Interim Decision #2254

MATTER OF GALVAN

In Exclusion Proceedings
A-30521243
Decided by Board January 8, 1974
(1) An applicant for admission who has successfully met the requirements for
admission into the United States as an immigrant, and who has not lost her
status as an alien lawfully admitted for permanent residence, is not required
to establish eligibility under section 212(aX14) of the Immigration and Nationality Act, as amended, upon each entry.
(2) Applicant, an alien commuter, applied for admission in April 1973, in
possession of a Form 1-151, to proceed to her employment with a company at
the facilities of which the Secretary of Labor had determined (prior to the
commencement of her employment) that a labor dispute existed. She was
paroled pending exclusion proceedings. While on parole, her employment
terminated and she has indicated that she does not intend to seek employment with that company again but intends to reside with relatives. Since she
is not seeking entry to engage in work at a place determined by the Secretary
of Labor to be involved in a labor dispute and is seeking entry within six
months of the termination of her employment, she is admissible.
EXCLUDABLE: Act of 1952—Section 212(aX14) 18 U.S.C. 1182(a)(14))—Seeking to

work at place where Secretary of Labor has
determined a labor dispute exists.
ON BEHALF OF APPLICANT: Pro se

The alien applicant is a native and citizen of Mexico who was
admitted to the United States as an immigrant in October of 1972.
She did not thereafter reside in the United States because her
family lacked the necessary financial means to maintain a home
here. Consequently, she lived in Mexico and crossed the border
daily to work for the Farah Manufacturing Company in El Paso,
Texas. Her employment with Farah began in November of 1972,
several months after the Secretary of Labor had determined that
a labor dispute existed at the Farah facilities in El Paso. The
applicant continued to work for Farah after being informed that
she was jeopardizing her right to use her alien registration receipt
card (Form 1-151) as a reentry document. In April of 1978 the
applicant was denied admission; she was, however, paroled into
the United States pending the outcome of an exclusion hearing.
518

Interim Decision #2254
After the applicant's hearing, the immigration judge rendered a
decision, dated June 19, 1973, which ordered that the applicant be
admitted to the United States. The immigration judge has certified the case to us. The decision of the immigration judge will be
affirmed.
The denial of admission which led to this proceeding resulted
from the applicant's attempt to gain entry on the basis of her alien
registration receipt card. The Immigration and Naturalization
Service contends that 8 CFR 211.1(bXl) invalidates this card as a
reentry document under the circumstances of this case. The
pertinent portion of that regulation reads:
... When the Secretary of Labor determines and announces that a labor
dispute involving a work stoppage or layoff of employees is in progress at a
named place of employment, Form 1-151 shall be invalid when presented in
lieu of an immigrant visa or reentry permit by an alien who has departed for
and seeks reentry from any foreign place and who, prior to his departure or

during his temporary absence abroad has in any manner entered into an
arrangement to return to the United States for the primary purpose, or seeks
reentry with the intention, of accepting employment at the place where the
Secretary of Labor has determined that a labor dispute exists, or of continuing employment which commenced at such place subsequent to the date of the
Secretary of Labor's determination.

The regulation clearly is designed to invalidate the Form 1-151
when presented for the purpose of allowing an alien to return to
work at a place where the alien accepted employment subsequent

to a determination by the Secretary of Labor that the given
facility is involved in a labor dispute. It should be noted, however,
that the Service contends that this applicant is excludable specifically under section 212(a)(14) of the Act. Section 212(aX14) imposes
a labor certification requirement upon certain aliens. That provision does not apply to aliens who qualify as returning resident
immigrants under section 101(a)(27)(B) and who thus may be
admitted under the less stringent documentary requirements
established for returning residents purSuant to section 211(b).
Since the applicant had once successfully met the requirements

for admission as an immigrant, and had not lost her status as an
alien lawfully admitted for permanent residence, she is not required to reestablish eligibility under section 212(aX14) upon each
entry. On the basis of the quoted language in 8 CFR 211.1(b)(1) the
Service could properly contend that the applicant is excludable
under section 212(aX20), as an immigrant not in possession of a
valid reentry document. It is with respect to this possible ground
of excludability that we shall examine this case. If the applicant is
in fact inadmissible under the Act, the failure to notify her of the
proper ground involves only procedural and not substantive

rights. Since we have determined that she is admissible, she has
519

Interim Decision #2254
suffered no detriment from the improper notification regarding
the alleged ground of excludability.
The immigration judge ordered the admission of the applicant.
It is his opinion that the regulation, which would prevent the
applicant from using her alien registration receipt card to enter
for the purpose of continuing her employment, is invalid and
consequently there is no legitimate basis for excluding her. In
reaching this conclusion, the immigration judge relied on the
decision in Sam Andrews' Sons v. Mitchell, 457 F.2d 745 (C.A. 9,
1972). San Andrews' Sons held the relevant portion of 8 CFR
211.1(b)(1) to be invalid as an abuse of the Attorney General's
discretion.
We need not address ourselves directly to the issue of the
ultimate impact of Sam Andrews' Sons, supra, because we have
concluded that the terms of the regulation no longer prohibit the
applicant's admission. Her employment with Farah has terminated and she has indicated that she does not intend to seek work

with that firm again, but instead intends to proceed to Los
Angeles, California to reside with relatives. Consequently, she is
not entering to engage in work at a place found by the Secretary
of Labor to be involved in a labor dispute.

The applicant's alien registration receipt card is thus a valid
reentry document, assuming the general requirements for its use
have been met under 8 CFR. 211.1(b)(1). The applicant is admittedly a "commuter." She has lost the job which was her connec-

tion, for "commuter" status purposes, with the United States.
However, she is seeking entry well within six months of the
termination of her employment, and she is therefore still admissible. See Matter of Wighton, 13 I. & N. Dec. 683 (B IA 1970 & 1971);
Matter of Bailey, 11 I. & N. Dec. 466 (BIA 1965 & 1966).
The result reached by the immigration judge was correct.
Accordingly, the immigration judge's decision will be affirmed.
ORDER: The decision of the immigration judge is affirmed.

520


Interim Decision #1282

MATTER OF KOEHNE

In VISA PETITION Proceedings
A-10750041
Decided by Board May 8, 196$
A. divorce decree granted in absentia in Hungary in 1962 to two nationals of that
country then domiciled and physically present in New York is, in the exercise
of comity, recognized as valid by the State of New York where the marriage
occurred in Hungary and both parties entered appearance through counsel.

The petitioner, a native and national of Hungary, has resided in the
United States since her admission for lawful permanent residence at

the port of Newark, New Jersey on December 31, 1956. She seeks
third preference classification under section 203(a) (3) of the Immigration and Nationality Act (8 U.S.C. 1153(a) (3) ) for her spouse, a
native of Germany, whom she married at New York City on August 2,
1962.
The District Director at New York denied the petitioner's application on the ground that a Hungarian divorce decree dissolving a former marriage of the petitioner is a nullity because it was obtained in
absentia while both the plaintiff and the defendant (the petitioner
herein) were domiciled and physically present in the State of New
York. The petitioner appeals from the District Director's decision
that -she is not the lawful spouse of the beneficiary for immigration
purposes.
The facts concerning the petitioner's marital status are as follows.
She married one Laszlo Deme at Budapest, Hungary on August 2,
1955. They emigrated to the United States in the winter of 1956 and
became residents of the City of New York in the spring of 1957. The
petitioner separated from her Hungarian spouse in the fall of 1960.
The plaintiff husband filed an action for a divorce in the Central
District Court at Budapest, Hungary in February of 1962.
The divorce decree, dated April 24, 1962, discloses that the plaintiff
husband and defendant wife (petitioner herein) entered their appearance in the,Flungarian court through counsel; that evidence in the
form of affidavits was presented to the court; that the defendant wife
264

Interim Decision #1282
raised no objection to dissolving the marriage; and that neither of the
parties appeared before the Hungarian court during the divorce proceeding. It appears that the Hungarian court assumed jurisdiction
of the parties on the ground that Budapest was the situs of the marital
res by reason of the marriage in that city on August 2, 1955 and the
fact that the appearance was voluntary on the part of both parties
who were then nationals of Hungary.
The issue before us is whether the marriage of the petitioner and
the beneficiary at New York City on August 2, 1962 is a valid marriage for immigration purposes in light of the facts set forth above.
The validity of a marriage for immigration purposes is governed by
the law of the place of celebration, in this case the State of New York.
Matter of P—, 4 I. 41; N. Dec. 610, A.G., March 18, 1962.
The District Director concludes that under the Civil Practice Act
of the State of New York'. the Supreme Court has exclusive jurisdiction of matrimonial actions, that adultery is the only ground for
an absolute divorce and that the statute has certain jurisdictional requirements with regard to the residence of the defendant and the service of the complaint which were not met in the instant case.
We agree with the District Director that the Civil Practice Act of

the State of New York controls with regard to whether the State of
New York is required to accord recognition under the full faith and
credit clause of the Constitution to a divorce decree awarded by

another state to a party or parties domiciled in the State of New
York. Cf. Glaser v. Glaser, 376 N.Y. 296, 12 N.B. 2d. 305. However,
when dealing with a divorce granted by the court of a foreign country,
the full faith and credit clause of the Constitution does not apply and
the question is solely one of comity. Gould v. Gould, 235 N.Y. 14,
138 N.E. 490, C.A.N.Y., 1923.
The courts of the State of New York in the exercise of comity have

on several occasions recognized foreign divorce decrees where there
is a showing, as in the case before us, that the foreign court assumed
jurisdiction over the marital res by reason of the fact that the marriage

had been celebrated within the jurisdiction of the court and over the
parties by reason of their voluntary appearance and joinder although
they were never physically before the foreign court and at least one
1 Section 1147 of the Civil Practice Act, State of New York, provides in substance that an action for divorce on the ground that the defendant committed
adultery will lie (1) where both parties are residents of the state in which the
offense was committed (2) where the parties were married in the State of New
York (3) where the plaintiff resided in the state when the offense was committed
and is a resident thereof when the action is commenced (4) where the offense

was committed within the state and the injured party when the action is commenced is a resident of the state.

265

Interim Decision #1282
of the parties continued. to be a resident of the State of New York. 2
Hansen ease (supra 2) TheSuprmCotfNwYkheld.in
that notwithstanding the fact that the parties (husband and wife)
were not residing in Denmark at the time the petition for a divorce was
filed or at the time it was granted, nevertheless, the judgment of the
Danish court dissolving the marriage was entitled to full faith and
credit by the courts of the State of New York because Denmark was
the sites of the marital domicile and the parties voluntarily submitted
to the jurisdiction of the Danish court.
The Oettgen case is directly in point with the case before us. The
issue before the New "York court concerned the validity of a German
divorce decree granted in absentia to aliens who were residing in the
State of New York. The plaintiff wife, a native of Denmark, became
a German national upon her marriage to a national of Germany at
Hamburg on December 22, 1926. They entered the United States
with permanent resident visas on or about December 11, 1928. Thereafter, a divorce action was filed in the Supreme Court of Hamburg,
Germany. Both parties were represented by counsel. The testimony
was in the form of affidavits taken at New York City where both
parties were then residing.
The Supreme Court for New York County noted 'in their decision
that the lack of domicile in Germany is not necessarily a bar to
recognition of a foreign decree by tb.o courts of New York, citing
Gould -v. Gould (supra). The court held that the law and public

policy of New York State would not be offended by recognizing the
German decree because it was granted "by a jurisdiction where the
parties were married and of which they remained nationals. It does
not shock the conscience to conclude that people who marry under a
certain set of laws may expect to be bound only so long as that set of
laws required it . . . We are not here dealing with a 'mail order'
divorce granted by a country having no relationship to the parties'
marital status." Oettgen v. Oettgen, 94 N.Y. Supp. 2d at p. 172.
The United States Court of Appeals for the Second Circuit had

before it the validity for immigration purposes of a divorce obtained by
a Pakistani national residing in New York City from his wife then
residing in Pakistan. The divorce decree was awarded by the Director
of the National Islamic Mission in the United States, one Reverend
Sheikh Faisal, "in accordance with the courts of Islam (and. in accordance) with the laws of the Government of the United States of
America."
Hansen v. Hansen, 8 N.Y. Supp. 2d 655, S. Ct., Appellate Div., December 31,
1938; Weil v. Weil, 20 N.Y. Supp. 2d. 467, Domestic Relations Court, City a
New York, 1941;

uetteen, v. oeugen, 94

N.Y. Supp. 2d 108, O. Ct. Special Term,

New York County, 1949.

266

Interim Decision #1282
The court in ruling that the divorce would not be recognized as
valid in New York State made this comment: "We ... believe that the
purported divorce in the case at bar could be valid only when granted
in Pakistan." The court in support of this statement cited the New
York case relied upon in this decision (see 2). The court noted that
although the parties concerned were physically present in the United
States at the time the divorces were granted nevertheless the validity
of the decrees were acknowledged for the reason that the marriages had
been performed within the jurisdiction of the foreign courts and the
parties were still nationals of the country in which the foreign courts
were located. (Shilcoh, v. ilfurff, 257 F. 2d 306, C.A. 2, 1958)
We conclude on the basis of the foregoing authority that the Hungarian decree of divorce would be recognized as valid under the laws
of the State of News York and as a necessary corollary thereof, that
the marriage between the petitioner and the beneficiary in this proceeding will support an application for third preference classification
under section 203(a) of the Immigration and Nationality Act (8
U.S.C. 1153 (a) ) . An appropriate order will be entered.
ORDER: The order entered by the District Director at New York
on December 6, 1962 denying the petitioner's application for third
preference classification under section 203 (a) of the Immigration and
Nationality Act is hereby withdrawn.
It is further ordered that the appeal be and the same is hereby sustained; the petition filed in behalf of Rainer E. Koehn is hereby

approved for third preference classification pursuant to section 203 (a)
of the Immigration and Nationality Act (8 U.S.C. 1153 (a)).

267


MATITS OF K—
In DEPORTATION Proceedings
A-8272691

Decided by Board June 14,1961
Pardon—By United States High Commissioner for Germany—Construed as
executive pardon within section 241(b) of 1952 act.
General amnesty and pardon proclaimed by former United States High Commissioner for Germany relating to convictions and sentences imposed by
United States Military Government Courts prior to January 1, 1950, held
within intendment of section 241(b) of the 1952 Act and effective as an
executive pardon to alleviate consequences of deportation.
DEPORTABLE: Act of 1952—Section 241(a) (1) — Excludable at time of entry as
one convicted of crime under section 3 of the Act of Feb. 5,
•
1917, to wit, abortion.

BEFORE THE BOARD

DISCUSSION: Respondent's motion is before us urging withdrawal of an order providing for her deportation under section
241(a) (1) of the Immigration and Nationality Act (8 U.S.C.
1251(a) (1)) and termination of the proceedings. No exceptions
have been taken by the Immigration and Naturalization Service.
The respondent, a native of the Soviet Union, now stateless, female,

married, 62 years of age, last entered the United States as a displaced person for permanent residence in 1952. A warrant providing
for the alien's deportation, dated September 10, 1954, is outstanding. Deportability is predicated upon the respondent's conviction
in the United States Military District Court for the Eighth Judicial

District, Munich, Bavaria, Germany, on January 14, 1949, for the
crime of abortion in violation of paragraphs 218 and 47 of the
German Criminal Code. The respondent was sentenced to pay a fine
of 1,000 Deutsche marks (about $200). The crime, committed on
November 16, 1048, does involve moral turpitude.

Title 22 of the Code of Federal Regulations, section 42.91(a) (9)
(vii), provides in substance that an alien shall not be considered
ineligible to receive a visa under section 212(a) (9) of the Immigration and Nationality Act (8 U.S.C. 1182(a) (9)) by reason of a
conviction of a crime involving moral turpitude for which a full and
336

nconditional pardon has been granted by the President of the
Tnited States, by the Governor of a State, or by the former High
commissioner for Germany 1 The above-mentioned section was
Lmended to include the former High Commissioner for Germany
mbsequent to our denial on August 12, 1955, of respondent's motion
Similar to the one now before us.
The issue presented by respondent's motion is whether section 241
(b) of the Immigration and Nationality Act (8 U.S.C. 1251(b)) may
be interpreted as including within its provisions, a general amnesty
and pardon granted by the United States High Commissioner for
Germany. Section 241(b), supra, by its express terms provides a
waiver of the criminal charge set forth in section 241(a) (4) of the
Immigration and Nationality Act (8 U.S.C. 1251(a) (4)) "in the
case of any alien who has subsequent to such conviction been granted
a full and unconditional pardon by the President of the United
States or by the Governor of any of the several States."
The limiting provisions of section 241(b), supra, were designed by
Congress to eliminate the effectiveness of a legislative pardon (Matter of R—, 5 612 (B.I.A., 1954) ). Notwithstanding the fact that
Congress has manifested an express intention to grant exemption
from deportation only to those aliens who have obtained an executive pardon as distinguished from a legislative pardon, there are
instances in which the supreme e.ei:tttive power to pardon is not
vested in the Governor of a State or the President of the United
States.
Prior to statehood, the substantive law of the Territory of Hawaii
vested such power in the Territorial Governor appointed by the
President of the United States.' The supreme pardoning authority
in the State of Georgia is the State Board of Pardons and not the
Goverrior.3 Chapter 16, Article II, section 316, of the Revised
Statutes of Nebraska, 1943, designates the mayor of a first-class city
in Nebraska as the supreme pardoning authority in the case of a
conviction under a city ordinance of his municipality. We have held
that unconditional pardons granted by the Territorial Governor of
Hawaii, the Georgia State Board of Pardons, and the Mayor of
Scottsbluff, Nebraska, are effective pardons within the meaning of
-

1 Regulations promulgated by the Secretary of State are controlling with
respect to an alien's eligibility to receive a visa (8 11.8.C. 1104). They do
not control in matters concerned with the deportation or occlusion of an alien.
Regulations implementing these provisions of the immigration lows are the responsibility of the Attorney General (8 U.S.C. 1103(a)).
2 48 U.S.C. 531; 48 U.S.C. 1453.
s Constitution, State of Georgia, as amended in 1043 and ratified in 1945:
Title 5, sec. 1, par. XI. Sce also Georgia Code, Annotated, sec. 2-3011.

054377-63-2Z;

337

section 241(b) of the Immigration and Nationality Act.' We were
of the opinion that such pardons are "executive" pardons and, therefore, comply with the express intention of Congress.
The respondent herein was convicted at Munich, Bavaria, Germany, in January of 1949. Following the unconditional surrender
of the German High Command on May 7 and 8, 1945; the United
States, by formal declaration on June 5, 1945, assumed supreme authority over that portion of Germany which includes Munich. During the period June 5, 1945, until the effective date of the Occupation
Statute, September 21, 1949, the supreme authority in the United
,States Zone of Occupation was exercised by the Military Governor
and Commander-in-Chief of the United States Zone of Germany.'
Upon termination of the Military Government of the United States
Zone of Germany the supreme authority of the United States Zone
was vested in the United States High Commissioner for Germany by
Executive Order No. 10062, dated June 6, 1949. (See Federal Register, Vol. 14, No. 108, at p. 2965, June 7, 1949.) Executive Order
No. 10062 proclaims, inter alia, "The United States High Commis-

sioner for Germany . . . shall be the supreme United States authority
in Germany." The Charter of the Allied High Commission for
Germany provides in Chapter V, par. 2 (g), inter alia, that the United
States High Commissioner "shall be responsible to his government
.. (for) . . . control of the care and treatment in German prisons
of persons charged before or sentenced by the courts or tribunals
of the occupation authorities (Military Government), over the
carrying out of sentences imposed on them and over questions of
amnesty, pardons or release in relation to them." 5
Pursuant to the aforestated authority, the former High Commissioner for Germany, on January. 6, 1955, proclaimed a general
amnesty and pardon for all persons convicted prior to January 1,
1950, of offenses other than "war crimes" in a United States Military Government Court for Germany, provided the sentence imposed
for such offense consisted of a term of imprisonment not exceeding
six months or -a fine not exceeding 1,000 Deutsche marks. The respondent's conviction comes within this proclamation of the United
States High Commissioner for Germany.
4 Matter of T—, E-050477, 6-214, E.T.A., July 19, 1954 (unconditional pardon
granted by the Governor of Hawaii) ; Matter of D—, 7-476, B.I.A., May 28,
1957 (unconditional pardon granted by the Georgia Board of Pardons) ; Matter
of C—R--, 8-59, B.I.A., June 25, 195 (unconditional pardon granted by the
Mayor of Scottsbluff, Nebraska, in the case of a conviction under a city ordinance
of his mivaicipality).
See, ,History of the Allied High Commission for Germany, Chapter 1, ResearclA3 roJect No. 107—December 1950—published by the Historical Division,
Otnue of the Executive Secretary, U.S. High Commissioner for Germany, 1951.
TOxt of the Charter of the Allied High Commission for Germany is found in
Pp. 108 through 116.
338

We conclude, therefore, that Executive Order No. 10062 and the
Charter of the Allied High Commission for Germany 6 designates
the United States High Commissioner for Germany as the supreme
pardoning authority for convictions and sentences imposed by the
United States Military District Court for the Eighth Judicial District while that court was under the control of the Military Government of the United States for Germany. The amnesty here under
consideration is an unconditional executive pardon within the meaning of section 241 (b) of the Immigration and Nationality Act. Upon
reconsideration we find that the respondent is not deportable under
section 241(a) (1) of the Immigration and Nationality Act (8 U.S.C.
1251(a) (1) ), as an alien excludable at the time of entry under
section 3 of the Act of February 5, 1917 (now 8 U.S.C. 1182(a) (9)).
An appropriate order terminating the proceedings will be entered.
ORDER: It is ordered that the warrant and order of deportation
dated September 10, 1954, be and the same are hereby withdrawn.
Proceedings under the warrant of arrest dated March 23, 1953, are
hereby terminated.
Executed by representatives of the United States Government at Paris,
France, on June 16, 1949.

339


Interim Decision #2631

MATTER OF LOK
In Deportation Proceedings
A-31327663

Decided by Board January 13, 1978
(1) A waiver of inadmissibility under section 212(c) of the Immigration and Nationality

Act, 8 U. S. C. 1182(c), may be granted in deportation proceedings in connection with an
application for adjustment of status.
(2) When United States Court of Appeals for the Second Circuit overruled conclusion of
the Board of Immigration Appeals that a respondent is statutorily ineligible for section
212(e) relief if he does not have a lawful unrelinquished domicile of seven consecutive
years following a lawful admission for permanent residence, and held that it was
possible for an alien to possess a "lawful domicile" without having been admitted for
permanent residence, the Board remanded for an administrative determinatiom
whether respondent's "domicile" prior to his admission as a permanent resident was
lawful. (But see Matter of Anwo, Interim Decision 2604 (BIA 1977), for cases arising
outside Second Circuit.)
CHARGE:
Order: Act of 1952—Section 241(a)(11), I. & N. Act, [8 U.S.C. 1251(a)(11)1—Convicted
of conspiracy for violation of narcotics laws; possession of narcotics with intent to distribute heroin. U.S. Code Title 21, sections
812, 841(a)(1), 841(b)(1)(A); Title 18, U.S. Code section 2
ON BEHALF OF RESPONDENT: Max K. Schlem, Esquire
223 Broadway
New York, New York 10007

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

In a decision dated May 29, 1975, the immigration judge found th_e
respondent deportable under section 241(a)(11) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(11), denied his application for a
waiver of inadmissibility under section 212(c) of the Act, 8 U.S.G.
1182(c), and ordered his deportation. The respondent appealed from that
decision. In our order dated July 30, 1976, Matter of Lok, Interim
Decision 2509 (BIA 1976), we dismissed respondent's appeal. The respondent appealed our decision to the United States Court of Appeals

for the Second Circuit. In a decision issued on January 4, 1977, Laic "r.
548 F.2d 37 (2 Cir. 197'7), the United States Court of Appeals
granted the respondent's petition for review and remanded the case to

441

Interim Decision #2631
this Board for proceedings not inconsistent with the opinion of the court.
The record contains a letter dated May 31, 1977, and issued by the
United States Attorney for the Southern District of New York to the
District Director of the New York Office of the Immigration and Naturalization Service. In that letter, the District Director was informed
that the Solicitor General refused to authorize the Service to petition
the Supreme Court of the United States for a writ of certiorari; and that
the decision of the Court of Appeals dated January 4, 1977, was the final
decision in this case. The record will be remanded to the immigration
judge.
In our initial decision, Matter of Lok, supra, we determined that the
only issue raised on appeal involved respondent's application for a
waiver of inadmissibility under section 212(c) 1 of the Act. We concluded
that a waiver under this section may be granted in deportation proceedings in connection with an application for adjustment of status. Matter of
Smith, 11 I. & N. Dec. 325 (BIA 1965). However, we also concluded that
the seven-year period of domicile in the United States must have followed
the respondent's lawful admission for permanent residence. Matter of
S —, 5L & N. Dec. 116 (BIA 1953). We held that since the respondent was
not admitted as a. lawful permanent resident . until 1971, he did not have
the requisite seven years and therefore was statutorily ineligible for
section 212(c) relief.
In Lok v. INS, supra, the Court of Appeals for the Second Circuit
overruled our decision in the instant case and rejected our interpretation of the statutory phrase "lawful unrelinquished domicile" as set forth
hiMatter of S—, supra. The court expressed the opinion that the phrase
"lawfully admitted for permanent residence" does not bear the same
meaning as the words "lawful unrelinquished domicile." The court concluded that was in fact possible for an alien to possess a "lawful domicile"
in the United States without having been admitted for permanent
residence. 2 Accordingly, the court remanded this case to us for
. . consideration of Tim Lok's application for discretionary waiver of
exclusion unencumbered by the erroneous decision in Matter of S—." In
so' holding the court concluded that ". . . the only remaining objection
would seem to be that his domicile prior to admission as a permanent
resident was not lawful." In this regard the court was of the view that a
Section 212(c) provides in pertinent part:
_Aliens lawfully admitted for permanent residence who temporarily proceeded abroad
voluntarily and not under an order of deportation, and who are returning to a lawful
-unrelinquished domicile of seven consecutive years, may be admitted in the discretion
of the Attorney General without regard to the provisions of paragraph (1) through (25)
and paragraphs (30) and (31) of subsection (a). (Emphasis supplied.)
2 We note that we have declined to adopt the holding of the Court of Appeals for the
S econd Circuit inLok v_ INS, supra, in the ca cec arising outside of the Second Circuit See
44Tatter of Anwo, Interim Decision 2604 (BIA 1977).

442

interim Decision #ztisi
determination must be made as to respondent's contentions that the
Service's failure to enforce a 1965 order of deportation "legalized" his
stay in the United States a_nd, alternatively, that the respondent's
marriage to a United States citizen on February 23, 1968, should be
considered the beginning of seven years of "lawful" domicile.
In light of the aforementioned court decision, we shall remand this
case to the immigration judge for appropriate action in accordance with
the order of the court. The immigration judge shall enter a new decision
and certify this case to us for review.
ORDER: The record is remanded to the immigration judge for the

purpose of reopening the proceedings and for the entry of a new deci 7
sion.

Board Member Mary P. Maguire abstained from consideration of this
case.

443


Interim Decision #2158

MATTER OF KWAN

In Visa Petition Proceedings
A-17113672
Decided by Board July 13, 1972
As the validity of many claimed Chinese adoptions must be determined
without benefit of a recorded formal adoption decree, resort must be had to
other forms of probative evidence. Affidavits, photographs, letters, evidence of
support, of residence, and other relevant documents should be submitted.
Photographs should be positively identified and verified under oath. Petitioner
should make clear what prior familial realtionship, if any, existed between the
parties to the claimed adoption. Petitioner should submit (or satisfactorily
explain the absence of) affidavits executed by (1) both adoptive parents, (2)
witnesses to the adoption ceremony, and (3) relatives and neighbors. Affidavits submitted should (1) state the nature of the affiant's relationship, if any,
to the parties; (2) set forth the basis of affiant's knowledge; and (3) contain a
statement of the facts affiant knows regarding the adoption, rather than mere
conclusory statements as to the existence of the adoption. Information in an
affidavit should not be disregarded simply because it appears to be hearsay; in
administrative proceedings, that fact merely affects the weight to be afforded
it. Additionally, there is an exception to the hearsay rule relative to statements as to pedigree and family history made by relatives or members of the
same community.
ON BEHALF OF PETITIONER: Pro se

The United States citizen petitioner applied for preference
status for the beneficiary as her adopted daughter under section
203(aX1) of the Immigration and Nationality Act. The District
Director approved the petition on January 2, 1971. However, his
initial approval was revoked on August 9, 1971, on the basis of this

Board's decision in Matter of Yiu, Interim Decision No. 2061 (BIA,
1970). The petitioner appeals from the revocation. The appeal will
be sustained, but the case will be remanded.
The beneficiary is a female who was born in China on December
5, 1946. The file contains a written agreement of adoption dated
August 20, 1949, as well as other supporting affidavits.
The District Director's revocation of his initial approval was

prompted by a letter from the United States consulate in Hong
Kong calling the District Director's attention to this Board's

175

Interim Decision #2158
decision in the Yiu case, which was rendered on November 19,
1970. The letter requested reconsideration and possible revocation
on the basis of the Yiu decision.
The District Director's reliance upon the Yiu decision as authority for revoking his initial approval of the petitioner's application
was misplaced. Inasmuch as the adoption in question evidently
took place in 1949, it would be governed by the adoption provisions
of the Civil Code of the Nationalist Republic of China. These
provisions went into effect on May 5, 1931 and remained in effect
until the Communist takeover in 1950. The law applicable to the
Yiu case, on the other hand, was the Ching Code, which ceased to
have effect in mainland China upon being superseded by the 1931
adoption law.
In any event, the Yiu case no longer serves as a precedent
decision. Subsequent to the District Director's decision to revoke
the initial approval of the petitioner's application, this Board had

occasion to reconsider the principles enunciated in the Yiu case.
As a result, in our recent precedent decision in Matter of Ng,
Interim Decision No. 2147 (BIA, April 28, 1972), we expressly
overruled our earlier holding in the Yiu case.
In addition, in Matter of Kwok, Interim Decision No. 2145 (BIA,
April 25, 1972), we rejected the Service's argument that Chinese
adoptions, even though valid under the law of the place where the
adoption status was created, nevertheless do not constitute "adoptions" for immigration purposes if not created as a result of a
"juridical act."
Even though the legal impediments to the recognition of
Chinese adoptions in general, and the adoption of females in
particular, have been removed, each petition based upon an adoptive relationship still must be considered from the factual point of

view. In visa petition proceedings the burden of proof to establish
eligibility for the benefit sought under the immigration laws rests
with the petitioner, Matter of Brantigan, 11 I.& N. Dec. 493 (BIA,
1966). An application for preference classification must be accompanied by evidence of family relationship, 8 CFR 204.2(cX1).
Inasmuch as most Chinese adoption cases must be decided

without benefit of a recorded formal decree of adoption, it is
permissible to resort to other forms of probative evidence in order
to reach a decision as to the validity of the adoption.
For instance, it would be proper for the petitioner to submit

affidavits executed by (1) both adoptive parents, (2) witnesses to
the adoption ceremony, and (3) relatives and neighbors. The
absence of such affidavits is a factor the petitioner must satisfactorily explain. Affidavits submitted should (1) state the nature of
the affiant's relationship, if any, to the parties, (2) set forth the
176

Interim Decision #2158

oasis of the affiant's knowledge, and (3) contain a statement of the
'ads the affiant knows regarding the adoption, rather than mere
:onclusory statements as to the existence of the adoption. Information contained in an affidavit should not be disregarded simply
)ecause it appears to be hearsay. In administrative proceedings
hat fact merely affects the weight to be afforded such evidence,
lot its admissibility. It should also be noted that there is an
exception to the hearsay rule on behalf of statements as to pedigree
ind family history made by (1) relatives or (2) members of the same
:ommunity.
In the present case the petitioner has based her entire claim
zpon a written adoption agreement and the affidavits of herself,
;he beneficiary and two fellow villagers. These affidavits fail to
nention the basis of knowledge of the latter two persons or their
•elationship to thb parties. All four affidavits fail to recite the
'actual details surrounding the claimed adoption. Hence, we are

mable to consider them sufficient corroboration for the written
agreement of adoption.
It is well known that the Chinese possess particularly strong
'wilily ties and sentiments. Hence, we believe that it would be
seasonable to expect in most cases where a genuine adoption has
,aken place that the persons involved would have taken numerous
'vainly photographs over the years. This might not be true, of
,nurse, in the case of persons living in remote areas with limited
recess to photographic facilities or equipment. Such pictures
;hould be positively identified, verified under oath and submitted
with the application. In the present case none have been submited, despite the fact that the adoption purportedly took place back
n 1949_ The unavailability of such pictures is a factor that should
ie explained to the satisfaction of the District Director.
Frequently, as in the present case, it is claimed that an adoption
,00k place while the adoptive father was not present. It was held,
n Matter of Y—K—W—, 9 I. & N. Dec. 176 (A.G., 1961), that the tworear legal custody and residence requirement contained in section
.01(bX1XE) of the Immigration and Nationality Act may be satisled when custody and residence have been with only one of the

adoptive parents. However, there must be sufficient evidence in
he record from which the District Director could conclude that
he custody and residence requirements have been met on the
mrt of at least one of the parents. In the present case all that
ve are able to glean from an examination of the file is the fact
hat the petitioner's spouse left China in 1933 and went to the
'hilippines, where he presently resides. There is no information as
o when the petitioner and the beneficiary left China and made
heir way to Hong Kong. No evidence as to the residences of the
177

Interim Decision #2158
parties has been presented. We must conclude, therefore, that the
present record is insufficient to show compliance with the residence and custody requirements of section 101(b)(1XE).
In cases such as the present one, involving adoptions claimed to
have occurred in mainland China under the Nationalists, the
adoption provisions of the Civil Code of the Republic of China must
be taken into account.
Two sections of the Civil Code may be relevant to this case. First,
Article 1074 of the Code required that when a married person
adopted a child, he secured the consent of his spouse. See Matter of
Jue, 12 I. & N. Dec. 296 (B IA, 1967). Second, Article 1080 provided
for termination of an adoption by mutual consent. See Matter of
Lee, Interim Decision No. 2098 (BIA, 1972).
In the present case, the file before us contains no solid probative
evidence that the petitioner's spouse consented to an adoption.
Indeed, it is noteworthy that there is nothing at all from him, even

though he is presumably alive in the Philippines. The absence of
an affidavit from him has not been satisfactorily explained. We
also note the absence of any letters from him, or evidence that he
contributed to the support of the beneficiary. As a result, we are
not prepared to find that the petitioner has demonstrated compliance with the requirements of Article 1074 of the Civil Code, and
we cannot rule out the possibility that the adoption was terminated by mutual consent pursuant to Article 1080 of the Civil
Code.
In any Chinese adoption case the petitioner should make clear
what prior familial realtionship, if any, existed between the parties
to the claimed adoption. In Matter of Yuen, Interim Decision No.
2120 (BIA, 1972), we said that such factors as an uncle-nephew
relationship, or that the alleged adopted child continued to remain

with his natural parents instead of coming under the parental
control of the alleged adoptive parent cast doubt upon the bona
fides of the adoption. When such factors are present, the doubt
raised must be explained away by means of sufficient evidence.
In the present case it was not disclosed until the notice of appeal
was filed that the petitioner is the aunt of the beneficiary. That
fact was never before the District Director for his consideration.
The doubt raised as to the bona fides of the adoption has not been
eliminated.

In sum, a number of questions have been raised which have not
been fully explored or satisfactorily explained. We feel that further
development of the issues present in this case is essential before
any determination can be made by us. Even though we shall
sustain the appeal on the ground that the revocation was not
correct for the reason given, we are unable to reinstate the

178

Interim Decision #2158
approval of the petition initially granted by the District 'Director.
The case will be remanded and the following order will accordingly
be entered.
ORDER: The appeal is sustained, but the case is remanded to
the District Director for further proceedings consistent with the
foregoing opinion.

179


MATTER OF P—
In DEPORTATION Proceedings
A-12027375

Decided by Board January 31, and August 1, 1961
Deportability—Crewman found ashore after refusal of landing privileges.

"Entry without inspection" charge held inapplicable to alien crewman who
goes ashore without permission after being inspected and refused landing
privileges. Deportabillty sustained under sections 241(a) (2) and 252(a) of
Immigration and Nationality Act on finding that respondent is in the United
States in violation of law.

CHARGES:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)1—Entry without inspection.
Lodged: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)]—In the
United States in violation of law; section 252 (a) and section
264(a) [8 U.S.C. 1282(a) and 1284(a)], entered after refusal of
permission to land.

BEFORE THE BOARD

(January 31, 1961)
DISCUSSION: This case comes forward on appeal from the order
of the special inquiry officer dated August 25, 1960, denying the
application for voluntary departure in lieu of deportation and directing deportation on the charge stated in the order to show cause.
The respondent is a native and citizen of Italy, 26 years old,

male, who last arrived at the port of Baltimore, Maryland, on April
18, 1958, as a member of the crew of the SS. Trangglobe. He testified that he was inspected upon arrival by two officers, one of
whom he thought was a public health officer and by another man who
asked him if it was his first sailing and if it was the first time he
touched in America. However, he denied that he was told anything one way or the other with respect to whether he was granted
permission to go ashore. He testified that this was his first trip

as a seaman, that he had been permitted to go ashore in Brazil
without any documents and that he was not aware of the necessity
of having a landing permit in order to go ashore.
However, the respondent acknowledged that he asked an officer of
the ship whether he could go ashore for two or three days and was
368

told that he was required to obtain permission from the immigration
authorities. Somewhat inconsistently, he stated that he thought he
required no permission to go ashore just for the day in order to
obtain a beer. The respondent's story that he went ashore for the
purpose of obtaining a beer does not appear to be supported by his
actions subsequent to going ashore. The record contains evidence
that the respondent was inspected and was refused permission to go
ashore. In view of the fact that the respondent appears to have
undergone inspection, it is believed that the charge contained in
the order to show cause is not sustained.'
There is no doubt, however, that the respondent is unlawfully in
the United States. The case will be remanded for the purpose of
lodging an appropriate deportation charge and for such other action
as may appear proper' Counsel has taken objection to the questioning of the respondent by the special inquiry officer, but we believe
it is clear that this was done merely for the purpose of clarification
and not, as counsel alleges, for the purpose of prosecution.
ORDER: It is ordered that the order entered by the special inquiry officer that the alien be deported from the United States be
withdrawn and that the case be remanded for the purpose of lodging
the appropriate deportation charge against the alien and for such
further action as is necessary to dispose of the case.
BEFORE THE BOARD

(August 1, 1961)
DISCUSSION: This case comes forward to the Board on certification. On January 31, 1961, the case was before us on appeal. The
issue then was whether the charge in the order to show cause was
sustained by the record. We decided negatively. The case was remanded to have an appropriate charge lodged, and for further consideration. The Service, after further hearing, has lodged a charge
under the provisions of section 241(a) (2) of the Immigration and
Nationality Act, in that the respondent is in the United States in
violation of law, having arrived as a crewman and entered the
United States without permission to land pursuant to sections 252(a)
and 254(a), Immigration and Nationality Act. The lodged charge
has been sustained.
Counsel for the respondent does not except to the validity of the
lodged charge. Nor does he contest the finding of deportability.
' Sec Matfcr

The respondent was inspected upon arrival and found not to be a nonimmigrant alien ereWnian. He claimed no other nonimmigrant status. Every
alien is an immigrant unless he qualifies as a nonimmigrant (8 UlS.C. 1101
(a) (15)). All immigrants must present immigration visas (certain exceptions
are not applicable here). Admittedly, the respondent did not have an immigrant visa.
654877-63

369
'25

He concedes that the alien is in the United States without lawful
immigration status. He has added that the respondent was not told
he was detained on board the vessel on which he arrived and did not
know the precise law he violated by effecting entry.
Service counsel has explained that the charge we suggested in our
decision of January 31, 1961, could be lodged (no immigrant visa at

entry) was not lodged by the Service because the procedure and the
terminology therein was less understandable to the respondent than
the language contained in the charge which has been lodged in the
proceedings The examining officer has submitted a brief in support
of the special inquiry officer's decision.
The respondent, a native and citizen of Italy, age 26, male, last
arrived in the United States at Baltimore, Maryland, on April 18,

1958, as a crewman on the SS. Transglobe. Upon arrival he was
"examined" (inspected) by two men (immigration officers). He was
not given a landing permit nor was he informed, Recording to his
testimony, that he could not go ashore while the vessel was in port.
He had only 40 days' experience as a seaman. It is alleged by
the alien that he did not realize that a landing permit was required
at a port of this country in order to go ashore. Service records
show that the respondent was examined by Service officers on
April 18, 1958, at Baltimore, Maryland, and refused permission to
enter for shore leave. The alien's testimony is unclear as to the

procedure he followed, after he was examined by immigration
officers, to leave the vessel. In all events, we know he went ashore
without permission in violation of immigration laws and regulations
for the enforcement thereof (sections 252 and 254, Immigration and
Nationality Act). It is conceded that he is now within the United
States without lawful immigration status (section 241(a) (2), Immigration and Nationality Act).
It is our opinion that the charge lodged in the hearing is proper
as a matter of law. The special inquiry officer's conclusion is that
the evidence supports the charge, and we concur in that finding.
In fact, the alien has made no defense to the charge of deportability.
He contends, however, that he did not knowingly and intentionally
violate the law when he entered the United States, alleging that
he did not know permission to land had been refused. The alien's
failure to produce affirmative evidence of any character that he was
authorized to land, his failure to rebut the Government's evidence
that lie was refused shore leave, and the fact that he has not clearly
explained the manner in which he left the vessel is sufficient evidence, in our opinion, that he did not enter the United States as a
bona fide seaman. The reason shore leave was refused is immaterial

here since the granting thereof is a matter for determination by the
officer who inspected this alien at time of arrival. Saveli8 v. Vlach.os,
370

248 F.2d 729 (C.A. 4, 1957). There appears to be no issue of law
or evidence relating to deportability that requires further discussion.
Deportability is sustained by reasonable, substantial and probative
evidence.
With respect to the application for relief, the special inquiry
officer has found the respondent statutorily eligible for voluntary
departure and has denied relief as a matter of administrative discretion. Counsel pleads that relief be granted because the respondent is married to a legally resident alien who is ill and requires
surgery ; also, because the alien is entitled to third preference quota
visa status.
We have reviewed the pertinent evidence and the decision to determine if there has been abuse of discretion. The respondent is
age 26. He has been in the United States about three years. At
the time of arrival, and illegal entry, he had been a crewman for a
period of only 40 days. He left the vessel and remained here in
viobi t nn of law. He was married to a legally resident alien spouse
on May 8, 1958, by civil ceremony, and in October 1958 by religious
ceremony. The record shows that the spouse is ill and will require
surgery, but that she is presently able to work as a part-time sewing machine operator. Although the respondent has no criminal
record, and his behavior and conduct during the period he has been
in the United States are good, the special inquiry, officer finds
that some of his testimony lacks credibility. The speeial inquiry
officer has properly recognized and considered the equities. Since
we find no errors and no abuse of discretion, the special inquiry
officer's decision, which under the factual situation and the pertinent
regulations is final, will be affirmed.
ORDER: It is ordered that the decision of the special inquiry
officer be affirmed.

371


Interim Decision #2798

MATTER OF A_DALATKHAH

In Deportation Proceedings
A-21096715
Decided by Board June 12, 1980
Alien married to a United States citizen, but not living with his spouse, is nevertheless
an "immediate relative" within the exception to section 245(c)(2) of the Immigration
and Nationality Act, 8 U.S.C. 1255(c)(2); and is not prohibited from filing an application for adjustment of status despite unauthorized employment after January I, 1977.
CHARGE

Order. Act of 1902—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor —

remained longer than authorized
ON BEHALF OF SERVICE

ON BEHALF OF RESPONDENT:

Timothy J. O'Leary
Trial Attorney

Jan M. Pederson. Esquire
Cramer, Visser, Lipsen & Smith
475 L'Enfant Plaza, S.W.
Suite 4100
Washington, D.C. 20024
BY:

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

On January 24, 1980, the immigration judge found the respondent
deportable as charged and granted his application for adjustment of
status pursuant to section 245 of the Immigration and Nationality Act,
8 U.S.C. 1255. The Service has appealed. The appeal will be dismissed.

The respondent is a native and citizen of Iran who entered the
United States at New York, New York, on March 15, 1971, as a nonimmigrant student authorized to remain until March 1, 1975. At a
deportation hearing on October 21, 1977, he conceded deportability as
charged for having remained in the United States longer than
authorized as defined under section 241(a)(2) of the Act, 8 U.S.C.
1251(a)(2) (Tr. p. 1). We find that deportability has been established by
clear, convincing, and unequivocal evidence as required by Woodby v.
INS, 385 U.S. 276 (1966), and 8 C.F.R. 242.1(a).
The only issue on appeal is the respondent's eligibility for adjustment of status. The Immigration. and Naturalization Service contends

that the respondent is precluded from adjustment of status by section
404

Interim Decision #2798
245(c)(2) of the Act, that excludes from adjustment aliens who engage
in unauthorized employment after January 1, 1977, unless they are
immediate relatives of United States citizens as defined under section
201(b) of the Act, 8 U.S.C. 1151(b). The respondent has been married to
a United States citizen since. February 21, 1975 (Tr. p. 3). The couple
separated 3 months later, but resided together for brief intervals
thereafter until July 1977, when she left him without coming back (Tr.
pp. 4-7). There is no evidence that she divorced him or otherwise
terminated their marriage.
On appeal, the Service contends that the respondent cannot be
considered an "immediate relative" exempt from the section 245(c)(2)
adjustment preclusion because he has not had a viable marriage since
1977. It contends that Congress did not intend to exempt from the
245(c)(2) preclusion adjustment applicants who are "technically immediate relatives but who, in fact, have no existing family unit which
needs extraordinary protection." The Service cites no supporting authority for its assertion regarding congressional intent
The preclusion provision in section 34b(c)(2) was part of the 1976
Amendments to the Act. P.L. 94-571, 90 Stat. 2703. The discussion of
the legislative intent behind the adjustment preclusion for aliens who
wurk without authorization does not evince a congressional intent to
also preclude from adjustment aliens who are merely "technically
immediate relatives," as the Service contends. It merely states that
"aliens who are not defined as immediate relatives and who accept
unauthorized employment prior to filing their adjustment application
would be ineligible." H. Rep. No. 94-1553, 94th Cong. 2d Sess. 12,
reprinted in 1976 U.S. Code Cong. and Ad. News 6084.
The issue of separation and marriage viability in an adjustment of
status application has previously been addressed by the courts and this
Board in the context of spousal visa petitions underlying the application. In Dabaghian v. Civ'iletti, 607 F.2d 868 (9 Cir. 1979), the Court
concluded that marriage nonviability would not affect eligibility for
adjustment of status as the beneficiary of an immediate relative visa
petition unless the marriage was a sham or fraudulent Id. at 871.
However, in Menezes v. INS, 601 F.2d 1028 (9 Cir. 1979), the Court
concluded that marriage nonviability and separations could be negative factors warranting the denial of an adjustment application as a
matter of discretion. In Chan v. Bell, 464 F. Supp. 125 (D.D.C. 1978), the
court also concluded that absent evidence that a marriage was a sham
in its inception or entered into for the purpose of evading the immigration laws, the Service could not deny a spousal visa petition merely
because the parties were no longer together. Finally, in Matter of
McKee, Interim Decision 2782 (BIA 1980), we adopted the position of
the Dabaghian and Chan opinions and concluded that separation of the
4(15

Interim Decision #2798
parties to a marriage in and of itself was no longer a valid basis for
denial of a visa petition, as it was merely a relevant factor in ascertaining the parties' intent at the time of the marriage.
On the issue of adjustment preclusion pursuant to section 245(c)(2),
we reach a similar conclusion. It is clear that the congressional intent
refers exclusively to meeting the definition of "immediate relative" in
the statute. There is no evidence of fraud in the respondent's marriage.
In addition to being eligible for adjustment of status, there is also no

important reason to deny the application in the exercise of discretion.
See Matter of Arai, 13 'SW Dec. 494 (BIA 1970).
After carefully considering the Service's argument, we do not find a
legal basis to extend the preclusion provision of section 245(c)(2) to
immediate relative spouses whose marriages are nonviable. Such an
extension is unwarranted by congressional intent and runs counter to
the recent interpretations by the courts and this Board of who can be
classified as an immediate relative. Therefore, the appeal will be
dismissed.
ORDER. The appeal i3 dismissed.

406


MATTKR of G—

In DEPORTATION Proceedings
A-10928946
Decided by Board February 19,1969
Communist Party—Voluntariness of membership—Willfulness of misrepresentation not overcome by respondent's claim that although a member of the
Communist Party, he was not a communist.
(1) Voluntary and meaningful membership is established by respondent's testimony that he joined :he Communist Party of Hungary in 1948 to secure
preference in obtaining material for his father's plumbing supply store;
that he continued his membership in the party for six years after the nationalization of his father's business in 1950 because he could earn more
money in that manner; and that he -vas a member of a "Committee of Five"
within the Communist Party, and later secretary of that committee.
(2) Respondent's claim that his failure to reveal his Communist Party membership was not willful because while a member of the party ne was taeologically not a communist and, therefore, truthfully answered the visa-issuing officer's question as to whether he was a communist, as distinguished
from a member of the party, is untenable and does not overcome the presumption of official regularity surrounding the issuance of the visa.
CHARGES :

Order: Act of 1952—Section 241(a) (1) [8 II.S.C. 1251(a) (1)1—Excludable
aL Lime of entry — Alien who had been a member of the Communist Party of a foreign state.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at time of entry—Visa procured by fraud.
BEFORE THE BOARD

DISCUSSION: On October 24, 1961, this Board withdrew the outstanding order of deportation and reopened proceedings fur further
consideration by the special inquiry officer in accordance with Matter
of S— and B—C---, 9 136. At that time we directed that the decision of the special inquiry officer upon the reopened proceeding be

certified to this Board. On January 3, 1962, the special inquiry
officer, following a hearing held on November 30, 1961, found that
both charges contained in the order to show cause were sustained;
concluded that the respondent was deportable therefor, but granted
him the discretionary relief of voluntary departure.
570

The respondent is a 36-year old married male, a native and last
a citizen of Hungary. On December 7, 1956, he was admitted to the
United States for permanent residence upon presentation of an immigrant visa which was issued to him at the American Embassy in
Vienna, Austria, on December 3, 1956. Other facts concerning the
respondent's background and activities heretofore have been fully
covered in two separate opinions of the special inquiry officer. They
need not be completely restated at this time.

The respondent, through his attorney, has submitted a brief in
opposition to the decision of the special inquiry officer, which brief
indicates that there are two points at issue in these proceedings The
first point argued by counsel for the respondent is that it is error to
find that the respondent's membership in the Communist Party in
Hungary was meaningful. Counsel's second point is that the evidence in the record does not support a finding that the respondent
willfully concealed his membership in the Communist Party at the
time he applied for and secured an immigrant visa and that such concealment cut off pertinent inquiries into the question of his admissibility. We shall consider these points seriatum.
It is counsel's contention that the Government has furnished no
proof regarding the nature and character of the respondent's membership in the Communist Party, apart from his own testimony.
Assuming arguendo that this is true, it is then necessary for us to
examine respondent's testimony regarding the nature of his membership. The record indicates, and the respondent by his own testimony admits, that he was a member of the Communist Party for
almost 8 years prior to his departure from Hungary in November
1956. Furthermore, and this is indicated on page 18 of the transcript
of the hearing accorded him on May 19, 1959, he never did actually
resign his membership in the Communist Party. The respondent's
testimony is to the effect that he join the Communist Party in
order to assist his father, who was a licensed plumbing supply

dealer, in getting material for his father's store. Respondent's testimony further shows that the father's store became nationalized in
1950. In answer to an inquiry regarding his continuation in the
Communist Party upon and after the nationalization of his father's
store, the respondent testified that he continued in the Communist
Party in order to obtain factory employment rather than work in the
mines He further stated that at that time he could have worked
elsewhere than at the General Machine Industry Supply Co., where
he obtained employment with the assistance of the Communist Party
(pp. 13, 15 and '21 of the hearing May 19, 1959).
The further testimony of the respondent is to the effect that he
became an active participant of the Communist Party, was appointed
a member of the "Committee of Five," and thereafter was elected

571

secretary of the "Committee of Five." As a result of holding these
offices he was paid a greater salary than he would have received
otherwise. His testimony further indicates that approximately 60
per cent of the employees of the plant where he worked were not
members of the Communist Party. Two points relative to the first
charge can be extracted from the respondent's own testimony. The
first point is that the respondent joined the Communist party to assist his father who was not under any personal economic duress at
the time he joined. The second point which can be drawn from the
respondent's testimony is that his continued membership in the Communist Party for some 6 years after the nationalization of his father's
shop was the result of his confessed desire to earn more money.
Nowhere in this record is it shown that the respondent's failure to
join the Communist Party would result in his being deprived of any
of the necessities of life. Accordingly, we conclude that the respondent's membership was indeed the meaningful membership as contemplated by the -Immigration and Nationality Act of 1952.
We proceed now to LhO second point of the respondent's argument.
It is the respondent's position, and he and his brother have so testified, that he was not specifically asked by the visa-issuing officer if
he were ever a member of the Communist Party. He testified that
at the time of his application for an immigrant visa he was asked

if he

were a communist. Claiming that ideologically never was a

communist, despite his membership in the Communist Party, the
respondent justified his negative answer to the consul. He, therefore,
draws a thin line between a communist and a member of the Communist Party. This is done despite his extended active participation
in the Communist Party, together with the concomitant benefits
which he enjoyed as a result of the membership. However, this
attempted distinction loses some of its import upon a study of his
testimony and the variation in his statements in the hearing conducted on May 19, 1959, and the hearing conducted on November 30,
1961. In the earlier hearing, on page 28, the respondent, in answer
to a question put to him by the examining officer, states that he
doesn't remember if he were asked at the time he was applying for an
immigrant visa to state all the organizations to which he belonged.

This bit of testimony, coupled with the admitted misrepresentations
made by him at Camp Kilmer that he was never a member of the
Communist Party, compares most interestingly with his testimony

at

the bottom of page R-3 and continuing to page R.-4 at the November 30, 1961 hearing. The latter testimony would indicate that the
respondent's memory improves with age, for in the above-cited pages
he manifests a clear, precise and detailed knowledge of exactly what
took place at the time he applied for an immigrant visa. He gives
572

examples of the questions he was asked, among which ho states was,
". . . was I ever a Communist?" The testimony of the respondent in

this posture continues, and on page R-22 of the reopened hearing the
following is another aspect of his position:
Q. The question which I asked you, and I would appreciate your answering.
Did you know in November of 1956 that those Hungarians who had escaped
from Hungary to Austria and who were applying for visas who had been
members of tne Hungarian Communist Fatty had difficulty in obtaining visas
to enter the United States as Hungarian refugees?
A. Yes. I did have such ideas. 1 wasn't sure that this was so, but I had a
suspicion that it might be so.
Q. Were you aware at that time that other Hungarians who had disclosed
their membership in the Communist Party had been rejected or delayed in
obtaining immigrant visas to come to the United States?
A. No sir, I was not aware of that. I didn't hear anything about this
Oet"cittse itrt J pcnt only about a week

in

V C71?1-CI

on ten days_

[Emphasis sup-

plied.]

The respondent does not deny that his signature appears on the
application for an immigrant visa. HP does not deny that this was

executed by him before the Consular Officer at Vienna, Austria.
He does not deny that he was sworn by the Consular Officer. Under
22 C.F.R. 42.117 (b) of the Department of State regulations, it is required that a visa applicant read the application for an immigrant
visa when it is completed, or that it shall be read to him in his
language, or that he shall be otherwise informed as to the complete
contents of the application. This rogulation raises a presumption

that the respondent was aware of the full contents of the visa as a
matter of official regularity. The testimony of the respondent and
the witness taken as a whole is not sufficient to rebut this presumption.
From all of the above, it appears without a doubt that the respondent's misrepresentation was indeed material. We have discussed at some length the question of its willfulness; and in consideration of the entire record, and bearing in mind the inconsistencies
and admitted misrepresentations of the respondent, we find the explanation as to lack of willfulness to be incredible. Furthermore,
we must rely upon the presumption of official regularity, and in
so doing we cannot conceive an employee of the Embassy at Vienna
failing to ask the respondent if he had ever been a member of the
Communist Party. It is our further belief that under the peculiar
circumstances in this case the respondent's journey into the field of
semantics with the resultant attempt to distinguish between a communist and a member of the Communist Party is totally untenable.
We, therefore, find that the second charge is sustained.
To summarize, it is our conclusion that the respondent voluntarily
and without duress joined the Communist Party in Hungary in 1948
573

and continued as a member after 1950 until the time he applied for
his visa. His willfulness in withholding this membership from the
authorities at the American Embassy in Vienna is established on this
record. Accordingly, the following order will be entered.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

574


Interim Decision #2517

MATTER OF LD3ORD

In Deportation Proceedings
A-20413.943
Decided by Board Augiist 17, 1976
(1) The "60-day rule" agreement between irgin Islands employers and the Immigration ,
andNturlizoSevcwhprids.tafolwngemi ploynt,
an H-2 worker may have up to 60 days to obtain authorization for otheremploymentin
the Islands or depart from the United States, has no bearing on the date to which the
alien is authorized to remain in the United States. The date shown on the documents
governs.
(2) Where respondent was admitted as an 11-2 temporary worker authorized to remain
until March 3, 1975 but became unemployed August 12, 1974 'and did not obtain
reemployment and recertification within the 60 days grace period granted by the
Service, she was deportable under section 241(a)(9) of the Immigration and Nationality
Act as an alien who has failed to maintain status. Orders to show cause drawn under
section 241(a)(2) of the Act issued Jan. 29, 1975 which charged that respondent had
remained longer than peimitted because she had failed to depart by October 11, 1914
were Improperly drawn because they did not state the proper charge or ground on
which respondent's deportation was beIng•auuglit.
CHARGE:
• •
Order: Act of 1952—Section 241(aX2) [8 U.S.C. 1251(aX2)j—Nonimmigrantremained longer than permitted,
ON BEHALF OF RESPONDENT: Sharon L. Nolan, Esquire

#4 Nye Gade
St. Thonive, V. L 00801

In a decision dated March 13, 1975 the immigration judge found the
respondent deportable as charged and granted her the privilege of
voluntary departure in lieu of deportation. The respondent appeals from
that order. The appeal will be sustained. •
The respondent, native of British West Indies and a citizen of the
United Kingdom, entered the Virgin Islands of the United States as a
nonimmigrant temporary worker (H-2 visa), authorized to remain until
March 3, 1975. An order to show cause was issued on January 29, 1975
charging the respondent with remaining beyond the authorized period
of admission under section 241(a)(2) of the Immigration and Nationality
Act.
At issue in this case is the effect of the so-called "60 day rule."
769

Interim Decision #2517
Pursuant to the agreement between employers of H-2 temporary w
ers and the Immigration and Naturalization Service, each worker t
porarily admitted to the Virgin Islands or permitted to remain thel
temporarily is given a 60-day grace period within which to depart th&
United States or to obtain authorization for new employment after his
previously certified employment has terminated. It appears to be the
position of the Service that an 11 -2 worker who remains 60 days beyond
the termination of employinent without obtaining authorization for
employment is deportable as an overstay even thcugh the period of stay
granted the respondent at entry has not yet expired.
It is alleged in the order to show cause that on August 12, 1974 the
respondent's employment was terminated and that the respondent remained more than 60 days beyond that date. On the basis of these
allegations the respondent was charged with deportability as an overstay. At the hearing the respondent admitted that her employment had
been terminated but disputed the exact date of the termination. It is
conceded, however, that 60 days had passed since she had left her
employment when the order to show cause was issued.
Once a nonimmigrant has been admitted for a fixed period, -within that
period his stay is not unlawful unless he violates one of the conditions of
his admission. Matter of Siffre, 14 I. & N. Dee. 444 (BIA 1973). The date
until which the alien is authorized to stay is not affected by the agreement
entered into between the employer and the Immigration and Naturalization Service, of which the 60 -day rule is a part.
Failure to keep authorized employment or to obtain new employment
for which certification has been issued indicates that the alien is no
longer pursuing the purpose for which he was admitted: A nonimmigrant temporary worker thereby becomes subject to deportation for
failure to maintain status under section 241(a)(9) of the Act. Accord,
Matter of Mehta, 14 I. & N. Dec. 451 (BIA 1973). Apparently the
Service, through application of its 60-day rule, has determined that it
will allow an 11-2 worker 60 days in which to „obtain new certification
after his previously certified employment has terminated before it will
consider the alien out of status. Although the 60 days had passed in this
case, the order to show cause does not allege that the respondent failed
to maintain status nor does it charge her with being deportable under
section 241(a)(9) of the Act.

Although the immigration judge's decision was entered after the
respondent's authorized stay in the United States expired on March 3,
1975, the order to show cause was issued on January 29, 1975, and is
based upon the fact that the respondent failed to depart by October 11,
1974, not by March 3, 1975. An alien is entitled to know the ground upon
which his deportation is being sought. Matter of Siffre, supra. We
conclude, therefore, that the charge is not sustained.
770

Interim Decision #2517
If the respondent's stay is not extended by the district director, for
the purposes of fair disposition of these proceedings, she should be given
a reasonable period of time, to be fixed by the district director, within
which to depart. If she does not so depart, she may become deportable
for remaining longer than permitted, and a new order to show cause
may then be issued.
ORDER: The appeal is sustained and the proceedings are terminated.

771


Interim Decision #1489

MATTER or

WILLNEll

In Visa Petition Proceedings
A-13447293
Decided by Degione Commi,seioner June 15, 1955
Since the occupation of baker of hearth-baked breads requires the high degree
of skill contemplated by the statute, first preference classification -under section 203(a) (1), Immigration and Nationality Act, as amended, as a baker
of Eastern European hearth-baked breads, is accorded the beneficiary of a
visa petition, who, in addition to 3 years' apprenticeship as a baker, has an
aggregate of more than 13 years' experience in the baking of stub breads.
-

This case is before us on appeal for the second time. The first
denial and the dismissal of the appeal resulted in a court action by
the petitiofier. The 'court remanded the case to the Service. The
district director has again denied the petition.
The petitioner is a wholesale bakery employing an average of 130
persons, of whom about 40 are directly engaged in the production
of bakery goods. It was established in 1930 and has annual gross
sales of about -$2 million.
The cake and pastry tIepartment has two ovens and the bread

department, three ovens. Of the production, 50% is breads, 15%
is hard rolls,' 2% is chale, and 33% is cakes and pastries. The
largest single volume-item is hearth-baked sour rye bread.
The petitioner desires to employ the beneficiary of this petition
as a baker of old-faqhioned, Eastern-European, hearth baked breads
and rolls: The petitioner states that the position requires a person
who has had at least 5 years of experience in making such products.
The petitioner requires a.baker to fill a, vacancy. The Bureau of
Employment Security has certified that persons qualified to do the
work described are not available in the United States.
The beneficiary of this. petition, unmarried,' was born in Poland
on April 22, 1918, and is a citizen of Israel.. He was admitted to
the United States as a visitor on April 29, 1963.
The beneficiary learned the bread-baking trade as a youth in
255

Interim Decision #1489
Poland. He served his apprenticeship at the bakery of Moses
Greber in Sanok, Poland, from 1932 to 1935. He was then employed
by the Mikolajewicz Bakery in Rzeszow, Poland, from 1935 to 1939
as a baker of bread, which. included black bread, white rolls, and
chale. During his last year in a Russian concentration camp during
the war, he baked bread for the camp.
Evidence has been presented- that the beneficiary was thereafter
employed by the following bakeries. He was employed at the Ashkhabad Bakery in Ashkhabad, Russia, from July 170943 to March
9, 1945, as a master bread baker and from March 9, 1945 to October
10, 1946, as manager of the bakery plant_ He was employed at the

Lithuanian Railway Bakery in Kalinigrad from May 14, 1947, to
November 9, 1948, as manager of the bakery plant. The plant
baked Russian bread and rolls. He was employed by the bakery of
Warzdcha Henry at Jacmierz, Rzeszow, Poland, from January 16,
1958, to April 1, 1960, as a baker, baking various breads, such as
rye bread, pumpernickel, and crushed corn bread. He was employed
by Uagalil Bakery in Safad, Israel, from August 12, 1960, to April
9, 1963, baking 'rye bread, 'whole wheat bread, brown and dark

breads, white bread, twists, and all kinds of European breads.
The beneficiary had been employed in the bread depattment of
the petitioner since August 1963 -and has been performing the duties
Of the position. His performance has established to the petitioner's
satisfaction that he has the required specialized experience.
Tho district director first denied this petition on February 7, 1964_
He denied it on the ground that the position is not one which requires.

the high degree of skill contemplated by the statute, because it does
not require well-rounded baking skills, such as those involved in
the baking of fancy cakes and pastry products. The petitioner
appealed, and the appeal was dismissed.
sea.
On March 27, 1964, the petitioner filed in the United States District Court of the Northern District of Illinois, Eastern Division,
a complaint to review the administrative action in this case. On
June 19, 1964, the court remanded the cause to the district director
for further hearing on the expertise required for the occupation of
baker of hearth-baked breads.
The 'general manager of the petitioning company_ testified as
follows before an officer of this Service on September 21, 1964, and
on March 10, 1965. The bread and rolls are referred to as hearthbaked because of their special ingredients and because they are
baked in free form, not in pans, and are placed in, and removed
from, the ovens manually by means of peels. The beneficiary. is
256

•

Interim Decision *1489
one of the ovenmen. In this' company, the responsibility for the
proofing and for the baking go hand-in-hand. The 'ovenman is
responsible for the proofing of the dough he will bake, but not for
the mixing of the ingredients.
The general manager also described the duties of -the position in
detail. The duties are to observe the dough during the final proofing
process, adjust the humidity and the temperature in the proofing
room, and determine when the proofing process is completed; to
apply diitinct .washes, such as egg washes, and coverings to various
products before baking and boil the dough for bagels; to load the
dough into the ovens on peels, spacing the dough properly; to bake
it, evaluating the process by the color and expansion of the. dough
and regulating the steam, temperature, and humidity accordingly,
and determine when the product is baked; and to remove it from
the ovens manually by means of a peel. The duties also entail
working at the bench for an hour or two a day, shaping and
forming dough for bread and rolls and braiding the dough for
chale.
The petitioner submitted the affidavits of two partn,ers -in
Chicago bakery which produes heilyth.-baked bread and rolls common in Eastern Europe, such as rye, pumpernickel, chale, bagels,
and onion rolls. One .partner, who has been a baker for 11 years.
stated that it takes at least 5 years for a person to master the trade
of making such hearth-baked bread and rolls. The other partner,
who has been a baker for about 30 years, stated that it takes at lea ,*
8 years.
The Service interviewed the superintendent of baking of another
Chicago baking company, which produces all types of breads and
bread products, including European breads, and employs 18 openhearth bakers. He stated in an affidavit -that the company trains
its own bakers and that it takes about 2 yeiirs to train an openhearth baker at the ovens. In his plant, the open-hearth bakers
do not mix the dough nor proof the dough. He estimated a training
time of 6 months to a year, each, for a dough maker and a dough
proofer . who has had other baking experience.
• .Large baking plants, such as the petitioner, employ baking specialists rather than all-round bakers, although they have the general
occupational title of bakers. The Occupational Outlook Handbook
of the 'United States Department of Labor says that skilled workers
in the baking industry, such as all-round bakers and baking specialists, require at least 3 or 4 years of training.
The petitioner urgently needs the services of a baker, and it has
'257

Interim Decision 4;1489
been found thatsuch worker is not available. The position requires
specialized experience within the meaning of the statute for first
preference under the quota. The beneficiary of the petitiou•qualifies
for the position by his specialized. experience. His services would

be beneficial prospectively to the economy and welfare of the United
States.
We conclude that the requirements of the statute for first preference under the quota have been met. Accordingly, the following
-order will be entered.
ORDER: It is ordered that the petition be approved.

258


Interim Decision #1405

MATTER or SINTIA
In VISA PETITION Proceedings
A-10141925
Decided by Regional Convnassioner August 11, 1964
Petition to accord nonquota status as a minister of a religious denomination,
pursuant to section 101(a) (27) (P), Immigration and Nationality Act, is
denied since the evidence fails to establish that petitioner, The Vedic Society
of America, Inc., is a bona me religious denomination or that beneficiary will
be engaged solely in carrying on the vocation of minister of a religious denomination because he will not be paid a salary for his services as a minister
and will be obligated to seek full-time employment in another capacity in order
to maintain inmsett anti Ills family.

This matter is before the Regional Commissioner on appeal from
the denial of the visa petition to classify the beneficiary as a nonquota
minister on the grounds it has not been established that the petitioning
organization is a bona !Ede religious denomination or' that the beneficiary has been and seeks to remain in the United States solely for the
purpose of carrying on the vocation of minister.
The beneficiary is a married citizen of India, born June 11, 1929
at Pachahi, Bihar, India. He was admitted to the United States on
September 7, 1952 as a nonquota immigrant- under section 4(e) of the
Immigration Act of 1924. He subsequently received Bachelor of
Science and Master of Arts degrees from the American University
where he majored in International Relations, a Master of Arts degree
from Howard University and a Doctor of Philosophy degree in Public
Law and Government from Columbia University. While studying
in the United States, the alien has been employed part time as an
instructor in the Hindi Language and Literature and as a teacher in
International Relations. He is married to a Swedish citizen temporarily in the United States and they have two children, both born in
New York City.
The petition which has been submitted in the beneficiary's behalf
reflects that the organization is devoted to the promotion of the gospels
of the Vedas, ancient religious scriptures of India. The society was
758

Interim Decision #1405
founded in 1958 by the alien who has been serving as its minister. It
was incorporated September 9, 1960 under the laws of the state of New
York as a nonprofit, non-denominational religious church and organization. The petition states that the beneficiary, as minister, will conduct religious services, lecture in the United States on the doctrines
of the Vedas and perform such rites as marriages and christenings.
Inquiries conducted by this Service have disclosed that the beneficiary's primary function is to teach religion and philosophy in order
to enable the members of the group to realize their full spiritual and

philosophical potential. The society's present membership numbers
less than twenty individuals. The organization imposes no restrictions on its members belonging to any other religious denomination or
attending other churches. Meetings are held Friday evenings at the
Mount Vernon office of a physician who is Spiritual Director of the
society and Sunday evenings at the alien's home in New York City.
It was further ascertained that the petitioner owns a spiritual retreat
in Deerpark, Orange County, New York which was purchased in 1961
for $5,200. Its only income is the $10 annual dues received from each
member. No arrangements have been made for payment of a salary

to the beneficiary. During 1963, he received approximately $800 in
love offerings from the membership and from lectures in connection
with the society. His total earnings for the year 1963 amounted to
$6,300, his principal earnings being his salary as professor at Drew
University.
The issues which are before us are (1) whether the petitioning
organization is a religious denomination within the contemplation of
section 101 (a) (27) (F) (i) of the Immigration and Nationality Act
and (2) whether the beneficiary is a minister of a religious denomination within the meaning of the statute_ Section 101(a) (27) provides
in part as follows:
The term 'nonquota Immigrant' means.
(r) (i) An immigrant who continuously for at least two years immediately
preceding the time of his application for admission to the United States has been,
and who seeks to enter the United States solely for the purpose of carrying on
the vocation or minister of a religious denomination, and whose services are
needed by such religious denomination having a bona fide organization in the
United States ; .. .

In Matter of N—, 5 I. & N. Dec. 173, there are set forth certain guidelines which should be considered in arriving at a determination as to
whether the instant petitioner is a bona, fide religious denomination
within the contemplation of section 101 (a) (27) (F) (i) . In declining
favorably in the cited case it was found that the petitioner therein has
been incorporated under the laws of many of the States in thisCountry :
1750

.

Interim Decision #1405
is a worldwide religious organization having a distinct legal existence;
has a recognized creed and form of worship; has a definite and distinct ecclesiastical government; has a formal code of doctrine and discipline; has a distinct religious history; has a membership, not associated
with any other church or denomination ; has officers ministering to their
congregation, ordained by a system of its own; has established places
of religious worship; has religious congregations and religious services; operates a Sunday school for the religious instruction of the
young, and schools for the preparation of its ministers, who in addition to conducting religious services, perform marriage ceremonies,
bury the dead, christen children, and advise and instruct the members
of their congregations.
We find that the present petitioner differs in several essential respects from the organization described in Matter of N , supra. Its
—

members may be associated with other religious denominations, there
are no prescribed standards for the selection, training and ordination
of its ministers, and the society does not have a distinct form of worship. In further considering this matter, we note that the beneficiary's
ministerial functions have been and will continue to be very limited
in scope Inasmuch as the petitioning organization is financially
unable to pay him a salary for his services as minister, he will be
obliged to seek full-time employment in another capacity in order to
maintain himself and his family.
After careful evaluation of the entire record in this case, we find that
the petitioner has failed to establish that it is a religious deonomination
within the meaning of section 101 (a) (27) (F) (i) of the Act and has
failed to establish that the beneficiary will be engaged solely in carrying on the vocation of minister of a religious denomination as required
by the statute. Accordingly, the appeal will be dismissed.
It is ordered that the appeal be and same is hereby dismissed.

760


Interim Decision #1317

MATTER OF DAVIS

In DEPORTATION Proceedings
A-13486274
Decided by Board January .O, 1984
An alien who entered the United States as a nonimmigrant transit without a visa
(TRWOV) is ineligible for adjustment of status under section 245. Immigration and Nationality Act, as amended, in view of the provisions of 8 ar.n
214.2(c) (1).
OrtenoEs :
Order: Act of 1052 —Section 241(a) (1) [8 IT.S.C. 1251(a) (1) 1 —IfeteludableNo immigrant visa. (Withdrawn)
Lodged: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) '(2)1—Nonimmigrant—Remained longer.

The case comes forward on appeal from the order of the special
inquiry officer dated October 17, 1963, denying the respondent's application. for adjustment of status under section 245 of the Immigration and Nationality Act; granting her the privilege of voluntary
departure in lieu of deportation with the automatic order that if the
respondent failed to depart as required she should be deported from
the United States to the Philippines on the lodged charge only.
The record relates to a native and citizen of the Philippines, female,
married, who last entered the United States at Honolulu, Hawaii, on
August 3, 1963. She was in possession of Philippine Passport No.
27615 which did not contain a nonimmigrant or an immigrant visa
for admission to the United States and the respondent testified that
she never did obtain a nonimmigrant or an immigrant visa for entry
into the United States. She stated that she did obtain a visa for
admission to Mexico and the passport contains such a visa. The
respondent identified Exhibit 3 as relating to her. Exhibit 3 is a
copy of the Form 1-91 issued to her which shows that she was admitted at Honolulu, Hawaii, on August 3, 1963, as TRWOV (transit
without visa) for immediate and continuous transit to Mexico by
August 4, 1963.
441

Interim Decision #1317
The respondent testified that she entered the United States as a
tourist with the intention of proceeding to Mexico to get her visa and
then returning to the United States; that she was supposed to change
planes in San Francisco and go to Mexico the next day. However,
when she arrived at San Francisco her fiance informed her that he
did not have enough furlough time from the Marines to go to Mexico
with her and that they then decided to get married in the United States
and try to straighten out her status in this country. She was married
on August 10, 1963, at Waukegan, Illinois, to a native-born United
States citizen who is now serving in the United States Marine Corps
and is stationed in North Carolina. The application for adjustment
of status indicates that her husband has filed a visa petition in her
behalf which is pending.
At the hearing the trial attorney withdrew the charge contained in

the order to show cause and lodged a "remained.longer" charge under
section 241(a) (2) of the Immigration and Nationality Act together
with two additional allegations of fact. The respondent conceded
the additional allegations that she was admitted to the United States
as a nonimmigrant transit without a visa for immediate and continuous
transit to Mexico and was authorized to remain in the United States
until August 4, 1963, and that she has remained beyond that date. The
record establishes that the respondent is subject to deportation solely
on the lodged charge.
The respondent has applied for adjustment of status to that of a
permanent resident under section 245 of the Immigration and Nationality Act. She is married to a United States citizen who has filed a
visa petition for nonquota status on her behalf which is now pending.
However, under the provisions of 8 MR, 214.2(c) (1) as amended (28
F.R. 3078 (March 29, 1963) ) it is specifically stated that the privilege
of transit without a visa may be authorized only under the conditions
that the alien will depart voluntarily from the United States and that
he will not apply for adjustment of status under section 245 of the
Act. Inasmuch as the record establishes that the respondent was admitted to the United States as a transit without a visa on August 3,
1963 (Ex. 8) and inasmuch as the provisions of the regulation referred
to above were then in effect, she is not eligible for adjustment of status
under the provisions of section 245 of the Immigration and Nationality
Act and her application for adjustment of status was therefore properly denied. The brief of counsel which cites the case of Brownell v.
Carija, 245 F.2d 78 (D.C. Cir., 1957) has no application because the
amended regulation referred to was not then in effect.
The respondent has also applied in the alternative for the privilege
of voluntary departure. She is residing with her mother-in-law in
442

Interim Decision #1317
Milwaukee, Wisconsin. She stated that she does not have funds to
depart from the United States but that she can obtain funds from her
husband or from her mother-hi-law. She has never been arrested
and never been a member of the Communist Party. The grant of
voluntary departure appears appropriate. The appeal will be
dismissed..

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

443


Cite as 27 I&N Dec. 245 (A.G. 2018)

Interim Decision #3921

Matter of L-A-B-R- et al., Respondents
Decided by Attorney General March 22, 2018
U.S. Department of Justice
Office of the Attorney General
The Attorney General referred the decisions of the Board of Immigration Appeals to
himself for review of issues relating to when there is “good cause” to grant a continuance
for a collateral matter to be adjudicated, ordering that the cases be stayed during the
pendency of his review.

BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.l (h)(1)(i) (2017), I direct the Board of
Immigration Appeals to refer these cases to me for review of its decisions.
The Board’s decisions in these matters are automatically stayed pending my
review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001).
To assist in my review, I invite the parties to these proceedings and interested
amici to submit briefs on points relevant to the disposition of these cases,
including the following question:
An Immigration Judge is authorized to “grant a motion for continuance for good
cause shown.” 8 C.F.R. § 1003.29 (2017); see also id. § 1240.6 (2017) (authorizing
an Immigration Judge to “grant a reasonable adjournment either at his or her own
instance or, for good cause shown, upon application”). In these cases, Immigration
Judges granted continuances to provide time for respondents to seek adjudications
of collateral matters from other authorities. Under what circumstances does “good
cause” exist for an Immigration Judge to grant a continuance for a collateral matter
to be adjudicated?

The parties’ briefs shall not exceed 15,000 words and shall be filed on or
before April 17, 2018. Interested amici may submit briefs not exceeding
9,000 words on or before April 24, 2018. The parties may submit reply briefs
not exceeding 6,000 words on or before May 2, 2018. All filings shall be
accompanied by proof of service and shall be submitted electronically to
AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice
Office of the Attorney General, Room 5114
950 Pennsylvania Avenue, NW
Washington, DC 20530

245

Cite as 27 I&N Dec. 245 (A.G. 2018)

Interim Decision #3921

All briefs must be both submitted electronically and postmarked on or
before the pertinent deadlines. Requests for extensions are disfavored.

246