Interim Decision #2658

MATTER OF KONISHI
In Deportation Proceedings
A-19807195
Decided by Board July 5, 1978
Self-employed professional artist does not qualify for exemption from the labor certification requirements of section 212(a)(14) as an investor where Investment" consists
solely of an inventory of his own paintings along with the furnishings for a one-man
gallery because the gallery is the mere conduit for the sale of the products of the alien's
own labor and no showing is made that the "business" would expand job opportunities so
as to offset any adverse impact of his employment.
CHARGE:
Order: Act of 1952--Section 241(a)(8)
remained longer

U.S.C. 1251(n)(2)}—Nonimmigrant visitor—

ON BEHALF OF SERVICE:
Sabri 1Candah, Acting
Appellate Trial Attorney

013 BEHALF OF RESPONDENT:
Jack Wasserman. Esquire
1'107 H Street, N. W.
Washington, D.C. 20006
William J. Lawler, Esquire
615 Montgomery Street
Suite 320
San Francisco, California 94111

Philip P. Leadbetter
Trial Attorney

BY: Maniatis, Acting Chainnam Appleman, Maguire, and Farb, Board Members

The respondent appeals from the decision of an immigration judge,
dated March 18, 1977, in which he found the respondent deportable as

charged, denied his application for adjustment of status, and granted
him the privilege of voluntary departure. The appeal will be dismissed.
The respondent is a 29- year- old native and citizen of Japan who
entered the United States on February 19, 1973, as a nonimmigrant
visitor for pleasure. His status was adjusted to that of a student and he
was authorized to remain until June 29, 1975. On July 14, 1976, the
District Director denied the respondent's application for adjustment of
status and granted him voluntary departure until August 14, 1976. At
his deportation hearing before the immigration judge, the respondent
admitted the allegations of fact contained in the Order to Show Cause
and conceded deportability. The only issues on appeal concern his appli549

0.4,

✓

7r LiVtAl

cation for adjustment of status, pursuant to section 245 of the Immigration and Nationality Act, 8 U.S. C. 1255.
The respondent seeks adjustment of status as a nonpreference immigrant. He intends to work in the United States and the provisions of
section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14), therefore, apply to
him. The respondent, however, maintains that he is exempt from the
labor certification requirement of section 212(a)(14) as an "investor"
within the contemplation of 8 C.F. R. 212.2(b)(4).
The burden of proof to establish a claim of "investor" rests upon the
alien. The evidence must be unambiguous and any doubts will be resolved against the "investor" claimant. Matter of Khan, Interim Deci-

sion 2565 (BIA 197'7); Matter of Shaw, Interim Decision 2525 (BIA
1976); Matter of Ahmad, Interim Decision 2316 (ETA 1974).
The immigration judge denied the respondent's application for adjustment on the ground that he has not submitted satisfactory evidence
of the claimed investment and also as a matter of discretion. Upon our
review of the record, we are convinced that the immigration judge's
decision was correct.
The respondent alleges an investment of over $10,000 in his occupation as an artist. He has submitted a list of expenditures in connection
with the opening of a showroom for his paintings totaling $9,674.06. He
also alleges a current inventory of $30,865 in finished paintings that are
up for sale. Of this figure, $2,780 is claimed to be an expenditure for the
materials used in creating the paintings. We need not, however, decide
whether these figures are to be computed into the total investment.
The respondent has admitted that he has no employees. Although he
claims that he is not in competition with the American labor market, we
are not convinced that his investment expands job opportunities as
contemplated by Congress. See Matter of Ruangswang, Interim Decision 2546 (BIA 1976); Matter of Heitland, 14 I. & N. Dec_ 563 (MA
1974).
In Heitland, supra, we developed a "test concerning substantial in-

vestment":
The investment either must tend to expand job opportunities and thus offset any
adverse impact which the alien's employment may have on the market for jobs, or must
be of any amount adequate to insure, with sufficient certainty, that the alien's primary
function with respect to the investment and with respect to the economy will not be as a

skilled or unskilled laborer.

This "test" was repeated in slightly different language in
R-uangswang, supra:
8 C.F.R. 212.2(b)(4) was amended, effective October 7, 1976, to require an investment
of *40,000. The amendment has prospective effect only and, therefore, the present case is
considered under the regulation in effect at the time the application was made.

550

Interim Decision #2658
To qualify for investor status, the nature of the investment must be such that the
investor is spending his energies in the management of the investment, rather than in
performing labor which can be performed by a worker already in the United States,
unless the business expands job opportunities thereby offsetting any adverse impact on
the alien's own employment.

The fact that the respondent is a self-employed professional does not
remove him from competition with American artists. His full-time work,
either creating or selling his own paintings, is not merely incidental to
any business or investment, but is his primary function. This is not
within the concept of an investor as contemplated by Congress. The

respondent's investment in the furnishings of his one-artist "gallery" is a
mere conduit for the sale of the products of his own labor. His primary
activity is the creative one, not the management of a one-artist gallery.
Thus, we refuse to hold that the respondent, as a professional artist, is
outside the requirement of a labor certification intended by Congress to
protect the American labor force. The painting and selling of one's own
works of art is a form of labor and, therefore, section 212(a)(14) of the
Act is applicable. Inasmuch as the respondent has failed to show that his
investment expands job opportunities, so as to offset the adverse impact
of the respondent's own employment, we agree with the immigration
judge that he has not met his burden of proof with respect to his
"investor" claim. 2 Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order the
respondent is permitted to depart from the United States voluntarily
within 30 days from the date of this order or any extension beyond that
time as may be granted by the District Director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

2 The respondent alleges that his business is still young and as soon as it grows to be
large enough to need extra labor he will hire other people. However, the future prospect
of expanding job opportunities is insufficient to support a current claim that his investment should exempt him from the labor certification requirement of seetinn 212(a)(14) of
the Act. Cf. Matter of Khan, Interim Decision 2565 (BIA 1977).

551


Interim Decision #1404

MATTER OF BARNES

In SECTION 212(g) Proceedings
A-13289746

Decided by Acting Officer in Charge Jtay 6,1964
Approved by Regional Cornmiaeioner July 23,1964
Application for waiver, pursuant to section 212(g), Immigration and Nationality
Act, as amended, of excludability under section 212(a) (9) of the Act is denied,
in the exercise of discretion, in the case of an alien who is at liberty under
a sentence-imposed, 3-year good-behavior bond, without prejudice to reconsideration upon the expiration date of the bond required by the sentence
imposed.

The applicant is a male, native of Barbados, subject of Great Britain,
burn in Bridgetown on April 23, 1945. He has never been married
and has no children. His parents, Frank Vernon Barnes, A13 253 720,
and Agnes Barnes, A13 253 643, are aliens who have been lawfully admitted to the United States for permanent residence. Satisfactory
documentary evidence of their status and of his relationship to them
has been presented.
The applicant has never been in the United States and was found
by the consular officer to be eligible for a visa for permanent residence
in all respects except excludability under section 212(a) (9) of the
Immigration and Nationality Act.
In testimony before an officer of this Service on March 11, 1964, at
Bridgetown, Barbados, the applicant testified that his arrest was the
result of taking $3,800.00 which had been entrusted to his care by the
Canadian Imperial Bank of Commerce in Bridgetown. He stateA
that at the time he was mixed up with a young woman employed a:,
the bank and he took the money in order that they could run away to
Trinidad. As a result of this act he was tried as an adult, found
guilty and released under a personal bond of $1,000.00, to be of good
behavior for a period of three years. At the time of his conviction
the applicant was 16 years, 7 months of age. He testified that he has
never committed any other act or offense which might render him inadmissible to the United States or subject him to criminal prosecution.
755

Interim Decision #1404
The applicant's mother was interviewed by a Service officer on Oc-,
tober 29, 1963, at New York City, New York. She corroborated her
son's statement relative to the incident which now bars him from the
United States. She stated that the real fault lay with a girl somewhat older than her son who encouraged him to steal the money and
run off with her. She testified that the absence of her son was an extreme hardship to her because of the emotional factor involved. She is
of the opinion that he needs to be with her and her husband in order
that they may help him and give the benefit of their affection and
guidance. If he is not permitted to come to the United States she

says that she and her husband will have no alternative but to return
to Barbados and be subject to the humiliation of living among people
aware of her son's crime.

The applicant's father was interviewed by a Service officer on March
11, 1964, in Bridgetown, Barbados. He testified that until recently
he was captain of his own vessel and the applicant worked for him
aboard the vessel up to November of 1963. He further testified that
he believed that he and his wife can keep the applicant straight and
make a good citizen out of him. He sincerely believes the boy has
learned his lesson and will not get into any more trouble. The ox

treme hardship to the lawful alien parents as contemplated by the
statute has been established. The crime committed by the applicant occurred November 1, 1961.
The sentence imposed placed him under bond to maintain good behavior for a period of three years which will expire December 12, 1964.
If he fails to maintain his good behavior until that date, a breach of
the conditions of the bond will result, which could result in forfeiture
of the collateral and imprisonment.
Unless the applicant, by his behavior over a reasonable period of
time, had demonstrated that a waiver of his excludability is merited as
a matter of discretion and that his admission would not be contrary to
the national safety, security and welfare of the United States, the
waiver may not be granted. It must be recognized that a bond, probation, parole or similar court-imposed disability places an extraor-

dinary burden upon the sentenced individual. Thus, in Jones v. 0 unniagArt/m, 371 U.S. 936 (1963) the United States Supreme Court stated

that "Conditions of parole significantly restrain petitioner's liberty to
do those things in this country free men are entitled to do." The
Court held that a person on parole, though physically free, is under
strict control and is constantly threatened with return to custody for
minor infractions of the conditions of parole.
The applicant in the instant case is at liberty under a sentenceimposed bond, which appears to be a somewhat lesser restraint than
756

Interim Decision #1404
parole. Nevertheless the threat of imprisonment for any breach of
the conditions of the bond hangs heavily over his head. While it
would be unreasonable to discount completely the good behavior of
the applicant during the period for which. he has been under that
restraint, it is not unreasonable in this case to await the lifting of the
restraint imposed by sentence, in effect permitting the sentence to run
to completion, before exercising the discretion favorably in his behalf.
The applicant's behavior has .been good since the commission of the
crime which renders him excludable. However it is concluded that,

as a matter of discretion, the waiver of excludability should not be
granted prior to December 12, 1964, the expiration date of the bond
required by the sentence imposed upon him. The application will be

denied without prejudice to reopening and reconsidering the application on our own motion subsequent to December 12, 1964. The case
will be certified to the Regional Commissioner, Richmond, Virginia,
in accordance with his request.
ORDER: It is ordered that the application of Vernon Michael
BARNES for a waiver of excludability under paragraph (9) of section 212(a) of the Immigration and Nationality Act, be and is DENIED pursuant to the authority contained under section 212 (g) of
the Immigration and Nationality Act.
It is further ordered that this denial be without prejudice to reopening and reconsidering the application subsequent to December 12, 1964.
It is further ordered that this case be certified to the Regional Commissioner, Southeast Regional Office, Immigration and Naturalization Service, Richmond, Virginia, in accordance with his request.
.

757


Interim., Decision #2423

MATTER OF PARK:

In DePortation Proceedings
A-20515081
Decided by Board August 25, 1975
(1) The language of section 212(e) of the Immigration and Nationality Act, as amended,
encompasses a person who fraudulently gains admission to the United States or acquires status after admission as an exchange visitor under section 101(a)(15)(J) of the
Act, as amended, with the knowledge that he is being accorded such status. ;
(2) Notwithstanding respondent, who was admitted to the United States as a nonimmigrant exchange- visitor under section 101(a)(15)(J) of the Act, as amended, alleges that
he obtained his nonimmigrant visa through fraud and after admission to this country
never participated in the exchange program to which he was destined, he is ineligible to
apply for adjustment of his status to that of a lawful permanent resident under section
245 of the Act, as amended, until he has either fulfilled the foreign residence requirement of section 2,12(e) of the Act, as amended, secured a waiver thereof, or established
that he is Otherwise exempt therefrom. Accordingly, the immigration judge was correct
in denying respondent's motion to reopen td applyfbi section 245 adjustment of status.
CHARGE:.

: ;
:•ug
••
Order: Act of 1952--Sectiou' 241(a)(9)
U.S.C. 1251(a)(9)}—After admission as
. ,
•
„
(nonimmigrant, failed to comply with conditions of status

ON BEHA o:EdRgsiarDENT't• Bert D. Greenberg, Esquire
,
.:„ , 5670 Wilshire Boulevard, Suite 1800
•.• • •
Los Angeles, California 90036
,

This is an appeal from the immigration judge's April 9, 1974 denial of a
motion to reopen deportation proceedings in order to permit the respondent to apply for discretionary relief under section 212(i) and section 245 of the Immigration and Nationality Act. The appeal will be
dismissed.
The respondent is a 27 -year- old married male alien, native and citizen
of Korea, who was admitted to the United States on August 3, 1972 as a
nonimmigrant exchange visitor under section 101(a)(15)(J) of the Act.
At a hearing before an immigration judge on May 16, 1973, the respondent admitted the truth of the factual allegations of the order to show
cause (Exh. 1) and conceded deportability for noncompliance with his
exchange visitor status as specified therein. The immigration judge
found him to be deportable as charged and granted him voluntary
436

Interim Decision #2423
departure.-No appeal, was taken from the immigration judge's decision.
On February 25, 1974 the respondent was accorded preference status
as the spouse 'of a lawful permanent resident under section 203(a)(2) of
the Act. On March 20, 1974 the respondent filed an application for status
as a permanent resident and sought reopening of his deportation hearing. 1 The respondent also applied for a waiver of excludability under
section 212(a)(19), pursuant to the provisions of section 212(1) of the Act.
See 8 CPR 242.17(a): On April 9, 1974 the immigration judge denied the
motion to reopen on the ground that the respondent, having been
admitted to the United States under section 101(a)(15)(J), was ineligible
to apply for permanent resident until he had either fulfilled the foreign
residency requirement contained in section 212(e) of the Immigration
and Nationality Act, as amended, secured a waiver thereof, or established that he was Otherwise exempt therefrom. 2
An application for permanent resident status was previously filed by the respondent on
January 2, 1973 and denied by the district director on March 15, 1973. This earlier
application was superseded when the respondent filed a new Form I-485 on March 20, 1974
in conjunction with his motion to reopen.
Section 212(e) of the Immigration and Nationality Act, as amended, provides:
2

"(e) No person admitted under section 101 (a)(15)(J) or acquiring such status after
admission whose a) participation in the program for which he came to the United States

was financed in whole or in part, directly or indirectly, by an agency of the Government
of the United States or by the government of the country of his nationality or his last
residence, or (ii) who at the time of admission or acquisition of status under section
101(a)(15)(J) was a national or resident of a country which the Secretary of State,
pursuant to regulations prescribed by him, had designated as dearly requiring the
services of persons engaged in the field of specialized knowledge or skill in which the
alien was engaged, shall be eligible to apply for an immigrant visa, or for permanent
residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101.
(a)(15XL) until it is established that such person has resided and been physically
present in the country of his nationality or his last residence for an aggregate of at least
two years following departure from the United States: Provided, That upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested

United States Government agency, or of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose
exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen
of the United States or a lawfully resident alien,) or that the alien cannot return to the
country of his nationality or last residence because he would be subject to persecution
on account of /nee, religion, or political opinion, the Attorney General may waive the
requirement of such two-year foreign residence abroad in the case of an alien whose
admission to the United States is found by the Attorney General to be.in. the public
interest: And provided further, That the Attorney General may, upon the favorable
recommendation of the Secretary of State, waive such two-year foreign residence
requirement in any case in which the foreign country of the alien's nationality or last
residence has furnished the Secretary of State a statement in writing that it has no
objection to such waiver in the case of such alien." (Emphasis Supplied.) The program
for which the respondent was admitted comes within subsection (ii) of the above
provision.

437

Interim Decision #2423
On appeal counsel contends that the respondent is not affected by the
bar to permanent residence contained in amended section 212(e). Counsel's theory 13 that the respondent was never a bona fide exchange
visitor. He alleges that the respondent obtained his nonimmigrant visa
through fraud, and never participated in the exchange program to which
he was destined after his admission to the United States. Counsel
asserts that rather than a waiver of the foreign residency requirement

of section 212(e), the respondent requires, and is eligible for, a waiver of
inadmissibility for visa fraud (section 212(a)(19)) pursuant to section
212(i) of the Act. We reject counsel's contention.

We construe the language of amended section 212(e) to encompass .a
person who fraudulently gains admission to the United States or status
as an exchange visitor, under section 101(a)(15)(J) with the knowledge
that he is being accorded such status. 3 Any other interpretation would

permit an alien who has perpetrated a willful fraud to reap the benefit of
his own misdeed, and would allow the circumvention of the immigration
laws through the exchange visitor program in contravention of the
intent of Congress in establishing it. See S. Rept. 1608, 84th Congress,
2d. Sess. Accordingly, we conclude that the immigration judge was
correct in finding the respondent subject to the provisions of amended
section 212(e) and in denying reopening on that basis. The following
order will therefore be entered.
ORDER: The appeal is dismissed.

3 This view applies to instances involving fraud on the alien's part, and should be
distinguished from situations in which it is claimed that exchange visitor status was
merely erroneously accorded, or that the alien was misled into accepting it, or that his
acceptance of the status was not voluntary. See, e.g. Matter of Wojcik, 11 1. & N. Dec. 603
(3 IA 1966); De Guzman v. INS, 389 F.2d 360 (C.A. 7, 1968); Campbell v. Esperdy, 287 F.
Soup. 92 (S.D.N.Y. 1968); Matter of Koryzma, 13 I. & N. Dec. 358 (BIA 1969); Hazer v.
INS, 420 F.2d 3i7 (C.A. 9, 1970).

438


Interim Decision #2308

MATTER

OF HARRIS

In Visa Petition Proceedings
A-18958024

Decided by Board November 6, 1970
For the purpose of legitimation under section 10I(b)(1)(C) of the Immigration and Nationality Act, as amended, the legal custody requifements of that section have not been

met where beneficiary, a child born out of wedlock, has at all times resided with her
natural mother in Liberia and has not at any time been in the care of or resided with the
putative father (husband of the United States citizen petitioner), and the natural
parents never married. Beneficiary does not qualify as a stepchild of the petitioner
under section 101(b)(1)(B) of the Act within the meaning of Nation v. Esperdy, 239
F. Stipp. 531 (S.D. N.Y., 1965), for failure of petitioner to establish the existence of a
close family unit; neither does beneficiary qualify as a stepchild of the petitioner under
section 101(b)(1)03) of the Act under the rationale of Andrade v. Esperdy, 270 E. Supp.
516 (S.D. N.Y., 1967), that a preexisting bona fide family unit is not necessary to
establish a stepchild relationship, since that rule is applicable only to cases arising
within the jurisdiction of the Southern District of New York (Matter of Source, 12 I. &
N. Dec. 653 (1958), and Matter of Amoxio and Monteiro, 13 I. & N. Dec. 179 (1969)).

ON BEHALF OF SERVICE:

ON BEHALF OF PETITIONER:
John T. Vance, III, Rep.
8708 Garfield Street
Bethesda, Maryland 20014
Lois Mae Harris, Petitioner
(Brief filed)

Irving A. Appleman

Appellate Trial Attorney

This is an appeal from the decision of the district director denying the
visa petition filed by the petitioner on behalf of her alleged stepdaughter, Precious Hannah T. Harris. Petitioner seeks the issuance of
an immigrant visa to the beneficiary as an immediate relative, as provided by section 201(b) of the Immigration and Nationality Act.
The petitioner, Lois Harris, is a 28-year-old married female, a
native-born citizen of the United States. The beneficiary is a 5-year-old
child, a native and citizen of Liberia, who resides with her natural
mother, Henrietta Bull, in Liberia. The petitioner's husband, Mr.
Moses P. Harris, Jr., is residing with the petitioner in the United
States, and is now a lawful permanent resident. He declares himself to
be the natural father of the child. He and the child's mother, Henrietta
Bull, were never married.
Section 201(b) of the Immigration and Nationality Act defines "immediate relatives" as "children, spouses and parents of a citizen of the
United States." Section 101(b)(1) defines the term "chfid" in five sepa39

Interim Decision #2308
rate paragraphs. Here we are concerned only with sections 101(b)(1)(B)
and (C). 1
Petitioner claims that Precious Hannah is her step-daughter; that the
child was legitimated by the decree of a court in Liberia; and that the
petitioner's marriage to Mr. Harris, Jr.; created the stepchild relationship. The district director determined that this petition should not be
granted either under (B) for a stepchild, or under (C) for a legitimated
child:
The child was born on October 8, 1965. Mr. Harris, Jr., and Henrietta
Bull never lived together as husband and wife. (See his sworn statement of November 14, 1969, page 2.) On September 8, 1966, Mr. Harris,
Jr., left Liberia for the United States. He states, "Before my departure
for the United States, I told my father that this child was mine and that
I did not have the time to go to the courts to declare this." During the
eleven months following the child's birth and before his departure from
Liberia, Mr. Harris, Jr., did not participate in legitimation or adoption
proceedings. On June 8, 1968, he married the petitioner in Montana.
During July, 1969, the attempted legitimation proceedings were commenced and completed in Liberia. The record shows that on July 9,
1969, a court in. Liberia entered a Decree of Legitimation concerning the

beneficiary. On the same date the court also registered the child's birth;
this had not been done previously.
Is the beneficiary a "legitimated child" under section 101(b)(1XC)?

The statute has three basic requirements: (1) that there be a legitimation; (2) that the legitimating parent or parents have legal custody at the
time of such legitimation; and (3) that the legitimation take place before
the child's eighteenth birthday. Legitimation without legal custody does
not satisfy the statute. On the facts now before us, the majority of this
Board finds that the petitioner and Mr. Harris, Jr., have not been

successful in legitimating the child, nor have they established that they
obtained legal custody.
The legitimation proceeding did not accomplish its purpose. The petil• Section 101(b)(1)—The term "child" means an unmarried person under twenty-one
years of age who is-'

(B) a stepchild, whether or not born out of wedlock, provided the child had not
reached the age of eighteen years at the time the marriage creating the status of
•
stepchild occurred; or
(C) a child legitimated under the law of the child's residence or domicile, or under the
law of the father's residence or domicile, whether in or outside the United State's, if such
legitimation takes place before the child reaches the age of eighteen years and the child
is in the legal custody of the legitimating parent or parents at the time of such
legitimation.

40

Interim Decision #2308
tion was filed by the child's grandfather, Mr. Harris, Sr., and the decree
declares the child's grandfather, Mr. Harris, Sr., to be the natural
father of the child. Petitioner's husband, Mr. Harris, Jr., neither participated in nor was present at the legitimation proceeding. It is the
petitioner's claim that the decree declaring the child's grandfather to be
the natural father of the beneficiary is simply a clerical error. The
decree was dated July 9, 1969. So far as this Board has been informed,
the alleged error has not been corrected, although Mr. Harris, Sr., the
child's grandfather, is said to be a lawyer in Liberia. We must presume
that the court decree does what it says it does. On its face it declares
Mr. Harris, Sr., to be the father. It is not for us to alter the effect of the
decree.

Mr. Harris, Jr., was asked by the immigration ekaminer where and
with whom Precious Hannah has lived since her birth. From his answers we learn that, first, "She lived with her mother until I left the
country to come to the United States." Then, "three or four months"
after he left Liberia, the child and her mother moved in with Mr.
Harris, Sr., and lived in his residence for approximately four months.
Thereafter, she (Precious Hannah) lived with her mother at the home of
her mother's parents (maternal grandparents). Mr. Harris, Jr., alleges
that his father contributes to the support of the beneficiary and that he,
Mr. Harris, Jr., and petitioner, Lois, send gifts to the child. The record
is devoid of any evidence in support of these allegations, such as cancelled cheeks, money order receipts, family snapshots and family letters,

tending to demonstrate support, custody, and familial bonds.
The statutory provision that the child be ". . . . in the legal custody of
the legitimating parent or parents at the time of such legitimation" is
mandatory. It is not possible to find any period of time during which this
child was in the care of Mr. Harris, Jr., or in his custody, either actual or
legal. It is admitted that Mr. Harris, Jr., never lived with the child for
the three-year period prior to the legitimation proceeding. The decree
now offered purports to be a decree of legitimation, not a decree awarding custody. Possibly "legal custody" could have been given to Mr.
Harris, Jr., by the court in Liberia, but it did not do so. We believe
there was not even " substantial compliance" here.
We may ask what Congress meant by "legal custody." There are, of
course, several kinds and degrees of custody. "Legal custody" implies
either a natural right or a court decree. It is a settled principle of law
that the mother of an illegitimate child has the primary right to its
custody, and we cannot presume that she has lost custody. A mother
may be deprived of the custody of her child but not without cause. 2
2 There are many guardianship and custody cases In all. Jurisdictions, often concerning
illegitimate children. 51 A.L.R. 1507, particularly division III; 37 A.L.R. 2nd 2; Jensen

41

Interim Decision #2308
The minority opinion states that the beneficiary can be considered to
have been in the custody of Harris, Jr., at the time of the legitimation
proceeding, even though she may have been in the actual possession of
her mother, and that "custody was in Harris, Jr., as much as it could be
under these circumstances." A statement filed by Lois Harris, dated
December 9, 1969, entitled "Brief for Petitioner---Appellant" declares

(1). 2):
.(c) the elild was in the legal custody of her legitimating "parent or parents" at
the time of the legitimation_ The child/ma and is in the legal custody of her legitimating

parent, or natural mother, Henrietta Bull, who was at the court proceedings and gave
her consent to such proceedings as is indicated by the "MOTHER'S AFFIDAVIT"
which is found among the documents from Liberia. One legitimating parent in custody
of the child seems to fulfill this part of the requirement.

This statement is based on the mistaken assumption that the natural
mother was one of the "legitimating parents." It does, however, state
the facts and corroborates our conclusion that Mr. Harris, Jr., did not
have the required legal custody of the beneficiary. The natural mother
here probably could become a "legitimating parent" only by marrying
the natural father, in which case they would become the "legitimating
parents." Neither Henrietta Bull nor Lois Harris can here be considered a "legitimating parent."
The minority opinion refers several times to the statutory history of
the adoption and legitimation provisions and to the fact that these

provisions were inserted to eliminate the frequent eases of fraudulent
and ad hoc adcptions. This case does not differ from a great many others
wherein we have denied petitions for illegitimate children of alien
fathers because the requirements of our law had not been met. 3 There is
no burden on the Immigration and Naturalization Service to establish
that fraud is involved before these statutory requirements come into
action. There has been ,no suggestion that any fraud exists here.
Is the beneficiary a "stepchild" of petitioner under section 101(b)(1)(B)?

The minority opinion herein states that Hannah Harris is not a stepchild under 101(b)(1)(B), and that she must qualify under 101(b)(1)(C) or
not at all; that "child" is a defined term; that to be Mr. Harris, Jr.'s,
legitimated child she must also meet the requirements of 101(b)(1)(C).
v. Earley, 63 Utah 604, 228 Pac. 217, noted 34 Yale L. Jour. 446; In re Bare's Guardianship, 170 Wis. 543, 174 N.W. 906; Jetutell v. Dupree, 108 Kan. 460, 195 Pac. 861; In re
Navarro, 77 Calif. 2d 500, 175 Pac. 2d 898, contains a discussion of custody and legitimation of an illegitimate child. In Montana, by statute the mother of an illegitimate minor
child is entitled its custody, service and earnings. 61 Rev. Code of Montana 108
(formerly section 5387). See Haynes v. Fillner, 106 Mont. 59, 75 Pac. 2d 802.
3 Reported decisions represent only a small percentage of the cases decided by this
Board.

42

Interim Decision #2308
Footnote No. 1 and the concluding paragraph of that opinion are designed to answer petitioner's argument that this is her stepchild. She
relies on Andrade v. Esperdy, 270 F. Supp. 516 (S.D. N.Y., 1967), as
authority for her position.
There have been a number of cases before both the courts and this
Board on this specific question. The leading case is Nation v. Esperdy,
239 F. Supp. 531 (S.D. N.Y., 1965). The court stated that it was the
intent of Congress in enacting section 101(b)(1)(B), which extended the
definition of stepchild to include an illegitimate child, to keep families
together. The court held that the father's illegitimate child could be
considered a stepchild of the father's wife, because the child had always
lived with them and was supported by them and was for all intents and
purposes a member of the family. That case set forth the "close family
unit" doctrine.
Nation was followed by Matter of The, 11 I. & N. Dec. 449 (BIA
1965), a case similar on its facts to the instant case, in which we followed
the Nation doctrine and held that a step-relationship existed because
the facts showed a long standing, close-family-unit relationship. In
Matter of Morris, 11 I. & N. Dec. 537 (BIA 1966), we again applied the
family unit doctrine, but the facts of that case were such that we
determined that no step-relationship existed.
In Andrade, supra, the court held that an illegitimate child is a
stepchild of the woman to whom the natural father is married, solely
because of the existence of the marriage. The court denied the need to
establish a preexisting bona fide family unit as a prerequisite, and
stated that the legislative reports, although emphasizing the importance of preserving the family unit, did not intend section 101(b)(1)(B) to
require a family unit as a prerequisite to classifying an illegitimate child
as a stepchild. The court reviewed the Congressional reports which
accompanied the enactment of this section of law and said that, although
the reports speak of an intention to preserve the family unit, there is
nothing to indicate that this was the sole purpose of the legislation.
In Matter of Soares, 12 I. & N. Dec. 653 (BIA 1968), the Board
decided that the Andrade holding would not be extended beyond the
jurisdiction of the court that rendered the decision (Southern District of
New York). In Matter of Amado and Monteiro, 13 I. & N. Dec. 179
(BIA 1969), the Board again held that the Andrade rule is not binding in
cases arising outside the Southern District of New York. The family
unit rule was followed in reaching the decision, and the appeal was
dismissed.
We conclude that the beneficiary in this case cannot be considered the
legitimated child of Mr. Harris, Jr. "Constructive custody" of the child
cannot be manufactured from the facts of this record. Mr. Harris, Jr.,
has never had custody of Hannah, legal or physical. We cannot find her
. 43

Interim Decision #2808
to be petitioner's stepchild; she never lived with petitioner and Mr.
Harris, Jr., so she cannot benefit from the family unit rationale. The
appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Maurice A. Roberts, Chairman, Dissenting:

I have signed the foregoing order dismissing the appeal, since it
represents the will of the majority of this Board. In my opinion, the
appeal should be sustained and the visa petition should be granted.
The petitioner, a citizen of the United States, seeks to confer immediate relative status under section 201(b) of the Immigration and
Nationality Act upon the beneficiary as her stepchild. The beneficiary
was born out of wedlock in Liberia on October 8, 1965 to petitioner's
husband, Moses Poka Harris, Jr. (hereafter referred to as Harris Jr.)
and Henrietta Bull, both then single. Harris Jr. came to the United
States in September 1966 as a student on a Liberian Government
scholarship arid has remained here since , having had his status adjusted
to that of a permanent resident following his marriage to petitioner on
June 8, 1968.
Before leaving Liberia for the United States, Harris Jr. acknowledged to his father (hereafter, Harris Sr.) that the beneficiary was his
child. He asked Harris Sr. to institute proceedings in his behalf in the
Liberian court to have Harris Jr. named as legal father of the child.
Harris Jr. confirmed this request in writing after he arrived in the
United States.
Although be never lived with the beneficiary's mother, Harris Jr.
took care of the child while he was in Liberia and before he obtained his
scholarship. A few months after he left for this country, the child and
her mother moved in with Harris Jr.'s parents. After a while, the child

and her mother moved in with the latter's mother. Harris Sr. contributes to the support of the child and Harris Jr. sends occasional gifts.
On July 9, 1969, Harris Sr. filed a verified petition in the Liberian
court, supported by the affidavit of Henrietta Bull, seeking a decree
legitimatizing the beneficiary as the child of Harris Jr. and Henrietta
Bull. The court's "Decree of Legitimation", in what is obviously a
clerical error, refers to Harris Sr.'s petition as reciting that he is the
natural father of the child. On the basis of this decree, petitioner claims
to be the beneficiary's stepthother by virtue of her marriage to Harris
Jr.
The majority opinion finds this beneficiary unqualified on this record
on two distinct grounds, based on the following legal conclusions: (1)
The legitimation decree declares her to be the child of Harris Sr. rather
than Harris Jr. (2) She was not in the legal custody of Harris Jr. at the
44

Interim Decision #2308
time of legitimation. In my view, a realistic appraisal of the record
requires rejection of both conclusions. •
The Liberian adoption decree should, in my estimation, be accepted
as what it was designed to be, an adjudication that the beneficiary is the
legitimate child of Harris Jr. Certainly, this is what the court proceedings were designed to accomplish. The adoption petition itself, filed by
Harris Sr., makes it clear that he is the father of Harris Jr. and is acting
in the latter's behalf and at his request beCause Harris Jr. is in the
United States. Such "next friend" actions are not unknown in the law.
The adoption petition and the .supporting affidavit' of Henrietta Bull
state unequivocally that Harris Jr. is the natural father of the child. The
adoption petition prays for a decree "legitimizing the said minor child,
Precious Hannah Harris born out of wedlock, so that she might share
equally in petitioner's son's property. . . in common with other children
of my son Moses P. Harris Jr. now or hereafter to be born." The caption
of the decree itself refers to the petition of Harris Sr. "FOR THE
LEGITIMATION OF HIS MINOR GRANDDAUGHTER."
The decree nowhere categorically declares Harris Sr. to be the child's
father. In its preamble, it erroneously paraphrases Harris Sr.'s petition
as stating that "he is the natural father" of the child. The operative

order merely grants the petition of Harris Sr. and declares that the child
shall thenceforth be known as Precious Hannah Harris. Certainly, this
order is cl early compatible with the notion that the beneficiary was
considered to be the child of Harris Jr. What was obviously contemplated by all concerned was a decree declaring the beneficiary to be
the legitimate child of Harris Jr., not of Harris Sr. Under these circumstances, it seems to me that, in the light of the unambiguous recitals
in the underlying petition and supporting affidavit, we must read the
"he" in the phrase just quoted as referring to Harris Jr. rather than
Harris Sr.

Apart from this one ambiguity flowing from the manifestly incorrect
recital in the decree's preamble, there is nothing whatsoever in the
record to support the conclusion, .stated in the majority opinion, that
"The legitimation proceeding did not accomplish its purpose" and that
the decree "declares Mr. Harris, Sr., to be the father" (p. 3). In my
view, the decree should be accepted as sufficient to establish the beneficiary's legitimation as the child of Harris Jr.
Even if the decree be accepted as sufficient to establish legitimation,
however, petitioner still must prove that the beneficiary was in the
"legal custody" of Harris Jr. at the time of the decree, as required by
section 101(b)(1)(C) of the Act 1. The majority opinion holds that such
legal custody in Harris Jr. has not been shown. I disagree.
' On the surface, if the legitimation decree could be accepted without more as establish45

Interim Decision #2308
The provision relating to legitimated children finds its origin in the
Immigration and Nationality Act of 1952. The prior statute, while
conferring nonquota status on the minor, unmarried children of United
States citizer 8, 2 did not define the term "child" except to exclude relationships by adoption. 3 I have found nothing in the legislative history of
the 1952 Act provision which expressly discusses the "legal custody"
requirement or indicates why Congress enacted it. It seems clear,
however, from the general discussion of the suggested changes that
Congress was concerned with possible loopholes for fraud_ Experience
through the y ears had shown that many frauds had been perpetrated by

United States citizens seeking to bring imposters to this country as
their children See Senate Report No. 1515, 81st Congress, 2d Session,
pp. 468-469. Insofar as concerns legitimated children, it is fairly inferable that the purpose of the "legal custody" requirement was to prevent
abuse through ad hoc legitimation by a putative father who had had
little or no contact with the child and who had obtained the legitimation
solely for the purpose of circumventing the immigration laws.
If the statt.te required "actual custody" or "physical custody" or even
mere "custody", there could be no doubt that Harris Jr. could not meet
these conditions, for it is clear that he was physically far removed from

the beneficiary at the time of the legitimation and had been for almost
three years. the term "legal custody", however, is much broader and
encompasses relationships which can be constructive as distinguished
from actual. If a small child were away at boarding school when its
parents married and thereby rendered it legitimate, there can be no
doubt that the child would be considered constructively in the legal
custody of the parents, even though actually it was in the custody of the
school.
On the record in this case, it seems to me that the beneficiary can be
considered as having been in the legal custody of Harris Jr. at the time
of the legitimation, even though she may have been in the actual possession of her mother. Although he never lived with the child's mother,
Harris Jr. supported the child while he was still in Liberia. Before he
left for this country as a student, he acknowledged to Harris Sr. that he
ing that the beneficiary is Harris Jr.'s child, all the requirements of section 101(b)(1)(B) of
the Act would seem to be met, since petitioner's marriage to Harris Jr. obviously occurred
before the beneficiary reached her eighteenth birthday. The term "child", however, is a
defined term. If the beneficiary is to be regarded as Harris Jr.'s legitimated child, for
immigration purposes she must also meet the requirements of section 101(b)(1)(C), including its "legal custody" provision. If the beneficiary is considered Harris Jr.'s illegitimate
child, a different set of principles comes into play and petitioner must show the existence
of a close family unit among all three before she can be recognized as the child's
stepmother within the meaning of section 101(b)(1)(B).
2 Section 4(a), Immigration Act of 1924, 8 U.S.C. 204(a) (1946 ed.)
3 Section 28(m), Immigration Act of 1924, 8 U.S.C. 224(1) (1946 ed.)

46

Interim Decision #2308
was the child's father and he asked Harris Sr. to file legitimation
proceedings in his behalf in the Liberian court, later confirming this
request in writing from the United States. The child and her mother
lived for a time in the home of Harris Jr.'s parents and after they moved
out Harris Sr. continued to support the child. By that time, Harris Jr.
on his limited income as a student was unable to make substantial
contributions. Petitioner informs us in her brief on appeal that Harris
Jr. acted at the direction of his father, an attorney, in stopping regular
payments and relying on the latter to support the beneficiary, in keeping with the African custom which requires able parents to care for their
children and dependents until their children complete school.
There is no showing that Harris Jr. was remiss in any legal obligation
to his child. His failure to be present in court for the legitimation is
understandable in view of the distance and expense involved. Harris Sr.
acted in his son's behalf, not only in obtaining the legitimation decree
but also in supporting the beneficiary. It seems to me that custody was
in Harris Jr. as much as it could be under these circumstances, and that
he should be considered as having constructive custody of the beneficiary
at the time of the legitimation.
In Matter of W—, 7 I. & N. Dee. 373 (BLA. 1956), where consent on
,

,

the part of the natural mother to legitimation by the putative father was
assumed by this Board, we held that by such consent the natural mother
agreed to transfer of custody to the father. In the case now before us,
the natural mother of the child expressly consented to the legitimation
by Harris Jr.
This case is distinguishable from Matter of Amado and Monteiro, 13
I. & N. Dec. 179 (BIA 1969), and the numerous cases which preceded it,
in which we required a showing of a close family relationship before we
would recognize a petitioner as the stepmother of her husband's il'

legitimate child. The beneficiary in this ease has been duly legitimated.

this record, there is no reason to suspect the type, of fraud which
motivated Congress to impose the "legal custody" requirement.
I would sustain the appeal.
Board Member Louisa Wilson has authorized me to state that she
joins in this dissenting opinion.
On

47


MAI LE OF P—
In DEPORTATION Proceedings
A-10952893
Decided by Board June 5, 1958

Suspension of deportation—Alien deportable under section 241(a)(2) of 1952
act as "remained longer"—Eligibility for suspension must be established

under section 244(a)(5) of act.
Allen deportable under section 241(a) (2) of the act as "remained longer" is
within terms of paragraph (9) of section 244(a) of the act and, hence, Is
ineligible for suspension of deportation under paragraph (3) of section
244(a).

ClIARGE •
Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2)1—Remained
longer than the permitted time after admission as a nonimmigrant
seaman [section 3, Act of 1924; S U.S.C. 203, 1940 ed.]
BEFORE THE BOARD

Discussion: On March 11, 1958, this Board dismissed respondent's
appeal from the special inquiry officer's decision of November 14,
1957, denying his application for suspension of deportation, but authorizing his voluntary departure and providing for his deportation
on the charge contained in the order to show cause in the event of his
failure to so depart. The case is again before us on the motion for
reopening of the proceedings for reconsideration of the respondent's
eligibility for suspension of deportation. The motion will be denied.
The respondent is a. 28-year-old native and citizen of Greece who
last entered the United States on January 26, 1951, at Newport
News, Virginia, as a seaman. Since he has remained in the United
States longer than the permitted period, his deportability on the
above-stated charge, which is uncontested here, is established.
The only issue now before us is whether the respondent's application for suaponoion of deportation should he treated no felling
under section 244(a) (3) of the Immigration and Nationality Act
under which he could qualify for discretionary relief by the Attorney General, or under section 244 (a) (5) of the same act under
which he cannot qualify because he does not fulfill the 10 years'
residence requirement of subsection (5).

562711 51-8

The special inquiry officer originally held, and we previously
agreed, that a prior precedent decision of this Board (Hatter of
B—, A-10474501, 7 I. & N. Dec. 400) was dispositive of the issues
in this case. In that case, we held that an alien admitted as a
crewman is statutorily ineligible for suspension of deportation under
section 244(a) (3) of the Immigration and Nationality Act if he is
deportable, as is this respondent, under the provisions of section
241(a) (2) of that act as a "remained longer," and that in such
a situation his eligibility for suspension of deportation can be established only under section 244(a) (9) of the act. It is set forth in the
present motion, however, that the decision of the Supreme Court
of the United States in the case of Dessalernos v. Savoretti rendered
on April 14, 1059 (356 U.S. 269), calls for a contrary conclusion.

The Dessaloraos case, supra, involved an alien who was deportable
on one of the grounds specified in section 244(a) (5) of the Immigration and Nationality Act (8 U.S.C. 1254), but who sought suspension of deportation under section 244(a) (1) of the Immigration
and Nationality Act, and was not one of the classes expressly excluded from consideration thereunder because not one of the classes
specified in section 19(d) of the 1917 act (former 8 U.S.C. 155).
Here, however, the section involved is 244(a) (3) of the 1952 act
which specifically provides that suspension of deportation is available thereunder only to an alien who "+
is not within the provisions of paragraph (4) or (5) of this subsection * * *." This
language is not contained in section 244(a) (1).
We hold that the foregoing language of subsection (3) is a clear
mandate from the Congress that it and subsection (5) be considered
mutually exclusive. Therefore, and in view of the difference in
language between 244(a)(1) and (3), we conclude that the Dessalernos case (supra) has no application to the present situation.
Accordingly, we will deny the present motion.
Order: It is ordered that the motion be and the same is hereby
denied.
Editor's Nate: On April 27, 1959, the United States District Court, District
of New Jersey, in Patindkis v. Bouchard, Civil Action #289-59, upheld the
action of the Board in the subject case and denied application for a preliminary injunction.

58


Interim Decision

#2211

MATTER OF UGRICIC

In Section 203(aX7) Proceedings
A-19561394

Decided by District Director October 13, 1972
Application for classification as a conditional entrant under section 203(aX7) of
the Immigration and Nationality Act, as amended, is denied since applicant
has offered no credible testimony or other evidence that he was persecuted or
had reason to fear persecution in Yugoslavia and, hence, has failed to
establish that he fled from Yugoslavia because of persecution or fear of
persecution on account of race, religion or political opinion. Further, while
applicant is apparently unwilling to return to Yugoslavia and stated that if
returned he would be forced to enter military service, he has failed to
establish that his unwillingness to return to Yugoslavia is on account of race,
religion or political opinion.

The applicant is a citizen of Yugoslavia, single, born June 11,
1954, in Kozljak, Yugoslavia. He entered Italy during March 1972
upon presentation of his Yugoslav passport at Trieste, Italy. and
currently resides at Padriciano, a camp for refugees, which is
maintained and administered by the Government of Italy. He is
seeking classification as a conditional entrant under section
203(a)(7) of the Immigration and Nationality Act, as amended.
Prior to coming to Italy, he resided with his parents in the town
of his birth. He completed eight years of schooling in Yugoslavia.
While in his native country, he was employed as a laborer and

farm worker. He has no close relatives in the United States.
The Government of Italy denied the applicant's request for
asylum on the ground that he is not a political refugee. However,
since he is a native of an area of Yugoslavia that prior to World
War II was a part of Italy, he is permitted to remain in Italy as is
any other native of that area who requests such permission,
because Italy still regards that area of Yugoslavia as being Italian
territory. Natives and citizens of Yugoslavia who come from any
other area of Yugoslavia are returned by the Government of Italy
to Yugoslavia when they are denied asylum in Italy.
In his application, the applicant stated that he left Yugoslavia
because he did not like the political system and that he wished to
emigrate to a democratic country. He added that he is of the
Catholic faith. During the course of an interview held before an
384

Interim Decision #2211
officer of the Immigration and Naturalization Service he was
unable to elaborate on his statement that he did not like the
political system of Yugoslavia and it was evident that he had little
or no knowledge of the workings of the Communist Party of
Yugoslavia or what it advocates, nor of the political, economic or
other operations of the Government of Yugoslavia. He was afforded the opportunity to specify how he had been persecuted
while in Yugoslavia or why he feared persecution in that country,
but was unable to do so. He did state that if he returned to
Yugoslavia he would be forced into entering the military service
as he had reached the age for induction therein.
The applicant has stated that he had attended church in
Yugoslavia without hindrance and without suffering criticism,
arrest, or ostracism for such attendance. He claims that on one
occasion, approximately two years ago, he had been ridiculed for
his churchgoing. However, he could not identify the ridiculing
individual or individuals nor could he recall the events leading to
that incident
Section 203(a)(7) of the Immigration and Nationality Act reads
as follows:
Conditional entries shall next be made available by the Attorney General,
pursuant to such regulations as he may prescribe and in a number not to exceed
six per centum of the number specified in section 201(aXii), to aliens who satisfy
an Immigration and Naturalization Service officer at an examination in any

non-Communist or non-Communist dominated country, (A) that (i) because of
persecution or fear of persecution on account of race, religion, or political opinion
they have fled (I) from any Communist or Communist-dominated country or
area, of (II) from any country within the general area of the Middle East, and (ii)
are unable of unwilling to return to such country or area on account of race,
religion, or political opinion, and (iii) are not nationals of the countries or areas
in which their application for conditional entry is made; or (B) that they are
persons uprooted by catastrophic natural calamity as defined by the President

who are unable to return to their usual place of abode. For the purpose of the
foregoing the term "general area of the Middle East" means the area between
and including (1) Libya on the west, (2) Turkey on the north, (3) Pakistan on the
east, and (4) Saudi Arabia and Ethiopia on the south: Provided, That immigrant

visas in a number not exceeding one-half the number specified in this paragraph
may be made available, in lieu of conditional entries of a like number, to such
aliens who have been continuously physically present in the United States for a
period of at least two years prior to application for adjustment of status

The applicant is not within the purview of part (B) of section
203(aX7). Indeed the President to date has not defined any catastrophic natural calamity within the meaning of that part. Therefore, in order to even be considered as qualifying for conditional
entry the applicant must meet the requirements of part (A)(i), (ii)
and (iii) of section 203(aX7). The applicant has offered no credible
testimony or other evidence that he was persecuted or had good
385

Interim Decision #2211
reason to fear persecution in Yugoslavia. Ergo, he has failed to
establish that he fled from that country because of persecution or
fear of persecution on account of his race, religion or political
opinion. Similarly, while he is apparently unwilling to return to
Yugoslavia, the record does not support a finding that his unwillingness is on account of race, religion or political opinion. Thus, the
only one of the three qualifications which the applicant meets is
that he is not a national of Italy, the country in which he applied
for conditional entry, despite the fact that Italy, for nationalistic
reasons, regards as Italian territory the part of Yugoslavia in
which he was born. Accordingly, the application must be denied.
ORDER: It is ordered that the application for conditional entry
under section 203(aX7) of the Immigration and Nationality Act, as
amended, be and is hereby denied.

386


Interim Decision #2783

MATTER OF COTE
In Exclusion Proceedings

A-20873404
Decided by Board March 6, 1980
A Canadian citizen truck driver of a United States firm who seeks to deliver automobiles
manufactured in Canada into the United States and to pick up automobiles in the
United States and transport them back to Canada is admissible to the United States as
a visitor for business under section 101(a)(15)(1B) of the Act as the transportation
function he performs is a necessary incident to international trade and the unloading
of automobiles in the United States by the applicant is merely incidental to his
primary purpose of transporting them into the Country.
EXCLUDABLE:
Order: Act of 1952—Sec. 212(a)(20) [8 U.S.0 1182(a)(20)] — Immigrant — no visa
ON BEHALF OF SERVICE
George Indeliento
Trial Attorney

ON BEHALF OF APPLICANM
Sam Bernsen, Esquire
1000-16th Street, N.W.
Washington, D.C. 20036

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

In a decision dated September 15, 1978, an immigration judge admitted the applicant to the United States as a nonimmigrant visitor for
business under section 101(a)(15)(B) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(B). The Immigration and Naturalization
Service has appealed. The appeal will be dismissed.
The applicant is a native and citizen of Canada and resides in
Canada. At the time of the hearing, he was 30 years old. He is employed
by Anchor Motor Freight Inc., as a truck driver.
Anchor Motor Freight, Inc. (Anchor Freight), is a Delaware
corporation and a wholly-owned subsidiary of Leaseway Transportation., Inc., of the United States. The parent corporation controls
Leaseway Limited of Canada, which in turn is the parent corporation
of Charlton Transport Limited, Quebec (Charlton). Licenses for transportation of General Motors vehicles in the United States are owned by
Anchor Freight; the licenses for transportation of General Motors
vehicles in Canada are owned by Charlton. A lease agreement exists
336

Interim Decision #2783
between Anchor Freight and Charlton for use of each other's facilities,
including transportation licenses, trucks owned by Charlton, trailers
owned by Anchor Freight, and the truck drivers employed exclusively
by Anchor Freight.
Anchor Freight employs 132 drivers. Approximately 90 percent of
them are United States citizens or permanent residents. The applicant
is one of 12 to 15 Canadian citizen drivers employed pursuant to the
labor-management agreement with the International Brotherhood of
Teannsters which requires the employment of Canadian as well as the
United States drivers' Canadian drivers are assigned only shipments
destined to cross the border between the United States and Canada.
They are not assigned to transport automobiles from one point in the
United States to another.
The applicant's employment is as follows. He travels from his home
in Canada to Anchor Freight's track terminal in Champlain, New
York, where he obtains a tractor-trailer. From the terminal he
proceeds to St. Therese, Quebec, Canada, where he loads the trailer
with new General Motors automobiles. The applicant returns to Champlain, New York, receives his manifest, and proceeds to deliver the
automobiles to various dealerships in New York and New Jersey.
Delivery requires 3 to 5 days, after which the applicant either returns
to the terminal at Champlain and repeats the route just described or
goes to Tarrytown, New York, to pick up a load of automobiles and
transport them to St. Therese, Canada.
The applicant may work up to 70 hours per week. Of that time, 4 to 8
hours are expended in Canada, and the remainder, extending over 3 to
5 days, is expended in the United States. For this work, the applicant
receives a contract price for hauling the load and mileage for pulling
the trailer empty. He is paid by Anchor Freight in Canadian funds by a
check drawn on a Canadian bank.
On appeal, the Service contends that the applicant is not admissible
under section 101(a)(15)(B) of the Act because he is seeking to enter
the United States to perform local employment for hire, and not as a
visitor for business. The Service contends that the applicant's employment is manual labor, not intercourse of a commercial character, and
that the respondent must have an, immigrant visa in order to pursue it.
As evidence that the applicant is engaged in local employment for hire,
the Service points to the following factors. The applicant works for a
United States corporation. He drives to the United States to begin
work. His truck is maintained in the United States, as are his employment records. Most of the work that he does is in the United States,
and he spends most of his work week in the United States.
The Union has voiced no opposition to the applicant's admission.
9R7

Interim Decision #2783
in response to the Service's contentions, the applicant submits that

his activities have been gonstrued in previous administrative decisions
io be "business" within the meaning of 101(a)(15)(B) of the Act. He
contends that it has been the Immigration and Naturalization Sery
lee's policy to admit truck drivers to the United States as visitors for
busineas (B-1) for years,° and that the Service should be estopped from
enforcing a change in that policy against the applicant because the
service advised Anchor Freight that its drivers would be admissible to
the United States as nonimmigrant visitors for business (B-1) and that
Anchor Freight has relied on that advice. He also contends that the
change in policy is invalid because it was not accomplished in accordance with the Administrative Procedure Act'
Section 101(a)(15)(B) of the Act defines a nonimmigrant visitor for
business by implication, as:
[Ajn alien (other than one coining for the purpose of study or of performing skilled or
unskilled labor or as a representative of foreign press, radio, film, or other foreign
information media coming to engage in such vocation) having a residence in a foreign
country which he has no intention of abandoning and who is visiting the United States
temporarily for business...

The term "business" as used in section 101(a)(15)(B) has been held
nat to include ordinary labor for hire, but to include only intercourse of
a commercial character. See v. U.S. rel Aibro, 279 U.S. 231
(1929); Matter of Hire, 11 I&N Dec. 824 (BIA 1965, 1966; A.G. 1966);
Matter of P—, 8 I&N Dec. 206 (BIA 1958). However, an alien need not
be considered a "businessman" to qualify as a business visitor, if the
function he performs is a necessary incident to international trade or
commerce. Matter of Hira, supra; See Matter of W—, 6 I&N Dec. 832
(3IA 1955); Matter of R , 3 I&N Dec. 750 (BIA 1949).
We find that the applicant is engaged in "business" within the
meaning of section 101(a)(15)(B) of the Act because the function he
performs is a necessary incident to international trade. Although the
applicant is an employee, as opposed to an independent businessman,
he is actively engaged in the transportation of automobiles across the
international boundary. That transportation is an essential link in
International trade_ Unloading of the automobiles by the applicant is a
—

2 The applicant submitted copies of prior Operations Instructions 2I4(b), which reflect
that truck, bus, and van drivers and helpers engaged solely in international transport
and incidental loading and unloading at terminal points were admissible to the United
States as nonimnhlgrant visitors for business (B-1) at least between June 3, 1953, and
sometime after December 1, 1956. Counsel for the applicant contends that the provision
wits deleted from the Operations Instructions not because of a change of policy, but in a
move to reduce the volume of the Operations Instructions. The Service has not disputed
the content of the provision or counsel's explanation for its deletions.
As our decision is favorable to the applicant, we will. not address his contentions
individually.

338

Interim Decision #2788

necessary function of delivery and is merely incidental to the primary
purpose of transporting them into the United States. See Matter of
R—, supra. Although the applicant's trips are frequent—almost continuous each is temporary for a business purpose, and after each, the
applicant intends to return to Canada.
Accordingly, the applicant is admissible as a nonimmigrant visitor
for business.
—

ORDERS The appeal is disinissed.

339


Interim Decision #2823

MATTER OF KHALIK
In Deportation Proceedings
A-30332952
Decided by Board August 28, 1980
(1) An immigration judge cannot go behind the judicial record to determine the guilt or
innocence of an alien for a criminal offense, so a record of conviction upon a guilty plea
constitutes a conviction for immigration purposes.
(2) Violation of the Michigan statute prohibiting issuance of a check without sufficient
funds is a crime involving moral turpitude since it includes the element of intent to
defraud. Mich. Comp. Laws Ann. section 751131.
(3) Despite the facts that the respondent's family members are all United States
citizens and he is currently employed by his brother, a discretionary denial of a section
212(c) waiver is warranted by his continued criminal behavior and evidence of his
dishonest character.
CHAR=

Orden Act of 1952—Sec. 241(a)(4) [8 D.S.C. 1251(a)(4)j—Convicted of two crimes
involving moral turpitude
ON BEHALF OF

BY:

RESPONDENT. Harvey R Bruner, Esquire
Bruner & Shafran
150 Engineers Building
Cleveland, Ohio 44114

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

In a decision dated December 7, 1978, the immigration judge found
the respondent deportable under section 241(a)(4) of the Immigration
and Nationality Act, 8 U.S.C. 1251(a)(4), as an alien who has been

convicted of two crimes of moral turpitude not arising out of a single
scheme of criminal misconduct. He further denied the respondent's
application for relief pursuant to section 212(c) of the Act, 8 U.S.C.
1182(c). The respondent has appealed from that decision. The appeal
will be dismissed.
The respondent is a 39-year-old native of Jordon. The immigrant
visa issued to the respondent indicates that he is a stateless person.
The record reflects that the respondent entered the United States on
March 18, 1970, as a lawful permanent resident. The respondent's
518

Interim Decision #2823
father, three brothers, and a sister are United States citizens, although
the record indicates that his father resides in Israel.
The Order to Show Cause charges that the respondent was convicted
of issuing a check without sufficient funds under $50 on July 5, 1975, In
the Recorder's Court of the City of Detroit, and of issuing a check
without sufficient funds over $50 on August 21, 1975, in the Circuit
Court for Wayne County, Michigan. Evidence of both convictions is
included in the record which reflects that the respondent pleaded
guilty to both offenses and that he was represented by counsel, at least
on the first offense.
The immigration judge examined the statute which the respondent
was found to have violated and concluded that the crime in question
was one involving moral turpitude. He, therefore, determined that the
respondent was deportable as charged. We agree.
On appeal, the respondent contends that he was not convicted of two
crimes involving moral turpitude. He argues that his conduct was a
result of his misunderstanding as to how checking accounts function
and that he pleaded guilty without understanding the import of his
plea. Thus, he asserts that he was not, in fact, "convicted" of the
offenses. He further states that the immigration judge erroneously
determined that the crimes in question involved moral turpitude because he made no inquiry into the respondent's intent.
It is well established that, insofar as deportation proceedings are
concerned, an immigration judge cannot go behind the judicial record
to determine the guilt or innocence of an alien. See Matter of
McNaughton,16 I&N Dec. 569 (BIA 1978); Matter of Fortis,141&N Dec.
576 (BIA 1974); Matter of Sirhan, 13 I&N Dec. 592 (BIA 1970). Inasmuch as the records of conviction indicate that the respondent pleaded
guilty to both offenses, the immigration judge properly found that the

respondent was convicted of the alleged crimes.
The Michigan statute under which the respondent was convicted
renders guilty—
Any person who, with intent to defraud, shall make, draw or utter any check, knowing
at the time he has not sufficient funds. Mich. Comp. Laws Ann. section 750.131.

We have held that where a statute includes intent to defraud as an
essential element of a bad check offense, the crime is one involving
moral turpitude. See Matter of McLean, 12 I&N Dec. 551 (BIA 1967);
Matter of Stasinski, 11 I&N Dec. 202 (BIA 1965); Matter of Bailie, 10
I&N Dec. 679 (BIA. 1964). It is clear from the language of the Michigan
statute which the respondent violated that intent to defraud is an
essential element of the offense. Therefore, the immigration judge
properly determined that the respondent was convicted of two crimes
involving moral turpitude. Accordingly, we agree that deportability

Interim Decision #2823
was established by clear, convincing, and unequivocal evidence.
In denying the respondent's request for 212(c) relief, the immigration judge considered the fact that the respondent has strong family
ties in this country. He noted, however, that on October 24, 1978, a
month and a half before the hearing, the respondent pleaded guilty to a
charge of petty theft in the Bedford Municipal Court in Bedford, Ohio.
The respondent's sentence of 30 days in jail was suspended, but he was
ordered to pay a fine of $200. The immigration judge found that this

conviction, which was not mentioned in the waiver application, indicated that the respondent had not been rehabilitated. He further
determined that the respondent's testimony denying his previous
criminal activity, as well as some debts alleged to be owing, was not
credible and evidenced the respondent's lack of remorse for his behavior. He; therefore, concluded that the respondent failed to establish
that he was deserving of a grant of discretionary relief.
In Matter of Morin, 16 I&N Dec. 581 (BIA 1978), we held that a
determination as to whether a favorable exercise of discretion is
warranted on a section 212(c) application requires the immigration

judge to balance the positive and adverse factors presented. Among
the negative factors to be considered are the nature and underlying
circumstances of the exclusion ground at issue, the presence of additional significant violations of this country's immigration laws, the
existence of a criminal record and, if so, its nature, recency, seriousness, and the presence of other evidence indicative of a respondent's
bad character or undesirability as a permanent resident of this country. Favorable considerations have been found to include such factors
as family ties within the United States, residence of long duration in
this country (particularly when the inception of residence occurred
while the respondent was of young age), evidence of hardship to the
respondent and family if deportation occurs, service in this country's
Armed Forces, a history of employment, the existence of property or
business ties, evidence of value and service to the community, proof of
a genuine rehabilitation if a criminal record exists, and other evidence
attesting to a respondent's good character (e.g., affidavits from family,
friends, and responsible community representatives).

In applying for a waiver of deportability under section 212(c), the
burden is on the respondent to establish that he merits a favorable
exercise of discretion. Matter of Morin, supra. We do not believe that
the respondent has successfully met that burden.
The respondent's family members are all United States citizens,
although his father is presently domiciled in Israel. These family ties
and his employment by his brothers in their grocery stores are factors
favorable to the respondent. However, the respondent's continued
criminal behavior and his denial of any wrongdoing present strong
520

Interim Decision #2823
evidence of his dishonest character which, we believe, outweighs the
favorable factors in this case. Therefore, as we are not convinced that
the respondent has shown himself to be worthy of a favorable exercise
of discretion, we shall affirm the immigration judge's denial of section
212(c) relief.

Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.