MATTER or C—S---

In DEPORTATION Proceedings
A-12269404
Board Dociaione Dcocrnbeir 26, 1961, and March. 7, 1969

Decided by Attorney General May 24, 1962
Expatriation—Section 349(a)(5)—Voting in foreign election while unaware of
United States citizenship.

(1) A native of Cuba who acquired United States citizenship at birth in 1933
through his father and who resided in Cuba until 1960 did not become expatriated when he voted in a Cuban political election in 1958 while unaware
of his United States Citizenship.
(2) The presumption contained in section 349(b) of the 1952 Act is addressed
only to the question whether the asserted act of expatriation was committed voluntarily or under duress, and has no application to acts which were
performed voluntarily but without knowledge of United States citizenship.
CHARGE :
Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at time of entry—No valid visa.
BEFORE THE BOARD

(December 26, 1961)
DISCUSSION: The special inquiry officer terminated proceedings
and ordered the case certified to the Board for final decision. Brief
has been submitted by the examining officer requesting that the respondent be ordered deported.
The issue is one of alienage. The respondent claims that he was a
United States citizen at birth. The Service does not contest the
possibility but argues that citizenship was lost when the respondent
voted in a political election in Cuba. The respondent was born on
May 31, 1933, in Cuba. His father was born in the United States.
The respondent's mother was born in Cuba. The respondent's father lived in the United States for about a year after birth and then
was taken to Cuba. He died when the respondent was four years
of age. There is no evidence that he had lost United States nationality prior to the birth of the respondent. It appears that the respondent had a colorable claim to United States citizenship at birth
670

under section 1993 of the Revised Statutes (see, Matter of L—G--J-and C—I—P—, 3--206).

The respondent's uncontradicted testimony, accepted by the special inquiry officer, was that he voted in an election in Cuba on November 3, 1958, when his father-in-law, the mayor of the city, was
running for the national senate of Cuba ; that prior to October 1959,
he had made an application for a visa to come to the United States
for permanent residence; that he received a letter with instructions
telling him that if he considered himself an American citizen he
should not apply for a visa ; that in October 1959, in connection with
an application he had made for a visa, he learned for the first time
that he had a possible claim to American citizenship by birth. The
special inquiry officer was of the belief that Rogers v. Patokoski, 271
F.2d 858 (C.A. 9,'1959), required a decision in favor of the respondent because the respondent had no knowledge that he had a claim
-

to United States citizenship when he voted. The examining officer,
in a capable brief, raises a question as to the applicability of Patokoski because of his belief that section 349(b) of the Immigration
and Nationality Act (8 U.S.C. 1481) raises a conclusive presumption
that the act of expatriation was voluntary.
In Matter of C—A—, 9 182 (Oct. 17, 1961), which was decided
subsequent to the decision of the special inquiry offier in the instant
case, we held, on the basis of Patokos1i and other cases there mentioned, that a citizen of the United States could not lose United States
citizenship by committing an act which would otherwise he, the basis
for a loss of citizenship, if, at the time the act was committed, he had

no knowledge that he had a claim to United States citizenship.
The respondent's expatriation is alleged to have occurred under
section 349(a) (5) of the Immigration and Nationality Act (8 U.S.C.
1481) which provides for loss of citizenship by voting in a political
election in a foreign state. Section 349(b) of the Immigration and
Nationality Act (8 U.S.C. 1481) provides as follows:
Any person who commits or performs any act specified in subsection (a) of
this section shall be conclusively -presumed to have done so voluntarily and
without having been subjected to duress of any kind, if such person at the
time of the act was a national of the state in which the act was performed
and had been physically present in such state for a period or periods totaling
ten years or more immediately prior to such act.
Despite the existence of section 349(b), we have found that an act
which would otherwise accomplish expatriation will not do so if the
act was done in the belief that a claim to United States citizenship
does not exist and such belief is based on the claim of a responsible

United States official (Matter of 8—, 8-266 ; Matter of S—, 8-221).
Here too where action was taken without knowledge that United
671

States citizenship existed, the circumstances under which the presumption was intended to operate do not exist. The record fails to establish
that the respondent is an alien. Termination of proceedings is proper.
ORDER: It is ordered that proceedings be and the same are hereby
terminated.
BEFORE THE BOARD

(March 7, 1962)
DISCUSSION: On December 26, 1961, the Board ordered proceedings terminated. The Service now moves that the Board withdraw
its order and enter one of deportation on the charge stated above.
Respondent has submitted a letter asking that no change be made
in the Board's order. The motion will be denied.
The facts have been fully stated in the Board's previous order.

Respondent, a native of Cuba, became a United States citizen at
birth. He was physically present in Cuba for a period of ten years
or more prior to voting there in a political election in 1958. At the
time he voted, he did not know that he was a citizen of the United
States. The issue is whether he lost United States citizenship under section 349(a) (5) of the Act, 8 U.S.C. 1481(a) (5). 1
The Board's order of termination is based upon Matter of C--A—,
9 482, holding that a United St; tes citizen did not expatriate himself by committing an act which would normally result in loss of
United States citizenship, if, at the time the act was committed, he
did not know that he was a United States citizen. Matter of C—A,
supra, is based upon Rogers v. Patokoski, 271 F.2d 858 (C. A. 9,
1959), which holds that one who committed acts of an expatriating
nature without knowledge of his United States citizenship did so
involuntarily. As we read the motion, it does not take issue with
Matter of C—A-- or Patokoski, but attempts to distinguish each from
the case before us on the ground that section 340(b) of the Act did

to either but does here and establishes a conclusive presmnption tha,, the voting was voluntary. We agree that section
349(b) of t'te Act could not have been applied in either Patokoski or
Matter of c -A—; however, we find that'the section does not apply
to the instant situation. 2 Therefore, the rule stated in the two precedents controls here.
not apply

'Section 349(a) (5) of the Act provides that "a person who is a national of
the United States whether by birth or naturalization, shall lose his nationality by • • • voting in a political election in a foreign state or participating
in an elertIon or plehieeite to determine the sovereignty over foreign territory."
2 Section 349(b) of the Act is prospective only and therefore did not apply
to Patokoski's conduct which occurred prior to the effective date of the Act
(foreign army service 1941-14, voting 1949). C—A—'s conduct is made a
ground for loss of citizenship under section 350 of the Act, whereas section
349(b) by its terms applies only to conduct found in section 349(a) of the
Act.

672

Section 349(b) of the Act (8 U.S.C. 1481 (b) ) provides:
Any persop who commits or performs any act specified in subsection
shall be conclusively presumed to have done so voluntarily and without having
been subjected to duress of any kind, if such person at the time of the act
was a national of the state in which the act was performed and had been
physically present in such state for a period or periods totaling ten years or
more immediately prior to such act.

We have held that where section 349(b) of the Act is applicable,
it prevents inquiry into the voluntariness of an act of expatriation
(Matter of M—G—, 7-065) ? However, we have concluded that section :.;49(b) of the Act was not meant to apply where the act of expatriation followed erroneous advice of a United States official (Matter of
8-221; Matter of 5—, 8-226). 'lie Service has not contested
this distinction in the past (Matter of 1"—, 8-307), nor do we understand the present motion to take issue with the distinction. While it is
clear that respondent's conduct was not based on erroneous official advice, his situation and that where action was based on erroneous official
advice are similar in that duress is not an element in either instance.
It appears to us that-section 319(b) of the Act requires a distinction to be made between situations in which duress can be offered as
a defense and situat ions in which duress is not an element and that
section 349(h) of the Act has no application to the latter situations.
The pertinent words in section 349(b) of the Act are "to have done
so voluntarily and without having been subjected to duress of any
kind." The general words "to have done so voluntarily," in our
opinion, are limited and qualified by the special words following
(2 Sutherland, Statutory Construction, sec. 4908 (3d ed., 1943)).
We believe this is so because there is no legislative expression of an
intent that an act of expatriatory force performed by a dual national with the necessary residence should be considered a voluntary
act under all circumstances, and that the fact that Congress made
express provision fur the loss of nationality by dual nationals in
section 350 of the Act, 8 U.S.C. 1482, expressly providing that loss
of citizenship could not result except by voluntary action' Further
3 The nature of the duress is not shown in Matter of M—G----, supra; however, the order of November 12, 1957, reZerred to in the case, revealed that
duress was found in the fact that believed she was required to vote

under the laws of Mexico.
4 Exam inati on of the legislative history fails to reveal any clue as to the

Congressional intent in regard to section 349(b) of the Act. The Senate Committee which investigated the immigration system and made conclusions upon
which the Act is based, recommended only that there be a conclusive presumption that one who took an oath to bold employment with a foreign government, did take such an oath, and that there should be a presumption that
an alien who departed from the United States and failed to comply with the
provision of the compulsory service law departed for the purpose of avoiding

•054377 63

44

673

factors considered are the unusual nature of the presumption and
the fact that ambiguity should be resolved in favor of retention of
United States citizenship. We conclude that section 349(b) of the
Act is applicable only in situations where duress could have been
offered as a defense. In the instant case, duress, is not involved;
section 349(b) is, therefore, not applicable.
It is the Service view that section 349(b) of the Act became law
with Congressional knowledge of decisions of the courts which allegedly preclude the possibility of exempting a person who committed an act of expatriation without knowing that he was a United
Vtes citizen. Cases cited express the view that an intent to expatriate is not necessary to bring about expatriation. 5 However,
these cases" unlike the one before us, involve action by persons who
knew they were citizens of the United States when the action took
place, and the latest court to consider the type of situation before
us stated that knowledge of the existence of United States citizenship must exist before a person can voluntarily expatriate himself
(Rogers v. Patokosie,i, supra). We believe we are bound to follow
this ruling.
It is the Service belief that Congressional expressions of desire
to be relieved of problems arising out of dual nationality require
the finding that section 349 (b) of the Act applies here. We believe
the Service reads too much in the fact that Congress s:xpressed its
'concern with problems arising out of dual nationality. As we have
service in the armed forces (S. Rept. No. 1515, 81st Cong., 2d Sess., pp. 74952, 7664)9). The Committee report which accompanied S.2550 restates the
second recommendation (S. Rept. No. 1137, 82d Cong., 2d Sees., pp. 46-47, 49).
The conference report on the bill which became the Immigration and Nationality Act offers no help (H. Rept. No. 2096, 82d Cong., 2d Sees., pp. 127-29).
We are unaware that debate on the bills which became the Immigration and
Nationality Act sheds any light upon the intent of Congress in providing for
the conclusive presumption (for history of law see Besterman, Commentary,
S. U.S.C.A., p. 4).
5 Section 349(b) of the Act had no counterpart in previous legislation. Section 401(31) of the Act of 1940 did establish the presumption that a United
States citizen who acquired foreign nationality through the naturalization of
his parents and who failed to return to the United States by January 13,
1045, would be deemed to have elected to discontinue his status as a United

States citizen. In interpreting section 401(a) of the Act of 1940, the courts
found no expatriation had occurred where the individual's failure to come to
the-United States was due to circumstances beyond his control (Perri v. Dulles,
220 P.2d 250 (C.6. 3, 1056)) or where the failure to come in time was the
result of mistake which stemmed from erroneous information supplied by
officials of the United States (Reef v. Brownell, 116 F. Supp. 298 (D.C. N.J.,
1953)). And, the court held that the period Which one had to return to the
United States did not begin until the individual learned that he had a right
to United States citizenship (Petition of Acchione, 213 F.2d 845 (C.A. 3,
1954)).
674

pointed out, Congre s s provided aroundc of expatriation for

dual

nationals which are not applicable to a United States citizen without dual nationality (section 350 of the Act, 8 U.S.C. 1482) and by
a conclusive presumption prevented certain dual nationals from raising a defense available to other dual nationals and to United States
citizens without dual nationality. However, Congress made no effort to eliminate the concept of dual nationality. It would be highly
improper to deprive the respondent of a possible defense merely
because he is a dual national.
The Service expresses the belief that section 349(c) of the Act,
8 U.S.C. 1481(c), which places the burden of proof in expatriation
cases on the one who raises the involuntary nature of conduct as a
defense, is pertinent in determining the Congressional purpose in
establishing section 349(b) of the Act. Section 349(c) of the Act
merely relates to burden of proof and is applicable only when action has been started after September 26, 1961. We fail to see its
relation to the problem before us or how it assists in determining
Congressional intent in enacting eection 349(b) (H. Rept. No. 1086,

87th Cong., 1st Sess., pp. 40-41).
Finding that section 349(b) of the Act does not prevent establishing that an act of expatriation was committed without knowledge of
the existence of United States citizenship, and finding that the establishment of such a fact precludes the conclusion that expatriation
resulted, we believe that proceedings are properly terminated.
ORDER: It is ordered that the motion be and the same is hereby

denied.
BEFORE THE ATTORNEY GENERAL
(May 24, 1962)

The Board of Immigration Appeals, pursuant to 8 CFR 3.1(h) (1)
(iii), has, at the request of the Commissioner of Tmmigration and
Naturalization, referred its decision in this case to me for review.

The issue is one of expatriation. The Board, in agreement with the
special inquiry officer, ordered termination of the proceedings to deport the respondent on the ground that he did not have a visa at
the time he entered the United States in October 1960, holding that
the record failed to establish that he is an alien. The Board's view
is that an act of expatriation has no effect if at the time the act took
place the individual did not know he was a citizen of the United
States. The Commissioner disagrees and points out that the view
of the Department of State is likewise contrary to that expressed by
the Board.
The facts are not in dispute. The respondent who was born in
Cuba on May 31, 1933, acquired United States citizenship upon his
birth through the citizenship of his father. R.S. § 1993.
675

The father

died when respondent was 4 years old and respondent did not know
of his citizenship until many years later, in 1959. He had resided in
Cuba continuously until he entered the United States in October
1960. On November 3, 1958, while unaware of his United States
citizenship, respondent voted in a Cuban political election.
Under the provisions of section 349(a) (5) of the Immigration and
Nationality Act of 1052 (8 U.S.C. 1481(a) (5)), a person "who is a

national of the United States whether by birth or naturalization,
shall lose his nationality by . . . voting in a political election in a
foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory . . ." Section 349(b)
provides that a person who commits any act specified in subsection
(a) "shall be conclusively presumed to have done so voluntarily and
v,ithout having been subjedted to duress of any kind, if such person
at the time.of the act was a national of the state in which the act
was performed and had been physically present in such state for a
period or periods totaling ten years or more immediately prior to

such act."
The Board of Immigration Appeals relied on Rogers v. Patolcoski,
271 F.2d 858 (C.A. 9, 1959), which holds, on facts closely similar to
those of the present case, that voluntary acts abroad of voting and
serving in the armed forces of a foreign country did not result in
expatriation where the individual was unaware of his United States
'citizenship. The same rule was applied by the Board in Matter of
C—A—, 9 182 (1961). Compare, Perri v. Dulles, 206 F. 2d 586,
591 (C.A. 3, 1953), and Petitio. n of Acchione, 213 F.2d 845 (C.A. 3,

1954), holding that the two-year period established by section 401(a)
of the Nationality Act of 1940, 54 Stat. 1168, during which a dual
national must return to the United States or forfeit his American
citizenship, did not begin to run until he became aware of his United

States citizenship.
The Patokoski case arose under the expatriation provisions of
section 401(a) of the. Nationality Act of 1940, which did not contain the statutory presumption established by section 349(b) of the
1952 Act quoted above. That presumption is in terms addressed
only to the question whether the asserted act of expatriation was
committed voluntarily or under duress. Hence, it has no application to a case such as the present in which the acts were performed
voluntarily but without knowledge of the individual's United States
citizenship
The Supreme Court has emphasized that, where deprivation of
the "precious right of citizenship" is involved, "the facts and the
law should bo construed as far as is reasonably possible in favor of

the citizen." Nishikawa v. Dulles, 356 U.S. 129, 134 (1958). In the
676

fibspnas of clear and compelling statutory language, I am unwilling
to attribute to Congress an intention that the United States citizenship of an individual should be forfeited by reason of actions taken
at a time when he was unaware of his citizenship.
The decision of the Board of Immigration Appeals is approved.

677


Interim DeCision #2913

MATTER OF PHELISNA

In Exclusion Proceedings
A-26006147
Decided by Board July 8, 1982
(1) An applicant in exclusion proceedings generally has the burden establishing that the
exclusion proceedings are improper.
(2) In order to prove that exclusion proceedings are improper, the applicant must establish
that she made an entry into the United States.
(3) Where an alien alleges that an "entry" without inspection has been made, the alien
must establish that she actually and intentionally evaded inspection.
(4) The fact that an alien knowingly comes to the United States without the requisite
immigration documents does not, by itself, mean that the alien is attempting to evade
inspection.
Rxet.111"/ARIS:' At

of 19c9—Cae 212(0(20) (8 U.S.C. 11132(3)(20)) No valid vim,

ON BEHALF OF RESPONDENT:
S. Bernard Schwarz, Esquire
299 Broadway, Suite 1010

ON BEHALF OFSERVICE:
Michael P. DiRaimondo
General Attorney

New York, New York 10007
BY: Miihollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

In a decision dated December 1, 1981, the immigration judge found
the applicant excludable under section 212(a)(20) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(20), denied her application for asylum

and withholding of deportation, and ordered that she be excluded and
deported from the United States. The applicant has appealed. The appeal
will be dismissed.
The applicant is a 24-year-old female alien, a native and citizen of
Haiti. She arrived in the United States at Miami, Florida, on July 5,
1981, and was placed in exclusion proceedings.
At her hearing, the applicant asserted that exclusion proceedings
were improper. She stated that she knew a visa was required for entry,
but that she had no document which would entitle her to be admitted to
the United States. The applicant testified that she had traveled from
Haiti to the United States on a boat which had transported approximately ZOO people. She further testified that the passengers (including

272

Interim Decision #2913'
herself) had been apprehended when it was light, after they had disembarked from the boat and were on the beach, that she was not too far
from the boat when apprehended, and that she did not know where she
was. The immigration judge found that the applicant was properly in
exclusion proceedings because she had not presented any evidence which
would suggest that she had "entered" the United States.
The applicant then submitted her application for asylum (Form 1 580)
and the accompanying addendum which were received into evidence. In
the addendum, the applicant states that she had been inspected. She
clarified this response by stating "[w]hen we came to the beach in Miami,
Florida, we met other Haitians who said that we should see the immigration officials. They called for us and we were taken to a camp where we
stayed for a month."
On appeal, the applicant reiterates her contention that she has made
an entry into the United States and should be placed in deportation
proceedings. She alleges that she was physically present in this country;
that she had actually, constructively, or intentionally evaded inspection;
and that she had been free from actual or constructive restraint.
The Service contends that exclusion .proceedings are proper because
the applicant has not effected an entry into the United States. Although
it concedes that the applicant was physically present in the United
States at the time of her arrest, the Service argues that the applicant
has not shown that she actually and intentionally evaded inspection or
that she had been free from restraint.
An applicant in exclusion proceedings has the burden of establishing
that the exclusion proceedings are improper. See section 291 of the Act;
Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981). But cf. Matter
ofSalazar, 17 I&N Dee. 167 (BIA 1979) (colorable claim to lawful permanent resident status). In order to proye that she is not subject to
exclusion, the applicant must establish that she has made an entry into
the United States. As defined in section 101(a)(13) of the Act, "Mlle
term "entry" means any coming of an alien into the United Stites, from
a foreign port or place or from an outlying possession. . . ." An "entry"
involves (1) a crossing into the territorial limits of the United States,
i.e., physical presence; plus (2) an inspection and admission by an inunigration officer, United States v. Vasilatos, 209 F.2d 195 (3 Cir. 1954);
Lazarescu. v. United States, 199 F.2d 898 (4 Cir. 1952); or (3) actual and
intentional evasion of inspection at the nearest inspection point, Meng
v. INS, 534 F.2d 1018 (2 Cir. 1976); U.S. ex rel. Giacone v. Corsi, 64
F.2d 18 (2 Cir. 1933); Morini v. United states, 21 F.2d 1004 (9 Cir.
1927), cert. denied, 276 U.S. 623 (1928); Lew Moy v. United States, 237
F. 50 (8 Cir. 1916); Matter of Estrada-Betancourt, 12 &N Dec. 191
(BIA 1907); coupled with (4) freedom from restraint, United States v.
-

Vasilatos, supra; Lazarescu v. United States, supra. See Matter of Lin,
273

Interim Decision #2913
18 I&N Dec. 219 (BIA 1982); Matter of Pierre, 14 I&N Dec. 467 (BIA
1973).
Because it is clear that the applicant had established physical presence in the United States, the issue in this proceeding is whether she
actually and intentionally evaded inspection and, if so, whether she had
been free from restraint.
The applicant, submits that in Mutter of Yarn, 16 I&N Dec. 535 (BIA
1978), the third element of an "entry" was discussed in the alternative,
i.e., in terms of actual or intentional evasion of inspection. Consequently,
she argues that intent need not be shown. We do not agree. Matter of
Yarn, supra, did not specifically address this issue. Further, if we apply
the applicant's rationale, the third element of an entry, actual evasion of
inspection, is equivalent with the first element, physical presence. Such
a construction is redundant. In addition, it is contrary to case law which
requires ari alien intentionally to evade inspection. See Cheng v. MIS,
supra; U.S. ex rel. Giacone v. Corsi, supra; Morini v. United States,
supra; Lew Moy v. United States, supra.
The applicant has failed to prove that she actually and intentionally

evaded inspection.' Thg applicant submits that she actually and intentionally evaded inspection because she knowingly attempted to enter
the United States without the required documents. We do not find this
argument persuasive. The fact that an alien knowingly comes to the
United States without the requisite immigration documentd does not
necessarily mean that the alien is attempting to evade inspection, as the
alien lawfully could be seeking asylum. The applicant in this proceeding
has not established that she intentionally was endeavoring to violate the
immigration laws of the United States by entering without inspection.
In fact, our review of the record clearly would indicate otherwise, i.e.,
that she was looking for immigration officials to test her status. The
applicant's own statement in the addendum to hex asylum application
reflects that she voluntarily presented herself for inspection and,
therefore, that she had not been attempting to evade inspection but had

come to this country with the lawful intention of seeking asylum.' On
appeal, the applicant raises the argument that she intended to evade
inspection because she intended to meet a relative. The applicant's mere
1 In view of our finding, we need not determine whether the applicant had been free
from restraint.
2 The immigration judge apparently did not believe the applicant's assertions regarding
her intent. Based upon the record before us, we are not persuaded that the immigration
judge's conclusion was incorrect. See generally Wing Ding Chan v. INS, 631 F.2d 978
(D.C. Cir. 1980), cent denied, 450 U.S. 921(1981); Vasquez-Mondragon v. INS, 560 F.2d
1225 (5 Or. 1977); Kokkinis v. District Director. 429 F.2d 938 (2 Cir. 1970); Maitr of
Magana, 17 I&N Dec. 111 (BIN 1979); Matter of Teng, 15 I&N Dec. 516 (BIA 1 75);
Matter of
7 I&N Dec. 417 (BIA 1957).

274

Interim Decision #2913
desire to meet a relatiye in the United States does not, without more,
•
evince an intention to evade inspection.
Inasmuch as the applicant had neither "entered" the United States
nor had any document which would entitle her to be admitted to this
country, the immigration judge's finding that the applicant is excludable
under section 212(a)(20) of the Act is correct.
Although not raised on appeal, we note that the applicant has failed to
establish her persecution claim, regardless of whether her case is assessed
in terms of whether she has deponstrated a "clear probability," a "wellfounded fear," a "good reason," or a "realistic likelihood" that she will be
persecuted within the contemplation of the Act if required to return to
Haiti. See generally Stevie v. Sava, 678 F.2d 401 (2 Cir. 1982).
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

275


Interim Decision #1985

MATTER OF PRABHAKAR

In Section 212 (e) Proceedings
A-13874498

Decided by District Director Jura 3, 1968
An exchange visitor has not established that compliance with the foreign
residence requirement would result in exceptional hardship to his United
States citizen child within the meaning of section 212(e), Inunigratlon and
Nationality Act, as amended, since applicant and his wife, both medical
doctors, could be expected, while living in Thailand or the Fiji Islands, to
give an only child, in good health, when between 2 and 4 years old, adequate care for the physical and mental development of the child; further,
the income of the parents, although reduced, should nevertheless be adequate to provide for the well-being of the child.

The applicant is a 29-year-old native and citizen of Thailand.
He was admitted to the United States on June 15, 1963, as a nonimmigrant under section 101(a) (15) (J) of the Immigration and
Nationality Act, as amended. He is a doctor of medicine and entered to participate in Exchange Visitor Program No. P—II-600
at St. Vincent's Hospital, Staten Island, New York. His transfer
to Program No. P-11-818 at the Jefferson Medical College Hospital, Philadelphia, Pennsylvania, was authorized on June 25,
1964. Extensions of stay were granted to permit his participation
in that program until April 17, 1968:
The applicant was married on November 19, 1965, to a nonimmigrant alien who was also an exchange visitor and - also a doctor
of medicine. Of the marriage a child was born in the United
States on July 22, 1966. Satisfactory evidence of the marriage
and the birth of the child in the United States has been submitted.
The application for a waiver of the two year foreign residence
requirement of section 212(e) of the Immigration and Nationality Act, as amended, was filed on March 20, 1968. It is based on a
claim that the child, who is a citizen by birth in the United
States, would suffer exceptional hardship if the applicant resided

outside the United States for two years following his departure

314

Interim Decision # 1985
from this country. The applicant states that the child is in good
health.
Compliance with the foreign residence requirement would require the United States citizen child to live for at least two years
in a distant land, probably in the Far East. The child is of a
tender age and requires the care of the father and mother. The
father, although born in Thailand, lived for many years in India.
The mother is a native of the Fiji Islands and is a British subject.
The applicant in requesting the waiver refers to economic
hardships which he and his wife would suffer upon return to either Thailand or the Fiji Islands due to lack of funds to establish
themselves in the practice of medicine and the lack of job opportunities. These hardships may be considered only insofar as they
also resultin hardship to the United States citizen child.
It is our opinion that the care which parents who are both doctors of medicine could be expected to give to an only child while
living in Thailand or the Fiji Islands when the child is between
two and four years old, would be adequate for the physical and
mental development of the child. It is also our opinion that even
though the income of the parents would be reduced during the
two years of foreign residence, it would nevertheless be adequate
to provide for the well-being of the child. Upon full consideration
of this case, it is concluded that compliance with the two year
foreign residence requirement of section 212(e) of thelmmigration and Nationality Act, as amended, would not impose exceptional hardship on the United States citizen child.
ORDER: It is ordered that no request be made to the Secretary
of state for a recommendation in this case and the application Is
hereby denied.

315


Interim Decision 40302

MATTER OF YANEZ-CARRILLO

In EXCLUSION Proceedings
, A-13536165

Decided by Board August 27, 1963
The retention provisions of section 301(b), Immigration and Nationality Act,
requiring continuous physical presence in the United States for at least 5
years between the ages of 14 and 28, do not operate to deprive an individual
of United States citizenship until he has had a reasonable opportunity to
come to the United States as a U.S. citizen after learning of such claim to
citizenship.
EsoLtmanrx: Act of 1052—Section 212(a) (20) [8 U.S.C. 1182(a) (20)1—Immigrant without visa.

The case comes forward pursuant to certification by the special inquiry officer of his decision dated June 10, 1963, finding the applicant
to be an alien and excludable as an immigrant not in possession of
proper documents.
The facts of the case are not in dispute. The record relates to a

native of Mexico, single, who seeks admission into the United States
as a United States citizen. He was born in Mexico on June 24, 1935.
His father was a native and citizen of Mexico who never resided in
the United States, but his mother was born in Ysleta, Texas, and is
a citizen of the United States. She resided in the United States
for various periods prior to the birth of the applicant. The applicant's parents married in Mexico on October 15, 1932, and he is the
legitimate issue of that marriage. The applicant entered. the United
States for the first time as a citizen on January 7, 1963, in possession
of a United States citizen's identity card issued to him at the American
Consulate at Juarez, Mexico, on the same date. Previously he had
entered and remained in the United States on different occasions as
a nonimmigrant agricultural worker from September 1955 to December 1955, September 1956 to December 1956, September 1957 to

January 1958, May 1958 to August 1958, September 1959 to December
1959, and September 1960 to September 1961. The last two periods
have been corroborated by the Service and there is no reason to doubt
366

Interim Decision #1302
the applicant's testimony as to the dates he came to the United States
as a nonimmigrant worker.
The applicant testified that he went to the American Consulate in
February 1962 to inquire about an immigrant visa and at that time
learned for the first time that he might be a United States citizen
through his mother. Prior to that date he had never known he might
have a claim to United States citizenship nor had he ever discussed

the possibility with a United States Government official. At the end
of December 1962, the applicant received a letter from the American
Consulate in Juarez, Mexico, which informed him that he could be
issued a document as a citizen of the United States and that it would
be necessary for him to proceed immediately to the United States to
live.
The applicant's claim to United States citizenship rests upon section
1993, Revised Statutes, as amended by the Act of May 9,4, 1934, through
his mother who is a citizen of the United States and who had been
present in the United States prior to hie birth. Under section 201(g)

of the Nationality Act of 1940, the applicant was required to reside
in the United States before his sixteenth birthday; but under sections
301(b) and (c) of the Immigration and Nationality Act of 1952, he

could regain United States citizenship by coming to the United States
prior to his twenty-third birthday and by being continuously physically present in the United States for at least five years, providing that
such physical presence followed the attainment of the age of 14 years
and preceded the age of 28 years. Section 16 of the Act of September 11, 1957, states that absences from the United Stites of less than
twelve months in the aggregate during the period for which continuous

physical presence in the United States is required shall not be considered to break the continuity of such physical presence. The applicant here reached his twenty-third birthday on June 24, 1958, at which
time he had been in the United States for four different periods as an
agricultural worker. However, there was an absence in excess of
twelve months from August 1958 until September 1959 which broke
the continuity of his residence and the time prior thereto could not
be computed for the purposes of complying with the physical presence
requirement of section 301(b) of the Act.
The Department of State in a memorandum (Ex. 6) expresses the
opinion that the evidence of record establishes that the applicant was
never aware of his possible claim to United States citizenship through
his mother prior to January 16, 1962, on which date his mother applied for a United States citizen's identification card at the Consulate.
On the basis of the Attorney General's opinion of May 24, 1962 (Matte?. of C—S—, Int. Dee. No. 1281), it was concluded that the applicant had applied at the Consulate for a determination of his United
367

Interim Decision #1302
States citizenship -within a reasonable period after learning of his
possible claim to such citizenship; and that under the circumstances
he might properly be issued limited documentation valid for a period
to enable him to proceed forthwith to the United States to begin compliance with the retention provisions of section 301(b) of the Immigration and Nationality Act.
Matter of C--B — , Int. Dec. No. 1218, involved a native-born Cuban,
born May 31, 1933, who acquired United States citizenship through
his father under revised section 1993. The applicant did not know
of his citizenship until many years later in 1959 and voted in a Cuban
political election on. November 3, 1958, while unaware of his United
States citizenship. The Board of Immigration Appeals relied on the
case of Rogers v. Patokoski,271

F. 2d 858

(9th Cir.

1959), which held,

on closely similar facts, that voluntary acts abroad of voting and
serving in the armed forces of a foreign country did not result in
expatriation where the individual was unaware of his United States
citizenship' The Attorney General compared the decisions in Perri v.
Dulles, 206 F. 2d 886 (3rd Cir. 1953), and Petition of Acoldone, 231 F.
2d 845 (3rd Cir. 1954), which held that the two-year period established
by section 401(a) of the Nationality Act of 1940, during which a dual

national must return to the United States or forfeit his American
citizenship, did not run until he became aware of his United States
citizenship. The court in Perri v. Dulles, supra, held that for constitutional reasons the two-year period of limitations must also be
regarded as not beginning to run until the plaintiff learned that he
had a claim to American citizenship; for to provide that a citizen
"shall be forever estoppel" from claiming citizenship by his failure
to return to the United States at a time when he was fully unaware
of his citizenship would certainly be to deprive him of it arbitrarily
and without his knowledge, much less his concurrence. The Attorney

General stated that the presumption in section 349(b) is addressed
only to the question of whether the asserted act of expatriation was
committed voluntarily or under duress, and that it had no application
to a ease such as the present in which the acts were performed voluntarily but -without the knowledge of the individual's United States
citizenship. The Attorney General cited the Supreme Court holding
that where a deprivation of the person's right of citizenship is involved, the facts and the law should be construed as far as reasonably
possible in the favor of the citizen (Nishilcawa v. Dulles, 356 U.S. 129

(1958) ).

He refused to attribute to Congress an intention that United

States citiz .rship of an individual should be forfeited by reason of
actions taken at a time when he was unaware of his citizenship.
'Matter of C—A--, Int. Dec. No. 1175 (1901).

368

Interim Decision #1302
It is believed that the language of the Attorney General in Matter
of C—B—, Int. Dec. No. 1218, is broad enough to include the present
case of the applicant. Section 301(b) of the Immigration and Nationality Act is not a provision relating to expatriation but it does
involve a forfeiture of a claim to United States citizenship upon failure
to meet the prescribed conditions. In this respect it is similar to the
provisions of section 401(a) of the Nationality Act of 1940 that a dual
national return to the United States within the two-year statutory
period or suffer the loss of citizenship, which has been construed not
to run until the individual became aware of his claim to United States
citizenship.2 The Attorney General has endorsed the holding in those
cases and it appears to be but a logical extension to hold that the .
foreitupvsnco301(b)ftheImigraondNtionality Act requiring continuous physical presence in the United
States between the ages of 14 and 28, do not operate to deprive an
individual of United States citizenship until he has had a reasonable
opportunity to come to the United States as a United States citizen
after learning of such claim to citizenship. Under the circumstances
of this case, which clearly show that the applicant did not become
aware of his possible claim to United States citizenship -until February
1962 when he was so informed by officials at the American Consulate,
was documented as a citizen by December 1962 and then proceeded
immediately to the United States, it is concluded that citizenship has
not terminated under section 301(b). The decision of the special
inquiry officer will be reversed.
ORDER: It is ordered that the decision of the special inquiry
officer dated June 10, 1963, be reversed and that the applicant be
admitted as a United States citizen:
,

Perri v. Dulles, 206 F. 2d 586, 591 (3d Cir. 1953) ; Petition of Accliione, 213
F. 2d 845 (3d Cir. 1954).

7GS-45G-65-25

869


Interim Decision #1257

MATTER OF SLADE

In DEPORTATION Proceedings
A-10296218
Decided by Board November 30,1982
Where respondent, who entered the United States as a nonquota immigrant on
the basis of a fradulent marriage, is deportable under section 241(a) (1) of
the Immigration and Nationality Act because excludable at time of entry
under section 211(a) in that she was not a nonquota immigrant as specified in
her visa, she is ineligible for the benefits of section 241(f) since she was not
"otherwise admissible" at entry.
thIARGE:

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)7—Excludable
at entry—not nonquota immigrant.

This is au appeal from the order of the special inquiry officer finding
respondent deportable upon the ground stated above, and granting
voluntary departure.

The appeal does not appear to be timely filed (8 CFR secs. 3.3, 242.21
(Supp. 1961), Matter of Z—M—, 3 I. & N. Dec. 167, Matter of SS.
"Dirphys", 3I. & N. Dec. 223) ; however, in view of the importance of
the issue involving section 241(f) of the Act (8 U.S.C..A. 1251(f)
(Supp. 1961) ), we shall take jurisdiction by certification (8 CFR 3.1
(c) (Supp. 1961) ).
In the notice of appeal, issue is taken with the finding of deportability, and with the denial of an application for creation of the status
of an alien lawfully admitted for permanent residence under section
244(a) of the Immigration and Nationality Act. However, we find
no application for the relief. The special inquiry officer neither mentioned nor ruled upon such an application, and counsel did not refer
to it in his brief or oral argument; we shall, therefore, address ourselves to the question of deporta,bility. "
The issues are: (1) whether respondent who entered as a nonquota
immigrant is deportable because she was not entitled to such status,

(2) if deportable, whether respondent comes within a provision of law

128

Interim Decision #1267
which removes certain aliens who obtained visas by fraud from liability to deportation. As to the first question we fmd in the affirmative,
and as to the second, in the negative.
Respondent, a 34-year-old female, a native and citizen of Jamaica,
entered the United States upon surrender of a nonquota immigrant
visa issued to her as the wife of Joseph Slade, a United States citizen.

The Service charges that the marriage to Slade was a sham one, that
it did not create the relation of husband and wife for immigration
purposes, and that the respondent therefore was not entitled to a nonquota status as the wife of a United States citizen.
Respondent refused to testify at the deportation hearing concerning
her marriage, but the record contains sworn statements made by her

on this subject to a Service investigator on two occasions (Ex. 2, statement of April 30, 1959; Ex. 3, statement of October 18, 1961). These
statements reveal that after respondent entered the United States as
a visitor, she paid Dudley Goulbourne and others tho sum of $400 to

arrange a marriage between herself and a United States citizen. On
March 12, 1956, in accordance with the arrangements, Goulbourne introdnc,ed the respondent to Joseph Slade, a person who had agreed to
marry respondent for a fee. On this same day, the parties secured a
marriage license and were married. (The marriage certificate was
postdated to March 14, 1956 to conceal the fact that there had been a
violation of a state law which required the passage of 24 hours between
the issuance of the license and the performance of the marriage.) A
few hours after the marriage was performed, respondent and her husband parted and went separate ways. No attempt was made to consummate the marriage. The respondent stated the marriage had been
entered into with the mutual understanding that it would not be consummated, that there would be no marital responsibilities, that the
parties would not live together, and that it would be terminated by
divorce after the respondent secured a visa and became a United States
citizen (probably within a 8-year period after the marriage), that the
marriage was a "paper" one, and that it had been entered into solely
to enable respondent to get a nonquota visa as the wife of a United
States citizen.
A marriage of the nature described—a marriage entered into by
both parties without a bona fide intention of residing together as
husband and wife and made merely for the purpose of obtaining
benefits under the immigration laws, is not a valid marriage for immigration purposes (Matter of M , 8 I. & N. Dec. 217). For immigration purposes, therefore, the respondent was not married to a United
States citizen at the time she applied for the visa; she was not entitled
to a nonquota visa, and she is clearly deportable on the charge that
—

129

Interim Decision #1257
she was not a nonquota immigrant at the time of entry. The charge
in the order to show cause is sustained.

We come now to the question as to whether respondent is removed
from liability to deportation by section 241(f) of the Act (8 U.S.C.
1251(f) (Supp. 1961) ) 2 which provides in pertinent part that the
requirement for the deportation of an alien who procured a visa by
fraud "shall not apply to an alien otherwise admissible at the time
of entry" who is the parent of a United States citizen (respondent
is the mother of a child born out of wedlock in the United States).
Counsel contends that, since it has been found that respondent entered
into a fraudulent marriage which became the basis for the issuance
of the nonquota visa, section 241(f) of the Act applies and prevents

the use of the fraud. and the obtaining of the nonquota visa as grounds
of deportation.2 The special inquiry officer, pointing out respondent's
deportation was being sought not on a fraud charge but on a documentary ground, assumed for the purpose of discussion, that respondent could have been found deportable under section 212(a) (19) of
the Act because of her fraudulent misrepresentations to the consul
when she obtained her visa; he concluded, nevertheless, that respondent did not come within section 241(f) of the Act because being
deportable on a documentary ground she was not "otherwise admissible" than by reason of section 212(a) (19) of the Act.
Counsel's contentions are made against the fact that legislation similar in essence to that found in section 241(f) of the Act, was construed
as authorizing waiver of only two grounds of deportation—a fraud
ground under section 212(a) (19) of the Act, and the ground that
a person was not of the nationality shown in his visa (section 211(a)
of the Act, supra, note 2). The legislation referred to, the predecessor
of section 241 (1) of the Act, is section 7 of Public Law 85 316, 85th
Cong., S. 2792, September 11, 1957 which reads as follows :
-

1

Section 241(1) of the Act provides as follows :

The provisions of this section relating to the deportation of aliens within the
United States on the ground that they were excludable at the time of entry
as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not
apply to an alien otherwise admissible at the time of entry who is the spouse,
parent, or a child of a United States citizen or of an alien lawfully admitted
for permanent residence.
3 Aliens are deportable who are excludable at time of entry (section 241(a) (1)
of the Aet, 8 U.S.C. 1251(e) (1) ). Section 212(a) (19) of the Act. 8 U.S.O. 11 89
(a) (19) provides for the exclusion of "Any alien who seeks to procure, or has
procured a visa or other documentation, or seeks to enter the United States, by
fraud, or by willfully misrepresenting a material fact ;"
Section 211(a) of the Act (8 U.S.U. 1181(a) ) makes excludable aliens who fail
to comply with certain documentary requirements. It provides : "No immigrant

130

Interim Decision #1257
Sec. 7. The provisions of section 241 of the Immigration and Nationality Act
relating to the deportation of aliens within the United States on the ground
that they were excludable at the time of entry as (1) aliens who have sought
to procure, or have procured visas or other documentation, or entry into the
United States by fraud or misrepresentation, or (2) aliens who were not of the
nationality specified in their visas, shall not apply to an alien otherwise admissible at the time of entry who (A) is the spouse, parent, or a child of a United
States citizen or of an alien lawfully admitted for permanent residence; or
(B) was admitted to the United States between December 22, 1945, and November 1, 1954, both dates inclusive, and misrepresented his nationality, place of
birth, identity, or residence in applying for a visa: Provided, That such\ alien described in clause (B) shall establish to the satisfaction of the Attorney General
that the misrepresentation was predicated upon the alien's fear of persecution
because of race, religion, or political opinion, if repatriated to his former home
or residence, and was not committed for the purpose of evading the quota

restrictions of the immigration laws or an investigation of the alien at the place
of his former home, or residence, or elsewhere. After the effective date of this
Act, any alien who is the spouse, parents, or child of a United States citizen
or of an alien lawfully admitted for permanent residence and who is excludable
because (1) he seeks, has sought to procure, or has procured, a visa or other
documentation, or entry into the United States, by fraud or misrepresentation,
or (2) he admits the commission of perjury in connection therewith, shall hereafter be granted a visa and admitted to the United. States for permanent residence, if otherwise admissible, if the Attorney General in his discretion has
consented to the alien's applying or reapplying for a visa and for admission
to the United States.

As we have previously stated, the section was held to excuse from
liability to deportation, a person who had made a, material misrepresentation and a person who had been charged to the wrong quota.
We held the law was not intended to cover any other ground of inadmissibility (Matter of D'O—, 8 I. & N. Dec. 215, Matter of A5—, 7 L &
N. Dee. 715; see Langhammer v. Handlton,194 F. Supp. 851, 857, D.
Mass. (1961), aff'd 295 F. 2d 642, 648, 1st Cir. (1961), aufalino v.
Holland, 217 F. 2c1 210, 3rd. Cir. (1960), cert. den. 364 U.S. 863).
The wording of section 7 would hardly permit another interpretation . 8
shall be admitted into the United States unless at the time of application for
admission he (1) has a valid unexpired immigrant visa or was born subsequent
to the issuance of such immigrant visa of the accompanying parent, (2) is
properly chargeable to the quota specified in the immigrant visa, (3) is a nonquota immigrant if specified as such in the immigrant visa, (4) is of the proper
status under the quota specified in the immigrant visa, and (5) is otherwise
admissible under this Act."
a The legislative intent in passing section 7 of the Act of September 11, 1957 is
summarized in the report of the Senate Committee accompanying the Senate
Bill which became the law. The report states :
Section 7 of the bill [S. 2972] would provide for the correction of a situation
which exists in the case of certain aliens admitted under the Displaced Persons
Act who are in a deportable status because of misrepresentations made with
reference to their nationality or place of birth to avoid repatriation to ComFootnote continued on following page.

131

Interim Decision #1257
The fact that two grounds of inadmissibility were specifically mentioned in section 7 would, on well known legal principles, rule out
grounds not mentioned.
Moreover, to extend the section to cover any ground of inadmissibility not specifically mentioned by Congress would make it impossible
to withhold its thrust from any ground of inadmissibility, whether
documentary criminal or subversive, which had been the subject of a
misrepresentation, for there is no logical basis on which to differentiate
grounds of deportation which have not been specifically mentioned.
Bearing in mind that an alien receives the waiver not as a matter of
discretion, but of right it becomes most unlikely that Congress could
have intended a waiver of any but the two grounds specifically
mentioned.'
Congressional comment reveals that the provisions of section 7 of
Public Law 85-316 were incorporated in the Immigration and Nationality Act "for the purpose of codification" and to "codify existing law
applicable to the granting of waivers of certain excluding provisions
of the Immigration and Nationality Act and to consolidate with the
basic statute the matter now contained in separate enactments, to
wit, * * * section 7 of the act of September 11, 1957" (1961 U.S.
Code Cong. & Ad. News, 87th Cong., 1st Sess. 2950, 2981). The
Congressional comment continues :
It is not proposed to incorporate into the basic statute a provision contained
in section 7 of the act of September 11, 1957, relating to deportation of certain
aliens within the United States where deportation was predicated on certain
misrepresentations made by a specific category of immigrants, namely, displaced
persons and refugees who entered the 'United States not later than November 1,
1954. This special relief provision of the 1957 act has served its humanitarian
Footnotes continued.

munist-controlled countries. Tina section would also permit a similar adjustment
to be made in the case of spouses, parents, or children of United States citizens
or lawful resident aliens, who have sought to procure or have procured visas
or other documentation or entry into the United States by fraud or misrepresentation. The section further provides that after the effective date, the Attorney
General shall have discretionary authority to waive the ground of inadmissibility
in behalf of the spouse, parent or child of a United States citizen or alien lawfully
admitted for permanent residence who is found to be subject to exclusion because
be has practiced fraud or made a misrepresentation in connection with his visa
application or application for admission to the United States. (S. Rep. No. 1057,
85th Cong.,1st Sess. 5 (1957).
4 A ground of inadmissibility which would not exist except for the fact that
a false statement was made, i.e., the admission of the commission of perjury
in the making of a false statement under oath before the consul (section 212(a)
(9) of the Act) merges in the obtaining of the visa by fraud and comes within the waiver (Matter of 1'—, 8 I. & N. Dec. 143, 149). The charge that a person
was not a nonquota immigrant does not Sow from the fact that fraud was committed in obtaining anise, it precedes the fraud.

132

Interim Decision #1257
purpose and its continuation and inclusion into permanent law appears unnecessary inasmuch as according to available information persons eligible to be
granted such relief have already obtained the envisaged benefit. (1961 U.S.
Code Cong. & Ad. News, 87th Cowl... 1st Bess. 2981)

In other words, the codification withdrew relief from aliens who did
not have the specified relations in the United States but the codification purported to make no other change. Since section 241(f) of the
Act is termed a codification, we see no reason for extending the scope
of the section. This is especially so since published administrative
and judicial interpretation of section 7 of Public Law 85-316 existed
before the codification was made. 5
Another reason for the belief that Congress intended no change to
be made in the Board's interpretation that only two grounds were

waived is found in section 10 of Public Law 87-310 amending section
205 (c) of the Act (8 U.S.C. 1155 (c) (Supp. 1961) ) in which Congress
forbade the issuance of a nonquota visa to an alien who after a sham
marriage had entered into a valid marriage to a United States citizen. This was done to "counteract the increasing number of fraudulent acquisitions of nonquota status through sham marriages." (1961
U.S. Code Cong. & Ad. News, 87th Cong., 1st, Sess. 2980). If one
going through a sham marriage aehieved a nonquota status by the
sham marriage, there would appear to be only unusual situations
which would require subsequent application for a nonquota visa and
it is unlikely that Congress would enact a law to deal with such rare
cases. Moreover, we can see no reason why by section 241(f) of the
Act CongresS would have intended to give permanent residence to an
alien who had achieved nonquota status fraudulently by means of a
sham marriage, if at the same time Congress would not give permanent residence to one in this category who had subsequently lawfully
married a United States citizen.
Does our conclusion make section 241(f) of the Act meaningless as
counsel contends? We think not. A person deportable as having
obtained a visa by fraud is barred from the United States. In the
absence of legislation such as that contained in section 241(f) of the
Act there could be no waiver of this perpetual bar to the acquisition of
lawful permanent residence in the United States even though ties with
United States citizens or legally resident aliens existed. Section
2,41 (f) of the Act is also effective to require termination of deportation proceedings where an alien willfully misrepresented a matter
which did not make her inadmissible but which -was nevertheless
material; i.e., a misrepresentation concerning name, existence of a
Congressional awareness of Board decisions is shown (see 1961 U.S. Code
Cong. & Ad. News, 87th Cong., 1st Sess., 2984, comment on two Board decisions
concerning expatriation, and section 401 of the Act, 8 U.S.C. 1106).

133

Interim Decision #1257
conviction of a crime which did not involve moral turpitude, etc. (see,
Matter of S— and B—C—, Int. Dec. 1168).
Matter of G , 8 I. & N. Dec. 356, cited by counsel as authority for
—

granting relief to respondent supports the Board's position. In the
case cited, respondent had obtained a nonquota immigrant visa by alleging he was the husband of an American citizen; in fact he was not.
He was found deportable on the same section under which respondent's
deportation is sought; he was required to depart from the United
States; deportation proceedings were not terminated.
Matter of 7 , 8 I. 85 N. Dec. 143, is cited by counsel. We fail to
see its applicability. We stated there that a qualitative ground of inadmissibility arising out of the commission of criminal or subversive
acts is not waived under section I of the Act of September 11, 1057
and that the lack of documents which would have otherwise made the
alien inadmissible to the United States could be waived under section
—

211(b) of the Act which authorizes the admission without documents
of an alien lawfully admitted for permanent residence who departed
from the United. States temporarily. Such waiver would not be applicable to the present case. Respondent would therefore, remain
deportable on documentary grounds as well as because of the fraud.
Matter of T—, 8 L & N. Dec. 493, cited by counsel is not apposite.
It involves section 241(c) of the Act (8 U.S.C. 1251 (c) ) which is not
before us. We held that the failure of the service to sustain a fraud
charge based on 241(c) of the Act precludes the sustaining of a documentary charge under 241 (a) of the Act. In the instant case, it is
clear that the fraud charge based upon the misrepresentation as to
marital status and destination, before the consul, and the nonquota
charge are not dependent upon each other. Whether or not a fraud
charge is sustained, the respondent was not validly married to a United
States citizen and was not entitled to a nonquota status.
Since the respondent attempts to secure a waiver of grounds other
than that she procured. a visa by fraud or that she was not of the
nationality specified in the visa, and since she was also inadmissible
for an additional ground—the fact that she was not a nonquota immigrant as her visa showed her to be, we hold she is ineligible for relief
under section 241(f) of the Act. Respondent was no more admissible
at time of entry than was an alien who concealed the fact that he had
been a member of the Communist Party.
Counsel is of the belief that failure of the Government to lodge a
charge accusing the respondent of having obtained a. visa by fraud is
being used to prevent the respondent from taking advantage of the
benefits of section 241(f) of the Act. Obviously this is not so. Even
if the respondent were deportable as having obtained a visa by fraud,
134

Interim Decision #1257
we do not believe she would be entitled to the benefits of section 241(f)
of the Act.
We need. add nothing to the special inquiry officer's discussion of
counsel's contentions concerning the use of respondent's admissions
against interest.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

135


Interim Decision #1760

kleviimc or Jun
In Visa Petition Proceedings
A-17167940

Decided by Board Ante 20, 1967
The requirement of Article 1074 of the Civil Code of the Republic of China providing that a married person, in order to adopt a chilli, mast do so Jointly with
his/her spouse, is satisfied for immigration purposes where the record establishes that the male spouse in the United States (petitioner's husband)
ratified the adoption of a child (beneficiary) during infancy in China in 1948
by his wife (petitioner), such ratification having occurred before the 14th
birthday of the adopted child.
ON BEHALF or PETITIONER :

Albert C. Luna, Esquire
Suite 203
1011 North. Broadway
Los Angeles, California 90012
(Brief filed)

The case comes forward on appeal from the order of the District
Director, Los Angeles District, dated March 22, 1967 denying the visa
petition for the reason that Article 1074 of the Chinese Civil Code provides that where a married person adopts a child he must do so jointly
with his spouse; the failure to comply with the requirements of the law
of the locus where the relationship occurred precludes a finding that
the beneficiary is the child of the petitioner.
The petitioner, a native of China, a naturalized citizen of the United
States, seeks immediate relative status on behalf of the beneficiary as
her adopted child. The beneficiary is a native and citizen of China,
born October 9, 1948, male.
A sworn statement was taken from the petitioner's husband, Jue,
Bing Yin, on December 3, 1962 in connection with an investigation
relating to his true identity and immigration status. He confessed that
he was originally admitted to the United States on September 25, 1938
at San Pedro, California as Jew Dauk Hop, the son of Jew See Tong,
a United States citizen but to whom he was not related. The husband
testified his wife, the petitioner, came to the United States more than
three years previously as a United States citizen. He testified that he
296

Interim Decision #1750
had one adopted son, Jew, Wing Art, who was adopted when he was
about two or three years old. He did not know where the son was
adopted because his wife had adopted him. The husband was questioned regarding his claim on May 27, 1949 that he was the father of

two sons, Jew, Wing Gong and Jew, Wing Art and explained that the
former was his grandson and the latter, Jew, Wing Art, was the same
boy he and his wife had adopted.
A. sworn statement was taken from the petitioner on November 17,
1964, reference being made to her previous sworn statement on December 11, 1962. The petitioner was admitted to the United States at
Honolulu, Hawaii on December 24, 1958 as a nonquota immigrant
based on an approved visa petition submitted in her behalf by her
husband.. She stated she claimed Jue, Wing Gong as an adopted son

and Jue, Wing Art, who was really her adopted son, as her true son..
The petitioner's statement dated December 11, 1962, -taken in connection with an investigation into her status, discloses that she stated she
had an adopted son Jue Wing Art, born in 1948 and adopted when he
was two years of age. The petitioner's applitation for an immigrant
visa executed on November 19, 1958 confirms that she listed Jue Wing
Gong (Kwong) as an adopted son and Jue Wing Art as a, son.
The file also contains a statutory declaration of Tse, Yuet Wah,
executed January 4, 1967, which states that the affiant is well acquainted with the couple, Jue, Bing Yin and his wife, Pon, Yue Sang because they were fellow villagers when in China. To the best of the
knowledge, information and belief of the affiant, the couple had no
blood children but an adopted son, Jew Wing Art (or Chow, Wing

Tat), age 18, who was born on October 9, 1948 at Sheuck Bin (Share
Bin) Village, Yin Wah (Tan Wo) Heung,. ef. Iloiping District; his
blood parents were Hoo, Lin and Chin See, both now deceased. The
affiant personally attended the adoption on October. -26, 1948 at Wing
On Village, in the presence of the blood parents 4.•the adopted. son,
the adoptive mother, and the go-between; Chan 1-oci;:Chui Kam, the
witnesses and some of the fellow villagers. The affiant stated the adoption was effected. by a writing, signed by both parties, the 'go-between,
and the witnesses, said to be lost in China; that the adopted son was
named Jue, Wing Art at the adoption, and he- had been living with
his adoptive mother, Pon, Yue Sang, until the adoptive mother left
for the United States from Hong Kong in December of 1958.
The record establishes that the petitioner adopted the beneficiary in
China when he was an infant under seven years of age, thus satisfying
the requirement of Article 1079 of the Chinese Civil Code.i ThereI See Matter of Ir—D—TV—, 9 I. & N. Dec. 010, 612.

297

.

Interim Decision #1750
after the beneficiary resided with the petitioner until she left for the
United States in 1958 thus complying with the residence and custody
requirements of section 101(b) (1) (E) of the Immigration and Nationality Act?
Article 1074 of the Civil Code of the Republic of China provides
that for a married person to adopt a child, he must do so jointly with
his spouse. The Far Eastern. Law Division of the Library of Congress
has supplied information to the effect that the Itepblic of China, year
35 (1946) Judicial Yuan Interpretation No. 3120 states that where a
married person adopts a child, and does not do so with his or her
spouse, the adoption may be annulled by the courts; however, the
adoption is not void in itself?
The husband of the petitioner ratified the adoption at least by 1962.

There is evidence that the petitioner's husband knew of and ratified
the adoption of the beneficiary since May 27, 1949 when he claimed
that he was the father of two sons, Jew, Wing Gong and the beneficiary: He testified in December 1962 that the beneficiary was the
same boy he and his wife had adopted. Obviously, there was ratification by the husband prior to the beneficiary's 14th birthday.
The requirement in. Article 1074 of the Chinese Civil Code that there
must be a joint adoption by both spouses does not compel a, finding
that the adoption is void in itself, but if subsequently ratified or consented to, the adoption may be considered valid. Even applying the
provisions of section 101(b) (1) (E) of the Immigration and Nationality Act to this case, the petitioner has established that her husband
consented to the adoption prior to the beneficiary reaching the age of
14 years. 4 Upon a full consideration of all the evidence establishing
a valid infancy adoption by the petitioner, residence and custody
with the adoptive mother for more than two years, consent and ratification by the adoptive father prior to the beneficiary reaching the age
14 years, it is concluded that the petitioner has borne the burden of
establishing that the beneficiary is her adopted child. The visa petition
will be approved.
ORDER: It is ordered that the visa petition be and the same is
hereby approved.
2 Matter of Y—E—W--, 9 L & N. Dee. 176.
▪See unreported Matter of Wong, A-13952653 (May 3, 1965) ; also unreported
Matter of Chan, A-13942857 (10/18 and 12/30/65).
▪Cf. Matter of Lau. 10 L & N. Dec. 597.

298


Interim Decision #2814

MATTER OF

MUSHARRAF

In Deportation Proceedings
A-20906714
Decided by Board August 20, 1880
(1) An alien admitted to the United States under section 101(a)(15)(J) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(J) is not eligible to apply for an
immigrant visa or permanent residence until he has resided and has been physically
present in his country of nationality or last place of residence for two years following
departure from the United States or has received a waiver of this 2-year residency
requirement from the Attorney General.
(2) A "no objection" letter from the Embassy of Pakistan, the respondent's last place of
residence, does not constitute a "waiver" within the meaning of section 212(e) of the
Immigration and Nationality Act, 8 U.S.C. 1152(e).
(2) An alien who graduates from a medical eared not accredited by a body approved for

that purpose by the Commissioner of Education, and who is coming to this country to
perform services as a member of the medical profession is excludable unless he has
passed Parts I and II of the National Board of Medical Examiners Examination or its
equivalent. Section 212(a)(82) of the Immigration and Nationality Act, 8 U.S.C.
1182(a)(32), added by the Act of October 12, 1976 (90 Stat. 2300-2303), amended by the
Act of August 1, 1977 (91 Stat. 394), and effective January 10, 1977.
(4) An exchange visitor who filed an application for adjustment of status on August 7,
1976, while ineligible under section 212(e) of the Immigration and Nationality Act, 8

U.S.C. 1182(e), and who then came within the provisions of section 212(a)(32) of the
Immigration and Nationality Act, 8 U.S.C.1182(a)(32), is precluded from adjusting his
status despite the subsequent grant of a waiver by the Service on June 14, 1977 of the
2-year residency requirement under section 212(e) of the Act.
OHARGC

Orden Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained
longer than permitted
QN BEHALF OF SEuvwx:
ON BEHALF OF RESPONDENT:
Martin F. Spiegel, Esquire
Stanley J. Worn, Esquire
Trial Attorney
29 South La Salle Street
Chicago, Illinois 60608
By Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This case is before us on appeal from the immigration judge's denial
of a motion to reopen to apply for adjustment of status under section
462

Interim Decision #2814
245 of the Immigration and Nationality Act, 8 U.S.C. 1255. The appeal
will be dismissed.
The respondent is a 33-year-old native of India and citizen of Pakistan. He entered this country on June 29, 1974, at New York as an
exchange visitor and was authorized to remain until June 28, 1975. On
June 14, 1976, an Order to Show Cause was issued charging the respondent with deportability under section 241(a)(2) of the Act, 8 U.S.C.
1251(a)(2), as an alien who remained longer than permitted. The
respondent filed an adjustment application, Form 1-485, on August 6,
1976, based upon an approved third-preference visa petition. At his
deportation hearing on September 27, 1976, the respondent, through
counsel, refrained from requesting a decision on the adjustment application and did not even ask that it be incorporated in the deportation
hearing record. He reported that he was preparing to request that the
State Department recommend that the 2-year foreign residence requirement of section 212(e) of the Act, 8 U.S.C. 1182(e) be waived, and
he requested extended voluntary departure. He was found deportable
as charged and was granted 60 days voluntary departure.
On February 4, 1977, the respondent moved to reopen the proceedings.' The motion was denied on April 1, 1977, on the ground that the
respondent had failed to obtain a waiver of the 2 year residency
-

requirement from the Attorney General. The immigration judge found
that the "no objection" letter from the Embassy of Pakistan did not
constitute a "waiver."
On February 15, 1977, the Service received a recommendation from
the State Department that the respondent be granted a section 212(e)
waiver. The Service granted the waiver on June 14, 1977. Although
neither the State Department recommendation nor the Service waiver
appears in the record, the Service concedes that both documents were
issued.
The respondent again moved to reopen the proceedings on August
19, 1977. The immigration judge denied the motion on March 10, 1980.

Although the respondent had received a waiver of the foreign residency requirement under section 212(e) of the Act, the immigration
judge found that section 212(a)(32) of the Act barred his admission
into the United States. The respondent was therefore ineligible to
adjust his status. We agree.
On appeal, the respondent contends that all motions relate back to
the date that he first filed his adjustment application. Since that date
was August 6, 1976, 5 months before section 212(a)(32) became effec' While no formal "motion" appears in the record file. dated February 4, 1977, the
respondent on appeal refers to his "motions," which include a February 4, 1977, motion
and August 19, 1977, motion.
4“:1

Interim Decision #2814
tive, the respondent claims that he was not required to meet its
requirements.
Prior to June 14, 1977, the respondent's application for adjustment
of status could not have been deemed properly filed. See 8 C.F.R.
2452(a)(2). Section 245 of the Act provides that the status of an alien
who was inspected and admitted into the United States may be adjusted by the Attorney General to an alien lawfully admitted for
permanent residence if he is eligible to receive an immigrant visa and

is admissible for permanent residence. In pertinent part, section 212(e)
of the Act, provides that no person who was admitted under section
101(a)(15)(J) of the Act shall be eligible to apply for an immigrant visa
or permanent residence until he has resided and has been physically
present in his country of nationality or last place of residence for two
years following departure from the United States or has received a
waiver of this 2-year residency requirement from the Attorney
General.
Section 212(a)(32) added by the Act of October 12, 1976 (90 Stat.
22110 2302) and amended by the Act of August 1. 1977 (91 Stat. 394),
became effective January 10, 1977. As of January 10,197?, an, alien who
graduated from a medical school not accredited by a body approved for
that purpose by the Commissioner of Education and who is coming to
this country to perform services as a member of the medical profession
is excludable unless he has passed Parts I and II of the National Board
of Medical Examiners Examination (or its equivalent).
At the time the respondent filed his adjustment application he was
clearly ineligible to adjust his status inasmuch as he had failed to
obtain a waiver of the residency requirement. Once he had received the
waiver, he became eligible to< apply for adjustment. On June 14, 1977,
the date the respondent received a waiver and established his eligibility to apply for adjustment of status, section 212(a)(32) had gone
into effect which excluded the respondent unless he could establish
that he was exempt. The respondent has failed to establish that he was
exempt. The respondent has failed to establish that he passed Parts I
and II of the National Board of Medical Examiners Examination. The
respondent is therefore ineligible to adjust his status. Accordingly, the
appeal is dismissed.
ORDER: The appeal is dismissed.
-

464


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Interim Decision #2862

MATTER OF "M/V EMMA"
In Fine Proceedings
MIA-10/12.1461.1
Decided by Board April .1 7, 1981
(1) Under section 273 of the Act, any bringing of an alien to the United States who does
not meet the visa requirements of the Act incurs liability for a $1000 fine.
(2)There is no provision for mitigation of fines imposed under section 273 of the Act.
(3) Section 273(e) permits remission (foregiveness in full) only where prior to the carrier's
departure from the last port outside the United States, the carrier did not know, and
could not have ascertained by the exercise of reasonable diligence, that the individual
transported was an alien and that a visa was required.
(4) The carrier's liability for violations of section 273 is established by 1-94 forms which
indicate that passengers he brought to the United States were aliens who did not have
visas or other entry documents.
(5) The carrier is not entitled to remission under 273(c) on the basis of the argument that
he had implied consent from the United States government to bring Cuban refugees
to the United States because the government had not stopped private boat owners from
bringing such refugees to the United States.
(6)The carrier who proceeded to Cuba to pick up alien relatives in violation of the law and
bring them to the United States not only incurred a fine under section 273(c) as to the
relatives, but as to other Cubans whqm the government of Cuba forced upon the carrier,
since there was a failure of "due diligence" both in ascertaining the requirements of the
law and in placing the boat within the jurisdiction of the Cuban government under the

chaotic conditions that prevailed.
.– -In re: "M/V EMMA", which arrived at Key West, Florida, from Cuba, on June 5, 1980.
Alien passengers involved: Wises Carlos Dela Joe-Caballero, Lazard E. LawsonBrown, Orlando Moreno Camfillo, Eusebio Goitisolo Vildoste0o. Leonardo
Capote-Marrero, Eduards Suguerlies-Seuedero, Wilfredo Gonzalez, Manuel Miltares-Acosta, Ramon Perez-Ricardo, Erosuuo Reyes-Rauio, and Ciro Sanchez-Diaz
-

BASIS FOR FINE:

-

Act of 1952—See. 273(a) [8 U.S.C. 273(a)}—Bringing to the United States
aliens not in possession of unexpired visas

ON BEHALF OF CARRIER:

BY:

Nancy I. Fernandez, Esquire
201 Sevilla, Suite 310
Coral Gables, Florida 33134

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

In a decision issued on January 5, 1981, a District Director imposed
administrative fines totalling $10,000 upon Mr. Rene Rodriguez for bring-

40

Interim Decision #2862
ing 10 of the 11 above-named passengers to the United States in violation of section 273(a) of the Immigration and Nationality Act, 8 U.S.C.
1323(a). Pursuant to his prosecutorial discretion, the District Director
elected not to impose a fine in connection with the 11th passenger. Mr.
Rodriguez has appealed. The appeal will be dismissed.
The record shows that Mr_ Rodriguez and two associates departed
from the United States on April 25, 1980, bound for Cuba. On June 5,
1980, they returned to the United States with the above-named
passengers. The record contains a Form 1-94 for each of the passengers
(Exhibit I). These forms state that the passengers were aliens who did
not have visas or other entry documents.
A Notice of Intention to Fine was served on Mr. Rodriguez on the- day
of his return from Cuba, charging hint with 11 violations of section
273(a) of the Act; on the ground that he had 11 aliens on his boat who did
not have visas or other entry documents. Mr. Rodriguez filed a written
defense to those charges, and, on December 16, 1980, he appeared
before an immigration officer for a personal interview.

Mr. Rodriguez explained that he had been trying to bring his parents
to the United States from Cuba for 3 years when the boat lift operation
from Cuba started. He waited 4 or 5 days to find out whether the boats
going to Cuba would be stopped. When the boat lift operation had not
been stopped by the end of that period, he and two associates went to
Cuba to get 10 of their relatives. While they were in Cuba, they were
only able to bring three of their relatives on board their boat. However,
before they were permitted to leave Cuban waters, eight additional
passengers were put on board the boat by Cuban authorities. Consequently, although they had intended to bring 10 relatives back to the
'
United States, they bought. back 8 Strangers and only 3 relatives.
Section 273(a) of the Act provides that it shall be unlawful for any
person "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." Section 273(b) provides that the fine for each
violation of subsection (a) shall be $1,000.
It is important to emphasize that fines under section 273 of the Act
are imposed without regard to the intentions of the carrier. It is not
necessary for there to be a willful disregard of United States law. Under
section 273 the carrier becomes, in effect, an insurer that its alien passengers have met the visa requirements of the Act. Any bringing to the
United States of an alien who does not meet these requirements incurs
liability. Further, there is no provision for mitigation of such fines.
Matter of Swissair "Flight #104," 15 I&N Dec. 1 (BIA 1974). Section

273(c), however, permits remission (forgiveness in Tull) in one circumstance: where it appears that prior to the alien's departure from the last
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Interim Decision #2862
port outside the United States, the carrier did not know, and could not
have ascertained by the exercise of-reasonable diligence, that the individual transported was an alien and that a visa was required. What
constitutes "reasonable diligence" varies according to the circumstances
of the ease. Matter qt' "S.S. Florida," 3 I&N Dec. 1 (BIA; A.G. 1948).
In this case, Mr. Rodriguez contends that the record does not establish that the above-named passengers were alieris without visas or other

entry documents. Secondly, he contends that in any event fines should
not be imposed for the passengers who were forced upon him by Cuban
authorities. Thirdly, he contends that the United States government
gave implied consent to the boat lift operation by not stopping the
flow of private boats between the United States and Cuba.
We first find tht the 1-94 forms in the record establish that the
above-named passengers were aliens who did not have visas or other
entry documents. Secondly, we reject Mr. Rodriguez' argument that
fines should not be imposed for the passengers who allegedly were
forced upon him by the Cuban authorities. As stated above, fines under

section 273 are imposed without regard to the carrier's intentions. Any
bringing of an alien who does not have proper documents incurs liability.
We find further that Mr. Rodriguez has not established a basis under
section 27(c) of the Act for remission of his fines. We are not persuaded
by his argument that he departed for Cuba on April 25, 1980, with
"implied consent" from the United States government to bring Cuban
refugees to this country. It was not reasonable for him to infer such
consent from the fact that private boat owners were still bringing Cuban
refugees to the United States after 4 or 5 days had passed. In any event,
however, it was not reasonable diligence on his part to rely upon such an
inference without making any inquiries, and he has failed to establish

that he could not by the exercise of reasonable diligence have ascertained the requirements of the law. Furthermore, if he had exercised
reasonable prudence, he would not have placed himself and his boat
under the jurisdiction of the Cuban government in the face of the chaotic
circumstances that existed in Cuba at that time. We conclude, therefore,
that remission of the fines is not warranted.
We conclude that the decision of the District Director is correct_ The

appeal, accordingly, will be dismissed.
ORDER: The appeal is dismissed.

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