Interim Decision #1515

MATTER

.or DE Lirmt*

In Deportation Proceedings
A-11129289
Decided by Board April 21, 1966
(1) Claim of prejudgment is rejected absent evidence the outstanding order
of the Attorney General has not been followed which directs all Service Ind
Board officers exercising hearing powers to use their "Independent judgment" and "give each alien a fair and impartial tria:without prejudgment."
(2) Alleged undue publicity in the press does not preclude a fair deportation
hearing; neither does Government refusal to permit counsel for respondent
to review a character investigation report, not introduced into evidence; nor
does denial of respondent's request to subpoena certain Government officials
where it is clear from the record their testimony would not have been relevant to the issues of relief under sections 249, 212(h) and 243(h).
(3) In finding a lack of good moral character for the purpose1 of section 249
of the Act, the special inquiry officer did not err in considering respondent'' ,
ilegambnctvsi1962,hmpronetfJuly193Odeber 1961, and his failure to testify truthfully during the reopened hearing.
(4) Notwithstanding respondent's long residence and close family ties in the
United States, since the creation of a record of admission for permanent
residence pursuant to section 249 of the Act, as amended, is a matter of
administrative grace, his application therefor is denied where he has submitted no afflrmative emaenee or nix genuine reformation or rehablittatiOn
and by his equivocal answers and his refusal to answer relevant questions
during the hearing he has failed. to 'come forward with full information
within his knoWledge regarding his. activities which has a direct bearing on
his application.
(5) Reopening of proceedings for the introduction of additional evidence on the issue of political persecution is denied as no purpose would be served
thereby since ample evidence of record affirmatively establishes that respondent, if deported to Italy, would not be subject to persecution within the
meaning of section 243(h) of the Aet, as amended by Public Law 89-236,
because of his •criminal
record in the United States.
••
,

-

■

OnenaEs •

Order: Act of 1952--Section 241(a) (1) 18 U.S.O. 1251(a) (1)3—Excludable
' by the law existing at the time of entry, to wit: a
*Affirmed, Le Lucia v. immigration and Naturatientjan Service, 370 F.2d 305
(0.A. T, 1966).
565

Interim Decision #1575
person who has not presented an unexpired passport

or official document in the nature of a passport
issued by the government to which he owes allegiance, or other travel document showing his origin
and identity, as required by the Passport Act of
May 22, 1918, and the Executive Order in effect at
the time of entry.
Act of 1952—Section 241(a) (1) [8 U.S.O. 1251(a) (1)]=Excludable
by the law existing at the time of such entry, to
wit: a person who has been convicted of a felony or
other crime or misdemeanor involving moral turpitude prior to entry into the rnited States, under
section 3 of the Act of February 5, 1.017, -to wit:
voluntary homicide.

The respondent is a native of Italy. He has been found deportable under the provisions of section 241(a) (1) of the Immigration
and Nationality, Act as an alien who was excludable at the time of
entry, in that, he did not present the required immigration documents
and had been convicted of a crime involving moral turpitude prior
to entry, to wit, voluntary homicide (8 U.S.C. 1251(a) (1) ).
The case was last before us in September of 1064. An order -en-

tered on that occasion granted. the respondent's motion to reopen the
proceedings. for the "limited purposes" mentioned in. a stipulation
between opposing counsel which was approved by the Court of Appeals for the Seventh Circuit on August 27, 1964. Pursuant to the
Board's order, reopened hearings. were accorded the respondent in '
November 1964, February, March and June 1965.
The respondent has applied for the creatiqn of a record of his lawful entry pursuant to section 249 of the Immigration and Nation-

ality Act (8 U.S.C. 1259) ; a waiver of the criminal ground of inad- .
missibility under section 212(h) of the Immigration and Nationality Act, as amended (8 U.S.C. I182(h)) 'which if granted would
remove an existing bar to relief under section 249 (supra) and the
withholding of his deportation to Italy under the provisions of section 243(h) of the Immigration and Nationality Act (8 V.S.C.
1253(h)'). The 'special inquiry officer in an circler entered on October 25, 1965 denied the respondent's applications for discretionary
relief and ordered his deportation to England. An alternative order
The "limited purposes" set forth in the stipulation provide in substance that
the case be remanded to the Board of Immigration Appeals on motion to reopen "solely for the purpose of presenting to a special inquiry officer (the
respondent's) application for relief under section 243(h) of the Immigration
and Nationality Act and for any other discretionary relief to which he deems
himself entitled and to have the special inquiry officer designate the country to
which deportation shall be effected." There is also a provision in the stipulition which provides that the respondent will waive any discretionary relief
now minable to him foi.•which he does not apply during the reopened hearing.

566

Interim Decision #1575
of deportation to Italy was also entered if England is unwilling to

accept him. The respondent's appeal from this order is now before
us.
'The respondent is a male alien, 67 years of acce. He last entered
theVnited States through the port of New York on August 12, 1920.
He was found deportable in 1959 as an alien who had entered the
United States without proper documents and as an alien who had
been convicted of voluntary homicide in 1917,' a crime involving
moral turpitude committed prior to entry: The order of deportation was affirmed, by the Circuit Court of Appeals for the Seventh
Circuit in 1961. De Lucia v. Flagg, 297 F.2d 58, cert. den. 369 13.S.
837. The respondent is married to a lawfully resident alien and is

the father of two male American citizen children; veterans of World
War II and a -female American child, the mother of his five grandchildren.
The record created during the reopened' hearings consists of some
370 pages of testimony and more than 130 exhibits. Extensive briefs
and supplemental briefs submitted by counsel for the alien and the
Deputy General Counsel of the Immigration Service are before us
for consideration. The record, the briefs and oral argument }rave
been thoroughly reviewed. Our decision, however, will be limited
solely to a determination of whether the respondent has been accorded a fair hearing and to a determination. of whether an exercise
of the Attorney General's discretion is warranted with respect to
relief under sections 249, 212(h) and 243(h) of the Immigration
and Nationality Act (sutra):
THE ISSUE OF WHETHER TEE RESPONDENT HAS BEEN
ACCORDED A FAIR HEARING

Counsel for the respondent maintains that his client has not been
accorded a fair hearing during the reopened proceeding. He alleges
that the special inquiry officer prejudged the respondent's applications for discretionary relief; that respondent's case has been prejudiced by undue publicity in the press; that there was prejudicial
error in that respondent was not permitted to examine a. character
investigation report and that favoritism was shown the G-ovirriment in the issuance of subpoenas and during the cross-examination
of the respondent whereas respondent's request to subpoena certain
local and Government officials and to cross-examine Government
witnesses was, wholly denied or extremely limited.
We find no substance to counsel's claim that the respondent has
been denied a fair hearing on his applications for. discretionary
relief.
567

Interim. Decision #1575
The respondent supports his claim of -prejudgment by a series 'of
exhibits (A 106 through. 124) which he alleges establish that all
Attorneys General since May of 1952 and some of the Commissioners
of Immigration and Naturalization have stressed the desirability of
giving top priority to the deportation of aliens alleged to be in a
class referred to as "racketeers." Counsel argues that published
statements of the various Attorneys General including the incumbent
Attorney General and certain Commissioners of Immigration and
Naturalization have committed officers within the Immigration
Service to an adverse course of action and bias against any alien
purported to be within the so-called "racketeer" .class.

Similar .claims have been made in previous cases decided by this
Board.2 S WI claims have been supported with some of the documentary eiddence now before us. There was a claim of prejudgment

the Accartli and Marcello cases when they were before the Su
preme Court of the United States.. The claim of prejudgment was

ill

rejected in both instances.'
We reject the claim of prejudgment in the instant case for the
reason that respondent has failed to introduce any substantial evidence that the incumbent Attorney General or the incumbent Commissioner of Immigration and Naturalization has issued an expressed
or implied directive to rule adversely on the respondent's applications for discretionary relief. In fact, there is an outstanding order
of the Attorney General, issued April 23, 1954, which directs all

officers exereisitg hearing powers in the Immigration Service and
the Board of Immigration Appeals to exercise their power "fully and

faithfully" and use their "independent judgment and . . . discretion
as the regulations confer upon them . . . Those charged with the
duty of hearing and deciding (cases) must give each alien a 'air
and impartial trial without prejudgment ..." 6 We find no evidence
that the order of the Attorney General has not been followed in this

proceeding.
Counsel argues that the respondent is entitled to an evidentiary
administrative hearing solely on the issue, of prejudgment of his applications for discretionary relief. He relies on. a decision by the
June 1953.
." Matter of Marcella, 5 I. & N. Dec. 261,
shouchneasy v. Amara, 349 U.S. 280 (1955) ; Moreau v. Bonds, 349 U.S.
302 (1955)
`At this stage of the proceeding counsel has made no claim that the Board of
Immigration Appeals has prejudged the respondent's applications for discretionary relief. The Board is not bound .by the special inquiry officer's order
and has full power of decision on issues of fact, law or discretion. Cf. Matter
of B—, 7 I. & N. Dec. 1 (A.G., 1956).
s See Order No. 48 54 of the Attorney General ente ed as Exhibit A 11.
,

r

-

568

Interim bepision. *1575
Circuit Court of Appeals for the District of Columbia in the case'bf
Bufalino v. Kennedy, 322 F.2d 1016 (June 1963) and a recent order
of Judge Oliver Gasch of the United States District Court for the
• District of. Columbia signed on February 23, 1966 (Civil Action No

486-61).
We find counsel's plea for a separate • evidentiary hearing on the
- issue of prejudgment without substance. Counsel has made no claim
that this Board has prejudged the respondent's applications for discretionary relief. This Board has full power of decision with regard
to the special inquiry officer's interpretation of the law, the facts and
the exorcise of the discretionary relief the respondent seeks.

Furthermore, the instant case is distinguishable from Buff alino
(supra). Bufalino's applications for relief under sections 249 and
243(h) of the Inamigrition. and Nationality Act were denied by the
District Director at Philadelphia, Pennsylvania and his order was
thereafter affirmed by the Regional Commissioner. Both of these
officials are charged with enforcement duties. The action' here under
considerition has been taken and is being reviewed by officials of the
Department of Justice who are concerned solely with adjudicative
functions and the record contains a specific directive of the Attorney
General which commands these officials to exercise their own independent judgment and give each alien a fair and impartial hearing
without prejudgMent (supra s) . There has been no judicial finding
in the case before us that a prima fade case of prejudgment has been
presented by the present record.• We find no substance to counsel's
plea for a separate evidentiary hearing on the issue of prejudgment
in light of our review of the record before us.
Counsel also maintains that the respondent's hearing has been
rendered unfair and that his applications for relief have been prejudiced by the fact that the case has received undue publicity in the
press. 8 OFIt'242.16(a) provides in part that "Deportation hearings shall be open to the public, except that the special inquiry officer
may, in his discretion and for the purpose of protecting witnesses,
respondents, or the public interest, direct that the general public or
particular individuals shall be excluded from the hearing in any
specific case." We find nothing in the record. which indicates that
counsel for the respondent requested a closed hearing for the purpose
of proticting the respondent or any of his witnesses from any undue
Publicity which a: case such as this would normally produce.
Counsel alleges that thi publicity in this case created such an atmosphere that the "fountain of justice was poisoned at its source
. . -Before the hearing began" (record of oral argument, p. 3) and
• that under these circumstances it was impossible for the special in,569

Interim Decision #1575
quiry officer to give the respondent a, fair hearing. Again, counsel
has submitted no substantial evidence to support his allegations. At •
page 220 of the transcript -of the record, the special inquiry.officer
stated, "I intend to make my decision in this matter on the evidence
in the record and not on the basis of any newspaper stories ... this
matter is not being tried before a jilry, and I'm, the person that (is)
going to consider the evidence." At page 376 0 of the record, the
special inquiry officer made a similar statement when denying counsel's motion for a change of venue. At page 29 of his opinion the
special inquiry officer stated he would disregard. "preis releases and
newspaper reports relating to the respondent (and) submitted, by raspondent's counsel."
Counsel asserts that the respondent has been prejudiced and his
hearing rendered unfair by reason of the fact th)t the Government
refused to permit examination of a character investigation which the
trial attorney concedes was intensive but which Was not offered in
evidence by the Government. Counsel maintains that an intensive
examination of the respondent could not fail to develop some favorable factors- in support of his (respondent's) application for discretionary relief. Counsel takes the position that "fair.play" requires
the Government to present all the evidence at its disposal and that
the Government should. not' e a party to the suppression of evidence.
An, alien who applies for discretionary relief •has the burden of
establishing his eligibility therefor. Matter of T—A.5-1 7---,7 I. & N.
Dec. 582, B.LA. (September 1957) ; Matter of 7—, 7 L & N. Dec.
697, M.A. (March 1958). • The trial attorney stated for the record s
that there was "no favorable evidence that I know• of'‘(presumably
in the character investigation report) and that counsel for the-respondent was "at liberty to introduce any .favorable evidence (that he
felt would) help (his) cam!' (R pp: 253-254) The respondent did
not produce a single character witness to support. his claim of good
character. Since the Government did not introduce the character
report in evidence, counsel for the respondent was not entitled. to
review it. '

Respondent, through counsel, asserts that he was not accorded
equal treatment with the Government in that his requests for the
subpoenas of witnesses were wholly denied. whereas the Government's
written application for subpoenas submitted. in advance of the hearing was graiited. As we view the record there has been full Compliance with 8- CFR 287.4, the regulation governing the issue of subpoenas. We note that the Government did not call any of the witnesses who had been subpoenaed prior to the start of the hearing.
We find no error in the special inquiry officer's denial of respond570

. • Interim Decision #1575

ant's request to subpoena certain Government officials since it is
clear frcira e the record that their testimony would not have been
relevant to the issues of relief under sections 249, 212(h) and 213(h)
of the immigration. and Nationality Aet and would have only cluttered the record with negative evidence.
Counsel asserts that the Government was. permitted unlimited
cross-examination of the respondent whereas had' the respondent
sought to recall an adverse witness he would have been severely limited (R-255, et seq.). He maintains 'that the respondent had been
thoroughly cross-examined on three days by the original trial attorney and that tho substitute trial attorney sought to reexamine him on
matters already in the record. Section 242(b) of the Immigration
and Nationality Act (8•U.S.C. 1252(b)) provides the special inquiry
officer with ample authority to permit such cross-examination of an
alien as he deems appropriate for a proper disposition of the case.
Where the exercise of discretion is the issue before the special inquiry
officer,,he is pernxitted wide latitude in seeking the truth and exposing falsehood. We find no substance to counsel's allegations that the
special inquiry officer's rulings in this area denied the 'respondent a.
fair hearing. Cf. Matter of S—, 5 L & N. Dec. 60, 33.I.A., January
1953; Matter of T , 9 I. & N. Dec. 646, May 1962.
—

CREATION OF A RECORD OF LAWFUL ADMISSION UNDER SECTION
'249 OF THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED,
AND WAIVER. OF THE CRIMINAL GROUND OF EXCLUSION PURSUANT 'TO, SECTION 212(h). 'OF THE SAME ACT (AS AMENDED) (g
U.S.C. 1259 AND 1182(h))
.

The respondent seeks to set aside the outstanding order of deportation by the exercise of the discretion granted the Attorney General
pursuant to section 249 of the Immigration and Nationality Act, as
amended (8 U.S.C. 1259). This provision of, the statute authorizes
the Attorney General, "in his discretion," to create a record of lawful
admission in the case of any alien who has "no, such record ... otherwise available and who—
(a) entered the United States prior to June 30, 1948;
(b) has had his residence in the United States eontinuously:since
such entry;
(a) is a person of good moral character; and
(d) is not ineligible to citizenship; . . . provided the alien 'is not•

inadmissible under section 212(a) in so far as it relates to
criminals, procurers and other immoral persons . .
e
° There . are other classes

of inadmissible aliens not pertinent here.

571

Interim Decision #1575
In conjunction with an application for the creation of a record of
lawful admission an otherwise eligible alien who is inadmissible as

n criminal under paragraph (9) of section 212(a) of the Act "may

request a waiver of such ground of inadmissibility pursuant to the
provisions of section 212(h) of the Act, as amended" (8 CFR 249.1).
The respondent meets the statutory requirements of section 249 of
the Immigration and Nationality Act in so far as they relate to the
nonexistence of a record of his lawful admission for permanent residence; his entry prior to June 30, 1948; his continuous residence in
the United States subsequent to such entry and his eligibility for
citizenship. The only issues before us in connection with the eligibility of the respondent is whether he is a: personof good moral character and warrants an adjustment of his immigration status as a matter
of discretion.
The respondent has the burden of establishing that he is eligible

for the relief he seeks and that he should be granted such relief in
the exercise of the Attorney General's discretion (8 CFR 242.17(d) ).
The special inquiry officer finds that the respondent has not met this
burden.
When an

alien seeks the favorable exercise of the. Attorney General's discretion, it is incumbent upon him to supply such inforination that is within his knowledge and is relevant and material to a
determination of whether he is a person of good moral character
(of. Matter of Amando Afariani, Int. Dec. No. 1478, B.1.1., June 8,
1965; Kim v. Rosenberg, 363 U.S. 405, 42 L.ed. 2d 1299 (1960) ;
Mated Stater,' v. Anastasio, 120 F. Supp. 435 (D.C. N.Y., April 1954),

reversed on other grounds 226 F.2d 912, cert. den. 351 U.S. 931).
The special inquiry officer concludes that the respondent has not
established that he is a person of good moral character and accordingly is not statutorily eligible for relief under section 249 of the
Immigration and Nationality Act, as amended. The evidence supporting this conclusion is fully set forth in the special inquiry officer's
opinion of October 25, 1965. It is incorporated herein by reference
and will not be repeated.
The special inquiry officer refers to three basic reasons for denying
respondent's application for relief under section 249 (supra-). He is
convinced that the respondent did not testify truthfully during the
reopened hearings. He gives considerable weight to the fact that the
respondent was in prison for over 20 months during the five-year
period immediately preceding the filing of his application under section 249 and he gives weight to the respondent's admitted large -- scale,

illegal gambling activity 111_1962 (p.. 40, special inquiry officer
opinion).
572

- Interim Decision #1575
During the course of the -hearing, the respondent on numerous occasions, on advice•oPcounsel, refused to comply with the special inquiry officer's directive that he respond to questions concerning his
assets, income and activities (R pp_ 54 339). For example, the
respondent refused to answer relevant questions concerning his criminal convictions in Italy (pp. 269-272) ; his entry into the -United
States under an assumed name (pp. 272-274) ; his fraudulent naturalization (pp. 276-282) ; his conviction in-1944 for conspiracy '
to commit extortion (pp. 282-284) ; his conviction for income tat
evasion in 1957 (pp. 286-288) ; and the source and nature of his income over a period of 36 years (pp. 289-293-297-298). Furthermore, the respondent gave equivocal answers to many questions which should have been within his knowledge and which we
deem relevant to a determination. of 'whether discretionary relief is
-

warranted. He did not remember in whose names some $64,000 in

Government bonds were held at the time he entered jail—"I think
they were in my name or my wife . I don't 'remember." He did
not remember financial transactions involving large sums of money
which occured while he was in jail and which were reported on his
1961 tax returns (pp.. 307-310).
When questioned as to "Where did the money come from to buy
the bonds?" the respondent answered, "I don't remember buying
any bonds." (pp. 311, 312) and he could not explain-how he could,,
make such large financial transactions while he was in jail (p. 316).
He refused to explain where he obtained $101,000 in cash to pay his
income taxes for 1948, 1949 . and 1950 (p. 317). He refused to explain the nature of some $89,000 listed as miscellaneous income in his
1964 income tax returns (p. 318). He declined to furnish a break
down of his race track winnings for 1964 (p. 320) and also refused
to answer the question, "During 1964 did you receive payments of
any kind from any person, group or organization other than the interest payments and the race track winnings listed as miscellaneous
income on your 1964 income tax return?" (p. 324) He refused to
bring in his personal records of the income he received during the
past three years . although he admitted keeping such record (p. 327).
The respondent in-answer to a question which referred to the fact
that he won approximately $91,000 in a period of one and a half
months preceding the time he went to jail testified, "I can't help it
if I win in 30 or 60 days $91,000." (p.s334435)
The respondent's refusal to furnish information which is peculiarly within his knowledge is a factor which may be considered by •
the special inquiry officer in exercising the Attorney General's
ereticm. (Int. Dee. No. 1478, supra).
573

An alien seeking a favorable

Interim Decision #1575',
exercise -of discretion cannot limit the inquiry to the favorable as-

pects of the case and reserve the right to be silent on the unfavorable
aspects. Matter of Y—, 7 I. & N. Dec. 697, 700, B.I.A., March 26,
1958. We 'find on this record a sound: basis for the special inquiry
officer's conclusion that the respondent did not testify honestly and
truthfully and was concealing facts within his knowledge.
Counsel urges that the respondent's illegal gambling activities in
1962 furnishes no basis for the special inquiry officer's conclusion
that the respondent is not a person of good moral character. While
it is true that section 219 of the Immigration and Nationality Act, as
amended, does not require an applicant for relief to establish good
moral character for any specified period of time, nevertheless, we
believe that an illegal $10,000 bet on the World Series and an illegal
$15,000 wager on a prize fight in 1862 are factors properly considered by the special inquiry officer in reaching a conclusion as to-iiiilther the respondent is a person of good moral character (11-pp. 130131). The respondent, in fact, testified that for, most of his life he
has derived his income principally from betting on horse races (pp.
97 & 98). According to the record his last.profitable employment asthe owner of a business was in 1922-1923 when he operated a restaurant (p. 165). We find no error on the part of the special inquiry officer in considering the respondent's illegal gambling activities as a factor, in reaching a conclusion that relief is not warranted
on this record.
Counsel maintains that the respondent's incarceration from July
1, 1959 until his release on parole in October of 19'61 is not a factor-

which should be considered by the special inquiry officer in reaching
a conclusion as to whether respondent is a person of good moral
character because section 249 only requires a finding of present good.
moral character. We. do not agree with counsel? Section 101(f)
of the. Immigration and Nationality Act (8 U.S.C. 1101(f)) is the
congressional expression of standards which must be adhered to in
making a finding of good moral character "for the purpose of this
Act," namely, the Immigration and Nationality Act. The statuteI Section 101(f) of the Immigration and Nationality Act reads in part as follows: For the purpogea of this Act—)To person shall be regarded as, or found
to be, person of good moral character 'who, during the period for which
good -morel character is required to be established, is or was (7) one who
during such period has been confined, as a. result of conviction, to a
penal institution for an aggregate period of one hundred and eighty daysor more, regardless of whether the offense, or Offenses, for which he had been
confined were committed within or withdut such period.' (Bmphasis supplied.).

574

Interim Decision #1575
provides the special inquiry officer with the alternative . of making a
finding of good. moral character as well as an expression of whether
he "regards" the person seeking discretiongry relief to be a person of
.rood moral character. It has been held that the standards set forth
in section 101(f) (supra). should be taken into consideration, along
with other factors, in determining whether the requirement of good
Moral character has been met. Matter of P.—, 8 I. & N. Dec. 167,
169 (1958).
We realize that good moral character does not mean moral excellence. We are also aware of the fact that moral standards differ
from time to time and from place to place. We do not believe that
a person's good moral .character is lost by a single lapse .over an
atended period of time. This respondent, however, has made no attempt to introduce evidence which would establish that he measures
up to the standard of the average Ameiican citizen as it exists today_
It mulct be said that on this record thirespondent's reputation would
pass muster with that of an average man or that he is regarded as a
person of good moral- character.

While there is substantial evidence which supports the special inquiry odder's finding that the respondent is not a person of good
moral, character and therefore statutorily ineligible for relief under
section 249, we prefer to deny relief as a matter of administrative
discretion for the reason that the respondent, as an applicant for administrative grace, has not come forward with full information that,
_is within his knowledge. The information sought hai a direct bearing on his application for relief under section 249 of the Immigration
and Nationality Act, as amended (supra). An applicant for the
creation of a record of his lawful admission for permarient residence
has the burden of satisfying the Attorney General that an exercise
of discretion is warranted. Under the circumstances, he must, upon
the request of the Attorney General or some one acting for him,
supply such information that is within his knowledge and has a direct bearing on his eligibility for relief under the statute. We w,i,;11
deny the respondent's application for relief under section 249 of the
Immigration and Nationality Act, as amended, as a matter of administrative discretion.
The need for a wailer of the criminal grounds of inadmissibility
under section 2124h) no longer exists because the record of the respondent's lawful admission for permanent residence will not be
treated. Under the circumstances, the respondent's application for
relief under section 212(h) of the Immigration and Nationality Act
becoMes moot.
575

Interim Decision' #1575

•

THE APPLICATION FOR A STAY OF DEPORTATION UNDER SECTION

243(h) OF THE IMMIGRATION AND NATIONALITY ACT (8 U.S.C.
1253(h))•
Pursuant to section 243(a) of the Immigration and Nationality

Act, the respondent designated England as the country to which he
wished to be deported in the event an order of deportation was entered (p. '29). The order entered by the special inquiry officer on
. October 25, 1965 directs his deportation to England provided that
country is Willing to accept him, otherwise to Italy, the country of
his birth and the country from which he last entered the United
States.
The respondent applied for the withholding of his deportation to
Italy pursuant to section 243(h) of the Immigration and Nationality
Act (8 U.S.C. 1253(h)) (Ex. A 61). The affidavit supporting respondent's applicationestates in substance that his criminal record in
the United States and the fact that he has been described by public
officials us a "racketeer" and as one of the leaders of the Chicago
"Cosa Nostra" would render him subject to severe limitatjions and
punishment if returned to Italy. He also Claimsthat his deportation
to Italy would injure him physically and mentally because he would ;
be separated from his family and is in Constant need of medical cafe
The evidence supporting the respondent's application for relief is
fully discussed in the opinion of the special inquiry officer dated
October 26, 1965, and will not be repeated. 'file discussion is incorporated herein by reference (pp. 47-52, special inquiry officer
opinion).
The hearing on the issue of withholding deportation' was con- •
ducted and the decision of the special inquiry officer was rendered
prior to the effective data of the amendment of the Immigration and

Nationality Act by Public Law 89-236 (December 1, 1965). Public
Law 89-236 was enacted, however, on October 3, 1965. The special
inquiry officer in his decision of October 25, 1965 fully considered the
respondent's application for relief under section 243(h) in light of
the amended version of the statute 8 which became effective on December 1, 1965.
Counsel urges that if the amended version of section. 243(h) is to
be applied in the instant case then respondent should be afforded an

opportunity in a reopened hearing to prove that he would be perseCuted for political reasons under the Italian law presently in force.
Counsel proposes to show at v. reopened hearing that political conSection 243(h) of the Immigration and Nationality Act (8 U.S.C. 1258(h))
was amended by striking the term "physical persecution" and inserting'in lieu
thereof "persecution on account of race, religion or politick' opinion."

576

Interim Decision #1517,i
stderations decide whether Italy would exile a deportee in the respondent's position of a stateless person without any rights of Ital-

ian citizenship.
The respondent has had ample opportunity to introduce evidence
concerning his claim that he would be "persecuted for political reasons." The record contains an affidavit on Italian law prepared. by
Dr. A. Luini .del Russo (Ex. A 62) and her testimony in another
case involving an application for relief under section 243(h) e the
deposition of Paola Alberto Rossi taken at the American Embassy - in
Rome, Italy on March 1, 1965 (Ex. A 102) and an official communication from the Italian- Government entered as Exhibit A 134.
It is clear from the testimony of Dr. Russo and Feeds _Rossi that
the restrictions imposed by the Italian Publie Safety Act of 1956
(Ex. A 102) apply generally to all Italian citizens and are not di:
rected solely against criminal deportees from the United States. The
"Note Verbale" from the Italian Ministry of Foreign Affairs -(Ex.
A 134) states in part: "A person deported from the United States

for criminal activities is free to select his place of residence in Italy
... A deportee is not subject to police measures, unless he gives rise
to suspicion that he is engaging in illicit activities . . . or associating with people of reputation... It may be useful to add in this connection that the party concerned (respondent) has the right to appeal to a court of appellate jurisdiction and eventually to the Supreme Court against the decision whereby restricted measures" are
assessed on him."
The Italian Foreign Ministry. also stated that there were some MOO

persons now in Italy who were deported from the 'United States
of America for criminal activities. "Although many of these persons
were deported for serious criminal violations committed in the United
• States of America, none of these 200 deportees is at present subject to any special restrictions under the Law of December 27, 1956.
There is no provision of law now in force in Italy under which police
restrictions can be imposed on persons who have committed crimes in
other states in the past, whose conduct is now irreproachable and
law abiding." (Ex. A 134)
We do not believe any purpose would be served in remanding the
case to afford the respondent an opportunity to introduce additional
evidence on the issue of "political persecution" in light of the official
communication from the Malian Ministry of Foreign Affairs intro- •
duced in evidence as Exhibit A

pi. Furthermore, the testimony of

the respondent's witnesses, Dr. Russo and Paola Rossi, we believe
supports the position taken by the Ministry of Foreign Affairs of
'Matter 07 Parfet, A-81£46T63,

December 7. IMO.

577

Interim Decision #1575 the Italian Government. There is ample evidence now of record
which affirmatively establishes that the respondent cannot satisfy
the statutory requirement that-he would be subjected to persecution
in Italy "on account of race, religion or political opinion" (section

243(h) as.amended by Public Law 89-236).
Counsel argues that the statement of the Italian. Foreign Ministry
is not admissible as evidence unless an. official of the Italian Government is produced for cross-examination. We note that it was respondent's counsel who originally requested that the statement be obtained from the Italian Government: Furtherinore, relief under section 243(h) is a matter of discretion and as such the respondent does
not have as a matter of right, the cross-examination of witnesses as
provided in section 242(b)-(3). Discretionary action by its very nature permits wide latitude to the authority charged with-its exercise.
The Attorney General may consider any evidence which would be of

assistance in formulating "his opinion •(that) the alien would be
subject to persecution on account- of race, religion or political opinion." Dolma v. Shaughnessy, 206 F.2d. 392 (CA. 2, 1953) ;
Evenly, 299 F.2d 244 (CA. 2, 1961), cert. den. 1369 U.S. 844;
igantisani v. Holton, 248 F.2d 737 (CA. 7, 1957).
Counsel maintains that under the savings clause of the 1952 Act
(section 405(a) ; 8 U.S.C. 1101, footnote) the respondent's application for a. stay of deportation. under section 243(h) must be judged
by the law existing prior to its amendment by Public Law 89-236.
Counsel cites no authority to support this contention. It is well established. that -where a statutory provision as to administrative dis-oration is changed between the hearing before the special inquiry offi-ter and:_ final decision by this Board we must apply the amended version of the law. Poti v. Immigration thad Natetralimtinn &ram,
332 F.2d 424 (CA. 2, May 1964) ; Patsis v. Immigration and Natwra712ation Service, 337 F.2d 733, October 1964; cf. Matter of George,
Int. Dec. No. 1533, B.I.A., December 16, 1965. ,
We affirm the order of the special inquiry officer denying respondent's application for withholding of deportation to Italy pursuant
to the provision's of section 243(h) of the Immigration and Nationality Act as amended by Public Law 88 236, effective December 1, 1965.
-

THE LEGALITY OF THE ORDER DIRECTING DEPORTATION
TO ITALY
Counsel contends that the deportation order entered by the special

inquiry officer is illegal for the reason that there is no evidence of
record that the Italian Government is presently willing to accept
the respondent as a deportee. Counsel takes the position that section 243(a) of the Immigration and Nationality Act (8 U.S.C.
578

Interim, Decision #1575
1253(a.)) provides for orders of 'deportation to alternate countries
only where such country is willing to accept the alien: He cites
in support of his position three•cases concerned with actions brought
by Chinese aliens contesting the execution of orders of deportation
to either Communist China on the mainland or the Nationalist
Government of China on Formosa." We note that counsel did not
raise this issue before the special inquiry officer (R—p. 29).
The cases cited by counsel are easily distinguishable from the case
before us. This case does not present the problem which often
confronts the Government in dealing with aliens of Chinese origin
who were born on the mainland of China prior to the .time the

. Nationalist Government . (recognized by the United States) was
forced to withdraw to Formosa. The cited cases • are concerned
with the execution of an' order of deportation and not' with an
administrative determination of the place of deportation in accordance with the provisions of 8 CFR 242. '8 CFR 242.8 provides the
special inquiry officer' with authority "tO. determine deportability,
.. (and) .. to determine the.country to Which an alien's deportation will be diitected in accordance with section 2,48(a) of the
Act . ." •(8 U.S.C. 1253(a)).
Where there is p,11 ancillary metier before the special, inquiry
officer, such as an application for a temporary withholding of deportation pursuant to section 248(h) of the Immigration and Nationality Act (8upra)i the current regulation (8 CFR 242.17(c))
provides that .the alien shall be notified.of his right to designate
the corn-try to which he•wishes to be deported and that the special
inquiry officer's order shall direct the alien's deportation in the first
instance to the country so designated. 8 CFR 042.17(c) also provides: "The special inquiry officer. shall then' (namely, after
directing deportation to. the deb: country) specify and state
for the record. the country or countries in the .alternatei 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 special inquiry officer's order complies fully with the procedural pattern shelled out by the statute and the regulations set
forth in. 8 CFR 242. The special inquiry officer's decision makes a
finding that the respondent is "a native of Italy, who claims he is
-

"La V. Rogers, 164 F. Saint 320 (D.C: DC. 1958), aff'd 262 F.2d 471
(0.A. D.C. 1958) ; U.S. es reL Torn Man v. Shaughnessy, 142 F. Stipp. 444, D.C.
(1956) ; a S. es re/. Lee Ming Hon y. ffhaugAneaag, 142 F. Stipp. 468
(D.C. S.D.N.x. law).

579

Interim Decision #1575
now stateless" (p. 2 of the special inquiry officer opinion). The
record establishes that the respondent last entered the United States
through the port of New York on August 10, 1920 and that his last
'place of residence prior to entry was Italy (Pm. A '75)_ Section
243(a) of the Immigration and Nationality Act (8 U.S.C. 1253(a))
specifically states that an alien may be deported "(1) to the country from which such alien last entered the United States; (and)
(3) to the country in which he was born" unless the country
•designated by the alien is willing to accept him. Accordingly, we
find no basis for counsel's assertion that the order entered by the
special inquiry officer is illegal. It is elementary that before such

'a claim of illegality can be made there must be a final order of
deportation after appropriate administrative and judicial review.
'Otherwise, there would be no point in negotiating with a foreign
country to determine whether it will accept a deportee,.

Counsel also urges error in that, the order entered by the special
inquiry officer does not conform to section 8(b) of the Administrative Procedure Act which requires findings of fact, conclusions of
law together with the reasons or basis for the administrative action
on material issues of fact, law and discretion. find no error.
The special inquiry officer's decision does make a finding with regard to the place of the alien's birth and there is evidence of record
that Italy is the country of his last residence 'prior to entering the
United States (p. 2, special inquiry officer opinion and Ex : A 75).
Furthermore, the procedural requirements of the Administrative
Procedure Act are not applicable to deportation proceedings under
the immigration laws. Marcella v. Bonds, 349 U.S. 302, 99 Led.
1107 (1955). There is no requirement in either the statute or the
regulations that the special inquiry officer make formal findings of
'fact and conclusions of law to support an order deporting an alien
to a foreign port or place.
We find no substance to counsel's claim that the order entered
by the special inquiry officer directing the respondent'sp,alternate
deportation to Italy is illegal. The order is hereby affiimed.
CONCLUSION

The respondent, now 68 years of age, has resided in the United
States for more than 45 years. He last entered the United States
, with fraudulent documents on August -10, 1920. He married a
lawfully resident alien in 1927 (pp. 109 110). Three children have
been born of the marriage, a daughter and two sons. Both of the
respondent's sons served in the United States Army and were
-

honorably discharged. There is evidende that one of his sons is
580

Interim Decision #1575
mentally ill but capable of handling his own financial affairs. He
receives compensation amounting to $250 per month from the
Veterans Administration (Ens: A 69 & 70).
A physician, called by the- respondent, testified that in his opinion
the respondent's deportation would have an injurious effect on. his
health and life. He diagnosed the respondent's physical condition
as follows: coronary insufficiency, hypertension due probably to art.erioselerosis and emotional factors, a deteriorated kidney, enlargement of the prostate gland, diabetes and low grade anemia (Ex. A
'68). The physician expressed - his belief that the respondent's deportation may cause a relapse in the 'condition. of his mentally ill
son. The witness concedes, however, that the respondent has. had
a kidney ailment since the removal of one of his kidneys in 1948
and that he (respondent) has been afflicted with diabetes since 1942
(pp. 63 & 64).
Against this background of long residence in the United States
after a fraudulent entry, close family ties in the United. States,
and rather poor physical conditiori; we have a 68-year-old alien who
-committed two homicides in Italy prior to his e4try (Ex. 36) ; an
alien who obtained a fraudulent naturalization in 1928; an alien
who was convicted of conspiracy to commit extortion in 1943 and
sentenced to ten years' imprisonment 11 (Ens. A 64 & A 65) ; an
alien , whose fraudulent natdalization was revoked in 1957; and
an alien who was, convicted for income tax evasion in 1959 _and
sentenced to three years' imprisonment -and a $15,000 fine.12 .
A careful review of the voluminous record clearly establishes
that the respondent's plea for adininistrative grace is based, primarily on negative evidence concerned with his criminal Convictions,
the source from which he has derived the major portion of his
income over the past 35 years and the alleged unfairness of the
conduct of the reopened hearing by the special inquiry officer rather
than affirmative evidence of his rehabilitation and present worth in
the community in which he resides. The respondent did not produce a single witness or affidavit to establish his reputation or
support his claim of good moral character. There is nothing to
show that the respondent is aware of the gravity bf his past misconduct. His counsel, in fact, stated for the record, "I concede
that his (respondent's) reputat ion is not good, yes, but I don't
concede that there is justification for it (It-p. 37)
P He served three years and eight months of the ten-year sentence and was
paroled- (Er. A 04, PP. 2 & 10).•
"The respondent was incarcerated
Tidy 1, 1959 until October kit 1961.
continuing on probation for an additional period of three rears:

681

Interim Decision #1515
We" have fully considered the humanitatian aspects of the respondent's case. It is diffichlt if not impossible to define any standard for judging discretionary matters' of the nature presented by
this case. We have in the past exercised - the discretion given the
Attorney General by the immigration laws to•waive criminal grounds
of exclusion where the record affirmatively establishes: (1) long
residence in the United States; (2) close family ties in the United
States who would be adversely .affected by the denial of discretionary
relief; (3) the crime or crimes committed by the alien are remote
from the date of the application for discretionary relief, and most
important of all (4) there is an affiimative showing, of genuine

reformation over a reasonable period of time.
We find no substantial evidence in this record which would support a claim of genuine reformation and rehabilitation on the part
of the respondent. He refused to answer questions &ineerning his

reputation in the City of Chicago (R—pp. 388-341). He refused
to comply with the .special inquiry officer's repeated directives to
furnish a net-worth statement and other information concerning
the source of his ikcsme which according to his income tax returns
'amounted to more titan $100,000 during the years of 1959 and 1962.
(Exs. A 80, A 85 & A. 86) •11—pp. 320, 349, no, 378). He refused
to answer questions as to whether he had ever engaged in bootlegging or extortion; whether he had ever been associated with a
group engaged in illegal activities; and whether he had ever received. any monetary payments from such a group or from such
activities (R pp: 291 292).
The respondent's refusal to answer such questions leaves only'one
inference, namely, that his illegal activities are of a continuing nature. He has submitted no affirmative evidence of a genuine reformation and rehabilitation although the burden is upon him to support his application) for diseretionary relief • with such evidence.
Under the circumstances, we have no other alternative but to dismiss the appeal., An appropriate order will be entered.
ORDER: The order entered by the special inquiry officer denying
relief under sections 249, 212(h) and 243(h) of the Immigration
and Nationality Act, as amended, is hereby affirmed.
It is further directed that the appeal be and the same is hereby
dismissed. .
—

-

582


MATTER OF P—
In VISA PETITION Proceedings
A-11759819
A-11759820
Decided by Board January 18, 1960

Preference quota status—Section 293(a) (2), (3), and (4)—Not available to
adopted sons and daughters.
Act of September 22, 1959 excludes adopted sons and daughters from the benefits of section 203(a) ( 2 ), (3), and (4) of the Immigration and Nationality
Act. Hence, where relationship of son and daughter to resident alien petitioner was established by Italian decree of affiliation, comparable to adoption, petition to accord third preference status is denied. (NOTE: Matter
5 I. & N. Dec. 438, held no longer applicable prospectively.)
of

BEFORE THE BOARD
Discussion : The case comes forward on appeal from the order of
the District. Director, Boston District, dated November 16, 1959,
denying the visa petition for the reason that the petitioner has failed
to establish that the beneficiaries are a son and daughter, respectively, as specified in section 203(a) (3) of the Immigration and
Nationality Act.
The petitioner, a permanent resident alien, seeks preference status
under section 203(a) (3) on behalf of the beneficiaries. The beneficiaries were born in Italy on March 1, 1950, and March 10, 1954,
respectively. They are not the natural children of the petitioner
but the petitioner was granted a decree of affiliation of the beneficiaries by the Probate Judge at Torino, Italy, on April 17, 1959,
such action being ratified by the Tribunal for Minors of Torino, by
a decree dated April 24, 1959.

Section 203(a) (3) of the Immigration and Nationality Act, as
amended by the Act of September 22, 1959 (73 Stat. 644), grants
preference quota status to the unmarried sons and daughters of
aliens lawfully admitted for permanent residence. The petitioner
asserts that affiliation may be considered similar to legitimation.
However, in the instant case the beneficiaries are not the children
of the petitioner and their status is not that of legitimate children.
Under the provisions of article 280 of the Italian Civil Code of
1942, legitimation takes place only by a subsequent marriage entered

into by the parents of the child born out of wedlock or by a decree
of , the President, of the Republic of Italy. Thus, there is no merit
to the claim that the beneficiaries are to be regarded as legitimate or
legitimated children of the petitioner.
Affiliation does appear to be a status in many respects similar to
that. of adoption. Previously we have held that the terms "sons" or
"daughters" in section 203(a) (4) of the Immigration and Nationaality Act included adopted sons or daughters. However, when the
Act of September 22, 1959 amended the Immigration and Nationality Act to include sons and daughters within the second and third
preferences, section 205(b) was amended to provide that no petition
for quota immigrant status or a preference on behalf of a son or
d. nghter under paragraphs (2), (3), or (4) of section 203(a) of
the Immigration and Nationality Act should be approved unless the
petitioner establishes that he is a parent as defined in section 101(b)
(2) of the Immigration and Nationality Act of the alien in respect
to whom the petition 's made. It was pointed out in the report to
.accompany H.R. 5896 (which became Public Law 86-363) that the
principal purpose of this second sentence of section 205(b) of the
Immigration and Nationality Act, as amended by section 5(a) of
the Act of September 22, 1959 (73 Stat. 644), was to make certain
that aliens adopted by United States citizens or lawful resident
aliens (other than children defined in section 101(b) (1) (E) of the
brimigration and Nationality Act) should not be eligible for nonquota or preference status under the immigration and nationality
laws.2
This clearly stated mandate of Congress in enacting the Act of
September 22, 1959, therefore, excludes adopted sons and daughters
from the benefits of section 203(a) (2), (3) and (4). Likewise, the
Act of September 22, 1959 renders inapplicable, prospectively, our
deCision in Matter of 1?
, 5 I. & N. Dec. 438, relating to fourth
preference status for adopted sons and daughters. It may be noted.
however, that section 5(a) of the Act of September 22, 1959 preserVel
the status of adopted daughters or sons of United States citizen
previously granted preference status under section 203(a) (4). It is
therefOre, concluded that the beneficiaries as the affiliated son an
daughter of the petitioner are eligible neither for nonquota state
nor for preference quota status.
Order: It is ordered that the appeal be and the same is herei
dismissed.
—

Matter of R

, 5 1. & N. Dec. 438.

a Senate Report No. 962, 86th Cong., 1st Sess.,

528

p. 7.


Interim Decision #2250

MA i 1ER OF ROGALSKI

Application for Extension of Temporary Stay
A-20138389

Decided by District Director December 10, 1973
n application for an extension of nonimmigrant stay as a temporary visitor for
the sole purpose of studying the English language is denied, since section
101(aX15)($) of the Immigration and Nationality Act specifically precludes
from classification as a temporary visitor thereunder an alien coming to the
United States for the purpose of study.

Applicant is a 38-year-old native and citizen of Poland. He is
tarried; his wife and daughter remained in Poland. He was
imitted to the United States at New York, New York, on April
3, 1973, as a visitor for pleasure until May 7, 1973. He subseuently was given extensions of his temporary stay until June 7
nd to December 7, 1973.
On December 3, 1973, applicant filed an application for further
dension of his temporary stay. The reason given for requesting
ie extension was "to study English language." In his two preions applications his stated reason for requesting the extensions
as "to visit relatives and learn the English language." In an
tterview before an officer of this Service on December 10, 1973,
ie applicant stated that he had attended a local public high
:hool for about seven weeks, two evenings per week, two hours
ar evening. He has not attended any formal classes since June 5,
)73, but he claimed to have been taking English lessons privately
.om a friend. It was necessary to use an interpreter at the
terview since it was evident that the applicant could not commuteate in, nor could he comprehend, the English language_ During
to interview, applicant admitted that in applying for his visa he
ad informed the American consular officer that his purpose in
timing to the United States was "to visit for approximately
venty days."
It is apparent that the above-stated purpose of the applicant in
lining to the United States has been accomplished. Although
vlicant has stated on three applications to this Service that at.
ast one of his purposes in requesting an extension was to learn
nglish, his pursuit of that objective has hardly been assiduous.
507

Interim Decision #2250
The applicant has not established a desire to study English
incidental and secondary to a more cogent reason for requesting
an extension of his stay. Section 101(aX15)(B) of the Immigration
and Nationality Act specifically excludes a person coming to this
country for the purpose of study from classification as a temporary
visitor for business or pleasure. An alien coming temporarily solely
for the purpose of study may, if otherwise qualified, be classified as
a student under section 101(aX15XF) of the Act. The applicant now
gives no other reason for desiring an extension of his stay in the
United States. The applicant has not indicated any objective
which would warrant his study of English on a full-time basis, nor
has he applied to change his nonimmigrant status to that of a
nonimmigrant student.
It is found that the facts do not warrant the granting of a third

extension of stay. The application will, therefore, be denied.
ORDER: It is ordered that the application for further extension
of temporary stay in this case be and hereby is denied.

508


Interim Decision #1825

KATI= OF TAN

In Deportation Proceedings
A-13983727

Decided by Board September 16, 1967 and December 14, 1967
(1) Since it has not been established that the government in power can not
' control mob action In Indonesia, application by respondent, a native and citizen
of Indonesia, for withholding of his deportation to that country under section
243(b), Immigration and Nationality Act, as amended, on the claim that because he is of Chinese ethnic origin he would be subject to persecution as a
result of mob action directed against members of his race by individual gronpo
in Didenesia, IS denied in the absence of convincing evidence be would be
singled out for persecution.
(2) She burden of proof and standards for withholding deportation under sec-

tion 243(h) of the Act, as amended, may not be equated with the burden of
proof required to establish eligibility for "refugee" status under section 203
(a) (7) of the Act, as amended.

• Order: Act of 1952-Section 241(a) (2) [8 II.8.0. 1251(a) (2)1—Nonimmi' grant—remained longer.
ON BEHALF or BESPONDiNT:
David Calliper, Esquire
• Warner Building
1R'seliingdua D:(7 `20004

Ox BintAis or Einavion :

B. A. Tielhaber
Appellate Trial Attorney

;

BEFORE THE BOARD

The respondent, of Chinese ethnic origin, is a native and citizen of
Indonesia. An order entered by the special inquiry officer on May 31,
1966 grants the respondent voluntary departure in lieu of deportation
as an alien who after entry as a nonimmigrant exchange visitor has remained longer than permitted. An application for a stay of deportation
to Indonesia was denied and the respondent's appeal from this denial
was considered by the Board of Immigration Appeals in November
of 1966. We remanded the case for a reopening of the proceeding to
permit the introduction of evidence material 'to the issue of relief under
section 243(h) and for such other evidence as the respondent may wish
564

Interim Decision #1325
to present on this issue. We directed that the spebial inquiry officer
render a decision de nova on the basis of the entire record. A reopened
hearing was accorded the respondent on January 25, 1967 and after due
consideration of the entire record the special inquiry officer denied the
respondent's application to withhold deportation to Indonesia pursuant for the provisions of section 243(h) of the Act. He certified the case
to the Board of Immigration Appeals for final decision.
The record in addition Ito the respondent's testimony both at the
original and reopened hearings includes six articles published in the
Washington Post, Time Magazine, The New York Times Magazine, by
the United States Department of Health, Education and Welfare and
by Cornell University :(Exs. 4 through 9). The respondent also submitted excerpts from a letter from his brother in law in East Java
dated June 6, 1966 •(Ex. 10). A recital of the substance of the aforementioned published articles ha's been fully set forth in the opinion of
the special' inquiry Officer and will not be repeated: • •
The published articles indicate that Many of' the 2,500,000 Chinese
in Indonesia fear a bloodbath; that there is regular looting of Chinese
properties; that the Indonesian Government has banned the publication of all Chinese language newspapers; that many of the Chinese
language schools have been closed; that many Chinese have been deported to Communist China; that native Indonesians resent the domination of the nation's commerce by the Chinese; that there is an apparent organized attempt by-the Indonesian Government to 'create hostility toward the Chinese; that- the Chinge .control 80 per cent of private industry and that the' anti-Chine - sentimentdirected with
equal force against, IndoneSian• citizens who are ethnic Chinese and
Chinese who have migrated from the mainland.
, Excerpts from' the letter entered as Exhibit 10 advised the respondent that hi's family "are doing fine"; that litter the first of October movement "the situation was indeed. very quiet andthe atmosphere unpleasant"; that on •April 10 'there was mob violence along
Doho Street which resulted in. broken -front- .windowi in his father's
bakery "and that fortunately the bakery was not entered due to
the intervention of "military men and police."
The respondent testified that the Indonesian police make no distinction 'between the Chinese born in China and the Chinese born in Indonesia as far as police protection is concerned (R-27) . He further
testified that he had heard complaints from Chinese groups of how
they were mistreated but that he had never actually experienCed any
mistreatment himself (R-28). The respondent when queStioned as to
whether he would be persecuted by the Indonesian Government if he
-

-

returned to Indonesia replied in the negative (R-82). Ile admitted
565

Interim Decision #1825
that the persecution of the Chinese is by factions or individuals or
groups who have no authorized connection with the government
(R 32). He also stated that the police do nothing to restrain mob
violence when that violence is directed against the Chinese (R-32).
The special inquiry officer concludes that the respondent has not
met the burden of establishing that he would be subject to persecution
if he returned to Indenesia by reason of the fact that he is a member
of the Chinese race. The special inquiry officer relies on the respondent's
testimony that he experienced no personal persecution before his departure in 1962; that the respondent was employed by the Indonesian
Government before he departed; that he left his country with the blessing of his. government as an exchange visitor; that in effect the Chill= attitude has its origin by reason of the fact that the Chinese
control the country economically and that while the Chinese as an
ethnic group may • continue to draw the animosity or ill will of some
of the Indonesian people any persecution of the Chinese has not been
by government action. although there is some evidence that government authorities have acquiesced or sanctioned the agitation against
the Chinese.
When the ease wAS originally before us in November of 1966 counsel
argued that section 243(h) of -the Immigration and Nationality Act
has no requirement that an alien prove to a mathematical certainty that
acts of violence would be directed against him if he returns to the country to which he has been.ordered deported. Counsel also maintains that
section 243(h) has no provision 'which requires the Attorney General to
make a finding that the government of a country subjects an alien. deportee trs persecution. in order to be eligible for relief under section
243(h) of the Act.
The Attorney General is authorized to withhold deportation of any
alien within the United Statei to any country in which in his
opinion the alien would be subject to persecution on account of race,
religion or political opinion. A deportable alien is eligible for relief
only when in the "opinion" of the Attorney General his deportation
would subject the alien to persecution in the country to which he has
been ordered deported. The statute does not restrict or specify the considerations that may be welled upon by the Attorney General in
formulating an "opinion."
The evidence supporting the respondent's claim of persecution establishes with certainty that the Chinese as a race have incurred the
animosity of individual groups of native Indonesians primarily because of their ability to control the economic and material wealth of
Indonesia. There is also evidence that Chinese who are on the same
social economic level as the indigenous Indonesians are in many in-

-

586

Interim Decision #1825
stances assimilated into Indonesian society as students and government
employees (Ex. 7). The respondent was employed in a responsible
position by the Indonesian Government prior to his departure for the
United States.
The respondent in the instant case concedes that he never experienced persecution prior to his departure from Indonesia. There
is also evidence that the property of his father was protected from mob
violence by the police of the respondent's local community as recently
as June of 1966 (Ex. 10). The respondent was permitted to depart by
his government as an exchange visitor and this fact contemplates his
return with knowledge that would inure to the benefit of the government of Indonesia. He testified that he has no personal knowledge that
the Indonesian Government has stimulated hostility toward the

Chinese who live in Indonesia (R-35).
The conditions which would confront the respondent upon returning to Indonesia have counterparts to a certain degree in other
countries which from time to time experience mob action by one ethnic
group against another. The hazards of personal injury which arise as
the result of conflict.between majority and minority ethnic groups, in
our judgment, are not contemplated within. section 243 (h) when there
is a reasonable showing as in this case that the government in power
does make -an attempt to control such incidents. Accordingly, we condude -that -the respondent has not established that he would be subject
to persecution within the meaning of -section 248 (h) by claiming a fear
of persecution by reason of the fact that he is an ethnic Chinese who
would bo returning to a country whioh on occasion had experienced mob

violence directed against members of his race by individual groups.
The appeal will be dismissed.
ORDER : It is directed that the order entered by the special inquiry
officer on May 31,1966' denying the respondent's application to withhold deportation to Indonesia under the 'provisions of section 243(h)
of the Act and granting him voluntary departure in lieu of deportation be and the same is hereby affirmed.
BEFORE THE BOARD

The respondent, of Chinese ethnic origin, is a native and citizen of
Indonesia. The Board of Immigration Appeals, on September 15,
1967, entered an order affirming a decision of the special inquiry officer
entered on May 31, 1960 denying the respondent's application to withhold deportation to Indonesia under the provisions of section 248 (h)

of the Immigration and Nationality Act and granting him voluntary
departure in lieu of deportation. Counsel for the respondent moves

for a reconsideration of this order.
567

Interim Decision #1825
The evidence supporting the respondent's claim of persecution has
been fully discussed in our opinion of September 15, 1967 and will not
be repeated. After a careful review of the evidence we concluded that
the respondent had not established that he would be subject to persecution within the meaning of section 243(h) by claiming a fear of
`persecution -by reason of the fact that he is an ethnic Chinese who
would be returning to a country (Indonesia) which on occasion has
experienced mob violence directed against members of his race by
individual groups.
The thrust of counsel's argument urging error in the Board's conclusion is that section 243(h) does not require an alien to prove that
he Nvolild be subject to persecution by his -goverriment in order to be
eligible for relief and that eligibility is established when the evidence

affirmatively shows that an alien would be subject to persecution because of mass activity on the part of the dominant race of a country or
an organised mil:Jerky within a country against an ethnic group of
which the alien is a member. We do not dispute counsel's argument that
the statute does not require proof of persecution by an - organized
government. However, the statute does give the Attorney General
discretion to stay deportation only in circumstances where an alien
affirmatively shows that he "would be subject to persecution on account
of race, religion, or political opinion" in the country to which he is
being deported.
The policy of restricting llie'faitorable exercise of ctscretion to
cases "of elear probability of perseentiOn of the particular individual
ipetitioner has been sanctioned by the courts. Lena v. Immigration
and NaturblilatiimigetaCe, 379 F.2d 536, 538 (CA. 7, June 7, 1967).
Mob action may be a ground for staying deportation under section
243(h) whet° it is established that a government cannot control the
mob. The evidence before us, however, establishes to our satisfaction
that the IndonesianGoirernment is able to control mob action.
A recent article in the New York Times (March 25, 1967) submitted
by counsel during oral argument • states: 4The harassment (of the
Chinese) varies from one area to another depending on the attitude of
local officials. In some cases it (the harassment) seems to meet strong
opposition from top Government officials." This is not evidence that
the 4es.pepdent as an individual would be subject to persecution in
Indonesia because. of his race, religion,Rr political opinion..In fact the
respondent testified that he was not alvare,of any, activity by the Indonesian Government to stimulate mass activity and hostility toward
persons of Chinese origin (A 84).. The evidence .of sporadic harassrapt of ethnic Chinese which varies from one area ; of Indonesia to
-

another does not amount to the particularized persecution that justifies
568

Interim Decision #1825
a stay of deportation under section 243 (h) of the Immigration and
Nationality Act. Meng Kai Fa, et a2. v. Immigration. and Naturalisation Service, Nos. 287 and 236 (C.A. 2, November 16,1967).
Counsel argues that the recent amendment of section 243(h) which
eliminates the term "physical persecution" and inserts in lieu thereof
"persecution on account of race, religion or political opinion" equates
section 243(h) with section 203 (a) (7) -which defines a "refugee" and
accordingly the same burden of proof and standards for granting
relief is required for both sections of the Act. Counsel refers to the
legislative history of the amendment in support of his argument (Congressional Record, Volume III, No. 157, pp. 20995 and 20996, House
of Representatives, August 25, 1965) .
While it is true that the sponsor of the amendment said that the
alien who applies for a stay of deportation under the amended statute

"must bear the same burden of proof" as the alien who seeks to enter
the 'United. States as a "refugee," nevertheless he made it clear that
the amendment "narrows the word persecution by limiting the scope
of its interpretation to three specifics: namely, persecution on account
of race, persecution on account of religion, or persecution on account
of political opinion."
Section 203(a) (7) of the Act grants a conditional visa to an alien
who satisfies an immigration officer at an examination in any nonCommunist or non-Communist dominated country that "because of
persecution or fear of persecution on account of race, religion or
political opinion (he has) fled from any Communist or Communist
dominated area, or from any country within the general area of the
Middle East, and (is) unable or unwilling to return to such country
or area on account of race, religion or political opinion, and (is) not
(a) national of the countries or areas in which (his) application for
conditional entry is made .. ." An alien refugee must satisfy an immigration officer that he is otherwise admissible under the entire immigration process before he can be granted a conditional entry whereas a
deportable alien regardless of the provision under which he has been
found deportable may be granted a stay of deportation if in the
"opinion" of the Attorney General he would be subject to persecution
on account of race, religion or political opinion. The amendment did
not change the basic concept with regard to the test to be applied by the
Attorney General in exercising his discretion. It merely limited the
scope of section 243(h) to three specifics, namely, persecution on account of race, religion and political opinion rather than one general
term, namely, "physical persecution." Under the circumstances, we
find no support in the legislative history of the amendment for counsel's
argument that an alien deportee is required to do no more than meet
569

Interim Decision 4E1825
the standards applied under section 203 (a) (7) of the Act when seeking
_relief under section 243 (h) .
In the absence of convincing evidence that the respondent would
be singled out for persecution if he returns to Indonesia because of the
fact that he is an ethnic Chinese, we find no basis for granting a stay
of deportation under section 243 (h) of the Immigration and Nationality Act. The motion will be denied and our order of September 15,
1967 will be affirmed.
ORDER: The motion to reconsider is hereby denied; the order
entered by the Board of Immigration Appeals on September 15, 1967
is hereby affirmed.

570


Interim Decision #2495

MATTER OF CHUNG
In Section 248 Proceedings
•

A-21265035

Decided by Regional Commissioner June 4, 1976
(1) Under section 101(2)(15)(E)(ii) of the Immigration and Nationality Act, in order to
qualify for classification as a treaty investor, and alien must establish that he has
invested or is actively in the process of investing a substantial amount of capital in an
enterprise in the United States.
(2) An application filed under section 248 of the Act for change of nonimmigrant classification from visitor to treaty investor as defined by section 101(a)(15)(E)(ii) of the Act was
denied where applicant's only showing was that he intended to invest $10,400 on deposit
in a savings account, in a shoe manufacturing business, because mere intent to invest
does not moat the requirement of the Act.
ON BEHALF OF APPLICANT: Pro se

This case is before the Regional Commissioner on appeal from the
decision of the district director who denied the application basically
because the applicant has not established that he made an investment or
is in the process of making an investment to qualify for treaty investor
status. The district director also points out that the applicant had a
preconceived plan to obtain treaty investor status at the time of his
entry into the United States as a nonimmigrant visitor for business.
In the applicant's statement submitted on appeal, he claimed that he
did not know he could invest prior to the Service's approval of his
change of status to treaty investor, nor was it necessary for him to
invest for one year after obtaining that status. He considered his fifteen
years of experience in the export-import business as sufficient qualification for treaty investor status.
The record in this case reflects the applicant is a 44 -year- old native
and citizen of Korea. He last entered the United States on May 22, 1975
as a nonimmigrant visitor for business representing the II Jin Industrial
Company, Ltd., Seoul, Korea. He obtained extensions of his temporary
stay until September 20, 1975. The applicant, in an interview with an
officer of the Service on September 16, 1975, admitted that his entry as
a nonimmigrant visitor for business was to enable him to transfer funds
to the United States for the purpose of becoming a treaty investor.
That portion of the pertinent statutory provisions relating to the
status the applicant is seeking is contained in section 101(a)(15) of the
681

Interim Decision #2495
Immigration and Nationality Act, which includes among the classes of
nonimmigrants the following:
(E) An alien entitled to enter the United States under and in pursuance of the provisions
of a treaty of commerce and navigation between the United States and the foreign state
of which he is a national, and the spouse and children of any such alien if accompanying
or following to join him; . . . (ii) solely to develop and direct the operations of an
enterprise in which he has invested, or of an interprise in which he is actively in the
process of investing, a substantial amount of capital.

Also that portion pertinent to this case in the text of 22 CFR 41.41(a),
which states:
41.41 Treaty Investors
(a) An alien shall be classifiable as a nonimmigrant treaty investor if he establishes to

the satisfaction of the consular officer that he qualifies under the provisions of section
101(a)(15)(E)(ii) of the Act, and that . . . (2) He is an alien who has invested capital in a
bona fide enterprise and is not seeking to proceed to the United States in connection
with the investment of a small amount of capital in a marginal enterprise solely for the
purpose of earning a living.

The other portions of the above text have been omitted for the sake of
brevity, since they are not an issue in this matter. We will concern
ourselves with the basic area of dispute, that the applicant failed to
establish that he meets the requirement of the statute as quoted above.
In the Matter of Ileitland, 14 I. & N. Dec. 503 (1974), it was determined that funds deposited in an idle bank account cannot be considered
part of an investment. The record is clear that the applicant has only
offered evidence that he has $10,400 in a savings account, but has
submitted no record to indicate he has invested or is actively in the
process of investing in a business. To the contrary, he admits that his
money is idle in a savings account.
The applicant was given an opportunity to present evidence in support of his application. He was instructed to submit such documents as
lease contracts, how the money would be invested and other sources of
income concerning his investment in the Ii Jin Industrial Company,
Ltd. The applicant claims his investment would consist of a shoe manufacturing factor, but submitted no evidence to support his claim. It is
obvious that $10,400 would be less than substantial for such an enterprise.
After careful review of the entire record, including the statement submitted on appeal, it is concluded that the district director's decision to
deny the application is correct. The appeal shall be dismissed.
ORDER: ft is ordered that the appeal be dismissed

682


Interim Decision #2080

MATTER OF TANG

In Deportation Proceedings
A-15363812
Decided by Board April 22,1971
Where respondent presented no competent legal evidence in support of his
claim that the documents entered into evidence to establish his deportability were obtained in violation of his constitutional rights, such contention
is dismissed since one who raises the claim must come forward with proof
establishing a prima facie case of illegality before the Service will be
called upon to assume the burden of justifying the manner in which it obtained its evidence.
CHARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2) 1—Nonimmigrant crewman—remained longer.
ON BEHALF OF RESPONDENT:
Peter Zimmerman, Esquire
100 State Street
Boston, Massachusetts 02109

ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney

Counsel of record:
Joseph F. O'Neil, Esquire

Respondent appeals from the special inquiry officer's order finding him deportable and granting him voluntary departure. The
appeal will be dismissed.
Respondent admitted that he is an alien, but he refused to testify as to his right to be in the United States. He did not claim
privilege. The special inquiry officer found that respondent was
an alien, that he had been admitted in June 1969 as a nonimmigrant crewman, that he had been authorized to remain for not
longer than 29 days and that he had remained without authority.
These findings are based on the admission of alienage respondent
made at the deportation hearing and on information found in the
respondent's seaman's identity book, his seaman's discharge book,
his identity card and the landing permit showing his arrival on
June 26, 1969 at Los Angeles. The contents of the first three doe-

691

Interim Decision #2080
uments were read into the record (pp. 4, 5). The last document is
an exhibit (Ex. 2) . These documents were entered in evidence
over the objection of counsel who stated, "They were allegedly
taken from the respondent in violation of his constitutional
rights" (p. 4). No specifications in support of the claim have been
given. Counsel contends that since he raised a question as to the
legality of the evidence, the burden is upon the Service to come
forward with proof establishing that the documents came into its
possession in a manner which did not offend respondent's constitutional rights.
We shall dismiss the contention because respondent has not established a prima facie case in support of the contention. He has
presented no competent legal evidence in support of his claim.
One who raises the claim must come forward with proof establishing a prima facie case before the Service will be called upon
to assume the burden of justifying the manner in which it obtained its evidence. See Nardone v. United States, 308 U.S. 338
(1939); Duran v. United States, 413 F.2d 596, 604 (9 Cir., 1969),
cert. denied 396 U.S. 917 (1969); United States v. Lyon, 397 F.2d
505 (7 Cir., 1968), cert. denied 393 U.S. 846 (1968); United
States v. Garcia, 272 F. Supp. 286 (S.D. N.Y., 1967); Fed. Rules
Cr. Proc., rule 41(e), 18 U.S.C. The reason for our rule one similar to that which prevails in criminal matters—is well stated in
Garcia, supra. There the court said:
. . . Experience shows that unless such serious charges are initiated upon
he sworn statement of persons having personal knowledge of the facts, a
Teat deal of time of the parties and the Court is frequently wasted upon
Lnnecessary, expensive and protracted suppression hearings, all for the reaon that the attorney demanding suppression merely upon his own say-so
ften discovers only at the hearing that he has been misled by unsworn repsentations of his clients, which they would be unwilling to swear to in an
ffidavit, particularly if they were questioned closely by their counsel and

arned of the consequences of perjury.

It is proper to consider the documents presented by the Serve. The respondent does not deny that they relate to him. Their
mtents reveal that they do in fact relate to him. They establish
iat respondent is an alien who was admitted for a period not
nger than 29 days, 8 . CFR 252.1(d), (e), (f). There is no claim
J respondent that he has a legal right to be in the United States.
Upon presenting evidence that the respondent is an alien, the
?rvice may call upon him to testify and may use his testimony
find that deportability is established, Laqui v. INS, 422 F.2d
)7 (7 Cir., 1970). Where the respondent does not claim privilege
id refuses to testify, his silence can give rise to an inference

692

Interim Decision #2080
that his testimony would support the Service charges, QuilodranBrau v. Holland, 232 F.2d 183 (3 Cir., 1956) . Here, it is proper
to find that the respondent is an alien, that he was admitted temporarily, and that the period for which he was admitted has now
expired. On the basis of these findings it is proper to conclude
that respondent is in the United States illegally as charged.
The Service burden of establishing deportability could also
have been met by drawing on the statutory presumption of the illegality of the presence of the alien who has not justified his
presence in the United States, Ah Chiu Pang v. INS, 368 F.2d
637 (3 Cir., 1966), cert. denied 386 U.S. 1037; Vlisidis v. Holland,
245 F.2d 812 (3 Cir., 1957) ; section 291 of the Act, 8 U.S.C.
1361. We have not relied upon this presumption because it is unnecessary to do so. However, had it been necessary to do so, we
think the presumption would have supported the charge. We believe that it does not merely require an alien to show that he entered lawfully; it goes further. It requires the person shown to be
an alien to justify his presence in the United States. Our rule is
drawn from Vlisidis v. Holland, supra. The case concerned aliens who were charged with having entered temporarily as alien
crewmen and remaining illegally. They refused to answer questions about the circumstances of their presence in the United
States. The court, after holding that there was adequate evidence
for finding the aliens deportable, stated:
. . . Actually, it was necessary to show only the single fact that the respondent was an alien, for, once that is proved, the legislative scheme requires the alien to justify his presence in the United States. 66 Stat. 234, 8
U.S.C.A. §1361. Neither of the parties here attempted any such showing of
lawful presence (p. 814).

Respondent did not attempt to show a lawful presence here. In
fact, he has failed to show the time, manner and place of his
entry. We believe the presumption could have been relied upon.
We find no support in this record for counsel's contention that
respondent's request for representation was effectively denied.
ORDER: The appeal is dismissed.
Further ordered: Pursuant to the special inquiry officer's
order, the respondent is permitted to depart from the United
States voluntarily within 30 days from the date of this decision
or any extension beyond that time as may be granted by the District Director ; in the event of failure so to depart, the respondent
shall be deported as provided in the special inquiry officer's
order.

693


Interim Decision #2843

MATTER OF FARJAM
In Deportation Proceedings
A-24023594
Decided by Board December 19, 1980
Where respondent, a national of Iran, moved to reopen, motion granted in light of
Service policy of December 4, 1980, not to oppose reopening to apply for asylum.
CHARGE
Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)j—Nonimmigrant—remained
longer than permitted
ON BEHALF OF RESPONDENT:

Donald Lindover, Esquire

ON BEHALF OF SERVICE

Daniel Meisner

233 Broadway

Trial Attorney

New York, New York 10007

Gerald S. Hurwitz
Appellate Trial Attorney

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

In a decision dated January 16, 1980, the respondent, a native and
citizen of Iran, was found deportable under section 241(a)(2) of the
Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as a nonimmigrant who had remained in the United States for a longer time than
permitted.' lie was granted voluntary departure until July 15, 1080,

but failed to depart as required. A Warrant of Deportation was issued
on July 17, 1980 and October 24, 1980, the respondent submitted a
motion to reopen for the purpose of applying for political asylum. The
motion was subsequently denied by an immigration judge on
November 3, 1980. The respondent has appealed that decision. The
appeal will be sustained and the record remanded.
In a memorandum to the Chief of the Justice Department's General
Litigation and Legal Advice Section, Criminal Division, dated
December 4, 1980, the Deputy General Counsel of the Immigration and
Naturalization Service stated that: "The Service has now determined

' At the deportation hearing, held on January 16, 1980, the respondent admitted the
factual allegations contained in the Order to Show Cause, conceded deportability, and
designated Iran as the country of deportation.

Interim Decision #2843
that it will not oppose motions to reopen to apply for asylum submitted
by Iranian nationals."
In response to the motion to reopen in the instant case, the Appellate
Trial Attorney has stated that "Pursuant to the Service policy out
lined in the December 4, 1980, memorandum from Paul W. Schmidt,
Deputy General Counsel to Lawrence Lippe, Chief of the Justice
Department's General Litigation and Legal Advice Section, Criminal
Division, we do not oppose the reopening of this case for the purpose of
applying for political asylum."
Accordingly, in recognition of the Service's policy, set forth above,
the appeal will be sustained, the motion to reopen granted, and the
record remanded to permit the respondent to apply for political
asylum.
ORDER: The appeal is sustained. The proceedings are reopened,
and the record is remanded to the immigration judge for reconsideration of the respondent's application for political asylum.


Interim Decision #1891

MATTER OF KING AND FIELDS

In Deportation Proceedings
A-17592503
A-17592501
Decided by Board August 6,

1968

Where a native and citizen of Trinidad admitted to' the Virgin Islands under a
nonimmigrant visa waiver pursuant to 8 CFR 2121(b), proceeded the same
day to the continental 'United States, neither such waiver tinder 8 OFR212.1 (b )
nor the waiver provisions of 22 OFB 41.5(c) are applicable to her entry to
the mainland from the Virgin Islands; therefore, she is deportable under section 241(a) (9) of the Imiaigration and Nationality Act for failure to comply
with the conditions of her nonimmigrant admission.
Ousitues:
Order: Act Of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)7—Excludable
at entry—immigrants—no visas or other valid entry
doCuments. •
Lodged: Act of 1952—Section 241(a) (9) (8 118.0. 1251(a) (9)1—Failed to
eopply with conditions of status—visitors for pleas.
ure to the Virgin' Islands under 8 CFR 212.1 (b).
ON BEZAIN Or smarms
On Bratorz or RESPONDENT :
Irving A. Appleman
Jacob •W. Bosinsky, Esquire
Appellate Trial Attorney
150 Broadway
Now Totilc New York 10088

The cases come forward on appeal from the orders of the special
inquiry officer entered May 1, 1968 and April 30, 1968 respectively,
granting the respondents the privilege of voluntary departure with
the further order if they failed to depart when and as required, they
be deported to Trinidad solely on the lodged charge.
The respondents, natives and citizens of Trinidad, females, last
entered the United States at Christiansted, Virgin Islands on or
about April 26, 1968 and were admitted with nonimmigrant, visa
waivers pursuant to 8 CFR 212.1(b) to the Virgin Islands until May 7,
1968. Later that same day they proceeded to the City of New York.
The respondents have never been admitted to the United States for
permanent residence.
,

$24

Interim Decision #1891:
At the respective hearings, charges were lodged that the respondents
were deportable under section 241(a) (9) of the Immigration and Nationality Act, in that after admission as nonimmigrants under section
101 (a) (15) of the Act, they failed to comply with the conditions of the
nonimmigrant status under which they had been admitted. The record
establishes, that when respondents entered the United States at
Christiansted, Virgin Islands they did not have nonimmigrant visas.

The respondents' admission at Christiansted, Virgin Islands was
under a waiver of nonimmigrant visas pursuant to 8 CFR 212.1(b)
which provides:
A visa is not required of a British, French, or Netherlands national, or a national of Jamaica, Trinidad and Tobago or Barbados, who has his residence in
British, French, or Netherlands territory located in the adjacent islands of the
Caribbean area, or in Jamaica, Trinidad and Tobago or Barbados, for admission

or stay in Puerto Rico, the Virgin Islands of the United States, or as an agricultural worker in the United States. 1
When the respondents were admitted to the Virgin Islands they were

nationals and residents of Trinidad. The nonimmigrant waiver contained in 8 CFR 212.1(b) was limited or circumscribed for admission
or temporary stay in Puerto Rico, the Virgin Islands, or as an agricultural worker in the United States. The respondents instead proceeded immediately to the continental United States, thereby failing
to comply with the limited conditions of the temporary status under
which they had been admitted to the Virgin Islands. Accordingly, they
are deportable on the lodged charge.
Reference has been made to the provisions of 22 CFR 41.5 (c) which
exempts a nonimmigrant from the requirement of passport, -visas, and

border-crossing identification cards in the case of :
An alien who shall leave Guam, Puerto Rico, or the Virgin Islands of the United
States and seeks to enter the continental ratted States or any other place or

jurisdiction of the United States.

The waiver provided in 22 CFR 41.5 (c) would not appear to apply
to the instant respondents who are nationals and residents of Trinidad
and were granted a waiver of the nonimmigrant documentary requirements by 8 CFR 212.1(b) (also 22 CFR 41.6 (b) ) for the limited purpose as set forth in that regulation and have failed to comply with the
conditions of the status under which they entered the Virgin Islands
(or Puerto Rico). The waiver was not effective for entry into the
United States under the circumstances of the case.
The respondents have been granted the privilege of voluntary departure. They did not apply for any other form of discretionary relief.
See also 22 CFR 41.6(b).

$2.5

Interim Decision #1891
They will be granted an additional 30 days from date of decision in
which to depart.
ORDER: It is ordered that the respondents be granted 30 days from
date of this decision to depart voluntarily, the other conditions of the
orders of the special inquiry officers to remain in full force and effect.
It is further ordered that the appeals be and the same are hereby
dismissed.

826