Interim Decision #1562

MATTER OP

Gancra

,In Deportation Proceedings
A-5128684
Decided by Board March, 16, 1066
.1) Suspension of deportation will not be granted an alien , whose case has
been twice rejected by Congress for such relief when nothing new has been
added to his record since it was last referred. to Congress.
(2) Conviction under section 336, Michigan Penal Code, 1031, for taking indecent liberties with .the person• of a 9-year-old feniale child "without
committing or intending .to commit the crime of rape" is a conviction.of a
'crime involving moral turpitude
CHARGE:

• Order: Act of 19521-Section 241(a) (4) (8
1261(a) (4)]—After entry
convicted of two crimes Involving moral turpitude
° not arising out of a single scheme of criminal misconduct, to wit: Petit Larceny, and Indecent
Liberties. '

This ease has been sent to Congress twice for approval of a. grant
of suspension of deportation under the Immigration and Nationality
Act, and both times Congress has denied suspension. On March 21,
1957, the special inquiry officer granted suspension of deportation
under section 244(a) (5) of the Immigration and Nationality Act,
and this grant was approved by the Acting Regional Commissioner,
Northwest Region. On December 31, 1963,. respondent was- granted
suspension of deportation under section 244(a) (2) of the Immigra- .
tion and Nationality Act, as amended, in' the light of the additional ..
factor that he had married a dependent United States citizen. This '
marriage took place after the previous grant of suspension. Congress again failed to approve the grant of- suspension. Reipondent
again applies for suspension of deportation. On December 14, 1965,
the special inquiry officer granted respondent voluntary departure
from the United States with an automatic order of deportation to
Mexico in the event be fails to depart. Respondent appeals to this
Board.
521

Interim Decision #1562

•'

The entire record has been carefully reviewed by the Board. The
facts have been set forth in previous decisions of the special inquiry

officer. The appeal will be dismissed and the order of the special
inquiry officer of Dee,embei 14, 1965, will be approved.
•Respondent is 68 years old, and has lived in the 'United. States
since 1918. The two offenses on which the deportation order is based
are (1) petty larceny, committed in 1933, and (2) indecent liberties
with the. person of a minor female child, committed in 1941. Aside
from these convictions, the respondent's only criminal record con, sists of several arrests for being drunk.
Respondent's first wife died in 1935. From 1947 he lived with a
"common law wife" who died in 1955. In 1957 he married his present wife, and they are still living together. Hehad 'one child by his
-

first marriage, lnit he does not know where she is. Tie testified that
he was hot able to take care of her and that she was raised from
infancy by someone else. ,

Respondent testified that he receives Social Security •benefits of
$95 a month; and his wife is employed as a dishwasher at $25 a week.
She has had this employment for only a shaft time. Respondent
earns •$1200 a year -in addition to his Social Security payments. He
has been' employed as a grinder of aluminum castings by the same
-company since 135A.
The record contains two letters particularly favorable to reipolident. The Director of the Welfare Department of Muskegon County,
Michigan, Mr. William Lindsay,. states (Exhibit 10 (B and C)) that
he was respondent's parole :Officer for several years after -respondent
WAS

released from prison in 1945. Mr. Lindsay commends respond-

• eat highly. for his adjustment to parole and since that time. The
County Clerk of Muskegon County states (Exhibit . 2—R, letter of
November 29, 1965) that he "feels badly that the Congress- rejected"
respondent's application. for suspension.of deportation.
The Board will not grant suspension• of 'deportation when Congress luie-twie,e rejected this ease for such a grant. Nothing new has
been added to this .record since it was list ref rred to Congress.
Therefore,_ counsel's plea on the_ merits must be denied. .
Counsel pleade that the Immigration and Nationality Act is unconstitutional as it applies to respondent in that it operates retroactively, constitutes an ex post facto law, is a denial of due process. and
is, therefore, contrary to the United States Constitution. The Board
has long held that it Is not.within our province to pass on the constitutionality of the statutes administered ,by ns, that we accept the
legislative mandates given us, and it is within the power and cmpacity of the United States courts to declare them unconstitutional.
522 • •

•

Interim Decision 4t1562
Maier of Z—, 41. & N. Dec. 556, 557; Matter of .11 , 3 L & N. Dec.
411, at 456 and 457, and extensive authority cited therein.
Counsel appeals from the holding that respondent is deportable
for the two offenses set forth in the order to show cause. Particularly, he complains that petty larceny is, at most, a misdemeanor.
Petty larceny has long been held to be a crime involving moral turpitude. The record does not show anythiag except that respondent
plead guilty in the Municipal Court of Cleveland, Ohio, on May 19,
1933, to a charge of petit larceny, and was sentenced to 30 days' imprisonment in the workhouse. Since U. S. ex rel. Meyer v. Day, 54
F.24 336 (2d Cir., 1931), no one has successfully challenged the ruling that petty theft constitutes a crime involving moral turpitude.
See Matter of 1? , 1 L & N. Dec. M. This Board has no authority
to retry the criminal case; we are bound by the record of conviction,
although we recognize the severity of the penalty under the circumstances of the present reeord. 2
The second offense of which respondent was convicted was for
taking indecent liberties with the person of a nine-year-old child
—

—

"without -committing or intending to commit the crime of rape"

under section 336 of the Michigan Penal Code, 1931. 2 He was sentenced for three to ten years in the State Prison. The maximum
penalty was ten years. The record shows that the court made "no
recommendation."
Our sutvey of the Michigan decisions under the pertinent sections
indicates that the purpose of the section is to punish males who take
improper and indecent liberties with female children, and the "liberties" are defined as being "such as the common sense of society would

regard as indecent .and improper". People v. Bonneau 323 Mich.
237, 35 N.W. 2d -161 (1948) ; People v. Szymanski, 321 Mich. 248, 32
N.W. 2d 451 (1948) ; People v. Lakin, 286 Mich. 282, 282 N.W. 149
(1938). Armstrong v. Bannan, 272 Fad 577 (6th Cir. 1959), held
that it is not necessary that the statute define the offense with particularity, citing People v. Hicks, 98 Mich. 86,- 90, 56 N.-W. 1102,
1104 (1893). The Michigan cases also indicate that lesser offenses,
"Petty theft" in California was found to be a crime involving moral turpitude in Matter of V—, 2 I. & N. Dec. 340, and in Matter of r—r—, 3
& N. Dee. 571. In each of these eases relief from deportation was granted
under the seventh Proviso to section 3 of the Immigration Act of 1917,
as amended. '
'Act No. 328, #338, rub. Acts 1932, Michigan, under which respondent was
convicted provided that if any male over 16 yea= of age shall assault and
take indecent liberties with a female child under the age of 10 without
committing or intending to commit the crime of rape he shall be guilty of
a felony.

523

Interim: Decision #1562
thoakwhich weuld not necessarily, involve moral turpitude, are not
prosecuted under thi•section and, if prosecuted, have been acquitted.
Paple v. :Vieel, 275 Mich. 77, 265 N.W. 781 (1936) ; People v. Healy,
265 Mich. 217, 251 N.W. 393 (1933) ;•eople v. Sheffield, 105 Mich.
14.7, 62 N.W„.65 (1895), and eases cited.
_ We. are unable to find -a. decision of this Board concerning a conviction under this statute or for this exact offense.. Our decisions
concerning sexual offenses involving young children require a finding that respondent was convicted of a crime involving moral turpiiude. Most of the cases involve statutory rape or attempted. rape,
which is specifically excluded as an element of an offense under section 336, Michigan Penal Code. The Board holds, generally, that
when the statute is "divisible", i.e., one which may or may not describe crimes involving moral turpitude, we must look to the record
to discover. the exact nature of the offense for which respondent was
convicted. In Matter of
5 I. & N. Dec. 289, we decided that a
conviction•for contributing to the delinquency of a minor under section 33 of the Juvenile Delinquents Act of 1929, Statutes of Canada,
1929, e. 46, 19-20, a divisible statute, constituted a crime involving
moral turpitude. We mentioned in 'that decision that the statutes
particularly penalize immoral actions which involve young children.
In Matter of 8 —, 5 L & N. Dec. 686, we considered an indecent assault against a female under section 292(a) of the Canadian Criminal Code to be an act of moral 'depravity and a crime involving
moral turpitude under U. B. ex rel. 'Mynas v. Uhl, 203 Fed. 152, aff'd
210 Fed. 860 (2d Cir., 1914), and. U. S. ere rel. Claret& v. Reimer,
32 F. Supp. 797. Matter of R —, 3 L & N. Dec. 562, found carnal
knowledge of a girl under 16 and-above 14 years of age, in violation
'of section 301(2) of the Criminal Code, of Canada, to involve moral
turpitude. In gaiter of F--, 2 I. & N. Dec.. 610, we held that contributing to the delinquency of a' child under the Illinois Criminal

Code, sections 37.090 and 37.089,-may or may not be a crime involving moral turpitude, depending on the record in the individual case.
F— was found to have committed a crime involving moral turpitude
'for having contributed to the delinquency of a girl 15 years of age.
We. found many unreported cases holding that -convictions under
..these broad statutes may or may not involve moral turpitude, and
that an examination of the indictment is necessary to determine
moral turpitude in each case. We held that convictions for viola• dons of- the following statutes involved moral turpitude: (1)
Article 203 of the Criminal Code of Poland defining commission of
immoral acts with persbns leis than 15 years of age; (g) impairing
the morals of a minor under section 483 of the New York Penal
524

Interim Decision #15E'
Law;

(3) contributing to the delinquency of a child under section
37.089 of the Illinois Criminal Code. In each case we found the

statute to be disjunctive or divisible and that the information filed
described an act which involved moral turpitude. There
have been several cases under section 702 of the Welfare and Institutions Code of California involving convictions for committing
acts which cause or tend to cause juveniles to "lead a dissolute life".
There have been many California cases under section 1203.3 of the
Penal Code of California where we found convictions for "base and
depraved" offenses and "lascivious conduct" involve moral turpitude.
We have made similar findings where there were convictions for
contributing to the delinquency of a minor under section 7, Chapter
674, the laws of Maryland; under sections 1639-45 and 1639-2 of the
Ohio General Code; under section 1987-17, Remmington's Revised
in each case

Statutes of Washington; under Article 534 of the Teams Penal Code;
and under section 7996, Chapter 30, Compiled Laws of Michigan

1929.
Considering the precedent decisions, the nature of the statute, and
the acts charged in the information, it must be found that the otfense for which respondent was convicted in 1941, indecent liberties
with a female child of nine years, • was a crime involving moral
turpitude.
The Board finds that respondent is deportable on the charge
stated above, and that voluntary departure is the only -relief from
deportation available at this time. The order of the special inquiry
officer will be affirmed. The appeal will be dismissed.
ORDER: It is ordered, that the appeal be dismissed.
It is farther ordered that the order of the special inquiry officer
be and is hereby affirmed.

525


Interim Decision *1846

MAI lac or

BOGIIDADI

In Visa Petition Proceedings
A-13191300

Decided by Board March 27,1968
Visa petition to accord beneficiary preference classification under section 203 (a )
(5) of the Inuaigration and Nationality Act, as amended, an the brother of the
U.S. citizen petitioner, on the basis of his alleged adoption by petitioner's father
at the time of the latter's marriage to beneficiary's mother in Egypt in 1942,
is denied for lack of a valid adoption since religious law applied to personal
status matters in Egypt and adoption Wan recognized neither under Egyptian
(Islamic) law nor under Rabbinical (3ticlide) law.
ON BEHALF or PEI:MOWER :
Laurence IL Pearson, Esquire
1501 Broadway, Slate 1904
New York, New York 10030
(Brief filed)

ON BEHALP OF Sravloz :

I. A. Vielbaber
Appellate Trial Attorney

The case comes forward on appeal from the order of the District
Director, New York District, dated October 3, 196'T denying the visa
petition for the reason that the petitioner is not related by blood to
the beneficiary, each having been born of different parents; and that
the petitioner has failed to submit any documentary evidence to substantiate the claim that the beneficiary- was legally adopted under the
laws of his place of birth and/or his alleged stepfather's domicile; the
beneficiary does not meet the definition of a "child," as set forth in
section 101(b) (1) (D) (sic) of the Immigration and Nationality Act
and therefore cannot qualify as a "brother" of the petitioner. The conclusion that the visa petition should be denied is correct, however, we
do not necessarily adopt the basic set forth by the District Director for
such denial.
The petitioner, David Ganunal, was born in Alexandria, Egypt on
March 15, 1923 to Maatouk Gemmel and his wife, Semha. He became
a naturalized citizen of the United States on January 22, 1952. The
petitioner's mother, Semha, died on May 2, 1942 in Cairo, Egypt. The
beneficiary, born June 10, 1936 in Alexandria, Egypt, is the legitimate
child of Mayer and Esther Boghdadi. The beneficiary's parents were

666

Interim Decision 4*1846
divorced on December 5, 1939 and Maatouk Gamma], the petitioner's
father, and Esther Boghdadi, the beneficiary's mother, were married
in Cairo, Egypt on August 20, 1942. All the parties named herein are
of the Jewish faith. Evidence of the marriage and divorce of Esther
and the subsequent marriage of Maatouk and Esther on August 20,
1942 are supported by documents from the Grand Rabbinate of the
Jewish community in Cairo and Alexandria, Egypt.
It is claimed that the beneficiary is the adopted brother of the petitioner by virtue of the fact that prior to the marriage of Maatouk and
Esther a marriage contract was signed which provided for the adoption of the beneficiary, the-bride's son by her first marriage, by Maatouk. No evidence is obtainable regarding such a marriage contract, nor
is such an adoption mentioned in the marriage certificate of Maatouk
and Esther. Affidavits have been submitted by sons and daughters of
the first marriage of Maatouk attesting to the fact that their father
married Esther, he also adopted the beneficiary, and that the beneficiary grew up with his family and was treated by Maatouk as a son
equal to his natural children. The birth certificate of the beneficiary
cannot be located.
Section 101(4(1) (E) of the Immigration and Nationality Act, as
amended, defines the term "child" to include a child adopted while under the age of 14 years. In Matter of Fong, 10 I. & N. Dec. 497, we
held. -that an 'adopted brother was eligible for preference quota status
if he qualified as an adopted child; that there was no distinction between an adopted child or adopted brother and sister, and ,between a
natural child or brother and sister provided that the child met the
requirements of section 101(b) (1) (E) of the Immigration and Nationality Act and that there existed a law under which an adoptive
status could be created.
The instant case was submitted to the Library of Congress for information whether under the circumstances outlined above, there occurred a legal adoption either under Egyptian law or under Rabbinical or Judaic law. The memorandum from the Library of Congress is
attached and made a part hereof. Egypt, like most Middle Eastern
countries, still follows the traditional system of applying religious law
to personal status matters. Until January 1, 1956 Muslim, Christian,
and Jewish communities in Egypt maintained their . own religious
courts. Law No. 462, which became effective on January 1, 1956,
abolished the religious courts and transferred their jurisdiction to the
secular courts. In a dispute between two members of a non-Muslim
community which cannot be settled according to the principles of
their religious law, the principles of Islamic law will lie applied in
rendering judgment. •
821-654-69--14

667

Interim Decision #1846
A thorough search of the Rabbinical law concerning adoption reveals that no legal principles exist under Rabbinical law for the institution of adoption. The Jewish community in Egypt prior to Law
No. 462 of January 1, 1956 would have had to refer all adoption matters to secular courts, which would apply the principles of Islamic
law. However, in studying the principles of Islamic law, it is found
that adoption also is nut recognized by Islamic law and that no claim
of adoption can establish rights or obligations.
Since the memorandum from the Library of Congress is to the effect
that the concept of adoption was not recognized under Egyptian or
Rabbinical law, the petitioner has not borne the burden of establishing
preference quota, status on behalf of the beneficiary as his adoptive
brother. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby

dismissed.
AD orrker UNDER

TILE RELIGIOUS LAWS OF' THE JEWISH

COMMUNITY

nt EGYPT
Egypt, like most Middle Eastern countries, still follows the traditional system of applying religious law to personal status matters.
Until January 1, 1956, Muslim, Christian, and Jewish communities in
Egypt maintained their own religious courts. Law No. 462, which became effective on January 1, 1956, abolished the religious courts and
transferred their jurisdiction to the secular courts. As a result, application of Muslim, Christian, and Jewish religious laws is now entrusted
to the civil courts. In a dispute betweentwo members of a non-Muslim
community which cannot be settled according to the principles of their
religious law, the principles of Islamic law will be applied in rendering
judgment.
A thorough search of the Rabbinical law concerning adoption
reveals that no legal principles exist under Jewish law for such an
institution. The Jewish community in Egypt prior to Law No. 462 of
January 1,1956 would have had to refer all adoption matters to secular
courts, which would apply the principles of Islamic law. However,
in studying the principles of Islamic law, we find that adoption also is
not recognized by Islamic law and that no claim of adoption can establish rights or obligations.
Articles 911-918 of the Egyptian Civil and Commercial Procedure
Law of 1949 as amended up to 1962 provide for the legalization of
adoption -without distinction between citizens and aliens.'
The Ropptian Compilation of Lama (in Arabic, Al-Moteau'ah al-Miarlyah LilTashrto zaa al cfor/W), Vol. 4, Alexandria, Egypt, 1962, p. 100, under Mnrafa'at.
'

-

668

Interim Decision #1846
Article 911.
If the national law of the person wishing the adoption and the national law
of the person to be adopted permit adoption, the interested parties must come

before the president of the Court of First Instance of the domicile of one of the
parties to record their declarations, after establishing that the conditions and
requirements demanded by their national laws have been .complied with for the
admissibility and validity of the adoption.

Article 912.
If 'the person wishing the adoption were the tutor, curator, or the legal administrator of the person to be adopted, no declarations shall be recorded until he
resign his position and appoint another person to take over his duties. He must
also submit an account of his administration of the minor's property, which has
to be approved by the appropriate court.
Article 913.
At the request of the interested parties, a Judgment for the certification of the
documents conts thing the declarations of adoption is issued by the court.

Article 914.
The judgment for certification must contain 'the names and surnames of the
parties concerned and the new name and surname of the person adopted.
Article 915.
Normally a judgment for certification of adoption can be appealed only; however, the Public Prosecutor may attack an appeal against a judgment for
certification.
Article 916.
A summary of judgment for certification of adoption must be published three
times during a period or ninety days in two daily newspapers designated by the
court.
Article 917.
During the ninety-day period following pronouncement of judgment, upon the
request of the interested parties, excerpts from the judgment shall be inscribed
in the margin of the birth register of the adopted's birthplace and in the margin
of his birth certificate. If the adopted were foreign born, the full text of the
judgment must be registered in a register specially provided for this purpose at
the office of the clerk of the Cairo tribunal.
Article .915.

The court which rendered the judgment for certification of adoption shall have
the competence to try any action brought for nullification, certification, or revo-

669

Interim Decision #1846
cation of adoption. The court shall base its decision on the national laws of the
two parties, following in its judgment the provisions of the preceding two articles.

Prepared by
Dr. &hair E. Jwaideh, Chief
Near Eastern and African Law Division
Law Library—Library of Congress
March, 1968

670


Interim Decision #1682

MATTER

OF LASRXnVTCH

In Visa Petition Proceedings
A-14708690

Decided by Board December 20, 1966
Where beneficiary's status is evidenced as "ainglo" by an Marini document
(Rectification of Civil Record) issued by the Government of Chile, the

country of her residence and nationality; the Chilean Consul has stated that
such document is legal proof of the civil status of beneficiary in Chile; and
this finding by the Chilean authorities has not been controverted. such document constitutes proof of the "unmarried" status of beneficiary for the purpose of according her preference classification under section 203(a) (2) of
the Immigration and Nationality Act, as amended by P.L. 89-236.
ON BEHALF Or Pannonian: Ralph L, Baker, Esquire
1217 Central Building
Oakland, California 94612
(Brief filed)

The case comes forward on appeal from the order of the District
Director, San Francisco District, dated September 19, 1966 denying

the visa petition for the reason that the divorce obtained by the beneficiary is invalid and consequently the approval of the visa petition
cm liar behalf as the unmarried child of an alien lawfully admitted to
the United States for permanent residence was erroneous, and such
approval is therefore revoked.
The petitioner, a native of Russia, a lawful permanent resident of
the United States, 70 years old, male, seeks preference status under
section 203(a) (2) of the Immigration and Nationality Act on behalf
of the beneficiary as his unmarried daughter. The visa petition, filed
June 28, 1965, states that the beneficiary was divorced.
The visa petition was supported by a certificate of identification
from the Chilean Central Office of Identification indicating that the
beneficiary was single. There was also submitted a certificate issued
by the Synod of Bishops of the Russian Orthodox Church Outside of
Russia at New York, New York certifying that by decision of the
Synod of Bishops of that organization dated March 25, 1965 and
becoming valid since May 15, 1905, the first religious marriage of
22

Interim Decision #1682
Michael A. Lashkevich with Valentina N. Lashkevich is dissolved on
the request of the wife, the defendant, Michael A. Lashkevich being
found, guilty of maliciously abandoning his wife. This certificate
further states that the plaintiff, Mrs. Valentina N. Lashkevich nee
Zdanoff, according to that decision has the right to contract a new
marriage. This certificate is signed by the President of the Synod of
Bishops and the Chancellor to the Synod of Bishops and notarized.
A memorandum dated November 9, 1965 by an immigrant inspector is contained in the file and indicates that the petitioner appeared
at the office and submitted the certificate of dissolution of marriage
issued by the Synod of Bishops of the Russian Orthodox Church Outside of Russia and a certificate issued by the Secretary of the Central
Office of Identification authenticated by the Ministry of Justice of

Chile wherein it states that the civil status of the beneficiary, Valentina Idanova Schegaleva, is single. The immigrant inspector phoned
the Consulate General of Chile at San Francisco and discussed the
certificate. He was told there was no divorce in the laws of Chile but
there were laws in which annulment of marriage was permitted. He
was further informed that the certificate issued by the Central Office
of Identification was a legal document and the statement of single
civil status was legal and binding, and according to the laws of Chile,

the beneficiary is a single person.
The file reflects that a copy of the certificate of the Synod of Bishops of the Russian Orthodox Church Outside of Russia was submitted
to the Library of Congress, File and Law Section, for an opinion as
to its validity as a legal termination of the beneficiary's prior marriage but due to a lack of specific provisions on religious divorce in
the Chilean code or statutes, and despite a thorough search through
legislation, cases and other types of legal literature, no statement or
opinion was discovered which might evidence Chile's attitude toward the securing of religious divorce, whether at home or abroad.
The visa petition was approved on iuly 22, 1965 with the notation
that the validity of the beneficiary's divorce was not known. On January 17, 1966 the petitioner was informed that the American Consulate in Santiago, Chile had returned the visa petition requesting
clarification as to the validity of the divorce obtained by the beneficiary through the Synod of Bishops of the Russian Orthodox Church
Outside of Russia. The District Director stated that it had now been
determined that in accordance with the Civil Code of Chile, the divorce obtained by the beneficiary was invalid and consequently the
approval of the visa petition as the unmarried daughter of the petitioner was erroneous. The determination of the invalidity of the divorce was apparently based upon the memorandum of the Library of
23

Interim Decision #1682
Congress which, as we have previously noted, expressed no firm resolution of the problem. However, on February 9, 1966 the petitioner
was given notice of the revocation of the visa petition on the ground
that the divorce obtained by the beneficiary was invalid and the prior
approval of the visa petition as the unmarried child of the petitioner
was erroneous.

On appeal to this Board there was submitted a document in the
Spanish language together with translation entitled "Rectification of
Civil Record" dated November 2, 1965 referring to Valentina. Idanova
Schegaleva and signed by the Substituting Director General of the
Civil Registry and Identification, Santiago, Chile. This document
requested a rectification of the beneficiary's civil record to establish
that her civil status was single and not married to Miguel Lashkevich
Kalenena as is indicated in that record; that she enclosed an authorized copy of the inquiry for perpetual memory rendered at the Second
Court of Justice in Civil Matters of High Degree of Santiago approved by that tribunal and dated June 11, 1964 which verifies that
witnesses of the inquiry affirmed that the petitioner was never married
to Miguel Lashkevich Kalenena; that in the affiliation extract it is expressed that the bearer's civil status is that of married to Miguel Lashkevich, a civil status which is not enforced by any document, and
neither is there tiny record of the supposed marriage of the said persons; that in the affiliation extract of Miguel Lashkevich Kalenena the
latter's civil status is that of married to Valentina Idanova Schegaleva,
a civil status which is not enforced by any document and neither is there
any record of the supposed marriage of said persons; that Valentina
Idanova Schegaleva expressly recorded that she ignores the present
whereabouts of Miguel Laskevich Kelenena since he was only an immigration companion and has lost sight of him; that the married status
was not verified with the legal means of proving established by articles
305, 209 and following of the Civil Code and neither was the supposed
marriage of the said persons proven which is a previous condition to
establish the civil status of married; and that for these various reasons
the rectification according to law has been petitioned. The Chief of
the Central Bureau of Identification was ordered to proceed to rectify
the civil record corresponding to the beneficiary in the sense of establishing that the civil status of the latter is that of single and not married to Miguel Lashkevich Kalenena as it is erroneously expressed
there. The aforementioned Chief likewise ordered that an identity
document be issued to the beneficiary in accordance with the civil
status previously mentioned. This document is signed by the Substituting Director General of the Civil Registry and Identification.
In considering the appeal, this Board on March 11, 1966 took notice
-

24

Interim Decision #1682
of the rectification of civil record and remanded the ease for the purpose of introducing the evidence submitted on appeal in the record for
consideration of the District Director. The document was referred
to the Library of Congress for an opinion. By letter dated May 25,
1966 the Library of Congress stated that up until 1942 the Identifies;
tion Service was a dependency of the Department of Justice, maintaining records on aliens and other investigations, from which information and identity cards were issued as required. The Civil Registry
operating as a vital statistics office, maintained records on Chilean
nationals and in 1942 the similar services were fused for administrative
purposes in a single department known as the General Bureau of Civil
Registry and Identification. The record which was ordered to be rectified in this ems WAS apparently one of information on identification
of aliens, and not one of civil status. However, the procedure for such
corrections in the absence of documentation or "best evidence," is
apparently the same in either case, through a self-serving court action
known as Information pars Perpetua illemoria or depositions a
perpetual, rei malaria. This procedure is detailed in article 909-914
of the Code of Civil Procedure. In this case the decree ordered a correction only in the petitioner's record but did not affect the same information contained in that of her presumed husband. In this case the
court found the statements in the petitioner's and her presumed husband's identification records or cards which bear consecutive numbers
not to be true insofar as concerned their status as being married to each
other. The court found that no legal evidence, as required by the Civil
Code in the form of a certificate of marriage or other documentation,
was either noted or attached to support the statements made in these
records. The witnesses offered corroborating evidence to the effect that
the man was only a "travelling or immigration companion" entering
Chile with the petitioner, but not married to her.
The District Director ordered revocation for the reason that the
divorce obtained by the beneficiary was invalid and consequently the
approval of the visa petition as the unmarried child of an alien lawfully admitted to the United States for permanent residence was
erroneous. It is noted that the notice of revocation makes no reference
to the Rectification of a Civil Record which was submitted on appeal
and was remanded for consideration by the District Director.
While we have accorded recognition to divorces which involved
persons who were neither residents nor domiciliaries of the United
States at the thus of such divorce,' we find it unnecessary to rest
our decision upon the religious divorce obtained by the beneficiary
1 Matter of B—. 1 I. & N. Dee. 677; Matter of A—, 6 I. & N. Dec. 272; Matter
of .Paruque, 10 I. & N. Dee. 561.

25

Interim. Decision #1682
which involves a native of Manchuria, China, a naturalized citizen
of Chile, and which presents problems of conflicts of law so involved
as to defy resolution by the Library of Congress. We think, however,
the case may be decided upon the basis of the rectification of the
civil record showing the beneficiary's civil status to be that of single
and not married. The memorandum from the Library of Congress
dated May 15, 1966 sets forth that the court named in the rectification of civil record found no legal evidence of marriage, as required
by the Civil Code, in the form of an attached or noted certificate
of marriage or other documentation. In addition, the witnesses offered
corroborating evidence to the effect that the man was only a travelling
or immigration companion entering Chile with the petitioner but not
married to her. The memorandum by the immigrant inspector dated
November 9, 1965, contained in the file, contains information from
the Consulate General of Chile at San Francisco that the certificate
issued by the Central Office of Identification was a legal document
and that the statement of single status was legal and binding and
according to the laws of Chile the beneficiary was a single person.'
The petitioner, a permanent lawful resident, seeks preference quota
status on behalf of the beneficiary as his unmarried daughter. The
plain congressional purpose in providing preferential status for entry
of immigrants closely related to American citizens was to facilitate
and foster the maintenance of families, such as here involved. Consistent with that purpose it has been held reasonable to believe that
the Congress intended that the marriage of a citizen, valid where
contracted, be accorded validity for immigration purposes. 3 As a necessary corollary to that same purpose, the civil status of a person,
determined in accordance with the laws of the country of which she
is a. national and in which she resided, and who has no United States
residence or domicile, should, on the basis of comity, be accorded

recognition of the civil status accorded to her by the laws of such
country.
In the instant case the beneficiary has produced evidence that
Chile, the country of her nationality and residence, regards her civil
status as that of a single person. This finding by the Chilean authorities has not been controverted. Accordingly, the beneficiary is to
be regarded as an unmarried child. The appeal will be sustained.
ORDER: It is ordered that the appeal from the revocation of the
visa petition granting preference status under section 203(a) (2) of
the Immigration and Nationality Act be and the same is hereby

sustained.
'This information has been informally corroborated by the legal advisor of
the Embassy of Chile at Washington, D.O.
Matter of P , 4 1. & N. Dec. 610, 614 (Actg. A.G. 1952).
—

26


[1014131-DePisigal #1597

llarrio or Hsvru
' In Visa Petition Proceedings
A-12291717
Deckled by MaPIA Director February 934, 1966•

Since a physicist is a member of the professions within the meaning of sections
101(a) (n) and 203(a) (3), Immigration and Nationality Act, as amended by
P.L. 89-236, visa petition is approved to accord beneficiary, a qualified physicist, third preference classification.

Discussion: The petition was filed to accord the beneficiary a third
.preference classification as a member of tl,r,professions based on his
qualifications is a phisicist. The beneficiary is a male, native and
citizen of China, married, age 29, presently residing in Baltimore,
Maryland; with his Wife.
The beneficiary received a bachelor of science degree in 1959 from
Tunghai University, Taichung, Taiwan, and a master of arts degree
in physics in. June 1963 from Dartmouth College, • Hanover, New
Hampshire. He served as a teaching fellow in the Physics Department, Polytechnic Institute of Brooklyn, Brooklyn; New York, from
September 1963 to November 1965. He has been -employed as a
physicist by lirestinghOuse Electric Corporation Baltimore, Maryland, from December 1965 to date. The beneficiary intends to engage in his profession in the United States as a physicist.
A certification pursuant to section` 212(a) (14) of the Act, as
amended, has been issued by the Department of Labor. Physicists are listed among professional occupations under -code
0 3513 in the Dictionary of Occupational Titles, volume II, second
edition, prepared -by the United States Department of Labor. In
the third edition of the above publication, phisicists are listed under
professional, technical, and managerial occupations, cosies Q23.081
and .088. Occupations in this physical scientist group are concerned
with the investigation of the laws of matter and energy and their.
applications to problems in such fields- as science, engineering, medicine, and production: The Occupational Outlook Handbook, 1966-67
.652
-

Interim Decision #1597
edition, of the United States Department of Labor, states that a
bachelor's degree with a major in physics is the minimum entrance
requirement for young people seeking careers as physicists; that
physicists with master's degrees are able to qualify for many
research jobs in private industry, educational institutions, and government; and that a doctor's degreels required for high-level college
and university teaching positions. The average (median) annual
salary for physicists was $12,000 in 1964, according to the National
Science Foundation's National Register of Scientific and Technical
Personnel.
From the foregoing it has been established that the beneficiary is
a qualified physicist and as such is a member of the professions
within the meaning of sections 101 (a) (32) and 203(a) (3) of the Act,
as amended.
ORDER: It is ordered that the petition be approved and the beneficiary accorded third preference under section 203.(a) (3) of the
Immigration and Nationality Act, as amended.


Interim Decision #2360

MATTER OF KONG
In Visa Petition Proceedings

A-20282149
Decided by Board March 21; 1975
Under Burmese law a Kittima adoption to be valid must be registered pursuant to the
Registration Act. A registered instrument may operate from the date of its execution if
such date is prior to the date of registration (Section 47 of the Registration of Kittima
adoptions Act). AnAppatittha (informal) adoption is not sufficient to confer immigration
status under section 203(a)(2) of the Immigration and Nationality Act.
ON BEHALF OF PETITIONER:

Joe M. Chan, Esquire
San Francisco Neighborhood Legal
Assistance Foundation
250 Columbus Avenue, Suite 200
San Francisco, California 94133

The petitioner has moved for reconsideration and reversal of our
decision dated March 25, 1974, in which we dismissed her appeal from

the district director's denial of her petition to classify the beneficiary as
her adopted son under section 203(a)(2) of the Immigration and Na-

tionality Act.' Counsel has submitted additional material pertaining to
Burmese law, and we have received another memorandum of Burmese
law from the Far Eastern Law Division of the Library of Congress. The
motion to reconsider will be denied.
Initially, counsel challenges our determination that an Appatittha
(informal) adoption under Burmese law is not sufficient to confer immigration status upon the beneficiary. We have reviewed the contentions
advanced on appeal, as well as the materials in the record pertaining to
Burmese law. We are satisfied that our decision not to accept an Appatittha adoption as sufficient for the purpose of the Immigration and
Nationality Act was correct. We have since reaffirmed that decision in
Matter of Chang, 14 I. & N. Dec. 720 (BIA 1974).
Counsel maintains that a Kittima adoption effected under the Burmese law does not give the adopted child the full rights of a natural born
legitimate child in Burma. While this contention may be true, we do not
see how it aids the present beneficiary.
Counsel also argues that registration is not a prerequisite to the
That decision is Matter of Kong, 14 I. & N. Dee. 649 (BIA 1974).

224

Interim Decision #2360
validity of a Kittima adoption. However, section 5 of the Registration of
Kittima Adoptions Act states: •
No dispute as to the right of any person to inherit as or through a Kittima son or
daughter shall be entertained by any Court unless the fact of the adoption, if it was
effected after the 1st April 1911, is evidenced by an instrument:—
(i) executed by the person making the adoption and (a) by the person who is adopted if
not less than 18 years of age at the time of such execution aforesaid, or (b) if less than
that age, then by the person or persons, if any, whose consent to the adoption is
required by the Burmese Buddhist Law, and
(ii) attested by at least two witnesses, and
51 of the
(iii) registered in Book 4 of the books referred to in sub section (1) of
Registration Act.
-

In Lim Chin Neo v. Lim Geok Soo, f19561 Burma L.R. 248, 251, 261, the
court held that a claim for inheritance as a Kittima child was barred
unless the adoption was evidenced by a registered deed of adoption
conforming to the requirements of section 5 of the Registration of Kittima
Adoptions Act. We shall not accept less proof of aKittima adoption than a
Burmese court would require when the question arises in an inheritance
suit.
Finally, counsel argues that the registered deed of adoption operates
from the date of an earlierAppatittha adoption of the beneficiary. There
is no provision of Burmese law that would allow an earlier informal
adoption to operate retroactively as a Kittima adoption. Section 47 of
the Registration Act of Burma evidently permits a registered instrument to operate from the date of its execution if such date is prior to the
date of its registration. However, this does not help the present beneficiary, because his deed of adoption was both executed and registered after his fourteenth birthday.
We are satisfied that our prior decision was correct. The motion to
reconsider will be denied.
ORDER; The motion to reconsider is denied.
,

Theodore P. Jakaboski, Alternate Board Member, dissenting:

respectfully dissent.
The majority opinion relies overly much on the provisions of Section 5
of the Registration of Kittima Adoptions Act, which went into effect in
1941. That section merely stipulates that courts will not entertain disputes over inheritance rights arising out of a purported Kittima adoption unless the adoption be evidenced by an instrument (1) executed by
the adopter, (2) witnessed, and (3) registered in a volume referred to in
the Registration Act of 1909.
There is no compelling reason to hold that Section 5 controls with
validity of a Kittima adoption for purposes of the administration of the
immigration laws of the United Slates.
The memorandum of law from the Library of Congress of January
225

Interim Decision #2360
1975 relied upon by the majority itself acknowledged that prior to 1941
"it was held that where a formal ceremony of Kittima adoption could be
shown to have taken place in the presence of credible witnesses, summoned in order to secure publicity and notoriety to the factum of
adoption, pro if of adoption was complete." The petitioner claims that
there was a Ifittima ceremony in 1960, although there was no registration until 1970, when the child was over the 14-year old cut-off date
provided for in the immigration laws. It seems to me that the late
registration is a piece of evidence that should be considered as bearing
upon whether there indeed was an adoption ceremony in 1960. This
situation may be similar to that in Matter of ittz.e, 12 I. & N. Dec. 747
(BIA 1968), wherein a customary adoption was subsequently registered
under the Hong Kong Adoption Ordinance, and the later registration
was too late for immigration purposes.
The majority opinion rests upon the underlying premise that recognition of foreign adoptions is dependent upon the existence of full inheritance rights :11 favor of the person adopted. However, there is not
express requirement to this effect in the immigration laws. Moreover,
this approach conflicts with this Board's earlier ruling in Matter of
Ng,14 I. & N. Dec. 135 (BIA 1972), wherein the Board recognized

adoptions of females according to Chinese customary law in Hong Kong,
even though adopted girls did not enjoy full rights of inheritance. It is
difficult to distinguish the issues in the present ease from those in the Ng

case.
It seems to me that the ends of justice and sound administration of the
immigration laws, as well as the purposes behind these laws, would be
better served if the resolution of an administrative appeal were to
depend more upon the factual realties of the familial situation than upon
the interposition of legalistic bars derived from an unrelated area of the
law such as inheritance.

That is, what evidence is there that the Burmese authorities who
enacted Section 5 of the Registration of Kittima Adoptions Act wished
to invalidate unregistered Kittira adoptions? The simple answer is that
there is not such evidence. Obviously, the provisions of Section 5 were
promulgated in order to nudge the general populace into registering
their unregistered Kittima adoptions, so as to make the work of the
courts easier n inheritance cases.
I see no policy that is served by extending these considerations into
something that bars our recognition of what evidently the ordinary
Burmese would consider to be a valid adoption - of the higher type.
A number of factual questions have not been aired. Therefore, I
believe this case should be remanded to the district director for additional proceedings.
226


MATTER OE B

G--

In DEPORTATION Proceedings
A-8804968
Decided by Board November 14, 1958
Deportability—Assisting aliens to enter illegally—"Gain" is present where assisted aliens paid for gasoline and expenses.
Payment for gasoline and promise of additional monetary compensation constitute "gain" rendering respondent deportable under section 241(a) (13) of
the 1952 act for having assisted other aliens to enter the United States
illegally.
Guyana
Order: Act of 1912—Section 241(a) (13) (8 U.S.C. 1251(a) (131)—Knowingly
and for gain assisted other aliens to enter in violation of law.
BEFORE THE BOARD

Discussion: The case comes forward on appeal from the order
of the special inquiry officer dated October 3, 1958, directing that
the respondent be deported on the charge contained in the order to
show cause.
The respondent is a native and citizen of Mexico who last entered
the United States at El Paso, Texas, 011 August 25, 1958. He was
admitted for permanent residence on December 14, 1954, and he
maintains a mailing address in El Paso, Texas, although he has
been living with his Mexican-citizen wife and children in Juarez,
Chihuahua, Mexico.
The respondent has admitted the allegations in the order to show
cause that on August 25, 1958, he assisted 3 aliens to enter the
United States; that he knew that they were entering the United
States to proceed to Levelland, 'Texas, to seek employment and were
not in possession of proper documents to do so. He has, however,
denied the allegations in the order to show cause and the finding of
fact made by the special inquiry officer that in return for his
assistance to these aliens he received monetary consideration. Since
it is conceded that the respondent knowingly assisted these aliens
to enter the United States, the only issue, presented is whether such
assistance was for gain which is an element necessary to sustain the
182

charge under section 241(a) (13) of the Immigration and Nationality Act.
The respondent executed sworn statements on August 25, and
August 23, 1958, before two different immigrant inspectors, the first
at Ysleta, Texas, and the second at El Paso, Texas. to the first
statement the respondent testified that one of the aliens, Ag ave him $5 for gasoline and expenses and agreed to give
him an additional $20 after obtaining work. A second alien,
agreed to pay him whatever it would cost to go to
Levelland, Texas, by bus which has been ascertained to be approximaiely 012. The third alien, borrowed $10 from a
woman in El Paso which he agreed to use for expenses for the trip
but did not offer to pay any more. The second statement repeated
the declarations concerning the money to be paid by the aliens for
transporting them to Levelland, Texas.
At the hearing the respondent identified the affidavit made by
him but claimed that the part about $20 additional payment was
never mentioned. He did, however, admit that he was given $5
for gasoline and trip expenses. He denied he received any part
of the $10 that M— (the third alien) borrowed. He also denied
that the aliens he assisted promised to pay him additional money
at a later date but that he took them along because he was looking
for a job and they had told him about the job.
M, admittnd that he gave the respondent $5
The alien, A
for gasoline but stated that he was not being charged an additional
$20 after he found work in the United States; however, it would
have been up to the aliens once they were there if they wanted to
pay anything for respondent's services. There was introduced into
evidence a sworn statement made by this witness, A M—,
executed on August 26, 1958, at Ysleta, Texas, before an immigration officer in which the witness stated that he made arrangements
with the respondent -to go to Levelland to find work and the respondent said he could borrow a car and take 3 persons along to
look for work if they would help pay expenses and pay him more
after finding work; that he paid the respondent $5 and told him
he would pay him $20 after finding work.
, testified that he was invited by
The (third) alien, A—M
one of the assisted aliens to go to Levelland and they asked him
if he had money for gasoline and he told them that be would try
to get some and in El Paso he borrowed $10 but that he did not
give any of the $10 to the respondent, although he understood it
was for the gasoline for the car which was to take them to Levelland. The (second) alien, J L B testified that they
agreed to go to Levelland but there WaS 110 actual agreement to pay
the respondent any amount of money, that it was understood that
iii

they would got together between all of them to pay the expenses
(third alien)
M
for the trip; that he understood that A
got $10 from a Cousin and A —M (tirat alien) obtained another
$10 also from cousins; that he had no money and was under no
obligation to pay respondent anything, but that once he had money
if he wanted to he could have given him any amount that he felt
he could and that he intended to give him an amount equivalent to a
bus ticket to Loveland.
The testimony given by the respondent and the witnesses at the
hearing is inconsistent with sworn statements made by them to
immigration officers prior to the hearing. The special inquiry officer has taken the position that the prior statements are more
credible, and upon a full consideration of all the evidence, we ...cur in the finding that the evidence establishes that in return for
his assistance to the other aliens the respondent received some
monetary consideration and was promised additional monetary consideration at a later date.
, A-3894495, 5 I. & N.
Counsel relies upon Matter of G—M
Dec. 93, as controlling,. However, the facts in that case are not
comparable. We believe the facts in this case bring it within the
rationale of the holding in Matter of P-0 , A-7802114, 7
L & N. Dec. 514 (1957). In that case we held that an agreement
to pay later constitutes "gain" or "anticipated gain" even though
no money is paid at the time, and that the anticipation of profit, no
matter how small, brings the respondent within the deportation
provision. Many cases revolve around a promise to pay respondent enough to cover the cost of his gasoline; we have held that this
constitutes an "anticipated gain." The word "gain" is construed
in. a practical some to cover cases in which illegal smuggling was
encouraged or assisted for venal reasons even though the advantage
which accrues to the alien be an anticipated benefit (Matter of
, 2 I. & N. Dec. 758, 766 (Attorney General, 1947)). We
accordingly conclude that the charge is sustained by the evidence.
Order: It is ordered that the appeal be and the same is hereby
dismissed.

184


Interim Decision #1264

Mar= or

BARRIOS

In DEPORTATION Proceedings
A-12376418
Decided by Board January 22, 1963

The favorable exercise of the discretionary authority contained in section 20 of
the Immigration and Nationality Act, as amended, is accorded an alien from
a nononota country, previously denied an immigrant visa because he could
not furnish an affidavit of support, who entered the United States as a nonimmigrant fully intending to comply with the terms of his admission, and who
did not formulate a specific intention to become a permanent resident until
after arrival when he saw an opportunity to work and study simultaneously.
CuAneu:
Order: Act of 1952—Section 241(a) (9) [8 U.S.O. 1251(a) (9)3—Failed to
comply—nonimmigrant visitor for pleasure.

The respondent, a native and citizen of Bolivia, male, 22 years of
age, unmarried, has been found deportable under section 241(a) (9)

of the Immigration and Nationality Act (8 U.S.C. 1251(a) (9) ) as a
nonimmigrant visitor who failed to comply with the conditions of the
status under which he was admitted. An order entered by the Board
of Immigration Appeals on October 11, 1962 adjusted the respondent's
immigration status under the provisions of section 245 of the Immigration- and Nationality Act (8 1255) and terminated the
deportation proceedings. The case is now before this Board on motion
of the Immigration and Naturalization Service for reconsideration of
our decision and order of October 11, 1962.
The Immigration and Naturalization Service seeks the withdrawal
of our order granting the respondent an adjustment of his immigration status on the ground that our action is not a sound exercise of
the Attorney General's discretion. The Service maintains that to
grant such relief to a nonquota alien who entered as a nonimmigrant
with a preconceived plan to obtain permanent residence by adjusting
his status after arrival would encourage deliberate evasion of consular
functions. The Service also argues that an alien who "presents himself with tainted hands" does not merit the favorable exercise of a
172

Interim Decision #1264
provision in the immigration laws (section 245) which "contemplates
relief from hardship in cases presenting strong equities justifying a
departure from the normal requirements of the law" (p. 5, Service
motion) .
Basically, the Service motion is premised upon the same conclusions
reached by the special inquiry officer when he denied the respondent's
application for an adjustment of his status. We rejected the special
inquiry officer's conclusions on the theory that the facts of this particular case when considered in the light of the recent amendment of
section 245 by the Act of July 14, 1960, permitted an interpretation
more favorable to the respondent's application than that permitted
by the statute prior to its amendment.
,

The Service argument would have us read into the amended statute
the identical restrictions which were removed by the Congress. The

Service adheres to the theory that an alien nonimmigrant who had a
desire or purpose to enter the United States for permanent residence at
sometime prior to securing a visa and entry as a nonimmigrant, is
precluded from taking advantage of a statute specifically designed to
enable him to attain his past desire or purpose without departure from

the.fnited States if permitted to do so lawlealy. The courts have refused to adopt this theory. Brownell v. Carija, 254 F.2d 78, C.A.D.C.,
1957; Brownell v. Gutnayer, 212 F.2d 462, C.A.D.C., 1954.
As stated above our decision to grant relief turns upon the facts
of this particular case. The Service would have us base our action
solely on the preliminary statement taken from the respondent on
April 18, 1962 (Ex. 13). We do not agree with the Service that in
the respondent's sworn statement ". . he unequivocally admitted
that it was his intention to come here permanently at the time that he
applied for and got his nonimmigrant visa" (p. 3 of Service motion).
The key questions and answers in the preliminary statement concerned with the respondent's intention to establish a permanent residence in the United States are as follows :
Q. Did you come to the United States with the intention to remain here
permanently?
A. Tes, sir.
•
s
•
Q. Then did you have as your intention in Switzerland in December 1981,
that you would come to the United States as a visitor, then apply here for
permanent residence?
A. Tes. (Ex. 13)

•

The first question makes no reference to the respondent's intention
"at the time he applied for and got his nonimmigrant visa." The respondent's affirmative reply to the second question merely establishes
that while in Switzerland in 1961 he decided to enter the United States
173

Interim Decision #1264
as a visitor and after such an entry he would apply for permanent
residence if permitted to do so lawfully.
This is precisely the same
situation that was before. the Courts of Appeal in the Carija and

Gutnayer cases (supra).
The Service concedes that on this record the respondent is statutorily
eligible for relief under section 245. They take the position that the
respondent should not be rewarded for his subterfuge and evasion by
granting him an adjustment of his status (p. 4, Service motion). The
Service in support of their position cites two cases 2 which they allege
"make it quite clear that a preconceived intent to seek permanent
residence through adjustment of status after arrival, is a valid basis for
nonexercise of discretion under section 245, even though the alien may
be entitled to admission as a nonquota immigrant" (p. 6, Service

motion).
The cited cases are not dispositive of the issue presented by the
instant case_ Both cases are concerned with aliens who entered as
nonimmigrant crewmen. Relief under section 245 as amended is
specifically barred to alien crewmen. Entry as a "bona fide nonimmigrant" was a statutory requirement of section 245 at the time the
alien in the Trujillo-Gonzalez case applied for relief under section 245.
The District Director denied relief on two grounds (1) statutory
ineligibility and (2) the facts did not warrant the exercise of discretion. The Court held that the District Director had reasonable
grounds to believe that the alien was not a, bona fide crewman and
therefore statutorily ineligible for relief. The Service in the instant
ease concedes that the respondent is statutorily eligible.
The alien crewman in the Fassilis case,'. supra, applied for relief
under section 245 prior to its amendment on July 14, 1960. The District Director on June 2, 1960 denied relief on both statutory and
discretionary grounds. The Regional Commissioner on August 23,
1960; subsequent to the amendment of section 245, affirmed the action
taken by the District Director. The court found no irregularity in the
denial of the alien's application on the ground that he was not a bona
fide nonimmigrant crewman. The court, however, disposed of the
case on the theory that the amendment of section 245 while the administrative proceeding was pending made mandatory the alien's
statutory ineligibility for relief since he entered as a crewman.
Here we are confronted solely with a matter of discretion whereas
the aliens in the cases referred to by the Service were both ineligible
for relief in that they did not enter as bona fide nonimmigrants, a statutory element no longer present in section 245. The only evidence
t

U.S. ex rel. Trujillo-Gonzalez v. Esperdy,

1960) ;

180 F. Supp. 009

v. Esperdiy, 192 F. Supp. 84 (D.C. S.D.N.Y., 1961).

174

(D.C.

S.D.N.Y.,

Interim Decision #1264
we find germane to denying discretionary relief for the reason advanced by the Service, namely, "that it outrages all of the orderly

of government to reward . . . subterfuge and evasion . . ."
is the respondent's testimony that he did not inform the consul in
processes

Switzerland of his "intentions" at the time the nonimmigrant visa was
issued (Ex. 13, R. p. 13). There is no showing in this record, however,
that the respondent as a condition precedent to obtaining a nonimmigrant visa was required by the consul in Switzerland to state his ultimate "intention" after arrival in the United States.
We do not share the Service concern that to grant relief in this case
"would encourage deliberate evasion of consular functions" (p. 5 of
Service motion) . We stated in our opinion of October 11, 1962, that
section 245 is not the only provision of the immigration laws 2

which

permits an alien in. the United States to apply directly to the Attorney General for an adjustment of his immigration status. Consular
functions are protected by the fact that the amended statute retains
the safeguard that an alien's immigration status "may be adjusted by
the Attorney General in his discretion and under such regulations as
he may prescribe."
The facts of the instant case concerned with the exercise of discretion are simply not as heinous as the Service would have us believe.

The Government has not made out a case which controverts the following testimony of the respondent with regard to his purpose in entering
the United States as a nonimmigrant:
A. The principal purpose of coming here was to visit some factories and to visit
some relatives, but not at that time to change to a resident here.

Q. When did you decide that you wanted to become a resident of the United
States?
A. When I saw the opportunity that I could work here and study here at the
same time. When I entered this country I was not deeided about changing
status to become a resident. I wanted first to find out here about the
circumstances and the opportunities (R. p. 13).
Q. Air. Barrios, is there anything else that you wish to say on the evidence?
A. I didn't intend to violate your laws. If I did it was not with my intention
(R. p. IS).

A composite of the evidence found in the preliminary statement (Ex.
13) and the record of hearing relevant to the issue of exercising the
Attorney General's discretion establishes to our satisfaction that we
have here an alien from a nonquota country who prior to entry had
been unable to obtain an. immigration. visa for permanent residence
Aliens who apply for the creation of a record of lawful entry under section
249 of the Immigration and Nationality Aet fie not make application directly
to the consul.

175

Interim Decision #1264
because he could not furnish an affidavit of support. We also have a
nonquota alien who entered the United States as a nonimmig
' rant fully
cognizant of the fact that he could not remain permanently unless
permitted to do so lawfully. This combination of factors does not spell
out a case of circumventing the immigration laws by seeking an adjustment of status under the amended provisions of section 245 of the
Immigration and Nationality Act. Discretionary relief is warranted
on this record.
A case recently decided by this Board is typical of a class of cases
in which relief should not be granted as a matter of discretion although
the alien was statutorily eligible for an adjustment of status under section 245 (supra). The alien in Matter of Bauer, registered with his

parents for an immigration visa under the Israeli quota in September
of 1957. His parents secured visas and entered the United States for
permanent residence in 1958 and 1959 respectively.
The alien Sauer in September of 1960 applied for and was denied
a nonimmigrant visa by the Consul at Tel Aviv. He journeyed to
Paris, France, and there falsely represented to the Consul that he had
never applied for an immigration visa to enter the United States and
that his parents were then residing in Israel. He secured a visitor's
visa in August of 1961 and entered the United States as a nonimmigrant.
Following this entry he married a resident alien. A third preference
visa petition filed by his wife was approved on August 28, 1962. During the course of deportation proceedings he applied for an adjustment of status under the provisions of section 245. The Board of Immigration Appeals dismissed his appeal from an order of the special
inquiry officer denying his application. The evidence established to
our satisfaction that he did not enter the United States in good faith
as a nonimmigrant and that he intended to circumvent the quota restrictions when be falsely represented his immigration status to the
Consul at Paris. Matter of Bauer, A-12350247, BIA, January 1963,
Int. Dec. No. 1265.
The motion will be denied.
ORDER: It is directed that the motion be and the same is hereby
denied.

176


Cite as 27 I&N Dec. 226 (A.G. 2018)

Interim Decision #3917

Matter of E-F-H-L-, Respondent
Decided by Attorney General March 5, 2018
U.S. Department of Justice
Office of the Attorney General
The Attorney General referred the decision of the Board of Immigration Appeals in
Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), to himself for review and vacated that
decision.

BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.l(h)(l)(i) (2017), I direct the Board of
Immigration Appeals (“Board”) to refer to me its decision in Matter of
E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), and I vacate that decision.
In this matter, the respondent conceded removability at the outset of
removal proceedings and requested relief from removal pursuant to an
application for asylum and withholding of removal. The presiding
Immigration Judge determined, without holding an evidentiary hearing, that
the respondent’s application failed as a matter of law to make a prima facie
case that he was eligible for asylum and withholding of removal, and he
denied the application. The respondent appealed on the merits to the Board.
The Board remanded, holding that a respondent applying for asylum and
withholding of removal was ordinarily entitled to a full evidentiary hearing.
The respondent subsequently withdrew his application for asylum and
withholding of removal with prejudice. On the parties’ motion, the
Immigration Judge administratively closed removal proceedings to allow the
adjudication of a Petition for Alien Relative (Form I-130) filed on behalf of
the respondent.
Because the application for relief which served as the predicate for the
evidentiary hearing required by the Board has been withdrawn with
prejudice, the Board’s decision is effectively mooted. I accordingly vacate
the decision of the Board in this matter, and I also direct that this matter be
recalendared and restored to the active docket of the Immigration Court.

226


Interim Decision #1984

MATTER OF GONZALEZ-PORT/LLO

In Deportation Proceedings
A-17166529
Decided by Board June 12, 1969
Where respondent, the alien spouse of a United States citizen, at the time
of his admission for permanent residence had reason to believe that he
would be successful in reviving his floundering marriage, the fact that
after entry the marriage did not survive has no retroactive offset with

regard to the labor certification exemption as the alien spouse of a citizen
as of the time of his admission; hence, he is not deportable under section
241(a) (1) of the Immigration and Nationality Act, as amended, as one
excludable at entry under section 212(a) (14) of the Act, since he was
exempt from the presentation of a labor certification at the time of his
entry for permanent residence.
CHARGES ;

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable under section 212 (a) (19), 8 U.S.C. 1182 (a) (19),
visa procured by fraud.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable under section 212(a) (20), 8 U.S.C. 1182 (a) (20),
invalid visa.
Act of 1062

—

Section 241 (a) (1) [S U.S.C. 1251(a) (1)]53rolaciable at entry under section 212(a) (14), 8 U.S.C.

1182(a) (14), no valid labor certification.

The respondent, a native and citizen of El Salvador, has been
found deportable under the provisions of section 241(a) (1) of the
Immigration and Nationality Act as an alien who was excludable
at the time of entry under the provisions of section 212 (a) (20),
in that he presented an invalid immigration visa and as an alien
who was excludable at the time of entry under section
212 (a) (14) of the Act, in that he did not possess a valid labor
certification. The special inquiry officer found that the respondent
was not subject to deportation under the provisions of section
241 (a) (1) , as a person who was excludable under the provisions

of section 212 (a) (19) for having procured his visa by fraud. The
309

Interim Decision # 1984
order entered by the special inquiry officer on March 20, 1969,

grants the respondent the privilege of voluntary departure in lieu
of deportation and provides that if the respondent fails to depart
when and as required, the privilege would be withdrawn and an
order of deportation entered. The respondent appeals from this
order.
•
The respondent is a male alien, 25 years of age, who originally

entered the United States as a nonimmigrant on August 21, 1966.
He married a United States citizen on October 30, 1966, and during March of 1967, he departed for Mexico to secure an immigration visa for permanent residence. He was issued a special immigrant visa by the United States Consul at Hermosillo, Sonora,
Mexico on March 30, 1967. He reentered the United States on
March 31, 1967, at San Ysidro, California, and was admitted for
permanent residence upon presentation of the special immigrant
visa.
The order to show cause charges in substance that the respondent secured his special immigrant visa by fraud or by wilfully
misrepresenting a material fact, because prior to his application
his citizen wife had informed him that she intended to terminate

her marriage to the respondent, and he had ceased to reside with
his citizen wife at the address in Santa Monica, California, set
forth in the application for the visa. The order to show cause alleges that the respondent wilfully concealed the true facts of his
marriage and residence from the United States Consul, because
he then knew that he could not be issued an immigrant visa if the
true facts were known. It is further alleged that at the time of
the respondent's entry, he was entering for the purpose of performing unskilled label: in the United States -and did not possess
or present the required certification from the Secretary of Labor.
The evidence developed during the several hearings accorded
the respondent has been fully set forth in the opinion of the special inquiry officer and will not be repeated in detail. Briefly, the
evidence establishes that the respondent resided with his citizen
wife from October 30, 1966 until the latter part of February
1967. He was notified by the Immigration Service that he was required to depart from the United States on or before February
26, 1967. The respondent's citizen wife testified that there had
been marital difficulties prior to the respondent's departure to obtain his visa; that for three weeks during January 1967, she had

lived separate and apart from the respondent; that they had reconciled and were living together during February of 1967; that
the reconciliation was not successful; and that the respondent left

310

Interim Decision #1984
their apartment on February 28, 1967, because he had no choice
as the immigration authorities were after him. The respondent
testified that when he obtained his immigration visa, he considered the apartment where his wife resided as his permanent residence; that he intended to return to this apartment; and that
when he was admitted he believed he had a reasonable chance of
effecting a reconciliation with his wife. He furtner testified that
following his return, he did see his wife for this purpose.
The Service maintains that the respondent made a false representation to the consul when he stated on his application for a
visa that he was residing at the apartment of his wife in Santa
Monica, California, and was returning to the United States to
continue his maritial relationship with her, since he knew that
his marriage was for all intents and purposes terminated. The
special inquiry officer finds that the charge laid under section
212 (a) (19) of the Act is not sustained, because there is affirmative evidence that the respondent believed that there was a possibility of a reconciliation with his wife, and that if this were
achieved he would resume his residence at the address stated in
his application for the visa. Accordingly, the misrepresentation
was not wilfully made as required by the Act. We affirm the conclusion reached by the special inquiry officer.
The special inquiry officer finds the respondent deportable
under the provisions of section 241 (a) (1) of the Act in that at
the time of entry he was excludable as an alien who was seeking
to enter for the purpose of performing unskilled labor and in
whose cause the Secretary of Labor had not made the certification required by section 212 (a) (14) of the Act. The special inquiry officer reasons that at the time of the respondent's entry on
March 31, 1967, there was no reasonable prospect of any resumption of the marital relationship with his citizen wife, nor any
reasonable prospect of any immediate reconciliation, and accordingly the exemption conferred by section 212 (a) (14) of the Act
to the spouse of a citizen of the United States would not be effective in accomplishing the reuniting of a family. The special inquiry officer in support of this conclusion cites cases based on
the premise that exemptions from the quota requirements were
granted by the Congress solely for the purpose of preserving the
family unit and that such benefits are conferred only where it
will serve this purpose.
1 'Shafer of LOU; 11 I. & N. Dee. 148 (D.D., 1965) ; Scalzo v. Hume% 225
F. Supp. 560 (E.D. Pa., 1963), ard 338 F.2d 339 (3 Cir., 1964); Matter of
M—, 8 I. & N. Dec. 217 (BIA, 1958).

311

Interim Decision #1984
We agree with the special inquiry officer that his basic assumption is correct, namely, that Congress provided a waiver of the
labor certification requirements for an alien spouse of a United
States citizen in order to facilitate the preservation of the family
unit. However, we doubt that Congress, when it enacted the
waiver provisions in section 212 (a) (14), intended that this
bounty should be rescinded and become unavailable to an alien
spouse of a United States citizen who at the time of entry had
reason to believe that he would be successful in reviving a floundering marriage which, according to the evidence before us, appears to have been contracted in good faith and which had subsisted until shortly before his departure to obtain a special immigration visa.
The testimony of the respondent's wife lends support to his
claim that he had a reasonable chance of effecting a reconciliation
upon his return with a permanent residence visa. She testified
that she told the respondent prior to his departure for Mexico
that if he secured an immigration visa for permanent residence
"the marriage would have worked" (p. 22). She further testified
that she was in love with the respondent when she married him
(p. 18) ; that she had every intention of "trying to make the marriage work" (p. 18); and that they "contributed to each others
support" (p. 29). Furthermore, it is apparent from the testimony
of the respondent's wife that when he saw her the latter part of
March 1967 prior to his reentry for permanent residence on
March 31, 1967, they discussed matters concerning their reconcili.

ation (pp. 8144).
It is our position that the fact that the respondent was unsuccessful in resuming marital relations with his wife after entry
should not retroactively affect his status with regard to the-labor
certification requirement at the time of entry since it is the time
of entry which controls, Matter of Paco, 12 I. & N. Dec. 599
(BIA, 1968). We find nothing in the statute or its legislative history which supports a conclusion that Congress intended that a
labor certification exemption would become unavailable to the
spouse of a United Stites citizen at the time of entry if at that
time there is an affirmatiVe showing that the applicant's marriage
to a United States citizen has a reasonable chance of continuing.
The fact that after entry it is established that the marriage did
not survive has no retroactive effect with regard to a labor certification exemption for an alien spouse of a United States citizen
as of the time he was, admitted for permanent residence. Under
the circumstances, we find the charge laid under section

312

Interim Decision #1984
241 (a) (1) and 212(a) (14) of the Act not sustained since the respondent was exempt from the presentation of a labor certification at the time of his entry on March 81, 1967.
The order to show cause charges that the respondent was excludable at the time of entry because he did not present a valid
immigration visa (sections 241 (a) (1) and 212 (a) (20), Immigration and Nationality Act). The special inquiry officer concludes
that this charge is not sustained insofar as fradulent procurement is concerned since he did not find that the visa was obtained
by a wilful and material misrepresentation to the United States
Consul in Mexico. He did sustain the charge however, on the
ground that it was not a valid immigration visa because it was
not supported by a labor certification when issued. Sinee we have
found that the respondent was exempt from the presentation of a
labor certification at the time of his entry for permanent residence on March 81, 1967, the charge must fall.
An appropriate order will be entered terminating the proceeding.
ORDER: It is caused that the proceeding under the order to
show cause issued on January 29, 1969 be and the same is hereby
terminated.

313


Interim Decision #2830

MATTER OF

LEVY

In Visa Petition Proceedings
A-23353467
Decided by Board October 8, 1980
(1) When the country where the beneficiary was born and resides eliminates all legal
distinctions between legitimate and illegitimate children, all natural children are
deemed to be the legitimate offspring of their natural father for visa petition purposes
from the time that country's laws are changed.
(2) Where a petitioner submitted evidence that a Haitian Presidential decree of January
27, 1959, purported to abolish all legal distinctions between children based on the
marital status of their natural parents, and that Article 202 of the Civil Code of Haiti
as amended by Decree Law 466 of December 22, 1944, which required marriage of the
natural parents for legitimation (See Matter of Remp,1411iN Dec. 183 (BIA 1972)) no
longer governed, case was remanded for a determination of the effect of the new law on
the visa petition. Matter of Annang, 14 I&N Dec. 502 (BIA 1973).
ON BEHALF OF PETITIONER

Robert E. Slatus, Esquire
50 East 42nd Street
Suite #1001
New York, New York 10017

ON BEHALF OF SERVICE

Jim Tom Haynes
Appellate Trial Attorney

By Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

In a decision dated May 7, 1980, the District Director denied a visa
petition filed on behalf of the beneficiary as the petitioner's unmarried
daughter under section 203(a)(1) of the Immigration and Nationality
Act, 8 U.S.C. 1153(a)(1). The petitioner appealed. The record will be
remanded for further proceedings.
The petitioner is a citizen of the United States. The beneficiary is a
native and citizen of Haiti, who allegedly was born out of wedlock to
the petitioner and a woman he never married. The District Director
based his denial of the visa petition on his finding that, because the
beneficiary was born out of wedlock, and her parents never married,
she was an illegitimate,child who had not been legitimated, and thus
could not receive an immigration benefit through her father.
A beneficiary of a visa petition can qualify as an "unmarried

Interim Decision #2830
daughter" of a petitioner only if the beneficiary could once have
qualified as a "child" of the petitioner under section 101(b)(1) of the
Act, 8 U.S.C. 1101(b)(1). Matter of Coker,14 I&N Dec. 521 (BIA 1974).
Section 101(b)(1) defines a child, in pertinent part, as,
(A) a legitimate child; or ....
(C) a child legitimated under the law of the child's residence or domicile, or under the
law of the father's residence or domicile, whether in or outside the United States,
if such legitimation takes place before the child reaches the age of eighteen years

and the child is in the legal custody of the legitimating parent or parents at the
time of such legitimation; ...
Since the beneficiary in the present case was born out of wedlock, it

must be established either that she has been legitimated under the law
of Haiti br New York or that she is considered legitimate under the
applicable law.
New York requires the marriage of a child's natural parents in order
to legitimate a child born out of wedlock. Matter ofReyes,16 I&N Dec.
475 (BIA 1978); Matter of Bullen, 16 I&N Dec. 378 (BIA 1977). The
beneficiary has dins not been legitimated under that law_ In a prior

Board decision, Matter of Remy, 14 1&N Dec. 183 (BIA 1972), we held
that legitimation of a child in Haiti also required the marriage of the
child's natural parents, as well as acknowledgment of the child prior to
or during the act of marriage. We relied for this rule on Article 302 of
the Civil Code of Haiti, as amended by Decree Law 466 of December 22,
1944. On appeal, the petitioner has presented a copy, with translation,
of the Haitian Presidential Decree of January 27, 1959. That decree
provides in pertinent part,
Article 1. Natural filiation shall give rise to the same obligations as those deriving
from legitimate filiation.
Nonetheless, the proof of natural filiation may result only from voluntary recognition or from judicial recognition in the case where the latter is authorized by Jaw.
Article III. The present decree which repeals all laws or applications of laws, all lawdecrees that are contrary to it; namely articles 308, 583, 606; second paragraph, 624 and
742 of the Civil Code, will be published and executed at the suite of the State Secretary
of Justice.

The 1959 Presidential Decree was not discussed in our decision in
Matter of Remy, supra. It appears to abolish all legal distinctions for
Haitian children whether born in or out of wedlock. When the country
where a beneficiary was born and resides eliminates all legal distinctions between legitimate and illegitimate children, all natural children
are deemed to be the legitimate offspring of their natural father for
immigration purposes. Lau v. Kiley, 563 F.2d 543 (2 Cir. 1977); Matter
of Hernandez, Interim Decision 2712 (BIA 1979); Matter of Santhez,16
I&N Dec. 671 (BIA 1979); Matter of Wong, 16 I&N Dec. 646 (BIA 1978);
cf. Petition for Naturalization of Fraga, 429 F.Supp. 549 (D.P.R. 1974);
540

Interim Decision #2880
Matter of Bautista, Interim Decision 2731 (BIA 1979).

Article III of the 1959 presidential decree purports to repeal all laws
to the contrary, but does not list Articles 302 or 466 of the Civil Code
among the specific sections listed as repealed. Nevertheless, its terms
appear to be all inclusive, warranting consideration by the District
Director of its applicability. Although a copy of the 1959 decree was
part of the visa petition record, its legal effect was not discussed by the
District Director. Consequently, we will remand the record for further

proceedings in which the petitioner retains the burden of establishing
the beneficiary's eligibility for preference immigration status and the
legal effect of the 1959 Haitian Presidential Decree. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966); Matter of Annang, 14 I&N Dec. 502
(BIA 1973). Therefore, on remand the petitioner should submit to the
District Director more evidence regarding the 1959 decree's effect on
Article 302 and Haitian legitimation. See Matter of Remy, supra. Such
evidence could include statements from representatives of the government of Haiti or experts in Haitian law stating their legal conclusions
as to the beneficiary's status. It is so ordered.
ORDER, The record is remanded for further proceedings in accordance with this opinion and the entry of a new decision.
FURTHER ORDER, After a new decision is entered, the record
shall be certified for our review.


Interim Decision #2065

MATTER

OF LAURENZANO, ET AL.

In Deportation Proceedings
A-19328865, —869
A-19328870, —1, —2
Decided by. Board November 30, 1970
■Iotwithstanding

respondents, admitted as Argentine nationals for temporary visits, may now be stateless, having executed subsequent to entry
declarations of renunciation of Argentine nationality under the United
Nations Declaration of Human Rights, Act, and Covenants, their deportation to Argentina may nevertheless be directed under section 243 (a) of
the Immigration and Natonality Act.

!HARGES:
Order: Act of 1952—Section 241 (a) (9) [8 U.S.C. 1251(a) (9)]—Nonimmigrant visitor—failed to comply with conditions
of admission (Alien (1) )

Act

of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2))—Nonimmigrant visitor—remained longer (Aliens (2)
to (5) )

■I

BEHALF OF RESPONDENTS:
Murray H. Rittenberg, Esquire
11 Beacon Street
Boston, Massachusetts 02108

ON BEHALF OF SERVICE:

Irving A. Appleman
Appellate Trial Attorney

Respondents appeal from orders of a special inquiry officer
ding them deportable respectively on the above-stated charges,
nying their applications for voluntary departure, and directing
eir deportation to Argentina. The appeals will be dismissed.
All five respondents .had hearings before the same special iniry officer at which they were represented by the same attory, who also represents them on these appeals. All five cases
esent the same issue on appeal, were argued together before
s Board, and can be adequately adjudicated in one opinion.
Respondents are all male natives of Argentina, ranging in age
art 22 to 28, who entered the United States as nationals of that
entry as temporary visitors for pleasure on various dates in

636

Interim Decision #2065
1970 and were admitted for fixed periods of time. Within the period of his authorized admission, respondent Laurenzano was
found gainfully employed, in violation of the conditions of his admission. The others were found here after expiration of their respective periods of admission. Orders to show cause were issued
on October 22, 1970.
At their respective deportation hearings, each respondent admitted the truth of the factual allegations contained in his order
to show cause and conceded deportability on the charge stated.
Our review of the records satisfies us that deportability has been
established in each case by evidence which is clear, convincing
and unequivocal.
Counsel stated at each hearing that the respondent therein had
given up his Argentine nationality. Each respondent applied for
the privilege of voluntary departure but conceded that he lacked
the funds needed to depart at his own expense. Since they all
were thereby ineligible for voluntary departure under 8 CFR
244.1, the special inquiry officer denied their applications. Under
the circumstances, that action was proper.
In the presence of counsel, each respondent was asked to state
the country to which he wished to be deported. Without objection,
each respondent designated Argentina. The orders of deportation
before us on appeal direct deportation in each case to Argentina.
At the oral argument, counsel for respondents handed up and
asked us to consider five documents under seal, executed respectively by each respondent under oath before a notary public,
which purport to constitute renunciations of their allegiance to
Argentina and to render them stateless. The documents, while
varying in dates of execution,' are identical in form. They refer
to and invoke "the Universal Declaration of Human Rights and
the Covenants on Human Rights, United Nations Treaty Series,
No. 5158"; "the final act of the United Nations Conference on the
Status of Stateless Persons, done at New York, on 28 September
1954, registered ex officio on 6 June 1960"; "two covenants the
International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights—
which were adopted by the General Assembly on December 16,
1966"; and they specifically invoke and quote the amendments of
Article 2 of the Declaration.
On appeal, counsel does not challenge the finding of deportability or the denial of voluntary departure. His primary attack is on
I Biancardi's and Bravo's are dated October 24, 1970. The three others are
dated November 4, 1970.

637

Interim Decision #2065
the deportation orders' designation of Argentina as the country
of deportation and he appears to present three alternative arguments.
First, he contends that the Argentine travel documents needed
7or respondents' deportation to Argentina, requested by the Immigration Service from the Argentine authorities, have not yet
>een forthcoming and he asks for 60 days to "straighten it out
me way or the other." The short answer is that the obtention of
ravel documents needed to execute a deportation order is the reponsibility of Service officers engaged in enforcement functions.
t is not within the competence of the special inquiry officer or
pis Board, whose functions are quasi-judicial. We see no reason
) defer action for 60 days.
Second, counsel contends that, as stateless persons, respondents
Lay not be deported to Argentina, the country of their former
itionality. Assuming, arguendo, that respondents' ex parte decrations are sufficient to result in an effective loss of Argenne nationality and consequent statelessness, it by no means folws that they may not be deported to Argentina. The specific
rms of the deportation statute require us to reject this argu?nt.
The statutory scheme is relatively simple. Section 241 of the
t defines the deportable classes of aliens, section 242 prescribes
procedures for determining deportability, and section 243 preibes the manner of executing deportation orders. Section
(a) gives the deportable alien the first choice. With certain
eptions not here pertinent, it requires deportation "to a counpromptly designated by the alien if that country is willing to
?pt him into its territory." Failing that, deportation is diRd to the country of the alien's nationality, if it will accept
. Failing that, deportation may be effected to a number of alative destinations, including the country from which the alien
entered the United States, the country in which he was born,
any country in which he had previously resided.
ach respondent specifically selected Argentina as his destinaSection 243 (a) does not require generally that the alien be a
Dnal of the country he chooses as his destination. Thus, even
B accept as established respondents' loss of Argentine nationand their consequent statelessness, there is no basis on
h we can hold that the special inquiry officer's orders of deLtion to Argentina did not comply with the statute.

638

Interim Decision #2065
Counsel asserted at oral argument that the respondents had
designated Argentina on his advice and that he had so advised
them because the special inquiry officer in other cases had discouraged selection of a country other than that of the alien's nationality or origin. There is nothing in the records before us to
support counsel's assertions or to indicate in any way that respondents' designation of Argentina did not represent their real
choice. In any event, even if we accept counsel's version and ignore their designations, Argentina would still be the appropriate
destination under section 243(a). If respondents are still nationals of that country. Argentina is the destination required by the
second step of section 243(a). And if they are stateless, as they
claim, Argentina is still a permissible destination under several
of the alternatives afforded by the third step, e.g., as the country
of their birth.
Counsel's third argument is that, as stateless persons, respondents may not be deported to any country." He relies for this proposition on the United Nations Declaration, Act, and Covenants referred to in the instruments of renunciation executed by
respondents. We reject this thesis. Quite apart from the fact that
United Nations conventions adhered to by the United States are
not self-executing and do not of themselves supersede our domestic immigration laws, 3 counsel has pointed to nothing in any
treaty, convention or protocol adhered to by the United States
which can be construed as in conflict with the specific terms of
section 293(a). On counsel's premise, all aliens illegally in the
United States could thwart deportation and effectively obtain permanent residence here by the simple expedient of renouncing
their foreign nationality and becoming stateless. Bearing in mind '
the careful system set up by Congress to limit and control immi2 (Transcript of oral argument, page 4) :
Chairman: Let me ask you this question, because I would like to get to the
theory upon which you are here. 15 it your view that your clients are now
stateless? And is it your view, since they are stateless, the U.S. Government cannot deport them to any country?
Attorney: Exactly.
Chaiiman : In other wcrds it is your view that an alien can come to the U.S.
as a temporary visitor and then achieve what amounts to permanent residence by the mere device of executing a renunciation of his foreign nationality and becoming stateless? •
Attorney: May I say according to U.S. laws, no, but according to
international law a treaty which takes precedence over this government's
laws, and signed by the U.S., yes. Absolutely yes.
3 See Vlissidis v. Anadell, 262 F.2d 398 (7 Cir., 1959) ; Hitai v. INS, 343
F.2d 466 (2 Cir., 1965), cert. denied 382 U.S. 816.

639

Interim Decision #2065
gration, it is clear to us that Congress never contemplated such a
result. We cannot construe section 243(a) as having • been
amended in the manner suggested by counsel, in the absence of
more conclusive evidence that this is actually what Congress intended.
ORDER: Tt is ordered that the appeals be and they are hereby
dismissed.

gAA


Interim Decidon #2522

MATTER OF SULEIMAN

In Section 246 Proceedings
A-18287193
Decided by Board January 4, 1974
(1) Respondent was granted permanent resident status on January 28, 1970, as the
immediate reh.tive spouse of a United States citizen, and as such was exempt from the
numerical limitations of the Immigration and Nationality Act. After the marriage ended
in divorce on August 19, 1970, the Service brought rescission proceedings on the ground
the marriage was a sham and the respondent was not entitled to the classification he had
been accorded
(2) The burden 3f proof in rescission proceedings is dear, convincing and unequivocal
evidence. Where the basis for rescission proceedings is that the alien was not entitled to
the numerical classification accorded, it is essential that the Notice of Intention to
Rescind allege ineligibility for other numerical classifications. In this case the record

contains no evidence that a visa subject to the numerical limitations would not have
been available to respondent, nor is that alleged. Proceeding remanded.
ON BEHALF OF RESPONDENT:

Manuel Guzman Ortiz, Esquire
P. 0. Box 9133
Santurce, Puerto Rico 00908

This is an appeal from an order of rescission entered by the immigration judge. The case will be remanded.
The record relates to a married male alien, 23 years of age, a native
and citizen of Jordan, whose status was adjusted to that of an alien
lawfully admitted for permanent residence on January 28, 1970. He was
granted permanent residence as the spouse of a citizen of the United

States. As such he was exempt from the numerical limitations. His
marriage to the United States citizen terminated in divorce on August
19, 1970. The Service thereupon concluded that his marriage had been a
sham and that the respondent was not entitled to the classification he
was accorded. Rescission proceedings were commenced.
The Notice of Intention to Rescind alleged that no bona fide marriage
relation ever existed between the respondent and his United States
citizen wife and that "willful failure to disclose this material fact served
to cut off a pertinent line of inquiry which, had it been known, would
certainly have prevented approval of your application for permanent

residence." However, there was no allegation that the nonpreference
784

Interim Decision #2522
category was unavailable at that time, nor was it alleged that the
respondent did not possess a labor certification (absent which, he would
have been inadmissible in the nonpreference category).
We hold 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 classification. We rely on the case of United States v. Rossi, 299 F.2d 650 (C.A.
9, 1962), for this proposition. In that case the court held that the
Government had not sustained its burden of proof, in a denaturalization
case, in which there was no suggestion in the record that Rossi was
ineligible for a quota visa, or otherwise excludable. The basis for the
denaturalization proceeding was that Rossi had not been lawfully admitted for permanent residence, a prerequisite fcir 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. The burden imposed on the Service in that
denaturalization proceeding, clear and convincing evidence, was no
greater than the burden in a rescission proceeding, where the burden is
clear, convincing and unequivocal evidence, Waziri v. INS, 392 F.2d 55
(C.A. 9, 1908); Matter of Viloynava-Gonzalez, 13 I. & N_ Dec. 399 (BIA
1969).

In the case before us the record contains no evidence that a visa
subject to the numerical limitations would not have been available to the
respondent, nor is there even an allegation to that effect. Accordingly,
we shall remand the case to enable the proceedings to be reopened and
conducted in accordance with this decision.
ORDER: This case is remanded to the immigration judge for proceedings consistent with the above decision.

785