Interim Decision #1519

MATTER

or

JANCAR

In Visa Petition Proceedings
A-13512978

Decided by Board November 2, 1985
Since under the law of Yugoslavia an illegitimate child may be legitimated
by acknowledgment of the natural fatten a child born out of wedlock in

1944 in Yugoslavia, whose birth certificate establishes such acknowledgment
In 1944 and reflects confirmation by her mother of the statement of acknowledgment, is, -in relation to her natural father, a' child within the meaning
of either section 101(b) (1) (A) or (0) of the Inimisration and Nationality
Act, as amended,,and is, therefore, eligibletfor preference quota status under
section 208(a) (3) of the Act.

The case comes dorward on appeal from the order of the District
Director, Cleveland, Ohio, dated May18, 1965, denying the visa petition for the reason that an illegitimate child derives no status,
privilege or benefit under the Immigration and Nationality Act

from or through the relationship of the child to its putative father.
The petitioner, a native and citizen of Yugoslavia, a- permanent
resident alien since December 28, 1950, 52 years old, male, seeks preference quota status under section 203(a) (3) of the Immigration and

Nationality Act on behalf of his unmarried illegitimate daughter, a
native and citizen of Yugoslavia, 21 years old. In support of the
visa petition there has been submitted a Yugoslavian birth certificate
showing the beneficiary's mother as Matilda Jancar and bearing a
notation that the petitioner on. July 14, 1944 signed a statement at
the local Youth Center in the district of Radgona that he is the
child's father and that the child's mother confirmed the statement.
In connection with the appeal the petitioner states at the time of his
daughter's birth, he was threatened with:mobilization into the German Army and was in hiding. In 1945, fearing Communist persecution he fled the country never to return again, thus preventing him
from marrying his daughter's mother. He States that he brought
the beneficiary here as soon as he was comfortably settled and had
,

his own home; that the beneficiary is his only heir and he has willed

all his estate to her.
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Interim Decision #1519
On the date of October 1, 1965 the District Director, Cleveland
District, after reference to material furnished by the Library of
Congress dated September 8, 1965 has concluded that no change
should be made in his original decision. Ile 'concludes "a status sim,
to that, of a child born in wedlock" would not appear, to meet ilar
the demands of "definitions",with reference to the requirements of
section 101(b) (1) (A) nor have the requirements of section 101(b)
(1) (C) with reference to custody been met as the subject was not in
custody of the legitimating parent until after her eighteenth birthday since the beneficiary's only entry into the United States on December 10, 1904 was effected when she was 20 yea= of age. The
issue, then is whether the act of acknowledgment of paternity by the
father legitimated the beneficiary under Yugoslavian Law.
The file contains a report dated September .3, 1965, entitled
"Acknowledgment and Legitimation of a child -born out- of wedlock
under Yugoslav Law," prepared by a Doctor Fran Gjupanovich, of
the European Law Division of the Library of Congress. We shall
deal with the pertinent portions of this report.

-

%

The new socialist system introduced - in Yugoslavia by the 1946
Constitution paid special attention to childien born out of wedlock.
Under the Constitution of 1946, Article 26, as well as under.that of
1963 Article 58, now in force, children born out of wedlock are considered equal to those born in wedlock with respect to tkeir rights
and duties toward their parents and the fights and duties of the
parents toward them. The term "legitimate" and "illegitimate" are
no longer used in domestic relations legislation. In order for a
child born out of wedlock to realize its rights, its-extramarital paternity must be established. This may be effected. either through a
voluntary acknowledgment. of paternity or through a, court action
'declaring it. The principle governing the status of a child born out
of wedlock has been fully implemented by the La* of December 1,
1947, on Parent and Child Relations. . Acknowledgment as an institution creating rights and duties
between a child and the natural father, as established in the 1947
Law, was unknown under the Austrian Civil Code of 1811 which
dealt- only with the evidence in proving extramarital paternity for
the sole purpose of the child's support. The ,provisions of the Austrian Civil Code of 1811 were repealed by the enactment of the 1947
Lam 'on Parent and. Child Relations. litisuant to section 43 of the
same Law, the provisions of this Law —were also to apply to cases
involving parent and child relations, which had arisen before the
coming into force of the said Law, provided, however, no final decision was rendered befoie the 1917 Law 'became effective. The provi-

866

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Interim Decision #1519

sions on legitimation under the Austrian Civil Code of 1811 and
.under the 1947 Law on Parent and Child Relations both provided
for legitimation, under certain circumstances, either by the subsequent marriage of the parents or by court decree, the illegitimate
child thereby acquiring the status of a child born in wedlock.
The 1947 Law provides that the establishment of paternity is
admissible and that extramarital paternity may be established by the
voluntary acknowledgment of the natural father or in a court action
by final decree (sections 4 and 24). The person who admits that
he is the father of a child born out of wedlock is considered as such
' (section 24, paragraph I). Acknowledgment of paternity on the part
of the father is a unilateral act which becomes effective when the
child's mother agrees to it (section 24, paragraph 3). Acknowledgment of paternity, in order to be effective, must be made in a form
prescribed by law. Therefore, the father may acknoWledge the
child either before a registrar, in a public document, or in his will
(section 24, paragraph 2). The 1947 Law requires no other formal-'
ity for the acknowledgment before the registrar. According to an
authority, the father makes the statement of acknowledgment personally before the registrar, either immediately after the birth of
the child or at any time later. The registration in the public records
of births is conclusive evidence of the acknowledgment and is irrevocable.
. Acknowledgment of paternity has retroactive effect and is effective
with respect to everyone. Family relations thenceforth exist between
the child and the natural father. Both the father and the mother
exercise parental power over the child. The child acquires the family name of its mother, but it may take that of its father provided
the parents agree upon it.
In summary, under the law now in force in Yugoslavia, a child
born out of wedlock may acquire the status or a status similar to
that of a child born in wedlock by three methods, i.e, legitimation
by subsequent marriage, by court decree, or by acknowledgment of
the natural father. A child born out of wedlock before the enactment of the 1947 Law on Parent and Child Relations may be
acknowledged only in accordance with the provisions of this Law if
no final decree on the matter was rendered before the 1947 Law
became effective. The report concludes that it is not possible to find
any cases or authoritative comment on how today's Yugoslav courts
would specifically interpret the rights and duties arising from an
acknowledgment under the old law-. There ia, however, ease law

which shows an inclination on the part of present-day courts to
367

Interim Decision #1519

•

adjudicate under the 1947 Law the content of parent and child relations which Were formalized under the old law.
It therefore appears from the report of the Library of Congress
that under the law now in force in Yugoslavia, a child born out of

wedlock' may acquire the status or a status similar to that of a child
born in wedlock by three methods: legitimation by subsequent marriage court decree; and by acknowledgment of the natural father.
The Service 'has seized upon the phrase "status similar to that of a
child born. in Wedlock" in order to predicate its denial. An examine- ,
ionftherpdcasthirewnsdolybcaue
the inheritance rights of an acknowledged. child` as compared to a

child born in wedlock may differ in the various Yugoslav jurisdictions. However the report reiterates several times that legitimation
through acknowledgment of paternity is effective with respect to
everyone; that family relations thenqlorth exist between the child

:and the natural father; and that both the father and the mother
exercise parental power over the child. Summarizing, the report
concludes acknowledgment by the natural father is one of the three
methods of, legitimation of a child born out of -wedlock the other
two being subsequent marriage of the parents or court decree.
The birth certificate establishes that the father acknowledged the
child. on July 14, 1944- and that the child's mother confirmed the
statement of acknowledgment. It therefore appears that ever since
the beneficiary was five months old, the petitioner has regarded her
as his child. The beneficiary appears to meet the requirements of •
either section 141(b) (1) (A) or (C) of the Immigration and Nationality Act? Under the Yugoslav Law, the beneficiary is the legitimate child of the petitioner. The appeal will be sustained and the
petition approved.

ORDER: It is ordered that the appeal be sustained and the peti' tiOn be approved for preference quota status under section 2.03(a)
(3)of the Immigration and Nationality Act.
I Similar conclusions were reached after the introduction of the Communist
or 'Socialist systems In the following cases: Matter of Galling, 9 & N. Dee.
518 (1981)—Hungery; Matter of Zrzyewelci. 8 L & N: Dec. 73 (1958)—Poland;
unreirrted Matter of Pajor, A-14192231 (Horeb 38, 1965) —Itumanian.

368


Interim Decision #2621

MATTER OF SULLEN

In Visa Petition Proceedings
A-21778510
Decided by Board November 7, 1977
(1) In visa petition proceedings, the burden of establishing the claimed relationship is upon
the petitioner.
(2) In order to qualify as a "daughter" for preference purposes under section 203(a)(2) of
the Act, 8 U.S.C. 1153(a)(2), the beneficiary must once have qualified as the child of the

petitioner under section 101(b)(1) of the Act, 8 U.S.C. 1101(a)(I).
(3) The term "legitimate" as used in section 101(b)(1)(A), 8 U.S.C. 111)1(a)(1)(A), refers
solely to a child born in wedlock. The beneficiary was not born in wedlock, and she
therefore cannot qualify as the petitioner's legitimate child.
(4) Under the law of New York; the petitioner's home state of record, the natural parents
must marry in order to legitimate the child.
(5) Under the law of Grenada, the beneficiary's residence and domicile, a child born before
the marriage of his parents shall be considered their legitimate child from the date of
their marriage or from the time of the passage of the Legitimation Ordinance of that
country, whichever happened last; or the Supreme Court may issue a decree that a
person is legitimated.
CO The petitioner has not presented evidence to show that the beneficiary was legitimated
under the law of the child's residence or domicile, or under the law of his residence or
domicile as required by section 101(b)(1)(C) of the Act, 8 U.S. C. I101(a)(1)(C).
ON Bion.A.Er or Purrrrormn: Benjamin Sneed, Esquire

209 West 125th Street
New York, New York 10027

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

The lawful permanent resident petitioner applied for preference classhication for the beneficiary as hie unmarried daughter under section
203(a)(2) of the Immigration and Nationality Act. In a decision dated
-.Aamil 19, 1977, the District Director denied the petition. The petitioner
1ias appealed. The appeal will be dismissed.
The petitioner is a native and citizen of Grenada. He was admitted to
thie United States as a lawful permanent resident alien on August 19,
1972. The beneficiary is a single female alien who is a native, citizen, and
resident of Grenada. She was born on August 1, 1953.

In support of his petition, the petitioner submitted an affidavit dated
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Interim Decision #2621
February 7, 1977, in which he stated that he is the natural father of the
beneficiary, and that he provided for and maintained the beneficiary
during the period that he resided with the beneficiary's mother in
Grenada. Also of record are two affidavits from individuals who state
that they are friends of the petitioner and have personal knowledge that
the petitioner and the beneficiary's mother lived together in Grenada
and that the beneficiary was born of that relationship. These affidavits
were executed in New York on February 5, 1977.
Further, the record contains a statutory declaration executed in Grenada on June 25, 1973. In that declaration a citizen of Grenada states
that she knows the petitioner; that the petitioner is the father of an
illegitimate child named Carmen Fay Ann; and that the mother of that
child is named Doris Bullen. A record of birth registration issued in
Grenada on March 5, 1974, is of record. That document reflects tha,t a
female child was born to Doris Sullen on August 1, 1953, and that the
child's name "Carmen Fay Ann" was added to the register on
November 4, 1953. The name of the.father of the child was not listed in
the birth registration record.
In visa petition proceedings, the burden of establishing the claimed
relationship is upon the petitioner. Matter of Brantigan, 11 I. & N. Dec.
493 (BIA 1966). In order to qualify as a "daughter" for preference
purposes, the beneficiary must once have qualified as the child of the
petitioner under section 101(b)(1) of the Act. Nazareno v. Attorney
General, 512 F.2d 936 (D.C. Cir. 1975), cert. denied, 44 U.S.L.W. 3201
(No. 74-1473); Matter of James,Interim Decision 2461 (BIA 1975); Matter of Coker, 14 I. & N. Dee. 521 (BIA 1974). The only subdivisions of
section 101(b)(1) which may possibly be relevant to this ease are (A) and
(C), which provide:
The term "child" means an unmarried person under twenty one years
of age who is—
-

(A) a legitimate child; or
(C) a child legitimated under the law of the child's residence or domicile, or under the
law of the father's residence or domicile, whether in or outside the United States, if such

legitimation takes place before the child reaches the age of eighteen years and the child
is in the legal custody of the legitimating parent or parents at the time of such
legitimation.

The term legitimate" as used in section 101(b)(1)(A) refers solely to a
child born in wedlock. See Matter of James, supra; Matter of Dela Rosa,
14 I. & N. Dec. 728 (BIA 1974); Matter of Kubicka, 14 I. & N. Dec. 303
(BIA 1972). The beneficiary was not born in wedlock, and she therefoie
cannot qualify as the petitioner's legitimate child. _
With respect to legitimation, the petitioner has not presented evidence to show that the beneficiary was legitimated under the law of the
379

Interim Decision #2621
child's residence or domicile, or under the law of his residence or
domicile as required by section 101(b)(1)(C) of the Act. Under the law of
New York, the petitioner's home state of record, the natural parents
must marry in order to legitimate the child.' See Matter of Archer, 10 I.
& N. Dee. 92 (BIA 1962).
Inasmuch as the beneficiary is a resident and domiciliary of Grenada,
we directed an inquiry to the Library of Congress to ascertain what the
law of legitimation is in that country. A memorandum of law prepared

by the Library of Congress dated September of 1977, is attached hereto
and made a part hereof. According to the information furnished by the
Library of Congress, under the law of Grenada, a child born before the
marriage of his parents shall be considered their legitimate child from
the date of their marriage or from the time of the passage of the
Legitimation Ordinance of that country, whichever happened last.
Further, the Supreme Court of Grenada may issue a decree that a
person is a legitimated person.
The petitioner has not demonstrated that he has complied with the
requirements of legitimation under the law of New York or Grenada.

Therefore, we conclude that on the basis of the record, he has failed to
sustain his burden of proving that the beneficiary qualifies as his daughter under section 203(a)(2) of the Act. We note that in his decision, the
District Director referred to section 201(b) of the Immigration and
Nationality Act which is inapplicable to this case since the petitioner is
not a United States citizen. Notwithstanding this irrelevant reference,
the decision of the District Director is affirmed. The appeal accordingly
is dismissed.
ORDER: The appeal is dismissed.
ADDENDUM

GRENADA

The few requirements for legitimation in Grenada are found in the
Legitimation Ordinance.' The parents must enter into a marriage, the
father must be domiciled in Grenada at the time of the marriage, and
neither party could be married to a third person at the time of the
illegitimate birth. 2 This marriage legitimizes the child from the date of
the marriage or from the time of the passage of the Ordinance
whichever happened last.
' Section 24, Domestic Relations Law, McKinney's Consolidated Laws of flew York..
Gren. Laws, c. 161 (1929), as amended

to date.

§ 3.
380

Interim Decision #2621
The Supreme Court may issue a decree that a person is a legitimated
person. 3 Such a person may obtain such a decree by applying to the
Supreme Court and submitting an affidavit confirming the same. The
applicant does not have to be domiciled in Grenada ar be a natural-born
British subject at the time he applies. Such a decree is binding on Her
Majesty and on all other persons.
This petition and its affidavit must be delivered to the Attorney
General, the respondent in the proceedings, one month before the
petition is presented or filed with the Supreme Court. The Court shall
determine whether any other persons shall be summoned to the proceedings and who may become parties to the proceedings and oppose the
petition.
Prepared by
(Mrs.) Jean V. Swartz
Senior Legal Specialist
American-British Law Division
Law Library, Library of Congress
September 1977

' Id. §4.

381


Interim Decision #2796

MATTER OF ZAMORA

In Exclusion Proceedings

A-17231545
Decided by Board

June 9, 1980

(1) The voluntary and intended abandonment of lawful permanent resident status by
the parent of a minor child who departs the United States in the custody and control of

such parent will be imputed to the child, who will also be deemed to have abandoned
his lawful permanent resident status.
(2) To the extent that Matter of Bauer,10 I&N Dec. 304 (BIA 1963), holds that a minor
alien can escape the consequences of an "entry" upon returning to the. United States
after along absence simply because he had departed under the custody and control of
his parents, it is overruled. Valenti v. Karnuth,1 F. Supp. 370 (N.D.N.Y. 1932) and
Rosenberg v. Fleuti, 374 U.S. 449 (1963), distinguished.
(3) Under rule that the intent of a parent is imputed to a minor child subject to the

parent's custody and control, a lawful permanent resident child who accompanied his
mother to Mexico in 1970 when she abandoned her residence, and who continued to live
in Mexico thereafter, lost his permanent resident status.
ON BEHALF OF APPLICANT:

Pro se

BY Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members
The applicant has appealed from a decision of the immigration
judge, dated April 18, 1979, excluding him from the United States as an
immigrant not in possession of a valid unexpired visa, pursuant to
section 212(a)(20) of the Immigration and Nationality Act, 8 U.S.C.
1182(a)(20). The appeal will be dismissed.
The applicant is a 24 -year -old native and citizen of Mexico who
originally entered the United States on March 5, 1968, as a lawful
permanent resident. In early 1970, his father became seriously ill, and
the applicant, with his brothers and sisters, was sent back to Mexico
City to be cared for by his grandmother. The applicant's parents also
returned to Mexico in early 1970, and the applicant's father died soon
thereafter. The applicant, and his entire family (all of whom had
entered the United States as lawful permanent residents), have lived
in Mexico since 1970. The applicant did not return to the United States
on any occasion during these years. In early April of 1979, the appli•

395

Interim Decision #2796
cant attempted to enter the United States as a returning lawful
permanent resident. When it appeared to Immigration and Naturalization Service officers that the applicant Might not qualify for that
status, entry was denied, and he was placed in exclusion proceedings.
An exclusion hearing was held before an immigration judge on April
18, 1979. The immigration judge found that the applicant had
abandoned his residence in the United States, and so could not enter as
a returning lawful permanent resident. As the applicant had no valid
unexpired immigrant visa, the immigration judge found him excludable, and ordered that he be excluded and deported from the United
States.
The issue on appeal is whether the applicant has in fact abandoned
his status as a lawful permanent resident of the United States. If he
has, then he was correctly found excludable under section 212(a)(20) of
the Act. That section provides for the exclusion of immigrants seeking
admission to the United States wbo are not in possession of a valid
immigrant visa or other valid entry documents. Section 211(b) of the
Act, 8 U.S.C. 1181(b), provides eligibility for a waiver of the documentary requirements for admission for one who can qualify as a
"returning resident immigrant" as that term is defined in section
101(a)(27)(A) of the Act, R 1101(a)(27)(A). A "returning resident
immigrant" is defined by section 101(a)(27)(A) as "an immigrant,
lawfully admitted for permanent residence, who is returning from a
temporary visit abroad." Hence, the applicant in this case is excludable under section 212(a)(20) unless his absence from the United States
from 1970 to 1979 can be characterized as a temporary visit abroad. We
have determined that it cannot be so characterized, and that the
immigration judge was correct in finding that the applicant had

abandoned his United States residence.
At his exclusion hearing, the applicant testified that his mother had
told him that she had no intention of ever returning to the United
States. Tr. at 12. There is thus no question that the applicant's mother
has abandoned her lawful permanent resident status. We hold that
this voluntary and intended abandonment by the mother is imputed to
the applicant, who was an unemancipated minor at the time he was
sent back to Mexico by his mother, and at the time his mother
abandoned her lawful resident status.
In Matter of Bauer, 10 I&N Dec. 304 (BIA 1963), it was held that no
entry was made by an unemancipated minor upon his return to the
United States at the age of 19, 3 years after departing this country in
the custody and control of his parents. We reached this conclusion
based upon our finding that the alien had had no choice about leaving
the United States but rather that he was "under a legal compulsion to
follow and accompany his parents." Id. at 308. Because his departure
396

Interim Decision #2796
was in this sense involuntary, we held, no "entry" was made upon his
return. The issue in Bauer was whether or not an "entry" was made by
the alien, not, as in the present case, whether he had retained his
lawful resident status upon departing the United States under the

custody of his parents. To the extent that Bauer holds that an alien can
escape the consequences of an "entry" upon returning from such a long
absence simply because he departed under the custody and control of
his parents, it is hereby overruled. Bauer was clearly distinguishable
from the case upon which it relied, Valenti v. Karnuth, 1 F. Supp. 370
(N.D.N.Y. 1932). In Karriuth, it was held that no "entry" was made by
an alien who went on a 1-day school picnic with his high school class,
where his brief departure was compelled by school authorities, and by
state laws requiring him to attend school. This 1-day departure is a far
different thing from the S-year departure of the alien in Bauer. Nor do
we believe that the result reached in Bauer can be defended under the
modern line of "entry" eases beginning with Rosenberg v. Fleuti, 374
U.S. 449 (1963), which exempted a permanent resident alien from the
consequences of an "entry" if his departure could be characterized as
"brief, casual, and innocent," and not "meaningfully interruptive" of
his resident status. Id. at 462.1 We do not believe that Bauer's 3-year
absence could be so characterized.
However, to the extent that. Matter of Bauer, supra, can be cited for

the general proposition that, because a minor child is compelled to
accompany his parents if they depart from the United States, the
intent of the parents with regard to the departure (i.e., whether or not
they, the parents, intend to abandon their resident status) is imputed
to the accompanying child, Bauer still stands. Applying this rule to the
applicant in the present case is fatal to his application for admission.
The applicant was subject to the custody and control of his mother
when he left the United States. His mother did not retain her United
States residence when she left this country. When she abandoned her
lawful permanent resident status, the applicant also lost his. He
therefore cannot now be classified as a returning resident immigrant
within the meaning of section 101(a)(27)(A).:
As the applicant has abandoned his permanent resident status, he
was properly found excludable as an alien not in possession of a valid,
' The Board's decision in Baser, supra, was reached on June 11, 1963. The Supreme
Court decided Fleuti, supra, less than a week later, on June 17, 1963.
2 We note also that the applicant did not seek to return to the United States until he
was well over the age of urajurity. lie did out attempt to resume his United Status

residence, nor even to visit this country, for over 9 years. Also, the applicant's family ties
are all in Mexico, and his employment and most of his schooling have all taken place
there.

397

Interim Decision #2796
unexpired immigrant visa. His appeal from that finding must accord

ingly be dismissed.
ORDER. The appeal is dismissed.

398


MATTER OF D

In DEPORTATION Proceedings
A-10976326
Decided by Board May 25, 1960
Deportability—Section 241(a)(1)—Petty offense exemption not applicable.

Petty offense exemption in section 4 of Act of September 3, 1954 held inapplicable to deportation charge under section 241 (a) (4) of the Immigration and Nationality Act.
CHARGE •

Order: Act of 1952—Section 241 (a) (4) [8 U.S.C. 1251(a) (4) J—Convicted
and sentenced for a year or more for a crime involving moral turpitude committed within five years after entry, to wit, forgery, in violation of section 470 of the Penal Code of California.
BEFORE THE BOARD

Discussion: The case is before us by certification. The special
inquiry officer ordered the respondent deported upon the ground
stated above and certified the case.
The respondent, a native and last a national of Hungary, was
admitted to the United States for permanent residence on January
16, 1957, and last entered the United States after a visit of 2 days
to Canada in the spring of 1959. On August 13, 1959, the respondent was convicted on a plea of guilty of the crime of forgery (section 470, Penal Code of California) and for an offence committed
on or about July 2, 1959. He was sentenced to imprisonment in the
county jail for a term of one year, and he was placed on probation
for -2 years. The sentence was suspended on the condition that the
respondent spend the first 3 months in the county jail. Where
confinement is to be in the county jail, forgery is punishable by
imprisonment for not more than one year (section 473, California
Penal Code).
One convicted of a crime involving moral turpitude who has received a suspended sentence to a year or more comes within the
terms of section 241(a) (4) and is deportable (Matter of V
7
I. & N. Dec. 577). The examining officer and the special inquiry
officer believe that section 4 of the Act of September 3, 1954 can

658

be used to remove such an alien from the deportable class. We do
not agree. We believe that section 4 may be used where the charge
is based on excludability under section 212(a) (9) of the Immigration and Nationality Act, but not where the charge is based on
section 241(a) (4) of the Immigration and Nationality Act.
Broadly speaking, section 4 provides that if the "punishment
actually imposed" upon a convicted person is to imprisonment of
no more than six months, that person is not inadmissible to the
United States despite the provisions of section 212(a) (9) relating
to the exclusion of aliens convicted of crime (Matter of
6 I. & N. Dec. 331). The special inquiry officer attempted to determine if a suspended sentence to one year's imprisonment or the 3
months' imprisonment actually served was the punishment actually
imposed in the instant case. We do not believe his inquiry was
pertinent. The provisions of section 4 were not meant to have any
relation to a charge based on section 241(a) (4). We find no alternative to this conclusion in view of the fact that a sentence to
imprisonment for one year which is suspended is a proper ground
for the deportation under section 241(a) (4) even though the alien
has never been confined. Thus, if the alien in the instant ease had

not been 'required to spend 3 months in jail as part of the suspended
sentence he received, he would clearly be deportable. It would be
illogical to say that because he is required to serve part of his suspended sentence, he should be in a better position than the alien
whose suspended sentence does not call for some confinement.
Decisions of this Board relating to the application of section 4
must be viewed in light of the fact that either the charge dealt with

section 212(a) (9) of the Immigration and Nationality Act (8
U.S.C. 1182(a) (9)), or the case dealt with questions of good moral
character.
After the respondent's entry in the spring of 1959, and within
five years after that entry, he committed a crime and was sentenced
to confinement for a year. He is deportable under section 241
(a) (4).
Order: It is ordered that the respondent be deported from the
United States in the manner provided by law on the charge contained in the order to show cause.

659


Interim Decision #1274

MATTER

or Lours

In DEPORTATION Proceedings

A 12635510
-

Decided by Board March, R6, 1963
"Extreme harasnip" within the meaning or section 244(a) (1) or the iminigration and Nationality Act of 1952, as amended by the Act of October 24, 1962,
would result from the deportation of respondent, a 42-year-old native and
citizen of China, who has resided continuously in the United States for a period
or n years, in view of the great difficulty he would experience at his age in
obtaining employment or in adjusting to life in a new country, and in view of
the advanced age (12) and permanent disability of his partially-dependent
United States citizen father.
CHARGE:

Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251(a) (2)3—Nonimmigrant
remained longer than permitted.

This case is before us on appeal from a decision of a special inquiry
officer denying the respondent's three applications mentioned above
and directing his deportation. For the reasons hereinafter mentioned,
we will grant the application for suspension of deportation, and the
other applications need not be considered.
Discussion As To Deportability: The respondent is a 42 year old
-

-

married male, native and citizen of China, who last entered the United
States on August 21, 1951 at which time he was admitted as a nonimmigrant visitor authorized to remain in this country until November 21, 1951. He has remained in the United States without authority
and has conceded that he is deportable on the charge stated in the
order to show cause.

Discussion As To Eligibility For Suspension of Deportation:
On February 16, 1962 the respondent applied for suspension of deport ation under section 244(a) (5) of the Immigration and Nationality Act. Prior to the decision of the special inquiry officer on December 20, 1962, this statutory provision had been amended by section 4
of the Act of October 24, 1962 (Public Law 87-885; 76 Stat. 1247).
Originally section 44(a) authorized the Attorney General to suspend

223

Interim Decision #1274
deportation in acordance with the statutory requirements which were
set out. Since such action had not been taken prior to the amendment

of October 21, 1962, it follows that the respondent's case must be determined under the applicable provision of the amended section, that is,
Section 244 (a) (1) .
The respondent was born on the mainland of China and lived there
until 1949. He stated that at that time he fled to Hong Kong because
the Communists were taking control of China. He left Hong Kong
for Central America in 1950. He was married in 1950 while still in
Hong Kong, and one child was born there of the marriage on March 5,
1951. The respondent's wife and child still reside in Hong Kong and
she is employed there as a nursemaid in an orphanage. The respondent
contributes to their support by sending $50 to $100 monthly. Ho has
been employed in the United States as a waiter and now earns about
$85 weekly. In his application for suspension of deportation, he stated
that his assets amounted to $2,360.
The respondent's statement of November 6, 1961 (Ex. 8, p. 2) contains information verifying his admission as a nonimmigrant 'on
August 21, 1951, and he has testified that he has not been absent on
any occasion since that date. The special inquiry officer concluded that
the respondent had been physically present in the United States for
a continuous period of at least ten years, and we are also satisfied from
the record as to the respondent's continuous physical presence in this
country since August 21, 1951. It follows that he meets the requirement of section 244(a) (1), as amended, concerning physical presence
in the United States for 9, continuous period of not less than seven
years.
The special inquiry officer also concluded that the respondent had
established good moral character during the statutory period. The
respondent testified that he had never been arrested or convicted of
any crime. A search of the local police records and a report received
from the Identification Division of the Federal Bureau of Investigation indicate that the respondent has no criminal record. An independent investigation conducted by the Service was favorable to the
respondent. We conclude that the respondent has established his good
moral character during the seven years preceding his application.
Prior to the amendment of October 24, 1962, the five paragraphs of
section 244 (a) required an applicant to establish that his deportation
would result "in exceptional and extremely unusual hardship" to the
alien or to his citizen or legally resident spouse, parent or child. This
same language was retained in amended section 244(a) (2), but in
amended section. 244(a) (1), which is involved here, the language was
changed to require the alien to establish that his deportation would
result "in extreme hardship" to him or to his citizen or legally resident
224

Interim Decision #1274
spouse, parent or child. Although the special inquiry officer held that
extreme hardship meant something less than exceptional and extremely
unusual hardship, he was not satisfied that the respondent's case met
this statutory requirement.
The respondent asserts that his deportation would result in extreme
hardship to him and to his father. The latter has lived in this country
since his lawful admission on September 20, 1922, and he was naturalized as a United States citizen on June 27, 1958. On November 6, 1961
the respondent testified that his father was partially paralyzed, and
the record contains a certificate (Ex. 10) from a physician indicating
that the respondent's father has been under his medical care since
March 8, 1960 and is permanently disabled. From 1952 until recently,
the respondent lived with his father in Los Angeles but the latter,
who is 72 years old, is now in the International Guest Home in that
city. The respondent testified that the cost of his father's maintenance is about $125 per month; that this is paid by Los Angeles
County; that his father has no income; that he receives an old age
pension of $125 which he returns to the International Guest Home;
that he (the respondent) contributes about $50 monthly toward his
father's support and care; and that he takes his father to the doctor

each week (pp. 13-15). Apparently the respondent and his father
have no close relatives in the United States. In view of the father's
advanced age and physical condition, we believe it would be extremely
harsh, both to the respondent and his father, to deport this alien from
the United States.
The respondent states that he desires to bring his wife and son to
the United States from Hong Fong. He testified that he has never
been a member of the Communist Party of any country and has not
been a member of any organization affiliated with the Party, and there
is nothing to indicate such membership. Ho testified that he fears

physical persecution if returned to Communist China because he is

opposed to communism and fled China for that reason. However,
the special inquiry officer did not direct deportation to Communist
China but to the Republic of China on Formosa or to Hong Kong.
The respondent also stated that he cannot return to Hong Kong because he never established residence there. The respondent has lived
continuously in Los Angeles since March 1952—a period of 11 years.
If the respondent were deported to Formosa or Hong Kong, we believe
he would experience great difficulty in obtaining employment or in
adjusting to life in a new country, particularly since he is now 42 years
of age.
In view of the foregoing, it is our considered opinion that the respondent's deportation would result in extreme hardship to him and to
his United States citizen father. Hence, his case meets all the statu225
758-456-435----16

Interim Decision #1274
tort' requirements of section 244(a) (1) of the Immigration and Nationality Act as amended. We also believe that this ease merits the
exercise of the discretion to suspend deportation. Accordingly, the •

respondent's application for suspension will be granted.
ORDER: It is ordered that the order of deportation entered by
the special inquiry officer be withdrawn and that the deportation of
the alien be suspended under the provisions of section 24.4 (a) (1) of the
Immigration and Nationality Act as amended.
It is further ordered that if the Congress takes no action adverse to
the order granting suspension of the alien's deportation, the proceedings be cancelled, and the alien, if a quota immigrant at the time of
entry not then charged to the appropriate quota, be so charged as
provided by law.

It is further ordered that in the event the Congress takes action adverse to the order granting suspension of deportation, these proceedings shall be reopened upon notice to the respondent.

226


Interim Decision #1450

Ma:ma or

CINTIOLI

In Visa Petition Proceedings
A-12555258
Decided by District Director January 14, 1965
Petition to accord beneficiary first preference classification under section 203
(a) (1), Immigration. and Nationality Act, as amended, as an accordion
maker, is denied since it has not been estabusbed that he possesses the
specialized experience, as set forth in the clearance order, to make an
„....entire Italian-type accordion by hand; to design, model and repair all types
of accordions; and has 5 years' experience on Italian and other type
accordion-B.

Discussion: The petitioner, Nunzio Music Center, 401 Franklin
Avenue, Nutley, New Jersey, is engaged in the sale and repair of
accordions, guitars and other musical instruments, and provides
instructions in musical instruments. The petitioner maintains a laboratory in Montclair, New Jersey where electronic pick-ups and
amplifiers are manufactured and adapted to accordions, guitars and
organs. The business, established in 1946, has gross annual sales
of $65,000, and employs a total of six persons including four musical
instructors, one oaleaman and one engineer.

The petitioner is petitioning for the services of the beneficiary
as an accordion maker. The duties of the position are described in
the.clearance order as follows: "Makes entire Italian type accordion
by hand. Makes bellows and sets reeds in block. Designs, models
and repairs all types of accordions. Also builds box section." The
clearance order further specifies that the position requires a person
who has five years experience on Italian and other type accordion
and is literate. The sole document presented to establish the beneficiary's qualification is an affidavit from the beneficiary's father and
three uncles, the Cintioli Brothers, who are manufacturers of accordians and reeds in Castelfidardo, Italy. The affidavit states that
the beneficiary became apprenticed to the firm as a child and he
learned the Manufacturing phase of the business in two or three
128

Interim Decision 40450
years working during summer vacations and when not attending
school and that he was a journeyman for about seven years prior to
his departure to the United States in 1960. He is experienced in
all phases of the construction and assembling of parts of accordions,
design of equipment and tuning of instrument. •
The petitioner was interviewed by an officer of this Service on
December 8, 1964 and testified that he does not manufacture accordions but purchases them locally or imports them because it is cheaper. He advised that he primarily required the services of the
beneficiary to engage in research work on remote wireless control
amplifiers and the adaptation of electronic equipment to accordions.
-The beneficiary is an unmarried, 23 year old native and citizen of
Italy presently in the United States. He testified on December 8,
1964 that he only worked in the 4Amily's factory during summer
vacations and when not attending school from 1948 to 1960; that
he was never on the payroll; and that accordions were produced on
assembly line and no one in the plant made the entire instrument.
He graduated from high school in 1959; studied in England for
four months during 1960 and was admitted to the United States as
a nonimmigrant visitor on December 11, 1960. He received an
associate in technology 'degree from the Technical Institute of Temple University, Philadelphia, Pennsylvania 011 February 13, 1964
after completion of a three-year course in electronics. Since that
date he has been engaged as personal United States representative
for the firm of Cintioli Brothers. Fie has not been employed by the
petitioner.
In view of the foregoing, the petition must be denied since the
beneficiary will not be performing the duties specified in the -clearance order. Further, it has not been established that the beneficiary
possesses the specialized experience as an accordion maker as contemplated by the statute.
ORDER: It is ordered that the petition to classify status of alien
as first preference quota immigrant be, and the same is hereby
denied.

129


Interim Decision 4frL637

MATTER OF SIT "GRAND ZENITH"

In Fine Proceedings
SFR-10/28.333
Decided by Board August 19, 1977
(1) Appellant carrier paid off and discharged the involved crewman without first obtaining
the consent of the Attorney General as required by section 256 of the Immigration and
Nationality Act. The Service fined the carrier under two provisions of the Act—section
256 for the unauthorized pay-off and discharge, and under section 254(a)(2), for failure
to detain on board a crewman who was refused a conditional landing permit.
(2) The fine imposed under section 256 of the Act was proper because the crewman was
paid off and discharged without first receiving the consent of the Attorney General.
(3) Since the carrier was fined for discharging the crewman under section 256, it was not
proper to- assess a fine under section 254(a)(2) because in these circumstances the
Service is restricted from imposing two fines for the same misfeasance by the carrier.
In re:

SIT "GRAND ZENITH," which arrived at the purl. of Los Angeles,

from foreign on August 11, 1976. Alien crewman involved: RONG-YIH KUO
Basis for Fine: Act of 1952—Section 254(a)(2)—E8 U.S.C. 1284(a)(2)] Section 256 [3 U.S.C.
1288)
ON BEHALF OF APPELLANT:

Charles M. Haid, Jr., Esquire
Lillick, McHose & Charles
500 Sansome Street
San Francisco, California 94111

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

This is an appeal from a decision of the District Director at San
Francisco, California, dated December 7, 1976, wherein. a fine of $1,000
($2,000 mitigated to the extend of $1,000) was impossd_ on the vessel's
agents, Norton, Lilly, and Company, under section 254(a)(2) of the
En-migration and Nationality Act for failure to detain on Board an alien
crewman who was refused a conditional landing perrnit, and under
section 250 of the Act for unlawfully paying off and discharging the alien

crewman without first having received the consent of the Attorney
General.
The basic facts of record are these: (1) the vessel arrived at Los
Angeles and was inspected by the immigration authorities; (2) the
master of the vessel was ordered to detain Rong-Yih Kuo because his
passport was not in order; (3) the vessel proceeded to Pittsburgh,
California, where the master requested the vessel's local agent to ar460

/111+VJ..L.1././ „VG..10.M11

IT

range for the seaman's repatriation to Taiwan; (4) on August 27, 1976,
the above - captioned alien was presented to the Immigration Service in
San Francisco for processing his repatriation; he had previously been
paid off and discharged from the vessel by the master; and (5) the
appellant did not obtain the consent of the United States Immigration
Service prior to discharging the alien crewman here involved. He was
repatriated to Taiwan without expense to the Government.
We have determined that the fine imposed pursuant to section 256 of
the Act was properly imposed. Under the terms of section 256 of the
statute, the carrier has an absolute duty not to pay off or discharge any

alien crewman employed on board a vessel or aircraft arriving in the
United States without first having obtained the consent of the Attorney

General. The element essential to establish a violation is termination of
the crewman's employment by an affirmative act of the parties responsible for the vessel's operation—including the agents and masters, who
are charged with knowledge of the pertinent regulations, Matter of
HMS "Bounty," 10 L & N. Dec. 391 (BIA 1963). Fines imposed pursuant to this section are in the nature of an in rem liability of the vessel,
assessable against any one of the persons responsible for the vessel and
named in such section regardless of which of them actually performed
the physical act of paying off or discharging an alien seaman, and such
fine is not merely the liability of the person performing the physical act
of paying off, United States v. Seaboard Surety Company, 239 F.2d 667
(4 Cir. 1957); Matter ofM IV "Bergen Juno," Interim Decision 2554 (BIA
1977). The record in this case supports the conclusion that the alien
seaman was paid off and discharged without first receiving the consent
of the Attorney General to do so. See: The Limon, 22 F.2d 270 (2 Cir.
1927); Matter of SS. "Republic," 5 I. & N. Dec. 663 (BIA 1954); Matter
of SS. "Federal Commerce," 8 I. & N. Dec. 366 (BIA 1959); Matter of
SS_ "Loch Avon," 7 I. & N. Dec. 215 (BIA 1956); Matter of SS. "Captain
K. Papzoglou," 5 I. & N. Dec. 567 (BIA 1953); Matter of SS. "Ciudad
De. Barquisirneto," 6 I. & N. Dec. 311 (BIA 1954).
Basically, the requirements of detention in Section 254, specifically
subsection (3), and section 256 are aimed at controlling alien crewmen,
and their ultimate removal if they are found to be inadmissible. In this
case the carrier was fined under both section 254(a)(2) (failure to detain
on board the vessel until proper permission is given by the Service) and

section 256 (to pay off or discharge an alien crewman without first
having obtained consent of the Service). We believe that in these circumstances, the Service is restricted from imposing more than one fine
for the identical misfeasance. ) Consequently, we shall order that the fine
See: Navigezione Generale Italian v. Elting, 66 F.2d 537 (2 Cir. 1933); Lloyd
Sabaudo Societe, Anoninza Per Azioni v. Elting, 80 F.2d 869 (2 Cir. 1936); Cosutich Line
of Trieste v. Elting, 40 F.2d 220 (2 Cir. 1980).

461

Intenm .uecision vzoo
imposed under section 254(a)(2) be remitted in full. Accordingly, the
following order will be entered.

ORDER: The District Director's decision of December 7, 1976, is
modified to provide remission in full of the fine imposed under section
254(a)(2), and as so amended the decision is affirmed. The penalty
permitted to stand is $500.00.

462


R OF

M—C---

In EXCLUSION Proceedings
A-12717851
Decided by Board November 20, 1981
Expatriation—Sections 349(a)(5) and 349(b)—Voting in Mexico.
Voting In 1952 and 1960 in Mexican elections by dual national of United
States and Mexico who has resided continuously in Mexico since 1032 is

conclusively presumed to have been voluntary, resulting in expatriation
pursuant to sections 349(a) (5) and 349(b) of the Act.
EXCLUDABLE: Act of 1962—Section 212(a) (20) [8
valid immigrant visa.

1182(a) (20) 1—No

BEFORE THE BOARD

DISCUSSION; The case comes forward on appeal I tan Ole order
of the special inquiry officer dated September 29, 1961, finding the
applicant to be an alien and inadmissible on the ground stated above.
The applicant testified that he was born in Kansas City, Kansas,
on March 25, 1920, the son of Mexican citizen parents, now deceased.
As evidence of his birth, he submitted a certificate of baptism
showing that J—E M—, the son of J—M— and C—C—, was born
on March 25, 1920, at Kansas City, Kansas, and was baptized on
April 16, 1920, according to the Rite of the Roman Catholic Church
in Our Lady of Guadalupe Church at Kansas City, Missouri. The
applicant testified that his parents were Mexican citizens at the time
of their death and were never naturalized in this country. The special inquiry officer has conceded for the purpose of this proceeding
that the applicant was a citizen of the United States at birth and also
possessed Mexican nationality under Article 30 of the Political Constitution of Mexico.
The applicant testified that he has resided in Mexico continuously
since 1932, is married to a citizen of Mexico and has seven children,
all born in Mexico. Since 1950 he has lived in Nuevo Laredo,
Mexico, where he resides with his family and owns a tailor shop
there. The applicant testified that in 1952 he voted in Nuevo Laredo,
Mexico, in the presidential election for the candidate, R—C--, and
that he voted in 1960 in the municipal election in Nuevo Laredo for
Dr. I—V— for mayor.
516

The applicant, a dual national of the United States and of Mexico,
has resided in Mexico continuously since 1932 and has testified that
he voted in 1952 and 1960. These acts of voting constitute expatriative acts under section 349(a) (5) of the Immigration and Nationality Act (8 U.S.C. 1481(a) (5) ). Section 349(b) (8 U.S.C.
1481(b)) provides that any person who commits or performs any
act specified in subsection (a) shall be conclusively presumed to have
done so voluntarily and without having been subjected to duress
of any kind, if such person at the time of the act was a national of
the state in which the act was performed and had been physically
present in such state for a period or periods totaling ten years or
more immediately prior to such acts.
In the instant case it has been established that the applicant was
a national of Maxie() and had resided in that country continuously
since 1932. The conclusive presumption in section 349(b), therefore, attaches to his act of voting which constitutes expatriation
under section 349 ( a) (5 ) of the Immigration and Nationality Act. 1

Theaplicnts,rfoaendismblothecumentary ground set forth in the heading.
The findings of fact and conclusion of law made by the special
inquiry officer on September 29, 1961, are hereby adopted, except
that Finding of Fact (2) is amended to read:
(2) That at the time of his birth the applicant was a dual national of
the United States and of Mexico;

present Findings of Fact (2) to (6) are renumbered (3) to (7) ; and
Conclusion of Law (1) is amended to read:
(1) That under section 349 (a) (5) and section 349(b) of the Immigra•
tion and Nationality Act, the applicant lost United States citizenship
by voting in Mexican elections in 1952 and 1960;

and present Conclusion of Law (1) is renumbered Conclusion of
Law (2).
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
,

1

Matter of M—G—, 7-665.

517


Interim Decision #2679

MATTER OF CHTJMPITAZI

In Deportation Proceedings
A-19654637
Decided by Board November 20, 1978

(1) An alien, found deportable as a nonimmigrant visitor who remained in the United
States beyond the period of his authorized stay, is precluded from relief under Article 32
of the United Nations Convention Relating to the Status of Refugees, which is limited
to aliens lawfully in the United States.
(2)The provisions of Article 33 of the United Nations Convention Relating to the Status of
Refugees have not changed the rights and remedies of an alien in deportation proceedings under section 243(h) of the Immigration and Nationality Act, 8 U. S.C. 1253(h).
Matter of Dunar, 14 I. & N. Dec. 310 (BIA 1973), reaffirmed.
(3)An immigration judge does not have the authority to consider requests for asylum in
deportation proceedings since by regulation jurisdiction over such applications has been
placed in the District Director. Matter of Exunta.s and Pierre, Interim Decision 2022
(BIA 1977), modified.
(4) A tax levied on all citizens of Peru who travel outside of that country is not persecution
on account of race, religion, nationality, membership in a particular social group, or
political belief, as contemplated by section 243(h) of the Immigration and Nationality
Act.
(5) A claim to persecution under section 243(h) must be supported by evidence which is
material, rather than by generalized undocumented assertions by the applicant
Coriolart v. INS, 559 F.2d 993 (6 Cir. 1977), distinguished.
(6) A delay by the Service of five years in acting upon an asylum application was not
"affirmative misconduct" amounting to estoppel since the respondent was not directly
deprived of any entitlement he had under the immigration laws, and he was given the
opportunity to fully elucidate the bases for his fear of persecution ira Peru at his
deportation hearing.
(7) The loss of a job and the concomitant financial loss incurred is not "extreme hardship"
within the moaning of section 244 of the Act, 8 U.S.C. 1254, despite an 1 I - year stay in
the United States.
CHARGE:
Order. Act of 1952 —Seaton 241(a)(2) [8 U.S.C. 1251(a)(2)} —Nonimmigrant visitor—

remained longer than permitted
ON BEHALF OF RESPONDENT:
Silver S. Squarcia, Esquire
Suite 1201 Ainsley Building
14 N.E. First Avenue
Miami, Florida 33132

ON BEHALF OF SER.VICE:
George Indelicato
Appellate Trial Attorney
Robert Lee Erwin
Trial Attorney

B Y: Maguire, Acting Chairman; Maniatis, Appleman, and Farb, Board Members

629

Interim Decision #2679
In a decision dated May 1, 1978, an immigration judge granted the
respondent's request for asylum and certified his decisions to us for
review. The Service has also filed an appeal from the decision. We will
sustain the Service's appeal, and reverse the immigration judge's decision.
The respondent is a 31-year-old native and citizen of Peru who entered the United States on October 16, 1967, as a nonimmigrant visitor.
On June 11, 1976, an Order to Show Cause was issued, charging the
respondent with deportability under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as a nonimmigrant who
had remained beyond the period of his authorized stay. At a deportation
hearing held on June 22, 1976, and March 30, 1977, the respondent

conceded deportability as charged in the Order to Show Cause, and
applied for suspension of deportation under section 244(a)(1) of the Act,
8 U.S.C. 1254(a)(1), and/or withholding of deportation under section
243(h) of the Act, 8 U.S.C. 1253(h). On May 17, 1977, the immigration
judge denied both applications, and the respondent appealed to this
Board.
In a decision dated January 26, 1978, we remanded the record for
further consideration of the respondent's 243(h) claim in light of the
immigration judge's failure to examine the respondent under oath as
required by 8 C.F.R. 242.17(c). On April 14, 1978, a new hearing was
held, at which the immigration judge granted the respondent asylum 11
deportation to Guatemala, the country designated by the respondent for
deportation as provided in 8 C.F.R. 242.17(c), was not possible. The
immigration judge then certified his decision to us for review.
In his decision, the immigration judge referred to Article 33 of the
United Nations Convention Relating to the Status of Refugees.' He
interpreted Article 33 as allowing the grant of asylum to aliens whose
life or freedom would be threatened on account of their race, religion,
nationality, membership in a particular social group, or political opinion_
Hethen stated that he would grant the respondent asylum if his deportation to Peru became imminent, i.e., if the country designated by the
respondent, Guatemala, did not accept him into its territory or failed to
notify the Attorney General within 90 days whether it would or would
not accept him.
C.F.R. 242.3(a) provides, in part:
-

In any proceeding conducted under this part the special inquiry officer shall have the
authority . . . to consider claims for relief from deportation under Articles 32 and 33 of
the Convention Relating to the Status of Refugees, as amended by the Protocol
Relating to the Status of Refugees . . . [and] to order temporary withholding of deportation pursuant to section 243(h) of the Act
I 19 U.S.T. 6260. T.I.A.S. No. 6577, as amended by the Prritnen1 Relating to the Statli
oX Refugees, 19 U.S.T. 6224, T.I.A.S. No. 6577.

630

Interim Decision #2679
The text of Articles 32 and 33 of the Convention was stated in full in
Matter of Dunar, 14 I. & N. Dec. 310 (BIA 1973). There, we reviewed

the provisions of the Convention and found that they did not significantly
change the immigration laws of the United States. Specifically, we
found that Article 32 was limited by its terms to aliens "lawfully" within
the United States. Thus, an alien refugee who entered lawfully us a
nonimmigrant and remained unlawfully could not claim the relief of
Article 32. This result has also been reached by the courts which have
considered the issue. See, e.g., Yan Wo Cheng v. Rinaldi, 389 F. Supp.
583 (D. N.J. 1975); Chim Ming v. Marks, 367 F. Supp. 673 (S.D. N.Y.
1973), affd, 505 F.2d 1170 (2 Cir. 1974), cert. denied, 421 U.S. 911
(1975); Kan Kam Lin v. Rinaldi, 361 F. Supp. 177 (D. N.J. 1973), affd,
493 F.2d 1229 (3 Cir. 1974), cert. denied, 419 U.S. 874 (1974). Therefore,
the finding that the respondent is deportable as an overstayed visitor
precludes him from establishing lawful presence for the purposes of
Article 32 relief.
In determining the effect of Article 33 on our immigration laws, we
carefully reviewed the history of the Convention's adoption by the
united States in Matter of Dunar, supra. We there held that there is no
substantial difference in the coverage of section 243 (h) of the Act and
Article 33, and that any distinctions in terminology 2 were insignificant
and could be handled on a case-by-case basis. We reaffirm our holding in
Matter of Dunar and find that the provisions of Article 33 of the
Convention have not changed the rights and remedies of an alien in
deportation proceedings who believes that deportation to a particular
country would cause him to suffer persecution on the basis of race,
religion, or political opinion. See also Matter of Francois, Interim Decision 2458 (BIA 1975).
There is no provision in the Immigration and Nationality Act of 1952,
as amended, 8 U.S.C. 1101 et. seq., for the granting of "asylum" to
aliens who are seeking to enter or have entered the United States. Nor
does the Refugee Convention declare that a contracting government
must grant asylum to an alien refugee. The Convention goes no farther
than to prohibit a contracting government from sending that alien back
to a particular place where he will be persecuted. Since the alien could
be deported immediately to any other territory that would accept him, it
is inappropriate to characterize relief under Article 33 as a grant of
asylum, which connotes governmental consent for some period of time
to the alien's continued presence in the United States. The only provi-

2 Specifically, section 243(h) in terms applies to persecution on account of "race, religion, or political opinion." Articles 1 and 33 of the Convention encompass the three quoted
classes and add two more, "nationality" and "membership of a particular social group."

621

Interim Decision #2679
sion expressly allowing an alien subject to expulsion to seek asylum is 8
C.F.R. 108.1, which provides, in part, that 3
:

. An application for asylum by any . . . alien who is within the United States
. . . shall be submitted on Form 1-589 to the district director having jurisdiction over
his place of residence ... .

Moreover, 8 C.F.R. 108.2 does not permit an appeal from the District
Director's decision. These regulations, as well as the Operations Instructions implementing them, were discussed in our decision in Matter
of Exantus and Pierre, Interim Decision 2622 (BIA 1977). There, we

held that where an alien requested asylum during the pendency of a
deportation hearing, the immigration judge was required, under the
provisions of Operations Instructions 242.13 and 108.1(f)(2) 3 to adjourn the deportation proceedings until after a decision had been rendered on the asylum request by the District Director. See generally Yan
Wo Cheng v. Rinaldi, supra.
In dictum, Matter of Exantus and Pierre stated that an application
for relief from deportation under Articles 32 and 33 of the Convention
Relating to the Status of Refugees constitutes an application for
"asylum" within the meaning of 8 C. F.R. 108. However, nothing contained in 8 C.F.R. 242.8(a), the regulation setting forth the specific and
general powers of decision conferred on immigration judges in deportation proceedings, has given them the authority to grant or deny asylum
requests. Since the regulations vest the sole power to grant asylum in
the District Director, an immigration judge lacks the power to rule upon
applications for asylum as that terns is used in 8 C.F.R. 108. We
expressly disapprove of any language to the contrary in Matter of
'

,

Exantus and Pierre, id.

Proceeding to consideration of the case before us, the immigration
indge purported to grant the respondent "asylum" if deportation to
3 The Service has proposed an amendment to 8 C.F.R. 108.1 which would permit an
alien in exclusion proceedings to apply for asylum during the course of an exclusion
hearing before an immigration judge, but would not allow an alien in deportation proceedirigs to apply for asylum with the District Director. See 43 F.R. 40802 (September 13,
1978); 43 F.R. 48620 (October 19, 1978).
Operations Instruction 242.13. Aliens requesting asylum after issuance of an Order to
Show Cause.
A hearing after issuance of an Order to Show Cause shall be deferred pending disposition of a request for asylum. Any such request shall be processed pursuant to Of
108.1(f).
Operations Instruction 108.1(f)(2) provides, in part:
. . . In any case in which deportation proceedings have been initiated and the alien or
his representative introduces a request for asylum, the special inquiry officer shall
postp one the hearing to enable the district director to fully consider the bona fides of tho
request. . . .

632

Interim Decision #2679
Peru became imminent. This, however, was incorrect. As we have
previously stated, the immigration judge has no authority to grant
asylum to an alien in deportation proceedings. A respondent in deportation proceedings may apply for relief from deportation under Article 33
of the Convention and/or section 243(h) of the Act, although there are no
significant differences between the coverage of the two provisions.

Matter of Francois, supra. We proceed now to examine whether the

immigration judge's grant of "asylum" in this case was a proper grant of
withholding of deportation under section 243(h) of the Act.

The respondent bases his claim that he would be persecuted if he were
returned to Peru on two grounds: first, that he would be fined 200 soles
for every day that he has spent outside of Peru and second, that he fears
a return to the dictatorship in Peru after the time he has spent in the
United States. It appears from the record that the respondent applied
to the District Director in 1971 for political asylum. The trial attorney
stated at the respondent's deportation hearing on June 22, 1976, that
the District Director denied the respondent's application on May 7, 1976,
(Tr. p. 5). There is no letter from the District Director to this effect in
the record; however, there is a letter, dated January 21, 1977, stating

that the District Director reconsidered the respondent's asylum claim
and again denied it.
We find that the respondent has not established a claim to withholding of deportation under section 243(h) of the Act, which is available to
those aliens in deportation proceedings who have a well-founded fear of
persecution in the country of deportation on account of race, religion,
nationality, membership in a particular social group, or political belief.
Matter of Dunar, supra; Matter of Bohinwald, 14 I. & N. Dec. 408 (BIA
1973). See also Cheng Kai Fu v. INS, 386 F.2d 750 (2 Cir. 1967), cert.
denied, 390 U.S. 1003 (1968). Additionally, the evidence presented has

not demonstrated a clear probability of persecution directed at the
individual respondent. Cheng Kai Fu v. INS, id.
In the present case, the respondent has not produced any evidence
that would lead us to conclude that the asserted "fine" of 200 soles 6 a
day would be assessed against him for any of the reasons enumerated in
section 243(h). The respondent, at the hearing held on April 14, 1978,
stated that neither he nor any member of his family had been involved in

any way in political activities in Peru (Tr. p . 19). Moreover, the record
contains a letter from the Vice Consul in charge of the Peruvian Consulate General which sets out the amount and terms of the tax levied on
citizens of Peru travelling outside of that country which establishes that
6

Although the respondent has represented throughout these proceedings that the

'fine" would amount to $50 per day that he has been outside of Peru, the current foreign

exchange indicates that the fine would actually be approximately $1.15 per day (Foreign
Exchange, The Washington Post, October 13, 1978).
633

Interim Decision #2679
it is levied on all Peruvian citizens. Therefore, the respondent has not
established that this tax is a form of "persecution" directed at him
individually. See generally Cheng _Kai Fu v. INS, id.
Similarly, the respondent's assertion that he does not wish to return
to Peru because of the dictatorship in power there does not bring him
within the terms of section 243(h): His claim in this regard amounts to
no more than generalized undocumented assertions. The only evidence
introduced by the respondent are newspaper articles referring to political conditions in Peru during a recent strike. We note that an alien who
claims the relief of section 243(h) of the Act bears the burden of demonstrating a clear probability that he will be persecuted if deported.
Kashani v. INS, 547 F.2d 376 (7 Cir. 1977). We find that the respondent's testimony, standing alone, is insufficient in this case to sustain
that burden with regard to the likelihood of his being persecuted if
returned to Peru. See generally Pereira-Diaz v. INS, 551 F.2d 1149 (9
Cir. 1977).
We believe that our decision in this case is supported by the Fifth
Circuit's opinion in Coriolan v. INS, 559 F.2d 993 (5 Cir. 1977). There,
the court reversed and remanded a Board decision denying 243(h) relief
to two Haitian citizens in light of new evidence brought to the court's

attention in the form of an Amnesty International Report. However,
the court there found that the report, unavailable to them until after our
decision had been rendered, was material to the respondents' cases. The
respondent in the present case has presented no material evidence that
would support his claim that the present leadership in Peru would
persecute him We also note that the Coriolan court implicitly recognized that a travel tax on all citizens would not amount to political
persecution when it stated—
It is not political persecution, for instance, to punish for violation of a fairly administered passport law.

5 69 F.2d at 1000. We find no support in Coriolan v. INS for the
rEspondent's 243(h) claim. We will, therefore, reverse the decision of
tine immigration judge and sustain the Service's appeal filed in this case.
On appeal, the respondent also seeks to have us find that the Immigration and Naturalization Service should be estopped from deporting
him because of their five-year delay in adjudicating his application for
a sylum. In INS v. Hibi, 414 U.S. 5 (1973), the Supreme Court implied
that affirmative misconduct on the part of the Government might estop

it from denying immigration benefits. However, we do not believe that

th e delay of the Service in acting upon the respondent's asylum application in this case is "affirmative misconduct." The respondent was not
directly deprived of any entitlement he had under the immigration laws,
aid he was given the opportunity to fully elucidate the bases for his fear
6 34

Interim Decision #2679
of persecution in Peru at his deportation hearing. We will not, therefore, find that the Service is estopped from deporting respondent.
The respondent has also applied for suspension of deportation under
section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1). Section 244(a)(1) provides eligiblity for suspension of deportation to an alien who has been
continuously physically present in the United States for at least seven
years, is a person of good moral character, and whose deportation would
cause extreme hardship to himself, or to a United States citizen or
lawful permanent resident spouse or child. Although the respondent has

established that he has been physically present for the requisite period
of time, and that during all that time he has been a person of good moral
character, we find that he has not shown that his deportation would
result in extreme hardship.
The personal privation contemplated in a situation characterized by
"extreme hardship" within the meaning of section 244 of the Act is not a
definable term of fixed and inflexible content or meaning. It necessarily
depends upon the facts and circumstances peculiar to each case. Matter
of Hwang, 10 I. & N. Dec. 468 (BIA 1964). The hardship requirement
encompasses more than the mere economic deprivation that might result from an alien's deportation from the United States. Davidson v.

INS, 558 F.2d 1361 (9 Cir. 1977); Matter of Sipus, 14 I. & N. Dec. 229

(BIA 1972). The respondent has claimed that his deportation would
cause the loss of his job in the United States by which he supports his
mother in Peru. The respondent also asserts that he would have difficulty adjusting to life in Peru after his 11-year stay in the United States.
We find that the hardship claimed by the respondent is not the type of
hardship contemplated by Congress in providing for suspension of deportation. It has long been clear that the loss of a job and the concomitant financial loss incurred is not synonymous with extreme hardship.
Lee v. INS, 550 F.2d 554 (9 Cir. 1977) Similarly, the readjustment of an
alien to life in his native country after having spent a number of years in
the United States is not the type of hardship that we have characterized
as extreme, see Matter of Uy, 11 I. & N. Dec. 159 (BIA 1965); it is a type
of hardship suffered by most aliens who have spent time abroad.
We have carefully considered the record as a whole and find that the
respondent is not eligible for any form of relief from deportation other

than voluntary departure, for which he is deserving. In accordance with
our decision in Matter of Chouliaris, Interim Decision 2572 (BIA 1977),
therefore, we will grant the respondent 30 days voluntary departure_
ORDER: The appeal is sustained and the conditional grant of asylum
is vacated.
FURTHER ORDER: The applications for relief under sections
243(h) and 244(a) of the Immigration and Nationality Act are denied_
FURTHER ORDER: The respondent is permitted to depart from
635

Interim Decision #2679
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; in the event the respondent fails so the depart, the respondent
shall be deported as provided in the immigration judge's order.

636


Interim Decision #2414

MATTER OF VON PEEVIEUX

In Deportation Proceedings
A- 19679269
A- 19679370

Decided by Board July 24, 1975
NothwRhstanding respondent, a native of Argentina, is alternately chargeable to the
quota of the country of birth of his spouse (Italy) under section 202(b)(2) of the
Immigration and Nationality Act, as amended, and is the beneficiary of an approved
sixth preference visa petition with a labor certification, as a native of a country of the
Western Hemisphere he is precluded by the provisions of section 245(c) of the Act from
adjustment of his status to that of a lawful permanent resident under section 245.
CHARGE:
Order Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)}—Nonimmigrant-remained longer than permitted (both respondents)
ON DEDALF or SERVICE:
Robert T. Griffin
Appellate Trial Attorney

ON DEFIALF OF RESPONDENTS:
Filindo B. Masino, Esquire
1420 Walnut Sl.reet
Philadelphia, Pennsylvania 19102

In a decision dated January 24, 1975, after a reopened hearing, the
immigration judge denied the respondents' applications for adjustment
of status under section 245 of the Immigration and Nationality Act, and
she granted the respondents the privilege of departing voluntarily from
the United States in lieu of deportation. The respondents have appealed

from that dec: sion. The appeal will be dismissed.
The male respondent is a native and a citizen of Argentina. His wife,
the female respondent, is a native of Italy and a citizen of Argentina.
The male respondent is apparently the beneficiary of an approved sixth
preference visa petition with a labor certification. The female respondent has no labor certification, nor is she the beneficiary of an approved
visa petition. Consequently, her application for adjustment of status
under section 245 of the Act is dependent upon the success of the male
respondent's application.
The male respondent evidently is alternately chargeable to the quota

of his spouse's country, Italy, under section 202(b)(2) of the Act. The
406

Interim Decision #2414
issue on appeal is whether, by reason of such alternate chargeability,
the male respondent is eligible to apply for adjustment of status despite
his birth in the Western Hemisphere. See section 245(e) of the Immigration and Nationality Act.
Matter of Ascher, 14 I. & N. Dec. 271 (BIA 1972, 1973), involved in
visa petition filed in behalf of a native of the Western Hemisphere who
was attempting to adjust his status by claiming alternate chargeability
to the quota of his spouse's country under section 202(b)(2) of the Act. In
that case we stated:
Inasmuch as the beneficiary was born in a foreign country of the Western Hemisphere, he could not be granted adjustment of his status under section 245 of the
Immigration and Nationality Act. Therefore, the spouses will have to proceed abroad
for the purpose of filing simultaneous applications for visas.
Although Matter of Ascher was a visa petition case, we believe that
the foregoing is a correct statement of the law applicable when a
Western Hemisphere native seeks adjustment of status by claiming
alternate chargeability under section 202(b)(2) of the Act. Section 245(c)
of the Act specifically precludes an application for adjustment by "any
alien who is a native of any country of the Western Hemisphere or of
any adjacent island named in section 101(b)(5)." Section 202(b) of the
Act provides certain exceptions to quota chargeability. The prohibition
contained in section 245(e), however, relates solely to birth in a foreign
country of the
Hemisphere, and has nothing to do with quota
chargeability. Consequently, alternate chargeability under section 202(b) cannot remove a Western Hemisphere native from the scope of
section 245(e) of the Act.
Neither of the respondents is eligible for adjustment of status under
section 245 of the Act. The appeal will be dismissed.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondents are permitted to depart from the United States voluntarily
within such time and under such conditions as the district director shall
specify; and in the event of failure so to depart, the respondents shall be
deported as provided in the immigration judge's order.

407


Interim Decision #2492

MATTER OF FRIESS

In Deportation Proceedings
A-2037484
Decided by Board May 7, 1976
Respondent, a religious trainee at a Buddhist Community, who would be performing work
related to the maintenance and function of the Community, did not qualify for; the labor
precertificatioz provided for the categories of employment listed in 29 CFR 60.7
Schedule A, Group III, and was not otherwise exempt from the labor certification
requirement provided in section 212(a)(14) of the Immigration and Nationality Act.
Absent such tabor certification, respondent was ineligible for adjustment of status
under section 245 of the Act.
CHARGE:
Order: Act of 1952—Section 241(a)(2)—I8 U.S.C. 1251(a)(2)j—Nonimmigrant
trainee—remained longer.
ON BEHALF OF RESPONDENT:

Jeffrey H. Swartzbaugh, Esquire
Lamantia, Gel acak & Swartzbaugh
816 Prudential Building
Buffalo, New York 14202

ON BEHALF OF SERVICE:
Richard K. Rogers
Acting Trial Attorney

This is an appeal from the September 26, 1975 decision of the immigration judge in which he found the respondent deportable as charged,
denied his application for adjustment of status, and granted him two
months voluntary departure, with an alternate order of deportation to
Germany. The appeal will be dismissed.
The respondent, a native and citizen of Germany and a landed immigrant in Canada, was admitted to the United States on December 31,
1973 as a nonimmigrant trainee authorized to remain until March 31,
1974. His application for status as a permanent resident, filed on
January 17, 1974, was denied by the district director on September 23,
1974 on the ground that the respondent was going to be employed in the
United States, was not exempt from the labor certification requirement
of section 212(a)(14) of the Immigration and Nationality Act, and did not
have a labor certification or, therefore, a priority date. The district
director concluded that the respondent was ineligible for adjustment of
status. On November 18, 1974 the respondent was granted seven days
668

Interim. Decision #2492
within which to depart from the United States; he failed to depart.
Deportability is conceded.
The facts of this case are as follows. The respondent; a lawyer by
profession in Germany, journeyed to Canada, where he became a landed
immigrant, and studied at the Zen Center in Toronto, Canada from
September 1972 to March 1973. Because there are only members but no
Zen teachers at the Center in Toronto, the respondent wished to enter
the United States to complete his training at the Zen Center, which is a
Buddhist Community, in Rochester, New York. He wanted to enter the
United States for 18 months, but was informed that he could enter for
only six months at a time and apply for extensions. His order to show
cause shows that he was admitted for only three months. The respondent testified that when he applied for his first extension he was told it
was very unlikely he could get it renewed for a long time, so he sought
the advice of a lawyer.
According to the director of the Zen Center, in his letter of January
30, 1974, the program at the Zen Center includes "study, zazenmeditation, manual work, and various other activities, all of which are
intended to lead to religious awakening, or Enlightenment." The training period varies in length, depending on the individual readiness of
each student. The Center is selective in its choice of students, since it
cannot train a great many. The director of the ()enter felt that the
respondent showed "exceptional promise" and would make a "genuine
contribution towards a better society" if he could complete his training,
which would take three to five years. The director of the Center then
stated that he would personally guarantee that the respondent would
not become a public charge.
It appears to us that the work the respondent would do at the Center,
chiefly maintenance of the Center and its functions, is part of the
training program and must be done by the students or trainees there.
However, although the Center probably would not hire outsiders to
perform this work for wages, we think that a labor certification is
required nevertheless.
Aliens who seek to enter the United States to perform religious
duties are considered to be coming to perform skilled or unskilled labor
and therefore must obtain a labor certification, although they are precertified by regulation. 29 CFR 60.2(a)(1) and 60.7, Schedule A, Group
III(a), (b), and (c). No provision is made for precertification or a waiver
of certification for those who are in training for an occupation in one of
the Group HI categories. Moreover, in an analogous situation, a student
over 16 years of age who was potentially employable was required to
obtain a labor certification. Matter of Redekop-Rempening, 11 1. & N.
Dec. 674 (BIA 1966).
On the basis of the foregoing, we find that because he does not have a
669

Interim Decision #2492
valid labor certification, the respondent is not eligible for adjustment of
status. Consequently, the following order will be entered.
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 two months 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.

670


Interim Decision *1477

MATTER

or Kw&r

In. Visa Petition Proceedings
A-1000204C
Decided by Board May 28, 1955
Notwithstanding beneficial-en purported prior marriage in China and the existence of the alleged prior wife who is asserting the validity of that mar-

riage, his subsequent marriage in Caracas, Venezuela in 1055 to petitioner,
a V. S. citizen, is valid for immigration purposes and serves to confer nonquota statue mince a judgment of the Cirenit Court of the State of Michigan,
pursuant to section 25.84, Michigan Statutes Annotated, affirming the validity of the 1955 marriage, is accorded recognition, even though alleged first
spouse was not served with process.

The case comes forward pursuant to motion of the General Counsel, Immigration and Naturalization Service, dated . April 19, 1965
requesting that our order of March 29, 1965 be reconsidered and,
upon reconsideration, that the appeal be dismissed.
We will briefly review the facts. The record relates to a visa
petition filed by a native of China, a citizen of the United States
through parentage,• and holder of Certificate of Citizenship AA
222222, who seeks nonquota status on behalf of her husband, a native and citizen of China. The parties were married on September 8,
1955 in Caracas, Venezuela.. The visa petition indicated that neither
of the parties was previously married. The couple has three minor
children, one of who was born in. Venezuela,- and the last two in the
United States.
The beneficiary was the subject of a report of investigation which
indicated that one Mrs. Swan Chung. Kwong nee Wong Pui Ngan
had requested the assistance of the Hong Kong office in locating tic
beneficiary who is alleged to be her husband. The beneficiary
denied that he considered himself married to this woman because
he did not sign the marriage certificate and because they never
lived together and did not consider that he was deserting her because she was not his wife, although a Chinese marriage certificate
indicated that the parties had been married. The beneficiary ex205

Interim Decision #1177
plained that he had promised his mother a girl to serve her so that
she would not commit suicide but could not treat her as his wife
and had previously refused request for money while living in
Caracas, Venezuela because he denied liability for her support.

Apparently in an effort to lay at, rest any doubts as to the validity
of the marriage between the petitioner and the beneficiary, the petitioner obtained a judgment pursuant to section 25.84 of Michigan
Statutes Annotated which Ira entered on January 24, 1964 in the
circuit Court for the County of Wayne, Detroit, Michigan finding
no' evidence that the prior purported Marriage of the husband was
ralid and decreeing that the marriage entered into by the petitioner
and the beneficiary on. September 8, 1955 is a. valid marriage, each
of the piaties having no impediment to enter- into such a contract
and finding that the parties are duly and legally married and that
the legal status of the plaintiff petitioner is that of the wife of the
defendant-beneficiary. Although expressing our concern with the
procedure used to establish the validity of the instant marriage, we
, felt constrained to recognize the decree of a court of the State of
Michigan declaring the marriage to be a valid one.
The Service motion takes issue with the proceeding under section
25.84, Michigan. Statutes Annotated, contending that the beneficiary
has left open the door to a contest by his alleged first wife in China
as to the validity of his present marriage, since she was not a party
to the section 25.84 action and was not bound by the judgment therein. It is further set forth that it is a principle of general application in Anglo-American jurisprudence that one is not bound by a
judgment hi personam in a litigation in which he was not designated
as a party or to which he has not been made a party by service of
process and that a judgment rendered in such circumstances is not
entitled to the full faith and credit which the Constitution and the
statute, 28 U.S.C. 1783, prescribe, citing Hansberry v. Lee, 311 U.S.
32 and Pensoyer v. Neff, 95 U.S. 714.
The 'judgment affirmation of marriage was obtained pursuant to
section 25.84, Michigan Statutes Annotated, which provide
-

-

e;

' 'When the validity of any marriage shall be denied or doubted by either of the
parties, the other party may file a bill or petition in the manner aforesaid, for
affirming the marriage; and upon due proof of the validity thereof, it shall be
declared by a decree or sentence of the court; and such decree, unless reversed on appeal, shall be conclusive upon all persons concerned.
-

The Service in its motion. contends that' section. 25.84 was never
intended for use to declare a prior marriage invailid because no
Vrovision is made to join as a party the prior spouse and that all
cases 'annotated thereunder are actions raising questions as 'to
206

Interim Decision #1471
whether a common-law marriage existed between the plaintiff and
defendant and not 'whether a previous marriage of either party was
void. The motion suggests that the defendant-beneficiary .should.
have sought annulment of his first marriage under section 25.83,
Michigan Statutes Annotated which provides:
When a marriage is supposed to be void, or the validity thereof is doubted, for
any of the causes mentioned in the two preceding sections, either party, excepting b the cases where a contrary provision is hereafter made; may file a
petition or bill in the circuit court of the county where the parties or one of
them reside, or in the court of chancery for annulling the same, and such petition or bill shall be filed and proceedings shall be bad thereon, as in the ease
or a pension or bill Med in Behr court for a diyorce; and upon duo proof of
the 'nullity of the marriage, it shall be declared void by a decree or sentence
of nullity. (Emphasis supplied.) •

Section 25.83, if S.A. is entitled "Marriage of doubtful 'Validity;
procedure to annul." Section 25.84 is entitled "Same: procedure to
affirm." Section 25.83 is a procedure to annul a void marriage or a
marriage of tdoubtfal validity for any of the causes mentioned in the
two preceding sections: section 25.81, incestuous or bigamous marriages or of marriage of insane person; and section. 25.82, marriage
under age of consent, marriage by fraud, lack of cohabitation. Section 25.84 is specifically included in section 25.83 by the language
"excepting in the cases where contrary provision is hereafter made."
It is obvious that section 25.84 is a case where a contrary provision
has thereafter been made. 'While it is true that' the first three
oases sited in the motion, Judson. v. Jamison, 147 Mich_ 518, and
Lockwood v. Lockwood, 220 Afich. 124, and Pillard v. Pil2ard, 230
Mich. 575, involve commen-law marriages, the case of Young v.
Weltmeier, 369 Mich. 110, held that' in a proceeding under section
25.84, the fact which must be shown is that one of the parties to
the alleged marriage must deny or doubt such relationship and dismissed the case ;because of the failure of one of the parties to deny
or doubt the marriage relationship.
In Headen v. Pape and Pope, Inc., 252 F.2d 739 (3d Cir. 1958),
there-was involved a 1954 proceeding under a similar South Carolina
statute, section 20-42, Code of South Carolina, which reads: "When
the validity of a marriage shall be denied or doubted by either of
the parties, the other may institute a suit for affirming, the marriage
and, upon due proof of the validity thereof, it shall be decreed to
be valid and such decree 4211 be conclusive upon all persons concerned." • The court held that the proceeding under that statute was
an ajudication, the primary purpose of which was to declare the
status of individuals,, and to 'that extent, it possesed characteristics
of a proceeding in rem. The court cited two divergent lines of
207

Interim Decision #1477
eases, one holding that a declaration of status is not admissible or
-conclusive upon third •persons where the declaration was not the
ultimate decree but an in rem, finding upon which the decree was
based and a contrary holding in Permaftrania that an adjudication

in rem, will be conclusive upon the world, citing cases.. The court

stated that nothing which was said in consideration of the 1954
South Carolina decree should be interpreted as an intent to foreclose an attack upon the jurisdiction of the South Carolina court.
In the instant case we have in evidence a marriage certificate
showing that the parties married in accordance with law. In addition, there has been submitted a decree of affirmation by a state
court confirming the prior marriage of the beneficiary. The legal
presumption which favors the validity of every ceremonial marriage
is one of the strongest presumptions known to law and ordinarily
would yield only in the face of the most compelling proof: In the
instant ease it is conceded that the alleged first wife of the defendant-beneficiary was not served with process.
There is present in this case a complex question involving the
legal effect of a decree of affirmation of a marriage rendered by the
court of a sister state before whom both parties were present but
in which the alleged prior spouse bad not been served with process.
Involved are questions of whether the state decree is a judgment
in rem or a judgment in personam. Exploration of the ramifications of the legal questions presented would. inevitably lead into
labyrinths of jurisdiction, domicile, residence and status with no
satisfactory goal and an involvement in complexities utterly foreign
to the responsibilities of administrating the immigration laws. It
would not appear to be sound administrative practice to expect immigration officers to pause in executing their exacting duties to embark upon the collateral inquiry as to whether state decrees were
,supported by proper jurisdiction and such inquiry would impede
the expeditious administration of the immigration laws. The wisest
course would be to accept at face value the marital status recognized in conformity with the laws of the state. In adopting this
policy, the requirements of the law would be adhered to, proper
effect would be given to judgments and proceedings of a sovereign
state, and reasonable safe-guards would thereby .be erected to protect a properly solemnized marital relationship; and the adoption
of such a policy would. unquestionably facilitate the administration
• of the immigration. lame
-

'Scheeler, Marriage, Divorce, Separation and Domestic Relations (6th Bd.,
VoL 2, p. 1477) ; WIgmore on Boldest* (3d Ed., To). 9, p. 370)
5

.1fatterafF—d3LiaLDee.25i.

208

Interim Decision *1477
For the reasons set forth above, it is felt that the judgment under
section 25.84 of the Michigan State Statutes to affirm a marriage of
doubtful validity should be accorded recognition. This conclusion
does not foreclose the alleged first wife from attacking the jurisdiction of the Michigan court to render such a decree. The cases
cited by the Service, Hansberry v. Lee and Petanoyer v. Neff, do
not appear controlling, since the former deals with the effect of a
class action and the latter discusses the effect of an in rem judgment and an in personam judgment. For immigration purposes,
the 'marriage will be considered as valid. The motion will he
denied. .
ORDER:. It is ordered that the motion be and the same is hereby
denied.

209


Interim Decision #2456

MATTER OF GERONIMO

In Visa Petition Proceedings
A-20453877

Decided by Board December 1, 1975
An adopted child who has not been adopted in accordance with the requirements of section
101(b)(1)(E) of the Immigration and Nationality Act, as amended, cannot be classified as
a "stepchild" under section 101(b)(1)(B) of the Act, as amended, even if the adoptive
parent marries a United States citizen before the child reaches the age of 18. Hence,
since the beneficiary in the instant case was adopted in the Philippines by the United
States citizen petitioner's wife less than two years ago, the legal custody requirement of
section 101(b)(1)(E) of the Act has not been fulfilled. Consequently, beneficiary cannot
be classified as petitioner's "stepchild" under section 101(b)(1)(B) of the Act and is
ineligible for immediate relative status under section 201(b) of the Act.
ON BEHALF CF PETITIONER:

Pro se

The United States citizen petitioner applied for immediate relative
status for the beneficiary as his stepchild under section 201(b) of the
Immigration and Nationality Act. That petition was initially approved.
However, it. a decision dated September 9, 1975, after proper notice to
the petitioner, the district director revoked approval of the petition. The
petitioner has appealed from that decision. The appeal will be dismissed.
. The beneficiary is a native and a citizen of the Philippines who was born
on July 4, 1962. Although no adoption decree is contained in the file, it
appears from the consular report in the record that the beneficiary was
legally adopted by the petitioner's wife in the Philippines on July 29, 1974.
The term "child" is defined in section 101(b)(1)(B) of the Act to include
an unman-lei child under the age of 21 who is a stepchild, whether or not
born out of wedlock, provided the child had not reached the age of 18
years at the time the marriage creating the status of stepchild occurred..
The term "child" is also defined in section 101(b)(1)(E) of the Act as

including a child adopted while under the age of 14 years, if the child has
thereafter been in the legal custody of, and has resided with, the adopting
parent or parents for at least two years.
In Matter of A—, 8 I. & N. Dec. 242 (BIA 1959), we recognized that a
child adopted in accordance with the requirements of section
101(b)(1)(E) of the Act could be classified as a "stepchild" under section
101(b)(1)(B) of the Act if the adoptive parent married a United States
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citizen while the child was under the age of 18. Conversely, a child who
has not been adopted in accordance with section 101(b)(1)(E) cannot be
classified as a "stepchild" under section 101(b)(1)(B) even if the adoptive
parent marries a United States citizen before the child reaches the age of
18. Cf. Matter of Butterly, 14 I. & N. Dec. 460 (BIA 1973).
Section 101(b)(1)(E) of the Act requires the child to have been in the
legal custody of the adopting parent for at least two years after the

adoption. Since the beneficiary was adopted by the petitioner's wife less
than two years ago, the legal custody requirement of section 101(b)(1)(E)
has not been fulfilled. Consequently, the beneficiary cannot be classified
as the petitioner's "stepchild" under section 101(b)(1)(B) of the Act, and
he does not qualify for immediate relative status under section 201(b) of
the Act.
We realize that there are many sympathetic factors in this case.
However, we have no power to make an exception in the law for this
beneficiary. When the beneficiary has been in the legal custody of the
adoptive mother for two years, the petitioner can file a new petition in his
behalf. Under the circumstances, we have no choice but to dismiss the
appeal.
ORDER: The appeal is dismissed.

527