Interim Decision #1885

MATTER 011' ANUNCIAOION

In Deportation Proceedings
A-14438768
Decided by Board July 25, 1968
(1) A special inquiry officer, prior to designation of a country of deportation in
accordance with section 243(a) of the Immigration and wattonant7 Act, is
not required to make inquiry of such country as to its 'willingness to accept the
•
alien into its territory.
(2) A special inquiry officer is not required to designate an alternate country of
deportation under section 243(a) of the Act; such officer has the discretion to
specify countries of deportation in the singular or plural (8 OFR 24217(e) ).
CHARGE:

Order: Act of 1952—Section 241 (a) (2) [8. 11.S.C. 12513—Nonimmigrant
(exchange visitor)—remained longer.
ON Beams, or Brawn= :

ON BEHALF OF RESPONDENT:

Irving I, Freedman, Esquire
134 North La Salle Street
Chicago, Illinois 60802

Robert A. Vielhaber
Appellate Trial Attorney

This case is before us on appeal from a special inquiry officer's order
of February 19, 1968, granting the respondent the privilege of voluntary departure, but providing deportation from the United States to
the Republic of the Philippines, on the charge contained in the order
to show cause, in the event of here failure to so depart. The appeal will
be dismissed.
The respondent is a 24-year-old single female. She admitted,
through her attorney, that she is an alien, a native and citizen of the
Philippines, who entered the United States at Honolulu, Hawaii on
January 30, 1965, at which time she was admitted as an exchange visitor. She also admitted that she was authorized to remain in the United
States until November 25, 1967 and that she has remained beyond
that date. She declined, however, to admit &portability on the

charge contained in the order to show cause.
Exhibits 2, 3, and 4 were incorporated in the record over objection .
bycounsel.AftraighnmesErciaG.Anu-*
815

Interim Decision #1888.
don, the respondent, -upon the advice of her attorney, declined to
answer any questions relating to these documents. But she did not
deny that they related to her, and no evidence was presented to show
that they did not pertain to her.
Exhibit 2 is a Form DSP-66, Certificate of Eligibility for Exchange Visitor Status,.hich states that the Albert Einstein Medical
Center, Philadelphia, Pennsylvania has selected the exchange visitor,
Emerenciana Guillen AnUnciacion, a native and citizen of the Philippines, to participate in its Exchange Visitor Program Number P-II616. Exhibit 2 is also endorsed to show that the person named therein
was admitted to the United States at Honolulu, Hawaii on January 30,
1965 as Class J-1 (exchange visitor) until January 29, 1966.
Exhibit . 3 is a.Forin 1 94, A.rrival:Departure Record, showing that
Emerenciana Anunciacion, a -native and citizen of the Philippines,
was admitted to -the United States at Honolulu, Hawaii on January 30,
1965 as Class J-1 until January 29, 1966, destined to the Albert Einstein Medical Center, Philadelphia, Pennsylvania. The reverse of
Exhibit 3 shows that Emerenciana Aminciacion was granted an extension of temporary stay to December 31,1'966.
Exhibit 4 is a Certificate of Eligibility for Exchange Visitor Status
which certifies that the- St. Francis Hospital, Evanston, Illinios, as
sponsor, has selected Emerenciana Anunciacion to participate in its
Exchange Visitors Program Number P-II-471 and that the responsible officer of the Exchange Visitor Program Number P-II-616 at
Albert Einstein Medical Center certified that he is of the opinion that
the transfer of the above-named exchange visitor to Exchange Visitor
Program Number P-31-471 is necessary or desirable in view of the
purpose for which she was admitted to the United States. Exhibit 4
also bears an endorsement showing that the transfer and extension of
stay of Emerenciana Anunciacion were approved by the District Director, Philadelphia, Pennsylvania.
Exhibits 2, 3, and 4 bear the same name as that of the respondent
and corroborate her pleading to the allegations in the order to show
cause. In the absence of any evidence to the contrary, it is concluded
that these documents relate to the respondent. Based upon the respondent's pleading and the documentary evidence aforesaid, it is concluded that the respondent's deportability on the charge contained
in the order to show cause has been established by evidence which is
clear, unequivocal and convincing. All we can add, in this connection,
is that the issue of deportability has not been raised on appeal.
The special inquiry officer has granted the respondent the privilege
of voluntary departure, which was the only relief requested of him.
Suffice it to say, in this connection, that the record before us supports
his action in this respect.
-

-

816

Interim Decision #1888
The respondent, was given an opportunity to designate the country
of deportation, in the event s,ueh action .was required, and she declined
to do so. The special inquiry .officer then specified the Republic of the
Philippines as the country of deportation in the event such action
should become necessary. The special inquiry officer then further
advised the respondent of the provisions of 'section 243 (h) of the
Immigration £014,NationalitT Act, but she, declined, through her attorney, to apply for temporary withholding of her deportation to that
country.
The first reason given for the taking of the appeal is that the special
inquiry officer erred in designating the Republic of the Philippines
as the country to which the respondent. Would . be, deported, in the
absentee of evidence that such country would accept her as a deportee.
Counsel, however, has advanced no arguments in support of this
position. Neither has he cited authority compelling such, a conclusion.
Simply stated, the contention is patently -without merit. . .
Section 212(b) of the Immigration and Nationality Act (8 U.S.C.
1252) sets out the procedure for dealing with the deportation of aliens,
and provides that a special inquiry officer shall conduct proceedings
under that section to determine the.deportability. of any alien..,Pur- .
suantoherizcntadhseio.Oftlaw,h
Immigration and Naturalization Service has promulgated reidations
(8 CFR 242.1 et seq.) which have been held to meet the standards of
the statute.' 8 CFR 242.8 spells out tbe authority ofthe speeialing,uiry
officer to make decisions, including determinations ' as to the country'
to which an alien's deportation will be directed in accordance with
section 243 (a) of the statute (8 U.S.C. 1253), but it does not authorize
or require him to make inquiry of the country selected as -to whether
or not it will accept the alien AS a deportee. The reason, practically
speaking, is that this is a ministerial function properly for performance
by the appropriate District Director of the, Immigration and Naturalization Service, acting through his duly designated subordinates, after
the order of deportation has become final. • • •
•
•
Obviously, if the respondent takes advantage of the voluntary
departure privilege granted her, the question of place of deportation
would then become moot and, from a realistic standpoint, the procedure
desired by counsel would then constitute "putting the cart before the
horse." Actually, in this connection, the question of whether or not
a specified country will accept the alien as a deportee is one of comity
concerning solely the United States and the country in question, and
Ho Yoh Sze v. Immigration and Naturalization Service

also, Int. Dec. No. 1811, BIA, 11/22/87.

817

389 F.2d 978; see

Interim Decision #1888
the rights of the alien are in no way infringed by failure to make
the inquiry prior to designation of the country. All we can add on
this point is that, obviously, the United States cannot deport an alien
to a country which will not accept her, and that this respondent
declined an opportunity to designate the country to which she wished
to be deported.
The second reason given for the taking of the appeal is that the
special inquiry officer failed to designate an alternate country or
countries of deportation, thereby depriving the respondent of an opportunity to apply for temporary withholding of her deportation thereto.
Again, however, counsel for the respondent has failed to advance any
arguments in support of this proposition; nor has he made reference
to any provision of the law and the regulations, or judicial or administrative authority, compelling acceptance of it. We find the contention
to be without any merit whatsoever.
The respondent having failed to designate any country of deportation, the special inquiry officer was required by section 243(a) to
specify as the place of deportation the country of which the respondent
is a subject, national or citizen, in this instance the Republic
of the Philippines. Said country also appears to be the one where the
respondent resided prior to entering the United States, and the one
from which she last entered this country. Also, the respondent has
not referred to any other country which can possibly qualify as a
place of deportation tinder section 243(a) of the Immigration and
Nationality Act Moreover, the special inquiry officer has the discretion
to specify places of deportation in the single or plural (8 CFR 242.17
(0) )Finally, in the unlikely event that the Republic of the Philippines
refUses to accept the respondent as a deportee, then the proceedings
will have to 'be reopened for the designation of another country of
deportation. The respondent will then have the right to apply for
temporary withholding of deportation to the country or countries of
deportation selected at that time.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

818


Interim Decision #2429

MATTER OF WINKENS
In Deportation Proceedings

A-11953287
Decided by Board September' 9,'1975
Respondent gained lawful permanent residentstatus through his parents upon admission
to the United States in 1959 when he was 4 years of age. In 1968, when he was 14 years
of age, his parents abandoned their residence in this country and returned to Germany,
taking him with them. The abandonment of their permanent resident status is imputed
to respondent, who was subjed to their custody and control. Hence, he cannot be
considered a lawful permanent resident returning from a temporary visit abroad upon
his return to this country on December 19, 1972; at that time he made an "entry" within
the meaning of section 101(a)(13) of the Immigration and Nationality Act. [Matter of
Bauer, 10 I. & N. Dec. 304, distinguished.]
Cnikriami
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))—Nonimmigrant visitor-remained longer.
Ort BEH.LF OF IMOrONDENT:
Douglas P. Haffer, Esquire
San Francislon Neighborhood Legal
Assistance Foundation
2701 Folsom Street
San Francisco, California 94110

ON BEHALF OF SERVICE:

Paul C. Vincent
Appellate Trial Attorney
Bernard J. Hornbach
Trial Attorney

This is an appeal by the Trial Attorney, on behalf of the Immigration
and Naturalization Service, from the immigration judge's order terminating proceedings. The appeal will be sustained, and the proceedings
remanded for consideration of the respondent's application for adjustment of status pursuant to section 245 of the Act.
The respondent is a native and citizen of Germany, who was admitted
to the United States as an immigrant on September 25, 1959, at which
time he was 4 years of age. He remained in the United States with his
parents until 1968, when they decided to move back to Germany and
took him with them. At that time he was 14 years of age. He testified
that he had not wanted to leave but that " . . .there was no way I could
stay by myself' (Tr. p. 5). He returned to the United States, at the age
of 18, on December 19, 1972, classified as a nonimmigrant visitor,
authorized to remain until March 15, 1973. He has stayed thereafter and
is charged with overstaying as a nonimmigrant.
451

Interim Decision #2429
The immigration judge terminated the proceedings, in a decision
dated October 24, 1974, in reliance upon our decision in Matter of Bauer,
10 I. & N. Dee. 304 (BIA 1963). Matter of Bauer, supra, does not govern
this case. Unlike Bauer's parents, this respondent's parents did not
retain their United States residence' hen they left this country in 1968.
The abandonment of their lawful permanent resident status is imputed
to the respondent, who was subject to their custody and control. He had
gained lawful permanent resident ,status through them, and he lost it
when they abandoned their residence and took him with them. The
respondent made an "entry;' when he arrived in the United States on

December 19, 1972, and, although once lawfully admitted for permanent
residence, he cannot be considered an alien lawfully admitted for permanent residence who is returning from a temporary visit abroad.
ORDER: The appeal is sustained and the record remanded for
further proceedings consistent with the above decision.

Board member Irving A. Applemariabstained from e-orisideration of this case.

452


Interim Decision 401500

IIA.TrEn or Sum
In Section 248 Proceedings
A-14678775--6
Decided by Acting Regional Commissioner August 95, .1965
Since eligibility of an alien within the United States for status as a treaty
trader under section 101(a) (15) (E), Immigration and Nationality Act, requires a showing that "substantial trade" is presently in existence between
his country and the United States, an application under section 248 of the
Act for change of noninimigrant status from visitor for business to that of
treaty trader, as agent in the United States for a Japanese company which
has authorized the consignment sale of business machines, is denied an
alien who has no office or inventories on band in the United States, has presented no evidence to indicate that he has negotiated or is in the process of
negotiating any contracts relative to his proposed trade, and has offered no
documents such as bills of lading, invoices or statements to indicate the current existence of any international trade in which he might be engaged.

Discussion: These cases are before the Regional Commissioner
on appeal from the District Director's decisions denying the applications.
The applicants are a 33-year-old male and his 29-year-old spouse,

both natives and citizens of Japan. They entered the United States
on September 5, 1964 at,which time they were admitted as visitors
for business for six months. On March 5, 1965 they applied for
changes of their nonimmigrant status to those of treaty traders in
order that the male applicant might act as an agent for a Japanese
company and arrange for the shipment and consignment sale of
American business machines to Japan.
The male applicant has submitted an affidavit wherein he alleges
that he has been appointed delusive agent in the United States for
the Unitrex Calculator Company, Ltd. of Japan and that in this
capacity he will act as an independent businessman purchasing used
business machines in the United States for consignment to the above
company who will locate buyers of such machines in Japan. He
further stated that he hoped to eventually arrange for the imports206

Interim Decision *1500
don to the United States of adding machines manufactured in
Japan.
There was also submitted an undated statement, from the President of the Unitres Calculator Co., Ltd of Tokyo, Japan which
states in effect that the male applicant is authorized the consignment
sale of all import-export transactions of business machines of the
above company.
In an interview had with the male applicant on May 26, 1965, it
was developed that he had neither bought nor sold. any merchandise
in the United States and that he had merely looked over the field. of
used business machines in the United States. He stated that the
Unitrex Calculator Co., Ltd. which is capitalized at $20,000 acts as
sales agents for the Unitrex Sales Company of Japan who manufactures calculators. He indicated that the two firms are in no way
connected, even though there is a similarity in their names. He
stated that, although he is presently the import manager of the
Unitrex Calculator Company he has no authority to make binding
business deals or contracts for such company.
He expects as a. treaty trader to buy used cash registers after
ordered to do so by the Unitrex Calculator Co. and take them to
his brother-in-law's dry cleaning place in San Francisco where he
will inspect, repair and crate the machines for shipment to Japan.
In denying these applications the District Director found:
The Unitrex Calculator Company, Ltd., has neither purchased merchandise,
nor sold its products in the Witten States. linitrez Calculator Company prosCAW has no stocks of merchandise, inventories, warehouses, nor capitalization
in the United States. Unitrex Calculator Company, Ltd., in Japan is capitalized
at $20,000. It has not been established that Unitrex Calculator Company, Ltd.,
is a firm engaged in zubstantial international trade between the United States
and Japan; as required by the Immigration and Nationality Act.

Qn appeal applicants' counsel submits that the District Director's
decision would render the statute virtually meaningless since the
prevention of an alien from entering to initiate foreign trade would,
in effect, preclude such trade from ever beginning.
In order to qualify as a treaty trader under section 101(a) (15)
(p) of the Act, the applicant must establish that he seeks to be in
the United States to carry on substantial trade with Japan or that
he is here to develop and direct the operations of an enterprise in
which he has invested a substantial amount. It has been a longestablished rule that to acquire treaty trader status while in the
United States other than as an investor, the alien must show that the
trb.de is presently in existence. Tulsidat v. Insular Collector, 262
U.S. 258, 264 (1923) ; Tatar/a Hawk v. Nagle, 55 F. (2d) 623
291

Interim Decision #1500

(ran).

Existing trade includes successfUlly negotiated contracts

which call for shipment abroad of goods or for the purchase of
goods, in this country to be shipped abroad, even though no shipments have been made or received pursuant to such contracts. It
does not include transactions merely in the state of negotiation without the existence of a current actual volume of trade. Substantial
trade does not necessarily refer to the monetary value of the transactions but rather to the volume of the trade.
The male applicant is the sales representative in the 'United
States. He has no office or inventories on hand in the United States.
,

He has offered no documents such as bills of lading, invoices or
statements to indicate the current existence of any international

trade that he might be engaged in. In fait he has presented no evidence to indicate that he has negotiated or is in the process of negotiating any contracts or commitments relative to his proposed trade.
On the record, neither applicant is classifiable as a treaty trader
because the trade in which the male applicant proposes to engage
has not reached. the stags of development contemplated by section
101(a) (15) (E) of the Immigration and Nationality Act. They
are, therefore, statutorily ineligible for the change of nonimmigrant
status' sought. Their appeals will. be nisrmikqed.
ORDER: It is ordered that the appeals be and the same 'are
hereby . dismissed.

292


Interim Decision #1578

MATikat

OF CiallliSHANIM

In Section 212(e) Proceedings
A-14211881

Decided by District Director January 91, 1866
4 An carburise visitor from Afghanistan, a Moslem, is granted a waiver of the'

foreign residence requirement of section 212(e), Immigration and Nationality %Act, as amended, since compliance therewith would result in exceptional
hardship to her non-Moslem, United States-citizen husband and child who,
it is likely, 'would be• subiect to persecution because of their nationality and
religion, if they accompanied her abroad; should she depart without her
husband, economic hardship would result as the only source of family income
is 8250 per month from a part-time job held (by applicant's husband, a
student, and he is financially unable to defray transportation abroad for
applicant and their child ; further, since her family is not pleased with her
marriage, she doubts they would permit her to reside with them.' -

Discussion: The applicant, Nooria Moor Cruikshank, is twentyfive years of age,• a native and citizen. of Afghanistan. She was
admitted to the United States under her maiden name, Nooria Noor
as an exchange visitor on November 28, 1962, sponsored by -the
Agency for International Development to study home economics
for a period of two years under Exchange Visitor Program No.
G-II-100. She attended the University of Arizona, Tucson, Arizona, and was granted an extension of stay by this Service until
November 27, 1964. Her sponsor refused to issue her a Form
DSP-66 requesting another extension of stay in November 1964
because she had married a United States citizen. She Would require
three more years of study to obtain her degree in home economics.
Satisfactory evidence of Mrs. Cruiirshanles marriage on May 20,
1964 to a United States citizen audbf the birth in the United States

-

of their child, Paul, on November 9, 1964 has been submitted.

• The applicant resides in Tucson, Arizona with her United Stab 'Ls
citizen husband and child. Her husband is a student at the University
of Arizona and'has a part-time job from which he earns $250 per
month. His wages are their only source of income and he is not
558

• Interim Decision 41578
financially able to pay transportation for the applicant and their
child. to Afghanistan. Her family is not pleased with her marriage
and she doubts if they would permit her to reside with them. The
applicant has married outside her Moslem religion and she fears
that should her husband and son return to Afghanistan with her .
.hardship and possibly physical harm theywouldsfrxm
as her country is a strong Moslem country and the people feel
strongly about Moslems marrying non-Moslems. She states that
She would not feel safe living there with her son should. her husband
remain in this country.

The State Department has advised that in response to a request
from Washington headquarters of the Agency for International
DevelopMent, the alien's sponsor under its Exchange Visitor Prol
gram, the Mission in Kabul replied that the problems which would
arise upon Mrs. Cruilmhank's return to Afghanistan -would far offset
any benefit which might derive from fulfillment by the alien of the
foreign residence requirement if her American and non Moslem
-

husband and child accompanied her.
In view of the economic hardship involved and the likelihood

that residence in the applicant's native country would. subject her
spouse and child to persecution because of their religion and nationality, it has been determined that compliance with the foreign residence requirement of "'section 212(e) of the Immigration and
Nationality Act, as mended, would. impose exceptional hardship
upon Mrs. Cruikshank's United States citizen spouse and child. The
Secretary of State has recommended that the foreign residence
requirement be waived. It is found that the admission of the
applicant would be 'in the public interest.
ORDER: It is ordered 'that the 'application of Nooria Noor
Cruikshank for a waiver of the two-year foreign residence requirement of section 212(e) of the .Immigration and Nationality Act,
as amended, be granted:.

559


Interim Decision #1380

MATTER OR BAGAI

In DEPORTATION Proceedings
A-6837929

Decided by Board August 12, 1964
The 10-year period of physical presence and good moral character "Immediately
following the commission of an act, or the assumption of a status, constituting
a ground for deportation." required to establish eligibility for suspension of
deportation under section 244(a) (2), Immigration and Nationality Act, as
amended, begins to run from the time an alien first became deportable [Fong
v. Immigration and Naturalization Service, 808 F. 2d 191 (C.A. 9, 1962)]
[Matter of 17-11—, 9 I. & N. Dec. MO overruled, in part.]
CHARGES :

Warrant: Act of 1952—Section 241(a) (1) [8 U.S.O. 1251(a) (1) (1958)1—Excludable at entry—No visa.
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.O. 1251(a) (1) (1958)1—Excludable at entry—No permission to reapply.
Act of 1952—Section 241(a) (5) [8118.0. 1251 (a) (5) (1958)1—Failed
to report address.

The question presented by the special inquiry officer is whether the
10 years "immediately following the commission of an act, or assumption of a status, constituting a ground for deportation" begins to run
from the time an alien first became deportable or last became deportable. Respondent first became deportable by reentering illegally in
1952 and last became deportable by failing to report his address in
January 1955.
Respondent a 87-year-old divorced male, last a native and citizen of
Roumania and allegedly stateless entered the United States illegally in
1946. He was ordered deported; he is considered as having deported
himself when he departed from the United States to Mexico on a short
visit while in uniform in 1951. He last reentered illegally after a visit
to Mexico in January 1952.
In 1955, respondent was placed under deportation proceedings on
the grounds that he was without the proper documents at the time of

his reentry in January 1952, that he had not been granted permission
683

Interim Decision #1380
to reapply for admission after his deportation, and that he had failed
to furnish notification of his address in January 1955. He was ordered
deported on all charges.

Respondent applied for suspension of deportation; on May 26, 1964,
the special inquiry officer entered an order granting his application.
The special inquiry officer found that the respondent had established
that 10 years elapsed since he first became deportable and that he had
the residence and character required during the necessary 10-year
period. The special inquiry officer fixed the commencement of the
10-year period from the time the "respondent first became deportable"—respondent's return without documents or permission to reapply in January 1952. In selecting January 1952, when respondent
first became deportable, as the beginning of the 10 -year period rather
than January 1955, when respondent last became deportable, the special inquiry officer relied upon Louie King Fong v. Immigration and
NaturaZisation Service, 808 F. 2d 191 (9th Cir., 1962) . After his order
was served, the special inquiry officer became aware of the conflict between his decision and a Board precedent (Matter of V—B--,9 I. R. N.
Dec. 340) which stated that the 10-year period starts with the time of
the last commission of the act making the alien deportable rather than
the first commission of the act. The special inquiry officer thereupon
certified the case to the Board for final decision.
In Louie King Fong, the circuit court carefully considered the
specific problem as to whether the first or last deportable act was to
constitute the basis for computing continuous residence in the United
States for suspension of deportation; therefore, despite a recent statement to the contrary (Krug v. Pederson, N.D., Ohio, C62-376, June 24,
1964, the court by way of dicta stated that the 10-year period ran from
the time of the last failure to furnish an address report), we believe
the dint court's ruling must control. Matter of ir B--, 9 I. 3 N.
Dec. 340, is overruled insofar as it is inconsistent with the decision of
the circuit court concerning the basis for computing the commencement of the period for which residence and good moral character must
be established in suspension of deportation cases.
We shall return the case to the jurisdiction of the special inquiry
officer so that he may make such amendment as may be necessary in his
order submitting the case for suspension of deportation.
ORDER: It is ordered that the case be returned to the special inquiry officer for such further action as is consistent with what we have
stated in our opinion.
—

684


Interim Decision #1426

MATTER.or YES

In Visa Petition Proceedings
A-12994661
• A-12994665
Decided by Board January 20, 1964
Since the burden of proof of establishing eligibility for =Meta status rests
upon the petitioner, and since the petitioner has not borne his burden—his
identity and claimed relationship to the beneficiaries having been cast in
doubt by the established identity of his mother and by -the testimony of witnesses in Hong Kong—the visa petition approval is revoked, without prejudice to reopening if petitioner is able to produce further evidence relating
to his claimed identity and relationship.

The -cases come forward on appeal from the notice of revocation
of the District Director, San Francisco District, dated October 29,
1963, revolting the visa petitions in behalf of the son and daughter
for the reasons that the American Consulate at Hong Kong has returned the visa petitions with the information that a local investigation concerning the beneficiaries reveals that they are surnamed
LOUIE rather than YEE and, therefore, the petitioner failed to
establish the relationship claimed; and that the petitioner has also
failed to resolve discrepancies developed by the American Consulate
in Hong Kong..
The petitioner, born at Wo On Village, Toyshan District, Kwangtung, China on February 9, 1924, claims United States citizenship
through parentage and is holder of a certificate of citizenship AA33814 issued in San Francisco in 1952. He filed a visa petition on
September '1, 1962, on behalf of his alleged son, JerngWai Yee, and
daughter, Chun Har Yee. The beneficiaries were born on December
6, 1951, and April 1, 1949, respectively, at Wo On Li, Toyshan District, Kwangtung, China. The petitions were conditionally approved
for nonquota status on October 8, 1962, and forwarded to the American: Consulate at Hong Kong.
27,

Interim Decision #1426
The visa petitions were accompanied by a letter dated April 17,
1958, relating to the approved visa petition of the petitioner's wife,
Ng Ngan Sun, which reflected that the petitioner first arrived in the

United States on June 15, 1952, was admitted by a Board of Special
Inquiry as a United States citizen and was issued citizenship certificate No. AA-33814 'around August 14, 1952. At the time of his first
admission to the United States he was 26 years old and stated he was
single. When he applied for a certificate of citizenship he also stated
that he was single. The petitioner alleged that he made a trip to
Hong Kong on April 29, 1957, returning on October 2, 1957, and
exhibited United States Passport No. 197665 showing such admission. The petitioner was interviewed on April 15, 1958, and the facts

and allegations in. his petition and relating files were verified by him.
He furnished photographs of himself and the wife-beneficiary of his
petition, identifying the latter photograph as a good likeness of his
wife, Ng Ngan Sun. He also submitted a certified copy of a Hong

Kong marriage certificate certifying to the marriage of 'himself to
the beneficiary. In the interview he stated that he was married on
August 31, 1957, and that he first met his wife in the Nathan Coffee
Shop in Kowloon after being introduced to her by a friend, Ng Min
Poy. He stated that after two months they became engaged and
then in about another month they were married; that he then lived
with his wife after the marriage. He stated that he thereafter took
his wife to the movies; that he bought her a gold ring with a jade
setting; and also bought her some clothes including shoes and a wrist
watch of Swiss make. He stated that his wife's father is Ng Man

Yin and her mother is Lew Shea, both of whom were presently in
Hong Kong and that his wife has no brothers or sisters. The petitioner stated that his wife's native village was Tung Gong Village
T.S.D., China and that she had lived in Hong Kong for over two
years. He stated that he sent her a little less than $1,000 since he
returned to the United States and stated that she is not now pregnant. Photographs of the petitioner and the beneficiary and the certificate of marriage certifying to the marriage of Yee Yook Lin and
Ng Ngan Sun were presented.
The petitioner was interviewed on October 8, 1962. It was ascertained that the original information regarding his single status was
false. Actually, according to the petitioner, he was married by Chinese custom at the Wo On Village, Toishan, China, on December 15,
1945, and remarried, according to western custom at Hong Kong on
August 31, 1957. The petitioner's wife was also present at the interview and her file, A 1076880$ shows she was admitted into the
-

28

Interini:Dedisidn 4t1426
United States at Honolulu, Hawaii, via sir, on February 12, 1960,
under section 101(a) (2I) (A) of the Immigrration and Nationality
Act, as the -wife of Yee Yok Lin. In her application for an immigrant visa she listed her husband as Yee Yok Lin but does not show
the name of any minor children. She stated at •her interview on
October 8, 1962, that she did not inform the American Consulate it
Hong Kong of her children, Jeing Wai Yee and Chun Har Yee,
because it did not seem logical for her to do so inasmuch as she was
claiming that she had married for the first time on August 31, 1957.
The petitioner and his wife asserted that she and the two beneficiaries

went to Hong Kong during the Chinese ninth month of 1954, having
traveled from Ai Gong Market where the petitioner's wife and•the
two children had been living since 1952. It is alleged that she and
the children left, the Wo On Villege. about 1952, which was the year
that the petitioner entered the United States, for the reason that her

mother lived near the Ai Gong Market in the 'Ung Gong Village
and the market was just across the river from the Ung Gong Village.
It is again claimed that Ngan Sun Ng, the wife, has no brothers or
sisters. The petitioner stated that he has the following brothers and
sisters: Yook 'lee, two years older than the petitioner living in Col-orado ; Yook Lim; three years younger than the petitioner, residing
in Illinois; Gim Lan, his only sister, two years younger than the
petitioner residing in Fresno, California.
A consular report dated March 20, 1963, from the American Consulate at Hong Kong, after reciting the above facts, states that inasmuch as the petitioner's surname and native village did not check
with the village index, the consular officer questioned his claimed
identity. On February 8, 1903, the case investigator caned on the
beneficiaries' alleged maternal grandmother, Lan Lai Wall, but found
instead at the dame.address a woman claiming to be the beneficiaries'
guardian. She asserted that Lau Lai Wah returned to the Mainland
after the beneficiaries' mother left for the United States in 1960.
The alleged guardian identified herself as Ng Gim Lui, a fellow tenant of the beneficiaries' family before their mother went to the
Unitecr-States, after -which, the witness said she -herself took the
responslity of looking after the beneficiaries. The witness disclaimed any relationship to the beneficiaries' family. The witness
gave her husband's name as Louie Ting also known as Louie gun

Wai (marriage name), now in the United. States. While in the witness' fiat, the investigator noticed'a -certilie,ate from . tbe'Ming Sun
Primary School, evidently that of the bin9ficiary Yee ierng Wai,

inscribed Louie Jerng Wai, On February 13,-1963; the investigator
29'

Interim Decision #1426
visited the Ming Sun Primary Sehool where the headmaster said the
beneficiaries had entered the school as "Yees" but in 1959 their guardian had changed their surname to "Louie."
The consular report went on to state that on February 18, 1068, a

usually reliable source of information reported identification of the
petitioner's father as Louie Kong Sing, who along with the petitioner, when given name the source did not know, is in the United
States. Naming the petitioner's wife as Ng Shea, the source said
they had two children—a son, Louie Jerng Wai, and a daughter,
Louie Chun Har—both in Hong Kong. On February 25, 1963, a
member of the consular office interviewed Louie Bo, male, age 52, and

a claimed native of Ho Mok Village, Tong Min Heung, Toishan.
This witness executed a statement in which he identified the petitioner as Louie King Fai, his neighboring villager; the' petitioner's
wife as Ng Shea, whom he thought still in Hong Kong; and the
beneficiaries as their children—Louie Chun Har, daughter, and Louie
Jerng Wei, son. The witness said the petitioner is in the United
States se is his father, Louie Kong Sing; the latter's wife, Hui Shea,
is still in. Hong Kong. This witness stated that Louie Kong Sing
and Hui Shen luis :daughter whose name he does not recall, but
recalls only the son's name. On February 26, 1963, a consular investigator interviewed Louis Man Hon, male, age 46, and a claimed
native of Sheung Lem Village, Tong Min. Heung, Toishan. The
witness identified the petitioner's photograph as-Louie King Fai, his

-

neighboring villager, now in the United. States. This witness' identification of the petitioner's wife, his children, his parents and his

sister agreed with that of the previous witness.
Counsel's brief recites that on two occasions the investigation section of the San Francisco office confronted the petitioner with the
gist of the report from Hong Kong but that he denied that his true
name was Louie and said that he is in fact a person of United States
nationality. He argues inasmuch as the petitioner has previously
been admitted as a :United States citizen and is the holder of a certificate of citizenship, he is entitled to be recognized a citizen of the
United States and that the visa petition should be approved in view
of the fact that the report establishes the claimed relationship He
further comments that no steps have been taken to cancel the certificate of citizenship of the petitioner.
The burden of proof of establishing eligibility for the benefits
sought under the immigration laws rests upon the petitioner. Cancellation of the certificate of citizenship under the provisions of section 842 of the Immigration and Nationality .A.et would affect only
34

Interim Decision #1426
the document itself and not the citizenship status of the person in
whose name the document is issued. Two witnesses have positively
identified the photograph Of the petitioner as that of Louie King Fai,
and his brother as Louie Kong Sing. It is noted that the petitioner's
file, AA-33814, reflects that on June 24, 1952, the alleged brother,
Yes Took Lim, testified that his mother had one younger brother
ruined Louie Bing -Kuey (Tr. June 24, 1952, p. 10). The alleged
lath& testified that he married Louie Tai Jang on OR 11-2-8
(March 6, 1922) (Tr. p. 13, June 21, 1952). The applicant also testified that his mother lied one younger brother, Louie Bing Kuey
.(Tr. June 25, 1952, p. 24).
The testimony of the witnesses in Hong Kong and the established
fact that the petitioner's mother was a Louie who had a younger
:brother casts a doubt upon the identity of the petitioner and the true
nature of the claimed relationship. Under the circumstances, it is
felt that the petitioner has not borne the burden of establishing eligibility for the benefit he seeks under the immigration laws. The
.appeal from the revocation of the visa petition will be dismissed
without prejudice to reopening if the petitioner is able to produce
further evidence relating to his claimed identity and the relationship.
ORDER: It is ordered that the appeal be dismissed from the order
•of the District Director, San Francisco District, dated October 29,
1963, revoking the approval of the visa petitions.
-


Interim Decision #2742

MATTER

OF GIANNOUTSOS

In Rescission Proceedings

A-13288520

Decided by Board November 9, 1979
Where the basis for rescission proceedings was that the alien was not entitled to the
numerical classification accorded him in his visa, it is not necessary that the Notice to
Rescind allege ineligibility for the numerical classifications since this is a matter of
affirmative defense. Matter of Suleiman,15 I&N Dec.784 (BIA 1974), overruled; Matter
of Raqueno, Interim Decision 2713 (BIA 1979), followed.
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Daniel Aleiser
Trial Attorney

Stanley H. Wallenstein, Esquire
Schiano & Wallenstein
80 Wall Street
New York, New York 10005

By: Milhollan, Chairman; Maniatis, Maguire, and Farb, Board Members

In a decision dated February 13, 1973, the immigration judge
rescinded the now 52-year-old respondent's permanent resident status
granted him on August 25, 1964, based on an approved visa petition as
the nonquota spouse of a United States citizen. The immigration judge
held that he was not entitled to nonquota status. Thereupon, the
respondent, through previous counsel, appealed from that decision.
Subsequently, on October 24, 1974, concurring in the immigration
judge's conclusion that the Service had established the essential facts
contained in the notice of rescission and that the respondent was
ineligible for adjustment of status, inasmuch as an immigrant visa had
not been readily available to him at the time he was granted his
permanent residence status, we dismissed the respondent's appeal
from that rescission.
Now before us is the respondent's motion, submitted through new
counsel on January 31, 1978, claiming (while relying on Matter of

Buleiman,15 I&N Dec. 784 (BIA 1974)), that, inasmuch as the notice to
rescind, dated August 18 1968, contained no additional allegation that
the respondent was ineligible for adjustment of status under section
245 of the Immigration and Nationality Act, 8 U.S.C. 1255, under either
,

172

Interim Decision #2742
a preference quota or the nonpreference quota, the proceedings should
be reopened and the record remanded. In its brief, dated October 20,
1978, the Service expresses its opposition to the motion to reopen,
claiming, inter alia, that the respondent (who is now in deportation
proceedings) has not alleged in his motion that he was the beneficiary
of an approved visa petition or was otherwise eligible for a preference
or nonpreference quota under section 203(a) of the Act, 8 U.S.C.
1153(a).
In Matter of Suleiman, supra, we held that where the basis for
rescission proceedings is that the alien was not entitled to the numerical classification accorded, it is essential that the notice allege ineligibility for other numerical classifications. We relied on the case of

United States v. Rossi, 299 F.2d 650 (9 Cir. 1962), for that proposition.
The basis for that denaturalization proceeding was that Rossi (an
Italian citizen who had personated his brother, a Chilean citizen) had
not been lawfully admitted for permanent residence, a prerequisite for
naturalization, because he entered with an immigrant visa, in nonquota status, to which he was not entitled. He was actually subject to

quota limitations. The court held that the Service had not borne its
burden of establishing that the quota to which Rossi was chargeable
was oversubscribed, and that, therefore, the Service had not established that Rossi would have been ineligible for a quota visa.
However, in reexamining this issue, we take note that the evidentiary and legal situation in rescission proceedings is unlike that in
denaturalization proceedings. In rescission proceedings we may take
official notice of the monthly Department of State Visa Bulletins
announcing visa availability under numerical limitations in a stated
month. Fed. Rules of Evid. 803(a)(8); Matter of DeVera,16 I&N Dee. 266
(BIA 1977). Therefore, the respondent in rescission proceedings, who

claims a visa was available to him under a classification (under section
203(a) of the Act or by virtue of a priority date) other than that
accorded him, should allege that claim as an affirmative defense. 8
C.F.R. 246.3. Normally, the issue will be decided forthwith by reference
to the visa bulletin. Additionally, in rescission proceedings under
section 246 of the Act, the immigration judge is nut bound by judicial
rules of evidence. 8 C.F.R. 246.3; Matter of DeVera, supra. Therefore,
the holding in Rossi, supra, in a denaturalization proceeding, is not
applicable in a rescission proceeding. Hence, the overruling of
Suleiman, supra, is the necessary consequence of our decision in this
case.'
' In Matter of Raqueno, Interim Decision 2713 (BIA 1979), a deportation proceeding,
we did not read our holding in Matter of Suleiman, supra, as having any applicability in
deportation proceedings. Where that respondent was charged under section 241(a)(1) of

173

Interim Decision #2742
Under the pertinent provisions of 8 C.F.R. 3.8, motions to reopen
shall state the new facts to be proved at the reopened hearing and shall
be supported by affidavits or other evidentiary material. We conclude
that the respondent, although his motion is supported by an affidavit,
inasmuch as he has not stated new facts to be proved at the reopened
hearing, nor averred that he was otherwise eligible for a preference or
nonpreference classification under section 203(a) of the Act, has not
presented a new motion sufficient under 8 C.F.R. 3.8 to require reopening of these proceedings. Therefore, the motion to reopen will be
denied.
ORDER: The motion is denied.

the Act as an alien who entered without a valid document in violation of section
212(a)(20) of the Act, we held that the Order to Show Cause was sufficient to inform that
respondent of the charge with sufficient precision to allow her to properly defend herself.
Hence, we found no need under the statute or regulations to contain in the Order to Show
Cause allegations which exclude the possibility that a visa might have hen available to

that respondent in a status other than that specified in the visa. An allegation of
ineligibility for another numerical classification would be superfluous to that charge in
the Order to Show Cause.

174


Interim Decision #1970

MATTER or LE noon

In Exclusion Proceedings
A-17904833
Decided by Board May 12, 1969
(1) An alien cannot withdraw her application for admission during the
course of an appeal to the Board of Immigration Appeals after the special

inquiry officer has rendered his decision and entered an order of exclusion.*
(2) An alien who seeks to enter the United States as a nonimmigrant student without a valid noninunigrant student visa is inadmissible under section 212 (a) (26) of the Immigration and Nationality Act, even though in
possession of a nonimmigrant visitor visa, and she is denied, in the exercise of discretion, a waiver of the student visa requirement pursuantto
the provisions of section 212(d) (4) of the Act (unforeseen emergency),
based on allegations she was misinformed by the United States consul as
to the need of a student visa, where at the time of her alleged application
for a student visa she was not then in possession of, and has been unable
to secure, a certificate of eligibility from an approved institution of learning.
ExcLuDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)]—
Immigrant without visa.
Act of 1952—Section 212 (a) (26) [8 U.S.C. 1182 (a) (26)]—
Nonimmigrant without valid nonimmigrant
visa.
ON BEHALF OF APPLICANT:
ON BEHALF OF Sravzon:
Donald Bottler, Esquire
Sam L Feldman
7080 Hollywood Boulevard
Trial Attorney
Hollywood, California 90028
(Brief filed)

An order entered by the special inquiry officer on December 23,
1968 excludes the applicant as a nonimmigrant alien who seeks
admission without a valid noninunigrant visa pursuant to the
provisions of section 212(a) (26) of the Immigration and Nationality Act (8 U.S.C. 1182 (a) (26) ). Counsel requests withdrawal of

the applicant's application for admission in his notice of appeal
(Form I-290A).

* Modified. See, Matter of Vargas-Molina, Interim Decision No. 2069.

251

Interim Decision #1970
We will first consider the issue of whether the applicant may
withdraw her application for admission during the pendency of
an appeal to this Board after the special inquiry officer has rendered a decision and entered an order excluding her. Counsel in
his notice of appeal states that the applicant wishes to depart
from the United States "without the stigma of [an order of] deportation" in order to apply for a student visa abroad and then
reapply for admissidn to the United States "in [the] correct status, namely, that of an alien student." Counsel cites our decision
in Matter of Estrada Tena, 12 I. & N. Dec. 429 (1967), as authority for the withdrawal of an application for admission on ap
peal to this Board.
Our decision in Matter of Estrada-Tena (supra) concerned an
alien whose counsel, during the course of the hearing before the
special inquiry officer, attempted to withdraw his client's application for admission. The special inquiry officer refused to permit a
withdrawal and excluded the applicant. The special inquiry officer
certified the case to this Board for a determination of whether an
alien may withdraw an application for admission where the hearing has been completed and nothing remains except the rendering
of a decision and the entry of an order of exclusion. We held that
in the absence of regulations to the contrary, Estrada-Tena did
have the right to withdraw his application for admission. We reasoned that he was under no compulsion to enter the United States
from Mexico; that the fact that he remained in Mexico accomplished the same result as if he were excluded and deported, without the necessity of seeking permission to reapply for, admission
within a year after exclusion and deportation; and that prior to
the special inquiry officer's decision, the option to press or withdraw the application for admission should rest with the applicant.
The trial attorney in his brief raises the issue of whether an
alien may withdraw an application for admission after an exclusion order has been entered by the special inquiry officer. He
maintains that an alien should not be permitted to gamble on a
decision and then be allowed to withdraw his application for admission if the decision turns out to be adverse. If such withdrawal is permissible as a matter of right, he reasons, the alien
could undercut the exclusion order even after affirmance by this
Board on appeal, by the simple expedient of moving to reopen for
the purpose of exercising the right of withdrawal.
-

252

Interim Decision #1970
This Board functions as an appellate administrative body pursuant to the regulations set forth in 8 CFR 3. Our jurisdiction in
exclusion proceedings is governed by 8 CFR 3.1(b) (1), which
states in substance that appeals will lie from "decisions of special
inquiry officers in exclusion cases, as provided in Part 236 of this
chapter." 8 CFR 236.4 states in pertinent part;
Fituditv of Order. The order of the special inquiry officer shall be final except when a case has been certified as provided in Part 3 or Part 103 of this
chapter, or when an appeal is taken to the Board of Immigration Appeals.

8 CFR 3.4 permits the withdrawal of an appeal in exclusion proceedings both before and after it has been forwarded to the
Board of Immigration Appeals_ It also provides that where the

record has been forwarded, the request for withdrawal shall also
be forwarded and "if no decision in the case has been made on
appeal, the record shall be returned, and the initial devision [of
the special inquiry officer] shall be final." It is clear from the regulations that once the special inquiry officer has made his decision
and there is an appeal to this Board, withdrawal of the appeal
before this Board has acted leaves the special inquiry officer's decision in effect.

The applicant in the case before us seeks to withdraw her application for admission during the course of an appeal to this
Board after the special inquiry officer has rendered his decision
and entered an order of exclusion. We conclude that she does not
have this right. The regulations do not provide for such withdrawal, and we see no reason why an applicant should be permitted to withdraw as of right after the special inquiry officer has
decided the case. We realize, of course, that there may be circumstances where an alien's inability to withdraw the application

may result in a gross miscarriage of justice. Where this is the
case and the alien or his counsel requests relief, both the special
inquiry officer and this Board may, where warranted, vacate an
order of exclusion to permit the withdrawal of an application for
admission.
It is clear from the record before us that counsel seeks to withdraw the application for admission in order to avoid the excluding provisions of section 212 (a) (16) of the Act, which requires
an alien who has been excluded from admission and ordered deported to wait one year before he can reapply for admission unless he first obtains the consent of the Attorney General. The
mere fact that an alien who has been ordered excluded will need
253

Interim Decision #1970
permission to reapply for admission does not ordinarily result in
a gross miscarriage of justice, since a remedy exists by way of an
application for permission to reapply in accordance with the procedure set forth in 8 CFA 212.2.
The applicant is an unmarried female alien, 21 years of age, a
native and citizen of France, who applied for admission to the
United States as a nonimmigrant visitor at the port of San Francisco, California on October 22, 1968. She presented a valid
French passport and a nonimmigrant B-1 visa which had been
issued to her by the American Consul at Tangier, Morocco, on October 10, 1967, valid to October 10, 1971, for multiple applications
for admission into the United States.
The applicant testified that her purpose in coming to the
United States at this time was to enter school in order to complete her training as a nurse (pp. 10 and 40). She further testified
that while in Paris in September and October of 1968, she went
to the American Consulate and inquired concerning a student visa
to come to the United States to study nursing. She allegei that
she was told by an employee at the consulate that such a visa was
not necessary since the B-1 visa on her passport was still valid
and she could come to the United States on that visa (pp. 24, 25,
27)
The special inquiry officer finds that the evidence with respect
to the applicant's excludability under section 212 (a) (20) of the
Immigration and Nationality Act is insufficient to establish that
the applicant intends to remain in the United States permanently
if she should be admitted at this time as a nonimmigrant. The evidence with regard to this issue is found in Exhibit 3, a sworn
statement made by the applicant on October 24, 1968. The applicant.indicated at that time that she might desire to reside permanently in the United States after completion of her course of
study as a nurse. She also stated that she intended to go to Canada after the completion of her studies to apply for an immigrant
visa and then lawfully return to the United States as a permanent resident (pp. 19-24). The special inquiry officer concludes
that it might be inferred from the applicant's sworn statement
and her testimony during the hearing that her intention was that
if admitted to the United States as a nonimmigrant, she would
thereafter at some time apply for status as .a permanent resident
alien under section 245 of the Immigration and Nationality Act,
presumably after she had completed her course of study in nurs-

254

Interim Decision #1970
ing so as to be qualified for a preference. The applicant testified
that she was unaware of the fact that it was possible to apply for
permanent residence while in the United States (p. 23). We affirm the conclusion of the special inquiry officer that the applicant

is not inadmissible under section 212 (a) (20) of the Immigration
and Nationality Act.
We will next consider the merits of the applicant's appeal from
the decision and order of the special inquiry officer excluding her
under the provisions of section 212 (a) (26) as an alien who is
seeking to enter the United States as a nonimmigrant student
without a nonimmigrant student visa. The applicant freely admits that she is seeking admission for the purpose of attending a
school of nursing (p. 40). She presented a visa issued pursuant to
the provisions of section 101(a) (15) (B) (1), which permits the
entry of a nonimmigrant temporarily for business. She also concedes that she has been unable to obtain a certification of her eligibility for admission to a school of nursing (Form 1-20) because of the language barrier (p. 32).
During the course of the hearing, the applicant applied for a

waiver of the student visa requirement pursuant to the provisions
of section 212 (d) (4) of the Immigration and Nationality Act.
Under this section, the requirement for such a visa may be
waived by the Attorney General, acting jointly *ith the Secretary of State "on the basis of unforeseen emergency in individual
cases." (Emphasis supplied.) The "unforeseen emergency" relied
upon by the applicant is based upon her testimony that the American Consul in Paris, France informed her "you don't have to
apply for a student's visa because •you have a six-months tourist visa ... they [Immigration Service] don't mind if you go to
school or as a tourist" (p. 25). The applicant testified that she
fully informed the consul that she was returning to the United
States to study nursing when she applied for a student visa (p.
24).
The

special inquiry officer adjourned the hearing accorded the
applicant on November 26, 1968 to afford counsel an opportunity
to prepare an application for a waiver under section 212 (d) (4)
of the Act and to secure a certification of acceptance by a school
of nursing (p. 28). The trial attorney then of record requested a
substantial length of time "to make inquiries of the American
Consul at Paris, France" (p. 28). When the heafing was resumed
on December 23, 1968, the trial attorney informed the special in255

Interim Decision #1970
quiry officer that no inquiry had been made to the consul in Paris,
France by the former trial attorney and he stated for the record
"that any inquiry or any answer to any inquiry ... would be irrelevant and not material and therefore the inquiry will not be
made in this case." When questioned as to the basis for his position, the trial attorney replied. "Because the consular officer is
presumed to act in accordance with applicable laws and regulations and inasmuch as this applicant does not have a [student]
visa, anything the consular officer might have told this girl, the
Service is not bound by" (p. 34).
The trial attorney's position is supported by both the law and
the regulations. Section 221 (h) of the Act provides in substance
that nothing in the Act shall be construed to entitle any alien "to
whom a visa or other documentation has been issued" to enter the
United States if upon arrival at a port of entry the alien is found
to be inadmissible by the Immigration Service. This section of the
Immigration and Nationality Act also puts the alien on notice by
a provision that, "The substance of this subsection shall appear
upon every visa application." Furthermore, 22 CFR 41.45 precludes the issuance of a student visa to an alien applicant by a
consular office abroad unless the applicant can show, inter Oa,
that he "has been accepted for attendance by, an established institution of learning . . . which has been approved by the Attorney
General . . . as evidenced by a presentation of Form 1-20 (certificate of eligibility) properly executed by the accepting school and
signed by the alien . ." The applicant in this case did not have a
"certificate of eligibility (Form 1-20) at the time of her alleged
application for a student visa.
The special inquiry officer has carefully weighed the evidence
with regard to the circumstances concerning the applicant's request for a waiver of the requirement that she present a nonimmigrant student visa. He concludes that the application for a
waiver should be denied as a matter of administrative discretion.
We find in this record no "unforeseen emergency" in the applicant's case within the meaning of section 212(d) (4). We affirm
the action taken by the special inquiry officer.
The evidence establishes that the applicant is excludable under
the provisions of section 212(a) (26) of the Act since she does not
possess a (F-1) student visa and is applying for admission for
the primary purpose of enrolling at an institution of higher
learning in the United States. Furthermore, we conclude that the
256

Interim Decision #1970
applicant cannot, as a matter of right, withdraw her application
for admission at this stage of the proceeding. On this record, we
conclude that withdrawal of the order of exclusion is not warranted. We affirm the order entered by the special inquiry officer
and will dismiss the appeal.
ORDER It Is directed that the appeal be and the same is
hereby dismissed.

257


Interim Decision #1286

MATTER OF STOJKOV1C

In DEPORTATION Proceedings
A-12885583
Decided by Board June

4,

1963

Respondent, a 30-year-old native of Yugoslavia and national of the Dominican
Republic, has not established that because he was an officer in the Anti-Communist Foreign Legion organized in the Dominican Republic under Trujillo's
dictatorship he would be subject to physical persecution within the meaning of
section 243(h), Immigration and Nationality Act, if deported to that country.
CHARGE:

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)1—Entry

as

nonimmigrant, remained longer.

Respondent -was an officer in. the Anti-Commuraist Foreign Legion

organized in the Dominican Republic under Trujillo's dictatorship.
He maintains that this former connection with the Trujillo regime
would subject him to physical persecution in the Dominican Republic.
On this ground he applies for withholding of his deportation to that
country:
The special inquiry officer denied respondent's application and ordered deportation to the Dominican Republic_ Respondent appeals
from that denial. We must determine whether respondent's connection with Trujillo would subject him in the Dominican Republic to
hardship which would amount to the physical persecution the statute
contemplates.
Respondent raises several points meriting close consideration. The

nebulous elements in the overall factual situation render difficult an
objective assessment of the likelihood of physical persecution. Respondent's counsel points out that the special inquiry officer referred
in his opinion to a valid principle of law but applied it erroneously to
respondent's case. Technically, at least, respondent is correct on this
point. Nevertheless, upon close analysis of the whole record, we
reach the opinion that respondent would not now face physical persecu'

Section 243(h), Immigration and Nationality Act, 8 U.S.C. 1253(h).

281

Interim Decision #1286
tion if deported to the Dominican Republic. Our decision, therefore,
coincides with that of the special inquiry officer.
Respondent is a native of Yugoslavia, 30 years old, and single. The
Trujillo regime granted him Dominican nationality. Respondent left
the Dominican Republic on March 7, 1962 and arrived at Miami,
Florida that same day, entering the United States as a nonimmigrant
purportedly in transit to France. His authorized stay in this country
expired on March 9, 1962. Respondent admits that he entered this
country intending not to continue his journey to France. The order to
show cause, however, charged him only with overstaying his authorized time. He concedes deportability on that charge. Respondent
declined to apply for voluntary departure or to designate a country to
which his deportation should be directed.
Respondent states that he left Yugoslavia in 1956 because he did not
want to live under the Communists. He resided in France until 1959.
In that_year he signed a contract with the Dominican Republic's representatives in France for employment in the Dominican Republic.
Upon his arrival there, instead of employment pursuant to the agreement, he was ordered into military service. Respondent testified that
he objected to military service but accepted the offer after notification

the alternative to serving in the military forces was imprisonment.
He subsequently attained the rank of first lieutenant.
Tn 1960 when Trujillo disbanded the Anti-Communist Legion, respondent transferred to a. mountain regiment under the command of
Vladimir Secen, then a lieutenant colonel. Respondent remained in
military, service until June 1, 1961, just after Trujillo's death. Colonel Secen, who had also been respondent's commanding officer in the
Anti-Communist Legion, appeared as a witness for respondent.
This record suggests three possible sources for respondent's physical persecution in. the Dominican Republic imprisonment, deportation, or mob violence. We shall discuss in the order given each of
these sources from two points of view—respondent's actual experiences while in the Dominican Republic and his probable experiences
if returned to that country.
—

L Respondent's actual experiences in the Dominican Republic
I. Imprisonment

Respondent's activities immediately following termination of his
military service are not clear. He testified he was arrested twice,
once in November 1961 and again on December 26, 1961. He was
imprisoned the first time for about eight days and the second until
February 7, 1962. Respondent said he was arrested because he was
considered a good friend of Trujillo. He also said the charges were
282

Interim Decision #1286
using arms without a permit, although he was then an army officer
required to wear arms, and being a Trujillo mercenary. Respondent
alleges that he was mistreated in jail but does not describe any abuse.
Even if respondent's arrests had a purely political basis, his imprisonments—in view of their relatively short duration and the lack of
evidence of actual mistreatment—cannot be held to have constituted
physical persecution for purposes of the statute.
2. Deportation

The record does not show whether respondent was actually deported
from the Dominican Republic. He testified that shortly after his
release from prison in February 1962 he was taken one night to army
intelligence headquarters. The authorities picked up his passport at
that time and returned it to him the day before he left the Dominican
Republic. When respondent was about to depart, the authorities told
him he would be able to travel to France and gave him a ticket for air
transportation to that country. Sueh facts are as consistent with an
intention to make some restitution under the breached contract of employment by returning respondent to France, the country in which the
contract was executed, as they are with an intention to deport re-

spondent. We shall assume respondent's deportation from the Dominica.n Republic, however, in order to consider for our purposes its
possible effect.
The special inquiry officer refers to the legal principle that a sovereign state has a right to deport undesirable persons. Counsel for
respondent points out that that principle refers to aliens and does not
apply to a national of the country. 2 He asserts that deportation of a
national from his own country is a most insidious form of physical
persecution cutting him of from friends, family, economic resources,
language, and culture.
Deportation of a national is akin to banishment or exile. Historically banishment has been recognized at times as a punishment and at
other times as a conditional pardon. The latter concept prevailed in
England where banishment was first known as "abjuration." The
accused party took an oath to leave the realm and to return only with

permission. This was a. conditional pardon rather than punishments
2 The special inquiry officer refers to Lopez v. Howe, 259 F. 401 (C.A. 2, 1919),
a case of an alien. In D.S. v. Ai Toy, 198 U.S. 253 (1905) the appellee claimed
United States nationality. The Court, however, three justices dissenting, accepted the administrative officials' finding of alienage and considered the writ of

habeas corpus on that basis' 8 0.1.S. p. 593 (1962).

283

Interim Decision #1286
Whether imposed as punishment or a condition for a pardon banishment has usually been attended with loss of civil rights. 4
Respondent has retained his Dominican nationality and the right to
travel on a Dominican passport. In the absence of any evidence to
the contrary, we assume that he has also retained any other civil rights
which attach to Dominican nationality. There is no evidence indicating respondent is likely to be denaturalized. His case, therefore,
is more akin to "relegation" in old English law, or relegatio of the
Roman civil law, a modified type of banishment (temporary in England) in. which the person retained his rights of citizenship . 4
Moreover, respondent testified that he requested permission to leave
the Dominican Republic in lieu of remaining there in military service.
He was being returned to France, the country from which he had
entered the Dominican Republic and in which he had sought refuge
after leaving Yugoslavia. Under his theory that his deportation
from the Dominican Republic—if he was deported—constituted physical persecution, his present sojourn in this country must be a form
of physical persecution. His efforts to remain here in lieu of going to
any other country, including the Dominican Republic or France,
militate against such a view of his case.
Respondent's ties in the Dominican Republic are slight. The record
does not ditclose that respondent has friends, family, or economic
-

resources in the Dominican Republic. Respondent himself testified

that the Dominican officers serving in the Army under Trujillo looked
upon him as a foreigner, an alien. Therefore, the special inquiry
officer's position although technically inaccurate, is not so far wrong
in substance. Only if respondent's ties in the Dominican Republic
were so strong as to make enforced absence from that country severe
and unusual hardship might his deportation, or banishment, from
the Dominican Republic constitute physical persecution. For the
foregoing reasons we conclude that even. assuming respondent's departure from the Dominican Republic was equivalent to deportation,
he has not suffered physical persecution thereby.
3. Mob Violence
Information in the record (Ex. 8) indicates the Anti-Communist

Legion was used to oppose the attempted invasion of the Dominican
Republic in 1959 by Dominicans seeking to overturn the Trujillo
regime. Such activity, even though coerced, no doubt adds to any
Black L.D., Rapalje and L.L.D. For a discussion of some modern instances
of banishment with historical references see Armstrong, Banishment: Cruel and
Unusua3 Punishmen*,111 U. Pa. L. Rev. 758 (April 1068).
` Black L.D., Rapalje and L.L.D.

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Interim Decision #1286
unpopularity in the Dominican Republic of former members of the
Anti-Communist Legion resulting from their association in general
with the Trujillo regime. Respondent has referred vaguely to an
inability to move freely about the streets in the Dominican Republic.
We believe these allegations reflect fear of mob action. His witness,
Seem, also referred to danger from the mobs. Respondent cites no
occurrence, however, in which he had any particular difficulty with
a mob in the streets of the Dominican Republic. We find in this record
no evidence that he has suffered physical persecution in the Dominican
Republic from that source assuming, without deciding, that the statute

contemplates physical persecution can arise from such a source .°
We conclude from the discussion thus far of respondent's suggested
sources of physical persecution. imprisonment for a political offense,
deportation or banishment, and mob violence—that respondent did not
undergo any physical persecution while residing in the Dominican
Republic. But what if respondent were now to be returned to the
Dominican Republic?
—

II Respondent's probable experiences if returned to the Dominican Republic.
The likelihood that respondent will encounter physical persecution

in the Dominican Republic can be founded only upon existing circumstances in that country. We take official notice that the executive
leaders of the Dominican Republic's Government have changed. since
respondent's hearing. So far as we can ascertain at this time, however, this change has no material effect in our consideration of respondent's case. If anything there is less internal tension, at least on
the surface, then there was at the time the special inquiry officer
heard respondent's case.
1. Imprisonment

Respondent testified the authorities informed him that if he returned to the Dominican Republic he would again be imprisoned. As
a mercenary during Trujillo's dictatorship, even though an unwilling
a one, respondent would no doubt be unpopular with many segments of

the population as well as some individuals within the Government.
Respondent's position in that regime, however, was not of a type or
significance likely to now cause lengthy imprisonment or unduly harsh
treatment while confined. We believe that respondent's confinement,
if any, would be relatively brief—as were his prior imprisonments.
Counsel for respondent mentioned in his memorandum on appeal
that he knows from personal observation that the treatment accorded
Compare Matter of Diaz, Int. Dee. No. 1270 (March 20, 1963).

285

Interim Decision *1286
political prisoners in respondent's country is not according to our
standards of treatment of prisoners. There is no evidence in the record in support of this statement, however, and, in particular, no evidence that the treatment is such that confinement for even a brief
period of time might constitute physical persecution. Moreover,
there is no reason to suppose that the Dominican authorities would not
again permit respondent to leave the country, especially in lieu of
serving a lengthy term in prison.
2. Deportation

Failing respondent's departure from the country at his own request,
the authorities might on their own initiative take steps to expel him.'
Respondent contends both that expulsion would be likely to occur and
that it would constitute physical persecution. The special inquiry
officer admits that respondent might be deported from the Dominican
Republic. We concede a fairly high degree of probability for such
an eventuality. For the reasons discussed in considering the circumstances under which respondent left the Dominican Republic in
May 1962, however, we believe respondent's expulsion from that country would not constitute physical persecution.
3. Mob violence

Respondent says that the communistic 14th of June party persecutes anyone who had belonged to the Anti-Communist Legion. The
record does not specify what form such persecution might take. That
party has not had control of the Government at any time Probably
respondent believes that the party's adherents would, without governmental sanction, attack former Legionnaires.
Respondent makes no direct allegation that he would suffer physical
harm at the hands of rioting or demonstrating mobs in the Dominican
Republic. The special inquiry officer states respondent's position is
basically that the current Government in the Dominican Republic
would physically persecute him because of his military employment
by the Trujillo regime. Respondent's counsel does not take exception •
to that statement. He frames the issue more broadly, however, in
terms of whether the respondent will receive treatment in the Dominican Republic which will constitute physical persecution—without
specifying whether such treatment would. come from the Government
or some other source. Thus we do not have sharply defined here the
issue raised, but not determined, in Matter of Diaz—whether physical
harm inflicted upon a person by a mob acting without governmental
The record is silent as to Dominican law empowering such action.

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Interim Decision #1286
sanction, can constitute physical persecution for the purposes of section 243 (h) of the Immigration and Nationality Act. 8
As we have noted, however, respondent testified that he could not
walk in the streets. His witness, Vladimir Secen, testified that his own
troubles were with Communist controlled groups on the streets. Latent in respondent's situation, therefore, lie the queries whether a mob
in the Dominican Republic might physically harm him and, if so,
whether such harm would amount to physical persecution for purposes
of the statute.
Respondent's case, insofar as mob violence might be involved, corresponds to what we designated as the first situation in Diaz. We there
reserved the question pertaining to that situation—whether intentional
physical harm inflicted because of past association with the Trujillo
regime or because of antithetic interests by a riotous mob, acting without the sanction of the Dominican Government, would amount to
physical persecution within the meaning of section 243 (h). We again
find that we need not consider the legal import of this question.
Respondent submitted no evidence to corroborate his bare statement
that he would not be able to go out on the streets. The Dominican
newspaper dipping which refers to deportation of four persons from
the Dominican Republic (Ex. 3) is an ordinary news item which makes
no reference to any particularly inflammatory public action or opinion.
Moreover, there is no evidence that the authorities could not adequately
protect respondent by controlling any outbursts of mob violence which
might appear. Instances of mob violence in the Dominican Republic
have diminished. We believe that respondent is not likely to suffer
harm from such a source.
We conclude that respondent is not likely to encounter in the Dominican Republic any treatment which would warrant withholding his
deportation to that country on the grounds that he would be physically
persecuted there and dismiss the appeal.
ORDER: It is ordered that the appeal be and hereby is dismissed.
• Supra •.

287


Interim Decision #1371

MATTER OF FRANKLIN PIERCE COLLEGE

Petition for APPROVAL OP 'Soiaom
BOS-214 (f) -615
Decided by Regional Commissioner January 80, 1884
(1) Approval of an established institution of learning for attendance by nonimmigrant students under section 101(a) (15) (F), Immigration and Nationality
Act, requires, among other things, a finding that the school is a bons fide
institution of learning. possesses the necessary facilities and is otherwise
qualified for the instructioh of students in recognized courses, and confers
upon its graduates a recognized degree or its credits are recognized by, and
transferable to, an institution which does confer such a degree.
(2) Petitioning liberal arts college is denied approval or attendanec by nonimmigrant students because library and recreational facilities are inadequate;

no evidence has been submitted that the credits earned by the students at the
institution would be recognized by, or transferable to, other schools; no evidence has been submitted of reputation of the college as an educational institution in the community; no evidence has been submitted of assured sources
of funds or of financial stability of institution, and the U.S. Office of Education, after consultation, recommended denial of the petition.

This is an appeal from the decision of the District Director who
denied the petition to approve Franklin Pierce College at Rindge,
Now Hampshire; for the 'tititendowe of nonimmigrant alien students.
The petition and supporting dents indicate that the institution
is a nonprofit organizationi chartered in November 1962 by the State
of New Hampshire and operated by a board of trustees. The physical
plant comprises six buildings with dormitory, classroMns will other
facilities. The college has no library and uses the facilities of the
Ingalls Memorial Library at Rindge. The institution has been planned
to operate as a co-educational liberal arts college which will confer
upon its graduates the degree of bachelor of arts. It commenced operation in September 1963, has an enrollment of about ninety students,
a faculty of eleven instructors, and presently is offering courses at the

freshman level only.
Approval of a petition of this type requires, among other things,
a finding that the school is a bona Ale institution of learning, possesses
the necessary facilities and is otherwise qualified for the instruction
659

Interim Decision #1371
of students in recognized courses and confers upon its graduates a recognized degree or its credits are recognized by and transferable to an
institution which does confer such a degree. In reaching a decision,
the Service is required by section 101(a) (15) (F) of the Immigration
and Nationality Act to consult with the Office of Education of the
United States. In this case, the Office of Education, after reviewing
the information submitted with the petition and the information obtained through Service inquiry, has recommended that the petition
not be approved.
We have carefully examined the record in this case including the
information submitted in support of the appeal. As pointed out by
the District. Director in his decision, the record contains no evidence
of the reputation of the college as an educational institution in the
community, and the library and recreational facilities do not appear
to be adequate for an institution of this type. Additionally, no evidence has been submitted that the credits earned by students at the
institution would be recognized or transferable to other schools. Further, the material submitted in support of the institution's financial
stability does not contain any documentary evidence of financial stability and no evidence is given of assured sources of funds. We find
the recommendation of the Office of Education that the petition be
denied to be persuasive. In our opinion, the petitioner has failed to
satisfactorily establish that, in its present state of development, the
college can be considered as having met the requirements of the statute.
The appeal will be dismissed.
ORDER : It is ordered that the appeal be and the same is hereby
dismissed.

660


Interim Decision #159k

• MATTER OF Psourows=
In Section 212(h) Proceedings
A-13i86167
Doodad by District Director May .04 i 1986-

Notwithstanding a permanent resident alien's short period .of tgesidence here
and the fact she obtained her iromigrantidsa, knowing her husband might
not obtain his, and proceeded to the United States, her husband's exclusion
would result in "extreme hardship" to her within the, meaning of section
212(h), Immigration and Nationality Act, as amended by P.L. 89-236, since
in order to suport herself and her &year-told dieghter she is required to
work full time during which she must entrust the care of her child to
others; she has found it necessary to make her temporary home with relatives; and the cost of transportation, which she could ill afford, would be
wasted should her husband's waiver application be denied.

This case comes before me on' appeal from the March 22, 1966.
order of the Officer in Charge, Frankfurt, denying the application.
Appellant is a male 35-year-old native of Poland who has resided.
in Great Britain for the past 20 years. He was *girded four years
ago a 31-year-old native and citizen of the United Kingdom..
who was admitted to the United States for permanent-residence in
October 1965. Each has been married once previously; both marriages were terminated_ by divorce. Each has one child; .appellint's

11-year-old daughter is in the custody of his ex-wife in Ragland
and not dependent on him for support. His wife's, eight-year-old
daughter resides with her in the United States. Appellant's spouse
has four sisters in the United States and she temporarily resides
with one of them. Her parents reside in Englind. Appellant_has
no relations in the United States ether than his wife and her daughter, whom he has not yet formally adopted. .
The appellant was never in the United States. He was found by
the consular officer to be eligible for a visa for permanent residence
in all respects except for excludability -under section 212(a) (9) of
the Immigration and Nationality Act. He was convicted on January 10, 1963 of attempting to evade customs duty. He had been
to Poland to visit his family thereAnd upon returning to England
635

Interim Decision # 1592
failed to declare,ko customs authorities a camera presented to hint
c..by his brother while he was visiting in Poland. He paid a £30 fine
and had his gift camera confiscated. This is the only conviction
appearing in the record and appellant has credibly testified. this is
the only act he has ever committed which wiluld_ constitute visa
ineligibility.
Because of the nature of the crime and the fact that it is an
isolated blemish on the appellant's record, the Officer in charge has
conceded that appellant's admission would not be contrary to the
national welfare, safety or security. The denying order acknowledges the legal validity of appellant's marriage to his spouse, and
that she has been lawfnIfy admitted to the United States for permanent residence. The stability and durability of the marriage are
not questioned. The denying decision then is based solely on a
finding that appellant's exclusion will not necessarily result in extreme hardship to his United States resident spouse. The finding
is premised on the argument that his spouse's United States residence
is artificially contrived; that she had, before she herself went to
the United States, full knowledge of his excludability and had been
warned it might not be waived; that she can very well return to
England and join her husband, arid therefore his exclusion. does not
impose the degree of hardship upon her contemplated in the statute.
The record shows it is true she was aware of the conviction at
The time it took place in 1963, that she and her husband applied
for a visa at the same time in 1965, and that she was made aware
at that time of the reason..his visa was refused. The United States
Consul carried out his obligation in telling the appellant of the
provisions of section 212(h) of the Immigration and Nationality
Act,- at the same time warning him that the adjudication of applications made under this provision is a discretionary matter administered under the authority of the Attorney General. Mrs. Peczkowski
was told by the consul that although he had no legal basis to deny
her visa or that of her daughter, there Picas no alternative but to
refuse her husband's. It was made clear to her that her husband
might not be able to' join her in the United States and she was
required to sign a consular affidavit acknowledging her awareness
of that possibility, and stating that she assumed full responsibility
for any physical hardship or mental distress which the separation
might cause appellant, herself or other members of the family. She
signed the affidavit, proceeded with her own application, and emigiuted to the United States.
The waiver of excludability which appellant seeks cannot be
granted pursuant to section 212(h), as amended, unless he establishes
,

636

. Interim Decision *1592
.7%

satisfactorily' that ,his exclusion would result in "extreme hardship"
to his lawfully resident spouse or stepchild. In Matter of
9 1 & N. Dee. 1, the Board of Immigration -Appeals ruled that
"extreme hardship" means "more than the existence of mere hardship caused by family separation."
It is true that appellant's wife and 'stepchild have boldly risked
the possibility that he might not be found eligible for a yisa'after
they emigrated from England. The disappointment and emotional hardship which the wife would apparently experience as a consequence of the denial of this application are the ordinary hardships •
of family separation and do not constitute "extreme hardship"' within
the Board's ruling in Matter of TV— supra. If these were the only
elements of hardship present, it follo
ws that the application could
not be approved. However, while these additional hardships may •
be of her own making, it has been established that appellant's wife
has found it necessary to make her temporary home with relatives,

that she has been forced to entrust the care of her child to such
relatives while she is required to work-full-time to support herself
and eight-year-old daughter. The spouse and child could ill afford
the cost of their transportation to the United States, which would
have been wasted,' and the cost of their return transportation to
England to rejoin appellant, if this application were to be denied.
Under the circumstances, it is concluded that the appellant's exclusion would result in "extreme hardship" to his spouse and stepchild, lawful permanent.residents of the United States.
If the appellant's spouse were a United States citizen or an alien
with long legal residence in the United States no question would

have arisen; the otherwise overwhelmingly favorable factors would
have led to granting the application. The question. to• be decided
here is whether the short term of residence in the United States of appellant's spouse, or the fact that she obtained her visa knowing
that her husband might not obtain his, have any bearing on the
degree of hardship now suffered by appellant's spouse due to his
exclusion.
•
The statute is quite clear, and neither the law, regulations, inter- •
pretations nor precedent decisions establish a criterion as to how
long a legal resident relative must have resided in. the United States
before the ineligible relative can 'qualify for waiver. In this case
it is clearly established that (1) appellant is ineligible for a visa
under section 212(a) (9) of the Immigration and Nationality Act,
and he has applied for waiver. under section 212(h) of the Act;
(2) his spouse is an alien legally admitted. to the United States for
pernianent residence; (3) his admission would not be contrary to
637•

Interim Decision #1692 ,
the national -welfare, safety or security of the United States; and
(4) his-exclusion would result in extreme hardship to his lawfully
.
resident spouse.
•The appeal will be sustained.
ORDER: ' It is ordered that the application of RoMuald Leszek
PECZKOWSELI for waiver' of excludability under section. 21*..)
(9) of the Immigration and Nationality Act be and is hereby
GRANTED pursuant to the authority contained in section 2104
of the Immigration and Nationality Act, PROVIDED that such
waiver shall apply only to the grounds for exclusion referred to
herein.

638