MArrral OF FAA PLArTE "FLIGHT 896/10"
In FINE Proceedings
HMV-280.28
Decided by Board December 2, 1959
Fit.e—Section 273 of 1952 act—Liability is incurred when alien seeking TRWOV
privilege lacks valid passport.
Carrier presenting passenger for admission in transit without visa (TRWOV)
who is not in possession of passport or other document authorizing her
entry into country hey end United States as required by section 228(d)
Agreement, is held liable to fine under section 273 of the 1952 act.
IN RE: FAA Plane "Flight 89G/10," which arrived at Honolulu, Hawaii, from
F
H
.
foreign on May 10, 1859. Alien passenger involved: B

BEFORE THE BOARD

Discussion: This appeal is directed to an administrative penalty
of $1,000 which the District Director at Honolulu has ordered imposed on Pan American World Airways, Inc., owners of the abovedescribed aircraft. The specific violation charged is bringing to
the United States from a place outside thereof the above-named alien
passenger who was not in possession of an unexpired visa and was not
exempt from the presentation of same. The appeal will be dismissed.
There is no dispute as to the basic facts of this case. This female
alien passenger, a native of England and a British subject, arrived
aboard the above-described aircraft on a flight from Nadi, Fiji.
She was not in possession of any type of visa valid for admission
into the United States, and was presented by the carrier for admission in transit without a visa (TRWOV). She presented an unrenewed New Zealand passport with all expiration data of January 9
1959. It contained the following endorsement: "This passpor
should not be renewed unless evidence of the holder's birth in Eng
land is produced." Her passport listed the passenger's birthpiac
as England and Form 1-94 listed her home address as Eng -lanC
She stated that she was destined to England, and her ticket shove
that she was booked to depart from Seattle, Washington, for Ent
land on May 11, 1959, the day following her arrival in Honoluli
Under these circumstances, and due to the fact that the- passeng(
appeared to be somewhat senile and completely puzzled concernir.

498

.er situation, she was paroled to continue her trip and she appardeparted from the United States, as per schedule.
The carrier admits that it brought the passenger to the United
states, as above ; and that she did not possess an unexpired visa or
valid passport. However, it contends that she was not required to
have a valid visa inasmuch as she was presented as a TRWOV,
pursuant to section 238(d) of the. Immigration and Nationality Act
(8 U.S.C. 1228). It argues that since she was in possession of a
New Zealand passport which certified to her identity, this document
would suffice to guarantee her entry into England as a British subject. It pointed out that she had confirmed transportation from
New Zealand to England, and was in transit through the United
States, as required by the agreement (Form I-426) entered . into
between the carrier and the United States Government. Finally,
the carrier claims that the fact that the passenger was admitted to
the United States is sufficient proof that she held adequate documentation.
Upon careful consideration of the entire evidence of record, together with the. representations throughout, we are of the opinion
that the district director has properly ordered a penalty imposed
in this case.
In the first place, the passenger was not admitted into the United
States but only paroled as a privilege and solely for humanitarian
reasons. This action can in no way be construed as indicating that
she was in possession of proper documents.
Second, Item 1(b) of the. I 426 agreement, supra, contains the
requirement that the alien have "a valid visa, passport or other
travel document authorizing his (her) entry into a country beyond
the United States as required by such country." This requirement
of the agreement was clearly not met in this instance. The passport
which the passenger presented had expired and was, therefore, no
guarantee that the passenger would be admitted into England. Also,
because of the notation in the passport there was reason to doubt
that she would be admitted to New Zealand if she applied there.
Third, in view of the foregoing, the passenger was not clearly
and beyond doubt admissible to some country other than the United
States. Therefore, she could not properly he. presented as a TRWOV.
Finally, under the circumstances hereinhefore outlined, the carrier
certainly did not exercise due diligence in bringing her to the United
States as a TRWO V. Even cursory examination of the passport
would have revealed that it had expired and that its value as a
document of identity was questionable. The fact that the passenger
had confirmed continuous transportation through the. United States
is not the sole requirement under the agreement (supra).
Order: It is ordered that the appeal be and the same is hereby
dismissed.
ntly

499


Interim Decision #2164

MATTER OF ESSEX CRYOGENICS INDUSTRIES, INC.
In Visa Petition Proceedings
STL—N-968

Decided by Deputy Associate Commissioner September 22, 1972
Beneficiary, who is a member of the professions (mechanical engineer) and who
is otherwise qualified, is eligible for classification as an alien of distinguished
merit and ability under section 101(a)(15XH)(i) of the Immigration and Nationality Act, as amended, even though he was previously employed with petitioner's engineering staff as a nonimmigrant student for practical training
purposes; there are unemployed engineers in the State in which his services
are to be performed; and his continued employment by petitioner might adversely affect the wages and working conditions of the workers in the United
States similarly employed. (Cf. Matter of St. Joseph's Hospital, Interim Decision
No. 2166.)

This case comes forward on certification for decision by the
Deputy Associate Commissioner, Travel Control. The District Di-

rector on August 23, 1972 denied the petition on the grounds that
it would be inconsistent to hold that the duties the beneficiary has
been performing as practical training are services requiring distinguished merit and ability; and that to grant the petition would be
to accord the beneficiary benefits not available to many residents
of Missouri who are engineers and, according to the Manpower
Administration, now unemployed.
The beneficiary, a native and citizen of Iran, was admitted to
the United States on January 28, 1965 as a nonimmigrant student.
He studied engineering at Northeastern Oklahoma A&M College
and the University of Missouri, from the latter of which he
received the degrees of Bachelor of Science and Master of Science,
both in Mechanical Engineering, in January 1970 and January
1971, respectively. The Service thereafter granted him permission
to accept employment for practical training in his field of study
and he took such training with the petitioner through July 30,

1972, the maximum time possible under the regulations.
The petitioner is a manufacturer of aircraft components with a
gross annual income of $1,800,000. It alleges that it currently has
many contracts including that under the F-15 military aircraft
program on which the beneficiary has been employed. The petitioner claims that during the period of his practical training as a
member of its engineering staff, the beneficiary proved himself to
196

Interim Decision #2164
be a valuable employee and a fine engineer who made a significant
contribution to the F-15 program, and whose loss now would
seriously hamper that program and add to its cost. It requests
that he be classified as a nonimmigrant under section
101(a)(15)(H)(i) of the Immigration and Nationality Act, as
amended, to continue in the employ of the petitioner as an
engineer in design and testing.
Section 101(015)(H) of the Immigration and Nationality Act, as
amended, now reads in pertinent part to define a temporary
worker:
(H) an alien having a residence in a foreign country which he has no intention
of abandoning (i) who is of distinguished merit and ability and who is coining
temporarily to the United States to perform services of an exceptional nature
requiring such merit and ability; or (ii) who is coming temporarily to the

United States to perform temporary services or labor, if unemployed persons
capable of performing such service or labor cannot be found in this country;
•••

The occupation of-engineer is defined as a profession in section
101(032) of the Immigration and Nationality Act, as amended.
The beneficiary here by virtue of his education as a mechanical
engineer is a momber of the professions. Matter of Semerjian, 11 I.

& N. Dec. 751 (1966). .The Service has long held that a person who
is qualified as a member of the professions qualifies as a person "of
distinguished merit and ability" as that term is used in section
101(a)(15)(H)(1), supra. If, additionally, he is to temporarily perform
specified services which require his professional abilities, he is
qualified for "H-1" classification. The petitioner in the present
case now employs the beneficiary as an engineer and has made an
adequate showing that he intends to continue temporarily the
beneficiary's services in that capacity, one which requires a person
of the beneficiary's training and experience. It is immaterial that

his earlier employment with the petitioner was for the purpose of
acquiring practical training.
The other ground advanced by the District Director for denying
the petition—the fact that there are now engineers residing in
Missouri who are unemployed—is equally untenable. In originally
framing section 101(aX15XH), supra, the Congress chose to include
only for the 11-2 temporary worker the condition, "if unemployed
persons capable of performing such service or labor cannot be
found in this country." This qualification is not present in the H-1
definition, and it must be concluded that its omission was deliberate. It is consequently only for the II-2 worker that the Service
requires the petitioner to apply for the Secretary of Labor's
certification that qualified persons in the United States are not
available and that the alien's employment will not adversely affect
197

Interim Decision #2164
the wages and working conditions of persons in the United States
similarly employed (8 CPR 214.2(hX3)).
The Congress last had occasion in 1970 to review and amend
section 101(a)(15)(H), supra. The resulting P.L. 91-225 was approved on April 7, 1970 and restated the then existing section of
law, modifying it essentially only to delete the requirement that
the services be temporary which the H-1 alien is coming to
perform. It is apparent therefore that the Congress intended to
relax the H-1 definition rather than to add to its conditions (as of
course it could have done at that time) the requirement of nonavailability of other capable persons in this country. The thinking
of the House Committee on the Judiciary, which recommended
passage of this 1970 amendment, is illustrated in the following
excerpt from its report (House Report No. 91-851, 91st Congress,

2nd Session, page 3):
Experience with the operation of the Immigration and Nationality Act has
clearly indicated that there is a need to modernize certain provisions regarding
the -admission of nonimmigrants. Specially skilled foreign nationals coming to
the United States for temporary employment or training are able to enter this
country as nonimmigrants under the provisions of section 101(a)(15XH) and (J) of
the Immigration and Nationality Act. However, certain limitations and conditions contained in these sections have caused difficulties in administration,
produced hardships, and have, been a source of friction with universities,
hospitals, international organizations, and other potential employers of distinguished or specially qualified aliens in the United States.

It is not material to the beneficiary's statutory eligibility for H-1
classification that there are other engineers in Missouri who are
unemployed or indeed that his employment by the petitioner
might have an adverse effect on the wages and working conditions
of workers in the United States similarly employed. This conclusion is compelled by the difference between the H-1 and H.-2
provisions in the law.
ORDER: It is ordered that the visa petition be and the same is
hereby approved.

198


Interim Decision #2262

MATTER OF UDAGAWA
In Exclusion Proceedings
A-20300772

Decided by Board February 13, 1974
a
Japanese restaurant and will assist in the preparation of meals during the
training period, is inadmissible as an employee of a treaty investor under
section 101(aX15XEXii) of the Immigration and Nationality Act, since he will
not be employed in a "responsible capacity" within the meaning of 22 CFR
41.41. [Matter of Tamura, 10 I. & N. Dec. 717 (Reg. Corn. 1964), overruled]

Applicant, who will supervise and train American workers as tempura cooks at

ON BEHALF OF APPLICANT: William J. Lawler, Esquire

615 Montgomery Street
San Francisco, California 94111
1182(a)(20)]—Immigrant
not in possession of immigrant visa.

EXCLUDABLE: Act of 1952—Section 212(a)(20)

The alien applicant is a native and citizen of Japan who arrived
at San Francisco, California on April 17,'1973, and sought admission as a nonimmigrant treaty investor. He was denied admission
and an exclusion hearing was held on April 20, 1973, at which time
the immigration judge found the applicant excludable under section 212(a)(20) of the Immigration and Nationality Act. The applicant has appealed that decision. The appeal will be dismissed.
Upon his arrival in the United States the applicant was in
possession of a Japanese passport and a nonimmigrant treaty
investor visa apparently issued by a United States consular official in Japan. At his hearing it was established that the applicant
is a cook or chef specializing in the preparation of Japanese tempura meals. He is in the employ of a Japanese corporation which,
through various corporate holdings, is the sole owner of a
Japanese restaurant in San Francisco where the applicant had

expected to work.
The applicant appears to have had at least one full year of
schooling and two years' practical experience as a cook. During
the last six months of his work experience in Japan he had
specialized as a tempura chef and had supervised the activities of
several other cooks. The applicant had been expected to remain in
the United States for as long as two years, during which time he
578

interim Decision gEzzoz
was to supervise and train American workers as tempura cooks
and was to assist in the preparation of meals at the restaurant. He
was due to replace another tempura chef at the San Francisco
restaurant, who evidently had had a similar assignment. An executive with the applicant's employer maintains that the
applicant's presence here is necessary to insure the quality of the
Japanese meals which are served at the restaurant until competent American help can be trained. This also appears to have been
the function of the applicant's predecessor at the restaurant. The
corporation's failure in its attempt to acquire adequate American
help appears to have stemmed from an unwillingness on the part

of successful trainees to remain at the job. Tempura cooking, it
appears, requires greater effort than other cooking jobs with comparable pay.
The applicant seeks admission as a nonimmigrant treaty investor. Section 101(a)(15)(EXii) of the Act defines a treaty investor as:
an alien entitled to enter the United States under and in pursuance of the
provisions of a treaty of commerce and navigation between the United States
and the foreign state of which he is a national, and the spouse and children of
any such alien if accompanying or following to join him:
(ii) solely to develop and direct the operations of an enterprise in which he has
invested, or of an enterprise in which he is actively in the process of
investing, a substantial amount of capital....

The applicant has indicated that he has no funds or other
property invested in any of the interrelated corporations involved
in this matter. The corporation which employs him is the investor
in this case, and for section 101(aX15)(E)(ii) to have any real
meaning in a world dominated by corporate entities, it must be
construed in a manner which would permit appropriate agents of
a corporation to obtain this nonimmigrant status. Consequently, it
would be appropriate to admit this applicant as a nonimmigrant
treaty investor, if he qualifies as an individual who intends "solely
to develop and direct" the operations of the enterprise.

At present the regulations of the Immigration and Naturalization Service do not confront the question of who may qualify for
treaty investor status. It appears, however, that a reasonable
construction of section 101(aX15)(EXii) is contained in 22 CFR
41.41. The relevant portion of this Department of State regulation
states:
(a) An alien shall be classifiable as a nonimmigrant treaty investor if he
establishes to the satisfaction of the consular officer that he qualifies under
the provisions of section 101(a)(15XE)(ii) of the Act and that: (1) He intends to
depart from the United States upon the termination of his status; and (2) he
is an alien who has invested or is investing capital in a bona fide enterprise

579

Interim Decision #2262
and is not seeking to proceed to the United States in connection with the
investment of a small amount of capital in a marginal enterprise solely for
the purpose of earning a living; or that (3) he is employed by a treaty investor
in a responsible capacity and the employer is a foreign person or organization
of the same nationality as the applicant.

While this regulation could be subject to varying interpretations,
we construe it to mean that an alien such as the applicant will
qualify as a "treaty investor" if he has the necessary intent to
depart and if he meets the conditions imposed by subdivision (3) of
the quoted portion of the regulation. Since the evidence adduced
at the hearing indicates that the applicant possesses the requisite

intent to return to Japan, the remaining issue in this case is
whether he can be considered to be "employed . in a responsible
capacity. ..."
The notes to 22 CFR 41.41, contained in the Department of State
Foreign Affairs Manual, elaborate upon the regulation. The note
which evidently relates to employment in a responsible capacity
reads:
Highly trained technical and managerial personnel employed by firms having
the nationality of a country which has entered into a treaty with the United
States providing for the investor classification are entitled to treaty investor
status if:
(a) they are employed in a managerial capacity, or
(b) they are highly trained and specially qualified technical personnel
required in the United States for one of the following purposes:
(1) establishment of the enterprise,
(2) training or supervision of technicians employed in manufacturing,
maintenance and repair functions, or
(3) the continuous development of product improvement and quality controL

Section 101(aX15XEXii) of the Immigration and Nationality Act,
the State Department regulation (22 CFR 41.41), and the accompanying notes must all be construed within the framework, and in
keeping with the concepts, of the Act.
In section 212(a)(14) of the Act Congress has evinced a desire to
protect American labor from excessive job competition which
might be generated by the presence in the United States of
numerous skilled and unskilled alien laborers. Nevertheless, aliens
who do not desire immigrant status, and who may be needed to
580

Interim Decision #2262
perform temporary services or labor in the United States, are
potentially eligible for admission as nonimmigrants under section
101(aX15XH).1 Similarly, section 101(a)(15)(L) provides a basis for
the admission, as nonimmigrants, of intracompany transferees
who are to render services involving specialized knowledge?
Whether the applicant could qualify as a nonimmigrant under
either of these provisions is not before us; however, the existence
of this statutory scheme convinces us that Congress did not intend
that skilled alien laborers or aliens occupying minor managerial
posts should be eligible for treaty investor status. These job
positions can be readily held by American workers without placing
in jeopardy a United States investment made by a foreign firm.
Although it would seem appropriate under certain circumstances
for a foreign corporation temporarily to utilize the services of
skilled alien workers, the jobs in which they would ordinarily be
employed are not of such significance to the actual investor that
treaty investor status should be accorded to these individuals.
Skilled alien employees should be required to enter in a nonimmigrant status that will afford some measure of protection to
American labor.3
The applicant is concededly an individual with a fair degree of
specialized training who would be expected to function in a modest
supervisory role. However, his proposed position at the restaurant
also entails duties characteristic of skilled laborers, and the job is

The regulation governing section 101(a)(15)(H) nominmigrants is 8 CFR
214.2(h). Pursuant to section 214(c) the regulation requires the approval of a visa
petition for all aliens in this category. For an alien destined to perform
temporary services or labor, it also requires labor certification or other evidence
tending to insure that American workers would not be adversely affected by the
alien's admission. The petitioner need not be a resident of the United States.
2 The regulation applicable to section 101(a)(15)(L) also requires the alien
applicant to be the beneficiary of an approved visa petition and permits the
petitioner to be a nonresident. There is no labor certification requirement for
this nonimmigrant category. However, the petitioner is required to submit a

statement detailing the beneficiary's proposed function in the United States. 8
CFR 214.2(1).
3 There is an additional factor to consider. Section 101(a)(15)(E) does not limit a
treaty investor to a temporary stay, whereas, both section 101(aX15)(H) and
section 101(aX15)(L) do contemplate only a temporary visit for a nonimmigrant
in either category. The Immigration and Naturalization Service regulations
governing these three nonimmigrant classifications speak in terms of a temporary admission. 8 CFR 214.2(e); 8 CFR 214.2(h)(7), (9) and (11); 8 CFR 214.2(1)(3).
Nevertheless, the statute may be designed to allow a treaty investor an
indefinite stay. Compare S. Rep. No. 1515, 81st Cong., 2d Sess. 563 (1950), with
1952 U.S. Code Cong. & Ad. News 1697. We have serious doubts concerning the
admission of this applicant in a status which potentially could result in a
limitless visit to the United States.

581

Interim Decision #2262
admittedly one which is ultimately expected to be held by an
American worker. The position is not of such a substantial nature
that it warrants the indefinite utilization of foreign labor.
The employment of aliens in this type of position cannot be
characterized as designed solely for the development and direction
of the investment. Rather, the continued use of foreign workers
may function as a means of securing adequate help at less than
the prevailing United States wage standards for jobs of comparable complexity. There is substantial evidence in the record to
indicate that the applicant's employment in the United States was
not required because of a shortage of qualified United State chefs,
but because of the restaurant corporation's unwillingness adequately to compensate those available American workers.
Although it has not been clearly established that the applicant's
employer desires to continue importing foreign labor, we are
unable to hold that the applicant will be employed in a responsible
capacity within the meaning of 22 CFR 41.41, or that he qualifies
within the purview of the notes of the Foreign Affairs Manual. His
abilities more resemble those of a skilled laborer than those of one
who will develop and direct an enterprise. If he is to be admitted it
must be via a category which would not utterly circumvent the
congressional policy of protecting American labor from undesirable job competition.
In exclusion proceedings the applicant has the burden of proof
to establish that he qualifies for admission under the claimed
status. Section 291, Iinmigration and Nationality Act. We find that
the applicant has not shown that he is employed in a responsible
capacity, and therefore that he has not demonstrated his entitlement to admission as a nonimmigrant treaty investor. Since the
applicant has failed to establish that he is entitled to nonimmigrant status, he is presumed, under section 214(b) of the Act, to be
an immigrant. He is thus excludable under section 212(aX20) as an
immigrant not in possession of an immigrant visa or other appropriate documentation.
Finally, the approach we have adopted in this case is consistent
with the result in Matter of Kobayashi and Doi, 10 L & N. Dec. 425
(Deputy Assoc. Commr. 1963). We recognize that our decision is in
apparent conflict with Matter of Tamura, 10 L & N. Dec. 717 (Reg.
Com. 1964); however, we are not bound by Regional Commissioners'
rulings.
ORDER: The appeal is dismissed.

582


MArrca

OF

P—R--

In DEPORTATION Proceedings
A-11322755

Decided by Board August 5, 1960
Expatriation—Section 401(j), Nationality Act of 1940, as amended—Evidentiary
standard not satisfied.
Evidentiary ,standard applicable to expatriation cases precludes finding of loss
of citizenship under sertion 401(j) of Nationality Act in circumstances
where native-born citizen was taken to Mexico by his parents at age 6 in
1930 or 1931 and did not return here until 1950, despite his testimony, later
repudiated, that he remained abroad in deference to the wishes of his parents who refused him permission to return to the United States at an earlier date because of fears regarding his liability for wartime military service.
CHARGE :

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Entry without inspection.
BEFORE THE BOARD

DISCUSSION : By order dated August 9, 1957, the special inquiry
officer ordered respondent deported on the charge that at the time of
his last entry from Mexico during the summer of 1955, he was not
inspected (as an alien). The special inquiry officer found that respondent who was born December 3, 1025, in El Monte, California,
and was taken to Mexico by his parents in 1930 or 1931, where he
resided until 1950, lost his United States citizenship uursuant to
section 401(j), Nationality Act of 1940, 54 Stat. 1137, as amended
by the Act of September 27, 1944, 58 Stat. 740, 1 by remaining out
of this country on and after September 27, 1944, until November 10,
1950, for the purpose of evading service in the Armed Forces of the
United States. Therefore, upon arrival in 1055, he was an alien and
subject to inspection as such.
Sec. 401 provides that:
A person who is a national of the finitad States, whothor by birth or naturalization, shall lose his nationality by: * * * (3) Departing from or remaining outside of the jurisdiction of the United States in time of war or during
a period declared by the President to be a period of national emergency for
the purpose Of evading or avoiding training and service In the land or naval
forces of the United States.
1

30

There was introduced as evidence in the present proceeding ex2, a complete transcript of the testimony before the board of
special inquiry at Calexico, California, on March 27, 1952, the May
20, 1952, decision of the Assistant Commissioner, and the December 30, 1952, decision of the Board of Immigration Appeals. The
special inquiry officer pointed to the fact that on the basis of the
alien's testimony and admissions before the board of special inquiry
on March 27, 1952, the Board of Immigration Appeals in its decision
of March 30, 1952, found that respondent had remained in Mexico
from 1944 to 1950 to evade and avoid training and service and had,
therefore, lost his United States citizenship.
In the proceeding now before us, respondent testified that he was
unable to remember any of the questions and answers, except one,
as reflected by the transcript of the testimony before the board of
special inquiry at Calexico, California, on March 27, 1952. Respondent denied his initial testimony to the effect that (1) his mother did
not want him to come to the United States because of fear that he
hibit

would be inducted into the military service of this country; (2) that

his parents would not give him permission to come to the United
States; (3) that he had remained out of the United States from the
time he was 18 years of age until the year 1950, because he did not
want to serve in the Armed Forces of the United States; and (4) that
he was afraid to do so.
Respondent's testimony in the present proceeding is also to the
effect that he did not know he was born in the United States or that
he was a citizen of this country until the year 1947 when he was
informed for the first time by his father. This special inquiry officer
made a point of the fact that respondent was unable to give any
reason why he remained out of the United States from the time he
was 18 years of age in 1943 until the year 1950. However, respondent claims that haa ha known that he was a citizen of the United
States and had he had evidence of such citizenship he would have
come to this country before the year 1950. Respondent's brother
came to the United States in 1946 or 1947, and according to respondent's present testimony it was about that time the father told him,
respondent, that he had been born in the United States. Respondent's brother obtained a birth certificate for him and brought it to
respondent in Mexicali, Mexico. Three years thereafter, 1950, respondent entered the United States by presenting such birth certificate and went to El Monte, California, to join his brother; he
did not have information concerning the requirement for registering

for military service until he came to the United States in 1950,
and he thereafter registered in December of that year at Alhambra,
California; he was willing then to serve in the armed forces if
called; and he had never thought of coating to the United States
81

until 1950 when he was told by his brother that it would be possible
for him to come if he could obtain a birth certificate for him. Respondent also testified that he first learned that the United States
was at war after his arrival in this country in 1950, and that he
had never requested permission from either of his parents to come
to the. United States in 1943, 1944 or 1945.
Respondent also denied that in his previous testimony he stated
that his father and mother had always been well and strong. While
it appears he so stated, he was testifying as of 1943, when he reached
his 18th birthday. As a matter of fact, he also testified at that time
that his mother had died of pneumonia after a short illness; that
she had had several heart attacks from the year 1940 until her
death in 1949; and that his father had been slightly incapacitated
by the loss of some fingers and toes.
The special inquiry officer indicated that respondent's sworn testimony in 1952 2 materially conflicts with his testimony in the present
proceedings The special inquiry officer felt that he would not be
justified at this time in rejecting respondent's prior testimony to
accept his present version of the truth of the matter, citing United
States ex rel. Tsevdos v. Reimer, 108 F.2d 860, cert. den. 310 U.S.
645; cf. United States ex rel. Schlirnmgen v. Jordan, 164 F.2d 633;
United States ex rel. Chartrand v. Karnuth, 31 F. Supp. 799.
The special inquiry officer also cited Matter of C—D—, 6 485
-

(Jan. 4, 1955), in which this Board held that
United States citizenship was lost under section 401(j) of the Nationality
Act of 1940, as amended, where the individual had a desire to return to the
United States on and after September 27, 1944, but voluntarily assented to
the wishes of his parents that he remain in Mexico because they were unwilling to have him serve in the Armed Forces of the United States. The
motive of the parents for refusing him permission to return to the United
States is imputed to the child because he voluntarily assented to their wishes.
[Ming Matter of if — , 2-910

1947).]

The special inquiry officer accordingly concluded that the standard
of proof required to establish expatriation in this case having been
met, the respondent had thereby lost his American citizenship under
section 401(j) of the Nationality Act of 1940, by remaining outside
the United States for the purpose of avoiding training and service
in the land or naval forces of the "United states. Gonzales v. Laluityn,
350 U.S. 920 (Dec. 12, 1955).
Counsel, on the other hand, submitted a brief in conjunction with
the appeal in which he argues that on the basis of the decision of the
United States Supreme Court in Gonzales v. Landon, 350 U.S. 920
(Dec. 12, 1955), the Board reconsider its order of December 30, 1952,
and find that respondent has not lost his American citizenship
2
5

See Appendix "A."
See Appendix "B."

32

negnired at birth by expatriation, as alleged, and that proceedings

be terminated.
The Supreme Court of the United States in the case of Gonnalea
v. Landon, supra, held per curium as follows :
The Court is of the view that the standard of proof required in denaturalization cases (see Schneiderman. v. United States, 320 U.S. 118; Baumgartner v.
United States, 322 U.S. 665) is applicable to expatriation cases arising under
§ 401(j) of the Nationality Act of 1940. 54 Stet. 1137, as amended, and ham
not been satisfied in this case. Accordingly the judgment below is reversed
without reaching the •:;onstitutional questions that have been presented.

The facts in the Gonzales case are set forth in the opinion below,
Gonzales v. London, 215 F.2d 955 (Sept. 8, 1.954).4 The pertinent

facts are as follows:
It was stipulated at trial that plaintiff was born in the United States and
was less than two years of age when taken to Mexico. Gonzales testified

that from 1926 to 1946 he resided in Chihuahua, Mexico. His father died
and subject did not come to the United States because his mother would not
let him. He testified that he registered for military service in Mexico in
1042 Ae alsn stated that he was admitted to the United States on April 22,
1946, upon his claim of United States citizenship by presentation of a birth
certificate and baptismal certificate to the Immigration Service. The statements of Gonzales before a board of special inquiry of the Immigration Service in 1947, 1950, and 1952 were introduced in evidence. There was a stipulation that, if the officers were called, they would verify his answers as shown
in the transcript. Gonzales swore that he did not make the answers and that
he had not remained in Mexico in order to avoid military service.
The District Court determined that although plaintiff was a citizen by birth
he had expatriated himself by remaining outside the jurisdiction of the United
States in order to avoid training and service in the armed forces of this country in time of war. Plaintiff claimed that the United States had the burden
of proof to show Gonzales was no longer a citizen. The trial court followed
the contention. But the ground which the Court chose was that. Gonzales
had expatriated by his voluntary act with the intent of avoiding military service. Gonzales swore to the contrary. The finding of the Court is overwhelm.
ingly supported by statements of plaintiff himself before the officers in 1947
and 1950. The objection urged here is that such statements are hearsay and
inadmissible except for purposes of impeachment. The alien's testimony in
the record is contrary to these statements. From the facts in the record, the
plaintiff, an American citizen, remained in Mexico while the United States
was involved in a war in which it was his duty to offer military service. He
made no effort to come within the borders until it was apparent the need for
his services had passed. The Court might have drawn the obvious inference
that the absence from the country was voluntary and for the purpose of
evading military duty. It tne trial court found plaintiff noncredible as a witness and disbelieved his testimony in court as to a contrary state of mind,
the ease of plaintiff would then fail.
These extrajudicial statements of plaintiff are not hearsay. These were
substantive evidence. Tile extrajudicial statements or a party, civil or criminal, are binding upon him and substantive evidence against him., There is
an additional reason for the admission of these well-authenticated utterances
4

See

Mackey

T.

Mendoza-Martinez, 362 U.S. 384 (Apr. 18, 1960).

654877-68 —4

33

of plaintiff since they were statements against interest and thus have further
guarantee of verity. They were clearly admissible for all purposes. The
only question which gave pause at the threshold was whether these were admitted only for the purpose of impeachment. An examination shows that the
record of the hearings, including these statements of plaintiff, was admitted
upon stipulation of counsel for the plaintiff for all purposes.
The judgment of denial of declaration of citizenship was affirmed.

Thus, in the Gonzales case the court below found:
1. The mother would not permit Gonzales to come to the United
States;
2. Gonzales denied prior statements that he remained out of the
United States to avoid military service;
3. Gonzales made prior conflicting statements;
4. Gonzales made statements against interest; and
5. The District Court, which was affirmed by the Circuit Court,
found that Gonzales had become expatriated by his voluntary
act with intent to avoid military service, although Gonzales
swore to the contrary.
In our order of December 30, 1952, in the case now before us, we
found that P—R— testified he had a definite desire to return to
the United States from 1944 to 1950, but was deterred by his mother's
unwillingness for him to serve in the United States Armed Forces.
We also took note of the fact that he admitted he remained outside
the United States to evade and avoid military service during said
period, primarily because he was unwilling to serve in our armed
forces. We concluded that this established expatriation.
Upon reconsideration, we find that our holding in the case now
before us on appeal, as well as Matter of C—D—, 6 185 (Jan. 4,
1955), relied upon by the special inquiry officer, and Matter of M—,
2-910 (B.I.A., 1947), cited by us in Matter of C—D—, supra, to the
effect that the motive of the parents is imputed to the child where he

voluntarily assents to the parents' wishes in refusing him permission
to return to the United States, under circumstances such as are present
in this case has been rejected by the Supreme Court of the United
States in the Gonzales case, supra.
Accordingly, applying the standards set forth by the Supreme
Court in the Gonzales case, we conclude that the evidence herein
does not satisfy same, and, hence, expatriation pursuant to section

401(j), Nationality Act of 1940, 54 Stat. 1137, as amended, has not
been established.
ORDER

It is directed that respondent's appeal be sustained.

APPENDIX "A"

Pertinent part of the respondent's testimony before a board of
special inquiry at Calexico, California, on March 27, 1952:
Q. When did you reach the age of 18 years?

34

A. On December 3, 1942.

Q. Was your father well and able to work at that time?
A. Yes, he was very well. He has always been very strong.
Q. Have you always been well and strong and able to work?
A. Yes, we are a healthy family. All of us boys have always had good
health.
Q. Has your mother always been strong and able to do her housework prior
to the time of her death in 1949?
A. Yes, sir. She was always well and strong. She died of pneumonia and
was sick for only a short time.
Q. What wages did you and your father and brothers earn during the period 1943, 1944, and 1945?
A. My father received three pesos a day. We boys received two pesos a day.
Q. Could you not have earned at least five times that amount of money
every day in the same kind of work here in the United States?
A. Yes, that is true.
Q. When you reached the age of 18 years on December 3. 1943. did you
consider yourself to be a citizen of the United States or of Mexico?
A. I knew that I was a citizen of the United States but we lived a long
way from the United States and we never had enough money to pay our way
to the United States. J— was the first one to come to the United States and
he was able to come only because we all joined together to pay his way.
Q. When you reached the age of 18 years in 1943, knowing that you were a
citizen of the United States and knowing that you could earn much higher
wages therein, did you desire to come to the United States to work?.
A. Yes, we wanted to come to the United States at that time but our mother
did not want us to come. We saw the contract laborers coming to the United
States at that time, and knew they were going to earn much more money than
we were earning and we were very envious but we could not come because
my mother did not want us to come.
Q. Did you know when you reached the age of 18 years on December 3,
1993, that the United States and Mexico were allies in a perilous war against
powerful enemies?
A. Yes.
Q. Do you know who those enemies were?
A. Germany and Japan.
Q. Knowing that you were a citizen of the United States and knowing that
your country was involved in a perilous war, dill you have any desire as of
December 1943 and thereafter to come to the United States during the late
war and offer your services to your country?
A. Yes, I did. And I desire to enter the United States now and there is a
war going on now.
Q. Did you ask your father and your mother at any time In 1943, 1944,
1945 for permission to come to the United States to work or for any other
purpose?
A. Yes, I Ma but I did not come because my mother was afraid to have
me come at that time.
Q. Did your mother realize that if you came to the United States during
that period that you would be liable to induction into the Armed Forces of
the United States?
A. Yes, she did and that was the reason she did not want us to come.
Q. If you had been able to secure the permission of your parents to come
to the United States during the late war, would you have come?
A. Yes, I would have come.
35

Q. Did you ever register at the American consulate nearest to Tala, Jalisco,
for United States military service?
A. No, I never did go.
Q. Why did you not do so?
A. Until this minute I did not know that there was a way to register at
an American consulate. I knew that I could register there as a citizen of
the United States but my father did not want us to go over there and register.
Q. After September 27, 1944, did you remain outside the jurisdiction of the
United States in time of war or during a period declared by the President
to be a period of national emergency for the purpose of evading or avoiding
training and Service in the land or naval forces of the United States?
A. Yes, I did. But it was not because I was afraid to come. It was because my parents were afraid to have me come on account of the war.

APPENDIX "B"
A 8951306, decided by the
See also unreported Matter of
Board on October 8, 1956, which held that appellant had become
expatriated under the provisions of section 401(j) of the Nationality
At of 1040. M-- wan born in Los Angeles on April 17, 1917, but
was excluded by a board of special inquiry at Calexico, California,
on April .22, 1952, on the ground that he had expatriated under section 401(j), supra, for remaining outside the United States to evade
or avoid military service after September 27, 1944. He was excluded for failure to present the required immigration documents.
The Acting Assistant Commissioner affirmed the excluding decision
on July 11, 1952, and the Board of Immigration Appeals dismissed
the appeal on March 13, 1953. We stated that expatriation under
section 401(j) occurs when the evidence shows that the citizen had
a desire to come to the United States but was deterred in his resolve
primarily by reluctance to serve in the Armed forces, citing Matter
-

, 2 910 (B.I.A,, 1947). During the 1952 exclusion proceeding M
testified that he lived in the United States from birth until
1922; that in 1937 he obtained a United States citizen's identification

of M

—

-

—

card to permit him to work in the United States; that he registered
for military service at Calexico, California, on December 11, 1940,
and was classified III-A by the El Centro draft board on. January 11, 1941; that he was reclassified I-A on May 18, 1943; that
he departed to Mexico in June 1943 and remained in that country until 1948; and that between 1949 to April 1952 he was working
in California. With regard to his departure in 1943, M— testified
that he left because his grandfather was sick and died. He stated
that he remained in Mexico "not because I was afraid to enter military service in the United States . . . 1 told the local board that
my wife was subject to attacks." He admitted that he departed
from the United States to avoid military service in June 1943. He
stated that he realized that he did wrung. The Board indicated
that on the issue of expatriation the evidence required this Board to
36

find the kiss of citizenship must be clear and convincing citing
Gonzales v. Landon, supra. The Board determined that its finding
of expatriation was based on clear and convincing evidence and was
sufficient to support a finding of loss of citizenship under section
401(j). M— took his case before the United States District Court,
Southern District of California, and on October 6, 1958, that court
found that M— had not lost his citizenship by expatriation as set
forth. The court found that M— was burn in Los Angeles on
April 13, 1917, and that in 1923, at the age of six years, he was taken
by his parents to Mexico where he resided continuously until September 1949 when he moved with his wife and children to the United
States; that he did not depart from or remain outside the jurisdiction of the United States in time of war or during the period declared by the President to be a period of national emergency, or at
any time, for the purpose of evading or avoiding training and service
in the land or naval forces of the United States.

:37


Interim Decision # 1987

MATTER OF COLBOURNE

In Deportation Proceedings
A-17017085
Decided by Board June 19, 1969
Conviction for drawing and delivering a worthless check in violation of section 835(a) (1) of Title 14, Virgin Islands Code, is not a conviction of a
crime involving moral turpitude. [Matter of M--, 9 I. & N. Dec. 743, overruled.]
CHARGE:

Order: Act of 1952—Section 241(a) (4) [8 -U.S.C. 1251(a) (4)]—Conviction of a crime involving moral turpitude within 5
years of entry and sentenced to confinement for a
year or more.
ON BEHALF OF SERVICE:
R. A. Vielhaber
Appellate Trial Attorney
(Submitted memorandum)

ON BEHALF OF RESPONDENT:

Alphonso A. Christian, Esquire
P. 0. Box 327
St. Thomas, Virgin Islands 00801

Joseph W. Monsanto
Trial Attorney
(Submitted brief)

The special inquiry officer terminated deportation proceedings.
He held that respondent's conviction did not involve moral turpitude because intent to defraud was not an element of the crime
defined by the statute. He certified his order to the Board for final
decision. The trial attorney appealed from the termination. The
appeal will be dismissed. No change will be made in the order of
the special inquiry officer.
Respondent, a 33-year-old married male, a native of the Netherlands Antilles and a citizen of the Netherlands, has recided in
the United States since 1964. He was admitted for permanent
residence on February 28, 1967. His wife is a permanent resident,
his child a citizen.

The basis for the deportation charge is respondent's conviction
in a United States District Court, in the Virgin Islands, on May
319

Interim Decision #1987
14, 1968 for drawing and delivering a worthless check in violation of section 835(a) (1) of Title 14, Virgin Islands Code. The
court sentenced him to imprisonment for 15 months, but withheld
execution of the sentence and placed him on probation.
Respondent testified that when he wrote the check he thought
he had sufficient funds to meet it, but through an error he did
not; that he had paid back over half of the amount of the check;
and that he was paying back the rest.
As applied to worthless check convidtions, our reading of the
precedents resulted in the ruling that moral turpitude is not involved, if the conviction can be obtained without proof that the
convicted person acted with intent to defraud; i.e., intent to deprive one of his property, Matter of Stasinski, 11 I. & N. Dec.
202 (BIA, 1965) ; Matter of Bailie., 10 I. & N. Dec. 679 (BIA,
1964) ; Matter of Belisario, A-13095905, unreported (BIA, August 8, 1967, December 28. 1966). See Matter of Kinney, 10 I. &
N. Dec. 548 (BIA, 1964). The instant case fits the pattern. The
section under which respondent was convicted is modeled after a
Delaware law revised to eliminate intent to defraud as an element
of the crime. Applying the precedents, we would hold that respondent's conviction does not involve moral turpitude. However,
the Service believes that the precedents were improperly decided.
Its position is most comprehensively documented. The Service
points out that the precedents we cite are inconsistent with Matter of M—, 9 I. & N. Dec. 743 (BIA, 1962), where we held that a
conviction under the very section being considered here involved
moral turpitude_ The Service believes that moral turpitude is involVed when a person knowingly draws a check on an account
which has insufficient funds whether the maker "had larceny in
heart or whether he fully intended that the check be paid off
later * * *" (Appellate Trial Attorney's memorandum, p. 23).
We considered and rejected this argument previously. After
careful consideration, we see no reason to adopt it now, We will
comment briefly on some of the Service contentions.
The first involves a matter of semantics. Intent to defraud, as a
test for the existence of moral turpitude, requires the convicted
person to have intended to take someone's property unlawfully.
Words which the Service attempts to equate with this meaning
simply do not satisfy the test unless they are shown to have this
meaning. This, the Service has not done. It is to be noted, moreover, that the expressions the Service relies upon are not found in
cases concerned with the question of whether a crime involves
moral turpitude.

320

Interim Decision #1087

As to Matter of M—, supra, we equated the drawer's knowledge that he had insufficient funds with intent to defraud. This is
too broad a leap to satisfy the requirement that proof of deportability be clear, convincing and unequivocal. Obviously, a drawer
may write a check on an account with insufficient funds and yet
intend covering it before it is presented for payment. We have
previously questioned the authority of Matter of M--. Stasinski,
supra; Bailie, supra; Belisario, supra, opinion of December 28,
1966, p. 6, n. 5. We now overrule it.
Matter of Sloan, 12 I. & N. Dec. 840 (A.G., 1968) is a case in
which the Attorney General held that a conviction for harboring
and concealing a person from arrest in violation of 18 LI.S.C. 1071

was contrary to justice and an act of baseness, so that it involved
moral turpitude. The Service believes that under Sloan, the Attorney General held that the conduct which is to be put to the test,
is not that comprised of the elements needed for a conviction, but
that which the alien actually engaged in. The Attorney General
reserved judgment on whether it was conduct rather than the law
which should be considered. He also reserved judgment as to
what sources could be considered in determining what the conduct was. Therefore, we do not believe that Sloan requires reconsideration of our cited precedents. We might point out, that there
is nothing in the record of conviction or the respondent's unrefuted statement that establishes that respondent issued the check
without the intention of paying it. In Sloan, the Attorney General
stated that an act contrary to justice or base involved moral turpitude. We do not believe that the community would consider the
issuance of a check with insufficient funds, where there was no
intention of depriving another of his property, an act so contrary
to justice or so base as to label it of a turpitudinous nature.
Because of the action we have taken, we find it unnecessary to
discuss the many contentions of counsel.

ORDER: The Service appeal is hereby dismissed.
Further order: No change is made in the special inquiry
officer's order.

321


Interim Decision #2264

MATTER OF MLADINEO
In Deportation Proceedings
A-19956160

Decided by Board March 1, 1974
Where, as in the instant case, the Board of Immigration Appeals digmig9.44d
respondent's appeal from the decision of the immigration judge solely for lack
of jurisdiction, without adjudication on the merits, the attempted appeal was
nugatory and the decision of the immigration judge remained undisturbed. If
thereafter a motion is made to reopen or reeuw, ider, there ie no reason why
the immigration judge should not adjudicate it, as he does in other cases
where there was no appeal from his prior order.
ON BEHALF OF RESPONDENT: Frederick A. Nervo, Esquire
995 Market Street, #1017
San Francisco, California 94103

CHARGE:

Order: Act of 1952—Section 241(a)(2)
U.S.C. 1251(a)(2)1—After admission as a
nonimmigrant under section 101(a)(15) of Act, remained
longer than permitted.

On February 6, 1973, we dismissed for lack of jurisdiction as
untimely respondent's appeal from an order of an immigration
judge finding her to be deportable and granting her the privilege
of voluntary departure. She retained new counsel, who on August
14, 1973 wrote a letter to the District Director requesting that the
hearing be reopened to permit respondent to apply for withholding
of deportation to Chile under section 243(h) of the Immigration
and Nationality Act. Appended to the letter is an unsigned,
unsworn declaration by respondent to the effect that she had been
prejudiced economically in Chile because of her refusal to become
a Socialist or a Communist. Contained in the record is a notice of
appeal on Form I-290A dated August 15, 1973, purporting to
appeal from a decision dated August 2, 1973. The record contains
no decision of that date which is within our appellate jurisdiction.
In a memorandum in the file dated October 2, 1973, the Service's
591

interim Decision #2264
trial attorney expressed the view that the purported appeal, even
if treated as a motion to reopen, will have to be adjudicated by the
Board. The record has been submitted to the Board by the Service,
presumably on the notion that our order dated February 6, 1973
brings this case within the purview of 8 CFR 32, which provides,
in pertinent part that, "Reopening or reconsideration of any case
in which a decision has been made by the Board ... shall be only
upon written motion to the Board."
The quoted provision contemplates the situation where a decision on the merits has been made by us. Obviously, if a motion is
then made to reopen or reconsider our decision, the motion should
be considered and adjudicated by us. The same principles do not
apply where the Board's decision was not on the merits of the
case. Where, as here, dismissal by the Board was solely for lack of
jurisdiction, so that we made no adjudication on the merits, the
attempted appeal is nugatory and the decision of the immigration
judge remains undisturbed. If thereafter a motion is

made to

reopen or reconsider that decision, there appears to be no reason
why the immigration judge should not adjudicate it, as he does in
other cases where there was no appeal from his prior order.
Rather than remand the record to the immigration judge for
adjudication, we shall take this case on certification under 8 CFR
3.1(c) and determine the motion ourselves. We do this because so
much time has already elapsed since the motion was filed and
because the request for reopening is so patently without merit.
Oral argument, which is requested, will be denied for the same
reasons.
The motion to reopen is unsworn and unsupported by affidavit
or other evidence. The respondent's conclusory declaration that
she had suffered economic and employment privation in Chile
because of her refusal to become a Socialist or a Communist does
not make out a prima facie showing that her fear of persecution in
Chile is well-founded, especially since the prevailing regime there
is now anti-Socialist and anti-Communist. Treating the papers
before us as a motion to reopen, we conclude that the motion
should be denied.

ORDER: The motion is denied.

592


Interim Decision #2541

MATTER. OF GIBSON

In Deportation Proceedings
A-18423427

•

Decided by Board December 14, 1976
(1) Respondent, who seeks suspension of deportation under section 244(a)(1) of the
Immigration and Nationality Act, entered the United States as a nonimmigrant student
and has been in this country for nine years. He has completed five semesters of college,
has no specialized training, and has been employed as a janitor or custodian He is
unmarried and has no relatives in the United States.
(2) Notwithstanding the fact that respondent meets the physical presence and good moral
character requirements of the statute, his application for suspension of deportation will
be denied because economic detriment which may result from deportation does not meet
the test of extreme hardship within the contemplation of section 244(a)(1) of the Act.
(3) In order to insure fair and complete consideration of the proceedings before the Board
it is necessary that copies of all briefs, memoranda and representations filed in connecfinn therewith shall have hen served nn the parties, and the rernrd shall sh nw the date
of service. The immigration judge is primarily responsible for the physical aspects of the
record in cases under his jurisdiction which come before the Board, and the District
Director is similarly responsible for the physical record in cases under his jurisdiction
which come before the Board.
CEARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)}—Nonimmigrant student—
remained longer than permitted.
ON BEHALF OF RESPONDENT:
Gordon G. Dale, Esquire
1815 North Broadway
Santa Ana, California 92706

ON BEHALF OF SERVICE:
William B. Odencrantz
Trial Attorney

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

This is an appeal from an order of an immigration judge on May 14,
1576, finding the respondent, age 32, deportable and granting his application for the privilege of voluntary departure, with an alternate order
of deportation to Great Britain. The immigration judge denied the
respondent's application for suspension of deportation, pursuant to the
pzovisions of section 244(a)(1) of the Immigration and Nationality Act,

as amended. The appeal will be dismissed.
58

Interim Decision #2541
The record fails to show that a copy of an undated Service memorandum in support of the decision of the immigration judge was served upon
counsel for respondent. An informal check by this office on October 20,
1976, revealed that the memorandum was received by counsel approximately two months after the August 9, 1976, deadline for filing a reply
brief, and also after the scheduled date for oral argument. Since ample
time has elapsed for the respondent to answer and no additional time
has been requested, the case is now ripe for decision.
In order to insure fair and complete consideration of the proceedings

before this Board, it is necessary that copies of all briefs, memoranda,
and representations filed in connection therewith (see 8 C.F.R. 3.3(c))
shall have been served on opposing parties, and that the record show
the date of service. We hold the immigration judge primarily responsible for the physical aspects of the record before us in matters under - his
jurisdiction, including all material pertaining to the organization and
completeness of the record under 8 C.F.R. 242.15, such as an accurate
transcript of hearings; orderly inclusion of exhibits and trial briefs; his
signed separate opinion; the appeal notice, with attachments; copies of
relevant procedural communications between immigration judge, respondent, and Immigration and Naturalization Service; and all appeal

briefs with proof of timely service_ Failure to insure that the record
contains proof of service can result in delay and inconvenience, or, more
importantly, a deprivation of due process and a possible miscarriage of
justice if inadvertently overlooked (cf. 8 C.F.R. 242.17(c)).
In those matters within S C.F.R. 3.1(b) not under the jurisdiction of
an immigration judge, it is the District Director who is primarily responsible for the record, including proof of service and memoranda
addressed to this Board which can in any way influence our decision,
with the exception of classified material which must be handled in

accordance with outstanding instructions (see 8 C.F.R. 103.2(b)(2)).
Our review of the record, including briefs submitted by both parties,
satisfies us that the hearing was fair, that deportability has been established by clear, convincing and unequivocal evidence, and that the
immigration judge properly applied the pertinent legal principles. In
considering the suspension application, he found that the respondent
has the necessary continuous physical presence in the United States and
has been a person of good moral character during the past seven years.
He further found, however, that any economic detriment deportation
may cause the respondent would not meet the test of extreme hardship,
within the contemplation of the statute, citing Matter of Sangster, 11 I.
& N. Dec. 309 (BIA 1965); Matter of Uy, 11 I. & N. Dec. 159 (BIA 1965).
The respondent came to the United States as a nonimmigrant student
and has now resided here for nine years. During that period of time, he
has completed only five semesters of college and has no specialized field
59

Interim Decision #2541
(Tr. p. 10). His application for suspension of deportation reflects that he
has been employed mostly as a janitor and custodian. As of May 13,
1976, his savings account with the Bank of America showed a balance of
$2,652. The unmarried respondent, who has no relatives in this country,
is still a young man and should have no difficulty obtaining some type of
suitable employment if deported. While he obviously has become accustomed to the American way of life, the difference in economic standards
which exists between the United States and other counties cannot be
held to command the favorable exercise of discretion. See Yeang Ying
Ch,eung v. INS, 422 F.2d 43 (3 Cir. 1970). We conclude that the immi-

gration judge's reliance upon our decisions in Matter of Sangster, supra,
and Matter of LTy, .supra, was correct. The respondent has not established that deportation would cause him extreme hardship and he is not
eligible for suspension of deportation. See Matter of Marquez, Interim
Decision 2352 (BIA 1975); cf. Matter of Kim, Interim Decision 2318
(BIA 1974). Accordingly, the decision of the immigration judge will be
affirmed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the

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

60


Interim Decision #2478

MATTER OF Loo
In Deportation Proceedings
A-11407844
Decided by Board March 3, 1976
Respondent, who initiallygained admission to this country by virtue of a 1954 judgment of
a court declaring him to be a citizen of the United States; who, many years after the
court judgment, took up the occupation of seaman which he followed from 1963 until
February of 1966, shortly after which he confessed alienage; and who effected all of his
seaman entries as the citizen he had been adjudged to be, is not precluded by the
"crewman" provision of section 244(f)(1) of the Immigration and Nationality Act, as
amended, from establishing statutory eligibility for suspension of deportation under
section 244(a) of the Act, as amended.
CHARGE:
Order:

Act of 1952 —,5ection 241(a)(2) [8 U.S.O. 1251(a)(2)) – In the United States in

violation of law.
ON BEHALF OF RESPONDENT:

Robert S. Bixby, Esquire
Fallon, Hargreaves, Bixby & McVey
30 Hotaling Place
San Francisco, California 94111

The respondent is a native and citizen of China who has been found
deportable under section 241(a)(2) of the Immigration and Nationality
Act as an alien who is in the United States in violation of the Act. The
only questions presently unresolved in this case relate to the respondent's application for suspension of deportation under section 244(a)(1).
In a decision dated September 25, 1975, the immigration judge found
that the respondent had entered the United States in 1966 as a crewman

and that he was statutorily precluded from receiving suspension of
deportation by virtue of section 244(f) of the Act. The immigration judge
certified his decision to us for review. The decision of the immigration
judge will be reversed; and the respondent's application for suspension
of deportation will be granted.
The record indicates that the respondent first arrived in the United
States on July 21, 1951, and then sought admission as a United States
citizen. He was initially ordered excluded. However, he obtained a court
decree, dated January 29, 1954, declaring him to be a citizen of the
601

Interim Decision #2478
United States. Later, in 1958, the respondent was also issued a certificate of citizenship. In February of 1966 the respondent confessed his
alienage. The court decree was set aside in July of 1966, and the
certificate of citizenship was cancelled in October of 1966.
The record indicates that the respondent came to the United States in
1951 on board the SS "President Wilson." It is not clear whether he
came as a passenger or as a crewman. A resolution of this point,
however, is not necessary because the respondent's 1951 entry cannot
be used to deny him suspension of deportation under the present wording of section 244(f). See Siang Ken Wang v. INS, 413 F.2d 286 (C.A. 9,
1969).
At the time of his arrival in 1951, the respondent formally applied for
admission as a United States citizen and not as an alien. Thereafter, the
respondent appears to have worked in numerous jobs, such as waiter,
busboy, or cashier, until 1963 when he began to work as a seaman.
Between 1968 and 1966, the respondent made approximately twelve
voyages abroad as a United States citizen seaman. He last entered the
United States on February 2, 1966, as a citizen, but after returning from
a voyage as a seaman. The respondent evidently terminated his occupation as a seaman on February 4, 1966, two days after his last entry. As
indicated, he shortly thereafter confessed his alienage.
Section 244 of the Act sets forth the requirements for suspension of
deportation. Section 244(f) provides in relevant part:
(f) No provision of this section shall be applicable to an alien who (1) entered the
United States as a crewman subsequent to June 30, 1964 . . . .

The question before us is whether the respondent's entries after June
30, 1964 make him ineligible for suspension of deportation.
The term "crewman" is defined in section 101(a) (10), which provides:
(10) The tern. "crewman" means a person serving in any capacity on board a vessel or
aircraft.

The Act also allows a qualified "crewman" to be admitted to the United
States in the status of a "nonimmigrant crewman." The requirements
for this status are set forth in section 101(a)(15)(D), which -provides:
(15) The tent "immigrant" means every alien except an alien who is within one of the
following classes of nonimmigrant aliens—
(D) an alien crewman serving in good faith as such in any capacity required for
normal operation and service on board a vessel (other than a fishing vessel having its
home port or an operating base in the United States) or aircraft, who intends to land
temporarily and solely in pursuit of his miring as a crewman and to depart from the
United State., with the vessel or aircraft on which ho arrived or come other vessel or
aircraft.

The cases indicate that section 101(0(10 and section 101(a)(15)(D) must
602

Interim Decision #2478
be read in conjunction when construing the crewman provision of section 245, a provision which is analogous to the quoted portion of section
244(f). Matter of Campton, 13 I. & N. Dec. 535 (BIA 1970); Matter of
Rebelo, 13 I. & N. Dec. 84 (BIA 1968). If certain requirements are met,
section 245 permits the adjustment of status of "an alien, other than an
alien crewman . . . ." (Emphasis supplied.)
The basic purpose behind the crewmen provisions of section 244(f)
and section 245 is similar, although the wording of the provisions is not
identical. Thus, we have noted in connection with both provisions that
Congress was attempting to deal with the problem of the alien who uses
the seaman's route to gain relatively easy access to the United States
and to enter for the purpose of residing permanently. See Matter of
Quintero-Correa, 11 I. & N. Dec. 343, 346 -47 (BIA 1964); Matter of
Goncalves, 10 I. & N. Dec. 277, 279 (BIA 1963).
The problems in construing these preclusions from relief for crewmen
have generally arisen when the alien in question obtained admission to
the United States in a status other than that of a section 101(a)(15)(D)
nonimmigrant crewman. In Matter of Tzimas, 10 I. & N. Dec. 101 (BIA
1962), we found that an alien who was admitted in transit by virtue of
section 101(a)(15)(C) was ineligible for section 245 relief as a crewman,
because he was destined for employment as a seaman. Similarly, in
Matter of Goncalves, supra, we indicated that an alien who was admitted to the United States as a nonimmigrant in transit was ineligible for
suspension of deportation because he was occupationally a seaman who
was entering in pursuit of his calling as a seaman. In Gmicalves, we
rejected the argument that the status in which an alien was admitted
governed whether or not he had entered as a crewman within the
contemplation of section 244(f).

However, in Matter of Quintero-Correa, supra, we found that an alien
who was admitted with a nonimmigrant visitor's visa was not statutorily
precluded from receiving adjustment of status as a crewman, even
though he arrived on board a vessel on which he had worked regular
hours serving meals to the crew. The alien apparently came within the
section 101(a)(10) definition of a crewman; however, he was not a seaman by occupation, he had obtained admission as a properly documented
nonimmigrant visitor, and it was mere happenstance that he arrived in
the United States after serving on board a vessel.
In Matter of Rebelo, supra, we dealt with an alien who was admitted
to the United States as a nonimmigrant visitor. The alien, however, had
served as a crewman for a 25-year period immediately preceding his
admission, had served as the ship's engineer on the vessel which
brought him to the United States, and had been listed on the ship's
manifest as a crewman. We nevertheless found that he was not statutorily precluded from receiving adjustment of status, primarily because he
603

Interim Decision #2478
had convinced a consular official that he was eligible for a visitor's visa,
and because he was properly admitted as such.
In Matter of Campton, supra, however, we took a somewhat different
approach to the crewman question. In Campton, the alien had last
entered the United States by automobile with a nonimmigrant visitor's
visa evidently after a three months' visit to Canada. The alien, however,
had been a crewman for the prior twelve years and was coming to the
United States for the purpose of continuing his crewman's occupation.
We held that the alien was not eligible for adjustment of status, and we
distinguished Matter of Rebelo, supra, on the ground that in Rebelo
there had been a showing that the alien was not entering in pursuit of
his calling as a seaman.
These cases are not entirely consistent, and, as the immigration judge
correctly notes, some of the discussion in Rebelo can be seriously questioned. However, all of these cases deal with aliens who were admitted
to the United States in some nonimmigrant status. The respondent, on
the other hand, was admitted in each instance as a United States citizen.
Although his claim to citizenship was false, it was virtually unassailable
at the time because it was supported by the final judgment of a court.
The respondent therefore was not in the same position'as either an alien
seeking admission in a nonimmigrant status or an alien making a simple
false claim to United States citizenship.
We need not now attempt to resolve all the issues presented by the
statutory exclusion of crewmen from the forms of relief of adjustment of
status and suspension of deportation. We merely hold that the preclusion of suspension of deportation for a crewman contained in section
244(f) does not apply to an individual who initially gains admission to the
United States by virtue of a judgment of a court declaring him to be a
citizen, who Many years after the court judgment takes up the occupation of seaman, and who effects all of his seaman entries as the citizen he
has been adjudicated to be.
The respondent did not use the crewman's route to gain access to the
United States from 1963 to 1966. He was at that time a person who had
been declareci to be a citizen of the United States, and it was mere
happenstance that he took up the calling of the sea. See Matter of

Quintero-Correa, supra. The respondent's entries after June 30, 1964

were accomplished by virtue of his status as a United States citizen, not
by virtue of h:s occupation. Our decision in Matter of Goncalves, supra,
indicates that his admission in that status may not necessarily be controlling; however, it is a factor for consideration as indicated by Matter
of Quintero-Correa, supra, and Matter of Rebelo, supra. We hold that
this respondent Is not precluded from receiving suspension of deportation by virtue of the "crewman" provision in section 244(f) of the Act.
When this ease was last before the immigration judge, an updated
604

Interim Decision #2478
Service investigation was introduced into evidence, and additional testimony was taken with respect to the respondent's application for suspension of deportation. In view of this update of the record, we need not
remand for an exercise of discretion by the immigration judge.
The respondent is presently 53 years old. The record indicates that he
fled mainland China in 1949 or 1950, that he resided briefly in Hong
Kong, and that he has made his home in the United States since 1951.
He has not left the United States since 1966. The respondent testified
that he has a daughter who is a lawful permanent resident, and that he
has made a small investment in the United States business in which he is
employed.
The Service investigation has revealed no recent derogatory information, except for an arrest in 1971, which resulted in the charges being
dismissed. We find that the respondent satisfies the physical presence
and good moral character requirements of section 244(a)(1), and that he
would suffer extreme hardship if deported from the United States.
Deportation of the respondent would not only cause him significant
economic hardship, but it would also separate him from his home and the
ties he has developed in this country over the last 25 years. Finally, we
are of the opinion that the respondent should receive a favorable
exercise of discretion on his application for suspension of deportation.
The decision of the immigration judge will be reversed, and the
respondent's application for suspension of deportation under section
244(a)(1) will be granted.
1 ORDER: The decision of the immigration judge is reversed.
Further order: The respondent's deportation is suspended under section 244(a)(1) of the Immigration and Nationality Act.
Further order: If Congress takes no action adverse to the order
granting suspension of deportation, the proceedings shall be cancelled,
and appropriate action shall be taken pursuant to section 244(d) of the
Immigration and Nationality Aet, as amended.
Further order: In the event Congress takes action adverse to the
order granting suspension of deportation, these proceedings shall be
reopened upon notice to the respondent.

1

Chairman David L. Milhollan abstained from consideration of this case.
605


Interim Decision #2499

MATTER OF HO

In Deportation Proceedings
A-20838127
A-20838128
Decided by Board June 17, 1976
Operations Instruction 245.4(a)(6) which provides that a case will be held in abeyance
where the sale basis for applicant's ineligibility for relief under section 245 of the
'Immigration and Nationality Act is the unavailability of a visa number occurring
subsequent t3 the filing of the application is applicable to section 245 applications filed in
deportation proceedings where the respondents were qualified for adjustment of status
in all other respects and the sole ground for respondents' ineligibility for such relief was
that visa numbers which had been available at the time the applications were first filed
had become unavailable at the time the applications were processed.
CILUIOR;

Order: Act of 1952—Section 241(a)(2)—[8 U.S.C. 1251(a)(2)J—Nonimmigrant
visitor—remained longer than permitted (both respondents)
ON BEHALF OF RESPONDENTS:
Norman Glassman, Esquire
363 Seventh Avenue

ON BEHALF OF SERVICE:

New York, New York 10001.

Richard K. Rogers
Acting Trial Attorney

Paul C. Vincent
Chief Trial Attorney

In a decision dated August 5, 1975, we denied the respondents' motion
to reopen their deportation proceedings. The respondents have submitted a motion seeking reconsideration of that decision. The motion will be
granted and the record remanded to the immigration judge.

The respondents, husband and wife, are natives and citizens of China.
They have conceded deportability under section 241(a)(2) of the Immigration and Nationality Act as nonimmigrants who have remained beyond the authorized length of their stays. The only questions confronting us on this motion involve their applications for adjustment of status
under section 245.
The female respondent has evidently been granted a labor certification pursuant to section 212(a)(14), and she seeks adjustment of status
as a nonpreference immigrant. The male respondent also seeks section
692

Interim Decision #2499
245 relief as a nonpreference immigrant, but his case is entirely dependent on his wife's eligibility because he does not claim that he is independently admissible under section 212(a)(14).
One of the requirements for section 245 relief is that an immigrant
visa must be immediately available to the alien at the time his application is approved. The record indicates that the respondents submitted
their applications for adjustment of status (Form 1-485) on May 12,
1975. According to the Department of State bulletin entitled Availability of Immigrant Visa Numbers For May 1975, visa numbers were then
currently available to natives of China seeking nonpreference status.
However, in June of 1975, the month after the respondents submitted
their section 245 applications, nonpreference visa numbers for natives of
China became completely unavailable. As of the , date. of this , decision,
visa numbers remain unavailable to the respondents.
The respondents' applications for adjustment of status were treated
as a motion to reopen their deportation proceedings in accordance with 8
CFR 242.22. In our order of August 5, 1975, we denied the motion
because nonpreference visa numbers were unavailable to the respondents, and the respondents therefore could not establish eligibility for
section 245 relief. •
In the motion to reconsider, counsel argues that our decision is not in
keeping with a Service policy .expressed in Operations Instruction 245.4
(a)(6). 1 This Operations Instruction. specifically applies to aliens who
have submitted section 245 applications to district directors for adjudication. It provides for the holding in abeyance - of any Case in which. an
alien has submitted a section 245 application.at a time when a visa
number was available to the alien, but in which the alien is now precluded from receiving that relief solely because a 'visa number-is not
available at the time the processing of the application -is completed. The
Operations Instruction further provides for- the•periodic review of all
such cases in order that an alien's adjustment of status may take place
shortly after a visa number again becomes available. .
Counsel for the respondents contends.•hat Operations Instruction
245.4(a)(6) should be applicable in a deportatfun ;proceeding, even
though jurisdiction over a section 245 application no longer lies with a
district director after the alien has been served with an order to show
cause or warrant of arrest. See 8 CFR 245.2(a)(1). We requested a brief
from the Service on this question. The Service has informed us that it
believes that the Operations Instruction should be applicable to the case
of an alien who is in deportation proceedings, and has submitted a
motion seeking a conditional termination of these proceedings.
1 Operations Instruction 245.4(a)(6) is quoted in its entirety in the addendum to this
opinion.

693

Interim Decision #2499
We too are persuaded that Operations Instruction 245.4(a)(6) should
not be foreclosed to an alien merely because he happens to apply for
adjustment of status after having been placed in deportation proceedings. The motion to reconsider will be granted and the record remanded
to the immigration judge for further action consistent with this opinion.
ORDER: The motion to reconsider is granted, the outstanding order
of deportation is withdrawn, and the record is remanded to the immigration judge.
ADDENDUM
Operations Instruction 245.4(a)(6) Subsequent 'unavailability of a
visa number. In any case in which, at the time the application was
submitted or at the time the alien was invited to submit the application,
the Visa Office Bulletin indicated that an immigrant visa number was
available, but the application cannot be approved solely because a visa
number is r ot available at the time the processing of the case is completed, it shall be held in abeyance pending the allocation of a visa
number by the Visa Office. Those cases held in abeyance pending the
allocation of a nonpreference visa number shall be periodically reviewed
to screen out any applicant who appears eligible for a preference classification. Any applicant who appears to be eligible for a preference
classification shall he informed and instructed how to proceed. In all
such cases Feld in abeyance pending allocation of a visa number, Form
I-181, in duplicate, bearing the stamped notation "HOLD FOR VISA
NUMBER" in the upper right-hand portion of the box labeled "For use
by the Visa Control Office" shall be forwarded to the Visa Control Office
to insure that a visa , number will be allocated when one becomes available. Similarly, when a different preference is established, a new Form
1-181 prepared in accordance with the foregoing shall be forwarded to
the Visa Control Office: When a visa number is available in these cases,
the Visa Control Office will return Form 1-181 endorsed to show allocation of an immigrant—visa number for the month following the month
notification is furnished to the Service. This will allow sufficient time to
complete any unfinished processing.

694


Interim liecmion 1 i vz

MATTER or Thavrasrrr or Moan:IAN In

Visa Petition Proceedings

DET—N-3475

Decided by Regional 4omnti&8ioner September 1967
A. visiting professor of distinguished merit and ability coming to this country

temporarily to ell a temporary vaeanoy in a permanent staff Position (mathematics professor) during the leave of absence for one year of the regular
staff professor, is coming to the United States to perform "temporary services" within the meaning of section 101(a) (15) (H) (i) of the Immigration
and Nationality Act.
ON BriztAns or Pis/worm ; William J LeVeque, Chairman

Department of Mathematics
University of Michigan
Ann Arbor, Michigan 48104

This case has been certified for final decision pursuant to the authority contained in Title 8, Code of Federal Regulations, part 103.4.
The petitioner is a -well-known university, of established reputation.
The Department of Mathematics is in need of a mathematics professor
to teach courses during the leave of absence, for one year, of the regular staff professor who is retained on the staff and will return to his
teaching position.
The District Director denied the petition on the following ground:
"The position for which you seek the services of the beneficiary is a
permanent staff position and your desire to employ the beneficiary in
that position only for the academic year 1967-58, while Professor
McLaughlin is on leave of absence, does not alter the permanent character of the position."
There are five basic requirements for approval of a petition to accord
a beneficiary a classification under section 101(a) (15) (H) (i) of the
Immigration and Nationality Act. Three requirements relate to the
beneficiary and two to the services it is proposed that he perform.
As to the beneficiary, he must be:
(1) An alien having a residence in a foreign country which he has no intention of abandoning;

449

Interim Decision

*1792

(2) Of distinguished merit and ability; and

(3) Coming to the United States temporarily to perform services of an exceptional nature.

As to the services, they must be :
fl) Of an exceptional nature requiring the special merit and ability of the

beneficiary; and
(2) Temporary.

The beneficiary was born in Sofia, Bulgaria, September 14, 1987.
He was on June 29, 1966 granted the degree of Doctor of Natural
Sciences by the Johann Wolfgang Goethe University at Frankfurt on
Main, Germany, "for having proved his scientific competence through
his regular course of study and through his very good dissertation
'Extensions of Compact Groups through Abelian Groups' as well as
through his very well passed Oral Examination." He has been recommended to the petitioner by senior scholars of international repute,
personally known to the staff of the university.
The petitioner has informed us that teachers of higher mathematics
are scarce and are in much demand; that the beneficiary is a very
promising young German mathematician who will have much added
to his training if permitted to spend a period at a major university

in the United States; and that the beneficiary will certainly perform
a most valuable service as a teacher.

Proof has been furnished that the beneficiary has the required distinguished merit and ability in his field, and that the courses he
will instruct will require the use of his skills. That he has a residence
abroad which he has no intention of abandoning is conceded. The sole
issue before us is whether a visiting professor or instructor of distinguished merit and ability, coming to the United States temporarily,
to fill a temporary vacancy in a permanent staff position, may be regarded as coming to the United States to perform temporary cervices.
It has been held that services of a permanent or continuing nature
do not meet the statutory requirement that the services to be performed
be temporary (Matter of M—S—H—, 8 I. & N. Dec. 460). Not only the
visit but the business must be of a temporary character. It has also been
held that an otherwise qualified beneficiary +coming to a university to
teach for an academic year is not disqualified solely by teaching courses
listed in the university catalogue when the courses are in the nature
of special seminars taught only by distinguished visiting professors or
other qualified personnel and are not a permanent part of the curriculum (Matter of Michigan State University, 10 L & N. Dec. 640).
In our decision of September 8, 1966, in Matter of War Memorial
Hospital, Int. Dec. #1668, we interpreted the statute as applied to a
physician needed by the hospital to perform emergency pathological
-

450

Interim Decision #1792
work when the staff pathologist is away. In that case we noted that
the beneficiary was not to occupy the podition of hospital pathologist
when the staff pathologist is away. He was needed from time to time'
to perform isolated pathological services which are emergent and could
not be delayed until the return of the staff pathologist. While we coneluded in that case that the contemplated services were temporary,
this interpretation, and other precedents available, does not reach to

the issue of the case now before us.
In this case, the regular staff professor, by the terms of his appointment and the nature of his duties as well as the conditions of his leave
of absence, will return to his classes. During his absence, it is proposed
that these same courses be taught by the beneficiary. Although the
teaching functions ..o be performed by the beneficiary are the same as
those performed by the professor whom he is to relieve, he will not be
taking over that individual's regular staff position. Therefore, in•
essence a temporary position has been created for which the beneficiary will provide the necessarily temporary services contemplated
by section 101(a) (15) (H) (i), supra. Also, in a sense the courses will
not be the same. No two distinguished instructors, of the level of skill
contemplated by section 101(a) (15) (H) (i) of the Immigration and

Nationality Act, bring to the classroom the same materials or the same•
manner of presentation. It is readily apparent that a diversification of
skilled instructors will broaden the educational opportunities of the
student body. In interpreting section 101 (a) (15) (H) (i) of the Immigration and Nationality Act, as applied to the facts of this position,
we believe the services of a qualified instructor relieving another for a
temporary period such as one year must properly be held to be temporary services as contemplated by the statute.
The petition will be approved.
It is ordered that the petition to accord the beneficiary a classifica-

under section 101(a) (15) (H) (i) of the Immigration and Nationality Act be, and hereby is, approved.

tion

451


MATTER OF F—

Application to Preserve Residence
A-8725696
Decided by District Director January 26, 1960
Approved by Assistant Commissioner March 7, 1960
Residence for naturalization—Clergyman sent abroad by private corporation
eligible for section 317 benefits.

ordained rabbi may qualify for the benefits of section 317 of the Immigration and Nationality Act to cover his absence from the United States
while teaching at a rabbinical seminary even though he was sent abroad by,
and receives compensation from, a private corporation which is not a religious organization.

An

BEFORE THE DISTRICT DIRECTOR

Discussion: The applicant submitted an application on Form
N-470 dated July 29, 1959, requesting the benefits of section 317 of
the Immigration and Nationality Act, 8 U.S.C. 1428, to cover his
absence from the United States from July 12, 1955, to July 19, 1956,
alleging that he is a duly ordained rabbi and that during that period he was employed by Heichal Hatalmud, a New York organization, to lecture in the Heichal Hatalmud Seminary in Israel.
The records of this Service show that the applicant was lawfully
admitted to the United States for permanent residence on August 18,
1954, under section 245 of the Immigration and Nationality Act,
8 U.S.C. 1255.
The evidence of record establishes that the applicant is a rabbi
and the employer organization is a New York membership corporation established to raise funds in the United States for the support
of a rabbinical seminary, known as Heichal Hatalmud, located at
Tel Aviv, Israel. It was at this rabbinical seminary that the applicant lectured to rabbinical students during his absence from the
United States from July 12, 1955, to July 19, 1956.
The question involved is whether the statute requires that a minister or priest be employed by a religious organization in order to
qualify for the benefits of section 317.
The record shows that subject ryas employed by a corporation
engaged solely in raising funds in the United States to support a
rabLiinical seminary in Israel. Such fund raising, although for a
533

religious purpose, does not make the corporation a religious organization. Subject cannot, therefore, be considered as having been engaged by a religious organization for the purposes of section 317.
This conclusion does not, however, disqualify him from the benefits
of section 317.
The statute contemplates two categories of persons eligible for its
benefits, namely, ministers and priests on the one hand, and missionaries, brothers, sisters and nuns on the other. The qualifying
conditions differ as to each category. Those in the second category
are persons who are engaged by a religious denomination or mission
organization to serve abroad in their respective capacities. This
prerequisite has no applicability to the first class. All that is req-lired of the minister or priest is that he be a person authorized
to perform ministerial or priestly functions of a religious denomination, and that he be abroad for that very purpose. Common to
both categories is the requirement that the denomination or organization have a bona lid-, organization within the United States.
Subject is an ordained rabbi. As such, he is authorized to perform the ministerial functions of the Jewish religion. No proof is
required to recognize that the Jewish religion has a bona fide organization within the United States. Likewise, no proof is required that the teaching of religion to rabbinical students is inherent in the ministerial functions of the religious denomination.
The subject, therefore, meets the requirements of section 317. The
fact that he was sent abroad by a private corporation which is not
a religious organization and that he receives his compensation from
such corporation is not material.
Order: It is ordered that J—F— be granted the benefits of

section 317 of the Immigration and Nationality Act to cover his
absence from the United States from July 12, 1955, to July 19, 1956.

534