia and reentered surreptitiously from Mexico on January 4, 1978, in order to accompany his fiancee who was without proper
documentatioh. The respondent was apprehended and on January 9,
1978, was convicted on a plea of guilty for aiding and abetting his fiancee
to make an illegal entry in violation of 18 U.S.C. 2 and 8 U.S.C. 1325.
On September 5, 1978, the Service issued an Order to Show Cause
charging the respondent with deportability under section 241(a)(2) of
the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), for entering
the United States without inspection. The record reflects that the respon320

Interim Decision #2923
dent departed from the United States on March 24, 1979, and returned
the next day, obtaining admission as a returning resident on the basis of
his Alien Registration Receipt Card (Form 1-151). The respondent claims
that he also went to Colombia on June 10, 1979, and was readmitted on
September 7, 1979.
On March 27, 1979, the respondent appeared for his deportation hearing and denied deportability. During the proceedings, he contended that
he was no longer subject to deportation on the basis of his entry without
inspection because he had subsequently made an entry as a lawful permanent resident:
The immigration judge terminated the proceedings, concluding that
section 241(a)(2) only applied to the last entry made by an alien and that
the respondent's entries in March and September of 1979 with his Form
1-151 eliminated entry without inspection as ground of .deportability.
In reaching this decision, the immigration judge relied on two 1965
cases issued by the Board which were not precedent decisions. Matter of
Romero, A10 553 849 (BIA 'Tune 8, 1965); Matter of Gutierrez, A8 405
405 (BIA. June 11, 1905). From these unpublished cases the immigration

judge reasoned that a h wful permanent resident alien who had entered
without inspection could avoid deportability by making a subsequent
entry with his Form 1-151. He further dismissed the Service's contention that only a new visa application made with full disclosure of the
respondent's entry without inspection would eliminate his deportability.
On appeal, the Service argues that the immigration judge improperly
terminated proceedings because the respondent should not be permitted to thwart the immigration laws by making an entry with his Form
1-151 solely to prevent deportation on the entry without inspection
charge. It is further contended that the immigration judge's reliance on
the unpublished Board cases is misplaced.
The issue before us, whether a deportation charge of entry without
inspection relates only to the alien's last entry, appears to be one of first
impression. The two unpublished Board decisions cited by the immigration judge do not mandate the rdsult sought by the respondent.' First,
in Matter of Rim, A13 197 al (BIA April 25, 1978), the Board withdrew from the relevant language in the two cases, finding it to have
been improvident. Furthermore, the cases did not stand for the proposition that only an alien's most recent entry can be the basis for an entry
without inspection charge. Accordingly, the unpublished decisions cited
by the immigration judge are not controlling on the question before us.
Section 241(a)(2) of the Act provides for the deportation of any alien in
the United States who:
' We note that only decisions designated for publication by the Board serve as precedentsin other'proceedirigs involving the same issue or issues. See 8 C.F.R. 3.1(g).
321

Interim Decision #2923
entered the United States without inspection or at any time or place other than as
designated by the Attorney Generator is in the United States in violation of this Act or
in violation of any other law of the United States.

The clear objective of this section is to protect' the integrity of the
boundaries of the United States by requiring every alien to submit to
inspection by immigration officials each time he enters this Country. See
Es parts Callow, 240 F. 212 (D. Colo. 1916); lA C. Gordon and H.
Rosenfield, Immigration Law and Procedure section 4;8b (1982); see
also, H.R. Rep. No. 1377, 82nd Cong., 2d Sess., reprinted in, [1952]
U.S. Code Cong. & Ad. News 1358, 1360. The Iaw requires not only that
aliens be admissible to the United States, but that all entries be made
pursuant to an inspection at an appropriately designated time and place.
This statutory mandate is not satisfied by the fact that an alien may
have been admissible had he properly presented himself for inspection
or that he was subsequently inspected and permitted to enter.
Nothing in the language of section 241(a)(2) indicates that Congress
intended to limit its applicability to the most recent entry made by an
alien. In this regard, we think it significant that, with respect to other
sections of the statute, any entry may provide the basis for depoitation.
See Belfrage v. Kenton, 224 F.2d 803 (2 Cir. 1955); Matter of C-, 4 I&N
Dec. 596 (C.O. 1952, BIA 1953); but see Bonetti v. Rogers, 356 U.S. 691
(1958) (membership in Communist party); Matter of Medina, 15 I&N
Dec. 611 (BIA 1976), affd Medina-Luna v. INS, 547 F.2d 1171 (7 Cir.
1977); Matter of C-, 5 I&N Dec. 370 (BIA 1953) (two crimes involving
moral turpitude); Matter of S-, 7 I&N Dec. 536 (BIA 1957) (failure to
notify Attorney General otiOress); Matter of P-, 5 I&N Dec. 651 (BIA
1 954) (narcotics conviction); see also section 101(a)(13) of the Act, 8
U.S.C. 1101(a)(13). The disposition of Congress to extend, rather than
limit, the applicability of this section is also reflected by the elimination
in the 1952 Act of previous statutory time limitations on deportation
after an entry without inspection. See sections 241(a)(2) and (d) of the
Act; cf. Act of Feb. 5, 1917, sec. 19(a), 39 Stat. 874; see also Barber v.
Hong, 254 F.2d 382 (9 Cir. 1958); Matter of A-, 6 I&N Dec. 540 (BIA
1955). Furthermore, the seriousness with which Congress regarded the

act of entering the:United States without inspection is evidenced by the
fact that criminal penalties have also been provided for the violation of

that offense. See section 275 of the Act, 8 U.S.C. 1325; see also H.R.
Rep. No. 1365, 82nd Cong., 2d Sass. 60, reprinted in, [1952] U.S. Code
Cong. & Ad. 'News 1653, ITA.
With these considerations in mind, we conclude that section 241(a)(2)
of the Act relates to any entry made by an alien who fails to submit to
inspection. Consequently, we find that the respondent's deportability
for entering without inspection is not prevented by the mere fact that he

departed and returned with his Form 1 151. To hold otherwise would be
-

322

Interim Decision #2923
to thwart the policies underlying the Act and to provide an opportunity
for aliens to violate our immigration laws with impunity.
We need not decide at this time whether an alien who has entered the
United States without inspection will be forever subject to deportation
in all circumstances.' See generally Matter of Rafipour, 16 I&N Dec.
470 (BIA 1975); Matter of Sanchez, 16 I&N Dec. 363 (BIA 1977); Matter
of R 0 , 8 I&N Dec. 128 (BIA 1958); Matter of S , supra. Under the
-

-

-

presented in this case, however, we conclude that the immigration judge improperly terminated the proceedings. The respondent
remains deportable for entering without inspection because his subsequent departute and return with a Form 1-151 does not eliminate the
grounds of deportability.
Accordingly, the decision of the immigration judge will be reversed
facts

and the record will be remanded to the immigration judge for further

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

We would note in this regard that the Service has prosecutorial discretion to decline to
without inspection
despite his possession of documents. See Operations Instructions 235.9; see also section
101(a)(13) of the Act. •
2

pursue the deportation of an alien who has entered the United States

323


Interim Decision #2851

MATTER OF SUGAY

In Bond Proceedings
A-23070977
Decided by Board February 18, 1981
(1) Notwithstanding that an immigration judge lowered bond after a redetermination
hearing, the District Director has authority under S C.F.R. 242.2(e) to increase the
bond later if there is a change of circumstances.
(2) Where, subsequent to the immigration judge's redetermination of bond, the respondent was ordered deported and was denied relief at a deportation hearing when it
was shown he had no fixed address, no stable employment, no close family ties, had
been convicted of murder in the Philippines and had fled while the case was on appeal,
had been arrested in the United States for wielding a knife, and had jumped from a
window to avoid apprehension by INS, there was a sufficient change of circumstances
to justify the District Director in increasing the bond, despite an immigration judge
having lowered it in the earlier bond hearing.
ON BEHALF OF RESPONDENT:
Eugene Chow, Esquire Simmons & Ungar
517 Washington Street

ON BEHALF OF SERvICC
Brian H. Simpson
Appellate Trial Attorney

San Fran cisco, California 94111

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

The respondent appeals from an order of the immigration judge,
dated December 19, 1980, denying the respondent's request for a
change in his custody status, and retaining the amount of bond set by
the District Director at $30,000. The appeal will be dismissed.
The respondent is a 34-year-old native and citizen of the Philippines
who last entered the United States on August 12, 1973, as a nonimmigrant visitor, admitted for a period not to exceed 6 months. The
nonimmigrant visa with which he entered the United States was
issued to someone other than the respondent. On February 15, 1979, an
Order to show Cause was issued against the respondent charging him
under section 241(a)(2) of the Immigration and Nationality Act, 8
U.S.C. 1251(a)(2), as a nonimmigrant alien not in possession of a valid
nonimmigrant visa or border crossing identification card and not
gq7

Interim Decision #2851
exempted from the pos session thereof.
At the respondent's first bond determination hearing, held on
February 16, 1979, the immigration judge lowered the amount of bond
set by the Immigration and Naturalization Service from $50,00-0 to
$20,000. At the hearing the Service presented evidence that the respondent had been convicted of murder in the Philippines on May 18,
1972, and had absconded from the country while the case was on appeal
there. The •respondent did not contest these allegations. The judge,
however, declined to retain the bond at $50,000 because the documents
presented by the Service had not been certified or authenticated_
At the respondent's deportation hearing, held on December 19, 1980,
he was found deportable under section 241(a)(2) based on his own
admissions and was denied relief under sections 243(h) and 244 of the
Act.' As a result of the deportation order the District Director elected
to revoke the respondent's release on $20,000 bond and subsequently
set bond at $30,000. In his decision dated December 19, 1980, the
immigration judge upheld this determination by means of an order
that any change in the custody status of the respondent be denied. The
judge based his decision on the following factors: the Service had
presented a proper conviction record for the respondent; the respondent had been ordered deported from the United States; and his application for relief under section 243(h) had been denied. The judge concluded that the likelihood that the respondent would abscond was far
greater than it had been at the prior bond redetermination hearing.
On appeal, the respondent, through counsel, offers the following
arguments as to why the original amount set for bond should not have
been revoked and subsequently raised an additional $10,000: (1) the
respondent has a long history of appearing in immigration court upon
request of the Service and has at all times been available and present
when called for a hearing; (2) the respondent's conviction of murder in
the Philippines was based on trumped up charges to punish him for his
participation in politic al demonstrations against President Marcos;
and (3) the respondent only fled from the Philippines because he
believed the prosecution and the judiciary were controlled by the
Marcos regime and he could not receive a fair review of his conviction.
The respondent also questions the authority of the District Director to
revoke a bond where the alien has already had a bond redetermination
hearing and the facts and underlying circumstances of the case are
virtually identical as they were at the time of the original hearing.
The Board has held that in determining the necessity for and the
amount of bond, among the factors to be taken into consideration are:
' Since an appeal is pending before the Board, the provisions of 8 C.F.R. 242.2(b) with
respect to custody for purposes of deportation are not applicable here.
638

Interim Decision #2851
stable employment history, length of residence in the community,
existence of family ties, a record of nonappearance at court proceedings, and previous criminal or immigration law violations. Matter of
Shaw, Interim Decision 2744 (BIA 1979); Matter of Spitiopoutos,16 I&N
Dec. 561 (BIA 1978); Matter of Patel, 15 I&N Dec. 666 (BIA 1976);
Matter of San Martin, 15 I&N Dec. 167 (BIA 1974); Matter of Moise,12
I&N Dec. 102 (BIA 1967); Matter of S—Y—L—, 9 I&N Dec. 575 (BIA

1962).
In the instant case, information elicited at the deportation hearing,
which took place subsequent to the immigration judge's reduction of
bond on February 16, 1979, reveals the following: the respondent has no
fixed address but rather, changes residences with great frequency; he
has not had any stable employment since 1978; his family in the United
States consists of a brother, presently incarcerated in Vacaville State
Prison for embezzlement, a sister, whose address is unknown to the
respondent, and a brother and sister residing in California, whom the
respondent visits occasionally. In addition to his conviction for murder
in the Philippines, the respondent has also been arrested in the United
States for brandishing a knife in conjunction with a confrontation
outside a bowling alley.' While it appears that the respondent has
consistently appeared for his recent immigration court hearings, we
note that he eluded the immigration officials for 6 years and jumped
out of a window in an effort to avoid apprehension. We also note that
after the respondent was convicted of murder in the Philippines he fled
the country while his case was on appeal)
We find without merit counsel's argument that the District Director
was without authority to revoke bond once an alien has had a bond
redetermination hearing. 8 C.F.R. 242.2(c) clearly states that "[w]hen
an alien, who, having been arrested and taken into custody, has been

released, such release may be revoked at any time in the discretion of
the District Director... , in which event the alien may be taken into
physical custody and detained." Counsel's contention that this power
could "undermine the impartial and independent decision of the immigration judge under section 242.2(b)" because "it gives the District
Director the opportunity to avoid ever having to file an appeal, since he
can always revoke a bond redetermined. by the judge" is addressed in
the second. part of the above-quoted code section. "The provisions of
paragraph (b) of this section shall govern availability to the respondent of recourse to other administrative authority for release from
custody." See 8 C.F.R. 242.2(c). The alien may, as he did in this case,
The incident did not result in any further criminal prosecution.
We find no support in the record for the respondent's claim that he was convicted on
trumped up charees due to his political activities.
2

Interim Decision #2851
again appeal the amount of bond set by the District Director, thus
assuring that the District Director does not act arbitrarily or
capriciously.
While we recognize counsel's argument that where a previous bond
determination has been made by an immigration judge, no change
should be made by a District Director absent a change of circumstance,
we find in the instant case that the newly developed evidence brought
out at the deportation hearing, combined with the fact that the respondent has been ordered deported and his applications for suspension and withholding of deportation were denied, represent a considerable change in circumstances which justify the District Director's
decision to raise the amount of bond. In reaching our conclusion we
have taken cognizance of the fact that the respondent is the father of
two United States citizen children who reside in this country. However, in view of the fact that the respondent is wanted for murder in
the Philippines and the overall quality of his record, we conclude, as
did the immigration judge, that a bond of $30,000 is warranted.. Accordingly, the appeal will be dismissed.
ORDER' The appeal is dismissed.

640


MATTER OF R

G

In EXCLUSION Proceedings
A-8945675
Decided by Board September 2, 1958
Excludability Specific statutory ground not required for exclusion of alien
who would immediately become deportable upon entry--Deportability — Section 241(a)(5) of 1952 act not a continuing ground of deportation when alien
is lawfully admitted for permanent residence.
—

(1) Notwithstanding lack of a specific statutory ground of exclusion, an alien
who upon entry would immediately become subject to deportation should
be found excludable. (Accord, Matter of V--, 56096/451, 1 I. & N. Dec. 293;
distinguished, Matter of V—, A 8613142, 7 I. & N. Dec. 565.)
(2) An alien deportable under section 241 (a ) (5) of the act (whether for
failure to comply with registration provisions of section 265 or because of
conviction under 18 U.S.C. 1546) would not again become deportable by reason of the same conduct when, following departure, he has been lawfully
-

admitted for permanent residence.
EXCLUDED:

Subject to deportation under section 241(a) (5) of the Immigration
and Nationality Act (8 U.S.C. 1251(a) (5) )—Convicted of violation
of 18 U.S.C. 1546.

BEFORE THE BOARD

Discussion: This case is before us on the Regional Commissioner's motion for reopening and reconsideration.
The applicant is a 23-year-old unmarried female, native and
citizen of Mexico. On April 10, 1955, she attempted entry by
representing herself to be G R , a citizen of the United States.
Upon interrogation on the same day, she admitted her alienage.
She pleaded guilty to a violation of 18 U.S.C. 1546 and on May
17, 1955, she was sentenced to imprisonment for 6 months but execution of the sentence was suspended. She departed from the United
States about 3 days later.
After obtaining an immigrant visa, the applicant on August 21,
1956, applied for admission for permanent residence. The special
inquiry officer was of the opinion that the applicant, if admitted
to the United States, would immediately become deportable under
section 241(a) (5) of the Immigration and Nationality Act (8 U.S.C.
1251 (a) (5)), and he concluded that she was inadmissible for that
reason. An appeal from that decision was dismissed by this Board
on October 23, 1956.

In his decision of September 10, 1956, the special inquiry officer
referred to certain appealing factors. The applicant's 9 brothers
and sisters, 5 of whom were born in the United States, and her
parents all now reside in this country. The alien members of the
family are lawful permanent residents. The special inquiry officer
stated that the applicant did not actually present the birth certificate of G—R--- on April 10, 1955; that she was encouraged
to attempt the illegal entry by another individual who did most
of the talking to immigration officers; and that, as of the date of
the excluding decision, the Service was no longer urging prosecution under 18 U.S.C. 1516 in such cases.
The Regional Commissioner's motion for reconsideration cited
, A-8613142, 7 I. & N. Dec. 565
our decision in Matter of V
(1957), and interpreted it to mean that even if an alien would be
subject to deportation proceedings after entry, he should not be excluded for that reason. It is true that a statement appears in headnote 3 of that decision that the contention that the alien was excluable under section 241(c) of the Immigration and Nationality
Act on the theory that if admitted he would immediately become
deportable, was rejected by the Board. Actually, the decision in
that case did not contain any discussion of whether the alien, if
admitted, would immediately become deportable under section 241
(c). We did not state that lack of a specific exclusion ground in
section 212(a) required an alien's admission notwithstanding that
he would immediately become subject to deportation upon entering
the United States; and the contrary has been the long-standing ad, 56096/451, 1 I. & N.
ministrative practice since Matter of V
Dec. 293 (1942). We adhere to the views stated there.
The factor which distinguishes Matter of V
, 7 I. & N. Dec.
565, from the case of the applicant is that there was a specific
statutory provision which rendered him inadmissible, that is, section 212(a) (19), whereas there is no specific paragraph of section
212(a) which requires the applicant's exclusion. In effect, our holding there was merely that the language of the exclusion provision
governs in exclusion proceedings and not the language of some
related deportation provision. In view of the foregoing, the question in the applicant's case resolves itself into whether she would
be deportable under section 241(a) (5) if admitted to the United
States.
The question stated above was previously considered by us in
Matter of S , A-10555066-7, 7 I. & N. Dec. 536 (1957). That
case involved two aliens who were also deportable under section
241(a) (5) of the Immigration and Nationality Act. We held that a
temporary absence would not defeat deportation but that, following
the lawful admission of the aliens for permanent residence, they
—

—

—

129

would not again be deportable by reason of the acts which had
previously formed the basis for deportation. There the aliens were
deportable under the first clause of paragraph (5) of section 241(a)
which relates to one who "has failed to comply with the provisions
of section 265 * '* *" whereas, the present applicant's deportability
is dependent upon the last clause of the same paragraph which
reads, "has been convicted under section 1546 of title 18 of the
United States Code." We can perceive no logical reason why
different rules should be applied to these two clauses of the same
statutory provision.
, supra, which might,
There is one statement in Matter of S
at first glance, be considered a factor distinguishing it from the
case of this applicant. It is a statement to the effect that if the
respondents should receive permission to reapply for admission
after arrest and deportation, they would not be ineligible for admission to the United States because of their violation of section
265. The decision itself shows that the respondents would not be
subject to deportation under section 241(a) (5) following their lawful admission for permanent residence and that this would be true
regardless of whether they were granted permission to reapply.
The reason the respondents needed permission to reapply was because the decision contemplated that they would be deported. A
grant of permission to reapply eliminates only section 212(a) (16) or
(17) as a ground of exclusion, and an alien granted such permission would still be inadmissible if he is excludable on some other
ground. There would be no statutory authority for applying a
broader scope to the grant of permission to reapply. Hence, the
, supra, means, (1)
above-mentioned statement in Matter of S
that the aliens would not be ineligible for admission to the United
States because of their violation of section 265, and (2) that they
will require permission to reapply following their deportation.
For the reasons stated in Matter of S
, supra, we hold that
the applicant will not be deportable under section 241(a) (5) following her lawful admission for permanent residence. Since it was
solely on the basis of her supposed deportability under section
241(a) (5) that the appliCant was excluded and inasmuch as she
appears to be otherwise admissible, we will grant the Regional
Commissioner's motion.
Order: It is ordered that the motion of the Regional Commissioner be granted.
It is further ordered that the order of this Board dated October
23, 1956, be withdrawn; that the alien's appeal from the special inquiry officer's order of September 10, 1956, be sustained; and that
she be admitted for permanent residence.
—

—

—

130


Interim Decision #2493

1Y1ATrEn. OF RAMOS

In Deportation Proceedings
A-20303516
Decided . by Board June 2, 1976
Where the record indicated that respondent was aware that he possessed United States
citizenship and had failed to come to the United States for a continuous period of at least
two years between the ages of 14 years and 28 years as required by section 301(b) of the
Immigration and Nationality Act, respondent lost his United States citizenship notwithstanding his claimed ignorance of the retention requirement of the statute.
CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C_ 1251 (02)1—Entered withoutinspection
ON BEHALF

OF RESPONDENT:

ON BEHALF OF SERVICE:

T,_ Ungar, Esquire
Phelan, Simmons & Ungar
517 Washington Street
San Francisco, California 94111

Brian H. Simpson
Dial Attorney

Donald

In a decision dated October 14, 1975, the immigration judge found the
respondent deportable, but granted him the privilege of voluntary departure. The respondent has appealed from that decision, contending
that he is a citizen of the United States and not subject to deportation.
The appeal will be dismissed.
Counsel has conceded that the respondent is deportable under section
241(a)(2) of the Immigration and Nationality Act, if he is an alien.
Consequently, the only issues on appeal involve the respondent's claim
to United States citizenship.
The respondent was born in August of 1939 in Mexico. His father was
a citizen of Mexico, but his mother was a citizen of the United States.
She had been born in Kansas in 1919, but had been taken to Mexico at
the age of two or three and had resided there until 1957 or 1958. The
parties agree that the respondent was a citizen at birth by virtue of
section 1993 of the Revised Statutes, as amended by the Act of May 24,
1934 (48 Stat. 797), which provided:
Sec. 1993. Any child hereafter born out of the limits and jurisdiction of the United
States, whose father or mother or both at the time of the birth of such child is a citizen of
671

Interim Decision #2493
the United States, is declared to be a citizen of the United States; but the rights of
citizenship shall not descend to any such child unless the citizen father or citizen mother,
as the case may be, has resided in the United States previous to the birth of such child.
In cases where one of the parents is an alien, the right of citizenship shall not descend
unless the child comes to the United States and resides therein for at least five years
continously immediately previous to his eighteenth birthday, and unless, within six
months after the child's twenty-first. birthday, he or she shall take an oath of allegiance
to the United States of America as prescribed by the Immigration and Naturalization
Service.
It is this provision which governs the respondent's acquisition of
United States citizenship. However, after the respondent's birth, Congress enacted several significant changes relating both to the acquisition
and retention of citizenship by persons born abroad. It is only the
changes to tie retention requirements which concern us here.
On the facts of this case, section 301(b) of the Immigration and
Nationality Act is the provision governing the retention requirements
applicable to the respondent. See generally sections 201(g) and (10,
Nationality Act of 1940 (Act of October 14, 1940, 54 Stat. 113'7); sections
201(a)(7), 301(b) and 301(e), Immigration and Nationality Act. Section
301(b) presently provides:
(b) Any person who is a national and citizen of the United States under paragraph (7)
of subsection (a) shell lose his nationality and citizenship unless (1) he shall come to the
United States and be continously physically present therein for a period of not less than
two years between the ages of fourteen years and twenty-eight years; or (2) the alien
parent is naturalized while the child is under the age of eighteen years and the child
begins to reside permanently in the United States while under the age of eighteen
years. In the administration of this subsection absences from the United States of less
than sixty days in the aggregate during the period for which continuous physical
presence in the United States is required shall not break the continuity of such physical
—

presence.

The respondent first entered the United States in January of 1973, at
the age of 33. At the hearing, counsel for the respondent conceded that
his client had failed to comply with the residency requirement, necessary for the retention of his United States citizenship, contained in
section 301(13,. A prima facie case of alienage was therefore established.
The respondent, bearing the burden of going forward with the evidence, then advanced two theories under which he claimed not to have
lost his United States citizenship. He contended (I) that he was ignorant
of the retention requirement and consequently that it should not apply
to him, and (2) that the government should be estopped from applying
the retention requirement to him because in 1957 his mother had been
advised by a United States consular official about the respondent's
citizenship, hit had not been advised about the retention requirement.
The immigration judge found• that the respondent was not in fact
ignorant of the residency requirement necessary for retention of United
672

Interim Decision #2493
States citizenship. The immigration judge therefore did not directly
address the legal contentions raised by counsel for the respondent. On
appeal, counsel has specifically declined to pursue his estoppel theory,
and the only contentions which we must address involve the respondent's claimed ignorance of the retention requirements.
The immigration judge found that the respondent had failed to come
forward with any believable evidence that he was unaware of the
retention requirements of section 301(b). The record indicates that any
information which the respondent may have had about those requirements would have come from his mother and his older brother after
their visit in 1957 to a United States consular official.
In 1973, the respondent's mother and older brother testified in the
deportation case relating to another brother of the respondent. Their
testimony, which was also taken before the immigration judge -who
handled the respondent's case, was to the effect that the consular official
had never informed them of the requirements for retention of United
States citizenship. That testimony was introduced as an exhibit at the
respondent's hearing. The immigration judge found the testimony of the
mother and older brother to be confusing and not worthy of beliet The
immigration judge also found. that the respondent was not a credible
witness.
On appeal, counsel stresses that the important question concerns the
knowledge of the respondent, not the knowledge of his relatives. Counsel argues that the limited contact which the respondent had with his
relatives after their 1957 visit to the consular official, as well as the
general lack of education of all of the respondent's family, strongly
'suggest that the respondent did not know of the retention requirements, even if his mother and brother had been so informed.
We, however, agree with the immigration judge that the respondent
has not shown that he was in fact ignorant of the retention requirements
relating to his United States citizenship. The respondent's older brother
did write to the rest of the family concerning the visit with the consular
official, and the respondent's mother did visit with her family in Mexico
after 1957. The record establishes that the respondent's family in general was quite interested m the status of particular family members with
respect to the United States. We find it difficult at accept the possibility
that every detail of the 1957 consular visit was not reported to the rest
of the family, including the respondent. 'In addition, we cannot infer' a
lack of knowledge from the respondent's failure to enter the United
States at an earlier date, because the respondent's family was admittedly ton poor to finance the journey from their village in Mexico to the
United States.
We recognize that the testimony of the respondent and the other
members of his family is consistent on the issue of whether or not they
673

Interim Decision #2493
received information on the retention requirements. The immigration
judge, however, found the witnesses to be incredible, and his finding is
entitled to considerable weight. Matter of Teng, 15 I. & N. Dec. 516
(BIA 1975); Matter of S—, 8 I. & N. Dec. 574, 576 (BIA 1960); Matter of
7'—, 7 I. & It. Dee. 417 (BIA 1957).
We have found that the respondent has failed to carry -his burden of
going forward with the evidence to show that he was ignorant of the
retention requirement associated with his United States citizenship.

Moreover, we have concluded that the respondent would have lost his
United States citizenship by virtue of his failure to comply with those
retention requirements, even if he was unaware of them.
Counsel argues that the respondent's alleged ignorance of the retention requirement is significant, because of the case law holding that a
person who is unaware that he possesses United States citizenship
cannot lose it. by performing an otherwise expatriating act. See Rogers
v. Patokoski, 271 F.2d 858 (C.A. 9, 1959); Matter of C—S—, 9 L & N.
Dec. 670 (A.G. 1962); Matter of C—A—, 9 I. & N. Dec. 482 (BIA 1961).
The respondent, however, was not unaware that he possessed United

States citizenship. The record shows that the respondent at least suspected that he had United States citizenship since the age of ten, and
that he clearly knew of his status after his relatives visited the consular
official in 1957. The cases relied on by counsel therefore are not in point,
and we need not now consider the questiom that would be presented if
the respondent had at all relevant times been ignorant of his claim to
United States citizenship. Cf. Petition of Acchione, 213 F.2d 845 (C.A.
3, 1954).
Counsel recognizes that the Supreme Court upheld the constitutionality of section 301(b) in Rogers v. Bellei, 401 U.S. 815 (1971). Counsel,
however, attempts to distinguish Bellei on the ground that the individual involved in that case was clearly aware of both his citizenship and
the retention requirements. Counsel evidently contends that ignorance
of the retention requirements alone is significant because of the Supreme Court's decision in Schneider v. Rusk, 377 U.S. 163 (1964).
In Schneider v. Rusk, supra, the Court declared unconstitutional the
expatriation of naturalized citizens merely for residing for several years

in a foreign country. The Court indicated that foreign residency was not
inconsistent with undiluted allegiance to the United States, and that the
distinction created by Congress between native-born and naturalized
citizens violated the equal protection guarantee contained in the Fifth
Amendment's due process clause.
Counsel for the respondent and the Service's trial attorney each
stress different aspects of the Court's decision in Schneider, attempting
either to analogize it to, or to distinguish it from, the ease at hand. We,
however, have our doubts concerning the precedential value to be
674

Interim Decision #2493
assigned Schneider in view of the Supreme Court's subsequent decision
in Afroyim v. Rusk, 387 U.S. 253 (1967). Furthermore, we have concluded thatRogers v. Bellei, supra, is controlling for our purposes, even
if Schneider retains some present-day relevancy.
The retention requirement of section 301(b) was upheld in the face of a

constitutional challenge in Bellei. The statutory framework governing
the respondent's citizenship makes no mention of an exception from the
residency requirement for an individual ignorant of that requirement.
Counsel is, in essence, attacking the constitutionality of the retention
requirement as applied to an individual who knows of his claim to
citizenship, but who does not know of the retention requirement. We
know of no court case dealing with this very issue, and we do not
entertain constitutional challenges to the statutes we administer. Matter of L—,4 L & N. Dec. 556 (BIA 1951). We hold that the respondent
lost his statutorily based United States citizenship when he failed to
comply with the terms of the statute. He is an alien, and subject to
deportation on the charge contained in the order to show cause.
ORDER: The appeal is dismissed.

Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 31 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event to
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

675


Interim Decision #2925

MATTER OF GUNAYDIN and KIRCALI
In Deportation Proceedings

A-23055205
A-23431315
Decided by Board October 27, 1982
(1) The status of a lawful permanent resident who has entered the United States without
inspection terminates only when the adjudication of his deportability becomes final in
administrative proceedings. Matter of M , 5 l&N Dec. 642 (BIA 1954), modified.
(2) A conviction for a deportable offense does not terminate the status of a lawful permanent resident_
(3) A lawful permanent resident alien who entered the United States without inspection
is not deportable upon subsequent reentry with a Form 1-151 under section 241(a)(1) of
the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as being excludable under
section 212(a)(20) of the Act. 8 U.S.C_ riP2(a)(20), far lark of 9 valid visa
-

CHARGE:

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)I—Exeludable at entry under
sec. 212(a)(20), I&N Act (8 U.S.C. 1182(a)(20))—No valid -visa
(Both respondents)
ON BEHALF OF RESPONDENTS:

ON BEHALF OF SERVICE:

Brian S. Lafferty, Esquire

Joanna London
Acting Appellate
Trial Attorney

56- 08 Deny Street

Newark, New Jersey 07105
BY:

Milhollan, Chairman; IVIaniatis, Dunne, Morris, and Vacca, Board Members

In a decision dated January 27, 1982, the immigration judge found the
respondents deportable under section 241(a)(1) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(1), as aliens who were excludable at
entry under section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20), for lack
of a valid immigrant visa. The respondents have appealed from that
decision. The record will be remanded to the immigration judge.
The respondents are both natives and citizens of Turkey who have
been accorded status as lawful permanent residents of the United States.
The record reflects that they left the United States to go to Canada on
September 5, 19F!. and, according to their own admissions, they reentered this country on Sispteinber 7, 1981. without submitting to :nspec226

Interim Decision #2925
tion. On September 8, 1981, both respondents were convicted of entering the United Stateg without inspection in violation of 8 U.S.C. 1325,
Orders to Show Cause were issued against the respondents on September 7, 1981, ehargingthem with deportability under section 241(a)(2)
of the Ad, 8 U.S.C. 1251(a)(2), for entering without inspection. On
October 29, 1981-, the respondents departed from the United States on

the advice of counsel for the admitted purpose of seeking readmission as
lawful permanent residents. The respondents returned to the United
States on October 30, 1981, and reentered the country upon presentation of their Alien Registration Receipt Cards (Form 1-151). The Ser-

vice issued new Orders to Show Cause on November 4, 1981, charging
the respondents with deportability under section 241(a)(1) of the Act for
excludability at entry under section 212(a)(20).
At deportatiOn proceedings, the respondents admitted each of the
allegations of the Orders to Show Cause but denied deportability. They
contended that as a matter of law they were not deportable for entering
without a valid immigrant visa because they were properly admitted as
lawful permanent residents at the time of their October 30, 1981, entry
which, they further. asserted, terminated their deportability for entry
5 I&N Dec. 642
without inspection. The Service relied on Matter of
(BIA 1954), to support its position that by making an entry without
inspection the respondents automatically terminated their lawful permanent resident status so as tb render their visas invalid.
In concluding that the respondents were not in possession of valid
immigrant visas when they made their second entry the immigration
judge declined to rely on Matter of M- alone, but determined that the
respondents' convictions constituted a sufficient adjudication of their
status to terminate their permanent residence.
In Matter of M-, supra, the Board stated in dicta that, in view of the
alien's entry without inspection, "it can no longer be said that his [lawful
' permanent resident] status has not changed. . . ." Subsequent to that
decision, we determined that an act which provides the basis for -a lawful

permanent resident alien's deportability does not itself terminate his
status. See Matter of Salmon., 16 I&N Dec. 734 (BIA 1978); Matter of
M-P-, 9 I&N Dee. 747 (BIA 1962); Matter of S-, 6 I&N Dec. 392 (BIA
1954, A.G. 1955); see also Matter of Mosqueda, 14 1&N Dec. 55 (R.C.
1972). Furthermore, in Matter of Lok, 18 I&N Dec. 101 (BIA 1981),
we held that an alien's lawful permanent resident status ends as a result
of his commission of a deportable offense only upon the entry of a final
order of deportation) In light of these decisions, we believe that the
I We noted in our decision that lawful permanent resident status may also change as a

result of rescission, relinquishment, departure under an order of exclusion or deportation,
and adjustment to nonimmigrant status. See Matter of Lok, supra, at n. 8.
327

Interim Decision #2925
language of Matter of M-, supra, relating to a change of lawful permanent resident status was improvident. Therefore, we shall withdraw
from the dicta in that case to the extent that it indicates that an entry
without inspection automatically results in the termination of lawful
permanent resident status. We now hold that the status of a lawful
permanent resident who has entered the United States without inspection terminates only when the adjudication of his deportability becomes
final in administrative proceedings. We find no reason to reach a contrary conclusion where a conviction for a deportable offense has occurred.
We conclude that the respondents were not deportable under section
241(a)(1) as aliens excludable under section 212(a)(20) at the time of
their entry. Therefore, the charge upon which the immigration judge
found the respondents deportable has not been sustained. However, the
respondents were also charged with deportability for their entry without inspection in the Orders to Show Cause of September 7, 1981, which
remain in effect. See Matter of Brown, 18 I&N Dec. 324 (BIA 1982).
We shall accordingly remand the record to the immigration judge for
further proceedings to determine the respondents' deportability under

section 241(a)(2) of the Act. See Matter of Ruts, 18 I&N Dec. 320 (BIA
1982).
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion.

. 328


Interim Decision #2087

MATTER OF MINCHEFF
In Exclusion Proceedings
A-12343764
Decided by Board September 17, 1970 and June 22, 1971
Where applicant, a native and citizen of Argentina, who was admitted for
permanent residence in 1961; who registered with the Selective Service
and was classified 1–A in 1965; and who in January 1967 requested exemption from U.S. military service under the treaty with Argentina, following which the Selective Service System (mistakenly concluding that
under the 1951 amendment to the Selective Service laws it was powerless
to grant a permanent resident complete exemption) cancelled the induction
order, again classified him 1–A (in which classification he has remained),
and indefinitely postponed further processing of his case, he was not effectively relieved from military service within the meaning of section 315(a)
of the Immigration and Nationality Act so as to become ineligible to citizenship thereunder; hence, he was not inadmissible under section
212(a) (22) of the Act upon his return to this country from a brief trip
abroad in 1967. While the right of a treaty alien to claim and obtain
effective relief from military service may now be regarded as settled
(Opinion of the Attorney General, 42 Op. Atty. Gen. 28 (1968) ; endorsed
in Itzcovitz v. Selective Service Local Board No. 6, 301 F. Supp. 168 (S.D.
N.Y., 1969), appeal dismissed as moot, 422 F.2d 828 (C.A. 2, 1970) ), this
was not the case at the time applicant applied for relief and obtained indefinite postponement of his induction in early 1967.
EXCLUDABLE: Act of 1952—Section 212(a) (22) [8 U.S.C. 1182(a) (22)]—
Alien ineligible to citizenship.
ON BEHALF OF APPLICANT:
Eric L. Keisman, Esquire
277 Park Avenue
New York, New York 10017
(Brief filed)

ON BEHALF OF SERVICE:

Solomon Isenstein
Acting General Counsel
Irving A. Appleman
Appellate Trial Attorney

Jack Wasserman, Esquire
Warner Building
Washington, D.C. 20004

John P. Ruggiero
Trial Attorney
(Brief filed)

715

nterim Decision #2087
BEFORE THE BOARD

(September 17, 1970)
This is a Service appeal from an order of a special inquiry
fficer admitting the applicant to the United States as a returning
'esident alien. The special inquiry officer concluded that the appliant had not been effectively "relieved" from service in our
trmed forces within the meaning of section 315 (a) of the Immi;ration and Nationality Act and was, therefore, not inadmissible
order section 212 (a) (22) of that Act as an alien ineligible to citiTnship. We concur in that conclusion and dismiss the appeal.
The facts are not in substantial dispute. The applicant is a 24
year old male alien, a native and citizen of Argentina, who is
married to a permanent resident of the United States. He first
entered the United States on September 17, 1961, when he was
admitted as an immigrant. On attaining the age of 18 he registered under the Selective Service laws with his local draft
board. On March 17, 1965 he was classified 1—A, the classification
given a registrant who is immediately available for induction. He
passed his pre-induction physical examination and on January 10,
1966 he was ordered to report on January 25, 1966 for induction
into our armed forces.
As previously instructed by the Argentine consul in New York
City, the applicant brought his induction order in to the consul.
The latter sent it to the Argentine Embassy, which arranged
through the State Department to invoke in the applicant's behalf
of the exemption provisions of our treaty with Argentina. On
January 21, 1966, the applicant was notified by his draft board
that his induction was postponed until further notice. Later that
year, he was notified by the Argentine consul that he had been
called up for service in the Argentine army and he was directed
to report in Argentina for induction on March 2, 1967.
In the meantime, because of a change in our Selective Service
System procedures, the applicant was notified that he must submit a written request if he wished continued postponement of
his induction into our armed forces. In a letter dated November
16, 1966, his draft board told him, among other things:
,

We have now been advised by the Director of Selective Service that in
order for administrative action to be taken to continued [sic] the postponement of your induction, it will be necessary for you to sign the attached request, in duplicate, for relief from military service on the basis of your alien
status . . . If you decline to sign such statement, or if these forms are not
received within thirty days, your postponement will be terminated, and you
will be directed to report for induction under your outstanding Order to Report for Induction. [Emphasis supplied]

716

Interim Decision #2087
If you request exemption by signing the attached forms, the Director of
Selective Service has requested the Local Board to reopen your classification
and classify you anew, and if you are again classified 1A subsequent processing in your case will be held in abeyance until further notice [Emphasis
supplied].

Enclosed was the formal exemption request.
Having failed to submit the required written request, the applicant was ordered to report for induction on January 16, 1967. He
reported as directed, explained his dilemma concerning the Argentine draft call, and was told his only remedy was to return to
his local draft board and sign the exemption form. He telephoned
the Argentine consul from the draft board and was told to sign
the form. He asked the consul whether he would have trouble returning to this country if he signed the form and was told he
would not. He thereupon executed the request for relief (Exhibit
5 (b) ). Two days later, a reentry permit was issued to him, valid
to January 18, 1968. On February 9, 1967, he was again classified
1—A and further processing was postponed. So far as appears
from the record, he is still classified 1—A.
On January 27, 1967, the applicant left the United States.
After visiting briefly with his wife's relatives in Brazil, he served
in the Argentine army for four months. On his return to the
United States, his right to readmission was questioned and he
was given a hearing before a special inquiry officer, who ordered
him admitted. On this appeal, the Service contends that on this
record that decision was erroneous.
The principal question presented is whether the applicant was
"relieved" from service in our armed forces within the meaning
of section 315 (a) of the Act. 1 The statute presents a two-pronged
requirement before an alien is rendered ineligible to citizenship:
an application for exemption plus actual relief from service. The
cases have held that, to debar, the relief must be "effective."
In exchange for permanent ineligibility to citizenship, the
alien must achieve permanent exemption from military serv1 Sec. 315. (a) Notwithstanding the provisions of section 405(b), any alien
who applies or has applied for exemption or discharge from training or
service in the Armed Forces or in the National Security Training Corps of
the United States on the ground that he is an alien, and is or was relieved
or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States. [Emphasis supplied].
(b) The records of the Selective Service System or of the National Military Establishment shall be conclusive as to whether an alien was relieved
or discharged from such liability fur training or service because he was an
alien.

717

Interim Decision #2087
ice; mere temporary postponement of induction will not do. 2 We
have viewed the action of the Selective Service System in the applicant's case in the light of the legislative and administrative
history of draft exemption. We conclude that what the applicant
received from his draft board was less than the permanent exemption which alone constitutes effective relief from military
;ervice.
The United States is a party to a number of treaties with varous nations containing reciprocal provisions for draft exemption
or their respective nationals. Article X of the Treaty of Friendhip, Commerce, and Navigation with Argentina, dated July 27,
853, 10 Stat. 1005, T.S. No. 4, grants exemption from compulory military service to citizens of Argentina residing in the
Jnited States. This bounty was formerly available to such treaty
liens even though they were permanent residents of the United
tates. In 1951, some doubt was cast on the continued availability
f such exemption to permanent resident treaty nationals. In that
ear, Congress amended the Selective Service laws to provide
iat ". . . aliens admitted for permanent residence in the United
bates shall not be so exempted," 50 U.S.C. App. §456(a) (1964).
Conflicting views were expressed among the courts and the Exutive Departments whether the 1951 legislation altered the
.eexisting treaty provisions. 3 The Selective Service System adTed to the view, that, under the 1951 amendment, it lacked
wer to exempt permanent resident treaty nationals.' Pending
, ngressional consideration of bills sponsored by the State Dertment which would have clarified the exemption power, the
lective Service System adopted internal unpublished procedures
ereby permanent resident treaty aliens classified 1—A would
itinue to be called for induction, but the induction order would
cancelled if they signed a written request for relief. If ineligifor any other classification, they would continue in class 1—A
further processing would be postponed until further notice.
'he Selective Service memorandum dated November 10, 1966
he applicant's local draft board concerning his case (Exhibit
page 23) contains the following significant admonition: " .. .
United States v. Hoellger, 273 F.2d 760 (2 Cir., 1960) ; Cannon v. United
es, 288 F.2d 269 (2 Cir., 1961) ; In re Rego's Petition, 289 F.2d 174 (3
1961) ; United States v. Lacher, 299 F.2d 919 (9 Cir., 1962).
?or a detailed exposition of the conflicting judicial and administrative
s, see 42 Op. Att'y Gen. No. 28 (1968) and Itzcovitz v. Selective Service
1 Board No. 6, 301 F. Supp. 168 (S.D.N.Y., 1969).
'he Selective Service System's position is set forth at some length in
1 Aspects of Selective Service (1969), at pp. 21-23.

718

Interim Decision #2087
You are reminded that a permanent resident alien is not eligible
for Class IV—C on the basis of a request for exemption ..."
The question was finally settled on April 1, 1968 in an opinion
of the Attorney General, 42 Op. Att'y Gen. No. 28. In it, he concluded that the power to exempt permanent resident aliens still
exists under the treaties as an independent source of law distinct
from the Selective Service statute; and that an alien who applies
for and is granted such relief faces the bar of sections 315
and 212 (a) (22). The Director of Selective Service remained
unconvinced 5 and when the question was next raised in court, a
brief amicus curiae expressing his disagreement was filed in his
behalf. The court adhered to the views set forth by the Attorney
General, Itzcovitz v. Selective Service Local Board No. 6, 301 F.
Supp. 168 (S.D. N.Y., 1969), appeal dismissed as moot, 422 F.2d
828 (2 Cir., 1970).
While the right of a treaty alien to claim and obtain effective relief from military service may not be regarded as settled, this
was not true at the time the applicant in this case applied for relief and obtained cancellation of his induction order in early 1967.
In granting him this lesser form of relief, the Selective Service
System gave him as much as it felt it had power to give under
the law; but this was substantially short of the permanent exemption which alone can constitute effective relief under the court decisions.
As the special inquiry officer points out in his exhaustive and
well-reasoned opinion, there is a significant difference between
the permanent exemption accorded an alien placed in Class IV C
and the temporary relief which may be made available to an alien
classified 1—A by postponing his induction. See Application of
Mirzoeff, 253 F.2d 671 (2 Cir., 1958) ; In re Naturalization of
Mirzoeff, 196 F. Supp. 230 S.D.N.Y., 1961). Under the twopronged requirement of section 315 (a), only those aliens who
achieved permanent exemption by being classified IV—C have
been held by the courts to be within the statutory bar. See, e.g.,
Lapenieks v. INS, 389 F.2d 343 (9 Cir., 1968), cert. denied 391
U.S. 951; Ungo v. Beechie, 311 F.2d 905 (9 Cir., 1963), cert. denied 373 U.S. 911; In re Thanner, 253 F.Supp. 283 (D. Colo.,
1966).
The evidence is uncontroverted that from the time of his initial
classification to the present time the applicant has always been
classified 1—A. The action of the draft board in continuing him in
this classification and suspending further processing "until fur—

5

Id., p. 22.

719

Interim Decision #2087
ther notice" provided him with a form of relief which was illusory at best. It is beside the point to say that the Selective Service System gave him as much relief as it felt it had power to
grant. That was the agency which had sole authority to grant or
withhold exemption, and that is the agency with which he dealt.
Although it may have been mistaken in its conclusion that it was
powerless to grant him permanent relief from military service,
the fact remains that all it did accord him, by its own account,
was a temporary postponement of induction.
While the facts of this case are somewhat different, what the
court said in In re Rego's Petition, 289 F.2d 174, 175-176 (3
Cir., 1961), seems particularly apropos :
. . . Thus, the result of his efforts to obtain exemption was not the avoidance of compulsory military service but only the postponement of such required service for several years. To postpone induction in this way is not, in
our view, to "relieve" the individual of the required service. It is possible to
interpret relief from military service as broad enough to include such postponement of service. But the more normal reading of the language [of sec,ion 315 (a) of the Act] limits the conception of relief from service to a suc!essful permanent avoidance of that imposition.
It is also to be considered that the deprivation of the privilege of
acquiring citizenship, which an alien in permanent residence normally enoys, is a substantial penalty. A statute which attaches such a penalty to
ertain conduct should be construed strictly to avoid an imposition which
oes beyond the manifest intent of Congress . . . Certainly such a statute
hould not be given an unnecessarily broad construction in order to make it
pply to circumstances not plainly covered.
.

The applicant is returning to an unrelinquished permanent reslence in the United States. In these proceedings, then, the buren is on the Service to establish that he is inadmissible. 6 In our
iew, the evidence is insufficient to sustain the Service's burden
[ proving that he was effectively relieved from service within
te meaning of section 315 of the Act.
This conclusion makes it unnecessary for us to consider the apicant's claim that he was really seeking temporary deferment as
stinguished from permanent exemption' or his contention that
s return to the United States does not constitute an "entry". 8
Accordingly, we will 'dismiss the appeal.
ORDER: It is ordered that the appeal be and it is hereby
smissed.
s Kwong Hai Chew v. Golding, 344 U.S. 590 (1953) ; Kwong Hai Chew v.
gers, 257 F.2d 606 (D.C. Cir., 1958).
' Cf. Moser v. United States, 341 U.S. 241 (1951).
Cf. Rosenberg v. Fleuti, 374 U.S. 449 (1963).

720

Interim Decision #2087
BEFORE THE BOARD

(June 22, 1971)
This is a Service motion for reconsideration of our order of
September 17, 1970, dismissing a Service appeal from a special
inquiry officer's order admitting the applicant to the United States
as a returning resident alien. Execution of our order has been
stayed pending decisions on the motion for reconsideration. For
the reasons stated below, the motion for reconsideration will be
denied.
The facts of the case have been fully stated in our order of
September 17, 1970 and need not be fully repeated.' The applicant, a native and citizen of Argentina lawfully admitted to the
United States in 1961 for permanent residence, registered under
our Selective Service laws and was classified 1—A. Ordered to report for induction, on January 16, 1967, he filed a formal request
for relief pursuant to our 1853 Treaty with Argentina. Mistakenly concluding that under the 1951 amendment to the Selective
Service laws it was powerless to grant a permanent resident complete exemption, the Selective Service System continued his 1—A
classification but withdrew his order to report for induction until
further notice.
The question presented is whether the applicant was effectively
"relieved" from service within the meaning of section 315 (a) of
the Act, so as to become ineligible to citizenship thereunder and
thereby inadmissible under section 212 (a) (22) on his return
from a brief trip abroad. After an exclusion hearing, the special
inquiry officer concluded that the applicant had not been effectively relieved and ordered his admission. Our order of September 17, 1970 dismissed the Service's appeal from that order. In its
motion for reconsideration, the Service challenges our prior decision on several grounds, which we shall discuss briefly.
1. The Service contends initially that the applicant was
exempted from military service as a matter of law under the
treaty, citing Itzcovitz v. Selective Service Local Board No. 6, 301
F. Supp. 168 (S.D.N.Y., 1969) . That case held that an alien so
circumstanced is entitled to exemption, not that exemption is au1 We are informed by the Service that since our order of September 17,
1970, the applicant has departed from the United States briefly and on his
return has been enlarged on parole pursuant to section 212(d) (5) of the Immigration and Nationality Act. Such departure and return do not, in our es
timation, moot the issue pending before us.

721

Interim Decision #2087
tomatic. The Service attempt to equate a legal right to exemption
with effective relief as a matter of law flies in the face of reality.
The fact remains that the Selective Service officials mistakenly
concluded that a permanent resident alien had no such right, and
Itzcovitz had to go to court to establish his claim.
Similarly untenable is the Service view that the "not effectively
relieved" holding of the courts applies only where the alien is actually inducted into our armed forces. 2 Whatever surface plausibility that view may have previously had is now undermined by
the Supreme Court's recent decision in Astrup v. INS, 402 U.S.
509, 39 L.W. 4610 (No. 840, October Term, 1970, May 24, 1971).
In that case, a permanent resident alien who had applied for exemption and had been classified IV—C was reclassified 1—A following enactment of the 1951 amendment barring exemption for permanent residents. On physical examination, he was found to be
unfit, was reclassified IV—F and was never inducted. The Court
stated (39 L.W. at p. 4611) : "We think that Congress used the
words 'is or was relieved' to provide that an alien who requests
exemption from the military service be held to his agreement to
relinquish all claims to citizenship only when the Government
abides by its part of the agreement and completely exempts him
from service in our armed forces." (Emphasis in original.) Unlike
Astrup, who had for a temporary period enjoyed exempt Class
IV—C status, the applicant in the case before us has never been
classified other than 1—A.
2. Equally untenable is the Service thesis that the applicant
was accorded de facto exemption. The assertion that the conclusive
effect given to Selective Service System records by section 315 (b)
of the Act settles the matter merely begs the question. Analysis
of those records in evidence reveals that what the applicant actually received fell considerably short of complete exemption.
While the form submitted to him for signature refers to
"exemption" 3 and while this term appears in the correspondence
between Selective Service and Immigration Service officials, it is
significantly lacking in the communications addressed to the applicant himself, advising him what he would receive in exchange
for his application. He was told that he must sign the application
2 E.g., United States v. Hoellger, 273 F.2d 760 (2 Cir., 1961) ; Cannon v.
United States, 288 F.2d 269 (2 Cir., 1961) ; In re Rego's Petition, 289 F.2d
174 (3 Cir., 1961) ; United States v. Lacher, 299 F.2d 919 (9 Cir., 1962).
3 The use of the term "exemption" in the application form and in the letter to the applicant should not be surprising, since that is the statutory
erm which calls into play the bar of section 315(a).

722

Interim Decision #2087
form if he desired continued "postponement" of induction, and
that if he signed the form and continued in 1—A classification,
"subsequent processing in your case will be held in abeyance until
further notice." This is a far cry from the "complete exemption"
which the Court in Astrup, supra, held can alone invoke the bar
of section 315(a).
3. In support of its contention that the applicant was in fact
effectively relieved, the Service cites a line of cases holding that
even de facto relief accorded through a mistake in law is sufficient to meet the requirements of section 315 (a). 4 The cases are
readily distinguishable, both in fact and in principle. In those
cases, the aliens had been mistakenly placed in exempt Class
IV—C, a classification which the courts later concluded they were
not entitled to under the law. Nevertheless, the courts held, the
fact that the aliens had actually been given the relief they had
applied for brought into play the statutory bar.
The applicant's case is quite different. He was never granted
the complete exemption he applied for. In his case, the mistake of
law, far from conferring on him an exempt status to which he
was not legally entitled, actually deprived him of the complete exemption to which he was legally entitled. In the cited cases, the
courts properly held that de facto relief, mistakenly granted, nevertheless constitutes effective relief for section 315 (a) purposes.
It by no means follows that where exemption is withheld through
a mistake of law, the statutory bar is equally applicable.
In closing, we must correct a Service misconstruction of our
prior order. 5 In that opinion, we nowhere implied that the Attorney General's Opinion, 42 Op. Att'y Gen. No. 28 (1968), and the
Itzcovitz decision do not govern in this case. Quite the contrary,
we pointed out that the Attorney General's Opinion had finally
settled the issue and that the court in Itzcovitz had endorsed the
Attorney General's conclusion and rejected the contrary views of
the Selective Service Director. What we did stress was that when
the applicant sought relief in early 1967, the issue was not yet resolved and the Selective Service officials misakenly concluded that
4 In re Skender's Petition, 248 F.2d 92 (2 Cir., 1957), cert. denied 355 U.S.
931; Rosio v. Shaughnessy, 134 F. Supp. 217 (S.D.N.Y., 1954).
5 (Motion for Reconsideration, p. 6) : "The implication in the Board decision (p. 5) that the Attorney General's Opinion and Itzcovitz do not govern
in this case, because they came after Mincheff was relieved from military
service, is disturbing. In all significant aspects the facts in Itzcovitz are the
same as here. There is no reason why a different rule of law should apply.
If Itzcovitz was exempted, as the court held, then equally, Mincheff received
exemption."

723

Interim Decision #2087
they lacked power to grant him complete exemption. It is this
fact which underlies our conclusion that what the draft board actually gave him fell substantially short of the permanent exemption which alone can constitute effective relief for section 315 (a)
purposes.
ORDER: The Service motion for reconsideration is denied.

724


MATTER OF 0

In DEPORTATION Proceedings
A-1287626
Demoted by Board November 20, 1959

Relief under section 5, Act of September 11, 1957, not available to aliens in
United States who failed to qualify for preexamination by June 30, 1959.
Relief under section 5 of Act of September 11, 1957, having been available to
aliens in the United States only when eligible for preexamination, an alien
who failed to qualify for preexamination by June 30, 1959 (terminal date
established by regulation) is precluded from obtaining reconsideration of
previously denied section 5 application.
CHARGES :
Warraut. Act of 1952—Section 241 ( a ) (1) LS U.S.C. 1251 (a ) (1)—Immi-

Lodged:

grant, no immigrant visa.
Act of 1952—Section 241(a) (12) [8 U.S.C. 1251(a) (12)]—Manager of house of prostitution after entry.
Act of 1952—Section 241(a) (12) [8 U.S.C. 1251(a) (12)1—Connected with management of house of prostitution after entry.
Act of 1952—Section 241(a) (1) [9 U.S.C. 1251(a) (1 )]—Convicted
of crime or misdemeanor prior to entry, to wit, operating house
of Ill fame and prostitution.

BEFORE THE BOARD

Discussion : Respondent is married, male, a native and national of
Russia, who last entered the United States at Miami, Florida, in
1950 following a brief visit to Cuba for pleasure. Respondent
first entered the United States on November 00, 1900, at 10 years

of age, accompanied by his family, and was admitted for permanent residence. Respondent has admitted that at the time of his
last entry he claimed to be a ri I izp,n of the United States and was
admitted as such by the primary inspector. This case has not
previously been before the Board, although the warrant for the
arrest of the alien was issued on February 3, 1953.
On February 13, 1953, the special inquiry officer found respondent to be deportable on the first charge set forth in the warrant of
arrest, as an alien who entered without presenting a valid visa
or other document, and under the lodged charge, in that: he i s a
person who has been convicted of a felony or other crime or mis-

demeanor involving morel turpitude prior to entry, to wit, operating a house of ill fame and prostitution. The special inquiry officer
ordered him deported and denied the application for discretionery
relief and voluntary departure on the ground that his conviction
for the offense of operating a house of ill fame and prostitution,
having occurred within the preceding 5 years, precluded the finding
of good moral character.

On the basis of respondent's marriage on January 13, 1959, to a
native United States citizen, the special inquiry officer ordered that
the outstanding warrant of deportation against respondent be withdrawn and granted the motion to reopen the proceedings to permit •
him to apply for voluntary departure with preexamination. On
May 11, 1959, the special inquiry officer found that respondent, married to a native-born United States citizen, is eligible for a non
quota status and issuance of an immigrant visa ; that the respondent's wife would file a visa petition in his behalf; that respondent
]tad filed an application for pretiAamination, and granted respondent voluntary departure with preexamination. The special inquiry
officer stated further that the respondent had filed an application for
preexamination "so that he may adjust his immigration status under
that procedure by obtaining an immigrant visa from a consul in
Canada after he receives his nonquota status." There is no mention
in that order of section 5 of Public Law 85-316. However, on
June 12, 1959, respondent was notified by the special inquiry officer
that he could appear before that officer on June 16, 1959, at Jacksonville, Florida, for hearing in connection with his application for a
waiver (of certain excluding provisions) under section 5 of the
Act of September 11, 1957 (Public Law 85-316). The purpose
of this hearing, respondent was informed, was to afford him an
opportunity to establish that his exchmion or deportation would
result in extreme hardship to his United States citizen spouse,
children, de. The special inquiry officer was informed by the
alien and by counsel that respondent could not appear in Jacksonville for the hearing on June 16. The special inquiry officer told
the alien that if he appeared in Miami on any business day before
July 1, 1959, his hearing would be completed, but that the special
inquiry officer would not again be in Jacksonville or Pensacola
before July 1, 1959. Respondent did appear on June 30, 1959, at
4 :10 P.M., which was the last day on which the relief of preexamination was available under the regulations.
The special inquiry officer on June 30, 1959, denied respondent's
application for a waiver under section 5 of the Act of September 11,
1957, as a matter of discretion, stating that respondent, while seeking a benefit from the Service, concealed three arrests during the
recent past, indicating that he has not rehabilitated himself, or
479

shown respect for the orderly processes of law, criminal or administrative, and is not yet ready to receive the privilege of residing permanently and legally in this country and petitioning one
day for United States citizenship. The special inquiry officer
granted respondent voluntary departure in lieu of deportation and
certified the case to this Board.
Following the decision of the special inquiry officer on June 30,
1959, respondent retained present counsel who filed a motion with
the special inquiry officer for rehearing and reconsideration, and
also filed a statement to accompany the record to this Board in the
event that rehearing and reconsideration should be denied. He enclosed letters of character reference relating to respondent. In oral
armiment before this Board the Service Representative argued that
the special inquiry officer's denial of preexamination was proper on
the merits. He also requested the Board to consider the motion
for reopening and rehearing on the ground that preexamination is
no longer available.
The Act of September 11, 1957, Public Law 85-316, section 5, w as
applied to aliens in the United States only where eligible for preexamination. A terminal date was then provided by regulations.
8 CFR 235a.1, issued September 1, 1958, provided that an application for preexamination must be made prior to August 21, 1958.
That time was extended by 8 CFR 235a.1, issued November 1, 1958,
providing that an application for preexaminatiOn must he filed on
Form I-63 prior to December 1, 1958. 8 CFR 235a.2 provides that
the applicant, if found admissible in preexamination proceedings,
shall be given a sealed letter not later than June 30, 1959, addressed
to the Canadian immigration officer at the port through which he
will enter Canada, showing the purpose of his visit to Canada and
guaranteeing if admitted to Canada he. will be readmitted to the
United States or, if found inadmissible when seeking reentry to the
United States, he will be paroled into the United States.
During oral argument before the Board the Service Representative was requested to inform the Board as to whether or not the
whole preexamination process must have been concluded by June 30
1950, or whether cases in process on that date were continued am
concluded after June 30. The Board had been informed by at
torneys in other cases that in some districts cases were still 'twin
processed if application was made, but it had not been possib
to complete them by June 30. The Board felt the procedure show
be consistent and uniform in all cases. On September 17, 195
the Immigration and Naturalization Service, through the Servi
Representative, informed the Board as follows: "All applicat
for preexamination who were given appointment dates by Americ
consuls in Canada prior to July 1, 1959, were preexamined by
480

Service on or before June 30, 1959, and, if found admissible, were
issued Forms I-62 for use in departing to Canada. The appointment dates with the consuls in many instances were dates after
July 1, 1959, but all Service action was completed prior to that
date."
On the basis of the above information, all Service action having
been concluded in the instant case on June 30, 1959, and respondent
having been notified by the American Consul at Niagara Falls,
Ontario, Canada, that he could appear in person at that consulate
on July 27, 1959, to apply for a visa, he would have been eligible
for the waiver he seeks, if the decision of the special inquiry
officer had been favorable. However, the action was unfavorable,
and at this time a motion for reopening and rehearing in connection
with an application for waiver under section 5 of the Act of
September 11, 1957, is too late. The motion, made on July 17,
1959, could not be granted, because the alien's case for preexamination had to be completed before July 1, 1959.
Aside from the procedural technicality, it is our opinion that the
special inquiry officer's denial of the waiver on the merits was correct. These proceedings have been pending since 1953. In the 5
years prior to 1953, respondent was arrested and convicted for a
deportable, offense. As the special inquiry officer has pointed out,
in the most recent hearings respondent failed to disclose arrests

during the years 1955, 1956 and 1958, and only admitted these
arrests as the result of the special inquiry officer's questioning based
on independent investigation. Respondent pleads that he did not
realize he was being arrested, but under the circumstances of this
record we are not persuaded that he is so unsophisticated. He has
been granted voluntary departure in lieu of deportation, and that
is the maximum relief to be granted on this record at this time.
Order: It is ordered that the order of the special inquiry officer
be affirmed.
It is further ordered that the respondent's motion be and is
hereby denied.

4R1


Interim Decision #2592

MATTER OF CHMUNG
In Deportation Proceedings
A-15746715

Decided by Board Jurze 14, 1977
(1) Respondent submitted a request for asylum on October 2, 1974, which was patently
without substance, in that he sought to avoid deportation to China while his deportation
orders specified he should be deported to Hong ECong. He also submitted requests for
relief under section 243(h) of the Immigration and Nationality Act on December 1, 1975,
(withdrawn on January 6, 1976) and on January L6, 1976. However, these requests for
withholding of deportation under section 243(h) were not supported by evidence or
affidavits as required by 8 C.F.R. 103.5 and 8 C.F–R. 242.22. In the circumstances, both
the asylum request and the section 243(h) requester were frivolous and dilatory, and for
that reason the instant motion to reconsider will be denied.
(2) Repeated legal actions initiated on a claim whose substance has repeatedly been found
lacking can validly be termed dilatory. Dilatoriness is not determined by the number of
actions filed but by the nature of the claim and patent lack of merit.
CHARGE:
Order: Act of 1952---Section 241(a)(2) [8 U.S.C. 1251(a)(2)1—Nonimmigrant crewman—
remained longer than permitted
ON BEHALF OF RESPONDENT: Emmanuel A. M-core, Esquire
168 Canal Street-

New York, New York 10012

BY:

Milhollan, Chairman; Wilson, Maniatis, Appleraran, and Maguire, Board Members

The respondent, a native and citizen of China, has submitted a motion
to reconsider our decision of April 7, 197'7, dismissing his appeal from
the decision of the immigration judge denying the respondent's motion
to reopen proceedings. The respondent s ought reopening for the purpose of applying for a new grant of voluntary departure. In our previous
cledsion, we dismissed the appeal on the ground that the respondent,
found deportable in May, 1974 and granted a long-since-expired term of
voluntary departure, had prolonged his stay in the United States
through the use of dilatory tactics, and thus did not merit a reopening of
proceedings for the purpose of applying for a new grant of voluntary
departure. For the reasons that follow, the present motion to reconsider
be denied.
244

Interim Decision #2592
The respondent, through counsel, requests that we reconsider our
conclusion that his stay in the United States has been prolonged unduly
through the use of dilatory tactics. He argues that this label should not
lightly be attached to his attempts to vindicate his rights under the law.
He therefore argues that we should not find that his various legal
actions should now disqualify him from a reopening of proceedings to
apply for a new grant of voluntary departure.'
We should be loath to quickly attach a label of frivolousness and
dilatoriness to a respondent's vigorous and persistent exercise of his

legal rights. Such a policy could only result in the imposition of a subtle
penalty for pursuing a claim to the full extent of the law. This is
especially so when the respondent's legal actions are based, as in this
case, on a claim to refugee status. Nonethele s s, when repeated legal
actions are initiated on a claim whose substance has repeatedly been
found nil, the respondent's motives in continued prosecution will of
necessity become suspect, and the label of dilatoriness will validly
attach.
The issue before us is whether the record supports the characterization of the respondent's legal actions as frivolous and dilatory. We must

therefore analyze the respondent's various legal maneuvers, and attempt, post hoc, to render an assessment of their merits. That these
actions were ultimately unsuccessful is not conclusive to our inquiry,
which is, after all, the respondent's motivations. However, repeated
lack of success in different forums in the prosecution of similar claims is
clearly relevant to the respondent's motives.
The respondent is a crewman who entered the United States on
January 28, 1973, and who overstayed the 29-day term allowed him as
shore leave. On May 17, 1974, he was found deportable under section
241(0(2) of the Immigration and Nationality- Act, and granted the

privilege of departing voluntarily in lieu of deportation before July 17,
1974, with an alternative order for deportation to Hong Kong and
Taiwan. A warrant of deportation was issued on September 16, 1974. On
October 2, 1974, the respondent filed an application for stay of deportation pending a final decision on his request for asylum. This claim was
based on the argument that the respondent's true domicile was the
People's Republic of China, although he had fled that country to Hong

Kong in 1953. The requests for asylum and stay of deportation were
denied by the District Director on October 7, 1974. However, the
respondent's deportation was stayed under the decision in Chim Ming
v. Marks, 505 F.2d 1170 (2 Cir. 1974), cert. denied 421 U.S. 911 (1975),
The respondent is apparently now eligible for fifth-preference benefits due to the
recent naturalization of his brother.
245

Interim Decision #2592
which applied to potential refugees. The stay in Chim Ming v. Marks,
supra, expired on September 9, 1975.

On December 1, 1975, the respondent moved for reopening of his
deportation proceedings in order to submit a request for withholding of
deportation to Hong Kong under section 243(h) of the Act. On January
6, 1976, the respondent withdrew this motion to reopen, and requested

that his deportation to Hong Kong be effected immediately. However,
on January 16, 1976, a new motion for reopening was submitted, again
requesting an opportunity to apply for relief under section 243(h) of the
Act. This motion was treated as another request for asylum by the

District Director, and denied by him. However, the motion was also
forwarded to the immigration judge for consideration of the respondent's motion to reopen. A stay of deportation was granted during the
pendency of the proceedings. On December 1, 1976, the immigration
judge denied the respondent's motion to reopen. The respondent retained present counsel on January 31, 1977. A motion to reopen for the
purpose of permitting the respondent to apply for an additional grant of
voluntary departure was submitted on January 31, 1977. A stay of
deportation was apparently obtained when a Federal District Court
issued a temporary restraining order. On February 3, 1977, the immigration judge denied the respondent's motion to reopen, on the ground
that the respondent had engaged in dilatory legal actions. We dismissed
the respondent's appeal from that decision on April 7, 1977.
Summarizing this rather complex history of the respondent's legal
maneuvers, we find that the -respondent has submitted one request for
asylum, and, if the two motions of December 1, 1975, and January 16,
1976, are considered as one 2 one motion for reopening for the purpose of
presenting a claim under section 243(h) of the Act.
A request for asylum, if denied, may be renewed as a claim for relief
under section 243(h) in a subsequent deportation hearing. See 8 C.F.R.
108.2. Thus, the fact that the respondent has made a claim to asylum
followed by a motion to reopen would not alone compel a conclusion that
,

the respondent has been dilatory.
However, it is not the number of actions which compels us to find that
the respondent's actions have been dilatory. Rather, it is the nature of
these actions, and their patent lack of merit, which compels that conclu-

sion. The original request for asylum, filed on October 2, 1974, was
patently without substance: tle respondent sought to avoid deportation
to the People's Republic of China while his order of deportation specified
that he should be deported to Hong Kong. This frivolous claim brought
the respondent within the terms of the stay of deportation granted by

2

The delay caused by the January 6, 1976, withdrawal only amounts to 10 days.
246

Interim Decision #2592
the court in Chim Ming v. Marks, supra, engendering a delay of some 11
months.
Similarly, the respondent's motion to reopen proceedings for consideration of his claim to relief under section 243(h) of the Act, submitted
on December 1, 1975, withdrawn January 6, 1976, and resubmitted on
January 16, 1976, was patently frivolous. This motion, submitted by
experienced counsel, was entirely unsupported by evidence or affidavits
as required by 8 C.F. R. 103.5 and 242.22, and did not state the nature of
the persecution to which the respondent would allegedly be subject upon
his return to Hong Kong. This motion engendered a delay of another 11
months.
We do not question the motives or actions of present counsel in
submitting the present motion to reopen for the purpose of allowing the
respondent to apply for a new grant of voluntary departure. The present action, in view of the respondent's apparent eligibility for fifthpreference benefits under the Act, is entirely proper. However, the
actions of the respondent through his previous counsel appear, to have
been calculated solely, through the submission of spurious motions, to
unduly delay his legally -mandated departure from the United States.
We shall therefore deny the present motion to reconsider.
ORDER: The motion is denied.

247


Interim Decision #2285

MATTER OF DELA CRUZ

In Visa Petition Proceedings
A-20495159
Decided by Board May 1, 1974
Under the law of the Philippines, Article 80(5) and Article 81(8) of the Civil Code
which became effective in August 1950, the marriage of first cousins is
proscribed.

The petitioner is an alien lawfully admitted for permanent
residence who sought preference status for the beneficiary as her
spouse under section 203(aX2) of the Immigration and Nationality
Act. The petition was initially approved; however, after due notice
to the petitioner, the approval was revoked by the Officer in
Charge, Manila, Philippines, in a decision dated September 7, 1973.
The petitioner has appealed from that decision. The appeal will be
dismissed.
Both the petitioner and the beneficiary are natives of the
Philippines. They went through a marriage ceremony on April 11,
1972 in the Republic of the Philippines. The Officer in Charge
revoked approval of the petition upon his discovery that the
parties are first cousins' The petitioner has conceded that she is
so related to beneficiary.
Although this case presents numerous sympathetic elements,
the law is clear. The validity of a marriage is generally governed
by the law of the place of celebration. Matter of P—, 4 I. & N. Dec.
610, 612 (A.G. 1952). Article 80 of the Civil Code of the Philippines2
stae:
The following marriages shall be void from the beginning:
(1) Those contracted under the ages of sixteen and fourteen years by the
male and female respectively, even with the consent of the parents;
(2) Those solemnized by any person not legally authorized to perform
marriages;
(3) Those solemnized without a marriage license, save marriages of exceptional chracter;
The record indicates that the mother of the beneficiary and the father of the
petitioner were siblings.
2 The Civil Code of the Philippines became effective in August of 1950.

686

Interim Decision #2285
(4) Bigamous or polygamous marriages not falling under article 83, number
2;
(5) Incestuous marriages mentioned in article 81;
(6) Those where one or both contracting parties have been found guilty of
the killing of the spouse of either of them;
(7) Those between stepbrothers and stepsisters and other marriages specified in article 82.

Article 81 of the Civil Code provides:
Marriages between the following are incestuous and void from their
performance, whether the relationship between the parties be legitimate or
illegitimate:
(1) Between ascendants and descendants of any degree;

(2) Between brothers and sisters, whether of the full or half blood;
(3) Between collateral relatives by blood within the fourth civil degree.

Pursuant to Article 80(5) and Article 81(3), the marriage of first
cousins is proscribed in the Philippines. 3 A memorandum of foreign law prepared by a Senior Legal Specialist in the Hispanic
Law Division of the Library of Congress further indicates that
there is no basis upon which the petitioner's marriage to 'the
beneficiary may be considered valid in the Philippines. We understand the plight of the petitioner; however, the beneficiary cannot
be classified as the spouse of the petitioner on the basis of this void
marriage. The decision of the Officer in Charge was correct.
ORDER: The appeal is dismissed.

° It appears that marriages between first cousins were permitted prior to the
effective date of the Civil Code.

687


Interim Decision #1851

Mal i.r.n or Maarrerzz-Morrmouno
In Adjustment of Status Proceedings
A-12406533
Decided by .Regional Commissioner Apra 11,1968
A native and citizen of Cabe who

/oat entered the United States illegally, having
entered without inspection on March 28, 1961, is ineligible for adjustment
of status under section 1, Act of November 2, 1966, notwithstanding he had on
prior occasions subsequent to January 1, 1959 been inspected and admitted into
the United Staten [Matter of Rica, Int. Dee. No. 1691, distinguished.]

Discussion: This case comes forward by certification from the District Director, Miami, Florida, who denied the application on the
grounds that the applicant last entered the United States without
inspection and is, therefore, ineligible for the benefits sought.
The applicant claims to be a native and citizen of Cuba, born in
Santa Clara, Las Villas, Cuba, on August 8, 1923. He last entered the
United States illegally near Brownsville, Texas, on March 28, 1961,
with the express intent of evading inspection in that area and proceeding to Miami, Florida. He was, on April 10, 1961, at Miami,
Florida, granted an indefinite period of time within which to depart
voluntarily from the United States.
Records of this Service indicate the applicant was inspected and
admitted into the United States as a nonimmigrant visitor on
July 19, 1960, and departed on July 26, 1960. He was again admitted
in the same status on August 6, 1960; departed AUgust 13, 1960; admitted September 28, 1960, and departed January 24, 1961. There is
nothing in the record to indicate that he was other than a bona fide
visitor on the occasions of those visits to the United States, nor that
he was then a refugee from Cuba. In fact, the record indicates that he
returned directly to Havana after at least the first two visits.
Section 1 of the Act of November 2, 1966, provides, in part, that the
status of any alien who is a native or citizen of Cuba and who has
been inspected and admitted or paroled into the United States subsequent to January 1, 1959, and has been physically present in the
'United States for at least two years, may be adjusted by the Attorney
688

Interim Decision #1851
General, in his discretion and under such regulations as he may
prescribe, to that of an alien lawfully admitted for permanent residence, if the alien makes an application for such adjustment and the
alien is eligible to receive an immigrant visa and is admissible to
the United States for permanent residence. Upon approval of such
an application for adjustment of status, the Attorney General shall
create a record of the alien's admission for permanent residence as

of a date thirty months prior to the filing of such an application or
the date of his last arrival into the United States, whichever date is
later.

In the Matter of Riva, Interim Decision No. 1691, the Regional
Commissioner found that adjustment of status under the law in
question here could be based on the alien's first inspection and admission or parole into the United States subsequent to January 1, 1959,
notwithstanding a subsequent arrival after a temporary absence from
the United States with no intention on the part of the applicant to
abandon residence in the United States. The case before us is distinguished from Rive, in that Rive, after a temporary absence, was
inspected and admitted or paroled into the United States and was in
the country pursuant to such inspection and admission when her

status was adjusted. Our applicant evaded inspection and entered
illegally when he last arrived and is now in the United States pursuant to that illegal entry.
Section 1 of the Act of November 2, 1966, clearly contemplates the
adjustment of status of an alien who is in the United States pursuant
to inspection and admission or parole into the United States. The
grant of indefinite voluntary departure to the applicant did not constitute an inspection and admission or parole. Since he is in the United
States pursuant to an illegal entry, he is not eligible for adjustment
of status and the decision of the District Director will be approved.
ORDER: The decision of the District Director, Miami, Florida, is
affirmed and the application is denied.

689