MATTER OF S--

In VISA PETITION Proceedings
A-12084150

Decided by Board September 6, 1961
Nonquota status—Spouse of U.S. citizen—Presumption of validity of marriage
negatived by proof of prior existing marriage.
Presumption of validity of second marriage is rebutted, and visa petition to
accord nonquota status is denied, where the record discloses that beneficiary enntrneted a first marriage seven months prior to his marriage to
petitioner, that he made no efforts to obtain a dissolution of his first marriage, and there is no evidence other than own statements that his first
wife deserted him and that he has been unable to locate her.

BEFORE THE BOARD

DISCUSSION: This is an appeal from the denial of a petition for
the issuance of a nonquota immigrant visa. The District Director
found that the beneficiary has been previously married, has not presented proof of the termination of his prior marriage, and, therefore, the marriage of the petitioner to the beneficiary is not valid.
Petitioner appeals to this Board.
Petitioner is 28 years of age, a native of Greece who acquired
United States citizenship through naturalization in the United States
District Court at New York on August 15, 1960. The beneficiary is
26 years of age, born in Greece. He entered the United States on or
about December 22, 1959, at Detroit, Michigan, as a visitor in possession of a British passport to visit relatives or friends in. Chicago.
The beneficiary immediately became employed by a friend as a "grill
man" in a restaurant. Immigration records show that beneficiary
was a landed immigrant in Canada and was residing in Toronto
prior to his 19159 entry. Following hie December 1959 entry, hensficiary was apprehended by immigration authorities and was given
voluntary departure either in February or April 1960. He remained
in Canada two weeks and again returned to the United States.
The petitioner Married beneficiary in New York in a civil ceremony
on September 16, 1960, and in a religious ceremony on October 16,
1960. Counsel and petitioner's husband allege that petitioner is now
pregnant; that the parties are living together; that petitioner is
654377-6,3---34

513

not. employed and is entirely dependent upon the beneficiary for
her support. The beneficiary, in a sworn statement before an immigrant inspector at New York on April 13, 1961, denied at first that
he had been married prior to his marriage to the petitioner. Upon
being warned again of the penalties of perjury, he stated that he
was married in Chicago in a civil ceremony at or neat the end of
March 1960; that the girl he married was named Cathy ; that he
could not remember her last name and that she stayed with him only
one day and then disappeared. After being shown his "Affidavit for
a Marriage License," application executed in Chicago on February
16, 1960, and Exhibit A, a sworn statement taken in Chicago on
January 26, 1960, he then admitted that he knew Katherine for two
months and had been dating her before they were married. He said

that he married her becauSe he loved her; that he knew she was a
United States citizen; that they lived together in a hotel "as man
and wife" for about one week. He then denied that the marriage
was ever consummated. He stated that the last time he saw Katherine was around April 15th, which means they were together after
their marriage for at least two months. He continued to deny that
the marriage was consummated, stating that he feared sexual relations because he had no money and no job and did not want a family. This testimony is in conflict with his sworn affidavit, Exhibit A,
wherein he stated that, he was working fnr "Nick's Snacks," owned

by his friend, N—H—, for $90 a week.
Beneficiary applied for section 245 adjustment of status in New
York in February 1961. (See file, memorandum to District Director,
Chicago, February 24, 1961, from Acting Chief, Applications Section.) Beneficiary admits that his marriage to Katherine was never
legally terminated; that he made no effort to terminate his marriage
because he does not consider "in his thoughts" that he is married to

Katherine. He says that he could not find her after she left him,
and that he knew it would cost money to obtain a divorce through
an attorney. His "Affidavit," application for a marriage license,
executed on March 28, 1961, prior to his marriage to petitioner, states
that he had not previously been married. It is alleged that petitioner
did not know the beneficiary had been married.
Counsel rests his appeaLentirely on the presumption of the validity of a ceremonial marriage in the State of New York. Counsel
relies on cases where a prior spouse had disappeared and been long
gone, or was believed to be dead, or cites oases where the second
ceremonial marriage is attacked by outside parties (e.g., wills and
estate matters). There was an_ obligation on beneficiary to inform
his first wife as to his whereabouts, and to use all possible diligence
to ascertain the facts as to the existence or death of his first wife
before entering into a second marriage. In the State of New York
514

there is a procedure under the Domestic Relations Law for obtaining
a ruling of dissolution of marriage against the deserting spouse. The
law indulges in presumptions from the necessities of the case in the
absence of sufficient evidence to establish a fact to be proved. in
re Meehin's Estate, 135 N.Y.S. 723 (1912).

The prior decisions of the Board cited by counsel in his oral argument do not constitute precedent in the instant case. Matter of F—,
E-163 (B.I.A., 1953), concerns an alien who had been living in the
United States for 28 years in what was found to be a valid, commonlaw relationship. The Board found further that he had made serious
efforts on two occasions to locate his first wife in England. We
ordered that deportation of the alien be suspended on the basis of
his long-standing, well-established domestic relationship with his
second wife.
In the second case cited by counsel, Matters of S—, 7 169 (B.I.A.,
1957), we refused to give the alien the benefit of the presumption
of the validity of the second marriage, because the facts clearly showed
lack of good faith on his part. Although that case arose in California, and we rested primarily on California cases, the same rule
would control in the instant case.
The visa petition is a request for a privilege, and the petitioner
must establish that the relationship exists upon which she relies. The
presumption of the validity of the second marriage can be negatived
by proper proof that the prior marriage exists and has not been
terminated. There is no question but that beneficiary was married to
a United States citizen named K—W— in Chicago on February 16,
1960. There is no evidence in this record that beneficiary's first wife
deserted him, or that his first marriage was not consummated, or that
he has been unable to locate his first wife and does not know her
whereabouts, except his own statements. His testimony is full of
inconsistencies, and he has shown himself to be an unreliable witness
in every aspect of his sworn testimony, including his affidavit for
a marriage license in New York.
A—S-- admitted, after being confronted with the record, that he
made no effort to obtain a dissolution of his first marriage. We find
that his marriage seven months later to petitioner was not entered
into in good faith. A visa petition will not be issued on the basis of
this clearly bigamous marriage. The appeal will be dismissed.
ORDER : It is ordered that the appeal be and is hereby dismissed.

515


Interim Decision #1811

MAITRE OF WINTER
In Deportation Proceedings
A-7917572
Decided by Board Novnieber 13, 1967 and February 9, 1968
of guilts, to charges of larceny in Massachusetts criminal proceedings is not, without more, tantamount to an admission of the commission of
such crime for immigration purposes where at the conclusion of the Massachusetts court proceedings in 1964 sentence was not imposed and the case was
placed on file. Hence. respondent who departed and reentered the United States
subsequent to such criminal proceedings, is not deportable as one excludable at
entry because of admission of the commission of a crime involving moral turpitude.

Respondent's plea

CRAIKIES :
Order : Aet of 1952--Section 241 (a ) (5) [8 V.S.C. 1251 (a) (5)7—Failure to furnish notification of change of address.
Act of 1952—Seetion 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable at
entry under section 212(a) (9), as one who admits commission of crimes involving moral turpitude, to wit:
larceny.
ON RENALF or Stamm :
R. A. Tielhaber
Appellate Trial Attorney
Bernabe Q. Maldonado
Trial Attorney
(Brief submitted)
Solomon Isenstein
Acting General Counsel

ON Beams OF RESPONDENT :
Sam Williamson, Esquire
1820 Americana Building
Houston, Texas 77002
(Brief submitted)

The Service appCals from a decision of the special inquiry officer
finding respondent not deportable on either of the charges, and terminating proceedings.
Respondent is a 28 year old married male alien, a native of England
and citizen of Great Britain, who was lawfully admitted to the 'United
States for permanent residence on December 14, 1950. His wife was
lawfully admitted for permanent residence in 1968, and of their three
children; two are native born 'United States citizens and one is a law-

-

638

Interim Decision #1841
ful permanent resident. In 1953, at the age of 19, respondent enlisted
in the United States Air Force; he served, pursuant to this and two
-subsequent enlistments, for a period of ten years, until his discharge
under honorable conditions in the spring of 1963.
We concur in the special inquiry officer's finding that respondent is
not deportable under section 241(a) (5) as one who failed to give
notification of his change of address, and we note that the Service
does not appeal from this portion of the decision. We need not rule on
the contention that the special inquiry officer erred in holding that the
.standard of proof set out in TV ood.by and Sherman.v. Immigration and
IV aturo2ization Service (385 U.S. 276) was applicable, because it is
not necessary to our decision. The record establishes that there is no
real question of deportability on this charge. Respondent's failure to
furnish notification of his December 9, 1965 change of address on or
before December 19, 1965 is admitted by him. His testimony that he
forgot about it in the pressure of external events is completely believable, and sufficient to rule out willfulness and make the omission
reasonably excusable, when taken in the context of his lawful admission
for permanent residence 15 years earlier, and the fact that within 20
days of the missed deadline he furni shed the new address as part of

his regular January address report.
The issue here is whether respondent is deportable on the second
charge. On July 27, 1964, a two count complaint was filed against him
in the District Court of Southern Essex, Essex County, Massachusetts, charging that on March 21 and March 28, 1964, he stole U.S.
money of the value of less than $100, from each of two named victims.
The record does not state under what statutory section he was charged,
showing only "LARCENY two counts". On July 81, 1964 respondent
appeared before the court, without counsel, and pleaded guilty to both
counts. There was no sentence imposed and the record shows the following disposition:
Therefore, It is considered that the case be placed on file on the payment of 40,

costs, on the first count and on the second count the case is placed on file.

On July 21, 1964, the Fourth District Court of Eastern Middlesex,
Middlesex County, Massachusetts, a complaint was filed charging respondent with having, on March 14, 1964, drawn and uttered a. check
against a named bank, knowing he had insufficient funds in the bank,
and with intent to defraud, and having thereby received $30 cash
which was the property of another. This offense also was not identified
by any particular statutory section number, but was shown as "larceny by check". On July 28, 1964 respondent appeared in. court, without counsel, and pleaded guilty to the charge. On August 11, 1964,
likewise without sentencing, the case was placed on file.
639

Interim Decision #1841
The procedure of placing a case "on file", employed by the courts
of the State of Massachusetts, has been considered by the Supreme
Court of the United States in Pisa v. Landon, 349 U.S. 901, and has
been held not to have sufficient finality as a conviction to support an
order of deportation within the contemplation of section 241( a) (4).
Therefore, these two charges and their disposition did not make respondent deportable.
Respondent left the United States, without intent to abandon his
residence, on February 14, 1965. He was readmitted as a returning
resident alien on December 2, 1965. The Government contends that he
is now deportable for having been 'excludable when he reentered, in
that at that time, by virtue of his plea of guilty on July 31, 1964 to the
two counts of the complaint in the Essex County court, he was an alien
who admitted having committed a crime involving moral turpitude.
It should be noted that in these proceedings there is no showing that
respondent has ever made an independent admission of the commission of any crime, or conceded that he was guilty of the crimes above
referred to. Instead, he is attempting to attack the validity of his plea
of guilty upon the ground 'that it was improperly obtained because
he was not advised of his right to counsel. The only statement which
can be considered in determining whether a sufficient and valid admission was made, is the plea of guilty to the two count complaint in the
Essex County court.
The special inquiry officer's decision that respondent is not deportable on the second charge proceeds from his own determination of the
actual character of the offenses with which the respondent was
charged, and the finding that they did not involve moral turpitude.
Although the court record shows the offenses to be larceny and the
special inquiry officer cites authority for the proposition that larceny
involves moral turpitude, he goes on to find, from respondent's testimony at the hearing about the circumstances under which the charges
arose, and an investigative report by a Service investigator, that the
actual offenses were larceny by check, as defined in section 37 of Chapter 266 of the Massachusetts General Laws.
We concur in the Service position that the special inquiry officer
erred in so holding. Exhibit 5, according to certification by the Clerk
of the District Court of Southern Essex, is a true copy of respondent's
record in that court. While no statutory section is mentioned, the record shows the charged offenses to be "LARCENY two counts". The
factual recitation in each count, that the defendant "did steal United
States money of the value of less than $100, the property of. . is
entirely consistent with the statutory definition of larceny contained
in section 30 of Chapter 266. It is also sufficient under section 41 of
640

Interim Decision #1841
Chapter 277 of the Massachusetts General Laws, which reads as
follows :
Indictment of larceny. In an indictment for criminal dealing with personal

property with intent to steal, an allegation that the defendent stole said property
shall be sufficient; and such an indictment may be supported by proof that thedefendant committed larceny of the property, or embezzled it, or obtained it by
false pretenses.

Had the respondent made an independent admission of commission
of a crime, or of the acts constituting the essential elements of a crime,
there would be scope for ascertaining what specific acts were admitted
and whether they constituted a crime under any section of the laws of .
the jurisdiction where they took place. However, where the admission
claimed consists entirely of a plea of guilty to the count or counts of
a complaint in criminal proceedings; where there is no ambiguity or
inconsistency in the description and denomination of the crime charged
in the complaint; and where the record shows no evidence of an amendment or correction of the counts in the complaint, then the plea of
guilty must be deemed to be to the specific crimes named in the complaint, and there is no justification for going outside of the record to
determine whether, based upon information later supplied by him, respondent was or should have been charged with a different crime,.
under a different section of the laws of the State of Massachusetts?
The record herein establishes that respondent pleaded guilty to two
counts of larceny, and larceny does involve moral turpitude. However,.
under the ruling in Pino v. Landon, supra, the disposition of the case
lacks sufficient finality to be deemed a "conviction", and respondent
was not thereby rendered excludable under section 212(a) (9) as one

convicted of a crime involling moral turpitude.
The Government states:
That a judicial plea of guilty is tantamount to an admission within the immigration laws appears to be settled beyond dispute. Matter of A , 1. I. & N. Dec.
671; Matter of V S , 2 I. & N. Dec. 703.
—

—

—

A more accurate statement is contained in Matter of G—, 1 L &
Dec. 96, wherein we held:
1 We do not agree with the special inquiry officer that the crime of larceny by
check, as defined in section 37, Chapter 266 of the Massachusetts General Laws,
does not involve moral turpitude (see Matter of Vosganian, bit. Dec. No. 1676),
nor do we consider the cases cited by him to be authority for his conclusion. The
Massachusetts statute makes intent to defraud an essential element of the crime,
as distinguished from the statutes considered in the cited eases, and the cited
decisions specifically state that where intent to defraud is a necessary element,
then moral turpitude inheres. Further discussion of this point is not warranted,.
however, because It is not necessary •to the making of our decision herein.

641

Interim Decision #1841
If the final outcome of a criminal prosecution was a conviction, we think it well
settled that a plea of guilty is evidence of the admission of the commission of
the crime. * * * (Emphasis supplied.)

In later decisions, it has been spelled out that such a conviction must
be equal in force and finality to a conviction necessary to sustain a
finding of deportability or excludability based on conviction of crime.
In cases where there has been a plea, of guilty in criminal proceedings,
followed by a conviction, even followed by an independent admission
of commission of the crime during deportation proceedings, it has been
found that there was an insufficient admission for excludability purposes where the conviction was followed by a pardon or expungement
(Mattes. of E—V--, 5 I. & N. Dec. 194), or by a timely judicial recommendation against deportation (Rasmussen v. Robinson, 163 F. 2d
732). We are aware of no case in which a plea of guilty made in criminal proceedings, which resulted in something less than a conviction,
or in a conviction with a recommendation against deportation or a
subsequent pardon or expungement, was found a sufficient admission,
without more, to sustain a finding of deportability.
As we pointed out in Matter of G—, supra, the plea to an indictment or complaint is so much an integral part of the entire criminal
proceeding that it cannot be isolated from the final result of that pro-ceeding, and given more force or finality than that result. Under the
interpretation urged by the Service, the mechanics of the criminal
proceeding would overshadow the outcome; an alien found guilty
-after trial, whose case is placed on file, is not excludable, whereas the
alien found guilty on his plea whose case is placed on file, would be
excludable. We are not persuaded that it was ever intended the "admission" provisions of section 212(a) (9) should have such a. result.
Where, as here, an alien has been the subject of court proceedings on
criminal charges and the ultimate disposition of those charges by the
court, falls short of a conviction, or nullifies that conviction for deportation or exclusion purposes by a recommendation against deportation
(or the same result is reached thereafter by a pardon), the "admission"
provisions cannot be called into play to give the intermediate step of
pleading a stronger effect than the ultimate disposition could have
under the immigration laws. We find, therefore, that on the facts
herein respondent is not deportable on the second charge in the order
to show cause.
For the reasons set forth herein, the disposition of this case below
was the proper one, and the appeal will be dismissed.
ORDER: It is ordered that the appeal. herein be and the same is
hereby dismissed.
-

-

642

Interim Decision #1841
BEFORE THE BOARD

On April 14, 1967, after several hearings, the special inquiry officer
rendered a decision finding respondent not to be deportable on either
of the charges in the order to show cause, and terminating proceedings.
The Service appealed, requesting oral argument; respondent's counsel
being unable to appear, the Government presented its argument unopposed on July 13, 1967. On November 13, 1967, for reasons set forth
fully in its opinion, the Board dismissed the appeal and affirmed the
finding that respondent was not deportable as charged. The Service
now asks that the Board reconsider and reverse its decision, that it
find respondent deportable on the second charge, and remand the proceedings for action by the special inquiry officer on applications for
discretionary relief heretofore filed by respondent.

The following is a summary of the relevant facts, which have been
fully set out in the prior decisions:
On July 31, 1904, in the District Court of Southern Raw; Essex
County, Massachusetts, respondent, without counsel, pleaded guilty to
both counts of a two-count complaint charging that he had committed
larceny on March 21 and March 28, 1964. There was no sentence imposed, and the court disposed of the proceedings thus

Therefore, it is considered that the case be placed on file on the payment of
$10, costs, on the first count and on the second count the case is placed on file'

Under the holding of the United States Supreme Court, in Pao v.
Landon, '349 U.S. 901, such a disposition has been held not to have
sufficient finality as a conviction to support an order of deportation
under section 241(a) (4). Respondent therefore was not rendered

deportable by the criminal proceedings. He left the United States in
1965, remained away for about ten months, and was admitted as a
returning resident alien on December 2, 1965. Inasmuch as the respondent had no "convictions" for crime, he could not be charged with
having been deportable as excludable on that entry as one previously
convicted of a crime involving moral turpitude. The Government
turned to the pleas of guilty in the court proceedings and charged
that on the basis thereof, respondent was deportable as one who was
excludable under section 212(a) (9), having admitted commission of
crimes involving moral turpitude.
=On July 21, 1964, respondent, also without . counsel, pleaded guilty in the
Fourth District Court of Eastern Middlesex, Middlesex County, Massachusetts
to a charge of larceny by cheek on 2,14reh 14, 1084, and that case was also dicr-

posed of by being placed on file. It is not considered here since it was not urged
as a ground of excludability or deportability in the order to show >cause, and
further, baying had the.same disposition as the offenses under consideration,
it would be controlled by our decision as to the effect of those charges and their
disposition.

643

Interim Decision #1841
In sum, it was the Board's position that if the final outcome of a
'criminal prosecution was a conviction, then a plea of guilty was

'evidence of the admission of the commission of the crime; but, where
the alien had been the subject of court proceedings on criminal charges,
'and the ultimate disposition of those charges by the court fell short
'of a conviction, or nullified that conviction for deportation or exclusion purposes by a recommendation against deportation (or the same
result was thereafter reached by a pardon, or later expungement or
'dismissal), the "admission" provisions could not be called into play
'to give the intermediate step of pleading a stronger effect than the
ultimate disposition could have under the immigration laws. We are
-aware of no case in which a guilty plea, followed by something less
'than a conviction, or in a conviction with a recommendation against
-deportation or a subsequent pardon or expungement, has been found a
•sufficient admission, without more, to sustain a finding of deporta,bility.
The Government, in its motion, urges that we have overlooked or
misread the import of Man0m v. .Haff, 78 F.ad 833, from which the
fallowing statement is often separated and quoted:
-

We think it clear that a plea of guilty is a confession of guilt within the meaning of the immigration laws. It is an admission under the most solemn einem..
stances, a judicial confession.

In Illwinen v. Hoff, the court had before it a case in which there had
been a plea of guilty, a conviction that was in every respect final,
which was never expunged, wiped out by pardon or weakened by a
recommendation against deportation, and after which the aliens served
six years in the penitentiary. They were each thereafter charged with
being deportable as one who "had been convicted of or admits the
commission of a felony or crime or misdemeanor involving moral
'turpitude, to wit, grand larceny, prior to his entry in August, 1926."
'They denied that they had admitted commission of a crime, and it
was in answer thereto that the above statement was made. However,
taken in the context of what follows, we find it far from clear that this
-was the controlling or decisive factor in this decision. For the court
went on to hold:
-

-

Furthermore, as they were convicted of an offense committed before their last
entry, they were subject to deportation for that reason. U.S. es rel. Karpav v.
Uhl (GOA.)• 70 F.2d 792, and U.S. ex rel. Rosen v. Williams (GOA) 200 F. 538,
541; U.S. em rd. 'Volpe v. Smith, 289 U.S. 422, 53 S.Ot. 635, 77 L.Bd. 1298. Also,
As appellee [the Government] says, "they would have been deportable (8 1:1.S.C.A.
§ 155), If they had never left the United States, as aliens 'sentenced to imprisonment for a term of one year or more because of conviction in this country of a
•crime involving moral turpitude, committed within live years after the entry?
We conclude that the Secretary of Labor was right in ordering the petitioners
deported.

644

Interim Decision #1841
The second argument advanced by the Service is that we may not
been
set aside, expunged, dismissed, or shown to be inconsistent with the
guilty pleas. However, this overlooks the important fact that there
have never been "convictions" in this case.
disregard the "convictions" here, because they have in no way

The motion does not set forth sufficient basis for a change in the
Board's decision, and will be denied.

ORDER: It is ordered that the motion be and the same is hereby

denied.
0

645


Interim Decision #2100

MATTER OF SAGASTI

In Deportation Proceedings
A-19878199
Decided by Board October 20, 1971
Notification to an alien ordered deported of the right to apply for withholding of deportation pursuant to section 243(h) of the Immigration and Nationality Act, as amended, is required under 8 CFR 242.17(c) only with
respect to the country or countries "specified" by the special inquiry
officer; notification of such right is not compelled under 8 CFR 242.17(c)
with respect to the country "designated" by the alien.

CHARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant visitor—remained longer.
ON BEHALF OF RESPONDENT:

Otto F. Swanson, Esquire
215 W. Fifth Street, Suite 910
Los Angeles, California 90013

This is an appeal from an order of a special inquiry officer
dated August 20, 1971, denying respondent's motion to reopen the
proceedings. A stay of deportation is no longer a matter of right
on such an appeal, 8 CFR 3.6, as amended, 36 F.R. 316 (January
9, 1971). On September 2, 1971, we denied counsel's request for
such a stay pending receipt of the record and adjudication of the
appeal. The record on appeal has now been received. The appeal
will be dismissed.
The respondent is a 47-year-old married male, a native and citizen of Spain, who was admitted to the United States as a nonimmigrant visitor on or about October 26, 1968 and has remained
longer than permitted. At a joint deportation hearing with his
wife 1 before a special inquiry officer on January 13, 1971, at
which they waived counsel, respondent and his wife admitted the
I His wife, Sylvia Alvarez de Sagasti, subject of Service file A-20003925, is
not a party to this appeal. The record reflects that she is a native and citizen of Chile.

771

Interim Decision #2100
factual allegations of the order to show cause and conceded deportability. Both applied for voluntary departure.
The respondent testified that he had lived in Spain the first
fourteen years of his life, then had fled to France where he remained close to a year. He was given residence rights in Chile,
where he had resided for approximately 30 years before entering
the United States.
The special inquiry officer found both the respondent and his wife
deportable and asked them to designate a country to which they
desired to be sent if deportation should be required. Both designated Spain and the special inquiry officer stated that he would
direct deportation to Spain if deportation should be required (Tr.
p. 7). He entered an order granting then until July 13, 1971 to
depart voluntarily, with an alternate order for deportation to
Spain if they failed to depart. No alternate country of deportation was specified by the special inquiry officer. Appeal was
waived and the order became final.
Respondent thereafter retained counsel, who on July 31, 1971
filed an unsupported motion to reopen. In it, he asserted that respondent "no longer has any ties, family or otherwise, in
[Spain]"; that neither Spain nor Chile would be an appropriate
country of deportation, since he is neither Fascist nor Communist; and that he would be subject to persecution if deported to
either country. The motion concluded, "The respondent will present evidence in the form of oral testimony, affidavits and numerals newspaper articles to support his claim to such anticipated
)ersecution." The Service opposed the motion, pointing out that
)oth respondent and his wife had designated Spain at the deporation hearing and that neither had then asserted any claim of
ersecution if sent to that country. In the brief order before us
n appeal, the special inquiry officer denied the motion for the
Masons advanced by the Service.
The motion does not comply with the requirements of 8 CFR
12.22 and 103.5. It does not state the new facts to be proved at a
opened hearing and is unsupported by affidavits or other evimtiary material. The conclusory allegation that "persecution
ould result" is not sufficient. Neither is the generalized stateent that the respondent will present evidence in the form of
•al testimony, etc., at a reopened hearing. Insofar as Spain is
ncerned, insufficient facts have been offered to warrant reopeng. The allegations with respect to Chile are not only insubstanL1 but irrelevant; that country has not been named even as an
ernate destination.
772

Interim Decision #2100
In his brief on appeal, counsel raises an additional point not
heretofore considered. He charges that the special inquiry officer
did not comply with the provisions of the regulation requiring
him to inform the respondent of the right to apply for withholding under section 243 (h) of the Act. That regulation, 8 CFR
242.17(c), provides in pertinent part as follows:
The special inquiry officer shall notify the respondent that if he is finally
ordered deported his deportation will in the first instance be directed pursuant to section 243(a) of the Act to the country designated by him and
shall afford the respondent an opportunity then and there to make such designation. The special inquiry officer shall then specify and state for the record the country, or countries in the alternative, to which respondent's deportation will be directed pursuant to section 243(a) of the Act if the country
of his designation will not accept him into its territory, or fails to furnish
timely notice of acceptance, or the respondent declines to designate a country. The respondent shall be advised that pursuant to section 243(h) of the
Act he may apply for temporary withholding of deportation to the country
or countries specified by the special inquiry officer and may be granted not
more than ten days in which to submit his application. . . . (Emphasis supplied.)

The statutory scheme, as implemented by the regulations,
seems clear. The deportable alien is given the first choice. Both
the statute, section 243(a), and the regulation quoted above give
him t ,poweiixto " esigna e" 1 the countryep
d n.
.ofrtation.
• e If the
alie
app.
43 Or) ,-.A7 k
• is...requirea .on
: respect to the-coiAry or -C"oiintri.
fat
tion to alternate countries.`The regulation authorizes the special
inquiry officer to "specify" the alternate country or countries,
which are obviously different from the one "designated" by the
alien, Notification of the right to apply for section 243 (h) withholding is required only with respect to the ctuntry or countries
"specified" by the special inquiry officer. Notification of this right
is not compelled with respect to the country "designated" by the
alien; presumably, given the power of choice, a deportable alien
would not choose a country where he fears he will be persecuted.
The better practice might be to ask the alien whether he fears
persecution in any of the countries named, either as the first or
alternate destination, regardless of whether the country is "designated" by the alien or "specified" by the special inquiry officer,
and to advise him of his right to apply for section 243 (h) withholding in any named country.' The regulations, however, do not
require it. We find no basis, on this record, to conclude that the
2

We note that some special inquiry officers have adopted this course. The

practice is not uniform.

773

Interim Decision #2100
respondent has been prejudiced by failure of the special inquiry
officer to give him this advice which the regulation does not require. The facts thus far presented do not make out even a prima
facie showing that the respondent is likely to be persecuted in
Spain within the meaning of section 243 (h).
ORDER: The appeal is dismissed.

774


Interim Decision #2600

MATTER OF OBANDO
In Visa Petition Proceedings
A-21172362
Decided by Board July 20, 1977
(1) United States citizen petitioner filed a visa petition seeking to classify the beneficiary
as his unmarried daughter, under section 203Ia)(1) of the Immigration and Nationality
Act. Beneficiary had been born out of wedlock in 1953 in Belize. On December 15, 1976,
the Municipal Court of St. Croix, Virgin Islands, issued a decree of legitimation under
Title 16, section 462 of the Viigin Islands Code which provided that the beneficiary
would be considered as the legitimate child of the petitioner for all purposes, from the
time of her birth.

(2)Since the act of legitimation of the beneficiary did not take place until she was 23 years
of age, beneficiary cannot qualify as petitioner's "child - under section lUl(b)(1)(C) of the

Act, and the visa petition was properly denied.

(3) Matter of Palacio, 11 I. & N. Dec. 183 (BIA 1965) distinguished.
ON BEHALF OF PETITIONER.

.Tnhnsnn, F.squire
King Christian Hotel
Post Office Box 3649
Christiansted, St. Croix
U.S. Virgin Islands 00820

Russell R

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

The United states citizen petitioner filed a visa petition seeking to

classify the beneficiary as his unmarried daughter under section
203(a)(1) of the Immigration and Nationality Act. The District Director
denied the petition on the ground that the beneficiary had not been
legitimated before she reac.hed the age of 18 years, and therefore could
not qualify as the child of the petitioner within the meaning of section
101(b)(1)(C) of the Act. The petitioner has appealed. The appeal will be
dismissed.
The facts in this case are not in dispute. The beneficiary was born
out-of-wedlock in Belize (British Honduras) on September 14, 1953.
Until coming to join her father in St. Croix, Virgin Islands on November
20, 1976, she had always resided with her natural mother in Belize.
The petitioner and his wife brought a legitimation proceeding in the
Municipal Court of St. Croix, where they reside. The court issued a
decree of legitimation dated December 15, 1976. The decree states that
278

Interim Decision #2600
the beneficiary "shall be considered as the legitimate child of [the petitioner] from the time of her birth for all purposes."
The legitimation was accomplished in accordance with Title 16, Virgin
Islands Code, section 462, which provides:
The father of an illegitimate child, by publicly acknowledging it as his own, receiving
it as such with the consent of his wife, if he is married, into his family, and otherwise
treating it as if it were a legitimate child, thereby adopts it as such; and such child is
thereupon deemed for all purposes legitimate from the time of its birth.

The revision note in the code explains that section 462 is based upon
section 230 of the Civil Code of California, which uses virtually identical
language.' See Matter of Peters, 11 I. & N. Dec. 691, 692 (BIA 1966).
The record shows that the petitioner complied with the requirements
of section 462 of the Virgin Islands Code.
In order to qualify as the petitioner's unmarried daughter, the beneficiary must at one time have been the petitioner's "child" within the
definition of section 101(b)(1) of the Act. Matter' of Coker, 14 I. & N.
Dec. 521 (BIA 1974).
Under section 101(b)(1) of the Act, a person may qualify as a "child"
within the context of the immigration laws only where the parent - child
relationship exists by reason of any of the circumstances set forth in
section 101(b)(1). The term "child," as defined in that section, does not
include illegitimate children not claiming an immigration status by virtue of their relationship to their mother under section 101(b)(1)(D). The
child must either be legitimate under section 101(b)(1)(A) or legitimated
in accordance with the provisions of section 101(b)(1)(C) of the Act:
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. (Emphasis supplied.)

. The beneficiary's legitimation took place when she was 23 years old. It
would thus seem clear that the legitimation occurred too late to confer
any immigration benefits. However, the petitioner stresses the fact that

the decree confers legitimacy from the time of' the beneficiary's birth.
This argument is fallacious. Generally, when a child is legitimated, the
child is deemed legitimate from the time of its birth. That has nothing to
do with the age of the child at the time when the act of legitimation takes
place. In this case, the act of legitimation took place when the child was
23, not when it was born.
The petitioner seeks to support his novel argument by citing our
' Section 230 of the California Civil Code was repealed in 1975 when California adopted
the Uniform Parentage Act. Matter of Buenaventura, Interim Decision 2636 (BIA 1977).

279

Interim Decision #2600
decision in Matter of Palacio, 11 I. & N. Dec. 183 (BIA 1965). That case
arose under section 230 of the California Civil Code, which, as noted
above, was the model for section 462 of the Virgin Islands Code. The
beneficiary in Palacio was 21 years old when the decree of legitimation
was issued. However, the acts constituting the legitimation had occurred much earlier, when the beneficiary was eight years old. The
decree specifically stated that the date of legitimation was December 31,
1952, when the beneficiary was eight years old. In Palacio no reliance

was placed upon the fact that the legitimated child was deemed legitimate for all purposes from the time of its birth. What was crucial was
the fact that the child had become legitimated when it was eight years
old. The legitimation decree, issued 13 years later, merely confirmed the

child's legitimate status; it did not create that status.
The petitioner's argument thus has no merit.
ORDER: The appeal is dismissed.
.

280


Interim Decision #1781

MATTER OF VALSAMAKIS

In Visa Petition Proceedings
A-17956472
Decided by Board August 30,1967
who was admitted for permanent residence in 1951 in nonquota status as an eligible displaced Greek orphan under
section 2(e) of the Displaced Persons Act of June 25, 1948, and who derived
no benefits for immigration purposes from her subsequent adoption by United

Petitioner, an adult natnralized citizen,

States citizens in 1952 while under 14 years of age, is not precluded by the
proviso to section 101(b) (1) (E) of the Immigration and Nationality Act, as

amended, from conferring immediate relative status on her natural father, the
beneficiary.
ON BEHALF or

Pwrinoxsa : John A. Hodges, Esquire
821 Market Street, Suite 511
San Francisco, California 94102

The case comes forward pursuant to certification by the District Director, San Francisco District, of his order entered June 29, 1967 denying the visa petition for the reason that the petitioner, having met the
requirements of section 101(b) (1) (E) of the Immigration and Nationality Act as an adopted child, is limited by the proviso of that section,
and can not accord any right, privilege or status to her natural fathei
under the Act; therefore, the beneficiary, the natural father, is ineligible for immigrant status as the father of a United States citizen under

section 201(b) of the Immigration and Nationality Act, as amended.
The petitioner, a native of Greece, a citizen of the United States by
naturalization on June 2, 1959, 28 years old, female, married, seeks
immediate relative status on behalf of the beneficiary as her father.
The beneficiary is a native and citizen of Greece, 70 years old.
The documents submitted in support of the visa petition established
that the beneficiary is a widower and that the petitioner is his natural
child, the daughter of the beneficiary, Constantinos, and Angelikis. The
file also contains a decree of adoption in the Superior Court of the State
of California in and for the County of Contra Costa dated August 7,
1952 whereby the petitioner was adopted by Nicolleta and Peter
Voresis. The decree of adoption recites that the mother of the adopted

421

Interim Decision #1784
child is deceased and the father has given his written consent to the
adoption.
A. memorandum to the file dated May 1, 1967 indicates that the petitioner was admitted to the United States on December 15, 1951 in nonquota status as an eligible displaced Greek orphan under section 2 (e)
of the Displaced Persons Act of June 25, 1948.' The memorandum
points out that the definition in section 101(b) (1) (F) of the Immigration and Nationality Act relating to an orphan requires that the
orphan be adopted abroad by a United States citizen and his spouse,
or that the child be coming to the United States for adoption in the
United States by a United States citizen and his spouse, who have complied with the adoption requirements, if any, of the child's proposed
residence. Section 101(b) (1) (F) also provides that no natural parent
of any such adopted child shall thereafter, by virtue of such parentage,
be accorded any right, privilege, or status under the Act. The memorandum points out that the definition of the term, "eligible displaced
orphan" in the Displaced Persons Act has no requirement whatsoeier
that the orphan will be adopted in the United States or has been
adopted abroad by a United States citizen.
When the petitioner came to the United States she was sponsored by
the United States Committee for the Care of European Children. Although she was visiting her uncle, Peter Voresis, who together with his
wife, adopted the beneficiary by court order dated August 7, 1952,
there is no evidence whatsoever in the petitioner's file indicating that it
was her uncle's intention to adopt the petitioner when she received her
visa or when she was admitted to the United States. The memorandum.
further indicates that the adoptive parents were both citizens of the
United States, Peter Voresis having been naturalized July 19, 1929 and
his wife, Nicoletta Voresis, having been naturalized November 24,
1942. The memorandum concludes that the petitioner could not confer
a benefit upon her adoptive parents, since they are both citizens; however, it is conceivable that if one or both of the parents were to become
expatriated, she could confer preference quota status on the expatriated
parent and that in this possibility the case differs from Matter of Lltm,
Int. Dec. No. 1483.
The Act of June 25, 1948 defines an eligible displaced orphan in section 2(e)
of the Displaced Persons Act in pertinent part as a native of Greece who on or
after January 1, 1940, or on or before January 1, 1949, was forcibly removed or
forced to flee from his former habitual residence in Greece as the direct result of
military operations in Greece by the Nazi Government or by military operations
in Greco by the communist guerrillas, and on January 1, 1950 resided in Greece
and meets the qualifications of said divisions (1), (2), (3) and (5) of this subsection_ (These subsections place further qualifications upon an "eligible displaced
orphan" which the petitioner apparently met.)

422

Interim, Decision #1784
It is believed that although the memorandum correctly and fully sets
forth the facts, it has misconstrued our decision in Matter of Lum,
Dec. No. 1433. In Matter of Lum, the petitioner was adopted in China
during infancy. However she entered this country not as an adopted
child but as a nonquota wife of a United States citizen. We held that
the proviso in subparagraph (E) of section 101(b) (1) of the Act,
which reads "that no natural parent or any such adopted child shall
thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act," was inapplicable when an adopted child
has received no immigration benefits from her adopted status, and as a
matter of either law or fact was in no position to claim such benefit?
therefore, the petitioner's adoption was immaterial and did not affect
the beneficiary's eligibility for classification as a second preference
quota, immigrant based upon the blood relationship of natural mother

to the petitioner.
Replying to a Service motion for reconsideration, on December 31,
1984 we affirmed our previous order of October 19, 1964 in Matter of
Lum. We stated that a prior holding in Matter of B—, 9 I. & N.
Dec. 481 laid down the rule that an adopted child who could not benefit
by the adoption under the immigration laws because not within the
definition of an adopted child under section 101(b) (1) (E) , because
over 14 years at time of adoption, was not disqualified by the proviso
to that subsection from receiving an immigration benefit from his
natural parents. Matter of Lum, Lit. Dec. No. 1433, expanded Matter

of B—, and held that the prohibition contained in the proviso also
had no application where an adopted child has received no benefit
under the immigration laws from the adoptive parent or parents and

could not receive any immigration benefit from the adoption, the adoptive parents being dead.
In the instant case, the petitioner entered the United States for
permanent residence as an eligible orphan under the Displaced Persons Act of 1948 and derived no benefit from the subsequent adoption.
Her adoptive parents, already being citizens of the United States,
can not derive any benefit from the petitioner. The possibility of a
benefit in the unlikely case of expatriation of the adoptive parents
mentioned in the memorandum is considered so remote and speculative
as to have no part in a realistic appraisal of the situation?
We conclude that the petitioner, having received no benefit for immigration purposes under the adoption, is not "such adopted child"
as described in the proviso to section 101(b) (1) (E) of the Act and
' The Service fell into the same error in its motion for reconsideration in
Lum, Int. Dec. No. 1433.

Matter of

423

Interim Decision 4*1784
is not precluded by that proviso from petitioning for her natural
father. The visa petition will be approved.
ORDER : It is ordered that the visa petition be approved for immediate relative status on behalf of the beneficiary.

424


MATTER OF C

G

Application for PERMISSION TO REAPPLY
A-11046691
Doeided by Regional Commissioner Novom,ber 11, 1959

Approved by Assistant Commissioner December 10, 1959
Permission to reapply after deportation—Not granted where previous deportation indicated not bona fide crewman—Alpo ineligible An waiver nude' section
212(d)(3).
(1) Permission to reapply for admission as a crewman will not be granted to
an alien whose past record—deportation as an overstayed crewman and
attempt to enter as a stowaway--indicates that he is not a bona, fide nonimmigrant.
(2) The same reason would require denial of an application under section
212(d) (3) of the 11452 act for waiver of the section 212(a) (17) ground of

inadmissibility.
BEFORE THE REGIONAL COMMISSIONER

Discussion: This case comes forward on appeal from the district
director's order denying the application on the ground that the
applicant's previous disregard for the immigration laws of the
United States does not warrant favorable consideration of the application.
Applicant is a 29-year-old male, a native and citizen of Chile.
He is single and has no relatives in the United States other than
a cousin whose whereabouts are unknown.
Applicant states that he is a crewman; that he first entered the
United States during August of 1952 nc such ; and since that time
has entered on numerous occasions in pursuit of his calling. The
record establishes that he was last admitted as a crewman at Mobile,
Alabama, on March 8, 1957, for a period to expire on March 15,
1957. Applicant did not depart within the period of time granted
and, at a hearing on April 9, 1957, before a special inquiry officer
in deportation proceedings he was found to be unlawfully in the
United States on a remained longer charge. The special inquiry
officer in his decision granted applicant the voluntary departure
privilege to depart within the period of time set by the district
director, or any authorized extension thereof, with an alternate order

that if he did not depart the voluntary departure privilege would
4."

be withdrawn

and order of deportation without further proceedinge

The applicant did not depart, and on May 10, 1957,
warrant of deportation issued. He was deported from the United
States on MU 23, 1957, at Miami, Florida.
The applicant next r.rrved in the United States at San Francisco,
California, on June 6, 1959, as a stowaway on board the SS. Ocean
Alice. His intention at that time was to effect a surreptitious entry
into the United States for the purpose of seeking work. Notice
to detain and deport a stowaway was served on the master of the
vessel and the agent. Applicant was subsequently deported from
the United States at Los Angeles. California, on June 25, 1059.
In his instant application, the alien seeks permission to reapply
for admission as a crewman.
As set forth above, the applicant was admitted as a crewman,
overstayed the period for which he was admitted, and was subsequently deported from the United States. The record of his past
would issue.

actions indicates that he is not a

Loma

file crewman and on this

basis his application will be denied. Had the alien applied for a
waiver of his inadmissibility under section 212(a) (17) of the Immigration and Nationality Act pursuant to section 212(d) (3), that
application also would be denied on the same grounds, namely,
in view of his past record he has failed to establish that he is a
bona file crewman. For the reason stated above the appeal will
be dismissed.
The conclusions set forth above are predict
on the applicant's
actions surrounding his entry as a crewman at Mobile, Alabama,
on March 8, 1957, and his subsequent deportation at Miami, Florida,
on May 23, 1957, as an overstayed nonimmigrant crewman. The
same findings would be made based solely on his actions at the
time he attempted to enter as a stowaway to seek work in the
United States and his deportation following that incident.
Order: It is ordered that the alien's application for permission
to reapply for admission into the United States after deportation
be and the same is hereby denied on the ground that he is not a
bona fide crewman.

477


Interim Decision #1837

MATTER or Wurhmr.
In Exclusion Proceedings
A-14490989

Decided by Board February 10,1968
Applicant, (who was an alien in commuter status at the time of his departure from
the United States to evade military service is upon application for admission
subject to. and Inadmissible under, the provisions of section 212(a) (22) of
the Immigration and Nationality Act.
EzOLUDARtire. Ada 1852—Section 212(a) (22) [8 U.S.O. 1182(a) (22) ]—Departed
from the United States to escape military service.

The special inquiry officer has certified his order excluding applicant on the ground stated in the caption. No change will be made in
his order.
The question is whether applicant left the United States to escape
military service, and if so, whether the fact that he was then a commuter takes him out of the provisions of section 212(a) (22) of the
Act which make a draft evader inadmissible. We answer the first
question in the affirmative, and the second in the negative.
Applicant, a 26 year old single male, native and citizen of Austria.,
-

-

admitted for permanent residence on March 22, 1965, took the status
of a commuter on April 15, 1965. (He worked in the United. States
but resided in Canada.) He registered for the draft in October 1965
and was classified I—A. The company by which the applicant was employed as a lathe hand obtained a deferment for him as a skilled
worker (H A). The deferment expired on December 81, 1966. An
attempt by the employer, involving an appeal, to obtain a continuation of the deferment was unsuccessful. On June 20, 1967 applicant was
returned to the I—A classification. On August 10, 1967, he obtained employment in Canada and on the same day appeared before the Service
and stated he was abandoning his commuter status. He had not been
notified to report for induction before he left. On December 26, 1967,
applicant asked to enter as a visitor for the day.

Applicant's testimony is that although he had no objection to service, he did not wish to serve while the action in Vietnam was in progress and that he left the United States both because he did not wish to
621

Interim Decision #1837
be drafted and because he desired to go to school. (He could not go to
school in the United States because of his working hours and the
amount of overtime he was required to work.) He also stated that he
would like to return to the United States for permanent residence
after the conflict in Vietnam is over. In the United States, applicant
was making about WO a week; in Canada, doing the same work, he
receives about half of this amount. He did not enter school in Canada.
The special inquiry officer found that the applicant abandoned residence in the United States priinarily because of his desire to avoid
service in the armed forces. We believe the record amply supports this
conclusion.
The fact that applicant was in the commuter status when he departed does not make the provision of section 212(a) (22) of the Act
inapplicable. The commuter status gives an alien the privilege of working in the United States and residing in foreign contiguous territory.
This is done by considering him a resident of the United States. We
see no reason why an alien, admitted for permanent residence and
given the privilege of commuting, should be in a better situation as far
as his obligations under Federal laws are involved than the alien actually residing in the United States.
We also find the applicant was not of a nonimmigrant class at the
time of his -departure. He was in the United States in a commuter
statusand such a person is an immigrant.
ORDER: at is ordered that no change be made in the order of the
special inquiry officer.
-


Interim Decision #2696

MATTER OF M/T "RAJENDRA PRASAD"

In Fine Proceedings
SFR-10/28.340
Decided by Board March 30, 197.9
(1)For purposes of an administrative fine proceeding under section 273 of the Immigration
and Nationality Act, 8 U.S.C. 1323, there are essentially two categories of persons
considered passengers: (a) those who have paid for passage an& have a contract with the
carrier and (b) all those who do not fall into the category delineated by the terms "the
master, the crew and the owner and his family and servants."
(2) All passengers come within the fine provisions of section 273 of the Act, not merely
paying passengers. Matter of S.S. Greystoke Castle and MIV Western Queen, 6 I. & N.
Dec. 112 (BIA 1954; A.G. 1954); Matter of S.S. Saint Tropez, 7 I. & N. Dec. 500 (BIA
1957), modified.
(3)The provisions of section 273(b) of the Act, 8 U.S. C. 1323(b), calling for an assessment
againbt the offending tteuteputtation company equal to the paaaage money paid by a

visa-less passenger is a means of reimbursing a passenger, and does not serve to set a
limit on the definition of the term "passenger" under this section. Matter of S.S.
Greystoke Castle and liflV Western Queen, 6 I.& N. Dec. 112 (BIA 1954; A.G. 1954),
modified.
(4) Where the sole faction of an alien is to contribute to the morale of the ship's officers,
but not to the functioning of the vessel itself, and the aliens have no background as
seamen, no labor obligation to the vessel, are not paid as crewmen, and would not be
classifiable as crewmen under maritime law, they must be considered passengers for
purposes of section 273 of the Act.
(5) The spouses and children of ship's officers are not crewmen for purposes of section 273
of the Act, because they do not contribute to the functioning of the vessel itself, and the
ship is amenable to line because the aliens were brought into the United States without
the visa required of passengers, into which category they fall.
In re: M/T "RAJENDRA PRASAD", which arrived in the United States at the port of
San Francisco, California, from foreign, on April 4, 1977. Aliens involved: SA.DHANA.
DABRAL, VIJAYA KAUL, VEENA MOD!, AMRIT VIVEKANAND, KAMADA R.
VIVEKANAND, and NEROO WALIA.
BASIS OF FINE:

Act of 1952—Section 273(a) and (b), [S U.S.C. 1323(a) and (b)]

ON BEHALF OF CARRIER: Charles M. Haid, Jr., Esquire
Lilliek, MoRose & Charles
500 Sansome Street
San Francisco, California 94111
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
In a decision dated July 25, 1977, the District Director found that the
M/T "Rajendra Prasad" was subject to a $6,000 fine for having brought
705

Interim Decision #2696
six aliens into the United States without valid unexpired visas. The
shipping company appeals from this decision. The appeal will be dismissed.
The essential facts in this case are not in dispute. On Apri14, 1977, the
ship, owned by the Shipping Company of India, arrived at San Francisco, California, from Yokohama, Japan. On board, other than the
usual crew members, were five women, the spouses of officers serving
on the ship, and the son of the ship's master. The six aliens were listed
on the "passenger list" and, according to the District Director, were
presented to the immigration inspector as such. The six aliens did not
have valid visas in their possession. They were paroled into the United
States and left with the ship on May 6, 1977. On April 8, 1977, a "Notice
of Intention to Fine Under Immigration and Nationality Act" was
issued by the District Director. In this notice, he informed the ship's
agents of his intention to levy a $6,000 fine under section 273(b) of the
Immigration and Nationality Act, S U.S.C. 1323(b), on the ground that
the "Rajendra Prasad" had brought six alien passengers into the United
States without the required visas. In response to this notice, the ship's
San Francisco agent stated that the six aliens involved were "noted as
passengers on a separate listing presented to the inspector. . . ." He
indicated that the aliens may have been so listed because the ship's
agent in Yokohama may have misinterpreted the immigration regulations. A reevaluation of the fine was requested. After considering the

information available, the District Director concluded that the vessel
was liable to fine in the amount of $6,000 because the aliens had come as
passengers without valid unexpired visas.
On appeal, it is contended that the essential issue is the status of the
aliens involved. Counsel for the "Rajendra Prasad" argues that they
should be considered "crewmen," not passengers, and as crewmen that
they were not required to have visas, and did not come within the fine
provisions of section 273 of the Act, 8 U.S.C. 1323.
Section 273 of the Aet states in part:

(a) It shrill be unlawful for any person, including any transportation company; or the
owner, master, commanding officer, agent, charterer, or consignee of anv vessel
or aircraft, to bring to the United States from any place outside thereof (other
than from foreign contiguous territory) any alien who does not have an unexpired
visa, if a visa was required under this Act or regulations issued thereunder.
(b) If it appears to the satisfaction of the Attorney General that any alien has been so
brought, such person, ... shall pay to the collector of customs of the customs
district in which the port of arrival is located the sum of $1, -000 for each alien po
brought.. .

Part (c) of this provision provides for remission or refund of the fine if
it was not known and could not have been ascertained by the exercise of
706

Interim Decision #2696
reasonable diligence that the individual involved was an alien and that a
visa was required.
This section of the Act has been interpreted as applying only to
passengers. Matter of S.S. Saint Tropez, 7 I. & N. Dec. 500 (BIA 1957).
Stowaways and crew members have been specifically excluded as persons whose presence would subject the vessel to fine proceedings under
section 273 of the Act. Matter of S.S. Greystoke Castle and MW Western Queen, 6 I. & N. Dec. 112 (BIA 1954; A.G. 1954); Matter of S.S.
Saint Tropez, supra.
This being the case, it is clear that if the six aliens were "crewmen",
they did not come within the the provisions of the section. Conversely, if
they were "passengers", they did. Unfortunately neither of these two
terms is free of ambiguity. In the International Maritime Dictionary,
5th edition (Ed. de Kerchove), a passenger is defined as:
One who travels on a ship by virtue of a contract with the carrier and who is paying a
fare. The term "passenger" includes any person carried in a ship other than the master,
the crew, and the owner and his family and servants.

This definition sets up two categoric of persons considered passengers. The first is those who have paid for passage and have a contract
with the carrier. The second category encompasses all those who do not
fall into other defined classes. Here the aliens have not paid for their
transportation and have no apparent contract with the shipping company. They do not therefore fall into the first category of "passengers". 1
Thatsilev condatgry,hsepwoanth
"master, the crew and the owner and his family and servants."
The defense that has been interposed is that the aliens were "crewmen" and did not therefore come within the section 273 of the Act. As
defined in section 101(a)(10) of the Act, 8 U.S.C. 1101(010), the term
"crewman" means a "person serving in any capacity on board a vessel or
aircraft." A second section, 101(a)(15)(D), dealing with nonimmigrant
classification of bona fide crewmen refers to "an alien crewman serving
in good faith as such in any capacity required for normal operation and
service on board a vessel. . . ." As this Board has previously interpreted these provisions, persons as varied as shipboard dancers and
part-time chefs have come within the term "crewman". Steamship Nassau., 1957 AMC 877; Matter of Marsden, unreported A14 692 553 (BIA
1966). To fit within this definition, a person must have a function or
board the vessel. On appeal, counsel contends that the aliens' function is
Greystoke Castle and Saint Tropez, supra, could be interpreted to mean that only
pawing passengers come within the provisions of section 273 of the Act. For reasons
apparent in this decision, we consider such an interpretation Incorrect and hold here that

all passengers come within this section. We therefore recede from the position taken in
these cases.

707

Interim Decision #2696
to enhance the ship's morale and to improve labor relations. Under this
interpretation, the society, comfort and consortium provided by the
wives of the officers are an "aid to navigation". The argument can then
be reduced to the simple formula that all those who "aid in navigation"
are "crewmen".
This contention has also arisen in various contexts in regard to other
statutes. Courts have generally set forth three elements in defining a
"member of a crew", the same criteria proposed by counsel for the
vessel. These criteria include: (a) that the ship be in navigation; (b) that

there be a more or less permanent connection with the ship; and (c) that
the worker be aboard permanently to aid in navigation. McKie v.
Diamond Marine Co., 204 F.2d 132, 136 (5 Cir. 1953); Harney v.
William M. Moore Building Corp., 359 F.2d 649, 654 (2 Cir. 1966). As is
so often the case, though, this apparently simple formula in theory is far
from simple in application. In the cases cited above, the questions rais ed
concerned the meaning of the term "member of crew" within the context
of the Jones Act, 36 U.S .C. 688. In other contexts, the results could be
different. As the Supreme Court has stated, whether or not a person is a
member of a crew turns en questions of law and fact and "does not have

an absolutely unvarying legal significance." South Chicago Coal and
Dock Co. v. Bassett, 309 U.S. 251, 258 (1940).
In the case at hand, it has not been alleged that the six aliens are
crewmen in the traditional• dense- of those who have signed the ship's
articles. See South Chicago Coal and Dock Co. v. Bassett, id., at 257;
International Maritime Dictionary, supra. The contention is essentially that the aliens' presence contributes to the functioning of the
vessel's mission, but not to the functioning of the vessel itself. See
Harney v. William M. Moore Building Corp., supra. It is clear that
they have no background as seamen and that they have no labor obligation to the vessel. They are not paid as crewmen and probably do not

associate with the crew members or sleep in the crew quarters. It is
clear that they would not be classifiable as crewmen under maritime
law. Matter of Quintero -Correa, 11 1. & N. Dec. 343 (BIA 1964). Their
presence on board the ship is attributable to the shipping companyr's
interest in insuring that the ship is run smoothly through providing the
officers companionship. While this is a commendable policy, it is an aid

to the shipping company's labor relations, not to the ship's functionir3g
per se. Having had no training in any type of shipboard operation, and
not being expected to provide either labor or expertise to the ship's
running, we find no basis on which they can be classified as "crewmen".
This is even more the case when their personal status is considered.
There is nothing to prevent them leaving the ship when they pleas e .
This is not the case with true crew members who have contractual
obligations to remain on board until their service expires or they are
708

Interim Decision #2696
otherwise released by the ship's master.' This means that the aliens do
not in fact have a more or less permanent connection with the ship. See
South Chicago Coal and Dock Co. v. Bassett, supra.
In reaching this conclusion, we are not unmindful of counsel's contention that fine statutes are to be strictly construed. As he has correctly
pointed out, carriers must be favored in the construction of such statutes, and mere convenience of enforcement cannot justify a strained
construction. Matter of MIV "South African Victory," 12 I. & N. Dec.,
253 (BIA 1967). In this case, however, the issue is not primarily that of
strict construction of the statute. We agree that section 273 of the Act
only applies to "passengers". The issue here, however, is the definition
of "passenger" and "crewman". To contend that only those who pay for
passage should be considered "passengers" would be to accept an interpretation that would emasculate the statute. Section 273(b) does, it is
true, call for an assessment equal to the passage money paid by a
visa-less alien passenger to the offending transportation company. We
see this though as a means of reimbursing a passenger who has been
inconvenienced by the negligence of the company and who will, in most
cases, have made a fruitless journey at no small expense. This provision,
therefore, has nothing to do with setting the limits for the definition of
"passenger" under section 273(b) of the Act. 3 It is clear that such an
interpretation could lead to an anomalous situation in which friends or

companions or children of crew members who are not required to pay for
their transporation would be placed in a favored category by the ship's
master or shipping company. We note that earlier, on January 19, 1977,
three of the aliens were granted waivers of the nonimmigrant visa
requirement. They were then on notice such a visa was required.
Taking the purpose of these provisions into account then, along with
the criteria used in deciding whether a person is a passenger or a
crewman, we are satisfied that both logically and legally the six aliens
here were not "crewmen" and that they have to be considered passengers brought without valid unexpired visas. The vessel is thus subject
to the fine provisions of section 273(b) of the Act. As there has been no
showing that the ship's master or owners or other responsible persons
did not know or could not have "ascertained by the exercise of reasonable diligence" that a visa was required there is no basis on which the
2 In this regard, it could be added that "Unlike men employed on land, the seaman,
when he finishes his day's work, is neither relieved of obligations to his employer nor
wholly free to dispose of his leisure as he sees fit." Waterman SS Carp. v. Jones, 318 U.S.
724, 731, 732 (1943).
3 On this point of statutory interpretation we also disagree with Grepeoke Ouz el°,
supra. We withdraw from the position expressed there concerning the significance of the
shipping company's obligation to reimburse passengers brought without visas.

'709

InteriM Decision #2696
fines can be remitted or refunded. Section 273(c) of the Act, 8 U.S.C.
1323(c). The appeal will accordingly be dismissed.
ORDER: The appeal is dismissed.

710


Interim Decision #2206

MATTER OF ACCARDI

In Exclusion Proceedings
A-5170719
Decided by Board June 4, .1973
(1) An alien brought involuntarily to the United States under authority of a

Presidential warrant issued in connection with extradition proceedings and
paroled under section 212(dX5) of the Immigration and Nationality Act for
prosecution, was properly held for exclusion proceedings where, upon release
from prison, he indicated unwillingness to return to the country whence he
came and an interest in admission to the United States.
(2) While 8 CFR 212.5 authorizes the District Director to parole an alien into the
United States pursuant to the provisions of section 212(dX5) of the Act, the
regulation does not limit such parole authority solely to the District Director.
(3) A grant of parole "indefinitely" is not in contravention of a grant of parole
"temporarily" within the contemplation of section 212(dX5) of the Act.
EXCLUDABLE: Act of 1952—Section 212(aX23) [8 U.S.C. 1182(a)(23)]—Convicted of
a violation of law relating to the illicit possession
of or traffic in narcotic drugs, prior to entry.
ON BEHALF OF SERVICE:
David L. Milhollan
Appellate Trial Attorney

ON BEHALF OF APPLICANT:
Jack Wasserman, Esquire
1707 "H" Street, N.W.
Washington, D.C. 20006

This is an appeal from an order of an immigration judge dated
September 19, 1972, finding the applicant excludable under the
provisions of seetion 212(aX22) of the Immigration and Nationality

Act. The appeal will be dismissed.
Applicant is a 70-year-old married male alien, a native of Italy.
He became a naturalized citizen of the United States in 1945. He
was denaturalized in 1953. It has been verified that the applicant
is now stateless (Ex. 12).
• In a decision dated August 18, 1955, the applicant was found
deportable pursuant to section 241(a)(4) of the Act, as an alien who
had been convicted of a Crime involving moral turpitude within
five years after entry. On August 18, 1955, the Board dismissed the
appeal from this derision. A snit. for a deelaratory judgment was

filed in the United States District Court, District of Columbia, on
367

Interim Decision #2206
August 23, 1955, which suit was dismissed by stipulation. Applicant was arrested on the basis of an indictment filed on August 18,
1955 with the United States District Court, Southern District of
New York, charging him with the sale and possession of narcotics
and conspiring to sell narcotics. On September 28, 1955, applicant
failed to appear for trial, his bail bond of $75,000 was forfeited, and
a bench warrant was ordered. His immigration bond of $5,000 was
declared breached on October 12, 1955. A warrant for his deportation was issued by the Service on May 10, 1956. However, applicant
was located in Sicily, having left the United States by boat on
March 1, 1956.
Under authority of a Presidential warrant issued in connection
with extradition proceedings, applicant arrived in the United
States on November 12, 1963, by air, in the custody of United
States narcotic agents. The Immigration Service prepared a Form
1-94, which states: "Paroled INDEFINITELY Per Authority of
NERO to custody of Geo BELK, US Narcotics, NY." On August 24,
1964, after trial, he was convicted in the United States District
Court for the Southern District of New York of sale and possession
of narcotics and conspiring to sell narcotics. He was sentenced to
five years on each of three counts running consecutively and fined
$16,000. The Service detainer notice to the Federal House of
Detention, New York, dated September 3, 1964, reads, "alien
paroled into United States for prosecution section 212(dX5)." On
April 4, 1972, applicant was released from his imprisonment at the
Federal penitentiary, Atlanta, Georgia. On April 14, 1972, he was
paroled for the purpose of reporting to the Service at Newark,
New Jersey and was served with Form 1-122, notifying him that
he was being detained for a hearing before an immigration judge
pursuant to the provisions of section 235(b) of the Act because it
appeared that he might be excludable under section 212(a)(23) of
the Act. On the same date, he was reparoled indefinitely pending

conclusion of the hearing in exclusion proceedings.
We reject counsel's contention that the Attorney General is
authorized to parole only those who are applicants for admission.
The power of Congress to determine the conditions under which
aliens may enter and remain in the United States is beyond
question, Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953);
U.S. ex rel. ;'):nctuff v. Shaughnessy, 338 U.S. 537 (1950); Siu Fung
Lute v. Rosenberg, 409 F.2d 555 (C.A. 9, 1969). The legislative

history of the parole provisions of section 212(d)(5) of the Act
reveals that they were enacted in compliance with a recommendation by the Attorney General that he be given the necessary
authority to parole aliens for purposes which are in the public
interest. Among the latter was "purposes of prosecution" (S. Rept.
368

Interim Decision #2206
No. 1137, 82d Cong., 2d sess., pp. 12-13) — the very purpose for
which parole was here used. See Matter of K—, 9 I. & N. Dec. 143
(BIA, 1959; A.G. 1961).
The applicant, in .departing from the United States to Italy on
March 1, 1956 while a deportation order was still outstanding,
deported himself; section 101(g) of the Act. There is no dispute over
the fact that the applicant returned to the United States involuntarily on November 12, 1963, pursuant to a Presidential warrant of
arrest. At the time he arrived in the United States, he was not an
applicant for admission. However, as it is empowered, the Service
paroled the applicant for the purpose of prosecution and since he

has never been free from restraint, he has never accomplished an
entry into the United States, In re Dubbiosi, 191 F. Supp. 65 (E.D.
Va., 1961); United States v. Vasilatos, 209 F.2d 195 (C.A. 3, 1954).

During the lengthy prison term served by the applicant, there
was no necessity to serve him with a Form 1-122 to detain him for
an exclusion hearing. He was here in the United States against his
will. However, upon his release from prison, it was determined,
through counsel and from the applicant himself, that he did not
wish to return to Italy. This clearly indicated that the applicant
was interested in admission to the United States. It was then that

this case was set down for exclusion proceedings. Consistent with
the Congressional mandate, the administrative concept of parole,
and the decisions of the courts, he is, in theory of law, on the
threshold of initial entry, U.S. ex rel. Tom We Shung v. Murff, 176
F. Supp. 253 (S.D. N.Y., 1959), affirmed per euriam U.S. ex rel. We
Shung v. Murff, 274 F.2d 667 (CA. 2, 1960); Leng May Ma v. Barber,
357 U.S. 185 (1958). Parole status is not an admission of an alien to
the United States. The delay in setting up the exclusion hearing
did not accomplish an entry. We are satisfied that when the
Service did detain the applicant for exclusion proceedings, he was
an applicant for admission and this was a matter properly subject
to exclusion, rather than expulsion, proceedings.
Counsel claims that section 212.5 of the regulations gives authority only to the District Director in charge of the port of entry
to parole under the provisions of section 212(dX5) of the Act. This is
not so. Although this regulation permits the District Director to
parole under section 212(dX5), it does not limit this authority solely
to the District Director.

The concept of parole referred to by counsel, on appeal, relates
to release from prison, confinement or custody under penal law
and has no relationship to the concept of parole under the
immigration laws. It is counsel's contention that a grant of parole
"indefinitely" is in contravention of the meaning of a grant of
parole "temporarily" contemplated by section 212(dX5). We do not
369

Interim yecision rzzuo
agree. The only meaning we ascribe to the use of the word
"temporarily" in this portion of the statute is that the parole
would not be permanent. In view of the intention of Congress in
providing for parole for "purposes of prosecution," we are satisfied
that what the Service meant by use of the word "indefinitely" was
that parole was being granted for an unspecified amount of time
and certainly did not imply permanent parole.
On appeal, counsel implies that since the applicant was brought
into the United States in the custody of United States narcotic
agents and was permitted to pass through the Immigration
Service without detention by the Service for exclusion proceedings, he entered the United States and was not subject to exclusion. The only case which suggests that the bringing of an alien to
this country by authorities other than the Immigration Service
constitutes an entry for exclusion purposes is Blumen v. Haff, 78
F.2d 833 (C.A. 9, 1935), cert. denied 296 U.S. 644 (1935), which was
specifically disapproved in U.S. ex rel. Bradley v. Watkins, 163 F.2d
328 (C.A. 2, 1947), and impliedly disapproved in U.S. ex rel. Ling
Yee Suey v. Spar, 149 F.2d 881 (CA. 2, 1945).
Counsel asserts that since Italy, the country whence the applicant came, will not accept him, applicant's status should be
changed from an excludee to that of an expellee so as to entitle
him to a variety of alternative countries to which he may be
deported under section 243(a). There is no merit to this contention.
Section 237(a) of the Act provides for the immediate deportation of

an excluded alien only "to the country whence he came." It does
not require the consent of the country to which deportation is
ordered. Unlike section 243(a) which pertains solely to deportation
proceedings, section 237(a) does not list a variety of alternative
countries to which deportation may be proper. Interpretation of
the restrictive language of section 237(a) leaves us no option but to
apply its terms as long as they stand, Merton v. Esperdy, 413 F.2d
644 (CA. 2, 1969); U.S. ex rel. Milanovie v. Murff, 253 F.2d 941 (C.A.
2, 1958).
In Klapholz v. Esperdy, 201 F. Supp. 294 (S.D. N.Y., 1961),

affirmed 302 F.2d 928 (1962), cert. denied 371 U.S. 891 (1962), the
court held that a conviction of an alien of a crime involving moral
turpitude while on parole within the country

WAR

a ground for

exclusion. Accordingly, we find that the conviction of the applicant
while on parole was a proper ground for excluding him.
Hence, the applicant's appeal is without merit and the following
order will accordingly be entered.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
370


Interim Decision #2837

MATTER OF ALARCON
In Deportation Proceedings
A-34970431
Decided by Board November 20, 1980
(1) If revocation of a visa petition is not effective due to failure of the Immigration and
Naturalization Service to notify the beneficiary prior to his departure for this country,
as required by section 205 of the Immigration and Nationality Act, 8 U.S.C. 1155, the
beneficiary's admissibility is nevertheless determined in the manner provided by
sections 235 and 236 of the Act, 8 D.S.C. 1225 and 1226
(2) Where an alien is charged with excludability under section 212(a)(20) of the Act, 8
1162(a)(20), for failure to be in, the status specified in his visa, the immigration
judge examines the visa and the relationship on which its validity depends, and the
revocation procedure, employed to invalidate the visa petition prior to application for
admission, is no longer applicable.
(3) Section 211(a)(4) of the Act, FS U,S.C. 1131(a)(4), which rendered an alien excludable

unless at the time of application for admission he was of the status specified in his
visa, was deleted from the Act by Congress as superfluous because covered by section
212(a)(20) of the Act.
(4) Where the respondent was married at the time of her entry, she was not entitled to
preference classification as the unmarried daughter of a lawful permanent resident
under section 203(a)(2) of the Act, 8 U.S.C. 1153(a)(2), and was properly found to have
been excludable at entry under section 212(a)(20) of the Act, and, therefore, deportable
under section 241(a)(1) of the Act, 8 U.S.C. 1251(a)(1). Matter of Salazar, Interim
Decision 2741 (BIA 1979), distinguished.
CHARGE:

Order: Act of 1959—See. 241(a)(1) U.S.C. 1251(a)(1)1—Excludable at entry under sae.
212(a)(20) [8
1182(a)(20)1—No valid immigrant visa
ON BEHALF OP SERVICE:
Mark Drucker
Trial Attorney

ON BEHALF OF RESPONDENT:
Stanley H. Wallenstein, Esquire
Schiano & Wallenstein
80 Wall Street
New York, New York 10005

George W. Masterton
Appellate Trial Attorney

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

In a decision dated May 26, 1978, the immigration judge found the
respondent deportable under section 241(a)(1) of the Immigration and
674

Interim Decision #2837
Nationality Act, 8 U.S.C. 1251(a)(1), as an alien excludable at entry
under section 212(a)(20) of the Act, 8 U.S.C. 1.182(a)(20), for lack of a
valid immigrant visa. He further granted her the privilege of voluntary departure on or before September 1, 1978. The respondent has
appealed from that decision. The appeal will be dismissed.
The respondent is a 27-year-old native and citizen of the Philippines.
The record reflects that she entered the United States on April 19, 1975,
with an immigrant visa accorded to her as the unmarried daughter of a
lawful permanent resident. Included in the record is a copy of a
marriage contract entered into by the respondent in the Philippines on
April 15, 1975.
At deportation proceedings, the respondent argued that she was in
possession of a valid visa at the time of entry because her visa petition
was never properly revoked. This argument was founded on the
premise that a visa petition is valid unless revocation becomes effective
upon notice to the beneficiary prior to his journey to the United States
in accordance with section 205 of the Act, 8 U.S.C. 1155. The respondent
contended that since she was not notified that her visa petition was
revoked before she came to this country, her visa petition and, therefore, her visa were still valid. She reiterates this contention on appeal.
In support of that argument, the respondent asserts that the existence of the revocation procedure under section 205 of the Act
precludes a finding that she was excludable under section 212(a)(20) as
lacking the status accorded by her visa. She contends that when
Congress deleted section 211(a)(4) from the Act in 1965, 1 it intended for
situations previously covered by that section to be dealt with under the
revocation procedure, which is specifically designed for such cases,
rather than under the general provisions of section 212(a)(20) of the
Act. We disagree with the respondent's arguments.
Section 205 of the Act provides as follows:
he deems to be good and sufficient
cause, revoke the approval of any petition approved by him under section 204. Such
revocation shall be effective as of the date of approval of any such petition. In no case,
however, shall such revocation have effect unless there is mailed to the petitioner's
Last known address a notice of the revocation and unless notice of revocation is
communicated through the Secretary of State to the beneficiary of the petition before
such beneficiary commences his journey to the United States. If notice of revocation is
not so given, and the beneficiary applies for admission to the United States, his
admissibility shall be determined in the manner provided for by sections 235 and 236.
The Attorney General may, at any time, for what

According to the regulations, approval of a visa petition is automati' Section 211(a)(4), which was amended by section 9 of Public Law 59-236 on October 9,
1965, stated that "no immigrant shall he admitted into the United States unless at the
time of application for admission he ... (4) is of the proper status under the quota
specified in the immigrant visa." See Matter of C , 8 LEN Dec. 665 (BIA 1960).
—

Interim Decision # 2837
tally revoked if the beneficiary, who has been accorded status as the
son or daughter of a lawful permanent resident, gets married. See 8
C.F.R. 205.1(a)(8). However, the statute provides that the revocation
will not take effect unless the beneficiary is notified of such revocation
prior to the commencement of his journey to this country. See section

205 of the Act. Thereafter, if revocation was not effective and the
beneficiary applies for admission, his admissibility is to be determined
in exclusion proceedings.
In determining an alien's admissibility under section 212(a)(20) of
the Act, the immigration judge examines the applicant's visa to determine its validity. In cases of this type, his decision regarding the
validity of the visa inherently involves scrutiny of the underlying visa
petition and the relationship on which it depends. If he determines
that a flaw exists in that relationship such that the alien was not
actually entitled to the status which was accorded to him by the visa
petition, the immigration judge may conclude that the visa is invalid.
This deliberation provides a forum where, the applicant may attempt
to rebut the Service's allegation that his visa is invalid because he is
not entitled to the status accorded in the visa petition. Thus, when an
alien's excludability becomes the subject of inquiry by an immigration
judge, the revocation procedure of section 205 is no longer applicable.
The respondent's argument that an applicant for entry, who is not

entitled to the status specified in his visa, may not be found excludable
under section 212(a)(20) of the Act is without merit. The respondent
asserts that the revocation .procedure is the appropriate means of
dealing with such cases and should preempt the use of section
212(a)(20). To illustrate that point, counsel for the respondent stated
at oral argument that, subsequent to the deletion of section 211(a)(4)
from the Act, no authority exists in our case law to find an alien in the

respondent's position deportable for having been excludable at entry
under section 212(a)(20) of the Act.
As previously stated, the revocation procedure is only applicable to

invalidate a visa petition prior to the time an alien seeks admission to
the United States. Upon application for admission, his admissibility is
determined in exclusion proceedings where the focus of inquiry is the
validity of the alien's visa. As the respondent suggests, the alien may
then be found excludable under section 212(a)(20) for lack of a valid
visa because the visa has expired or was fraudulently obtained, or
because the underlying visa petition has been revoked. However, as our
decisions have made clear, he may also be excludable under section
212(a)(20) because he is not entitled to the status accorded by his visa.
See Matter of Torberasen.13 I&N Dec. 432 (BIA 1969); see also Matter of
Khan,1418zN Dec. 122 (BIA 1972); Matter of Iesce,12 I&N Dec.156 (BIA
1967).
576

Interim Decision #2837
In response to the respondent's argument that Congress deleted
section 211(a)(4) from the Act as superfluous to the revocation
procedures of section 205, we conclude that section 211(a)(4) was
deemed superfluous, but because covered by section 212(a)(20). In this
regard, we note the fact that in Matter of Goleta, 11 I&N Dec. 551 (BIA
1965), an alien in a situation factually identical to the respondent's was
found deportable under both sections. See also Matter of Khan, supra.
It is our belief that Congress desired to consolidate all grounds of
excludability, including failure of an alien to be in the status specified
in his visa, under section 212(a) of the Act. Thus, we find that excludability was appropriately charged in this case under section
212(a)(20) of the Act.
Inasmuch as the respondent was married at the time of her entry, we
find that she was not entitled to preference classification under section
203(a)(2) of the Act, 8 U.S.C. 1153(a)(2), and, thus, was excludable
under section 212(a)(20). 2 Accordingly, the appeal will be dismissed.
Since the period of voluntary departure granted by the immigration
judge has now expired, we shall permit the respondent to depart
voluntarily from the United States within 30 days of the date of this
order in accordance with our decision in Matter of Chouliaris,16 I&N
Dec. 168 (DIA 1977).

ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is permitted to depart from
the United States voluntarily within 30 days from the date of this
order and under such conditions as the District Director deems appropriate; and in the event of failure so to depart, the respondent shall be
deported as provided in the immigration judge's order.

2 We believe that this case is distinguishable from our decision in Matter of Salazar,
Interim Decision 2141 (BIA 1979), in that the respondent there was still the spouse of a
United States citizen at entry and was, therefore, entitled to the preference classification
accorded to him since his visa petition was not properly revoked prior to his departure
for this country. See Chan v. INS, No. 79-7356 (9 C'ir. October 2, 1980).