Interim Decision #1758

MATITIZ OF TUCKER

In Deportation Proceedings
A-17455405

Decided by Board July 25, 1967
Respondent, who after arrival in tue United States was not employed as a maid
or domestic for which employment she had been issued prior to entry a labor
certification under section 212(a) (14), Immigration and Nationality Act, as
amended, but. who obtained immediate employment as a sewing machine
operator, the type Or work sne was doing before arrival, is deportable under
section 241(a) (1) of the Act as one excludable at entry for lack of a valid
labor certification.
()seam:

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable
at time of entry—No due certification by Secretary of
Labor as required by section 212(a) (14) of the Act.

The special inquiry officer in a decision dated April 26, 1967 found
the respondent subject to deportation on the charge designated above
but granted her application requesting that she be permitted to depart
voluntarily from the United States in lieu of deportation and directed
that if she failed to depart within the time and under the conditions
set by the District Director, the privilege of voluntary departure be
withdrawn and she be deported 'from the United States to Jamaica,
West Indies,-the country of her nativity and citizenship, on the charge
set forth in the order to show cause. The case has been certified to the
Board for final decision in accordance with the applicable regulations. The respondent, a 37-year-old married female, native and citizen of Jamaica, West Indies, has resided continuously in the United
States since her admission for permanent residence at Miami, Florida
on December 11, 1966, at which time she had in her possession and
presented for inspection special immigrant visa, classification SA-1,
issued in her name by the United States Vice Consul at Kingston,
Jamaica on November 25, 1966 valid until March 24, 1967. The visa
bears the notation that the respondent was in possession of valid Passport No. 21517 issued in her name by the Minister of External Affairs

328

Interim Decision #1758
in Kingston, Jamaica, the validity of said passport expiring on
May 20,1968.
Deportation proceedings were instituted against the respondent on
April 5, 1967. A hearing in deportation proceedings was held at Boston,
Massachusetts on April 26, 1967 at which time the respondent was advised of her right to be represented by counsel or other person of her
Choice. When asked what she wished to do she replied, "I would like
to continue with the hearing." The special inquiry officer then inquired
if she desired to proceed without a lawyer and she replied, "Yes."
(p. 1) The respondent admitted the truth of the eight allegations set
forth in the order to show cause. On examination of the record we find
the respondent was admitted to the United States for permanent residence as a special immigrant, born in an independent country of the
Western Hemisphere; that she was in possession of a labor certification attached to an immigrant visa issued by a lawful representative
of the United States Secretary of Labor certifying her for employment in the home of one Mrs. Bernard H. Cole in Newton Center,
Massachusetts. The respondent since her admission to the United
States on December 11, 1986 has never been employed in the home of
Mrs. Bernard H. Cole. The record shows that since December 19,
1966 she has been gainfully employed as a. sewing machine operator
by G. T., Inc. in Roxbury, Massachusetts at a salary of $70 per week.
The record reflects that the Secretary of Labor or his authorized delegate has never accorded the respondent a labor certification for employment as a sewing machine operator in the United States.
The respondent in her application for alien employment certification (Part I—Statement of Qualifications of Alien (ES-275A)) certified on January 24, 1966 she was living with her husband in Jamaica.,
West Indies; that she was seeking employment as a stitcher or telephone operator. The respondent in describing her qualifications and
skills declared that she had been issued a. telephone operating certificate and was also proficient in the use of a sewing machine. She certified she was then employed by Aly's Ltd., R. Hanna and Sons Ltd. in
Kingston, Jamaica, West Indies; that she was then employed as a
stitcher and had been so employed since 1965. Mrs. Bernard Cole in
her application for alien employment certification (Part II—Job Offer
for Alien Employment (ES-575B)) which was subscribed and sworn
to by her on April 21, 1966 stated she was a homemaker living in Newton Center, Massachusetts. The affiant in answering question 7 of Part
II of Application for Alien Employment Certification deposed that
the respondent would work at her address in Newton Center, Massachusetts; that the employment offered was neither seasonal nor temporary. Mrs. Cole further deposed she was seeking the respondent's serv-

329

Interim. Decision #1758
ices to fill an existing vacancy in her home and that she expected to
employ the respondent indefinitely. Mrs. Cole in answering question
20 of the above application for alien employment certification stated
that she intended to file a petition (Form 1-140) with the Immigration and Naturalization Service for admission of the alien as a preference immigrant.; that the nature of the job offered the respondent was
general maid and she would receive a weekly stipend of $45 for a daily
work schedule of eight hours.
The respondent in executing Foreign Service Form-510 in connection with her application for an immigrant visa and alien registration
which was subscribed and sworn to by her before the United States
Consular officer at Kingston, Jamaica on November 25, 1966, deposed
her present occupation was a dressmaker and telephone operator; that
her purpose in coming to the United States was to be a companion to
her aunt, one Mrs. Christine Anderson, a widow living alone at 17
Kensington Street, Roxbury, Massachusetts_ The respondent further
deposed that her final address in the United States would be 17 Kensington Street, Roxbury, Massachusetts. The respondent declared she
had previously been in the United States as a nonimmigrant visitor
from November 1961 until May 4, 1962 and from July 1963 to August
7, 1964; that on the latter occasion her husband was also admitted to
the United States with her as a nonimmigrant visitor. The alien employment certification subscribed and sworn to and submitted for
consideration by Mrs. BernardIl. Cole on April 21, 1966, was certified
by an authorized represontative of the United States Department of
Labor on June 8, 1066. The respondent did not apply for an immigrant

visa with which to enter the United States until November 25, 1966.
The record clearly shows that the respondent was never employed in
the household of Mrs. Bernard H. Cole after admission to the United
States on December 11, 1966.
The respondent in an affidavit subscribed and sworn to before an
officer of the Service at Boston, Massachusetts on March 29, 1967
deposed that she obtained a work certification and clearance to work
for Mrs. Bernard H. Cole, 138 Cedar Street, Newton Center, Massachusetts; that after admission to the United States for permanent
residence on December 11, 1966 she went to the home of Mrs. Cole on
Saturday, December 17, 1966 at which time Mrs. Cole advised her that
she had a girl from Haiti and did not have any immediate use for the
respondent's services. The respondent declared that Mrs. Cole said she
could possibly place the respondent in the home of a friend of hers at
a salary of $45 per week. On the following day, Sunday, December 18,
1966, the respondent examined the Sunday newspapers looking for a
position and on December 19, 1966 she obtained employment as a sew-

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Interim Decision #1758
ing machine operator at the G & T, Inc. in Boston, Massachusetts at a
salary of $70 per week. In this connection it is noted that the respondent in her application for alien employment certification (Part II)
certified on January 24, 1966 that she was then employed as a stitcher
and machine operator by a company in Kingston, Jamaica. The evidence establishing that the respondent is subject to deportation under
the provisions of section 241(a) (1) of the Immigration and Nationality Act, in that, at the time of entry she was within one or more of
the classes of aliens excludable by the law existing at the time of such
entry, to wit, aliens who are seeking to enter the United States for the
purpose of performing skilled or unskilled labor and in whose cases
the Secretary of Labor has not made a certification as provided in section 232 (a) (14) of the Immigration and Nationality Ant, as amended,
is clear, unequivocal and convincing. The respondent is subject to
deportation on the charge designated above.
In the instant case the respondent after arrival in the United States
on December 11, 1966 was not employed as a maid or domestic for
which she was granted a certification by the United States Secretary
of Labor on June 8, 1966. One week after her arrival in the United
States on December 11, 1966, the respondent appeared at the home of
her prospective employer, Mrs. Bernard H. Cole, at 138 Cedar Street,
Newton Center, Massachusetts at which time Mrs. Cole informed her
that she had no need for her services. 1
Upon full consideration of all the evidence present in this record,
the decision of the special inquiry officer will be affirmed. For the
reasons hereinbefore set forth, the following order will be entered.

ORDER: It is ordered that the order entered by the special inquiry
officer on April 26, 1967 granting the respondent permission to depart
voluntarily from the United States under such conditions as may be
imposed by the District Director and further ordering that she be
deported to Jamaica, West Indies on the charge contained in the
order to show cause if she fails to depart when and as required, be
and the same is hereby approved.
Mrs. Bernard-8. Celle in an affidavit subscribed and sworn to before an officer of the Service on April 17, 1967 deposed that she had made five or six applications for alien employment certification. Mrs. Cole stated she did not require
the services of the five or six domestics for whom she submitted applications
foi labor emPloyMent certification but that she executed these applications to
help the aliens and her friends who needed domestic help. Mrs. Cole deposed that
she was never interested in having the respondent herein as an employee
(p. 8, Ex. 4) .

851--664-69---23


Interim Decision #1266

MAT= OF TARABOOGHIA

In DEPORTATION Proceedings
A-7957351

Decided by Board February 11,1693
An anen lone entered the United States as a crewman', is uLatuLorlly iucligible
for suspension of deportation tinder the provisions of section 244(f) of the
Immigration and Nationality Act, as amended by section 4, Act of October 24,
1962, notwithstanding he had pending on the effective date of the amendment
an application Tor suspension of deportation.
CHARGE

Warrant: Act of 1924—Remained longer--crewman.

The ease comes forward on appeal from the decision of the special
inquiry officer entered November 29, 1962, finding the respondent subject to deportation on the charge stated above; holding that he is not
eligible for the discretionary relief of suspension of deportation because he entered as a seaman or crewman; granting him the privilege
of voluntary departure and providing for an automatic order of deportation should he fail to depart; and further directing that if Aus-

tralia, the country the respondent designated as the place of deportation, is unwilling to accept the respondent, he should then be deported
to Italy.
The record relates to a 49-year-old married male alien, who was
born in Sansego, Italy, which later became Yugoslavia, and who is
presently stateless. His last and only entry into the United States occurred at Newport News, Virginia, on February 27, 1951, "SS Brazil"
when he was admitted under section 8(5) of the Act of 1924 as a

seaman. He has since remained in the United States. The charge
of deportability is established.
The warrant of arrest was originally served on respondent on
October 10, 1952, and he was accorded a hearing on November 19,
1952. The special inquiry officer found him deportable as charged
in the warrant of arrest, denied the application for suspension of deportation inasmuch as the respondent at that time had resided in the
United States only two years, had no family ties in this country and
181

Interim Decision #1266

•
was not eligible for that form of discretionary relief. The special
inquiry officer denied applications for voluntary departure and preexamination or voluntary departure alone. On June 17, 1953, this
Board dismissed the appeal from the decision of the hearing officer.
On January 31, 1958, this Board dismissed a motion to reopen for the
reason that the motion was unsupported by evidentiary data or points
of law or precedents to support the motion to reopen for suspension
of deportation under 8 U.S.C. 1254(a) (1) of the Immigration and
Nationality Act of 1952 or, in the alternative for the purpose of pre.examination. On May 8, 1958, the Acting Regional Commissioner,
Northeast Region, Burlington, Vermont denied respondent's application for stay of deportation pursuant to section 243 (h) of the Immigration and Nationality Act for failure to establish that the applicant would be subjected to physical persecution if returned to the country to which his deportation was designated, to wit, Italy. On March
24, 1961, a motion requesting that the outstanding order of deportation
be set aside and the proceedings be reopened to permit application for
suspension of deportation under section 244(a) (5) of the Immigration
and Nationality Act was denied for the reason that the motion was not
properly supported. On March 1, 1962, this Board granted the motion to reopen to permit the respondent to apply for suspension of
deportation.
On the issue of discretionary relief it has been established that the
respondent has resided in the United States continuously since his
entry on February 27, 1951, as a seaman. When he first made application for suspension of deportation under section 19(c) (2) of the
Immigration Act of 1917 (8 U.S.C. 155) being on November 19, 1952,
respondent was clearly ineligible because he had no close family ties
in the United States who were dependent upon him for support and
he had not been in this country for a period of seven years; nor did ho
possess those qualifications on December 24, 1952, the date the Immigration Act of 1917 was repealed.
The respondent's present application for suspension of deportation
under section 244 of the Immigration and Nationality Act was made
during the course of the reopened hearing on March 16, 1962. The
hearings were concluded on May 23, 1962. The decision of the special
inquiry officer was handed down on November 29, 1962. In the meantime there had been enacted on October 24, 1962, Public Law 87-885
<76 Stat. 1247). Section 4 of Public Law 87-885 amended section 244
of the Immigration and Nationality Act (8 U.S.C. 1254) by streamlining or condensing the five subsections of section 244(a) into two
subsections; and added paragraph (f) which provides that no provision of this section shall be .applicable to an alien who (1) entered
the United States as a crewman; * ". The special inquiry officer
182

Interim Decision #1266
held that applications previously made under section 244(a) (1)
through (5) prior to October 24, 1962, have not been preserved and
that he was required to determine the respondent's application for
suspension of deportation under section 241 as presently amended.
Inasmuch as that section specifically provided that suspension of deportation should not be granted to an alien who entered the United
States as a crewman which, by definition in section 101 (a) (10) of the
Act includes a seaman, and inasmuch as the respondent had entered
the United States as a seaman, the special inquiry officer concluded he
fell within this terminology and was barred from suspension of
deportation.
Counsel for the respondent has filed a brief in which he contends
that the amendment of section 244 by section 4of Public Law 81-885 on
October 24, 1962, was prospective in nature and applied only to future
crewman arrivals and not to all persons in that category already in the
United States; and that this respondent, who was already deportable,
was not affected by the new Act. Counsel also argues that under the
savings clause, section 405(a) of the Act, the present application for
suspension of deportation as well as the one made before the effective
date of the 1952 Act should be and are preserved and that the respondent should be found statutorily eligible for the relief of suspension
of deportation. Counsel also states that the respondent, being statutorily eligible, should be granted the discretionary relief requested.
Public Law 87-885 approved October 24, 1962 (76 Stat. 1247)
originated as Senate Bill S. 3361 to facilitate the entry of alien skilled
specialists and certain relatives of United States citizens and for
other purposes. The legislative history of the bill, as finally reported

in the statement. of the Managers on the part of the House, shows that
agreement was reached by the Committee of Conference with regard
to the House amendment numbered 1 to amend the language of section
4 of the Senate Bill to achieve the purpose envisioned by the Senate
in a modified manner. As intended by the Senate, relief would have
been granted to certain aliens physically present in the United States,
but that under the language agreed to by the Committee of Conference,
the granting of relief would be subject to _Congressional review and
it would be predicated on the showing of specified type and degree of
personal hardship which might occur in the absence of such relief.
The amended language specifically excluded the granting of relief to
alien crewman (seaman and airman) and to persons who entered the
United States under educational exchange programs: In commenting
1 18 II.S.C. COW, LE Adm. News, 5488-5489 (87th Cong. 2d Sess. November 5,
1962) : 108 Congressional Record 21981—Conference Report No. 2552 (daily ed.
October 11, 1902).

183

Interim Decision #1266

on the Bill, Mr. Walter and Mr. Feighan stated that the basic
principles of a sound immigration policy, in the continuous concern
to preserve the integrity of the very important international educational exchange program, caused the conferees to exclude from the
benefits of this legislation those aliens who entered the United States
as crewmen or exchange visitors. 2 Mr. Mansfield commented that section 4 of the Bill, as agreed upon by the conferees, is in the nature of
a substitute for the provisions contained in the Senate version of the
Bill which would have permitted the Attorney General to create a
record for permanent residence in the cases of certain aliens who
entered the United States prior to October 24, 1952; that section 4
now provides a procedure within the framework of the suspension of
deportation procedures presently contained in section 244 of the Immigration and Nationality Act, and that the aliens affected would be

granted substantially the same relief that they would have received
under the provisions of section 4 of the Senate version of the Bill, with
a requirement that the action of the Attorney General in suspending
deportation be reported to Congress for approval. Mr. Seating stated
that the Conference version of section 244 has continuing future
applicability to any alien who can satisfy either the 7 or the 10 year
-

-

physical presence requirements in addition to other criteria for suspension of deportation.2
It is believed that the decision of the special inquiry officer should
be affirmed for the reasons set forth in the case of Fassilie, CateZdo
and Fevola v. Evenly, 301 F. 2d 429 (2d. Cir. March 12, 1962). In
that case the aliens involved had entered the United States on January
29, 1960, January 14, 1956 and sometime prior to July 14, 1960, respectively, all of the aliens entering this country in the status of crewmen. The District Judge granted defendant's motion against Fassilis
on two theories first, that there was no abuse by the administrative
officials of the discretion given by the statute; and, second, that the
July 14, 1960 amendment to section 245 of the Immigration and Nationality Act that became law while the administrative appeal was
pending precluded crewmen after that date from obtaining permanent
residence status under that section' On appeal, the Circuit Court
stated that there was a statutory change between the filing of the
appellants' applications and the ultimate administrative deeision disposing of these applications. (The decision of the District Director
as affirmed by the Regional Commissioner made no reference to the
statutory change enacted on July 14, 1960, excluding crewmen from
—

108 Congressional Record 22153 (daily ed. October 12, 1962).
" Volume 108 Congressional Record 22109 (daily ed. October 13, 1962).
192 F. Supp. 884 (S.D.N.Y., 1961).

2

184

Interim Decision #1266
the benefits of adjustment of status under section 245 (a) of the Immigration and Nationality Act.) The court pointed out that the
amendment of July 14, 1960, was not being applied retroactively and
that while the appellants' applications were still subject to administrative adjudication, the appellants had no established right to the
future status that they were seeking to obtain by their applications,
especially since the statute involved made the granting of such applications a matter wholly within the discretion of the Service. The court
further stated that the aliens in that case had acquired no status prior
to the amendment that they were deprived of by the amendment, for
the status each of them sought the agency to award them was not
acquirable until final administrative action upon their applications.
The court noted, that although not determinative of the result, it was

not without significance that when Congress amended section 245 of
the Immigration and Nationality Act of 1952, to preclude its application to crewmen, it did not enact a savings clause (section 405(a) )
to protect pending administrative proceedings as it had done when that
Act was adopted. The court concluded that it affirmed the decisions
of the District Director on the ground that the Commissioner was
required. by the new amendment to deny the applications and since

the result reached by the Commissioner was one over which he had no
discretion, it was unnecessary to decide whether he properly exercised
the discretion which he erroneously believed himself to have.
We find the reasoning of the Faesilis case, supra., equally applicable
to the circumstances of the case before us. Here, the respondent was
still the subject of administrative adjudication and had not established any right to the future status he was seeking to obtain by his
application. No savings clause was enacted as a part of the amendment
of section 244 by the Act of October 24, 1962. The exclusion of relief
under section 244 applies to crewmen and exchange visitors as the

result of an announced public policy on the part of Congress. The
same exclusion from the benefits of adjustment of status under section
245 of the Immigration Act of 1952 had previously been embodied in
the amendment thereto by the Act of July 14, 1960, which likewise
excluded alien crewmen from the benefits thereof. The law expresses
a clear Congressional policy and intent to exclude alien crewmen from
the benefits of the remedial legislation contained in sections 244 and
245 of the Immigration and Nationality Act. Inasmuch as in the
case of suspension of deportation, a favorable order would still require
a reference to Congress, it would appear incongruous to hold crewmen

eligible for a benefit from which Congress has specifically prescribed
their exclusion.'
5

Cf. U.S. or rel. Hintopoulos et al. v. Shan qknesay, 353 U.S. 72.

185

Interim Decision #1266
For the reasons set forth at length in the foregoing discussion, we
concur in the opinion of the special inquiry officer that the respondent,
who entered the United States as a crewman, is not eligible for adjust
ment of status under section 244(a) of the Immigration and Nation-

ality Act because of the exclusion of crewmen from the benefits of that
Act by the Act of October 24,1962 (Public Law 87-885) . The appeal

will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

186


Interim De zision #2352

MATTER

OF MARQUES

In Deportation Proceedings
A-17241244

Decided by Board March 11, 1975
When a responient is seeking the discretionary benefit of suspension of deportation under
section 244(a)(1) of the Immigration and Nationality Act, and the discretionary relief of
voluntary departure under section 244(e) of the Act, he must establish that his deportation would result in extreme hardship and that he has been a person of good moral
character during the requisite period of time. Where during the course of the deportation proceedings it was disclosed that when he was stopped for a traffic violation in 1972,
he had about $54,000 in his possession, and he claimed the Fifth Amendment privilege
against self incrimination concerning the ownership and source of the money, and the
only evidence presented to show extreme hardship related to loss of future access to
financial benefits, he failed to meet his burden to establish eligibility for the benefits he
sought.
Cl/AEG=

Order: Act

1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9)J—failed to comply with
conditions of nonimmigrant status.

ON BEHALF OF RESPONDENT:
Galen H. Wi.kes, Esquire
3550 N. Cenral Ave., Suite 404
Phoenix, Arizona 85012

ON BEHALF OF SERVICE:

William E. Weinert, Esquire
Trial Attorney

This is an appeal from the immigration judge's decision denying the
respondent's application for suspension of deportation pursuant to section 244(a)(1) of the Act and denying voluntary departure. The appeal
will be dismissed.
The record relates to a single male alien, 41 years of age, a native and

citizen of Spain. The respondent entered the United States as a nonhnmigrant sheepherder. He was charged with deportability for failure to
comply with the conditions of his nonimmigrant status, and was found
deportable on that ground by the immigration judge in a decision entered on April 16, 1971. A timely appeal was not taken from that
decision. The respondent thereafter moved to reopen. That motion was
denied by the immigration judge on May 24, 1971. The Board on August
9, 1971 dismissed the respondent's appeal from the denial of his motion.

200

Interim Decision #2352
On November 26, 1971, the Board granted a new motion which he had
filed, which sought reopening to permit him to apply for suspension of
deportation. The proceedings were reopened; a new hearing was conducted before the immigration judge, at which the respondent applied
for suspension of deportation. The case is now before us on appeal from
the immigration judge's order of November 6, 1972 denying the respondent's application for suspension of deportation.

During the course of the reopened hearing, the respondent testified
stopped by police for a
traffic violation on July 15, 1972. The respondent invoked his constitutional privilege against self incrimination under the Fifth Amendment in
response to questions concerning the ownership or source of the money.
The respondent contends that he has established eligibility for suspension of deportation notwithstanding his refusal to answer further
questions concerning the money. He further contends that his right to
invoke the Fifth Amendment is "illusionary [sic] and valueless" if deportation results from invoking that right.
There is no question that the respondent had the right to invoke his
constitutional privilege under the Fifth Amendment in this proceeding,
Valeros v. INS, 387 F.2d 921 (C.A. 7, 196'7). Counsel's argument
suggests that the respondent is being penalized for invoking the Fifth
Amendment. 1 There is a distinction, however, between a case such as
this one and cases in which an adverse inference is drawn from the
invocation of the privilege, Griffin v. California, 380 U.S. 609 (1965), or
in which a person suffers adverse consequences because of official annoyance at the invocation of a constitutional privilege. See Matter of
Tsang, 14 L & N. Dec. 294 (BIA 1967). Here, the respondent is seeking
relief for which he is not entitled as a matter of right. Suspension of
deportation is granted as a matter of the Attorney General's discretion,
section 244(a). The burden lies with the applicant to establish eligibility
for the benefits he seeks.
The same issue was present in the case of Kimm v. Rosenberg, 363
U.S. 405 (1960). Munn sought suspension of deportation, but invoked
his privilege against self incrimination and refused to answer the question of whether he was a member of the Communist Party. The statute
that he was in possession of about $54,000 when

required a showing that the applicant was not a member of the Communist Party. The Supreme Court held that Kimm, by refusing to

answer the question, failed to establish his eligibility under the statute.
The Court said:
". .. an applicant for suspension `a matter of discretion and of administrative grace,'
U.S. ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77,1 L. ed 2d 652, 656, 'TT S. Ct.
618 (1957), must, upon the request of the Attorney General, supply such information
See Spevak v. Klein, 385 U.S. 511 (1967); Malloy v. Hogan, 378 U.S. 1 (1964), cases
not cited by counsel.

201

Interim Decision #2352
that is within his knowledge and has a direct bearing on his eligibility under the
statute," at page 408.

We find that the respondent has likewise failed to establish his statutory eligibility. He must establish that his deportation would result in
extreme hardship. The hardship the respondent alleges is related to his
future access to financial benefits (insurance and an Arizona Industrial
Commission award of $11.01 per month), which he alleges would not be
available to him if he is deported, and of which he alleges need. The facts
of record, however, suggest that he is a man of substantial means.
Hence, he has failed to establish the hardship alleged.
The appeal makes no reference to the immigration judge's denial of
voluntary departure. Voluntary departure was properly denied.
ORDER: The appeal is dismissed.

202


Interim Decision *1673"

MATTER OF LEE

In Visa Petition Proceedings
A-14710087
Decided by Board December 9, 1966
The existence of a bona fide family unit alone is insufficient to satisfy the
statutory requirements for adoption in accordance with section 101(b) (1)
(E) of the Immigration. and Nationality Act, as amended; nor does an
actual residence of the adoptive child with the adoptive parent for about
1 year and 9 months satisfy the two years' residence requirement for an
adoption in conformity with that section. •

The case comes forward on appeal from the decision of the District Director, Los Angeles District, dated September 19, 1966 denying the visa petition for the reason that the petitioner has failed to
establish that the required relationship of parent and child exists
between her and the :beneficiary.
The petitioner, a native of China, a, citizen of the United States
by naturalization on August .19, 1964, 54 years old, female, seeks
immediate relative status on behalf of the beneficiary as her adopted
son. The beneficiary was born April 1947 in Ying Ping, Kwang
Tung, China and is stated to be divorced. .
A sworn statement was taken from the petitioner on August 24, ,
1966. She testified the beneficiary was adopted by her in Tong On .
Lay village, Tong Foo Tang Heung, run Ping, K.T., China on
April 22,194'T (C11-86-3-2) when he was only a few weeks old. He ,
resided with her until September 10, 1948 when she left her village
to live in Hong Kong. Thereafter, the beneficiary resided with the
petitioner's mother in her native village from September 10, 1948
until January 9, 1966. The petitioner visited her mother and the
beneficiary three or four times during the period September 10, 1948
to January 20, 1949 while she lived in Hong Kong. She departed
from China en route to the United States on January 20, 1949 and
arrived on the SS "President Wilson" at San Francisco, California'
on March 21 or March 28, 1949. She last saw the beneficiary for 11.
or 12 days in January 1966 when she -visited Hong Kong.
911

Interim-Decision• #1678
Summarizing the testimony of the petitioner, the beneficiary was
adOpted when a few weeks old on April 22, 1947, resided with her
in the native village until September 10, 1948 when she left for
Hong Kong; she saw the beneficiary on three or four occasions until
her departure to the United States on January 20, 1949. Granting
the most favorable computation of the period of residence of the •
paidnt with the adopted child as existing between April 22, 1947
until January 20, 1949, when the petitioner departed to the United
States, the total period of residence is approximately one year and
nine months. Originally as enacted, section 101 (b)(1) of the Immigration and
Nationality Act included in the term "child" (A) a legitimate child,
(B) a stepchild and (C) a legitimated child. Subsection (B) of
section 101(b) (1)" of the Immigration and Nationality Act was
added by the Act of September 11, 1957 (71 Stet. 639) to 'include
a child adopted while under the age of 14 years if the child has
thereafter been in. the legal custody of, and has resided With, the
adopting parent or parents for at least two years. The amendment
was designated to prevent hardship in cases where the child was
chargeable to a heavily oversubscribed quota and would not other. wise be able to accompany his adoptive parents. Adequate safe-guardd
were included in the legislation to prevent abuse. Senate Report No.
1057 (85th Congress, 1st, Session) 4. The legislative history fails
to spell out what specific abuse was sought to be prevented. How-.
ever, an administrative sponsored predecessor bill, S. 10006, was the
subject of an analysis by the Attorney General before the Subcom
raittee on Immigration• of 'the Senate Judicial Committee on. July
30, 1957. It was pointed out that the administration bill would extend the definition of "child" tn. include adopted children -under
eiraum8tam,ces; that it was desirable that eonsideratiOn be
'given to an amendment 'whereby a child, adopted while under the age
of 12 years and who had lived with his adoptive parents for at least
two years prior to the visa application might be considered a "child"
under the immigration laws. It was pointed out that a proposal of
this type would prevent ablie through ad hoc adoptions made only
for the purpose of circumventing the immigration laws.
The amendatory legislation of the Act of September 11, 1957,
which extended the meaning of the term child to include an adopted
child (and also an illegitimate child through its natural mother)
was designed as remedial legislation to ameliorate the harshness and
in-equity of certain situations -where there existed bona Me larailY
units. Safeguards were written into the 'law to prevent abuses -such
as adoptions entered into for the purpose of evading the immigration
'

-•

912

Interim Decision #1673
. laws; and the amendatory legislation require that the child be adopted while under the age of 14 years and to have been in the legal
custody of and have resided with the adopting parent or parents
for at least two years. This latter requirement of residence with the
adopting parent or parents for at least two years does not exclude
computation of residence occurring prior to the formal adoption
decree.I The two year legal custody and residence requirement imposed upon an adopted child under the 1957 amendment to section
101(b) (1) of the Act is satisfied when custody and residence have
been with only one of the adopting parents, who may be the noncitizen parent, rather than with both.z
Thus, while the legal custody and residence requirements of section 101(b) (1) (E) have been liberally interpreted in'recognition of
the fact that the amendment constitutes remedial legislation, certain
requirements are still retained. Thus, the child. must. be adopted

under the age of 14 years to constitute a valid adoption under the
immigration laws. The statute requires two years' legal custody
subsequent to the adoption. The two-year residence requirement is
one of the conditions of a valid immigration adoption, and :while we

have interpreted. this requirement to includeld who resided
with the adopting parents for the two-year period prior to the formal adoption, and also with but one of the adopting parents, the
statutory requirement of two years' residence is a mandatory part
of section 101(b) (1) (E) of the Act.
In the instant case, under the moat generous computation,.

the
adoptive child resided with the adoptive parent for about one year
and nine .months. The term "residence" is defined in section 101(a)
(33)to mean the principal actual dwelling place in fact,. without
regard to intent. The period of residence here does not satisfy the
requirement of two years' residence with the adoptive parent. We
take notice of the brief filed: by counsel. However, we hold that the
bona fide family unit is not the only requirement of section 101(b)
(1) of the Immigration and Nationality Act but there must be an
adoption in conformity with the requirements of section 101(b) (1)
(E). The two-year residence requirement has ,not been met in the
instant case. The appeal will be dismissed. •
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
•

Matter of lf , 8 L ScN.Dee.:118 (A.G., 1959)..
'Matter of. Y-1C—Ti--,.9 & N. Dee: 176 (AA,' 1961), overruling Matter
of
8 L & 'N. Dee. 151: Ng Pun Yin v. Reperdy, 187'r. Sapp. 51
'
(S.D. N.Y. 1960). •
1

—

913


Interim Decision #2745

MATTER OF ZAPATA
In

Deportation Proceedings
A-21254261
A-22841115

Decided by Board December 19, 1979
F.Supp. , No. 76-C4268
(1) The permanent injunction entered in Silva v. Bell,
(N.D. Ill., October 10, 1978), barring the deportation of certain Western Hemisphere
aliens with visa priority dates between July 1, 1968 and December 31, 1976, does not
apply to those who entered or reentered the United States en or after March 11, 1977.
(2) Section 10 of the Final Judgment Order of Silva v. Bell, F.Supp. , No. 76-C4268
(N.D. III., October 10, 1978), states that no member of the Silva class would be eligible
for a recaptured visa number unless he satisfied the current eligibility criteria for the
issuance ur an

1.11111111gaaut

visa.

(3) "Eligibility" under section 10 of the Final Judgment Order of Silva v. Bell is not
synonymous with the availability of nonpreference visa numbers, but refers to
statutory eligibility for a visa.
(4) Although the aliens were members of the Silva class, they had lost the protection of
the permanent injunction entered in Silva v. Bell because they had entered after
March 10, 1977, and not because nonpreference visa numbers were unavailable to
them.
CHARGE:

Order Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2))—Entry without inspection—
both respondents
ON BEHALF OF SERVICE.

ON BEHALF OF RESPONDENTS:

Daniel L Kahn, Esquire
Trial Attorney

Joseph J. Rey, Esquire
P.O. Box 10187
El Paso, Texas 79992

By: Miiholion, Chairman; Maniatia, Appleman, Maguire, and Farb, Board Members

In a decision dated March 6, 1979, the immigration judge found the
respondents deportable as charged and granted them voluntary departure. The respondents appeal from this decision. The appeal will be
dismissed.
The respondents are husband and wife, and iiatives and citizens of

Mexico. They have a priority date of March 25, 1975, for non preference
visa purposes.
180

Interim Decision #2745
On appeal, the respondents contend that the immigration judge
erred in not granting their applications for suspension of deportation
under section 244 of the Immigration and Nationality Act, 8 U.S.C.
1254, and that the decision is not supported by the evidence. Neither of
these contentions has any merit and both could be said to fall within 8
C.F.R. 3.1(d)(1)(a)(ii) as frivolous grounds of appeal, since the respondent's present attorney conceded at the deportation hearing that they
were not eligible for suspension of deportation, and in fact never

applied for it, and also because they admitted all of the allegations of
the Order to Show Cause and conceded deportability. (Tr. pp. 4, 5). The
contention concerning the motions made by the respondents at the
hearing is not clear. The respondents in their appeal do not specify any
motion that was denied. A review of the record indicates that they did
request a continuance of the case until a visa became available. (Tr. p.
14, 15). This motion was correctly denied by the immigration judge

because the possibility of a visa becoming available was very remote
and he was obligated to enter an order finally disposing of the case.
Here he found that no useful purpose would be served by a continuance
and he was well within his authority to conclude the proceedings.
Matter of Garcia, 16 I&N Dec. 653 (BIA 1978).
There is another aspect of this case, however, which has not been
presented by the respondents on appeal. This is the issue of the
protection afforded the respondents by the final order entered in Silva
v. Bell, No. 76-C4268 (N.D. EL, October 10, 1978). The immigration
judge found that the reentry on February 16, 1978, without inspection
divested them of any protection that the Final Judgment Order may
have accorded them under Silva. He also found that under the tenth
section of the Order the respondents did not come under Silva because
nonpreference visa numbers were not available to them.'
We agree with the first conclusion that the reentry in February 1978,
took them outside of the protection of the final order, but only so far as
it pertained to the portion of the Silva order that barred the deportation of Silva aliens' The language of this section appears to us to be
clear. The respondents can therefore not be accorded this protection.
We do not agree, however, that section 10 of the Final Judgment
Order should be interpreted as it was by the immigration judge. This
' The Seventh Circuit has overruled this decision as it relates to allocation of visa
numbers. Refit*, Silva v. Bell, 605 F.2d 978 (7 Cir. 1979).
No alien who entered the United States on or after March 11,1977, shall be protected
by this order. However, the INS shall apply its usual policies and procedures concerning
the application of discretion in determining the length of time the alien may be
permitted to remain in the United States." (Section 3, Temporary Restraining Order,
made a permanent injuction, Silva v. Bell, id.

181

Interim Decision #2745
section states that:
10. No class member shall be eligible for a recaptured visa number unless he/she
satisfies the current eligibility criteria for the issuance of an immigrant visa.
The immigration judge held this to mean that because nonprefer-

ence visa numbers were unavailable to the respondents they had not
"satisfied the current eligibility criteria." The language of the order
appears to be a variation of that used in section 4(b) of the Temporary
Restraining Order which was made a permanent injunction in Section
5 of the Final Judgment Order and which excluded from Silva protection certain aliens who were:
... clearly not eligible for an immigrant visa under Section 212(a)(15), (16), (r) or (19)
of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(15), (16), (17) or (19). ...

Read in conjunction, these provisions show that the intent remains
the same: to exclude those aliens who are statutorily ineligible to
receive a visa.'
The fact that nonpreference numbers are presently unavailable does
not constitute "ineligibility" under the terms of Silva. These are distinct issues. To hold otherwise would be to find that no Silva aliens
whatsoever could currently come under the protection of the Final
Judgment Order, a rather difficult position to maintain since a major
purpose of the Order was to protect aliens who should have been

accorded visa numbers but were not because of the misallocation of the
numbers to Cuban refugees. The Findings of Fact in the Final Judgment Order also make this clear in the recognition by the District
Court that there would be insufficient visa numbers available for the
Silva class aliens'
In this case, the respondents, as noted, have a priority date of March
25, 1975. This comes within the time frame of July 1,1968 to December
31, 1976, established in the Silva order. It is clear therefore that the
respondents meet the qualifications for those included in the Silva
class, and are qualified to receive a recaptured nonpreference visa

number if otherwise eligible, if and when they come available. It is
equally clear that the fact that non preference visa numbers are not
available does not destroy their underlying eligibility for protection
from deportation. This does not mean that Silva nonpreference visa
eligibility is synonymous with protection from deportation. This protection of the Silva order is only accorded those who entered the
United States before March 11, 1977, and who have not since reentered.
The respondents here do not come within this protection. So, although
they are not ineligible for Silva order protection from deportation
' Sections 4(a), (b), and (c) also provide other grounds for excluding Silva aliens from
the protection of the restraining order. These are not applicable here.
Final Judgment Order, Findings of Fact, 19, 20, Silva v. Bell, id.
182

Interim Decision #2745
because nonpreference numbers are unavailable, they are ineligible
because they entered the United States after March 10, 1977. The
appeal is accordingly dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondents are permitted to depart
from the United States voluntarily within 30 days from the date of this
order and under such conditions as the District Director deems appropriate; and in the event of failure to so depart, the respondents shall be
deported as provided in the immigration judge's order.

183


Interim Decision #2950

MATFER OF MUNDELL
In Deportation Proceedings
A-4335615
A-4335617

Decided by Board August 9, 1983
Aliens never admitted for lawful permanent resident states effect an "entry," as defined
in section 101(a)(13) of the Act, B U.S.C. 1101(0(13), for purposes of deportability as
excludable at entry under section 212(a)(20), 8 U.S.C. 1182(a)(20), despite brief and casual
nature of their departure from the United States. Matter of Legaspi, 11 I&N Dec. 819
(BIA 1966), reaffirmed. Accord, Matter of Del Rosario, 13 I&N Dec. 324 (BIA 1969);
Matter of Dabinin, 18 I&N Dec.. 587 (BIA 1970).
CHARGE:
Order: Act of 1952—Sec. 241(0(1) (8 U.S:C. 1251(a)(1))--Excludable at entry rnder see.
212(a)(20) IS U.S.C. 1182(a)(20)I—No valid immigrant visa

Os BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:
Nancy-Jo Merritt, Esquire
1500 United Bank Tower
Phoenix, Arizona 85012-2584

Robert Brown
Chief Legal Officer

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

The respondents appeal from the July 14, 1982 decision of the immigration judge finding them deportable under section 241(a)(1) of the
Immigration and Nationality Act, 8 U.S.C. 1251(a)(1) for being excludable at their last entry into the United States on August 11, 1981 as
immigrants without a valid visa. See section 212(a)(20.), 8 U.S.C.
1182(a)(20). The appeal will be dismissed.
The facts in this ease are:not at issue. The elder respondent is a native
of Great Britain and citizezi of Canada who was admitted into the United
States as a nonimmigrant intra-company transferee, in 1976 and remained
in such status until 1979 when he left his employer and began his own
manufacturing bilsiness in Phoenix, Arizona. He is now self-employed
as a consultant. The other respondent is his son, a native and citizen - of
Canada, whose nonimmigrant status was entirely dependent upon his
father's. The Orders to Show Cause (Form 1-221) (Exs. 1, 2) charged
that they had made an entry into the United States on August 11, 1981,
at Kahului, Hawaii after a trip in their boat. They began their trip at
467

Interim Decision #2950
Newport Beach, California and made a brief stop at Ensenada, Mexico
for refueling and minor repairs. After stopping at Ensenada, Mexico,
they traveled to Kahului, Hawaii where they arrived on or about August
10, 1981, and were inspectedi by customs officials. The adult male respon-

dent advised the officials that they were Canadian citizens and as such
the boat was considered to be Canadian by these officials. The respondents remained in Hawaii for about .5 weeks after which they flew from
Hawaii to Los Angeles and from Los Angeles to Phoenix, Arizona.
Since they were departing from Hawaii, they did not go through the.
usual Service inspection on their arrival at the mainland_ The Service
charged that they were not in status as nonimmigrants then and
therefore, were excludable when they made an "entry" for lack of a
valid immigrant visa. See Matter of Niayesh,, 17 I&N Dec. 231 (BIA

1980).
The issue in this case is whether the .respondents made an "entry"
into the United States when they were inspected in Hawaii after having
briefly stopped at Ensehada, Mexico. Section 101 (a)(13) of the Act, 8
U.S.C. 1101(a)(13) has a definition of the term "entry" which states:

The term "entry" means any coming of an alien into the United States, from a foreign
port or place or from an outlying possession, whether voluntarily or otherwise, except
that an alien having a lawful permanent residence in the United States shall not be
regarded as making an entry into the United States for the purposes of the immigration
laws if the alien proves to the satisfaction of the Attorney General that his departure to
a foreign port or place or to an outlying possession was not intended or reasonably to be
expected by hint or his presence in a foreign port or place or in an outlying possession
was not voluntary: Provided, That no person whose departure frorn the United States
was occasioned by deportation proceedings, extradition, or other legal process shall be
held to be entitled to such exception.
. In Rosenberg v. Fieuti, 374 U.S. 449 (1963), the Suprefne Court held
that a lawful permanent resident alien who made a visit of a few hours to
Mexico did not upon his return make an "entry" which would subject
him to deportation. The Court interpreted the language in section
101(a)(13) requiring that the departure to a foreign port be "intended"

and found that such intention would not inhere in a trip to a foreign
country by a resident alien which was "innocent, casual, and brief."
Subsequently, an innocent, brief, and casual absence from the United
States by a lawful permanent resident has not resulted in an "entry" for
deportation purposes. Matter of Cardenas-Pinedo, 10 I&N Dec. 341
(BIA 1963); Matter of Yoo, 10 I&N Dec. 376 (BIA 1963); Matter of
Quintanilla-Quintanilla, 11 I&N Dec. 432 (BIA 1965).'
' Examples of brief absences which have been found not to be innocent and casual and
therefore resulted in an "entry" by the resident alien include those absences intended to
engage in illegal activities, face criminal charges, visit proscribed countries, while deporta
tion proceedings were pending, while a final order of deportation was outstanding, or in

order to illegally smuggle aliens in his return. See Matter of Scherbank, 10 l&N Dec. 522
468

Interim Decision #2950

In Matter of Wong, 10 MN Dee. 513 (BIA 1964), we rejected an
alien's claim that the Fleuti doctrine prevented his having interrupted
the 7 years continuous physical presence in the United States required
for suspension of deportation because Wong had never been admitted
for lawful permanent residence 2 In Matter of Legaspi, 11 I&N Dec. 819
BIA 1966), we squarely addressed the issue of deportability based on
similar excludability at "entry," by an alien who had never -ireerradmitted
as a lawful permanent resident. We concluded that the Fleuti doctrine
only protected aliens lawfully admitted for permanent residence from
having an innocent, casual, and brief absence abroad considered an "entry"
for purposes of deportability. Matter of Legaspi, supra, is squarely
in point with the facts on this case.
The respondents rely on our subsequent decision in Matter of Wong,
12 I&N Dec. 271 (BIA 1967), where we superseded our 1964 holding in
the similarly named Matter of Wong, supra. We found that an alien who
had never been admitted as a lawful permanent resident had not meaningfully interrupted his physical presence here for purposes of suspension of deportation. He had entered the United States five or six times
after brief visits to Canada, avoiding inspection by falsely claiming to be
a United States citizen. We then adopted th ► holding of the Ninth
Circuit Court of Appeals in Tiratiman v. INS. 329 F.2d 812 (9 Cir. 1964):
and Git Foo Wong v. INS, 358 F.2d 151 (9 Cir. 1966) which applied the
Fleuti test in suspension of deportation cases Dir determining wheth'er
continuous physical presence here had been interrupted. The respondents contend that therefore the Fleuti doctrine should be deemed to
protect an alien never admitted as a resident from deportability based
on a brief absence from the United States.
However, in Matter of Del Rosario, 13 I&N Dec. 324 (BIA 1969) and
Matter of Dabiran , 13 I&N Dec. 587 (BIA 1970) we specifically declined
to apply the Fleuti doctrine to aliens never admitted as lawful permanent residents, in finding them excludable under section 212(a)(20) for
lack of a valid immigrant visa after brief visits to Mexico. Matter of Del
Rosario, supra, arose in California which like the present case, is within
the jurisdiction of the United States Court of Appeals for the Ninth
Circuit. We specifically declined to extend the Fleuti rationale outside
the suspension of deportation area for aliens never admitted as lawful
permanent residents. We limited the meaningful departure test applied
in Matter of Wong, supra; Wadman v. INS, supra, and Git Foo Wong v.
INS, supra, to determinations of whether a sojourn abroad meaning(BIA 1964); Matter of Acosta, 14 1&14 Dec. 666 (BIA 1974); Matter of Cauditlo-Villatobos,
11 I&N Dec. 15*(BIA 1965), affd Canditto-Vtiktiobos v. INS, 361 F.2d 329 (5 Cir. 1965);
Matter of Elocarra -Miranda, 12 igr.31 Dee_ 358 (11IA 1857): &Miter

tif

pnima,

486 (BIA 1973); Mifilin-Mendoza v. INS, 499 F.2d 918 (9 Cir. 1974).
See section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1).

469

14 LON Dec.

Interim Decision #2950
fully interrupted the continuous physical presence required for suspension of deportation. In fact, all three cases had affirmed findings of
deportability based on the same "entry" which was also held not to
interrupt continuous physical presence for suspension relief.
The respondents in this case would have been in the same legal position as those applicants in Matter of Del Rosario, supra, and Matter of
Dabiran, supra, had they been placed in exclusion proceedings as soon

as they arrived in Hawaii. The fact that their stop in Ensenada, Mexico
was brief and casual did not prevent their making an "entry" after being
inspected in Hawaii, because they had never been admitted as lawful
permanent residents. Matter of Del Rosario, supra. Moreover, the immigration judge properly found them excludable at entry under section
212(a)(20) for lack of a valid immigrant visa, since they intended to
reside in the United States permanently. Consequently, we reaffirm
our holding in Matter of Legaspi, supra, that an alien who has never
been admitted as a lawful permanent resident is not protected by the
Fleuti doctrine from ileportability under section 241(a)(1) for being
excludable at entry after a brief sojourn abroad. Accordingly, the appeal

will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order
and in accordance with our decision is Matter of Choutiar&s, 16 I&N
Dec. 168 (BIA 1977), the respondents are permitted to depart from the
United States voluntarily within 30 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 of failure so to depart, the respondents shall
be deported as provided in the immigration judge's order.

470


Interim Decision #1499

MAITEB OF OROYNOWEICI

In Visa Petition Proceedings
A.-14047448

•

Decided by Board Ai guat 19, 1966
Since the birth certificate of beneficiary (born out of wedlock in Poland in
1948) showing his father to be petitioner (a native and citizen of the United
States) reflects registration of such certificate in the Vital Statistics Bureau, which registration constitutes acknowledgment under Polish law, and
since acknowledgment by the natural father of a child born out of wedlock
in Poland constitutes legitimation, beneficial9%1s a "child" within the meaning of section 101(b) (1), Immigration and Nationality Act, as amended, and
eligible for nonquota status.

The case comes forward on appeal from the order of the District
Director, Chicago District, dated April 14, 1965, denying the visa
petition for the reason that the•beneficiary is not a "Child" . as defined
in section 101(b) (1) of the Aet, in that ha is not a. legitimate child.
The petitioner, a native and citizen of the United States, 56 years
old, male, seeks nonquota status on behalf of his child, - a native and
citizen of Poland, 17 years old, male. The petitioner admits that he
was not marriedto the mother of the beneficiary and that the beneficiary was 'born out of wedlock.
•
The District Director has concluded that the petitioner has failed
to furnish proof of establishment of paternity as required' by the
Family Law of Poland of 1946. The .file contains a report entitled
"Rights and Privileges of a Child Born Out of Wedlock, in 1948, in
Poland" furnished by the Library of Congress. 'It is believed that
the District Director's conclusion as to the effect of Polish law under
the circumstances of the case is misplaced.
In support of the' visa petition the petitioner has subinitted a birth
record issued by the Director of Vital Statistics and Bureau of Warsaw, Poland certifying that the beneficiary was born on June 5, 1948
in Wasewo, Ostrow-M.92, Poland. from father, Stanislaw Chojnowsld
(the petitioner) and mother HalinaChojnowski nee Witenski.
The report from the Library of Congress indicates that the Law of
287

Interim Decision #1499
1946, Concerning Family Law, provided three ways of establishing
the paternity of a child born out of wedlock, one of which was
acknowledgement by the father. Under Article 64, section 1, a father
may acknowledge his child born out of wedlock; and under section 9,
the acknowledgement shall be made in the form of an act before the
official of the Civil Status Registry. According to the law concerning the Civil Status Register of ±946, the civil status of a person is
established on the basis of the acts performed in the Civil Status
Register (Art. 1). Entries made 'in the Civil Status Register constitute conclusive evidence as to the events established in the Register, provided the Register is properly kept (Art. 42, section 1). Entries in the Register constitute proof of the events established by
them with respect to the birth, thus providing the answer to the
questions as to where the child was born, when, his sex, his first and
second name, the names of his father and mother.

The report from the Library of Congress states that both. the Law
of 1950 and the Law of 1964 state that all legal acts concerning the
legal status of a child and the establishment of the paternity of a
child, in particular,.should be determined according to the law existing at the time these acts were performed; hence, the provisions of the
Family Code of 1946 in the matter of the establishment of paternity,
were applicable. Article XXI, section 1 of the Law to Enforce the
Code of Domestic Relations of 1950, provides that the validity of
legal acts concerning the relationship between parents and children
which were performed before the Code of Domestic Relations took
effect shall be determined according to the provisions previously in

force. Article XII of the Code of Domestic Relations and Guardianship of 1964, which superseded the Law of 1950, contains a similar
provision. Under the Law of 1946 only a - child born out of wedlock
who was acknowledged by the father enjoyed the full legal status of
that of a child. born in wedlock (Art. 68).
The report goes on to state that the Code of Domestic Relations of
1950, and that of 1964, abolished all distinctions between children
born of legally married parents and those born out of wedlock. Article XXVII provides that whenever the paternity of a. man who is not
the husband of the mother has been determined, in any way provided
for by the law in force, before the day on which the Code df Domestic
Relations took effect (prior to October 1, 1950), the child shall have
all rights and duties in. regard to his father and: his family in. accordance with the Code of Domeitic Relations on the day on which the
Code of Domestic Relations went into force. The Law to Enforce the
Code of Domestic 'Relations and Guardianship, which superseded the
Law of 1950, contains a similar provision.
288

Interim Decision' # 1499
The petitioner herein has submitted a birth certificate relating to
the beneficiary which shows that the petitioner is the father of the
beneficiary and such birth certificate was registered. in the Vital Statistics Bureau. This registration constitutes conclusive evidence of
the events established in the Register and constitutes acknowledgement so as to render the child legitimate in accordance with the Law
of 1946. Under the Polish lavi the child is legitimate. The matter of
legitimation under Polish law is treated at length in Matter of K—,
8 L & N. Dec. 73. The appeal will be sustained.
ORDER: It is ordered that_ the appeal be sustained. and that
the vim petition be approVed for nonqnota status on behalf of the
beneficiary.

289


MATTER

or J—

In VISA PETITION Proceedings
A-11841872
A-11841873
A-12001860
Bedded by Board April 04, 1961
Illegitimate child—British Guiana—Legitimation requires marriage of natural

parents.
Under the law of British Guiana, acknowledgment or recognition by the natural father of a child born out of wedlock does not result in legitimation.
The marriage of the natural parents is the only means of legitimating such
a child.

BEFORE THE BOARD
DISCUSSION: The case comes forward on appeal from the order

of the District Director, Boston District, dated December 12, 1960,
denying the visa petitions on the ground that it has not been established that the beneficiaries qualify as a son, daughter or child of
the petitioner for the purpose of according them quota preference
or nonquota status.
The petitioner, a native of British Guiana, 46 years old, male, was
admitted to the United States for permanent residence in 1952 and
became a naturalized citizen on January 12, 1959. lie married his
wife, a native of Canada and a naturalized citizen of the United
States, on December 17, 1949. The petitioner's wife is not the mother
of the beneficiaries.
The petitioner has filed a petition to classify the status of the
beneficiaries for preference quota or nonquota status as their parent. The male beneficiaries were born on June 9, 1939, and September 28, 1940, respectively, and the female beneficiary was born October 23, 1936. All were born in British Guiana. The documents
submitted indicate that they were born out of wedlock, the surnames
on the birth certificate being "McL—" and the mother being shown
RS

The record contains a sworn declaration executed at British

Guiana on June 17, 1959, by the mother of the beneficiaries. This
declaration states that she has been married but one time, on May
246

28, 1049, to a person who is not the father of the beneficiaries.
However, she declares that she is the natural mother of the beneficiaries and that the petitioner is their natural father. The petitioner by affidavit dated October 3, 1960, likewise declares that the
beneficiaries are his natural blood children, the issue of his relationship with I—McL--; that he has always recognized his responsibility as the legal father and has assumed such responsibility by
providing for their support. In addition, there have been submitted
two Deed Polls which show that the mother appeared on April 30,
1956, before a clerk and notary public of the Supreme Court of
British Guiana and declared her wish that the two sons should
thereafter assume and adopt the names of C—J— and H—J— and
renounce the names of F—McL— under which their births were
rcgietered. This document does riot mention the father and the
function of these declarations, other than to legalize the change of
names, is not known. There is no claim that this document constitutes a legal form of legitimation or adoption under the law of
British Guiana. A private bill, 11.11,. b6 -4303, introduced for the
object of having the beneficiaries considered as the natural-born
children of the petitioner for the purposes of section 101(a) (27) (A)
of the Immigration and Nationality Act failed of passage.
It appears to be the contention of the petitioner that he is the
"legal" father of the beneficiaries who are his "legal" children and
thereby qualify for preference or quota status under the immigration laws. However, in order to qualify for the parent-child relationship, the parties must fall within one of the categories set forth
in section 101(b) (1) and (2) of the Immigration and Nationality
Act.
If the petitioner contends that by virtue of his acknowledgment
or recognition of the beneficiaries as their natural father he has
thereby effected their legitimation under the law of British Guiana,
the law of British Guiana does not support his position. The Legitimacy Ordinance' sets forth in section 3 that where the parents of
an illegitimate person marry or have married one another, whether
before or after the commencement of the date of the Ordinance, the
marriage, if the father of the illegitimate person was or is at the
date of the marriage domiciled in British Guiana, renders that person, if he is or -was living, legitimate from the date of marriage.
Thus, by the law of British Guiana, marriage of the parents appears
to be the only method of legitimation. While the recognition by
the natural father of the illegitimate children may have conferred
the rights to bear the father's name or given such illegitimate children some sort of status, it is apparent that the status so conferred
did not amount to legitimation. There is no contention that the
I Chapter 165, Laws of British Guiana, May 14, 1932.

247

beneficiaries were legitimated under the Jaw of the petitioner's domicile, to wit, the State br: Massachusetts, inasmuch as it is our understanding that the Jaw of Massachusetts likewise, requires the marriage of the natural parents to effect legitimation. 2
The facts of the case have- also been considered to determine
whether the beneficiaries qualify as adopted children uYider section
101(b) (1) (E) of the Immigration and Nationality Act. The Adoption of Children Ordinance provides that adoptions in British
Guiana are effected by order of the court having jurisdiction for
sucn purpose and following preliminary arrangements by the duly
constituted Adoption Board. No evidence has been submitted that
such a court adoption ever occurred. Therefore, the beneficiaries
cannot qualify as adopted children within the meaning of section
101(b) (1) (E) of the immigration and Nationality Act.
It is, therefore, concluded that the visa petition filed by the citizen father on behalf of the beneficiaries must be denied because the
beneficiaries never qualified as children, legitimated or adopted, of
the petitioner for the purpose of making them eligible for quota
preference or nonquota status under the provisions of sections
101(a) (27) (A) and 203(a) (2) of the Iminigration and Nationality Act. It is unnecessary to consider whether the beneficiaries
can be regarded as stepchildren of the petitioner's wife since no such
petition has been filed by the wife.
ORDER: It is ordered that the appeal be and the same. is hereby
dismissed.
2
3

Chapter 190, section 7, Massachusetts General Laws.
British Guiana Ordinance No. 12 of 1955.

248


MATTER OF L

F

Y

In SECTION 249 Proceedings
A-11432979
Decided by Assistant Commissioner March 9, 1960
Record of lawful entry—Eligibility under section 249 based on entry prior to
July 1, 1924, requires creation of record as of date of entry—Expunges known
grounds of deportability based on events prior to date of approval.
(1) An alien qualified for registry under amended section 249 of the act who
has resided in the United States since 1921 is entitled to have a record of
lawful admission created as of the date of such entry notwithstanding subsequent unlawful reentries without inspection in 1924 and 1930.
(2) Creation of a record of lawful admission as of a date prior to July 1,
1924, expunges known grounds of deportability in existence prior to the date
of approval of the application under section 249.

BEFORE THE ASSISTANT COMMISSIONER

Discussion: The applicant, a 59-year-old native and citizen of
China, first entered the United States on February 11, 1921.
He Was admitted under the name of L W J as a United
States citizen based on his allegation that he was the son of L
a. United States citizen. He then obtained a certificate of
identity as a United States citizen and by means of that certificate
he gained entry into the United States on September 5, 1924, and
May 14, 1930, as a United States citizen after temporary visits to

China. He is married to a native and citizen of China presently
residing in Hong Kong and he has one son residing in Long Island,
New York.
On April 15, 1959, in a sworn statement made before an officer of
this Service, the applicant stated that his true father, L
L
F
, was a native and citizen of China who had never been a
United States citizen, and that his alleged father, L—L
, was
actually not related to him. On May 12, 1959, the application under
consideration was submitted.
On July 15, 1959, the district director found that the applicant
had established that he was eligible for the benefits sought and created a record of lawful entry as of that date. On September 4,
1959, the applicant submitted a motion for reconsideration alleging
that a record of lawful entry should have been created as of Febru601
562713-61

0

ary 11, 1921, the date on which he first entered the United States.
The district director denied the motion and submitted the case to
the Regional Commissioner for concurrence. The Regional Commissioner concurred in the decision of the district director and the
case has come forward for review.
The district director, in making his decision, concluded that if a
record of lawful entry for permanent residence was created as of a
date prior to July 1, 1924, the applicant would still be deportable
under section 241(a) (2) of the act by reason of his entries without
inspection on September 5, 1924, and May 14, 1930. He further
concluded that creation of a record of lawful admission for permanent residence as of the date of approval of the application
v. "uld expunge any ground of deportation based on actions arising
prior to the date of approval.
Prior to its amendment by the Act of August 8, 1958 (72 Stat.
546), section 249 contained a requirement that the applicant establish
that he was not subje^,t to deportation. The amended section 249
no longer contains that requirement ; therefore, no determination as
to deportability need be made in adjudicating an application under
that section of law.
The pertinent portion of section 249, as amended, now. reads:
"A record of lawful admission for permanent residence may, in
the discretion of the Attorney General and under such regulations
as he may prescribe, be made in the case of any alien, as of the date
of the approval of his application or, if entry occurred prior to
July 1, 19°24, as of the date of such. entry, if no such record is

otherwise available * * *" (emphasis supplied). The bill which
became the Act of August 8, 1958 was amended by the committee
of the Congress which had it under consideration and the emphasized portion was added. The committee report which accompanied
the bill stated that the purpose of that amendatory language was to
preserve the date for establishment of a record of lawful entry
under existing law for those aliens who entered prior to July 1,
1924 (S. Rept. No. 1905, 85th Cong., 2d Sass.). In construing
section 249, as amended, it is essential to bear in mind this legisla*Ave _mandate to record lawful entry for permanent residence as of
the date of entry when such entry occurred prior to July 1, 1924.
It is concluded, therefore, that when an applicant establishes eligibility for relief under section 249 based on an entry prior to July 1,
1924, the record of lawful admission for permanent residence must
be created as of the date of such entry.
It remains to be determined whether the applicant in this case
would be deportable under section 241(a) (2) if such a record is
created. The committee report cited above goes on to state that the
purpose is amending section 249 was to enlarge the scope of authority
602

to permit discretionary consideration of the adjustment of status of
aliens who are subject to deportation on generally technical grounds
only. It is true that if section 241, dealing with deportation, and
section 249 are read separately, it might be concluded that on the
one hand Congress favored the recording of lawful entry and on the
other took from the prospective beneficiary the relief granted. That
is hardly an intelligent way to interpret a legislative enactment.
To find on one page that the statute bestowed benefits and on another cancelled them is to attribute to Congress an irrational futility. Such absurdities are rejected by universally ratified maxims
of statutory interpretation (Lau Ow Bow v. United States, 144
U.S. 47, 59 (1892) ; Ozawa T. United States, 260 U.S. 178, 194

(1922) ). It has been held that once a record of lawful admission
for permanent residence has been created pursuant to section 249
such action constitutes, for purposes of reentry, a waiver of all
known grounds of inadmissibility (Matter of AS—, A-6420797,
A 1111537, Int. Dec. No. 1022). In order to ef fectuate the overall
legislative design, it must also be held that, subject to the provisions
of section 246, the creation of a record of lawful admission as of
a date prior to July 1, 1924, pursuant to section 249 expunges any
known ground of deportability based on events which took place
prior to the date of approval of the application.
The district director's order will be amended accordingly and a
record of lawful admission will be created as of February 11, 1921.
Order: It is ordered that a record of lawful admission be created
F
in the name of L
Y as of February 11, 1921.

603


Interim Decision #2829

MATTER of NG

In Exclusion Proceedings
A-21880232
Decided by Board August 29, 1980
(1) A misrepresentation of identity is not a misrepresentation of a material fact under
section 212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(19), unless
it tends to shut off a line of inquiry which is relevant to an alien's eligibility for status
or might have resulted in a proper determination he was excludable.
(2) Whether alien who fled from the People's Republic of China to Macao where he
remained for 4 years and then entered Hong Kong by assuming his brother's name and

identity, made a material misrepresentation when he entered the United States as a
refugee in the name of his brother, depends on whether the misrepresentation of
identity concealed firm resettlement in. Macao or other ineligibility for refugee status
such as participation in proscribed persecution. (See Section 203(1)(2)(4 of the
Refugee Act of 1980, Pub. L. 96-212,94 Stet. 102, section 243(h)(2) of the Immigration
and Nationality Act as amended,-8 U.S.C. 1253(h)(2)).
ExcLunastm
Order Act of 1952—Sec. 212(a)(19) [8 U.S.C. 1182(a)(19)]—Procured documentation
through fraud or willful misrepresentation of material fact

Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant without a
valid visa
ON BEHALF OF APPLICANT. Richard P. Maracina, Esquire
30 Vesey Street
New York, New York 10013
By: MilholLin, Chairman; Maniatis, Appleman, and Maguire, Board Members

The applicant appeals from the June 19, 1980, decision of an immigration judge finding him excludable under both section 212(a)(19)
and section 212(a)(20) of the Immigration and Nationality Act, 8 U.S.C.
1182(a)(19) and 1182(a)(20), respectively. The appeal will be sustained
and the record remanded for further proceedings.
The facts of this case are not in question. Only their legal consequence is at issue. The applicant is a native and citizen of the People's
Republic of China, born in Kwantung on January 5,1947_ In 1985, he
fled to Macao where he was briefly detained but later released and
issued a Macao Identification Card bearing his true name (Ex. 5). In
536

Interim Decision 112829
1969, he left Maeao for Hong Kong. He was smuggled into Hong Kong
and presented himself to the authorities there assuming his brother's
name. The brother had never left mainland China. According to the
applicant he assumed his brother's name in order to conceal his Macao
sojourn from the Hong Kong authorities because he feared being
returned to the People's Republic of China and dreaded returning to
Magian_ His ruse was successful and he obtained a Hong Kong identity
card under the name Kam Hung Ng, his younger brother's name (Tr. p.
21) (Ex. 4).
In 1976 in Hong Kong, he applied for registration as a refugee under
section 203(a)(7) of the Act, 8 1153(a)(7) under his assumed
name (Ex. 3). He had been residing and working in Hong Kong under
that assumed name. His application was granted on November 16,
1977, and he was paroled into the United States as a refugee in San
Francisco on December 4, 1977. On December 11, 1979, his parole was
revoked when the deception was discovered and the present exclusion
proceedings were initiated (Ex. 1). •

The immigration judge ruled that the applicant was excludable
under section 212(a)(19) of the Act and therefore, his entry document

was invalid, rendering him excludable under section 212(a)(20) also.
Consequently, his excludability under section 212(a)(20) was deemed
entirely dependent upon the 212(a)(19) charge. The immigration judge
stated in a conclusory fashion "his misrepresentation of identity to the
Service, in Hong Kong, was a willful misrepresentation of material
fact ... within the purview of section 212(a)(19) of the Act ... and he
was not entitled, upon his application, to parole into the United States
on conditional entry as a refugee." We disagree with the immigration
judge's apparent conclusion that misrepresentation of identity is a
misrepresentation of a material fact per se.
Section 212(a)(19) of the Act bars from entry into the United States
"any alien who seeks to procure a visa or other documentation . by
fraud, or by wilfully misrepresenting a material fact." A misrepresentation is material under section 212(a)(19) of the Act if it
tends to shut off a line of inquiry which is relevant to the alien's
eligibility, and which might well have resulted in a proper determination that he be excluded. Matter of S— and B—, C—, 9 I&N Dec. 436
(BIA 1960; A.G. 1961); cf. Suite v. INS, 594 F.2d 972 (3 Cir. 1979).
In Matter of Gilikevorkian, 14 I&N Dec. 454 (BIA 1973) we ruled that
an alien's entry as a nonimmigrant under a false identity did not
constitute a material misrepresentation within the meaning of section
212(a)(19) -where the false identity was adopted for reasons unrelated
to obtaining admission into the United States and the name had been
used for a prolonged time prior to entering this country. That case
differs from the present case in that the applicant seeks admission as
Corr

Interim Decision #2829
an immigrant refugee under section 203(a)(7) of the Act which was
recently modified by the Refugee Act of 1980, Pub. L. 96 212, 94 Stat.
102. The Refugee Act precludes the admission into this country under
-

refugee status of aliens who participated in racial, nationality, religious, or political persecution. See section 243(h)(2), 8 U.S.C.

1253(h)(2). Thus, concealment of true identity can be material in the
cases of aliens who have engaged in persecution.
Another instance of materiality takes place where the identity
misrepresentation would conceal the fact that an alien has been firmly
resettled in a third country where he is not subject to persecution and
thus, no longer meets the definition of refugee. SeeRosenberg v. Woo,
402 U.S. 49 (1971); Matter of Chai,12 I&N Dec. 81 (BIA 1967); Matter of
May, 12 I&N Dec. 121 (BIA 1967); Matter of Hung,12I&N Dec. 1'78 (BIA
1967). The applicant by misrepresenting his identity concealed the fact
that he had resided in Macao for four years. If he had firmly resettled
in Macao, his failure to disclose his true identity would constitute a
material misrepresentation since it would have concealed his ineligibility for refugee status.'
Consequently, we will remand the record to the immigration judge
for further proceedings in order to assess the materiality of the applicant's identity misrepresentation including consideration of participation in proscribed persecution, and the possibility that he was firmly
resettled in Macao. Further evidence may be addressed as appropriate.
The applicant retains the burden of establishing admissibility since
he has never obtained lawful permanent resident status. Matter of
Moore, 12 I&N Dec. 711 (BIA 1971); cf. Kwong Hai Chew v. Rogers, 257
F.2d 606 (D.C. Cir. 1958); Matter of Kane,15 I&N Dec. 258 (BIA 1975);
Matter of Becerra Miranda, 12 I&N Dec. 358 (BIA 1967). Thus, a
-

further hearing on remand is also required on the applicant's eligibility for section 203(a)(7) refugee status even if the misrepresentation
is determined to be immaterial. The appeal will be sustained and the
record remanded for further proceedings in accordance with this
opinion.
ORDER: The appeal is sustained and the record remanded for
further proceedings in accordance with this opinion.
FURTHER ORDER, If the decision on remand is adverse to the
applicant, the record shall be certified for our review.

'See appendix to Immigration and Naturalization Service Operations Instruction

235.12.

538


MATTER OF K—

In DEPORTATION Proceedings
A-11363561
Decided by Board June 15, 1962
Section 249 application—Reconsideration—Previous denial and entry of order
of deportation prior to January 22, 1962.
As stated In the Federal Register of December 19, 1961, pp. 12110 and 12111,
in connection with the regulations to become effective January 22, 1962, derisions by district directors and regional commissioners under section 249

(as well as other specified sections) are final in all cases where (1) the
unreversed determination was made prior to January 22, 1962, in accordance
the then existing regulations, and (2) a finding of deportability was
made by a special inquiry officer prior to said date. An alien is not entitled
to renew such application under section 249 which was determined prior to
January 22, 1962; or to have any such decision reconsidered, in accordance
with the amended provisions of Part 242, unless he can establish that he is
in possession of material, newly discovered evidence which could not have
been presented for consideration at the time of the prior adjudication. In
this case, the determination of the 249 application and the finding of deportability were made prior to January 22, 1962; there is no offer of newly
discovered evidence. Hence, the motion to reconsider and reopen under
S CFR 3.2 is denied.
CHARGE:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at time of entry—Quota immigrant not in possession of visa.
BEFORE THE BOARD

DISCUSSION: The respondent is a native and citizen of China,
47 years old, male, who last entered the United States at the port
of San Francisco, California, on January 16, 1949, and was admitted
by falsely representing himself to be a United States citizen. He
had first been admitted to the United States on November 16, 1934,

under the assumed identity of the son of a United States citizen.

He

departed from the "United States on March 22, 1941, and returned

as indicated above. In 1951 and 1953 he filed visa petitions on
behalf of his wife and 4 sons for nonquota status as the wife and
children, respectively, of a United States citizen. On May 21, 1953,
he falsely swore before an immigration officer that he was a United
715

States citizen and the father of 4 sons. On May 20, 1957, the respondent confessed his alienage, admitted he had but 2 sons and
admitted the commission of perjury in connection with his false
statement. on May 21, 1053. On July 25, 1958, the Board dismissed
his appeal from the order of deportation of the special inquiry officer
on June 18, 1958, finding he was precluded from establishing good
moral character under sections 101(f) (3) and (6) of the Immigration and Nationality Act. The respondent thereafter made application for registry pursuant to section 249 of the Act and on May 13,
1960, the Regional Commissioner, San Pedro, California, dismissed
the appeal from the decision of the District Director, San Antonio,
Texas, dated April 19, 1960, solely on the ground that the applicant
was inadmissible under section 212(a) (9), admission of the commission of perjury.
The motion for reopening and reconsideration is based on the
ground that the respondent believes the Regional Commissioner
herein applied an erroneous rule of law in denying registry under
section 249 of the Immigration and Nationality Act. It is set forth
that the motion is addressed to the Board of Immigration Appeals
in view of the fact that respondent has been ordered deported and
the Board now has jurisdiction in this matter.
The Acting District Director, San Antonio District, by memorandum dated Fehr nary 20, 1962, addressed to this Board, asserts
that the motion should be denied on the ground of lack of appellate
jurisdiction for the reasons that the Board does not have authority
to reopen and reconsider an order of the regional commissioner denying an application under section 249 of the Immigration and Nationality Act and regulations thereunder; that 8 CFR 3.2 states
that the Board may reconsider its own decisions and that decisions
.

-

of the Commissioner in certain enumerated types of proceedings may

be regarded as the Board's decisions for the purpose of this rule, but
that none of the Commissioner's decisions so described involve 8 CFR,
Part 249; that it is nowhere provided that jurisdiction over Part 249
cases, formerly delegated to regional commissioners, has been transferred to the Board in the same way as Commissioner's decisions,
pursuant to the last sentence of 8 CFR 3.2; that the appellate
authority of the Board is limited to the category of cases listed in
8 CFR 3.1 (b), which does not include section 249 cases; that the
Board has jurisdiction over section 249 applications only upon a
review of an order by a special inquiry officer made pursuant to

section 242 and regulations thereunder ; that denial of a proceeding
under 8 CFR, Part 249, by a district director is final unless an
appeal is filed in which event, if the denial order is affirmed by the

regional commissioner having appellate jurisdiction, the order becomes final and not appealable; that when an alien renews a sec716

tion 219 application iu deportation peoccodingEi, no provided in S CFR

249.2 and 8 CFR 242.17(a), the record and decision which the Board
has authority to review on appeal pursuant to 8 CFR 3.1(b) (2) and
8 CFR 242.21 are the record and decision of the special inquiry
officer, not those of the district director and the regional commissioner.
The motion to reopen and to reconsider sets forth that the decision
of the Regional Commissioner is erroneous as a matter of law on the
following grounds: (1) that the admission of perjury was not effective because retraction prior to exposure avoids perjury; (2) that
the respondent has not made an effective admission of the commission of the crime of perjury for the reason that an adequate definition of perjury in understandable terms was not given and that all
the essential elements were not admitted, in that, there was no admission by the alien that the immigration officer was duly authorized
to administer an oath or that the alien's testimony was material;
(3) that the offense of perjury allegedly committed in 1953 was
barred by a 5 year statute of limitations, 18 U.S.C. 3282, and that
admission of an offense barred by the statute of limitations should
not support inadmissibility.
The memorandum of the District Director maintains that there
was a valid and binding admission of the commission of the crime
of perjury. At oral argument the Service representative rested his
argument upon lack of jurisdiction in the Board to reconsider the
denial of the registry application. Counsel has filed a supplemental
memorandum, citing 8 CFR 3.8, which he contends clearly contemplates that the Board, as distinguished from the district director
and the regional commissioner, shall have authority to reconsider
a matter for an error of law. We shall dispose of the jurisdictional
issue first.
The appellate jurisdiction of the Board of Immigration Appeals
is set forth in section 3.1(b), Title 8 CFR, which provides that
appeals shall lie to the Board from the following:
-

(1) Decisions of special inquiry officers In exclusion cases, as provided in
Part 236 of 8 CFR.
(2) Decisions of special inquiry officers in deportation cases, as provided in
Part 242.
(3) Decisions on applications for the exercise of the discretionary authority contained in section 212(c) of the Act, as provided in Part -212.
(4) Decisions involving administrative fines and penalties, including mitigation thereof, as provided in Part 280.
(5) Decisions on petitions filed in accordance with section 205 of the Act
or decisions revoking the approval of such petitions in accordance with
section 206 of the Act, as provided in Parts 205 and 206.
(0) Decisions on applications for the exercise of the discretionary authority authorized in section 212 (d )' (3) of the Act, as provided in Part 212.
(7) Determinations relating to bond, parole, or detention of an alien, as
provided in Part 242.

717

The subject of reopening or reconsideration is dealt with in section 3.2 of Title 8 CFR. It provides in pertinent part that motions
to reopen in deportation proceedings should not be granted unless it
appears to the Board that the evidence sought to be offered is material and was not available and could not have been discovered or
presented at the former hearing. Section 3.8(a), Title 8'CFR, states
that motions to reopen shall state the new facts to be proved and

shall be supported by affidavits or other evidentiary material and
that motions to reconsider shall state the reasons upon which the
motion is based and shall be supported by such precedent decisions
as are pertinent. Section 3.2, Title 8 CFR, states that for the purpose of this section, any final decision made by the Commissioner
prior to the effective date of the Act with respect to any case within
the classes of cases enumerated in section 3.1(b) (1), (2), (3), (4),
or (5) shall be regarded as a decision of the Board.
The regulations, 8 CFR 3.2 and 8 CFR 3.8, contemplate that a
motion to roopon or to reconsider a previous Board dooicion will lie
for newly discovered evidence or for errors of law.' The seven categories embracing the Board's jurisdiction are set forth in 8 CFR
3.1(b). The second category, a decision of the special inquiry officer
in deportation proceedings as provided in Part 242, is involved in
the present motion. Part 242, as amended, 2 provides that applications under sections 243(a), 243(h), 245 and 249 of the Act may be
made, or if previously denied by the district director, may be renewed under Part 242. However, there appears on pages 12110 and
12111 of the Federal Register of December 19, 1961, a recapitulation

of the miscellaneous amendments to the various parts of Title B CFR,
which thereafter follow, the last paragraph preceding the amendment to Part 103 reading as follows:
In addition to the amendatory regulations which are set out below and are
hereby adopted, determinations by district directors under section 243(a) of
the Act, decisions by regional commissioners under sections 243(h), 245, and
249 of the Act, and decisions by district directors under sections 245 and 249
of the Act which have not been appealed or certified shall be final in all cases
where (1) the determination or decision has been made prior to January 22,
1962, in accordance with the regulations then in effect, and (2) a finding of
deportability has been made by a special inquiry officer prior to said date;
and the alien shall not be entitled to have any such determination or decision
by the district director or regional commissioner reconsidered in accordance
with the amended provisions of Part 242 unless he can establish that be is
in possession of evidence which Is material and which by due diligence could
not have been discovered and presented for consideration at the -time of the
prior adjudication.

In the present case the decision of the Regional Commissioner, San
Pedro, California, affirming the decision and order of the District
Gordon and Rosenfield, Immigration Law and Procedure, p. 49.
26 P.R. 12110-12114 (December 19, 1961, effective January 22, 1962).

718

Director solely on the ground that the applicant was inadmissible

under section 212(a) (9), perjury, and was, therefore, precluded from
adjustment sought under section 249 of the Immigration and Nationality Act, was entered May 13, 1960. The decision of the District
Director denying the application for status as a permanent resident
under section 249 was dated April 19, 1960, after consideration of a.
brief filed by the then counsel contesting the admission of the crime
3-823, the same a.dininistrative
of perjury, citing 31 after of
decision cited by present counsel in his motion. The same point of
law was raised previously and was decided against the alien.' No
case has been cited for the proposition that a statute of limitations
applies to admissions of the commission of a crime and the immigration law does not prescribe, any.
The determination of the section 249 application was rendered
prior to January 22, 1962. It could not be renewed in accordance
with the amended provisions of 8 CFR Part 242, unless new and
material evidence, previously not available, was presented. The
language quoted shove sets forth a statement of administrative

finality for determinations on decisions specified therein which were
rendered prior to January 22, 1962, unless the possession of newly
discovered evidence can be shown. None has been offered in the
present motion. The motion to reconsider and reopen under 8 CFR
3.2, as amended, will be denied.
ORDER: It is ordered that the motion be and the same is hereby
denied.
We are not persuaded there was any error in the previous decision. Mat
ter of R—R—, 3-823, involved a retraction on the following day; Matter of
G—M—, 7-40, is not applicable; here the alien admitted he had been sworn.
Cf. United States or rel. De La Puente v. Swing, 146 F. Stipp. 648, aff'd 239
10.2d 759 (C.A. 5, 1956), as to admission of essential elements of perjury: (1)
the taking of an oath whet. the law authorizes an oath to be administered;
(2) to testify truly; (3) willfully- aull contrary to such oath making a false
statement; (4) as to a material fact; (5) which he did not believe to be true;
not necessary to understand the legal definition of perjury.

719