MATTER OF C
In DEPORTATION Proceedings
1.—R471655

Decided by Board March 28, 1960
Deportability—Based on conviction for crime—Effect of
voiding conviction alt initio.

carom nobis action

Judgment by New York court on October 25, 1957, in corm notda action
vacating respondent's conviction in 1910 for grand larceny, second degree
(one of two crimes which resulted In his deportation in 1955), is regarded
as voiding the conviction ab initio since it is predicated upon findings that
respondent had been deprived of rights guaranteed by the Sixth Amendment.
(2) Nevertheless, the decree voiding the conviction is effective only on and
after Timmer 2b, 1957. It does not require treating the conviction as nonexistent prior to October 25, 1957; and it does not permit respondent to
attack the deportation order executed on February 8, 1955, which was clearly
valid on that date.

CUARGES
Order

Act of 1952—Section 242(f) [8 U.S.C. 1252(M—Unlawful reentry
after deportation under 8 U.S.C. 1251(a)(4).
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)7—Excludable
at entry under 8 U.S.C. 1182(a) (17)—Arrested and deported, no
permission to reapply.
Act of 1952—Section 241(a 1 (2) 18 U.S I. 1251 (a) ( 2 ) — Pntered
without inspection.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable at entry under 8 U.S.C. 1182 (a ) (20)—No immigrant visa.
Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251(a) (I)l—Excludable at entry under S U.S.C. 1182(a) (9)—Convicted of crime—
Unlawfully entering a building.
BEFORE THE BOARD

Discussion: On March 3, 1959, this Board approved the special
inquiry officer's order of deportation. Thereafter counsel filed a
motion for reconsideration and on June 3, 1959, we granted the motion and reopened the hearing. The case is now before us on appeal
from the special inquiry officer's decision of November 4, 1959, granting voluntary departure, denying all other relief, and directing that
the respondent be deported if he fails to depart voluntarily.
The respondent is a 61-year-old married male, native and citizen
of Italy, who states that he was lawfully admitted to the United
611

States for permanent residence on August 18, 1905. He was deported
from this country on February 8, 1955, and last entered the United
States about March 1956 without insportion At that, time he intended to remain indefinitely ; he did not have an immigrant visa;
and he had not been granted permission to reapply after arrest and
deportation.
The issues to be determined are whether the respondent is deport.
able, and whether he is eligible for discretionary relief in addition to
voluntary departure. For the reasons hereinafter Stated, we hold that
the respondent is deportable and that discretionary relief, other than
voluntary departure, cannot be granted in this proceeding.
In the first proceeding, which culminated in the respondent's expulsi ,n on February 8, 1815, he was found deportable under 3 U.S.C.
1251(a)(4) because of a conviction in 1917 for unlawfully entering
a building, and a conviction in 1919 for grand larceny, second degree.
After a hearing on counsel's motion scram nobis in the criminal
proceeding relating to the 1919 conviction, the court entered an order
on October 25, 1957, granting counsel's motion to vacate the plea and
sentence imposed. The respondent then pleaded not guilty. On
April 22, 1959, the 1919 indictment was dismissed. On the same
date, a 1918 indictment was dismissed but it was not one of the convictions on which the respondent's deportation was predicated.
The first lodged charge is based on the allegation that the respond.
ent is deportable because he was excludable in March 1956 under
8 U.S.C. 1182(a) (17) as an alien who had been arrested and deported
and who did not have permission to reapply for admission to the
United States. In this proceeding, the respondent conceded that he
had been deported from the United States on February 8, 1955, and
that he had not received permission to reapply for admission to the
United States. We said in our previous order that counsel had not
cited any judicial or other authority for his contentions that the
granting of the motion serene nobis completely removed the conviction from the record and that this differed from an absolute executive
pardon. None of the cases now cited by counsel indicates to us that
the granting of a motion scram nobis has greater obliterating effect
than a pardon. As stated in Er parts Garland, 71 U.S. 333, 380
(1866). "* * * when the pardon is full, it releases the punishment
and blots out of existence the guilt, so that in the eye of the law the
offender is as hutment as if he had never committed the offense."
Counsel is correct, however, in his contention that a conviction is
void, as contravening the Sixth Amendment to the Constitution,
where the defendant was not represented by counsel and had not
competently and intelligently waived this right (United States v.
Morgan, 346 U.S. 502 (1954) ; Johnson v. Zerbst, 304 U.S. 458
(1938) ). Exhibit R-3 shows that on October 25, 1957, the judge
612

hearing the motion corara nobis found, with respect to indictment
34,469—A of the year 1919, that the respondent was not represented
by counsel at the trial, and that the trial court had not informed him
of his right to such re presentation In view of this finding and in

accordance with the decisions cited, the respondent's 1919 conviction
was void. In United States v. Morgan, 222 F.2d 673 (C.A. 2, 1955),
it was said by way of dictum (p. 674, note 3) : "Of course, the conviction is not void in the sense tint the defendant may disregard the
conviction before it has been judicially declared invalid."
In referring to the retroactive effect of corona notis, counsel has
cited certain cases holding that a man serving a sentence as a second
offender, whose prior conviction was then set aside, may thereafter
be resentenced as a first offender on the sentence being served. Hower , we actually do give retroactive effect to the order revoking the
1919 conviction. When the respondent entered the United States in
March 1956, he was, in fact, excludable under 8 U.S.C. 1182(a) (9)
because of the 1917 and 1919 convictions, the 1919 conviction not
having been removed until October 25, 1957. Nevertheless, the respondent is not charged in this proceeding with being excludable in
March 1956 because of the 1919 conviction. On the authority of tho
Supreme Court's decisions in United States v. Morgan and Joh,n4on
v. Zerbst, supra, we hold that the respondent is to be regarded as
never having been convicted of the 1919 offense. In other words, as
of October 25, 1957, the 1919 conviction was wiped out ab initio.
While the conviction has now been removed at initio, and although
it does not seem that the respondent could be deported under 8 U.S.C.
1251(a) (4) upon a new proceeding instituted at this time, there still
remains the question as to the legal effect of the respondent's deportation on February 8, 1955. On that date, he was, in truth and in fact,
an alien who had been convicted of two crimoo involving moral turpitude and he was actually subject to deportation under 8 U.S.C.

1251(a) (4). Counsel asserts that most of the previous cases in which
attempts were made to attack the validity of deportation orders after
they had been executed involved a change in the interpretation of
the law. He contends that the respondent's case involved a change
of facts and that it is distinguishable for that reason. However, he
has cited no case in which there was a change of facts and the executed order of deportation was considered a nullity.
We do not perceive any logical reason why, following deportation,
one rule should be followed where a change of facts thereafter occurred and another rule where there subsequently took place a change
in the judicial construction of the law. If anything, it would seem
that the case would be stronger on behalf of the alien who had been
erroneously deported because of a mistaken interpretation of the law
than in the case of this respondent whose deportation was strictly in
613

accordance with the law and facts as they existed at the time of
deportation.
A statement was quoted by counsel from section 522 of the Civil
Practice Act of New York which permits the making of a motion to
set aside a final judgment for error in fact not arising upon the trial.
However, the accomplished deportation here is not a judgment and
counsel himself does not allege that there was an error in fact, but
contends there was a change of fact. Section 522 is entirely irrelevant
to this respondent's case and the same is true with respect to Federal
Rules of Civil Procedure 50 and 50, Title 28, United States Code.
Counsel has sought to draw an analogy between the respondent's
case and cases in which a marriage or naturalization has been ann - lied
revoked ab initio. Apparently courted claims that the
invariable rule was to deport aliens who entered the United States
on the basis of such marriages or naturalizations. Although some
aliens have been deported under the ab initio doctrine, we did not
apply the doctrine blir dly and the question of whether such an alien
should be deported depended upon the facts of the particular case.
For example, the administrative interpretation of the 1937 act, as
indicated in Matter of B—, 3 T. & N. Dec. 102, 104 (1947), and the
specific language of 8 U.S.C. 1251(c) show that deportation does not
follow in every case where the marriage is annulled retroactively to
the date of marriage. We held that the aliens were not deportable

in Matter of B
, supra, and in Matter of 21!
, 3 I. & N. Dec. 25
(1947). Revocation of naturalization also does not necessarily result
in deportation of that person or his wife or minor child (Matter of
C , 3 I. & N. Dec. 275 (Atty. Gyn., 1950) ; Matter of P—, 4
I. & N. Dec. 373 (1951) ; 8 U.S.C. 1451; 8 CFR 101.1(j)). Since
there was no invariable rule that deportation must follow under the
at initio doctrine, we reject counsel's contention that this doctrine
requires us to hold that the respondent was erroneously deported
in 1955.
To summarize, we hold that on and after October 25, 1957, the respondent's 1919 conviction must be considered as having been revoked
ab initio, but we are not persuaded that the conviction must now be
considered as nonexistent on February 8, 1955, when the respondent
was deported. The warrant of arrest which resulted in that deportation was served on the respondent on August 6, 1953, and deportation did not occur until February 5, 1051. No reason has boon eug
gested for the respondent's failure to institute the scram nobis proceeding prior to his deportation, and he made no attempt to attack
the validity of the deportation order through judicial proceedings.
Where an alien thus sleeps on his rights and deportation has been
accomplished, we see no reason why he should then be permitted to
challenge the validity of the executed warrant of deportation. The

614

situation is somewhat similar to the doctrine of res judiccda which
requires a defendant to present all his defenses at the time of trial or
be foreclosed from subsequently asserting them.
The following cocee have et,talili.,:btid the rule that after deportation
has been accomplished the alien will not be permitted to attack the
validity of that deportation order in a subsequent, expulsion or exclusion proceeding (United States ex rel. Stefiner v. Cannichael, 183
F.2d 19 (GA. 5, 1950), cert. den. 340 'U.S. 829; Daskaloff v. Zurbrick,
103 RSA. 579 (C.C.A. 6, 1939) ; United States cal rel. Koehler a. Corsi,
60 E'.2d 123 (C.C.A. 2, 1932) ; Matter of S , 3 I. & N. Dec. 83
, 3 1. & N. Dec. 505 (j.VIV) ; Matter of
(1949) ; Matter of tL
P.
, 4I. & N. Dec. 126
3 I. & N. Dec. 818 (1950) ; Hatter of C
I. & N. Dec. 173 (1950)). We hold that
(1950) ; Matter of R
these decisions are controlling in the respondent's case and that he

cannot, in this proceeding, attack the validity of the executed order
of deportation.
There was quoted by counsel, with the emphasis indicated, the following sentence appearing on page 20 of United States ex eel. Steff seer v. Carmichael, supra: "Where an alien has been deported from
the United States pursuant to a warrant of deportation, we do not
think it permissible to allow a collateral attack on the previous deportation order in a subsequent deportation proceeding, unless we
are convinced that there was a gross miscarriage of justicein
' the
former proceedsngs." There, the contention of the alien was that the
first deportation order in 1936 was illegal and void ad initio. Since
the court was of the opinion that Steffner could not attack the previous deportation order, the language which counsel emphasized was
dictum. The statutory provision, under which Steffner was deported,
was subsequently construed by the Supreme Court in another case in
such a way that Steffner would not have been deportable. In the
cited case, the Court of Appeals said that if it conceded that the
original order of deportation should be examined, Steffner would not
be in any better position because it was of the opinion that the original order was valid when entered. As we have previously indicated,
the original deportation order against this respondent was clearly
valid at the time it was entered. Hence, the prior deportation of
this respondent was obviously not "a gross miscarriage of justice,"
and under the Steffner decision cannot now be attacked.
In discussing United States ex rel. Koehler v. Corsi, supra, counsel
slated that when the finding, of fact have been outmoded, the law

of the case should be reexamined and set aside. That decision does
not show whether the alien claimed there had been an error of fact
or of law. In the first proceeding, the alien filed a petition for a
writ of habeas corpus but the District Court's decision was adverse
to him and he later withdrew his appeal from that decision. In the
615

subsequent exclusion proceeding, where he attempted to show that
his previous deportation was unlawful, the court said that the law
of the case became fixed when the decision of the District Court became final and it was then too late to attack the deportation as not
in pursuance of law. In Matter of B—, 3 I & N. Dec. 605, and in
Matter of P—, 3 I & N. Dec. 818, both of which were "cited above,
there were statements that the law of the case becomes fixed at the
time of deportation. However, we do not base our decision on any
such concept but solely on the primary proposition for which all of
the cited cases stand, that is, that an alien who has been deported

will not be permitted to attack the validity of that deportation order
in subsequent proceedings. The law of the case doctrine arises when
a court has rendered a decision. Hence, it did arise in the Koehler
case but does not appear to be pertinent in this respondent's case
since the validity of the previous deportation order was not passed
upon by any court.
Although the doctrine of law of the case is technically not applicable here, the situation is somewhat analogous. A certain finality
does attach when a warrant of deportation has been executed by the
expulsion of the alien. The question of whether an alien is or is nut
deportable should not be subject to relitigation after deportation has
been accomplished. At that point, judicial review would no longer
be poesible because the ease would be moot. Similarly, the regulations [8 CFR 3.2, 3.3(a) and 3.4] provide that departure prior to

taking an appeal shall constitute a waiver of the right to appeal;
that departure after making a motion to reopen or reconsider is to
be understood as a withdrawal of the motion; and that departure
subsequent to the taking of an appeal but prior to a decision thereon
shall constitute a withdrawal of the appeal.
Daskaloff v. Zurbrick, supra, is particularly pertinent to the respondent's case. There, the alien was deported in 1921 on the ground
that she was a prostitute and she reentered the United States in 1928.
Later a deportation proceeding was instituted which resulted in the
issuance of a warrant of deportation. In the subsequent habeas
corpus proceeding, the alien claimed that the accusations made against
her in the first deportation proceeding were untrue. The court said
that irrespective of the guilt or innocence of the alien of the charge
upon which she was first deported, the inquiry under the statutory
provision then in effect was solely whether the alien had, in fact, been
deported as a prostitute. The court also said that the alien could
not collaterally attack the validity of the prior proceedings. Hence,
this case did not involve a change in the interpretation of the law
but related to an effort on the part of the alien to show that the
facts were not as they had been found originally.
For the reasons stated above, we hold that the respondent is pre616

eluded in this proceeding from attacking the validity of the executed
order and warrant of deportation. This disposes of counsel's contention concerning the first lodged charge with the exception of his
argument that the respondent did not make an "entry" within the
meaning of the immigration laws when he returned to the United
States in March 1956. We turn now to this latter contention which
is also asserted as a reason why the other three lodged charges should
not be sustained.
Counsel's argument is that the respondent's departure from the
United States on February 8, 1955, was involuntary because he was
deported at that time and that his return in March 1956 should, therefore, not be considered as constituting an entry. This is exactly the
same argument that was advanced and rejected by this Board in
Matter of S , supra (1 I. & N. Dec. at pages 93-94). The position of the Board was passed upon and upheld in the subsequent
judicial proceedings in the same ease—United States ex rel. Steffner

v. Carmichael, supra.
In connection with this contention, counsel also cited Delgadillo v.
Carmichael, 332 U.S. 388 (1947), in which the court held that an
alien whose presence in the foreign country occurred because his
vessel had been torpedoed did not make an "entry" upon his return
to the United States. Counsel also stated that the respondent's position was made "crystal clear" by the decision in Schoeps v. Carmicliael, 177 F.2d 391 (CA. 9, 1949). While the Delgadillo decision
did establish that not every arrival of an alien in the United States
constitutes an "entry" for immigration purposes, the case of Schoeps
is not of assistance to the respondent since that alien was held to
have made an entry upon returning from a visit of a few hours in
Mexico.
Counsel devoted a considerable part of hie brief to his argument
that the respondent did not make an entry and he cited a number of
judicial and administrative decisions. The Immigration and Nationality Act, which became effective on December 24, 1952, contains a
definition of the term "entry" [8 U.S.C. 1101(a) (13], but the word
had not been defined in the prior immigration laws. All but one of
the decisions cited by counsel had been rendered prior to December
24, 1952. The one exception is Savoretti v. United States ex rel.
Pincus, 214 F.2d 314 (C.A. 5, 1954), but even there the deportation
proceeding had been instituted prior to December 24, 1952, and the
case was decided under the prior legislation [section 19(a) of the
Immigration Act of 1917; 8 U.S.C. 155(a), 1946 ed.].
Since the word "entry" was defined in the Immigration and Nationality Act, it is to that definition we must look and not to the
judicial interpretation of "entry" in the cases decided under the prior
legislation. We specifically referred to this definition in our order
617

of March 3, 1959, but counsel ignored this. 8 U.S.C. 1101(a) (13)
provides as follows:
The term "entry" meane any coming of an alien into the United States,

from a foreign port or place * * *, whether voluntarily or otherwise, except
that an alien having a lawful permanent residence in the United States shall
not be regarded as making an entry into the United States for the purposes
of the immigration laws if the alien proves to the satisfaction of the Attorney
General that his departure to a foreign port or place * * was not intended
or reasonably to be expected by him or his presence in a foreign port or place
* * was not voluntary: Provided, That no person whose departure from the
United Staters was occaaioned by deportation proceedings, extradition, or other

legal process shall be held to be entitled to such exception.

The foregoing definition does, of course, take into consideration
the judicial construction of tho -word "entry" which had boon an
nounced in the Delgculillo and other cases but the term is defined with

more exactness. First, it is provided that any coming of an alien
whether voluntarily or otherwise shall constitute an entry. Then, an
exception is made for an alien having a lawful permanent residence
if he proves that his departure to a foreign place was not intended
or that his presence in a foreign place was not voluntary. Finally,
it is provided that this exception shall not apply to a person who
had been deported.
The respondent testified that after his deportation he had been in
Italy and other countries and that he boarded the vessel upon which

he returned to the United States at Nassau, Bahama Islands. When
the facts are examined in the light of the definition in 8 U.S.C.
1101(a) (13), it is apparent that in March 1956 there was a voluntary coming of this respondent into the United States from a foreign
place (the Bahamas). Due to the fact that the respondent's departure was occasioned by deportation, it is clear from the definition
that he cannot avail himself of the one exception mentioned in this
statutory provision. Inasmuch as the facts in the respondent's case
bring him precisely within the definition, we hold that his return to
the United States in March 1956 constituted an "entry" under the
immigration laws. Since he had been deported and did not have
permission to reapply for admission to the United States, he was
excludable in March 1956 under 8 U.S.C. 1182(a) (17) and the first
lodged charge is sustained.
In the third lodged charge, it is asserted that the respondent is
deportable on the ground ChM; he was eyeludahle at the time, of entry
under 8 U.S.C. 1182(a) (20) because he did not have an immigrant
visa or other entry document. Counsel contends that a waiver of
documents should be granted under 8 U.S.C. 1181(h). That statutory provision is limited to otherwise admissible aliens who departed
temporarily. We have already concluded that the respondent was
excludable under 8 U.S.C. 1182(a) (17). Therefore, 8 U.S.C. 1181(b)
618

cannot be utilized in the respondent's case and we hold that the third
lodged charge is sustained.
The second lodged charge is that the respondent is deportable
under S USE 1 . 951 (e.) (9) h.eftusa he entepod without it.pootion.
Counsel contends that this charge should be held inapplicable under
A - 7205042, Int. Dec. No. 975 (1959). We held
Matter of Y

there that a lawful permanent resident of the United States who
reentered on several occasions after short absences by claiming United
States citizenship could be considered as being within the purview
of the first sentence of section 7 of the Act of September 11, 1957
(8 U.S.C. 1251a J provided that lack of documents was waived under
the discretionary authority in 8 U.S.C. 1151(b). We have already
concluded that 8 U.S.C. 1181 (b) cannot be used in this respondent's
cunt and that he ass excludable under paragraphs (17) and (20) of
8 U.S.C. 1182(a). Section 7 of the Act of September 11, 1957 is
limited to aliens who were otherwise admissible. Accordingly, this
relief is not available to the respondent, and the second lodged
charge is sustained.
In the fourth lodged charge, it is alleged that the respondent was
excludable at the time of entry under 8 U.S.C. 1182(a) (0) because
of the conviction for unlawfully entering a building. The record
shows only that the respondent was sentenced to the penitentiary.
Counsel contends that this was a petty offense within the terms of
section 4 of the Act of September 3, 1954 L8 U.S.C. 1182a]. This
contention was discussed by the special inquiry officer. The crime
of unlawfully entering a building is a misdemeanor under the law
of New York and the applicable punishment is imprisonment for not
more than one year. The respondent testified that he was imprisoned
for 4 months and 20 days. We considered a somewhat similar quesU
,
8945125, Int. Dec. No. 1030 (1;Th's) 5
tion in aftate• of C
but that case is distinguishable. We find it unnecessary to determine
whether the respondent's 1917 conviction may be classified as a petty
offense under 8 U.S.C. 1182a inasmuch as the respondent does not
meet its requirement that such an alien must have been otherwise
admissible. We hold that the fourth lodged charge is sustained.
The remaining contentions of counsel concerning deportability are
without merit and do not require specific discussion. We have concluded above that the four lodged charges are sustained. In his
decision of November 4, 1959, the special inquiry officer held that the
respondent ‘v a:5 not ;object 10 deportation under 8 U.S.U. 1252(f).
Since the respondent is deportable on the lodged charges, we need not
consider or discuss the charge stated in the order to show cause.
The other issue is whether the respondent is eligible for discretionary relief in addition to I oluntury departure which was granted
by the special inquiry officer. Counsel contends that the respondent
619

is entitled to apply for relief under section 5 of the Act of September 11, 1957 [8 U.S.C. 1182b] and to secure a determination of the
application prior to departing from the United States. He asserts
that section 5 has been used by this Board in proceedings to adjust
status under section 245 of the Immigration and Nationality Act
[8 U.S.C. 1255], citing Matter of M , A 10256535, Int. Dec. No.
990 (1959). However, that was a decision of the Service and this
Board has nothing to do with adjustment of status under 8 U.S.C.
1255. Matter of 0 — , A-8250353, Tilt_ Dee. No. 972 (1959), is inapposite because there the issue arose in exclusion proceedings.
Matter of G—, A-71443'73, Int. Dec. No. 1004 (1959), has no bearing on the issue here. Relief under section 5 of the Act of September 11, 1957 is not available to aliens within the United States except
that it could be utilized in preexamination proceedings during the
period that procedure was in effect (Camanarata v. Sahli, 163 F.
Supp. 125 (E.D. Mich., 1958) ; Matter of DeP—, A-10547426, Int.
Dec. No. 978 (1959) ). The latter was a decision of the Attorney
General and is controlling in this respondent's case. Accordingly,
we hold that he cannot secure determination of an application under

section 5 while he is within the United States.
Counsel stated that he was requesting permission to reapply for
admission in connection with the 1355 deportation, b1t the special
inquiry officer denied this relief. This matter was not mentioned
in counsel's brief to this Board. However, assuming that the respondent's present marriage continues in existence to the time of his
application for a visa, it appears that he has been granted permission
to reapply for admission after deportation in accordance with 8
CFR 212.2, his marriage to his citizen spouse having occurred on
February 28, 1959. The special inquiry officer has granted voluntary
departure which is the only additional relief which is appropriate at
this time. In view of the foregoing, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.

620


MATTER OF C

In VISA PETITION Proceedings
VP 3-1-119205
Decided by Board September 5, 1961
Visa petition—nonquota status—Adopted child—Change in interpretation of
law—No authority to grant retroactive apprnval.

No authority exists to grant retroactive approval of petition to accord nonquota status where petition had been properly denied under the then existing rule of law and change in the interpretation of the law occurred after
beneficiary ("adopted child") had reacheu the age or 21 years.
BEFORE THE BOARD

DISCUSSION: The case comes before us on motion of counsel requesting that the prior decision of this Board dated March 30, 1960,
denying the visa petition be reversed, and that the beneficiary be
accorded nonquota immigrant status notwithstanding the fact that
he is no longer under 21 years of age. Counsel persists in his appeal
notwithstanding that the visa petition has been approved for preference status under section 203(a) (2) of the Immigration and
Nationality Act, contending such approval is of dubious value inasmuch as the Chinese quota is oversubscribed.
The petitioner, a native of China, naturalized citizen of the
United States, filed a visa petition on October 2, 1957, at the New
York office, for nonquota status on behalf of the beneficiary as his
adopted child. The beneficiary is a native and citizen of China,
born March 8, 1939. The beneficiary had been adopted by the petitioner's wife, with the consent of- the petitioner, when about two
years of age and, had resided solely with the petitioner's wife from
1941 to 1958 when the adoptive mother joined the petitioner in the
United States.
The case was previously before us on March 30, 1960, on appeal
from .the decision of the District Director at New York dated November '24, 1V50, denying the visa petition. Al that time we denied
the visa petition on the authority of Matter of C—F—L, 8-151
(Atty. Gen., 1959), which held that for the purposes of section
101(b) (1) (E) of the Immigration and Nationality Act, as amended,

433

the two-year legal custody and residence required of an adopted child
must be with both of the adoptive parents where two exist. It is
to be noted that at the time of our decision on March 30, 1960, the
beneficiary was then over 21 years of age.
Subsequently, the Attorney General had occasion to reconsider
his holding in Matter of C F L , supra, because of several ad
verse court decisions, and in Matter of J' K—W—, 9-176 (Atty.
Gen., Feb. 28, 1961), held that the two-year legal custody and
residence requirement imposed upon an adopted child under the
provisions of section 101(b) (1) (E) of the Immigration and Nationality Act, as amended, were satisfied when custody and residence
have been with but one of the two adoptive parents rather than
with both. The visa petition has been reconsidered by the New York
office in the light of the Attorney General's latest holding, and approval has been granted for preference status on behalf of the beneficiary under section 203(a) (2) of the Immigration and Nationality
Act, as amended, since the beneficiary is an unmarried son over 21
years of . age and, therefore, is no longer able to qualify for nonquota status as a minor child.
Counsel argues that due to the oversubscribed condition of the
quota for Chinese persons second preference status will be of dubious value to the beneficiary, and that had the Case been originally
considered in the light of the Attorney General's present view, as
expressed in Matter of Y—K—W—, supra, the petition would have
been approved for nonquota status. He requests, therefore, that the
petition be approved mate pro tune for nonquota status.
Counsel cites Matter of S—, 8 221, as precedent authority for
such action. Matter of S—, supra, involved a question of acquisition
of citizenship by a child horn abroad and the action necessary to
retain such citizenship, involving an interpretation of the retention
provisions of sections 201(g) and (h) of the Nationality Act of 1940
and of section 301(b) of the Immigration and Nationality Act. The
Solicitor General confessed error in the Supreme Court despite a
favorable decision in the Circuit Court of Appeals and concluded
that section 301(c) rendered the general savings clause inapplicable,
so that, although a petitioner had lost citizenship under the 1940 Act,
he could regain that citizenship under sections 301(b) and (c) of the
1952 Act by coming to the United States before he became 23 years of

-

-

age. Based upon this holding, it was determined that where such a

person was incorrectly informed by an American consular officer
before his twenty-first birthday that he had lost United States citizenship, and if, in reliance upon such information and without any lack
of diligence, such person did not apply for and receive a United States
passport until after his twenty-third birthday -but thereafter pro434

seeded immediately upon passport is s uance to this country, that person
would be entitled to admission as a United States citizen.
We are sympathetic with the plight in which the beneficiary finds
himself, but we do not believe that authority exists to grant a ramie
pro turac approval of the visa petition herein. In order to qualify
as a child for nonquota status, the beneficiary must be unmarried
and under 21 years of age.' By regulation, 8 CFR 206.1(b) (4),
provision is made for automatic revocation of nonquota status
granted a beneficiary as the minor child of a United States citizen
upon reaching the age of 21 years, except that such a petition is
valid to accord status under section 203(a) (2) of the Act. When
we considered this case on appeal on March 30, 1960, the beneficiary
was then over 21 years of age, and even at that time had the present
view of the Attorney General been in effect we could do nothing
more than approve second preference status. There appears to be
Ito authority to grant retroactive approval of a petition to establish
nonquota or preference' quota status. 2
It is to be noted that at the time the prior order of denial of the
visa petition was entered the rule of law as to the construction to
be placed upon section 101(h) (1) (E) of the Immigration and
Nationality Act, as amended, was that enunciated by the Attorney
General in Matter of C—F—L, 8 151 (Apr. 27, 1959). The previous
decision of the District Director and of this Board was in accord with
the then existing rule of law. The fact that the rule has now been
changed does not mean that our prior decision constituted a gross
miscarriage of justice.' The law and the regulations prevent the
issuance of a nonquota visa to the beneficiary and we are unable to
find any provisions which expressly- or impliedly authorize a retroactive approval of the visa petition in order to grant nonquota status
to the beneficiary.
ORDER: It. is ordered that the motion be and the same is hereby
denied.
Section 101(b) (1), 8 U.S.O. 1101(1)(1).
a Cf. Yu v. Iltirney, 192 F. Supp. 707 (E.D. Pa., 1981), in which the petitioner sought retroactive approval of third preference quota status for his
wife to a date prior to January 1, 1959, in order that the benefits of section (;
of the Act of September 22, 1919 could accrue to her.

un it ed

Etatoe oa rel. octeffrto-r n. Carmir.lrael, 1W1 F •)ri 10 (C A. 5, 1950),

cert. den. 340 U.S. 829; Daskaloff v. Zurbrick, 103 F.2d 579; United states er
Koe,hler v. Corsi, fi0 F.2d 12.3; Alaticr ∎ )f S--,
01; Matter of fe--,
4 - 173 ; Matter of C—, 8-611.

435


Interim Decision #1944

MATTER OF ARAO

In Deportation Proceedings
A-14441808
Decided by Board February 20, 1969
(1) A finding as to whether an alien's overstay is justified is not germane

to a determination of deportability under section 241(a) (2) of the Imndgration and Nationality Act.
(2) Where an alien has been granted voluntary departure with a provision
for the automatic entry of an order of deportation upon failure to depart
within the authorized period, due process does not require reopening of
the deportation hearing to afford the alien an opportunity to request additional time within which to depart voluntarily, or to show why she failed
to depart, or that failure to depart is justified.

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

Richard W. Lowery, Esquire
Shapiro and Small
77 W_ Washington Street
Chicago, Illinois 60602
(Brief filed)

The respondent, a native and citizen of the Republic of the
Philippines, appeals from an order entered by the special inquiry
officer on October 30, 1968, granting her voluntary departure in
lieu of deportation as an alien who after admission as an exchange visitor has remained in the United States longer than permitted. The order further provides that in the event the respondent failed to depart on or before November 30, 1968, or any
extension beyond such date, the privilege of voluntary departure
would be withdrawn without further notice or proceedings and
she would be deported to the Philippines. Counsel on appeal
maintains, among other things, that the order entered by the special inquiry officer directing the respondent's deportation without
further hearing in the event she failed to depart on or before November 30, 1968, violates the due process and equal protection

156

Interim Decision #1944
clauses of the Constitution, and for this reason the proceeding
should be terminated.
The respondent, a female alien, was admitted to the United

States at the port of Honolulu, Hawaii, on or about June 19,
1965, as an exchange visitor for further training as a nurse pursuant to the Mutual Educational and Cultural Exchange Act of
1961. She was authorized to remain in the United States until
March 21, 1968. She has remained in the United States beyond
March 21, 1968 and counsel concedes that she is deportable as
charged in the order to show cause.
Counsel during the hearing of October 30, 1968 requested the
privilege of voluntary departure for the respondent and offered to
explain why she became subject to the charge of having remained
beyond the period, for which she was admitted (p. 2). Counsel
stated for•the record that the respondent's employer had filed a
third preference petition for her which was approved; that she

then applied to the Department of Health, Education and Welfare
for a recommended waiver of the two-year foreign residence requirement pursuant to section 212(e) of the Act: that her application and all motions to reconsider were denied and that while
these motions were being considered the authorized period for
which she was admitted expired (p. 3).
The special inquiry officer advised counsel that he would be
permitted to question the respondent regarding her eligibility for
voluntary departure (p. 3). Counsel replied that since the special
inquiry officer was "more familiar with the necessary questions"
he preferred that the special inquiry officer question the respondent as to her eligiblity. The special inquiry officer upon completion of his interrogation of the respondent concerning her eligibility for voluntary departure asked counsel whether he wished to
question the respondent further or present additional evidence
for the record. Counsel declined the opportunity to present additional evidence (p. 5). The special inquiry officer then entered the
order granting the respondent the privilege of voluntary departure
without expense to the Government, on or before November 30,
1968, or any extension beyond this date that may be granted for
the District Director, with a further provision for deportation to
the Philippines if the respondent failed to depart when and as required (p. 5). Counsel reserved the right to appeal this order (p.

6).
Counsel on appeal contends that the special inquiry officer via
late(' due process in concluding that deportability is established

by the respondent's admission that she remained in the United
157

Interim Decision #1944
States beyond the period for which she was admitted without inquiry as to why she overstayed. Counsel maintains that the special inquiry officer should have afforded the respondent an opportunity to present evidence as to whether her overstay was
justified by "unusual circumstances" and then make a ruling
upon this issue. Counsel in this connection relies upon 22 CFR
68.5 (b) 1 which provides a two-year guideline for the authorized
stay of exchange visitors who are graduate nurses and also authorizes an exception when there are "unusual circumstances."
The respondent's admission of the facts alleged in the order to
show cause and her concession that she is deportable establish deportability by clear, unequivocal and convincing evidence. A finding of deportability under these circumstances is sanctioned by 8
CFR 242.16 (b) . There is no substance to counsel's claim that respondent was denied an opportunity to establish why she overstayed. Counsel was in fact afforded such an opportunity and
made a full presentation of the facts but later declined to present
further evidence on this issue.
The respondent was not prejudiced by the special inquiry
officer's failure to rule as to whether her overstay was justified. A
finding of whether an overstay is "justified" is not germane to an
alien's deportability under section 241 (a) (2) of the Act. Such a
finding would be inconsistent with and unsupported by the evidence. It has been conclusively established in this case that the
respondent has remained longer than permitted without legal justification.
Moreover, the respondent was pot prejudiced in any way by the
special inquiry officer's failure to state that her overstay was justified_ The special inquiry officer did not hold the respondent's overstay against her. He complied with counsel's request and
granted voluntary departure, the maximum relief for which she
is eligible. The "unusual circumstances" provision of 22 CFR
63.5(b) (supra 1 ) has no application to a deportation proceeding.
It merely implements the basic purpose of the exchange visitor
program set forth in the Mutual Educational and Cultural Exa Title 22 CPR 63.5 (b) :
To insure that exchange visitors remain in the United States only so long
as is necessary to satisfy their objectives and the intent of the Act, the following general limitations on the period of stay of exchange -visitors are
hereby established. Exceptions to these limitations will be permitted only in
unusual circumstances:
(1) Participants:
(i) Graduate nurses-two years.

158

Interim Decision #1944
217, 219, fn.1 (1963) ; Gomez-Fernandez v. INS, 316 F.2d 732,
733 (5 Cir. 1963) , cert. denied 375 U.S. 942, 11 L.ed. 2d 273.
The respondent has an opportunity to avoid the entry of an
order of deportation by departing within the time limit set by the
order which will be entered in this case. Furthermore, there is no
showing in this record that the respondent made any attempt to
avoid the automatic entry of an order of deportation prior to her
appeal by .applying for an extension under 8 CFR 244.2. She has
been accorded a fair hearing pursuant to section 242 (b) of the
Inunigration and Nationality Act and has been granted the maximum relief available under the circumstances of her case. We find
no violation of the due process and equal protection of the law
clauses of the Constitution in the decision and order entered by
the special inquiry officer on October 30, 1968. The appeal will be
dismissed and our order will provide for the respondent's voluntary departure within 30 days from the date of our decision.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be 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; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special
inquiry officer's order.

160


Interim Decision #2535

MATTER OF RODRIGUEZ

In Deportation Proceedings
A-14559693
Decided by Board October 4, 1976
In order for a suspension applicant, who is a native of a contiguous country, to establish
pursuant to section 244(f) of the Immigration and Nationality Act, as amended, that he
is ineligible to obtain an immigrant visa, he must show that his best efforts would not
result in his being able to obtain a visa. Where, as in the instant ease, respondent is
ineligible for a visa under section 212(a)(17) of the Act and he has not applied and
refuses to apply for relief (permission to reapply for admission after deportation) -which,
if granted, would remove the ground of ineligibility, he has not satisfied the requirement of section 244(f) by establishing ineligibility to obtain an immigiant visa; xecordingly, the denial of his suspension application by the immigration judge was proper.
CHARGE:
Order: Act of 1952—Section 241(a)(1) (8 1J.S.C. 1251(a)(1)}—Excludable at time of

entry
ON BEHALF OF RESPONDENT: Emanuel Braude, Esquire

215 West 5th Street
Los Angeles, California 90013

On October 1 17, 1975, the immigration judge entered an order in which

he found the respondent deportable, denied the latter's application for
suspension of deportation, and granted him the privilege of voluntary
departure. The appeal will be dismissed.
The record relates to a married male alien, 37 years of age, a native
and citizen of Mexico, who entered the United States without inspection
during 1968. He conceded deportability. Accordingly, the finding of
deportability rests upon evidence which is clear, convincing and unequivocal.
The relief of suspension of deportation is not available to the respon-

dent, who is a native of a country contiguous to the United States,
unless he establishes that he is ineligible to obtain an immigrant -visa,
section 244(f)(3) of the Immigration and Nationality Act. Inasmuch as
the respondent is the father of a United States citizen, he does not
require a labor certification and therefore is not ineligible for a visa
under section 212(a)(14).
42

Interim Decision #2535
The respondent claims that he is ineligible for a visa pursuant to
section 212(a)(17) as an alien who has been deported and who has not
received permission to reapply. The respondent has been previously
deported, and he has never received permission to reapply for admission. He concedes, however, that he has never made an application for
that permission. Counsel argues that the respondent, who without
permission appears to be eligible for suspension, cannot be forced to
apply for permission and thereby be forced to lose his eligibility for
suspension. Counsel characterizes the suggestion that the respondent

must -do so as requiring the respondent to "act as his own executioner."
We reject counsel's argument_ An applicant for suspension who is a
native of a contiguous country must, by the terms of section 244(f),
establish that he is ineligible to obtain an immigrant visa.
In order to establish ineligibility for an immigrant visa, the respondent must show that his best efforts would not result in his being able to
obtain a visa. That has not been shown in this case, for the respondent
refuses to apply for relief which is available and which, if granted, would
remove the claimed ground of ineligibility. Were the respondent to
obtain permission to reapply, he could utilize the normal consular channels to achieve lawful permanent resident status and he would not need

the relief of suspension of deportation. The relief of suspension of
deportation was not designed for such a person. The decision of the
immigration judge to deny the application was correct. He considerately
provided that, should an advance application for permission to reapply
be made and denied, he would, upon his own motion, reconsider his
denial of the application for suspension.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily
within 90 days from the date of this order or any extension beyond that
time as may be granted by the District Director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

43


Interim Decision #2533

MATTER OF LOULOS

In Exclusion Proceedings
A-22126158
Decided by Board September 16, 1976
(1) Applicant, a native and citizen of Greece, entered the United States as a crewman in
1970 and remained unlawfully until May 1976 when he departed for Costa Rica in order
to obtain an immigrant visa at an American Consulate. Subsequently he was deported
to the United States by the Costa Rican authorities. He was not brought to this country
by agents of the United States nor did the United States authorities expressly or
impliedly consent to his deportation from Costa Mica to this country. He arrived on
August 18 or 19, 1976, without a visa, passport or other travel document authorizing his
entry into this country. Although he possessed the financial means to leave the United
States when he arrived, he did not choose to do so. Following deferred inspection and a
hearing, applicant was found excludable under section 212(a)(20) of the Immigration and
Nationality Act as an immigrant who was not in possession of a valid immigrant visa.
(2) Tinder the circumstances, an exclusion prneeecliug was the proper forum for this case
because applicant failed to meet his burden under section 214(6) of the Act; applicant
was not brought to the United States against his will by agents of the United States or
with the consent of the United States Government; and applicant's past actions with
respect to remaining in the United States indicated that he was in fact an applicant for
admission.
EXCLUDABLE:
Act of 1952--Section 212(a)(20) [S U.S. C. 1182(a)(20)]--Immigrant not in possession of
valid immigrant visa
ON BEHALF OF APPLICANT:
Jack Wasserman, Esquire
1707 "H" Street, N.W.
Washington, D. C. 20006

ON BEHALF OF SERVICE:
George Indelicato
Appellate Trial Attorney

The applicant is a 24-year-old alien, a native and citizen of Greece. He
last arrived in the United States on August 18 or 19, 1976, at New York
City. Inspection was deferred pursuant to section 235(b) of the Immigration and Nationality Act. A notice of hearing (Form 1-122) (Ex. 1)
was delivered to the applicant by the trial attorney on August 24, 1976.
An exclusion hearing was held on August 24, 1976. Subsequent to that
hearing, the immigration judge found the applicant excludable under

section 212(a)(20) of the Act as an immigrant who was not in possession
34

Interim Decision #2533
of a valid immigrant visa. The applicant has appealed from that decision.
The appeal will be dismissed.
On August 19, 1976, the applicant made a sworn statement to the
Service (Ex. 2). In his affidavit, the applicant stated that he was a
native and citizen of Greece who was "not in possession of any visa for
the U.S."; that he last entered the United States in January, of 1970 as a
crewman; that he remained in the United States until May of 1976; and
that he then departed for Costa Rica. He indicated that he went to
Costa Rica in order to obtain "an immigrant visa from an American
consulate abroad"; and that after two and one-half months in Costa Rica,
the Government of Costa Rica deported him to the United States. The
applicant further stated that he arrived in the United States on a Pan
American flight without a visa; and that the carrier desired that he
proceed from the United States to Greece as an alien in tran sit without a
visa. He indicated that he could not go to Greece because his passport
had expired; but that he would have proceeded to Greece if he had a
valid travel document.
At the hearing, the trial attorney and the applicant (through counsel)
stipulated that the applicant last arrived in the United States at John F.
Kennedy Airport located in New York City on August 18 or 19, 1976, as
a passenger aboard Pan American Flight 542 after having boarded at
San Jose, Costa Rica; and that the applicant was not admitted to the
United States. The parties also stipulated that the applicant was born in
Greece on April 15, 1952; that he is a citizen of Greece; that neither of his
parents was ever a citizen of the United States; that the applicant had
never been admitted to the United States as a permanent resident alien;
and that at the time of his last arrival, the applicant did not present a
visa, passport or travel document. Both parties further agreed that the
applicant was deported from Costa Rica to the United States; and that
the applicant has no close family ties in the United States. The immigration judge noted that, upon arrival in the United States, the applicant
indicated that he had a $1,000 bank check made out to his order. Upon
the request of the trial attorney and counsel for the applicant, the
immigration judge announced that he would not consider the allegation
contained in the notice of hearing (Ex. 1) to the effect that the applicant
is likely to become a public charge.
Counsel contended at the hearing that the applicant was brought to
the United States involuntarily by virtue of his deportation by the
Government of Costa Rica; and that the applicant is not now applying for
admission to the United States, The immigration judge noted that
counsel for the applicant specifically declined to apply for a waiver of
entry documentation, visa and passport. Counsel further contends that
au alien who is involuntarily brought to the United States should be

released from custody and be allowed to depart the T.Tnited States
35

Interim Decision #2533
voluntarily. At oral argument, counsel maintained that the applicant did
not make an entry into the United States; that the applicant was not
applying for admission to the United States; that he was brought to the
United States involuntarily; and that an exclusion proceeding is inappropriate. Counsel submits that the applicant must be given the opportunity to depart the United States voluntarily, and if he fails to do so,
then it would be appropriate for the Government to commence deportation proceedings.
Counsel contends that the applicant did not effect an entry into the
United States within the meaning of section 101(a)(13) of the Act. An
alien does not effect an entry into the United States unless, while free
from actual or constructive restraint, he crosses into the territorial
limits of the United States and is inspected and admitted by an immigration officer or actually or intentionally evades inspection at the
nearest inspection point. Matter of Pierre et al., Interim Decision 2238
(BIA 1973). In this case, the applicant's entry into the United States
(upon his arrival in New York City) was thwarted during an inspection
by an immigration officer when the applicant was unable to produce a
valid unexpired immigrant visa. We find that the applicant was not
admitted, and, therefore, did not effect an "entry""into this country.
In support of his contention that the applicant must be given the
opportunity to voluntarily depart from the United States, counsel cites
Un.ited States ex ?el. Bradley v. Watkins, 163 F.2d 328 (2 Cir. 1947);

United States ex rel. Paetau v. Watkins, 164 F.2d 457 (2 Cir. 1947); and
United States ex rel. Sommerkamp v. Zimmerman, 178 F.2d 645 (3
Cir. 1949). In the Bradley case (a habeas corpus proceeding), the court
held that an alien seized by the United States Navy in Greenland,
brought to the United States against his will, and interned as an alien
enemy for security reasons could not be deported as an "immigrant"—at
lemaAt, not before he had been afforded an opportunity to depart voluntarily. The theory of the Bradley decision is that an alien brought here
by agents of the United States against his will is not an "immigrant"
within the meaning of the immigration laws.

In the Sommerkamp case,

the facts related to an alien who was seized by the United States Army
in Guatemala at the outbreak of World War II, and brought to the
United States against his will and interned for security reasons. The
alien's internment was subsequently terminated, and he was given the
opportunity to depart voluntarily but he did not do so. In a habeas
corpus proceeding, the court held that the subsequent presence of the
alieln in the United States was "voluntary," and therefore he had made
an "entry" and was subject to deportation as an immigrant. In the
Pa.etau case (also a habeas corpus proceeding), the facts related to an
a:Nan who was deported to Germany by Guatemalan authorities and
placed on an airplane bound for the United States. The Guatemalan
36

Interim Decision #2533
Government had requested other countries to permit the alien's passage
to Germany. The alien, who applied for admission to the United States,
was detained and ultimately held in deportation proceedings as an
immigrant who had made an illegal entry. The court applied the rationale of the Bradley ease, and held that it made no difference whether an
alien is forcibly brought into this country directly by the United States
authorities or whether such action is accomplished by a foreign government with the consent of the United States. The court was of the opinion
that the United States authorities accepted the deportation of the alien

from Guatemala, and supported that action when they took steps
against the alien for his asserted illegal entry in order to insure his
return to Germany_ The deportation order was reversed, the writ was
sustained, and the alien was released from the custody of the Service.
The rationale that has been consistently expressed by the courts is
that an alien who is involuntarily brought to this country by agents of
the United States is not considered to be an "immigrant" within the
meaning of section 101(a)(15) of the Act. See also United States ex rel.
Ludwig v. Watkins, 164 F.2d 456 (2 Cir. 1947). This rationale has been
held to be applicable not only to a situation in which agents of the United

States directly bring an alien into the United States against his will, but
also to a situation in which United States authorities consent to such an
action by a foreign government. See United States ex rel. Paetau v.
Watkins, supra. It is apparent that the holdings of these cases are

predicated upon the direct participation of United States authorities in
effecting the removal of an alien from another country to the United
States against his will or upon the consent of United States authcrities
to such action by the government of a foreign country. We find that the
ease at hand is factually distinguishable from the above cited cases. The
applicant was not brought to this country by agents of the United States

against his will. Further, United States authorities did not expressly or
impliedly consent to his deportation to the United States by the Government of Costa Rica. We therefore conclude that the cases cited by
counsel are inapplicable to this case.
Counsel's contention that Vassilios Loulos is not an applicant for
admission is without merit. It is clearly implied in the applicant's present and past conduct that he is seeking admission to the United States.
We find that the applicant resided in the United States unlawfully for
more than six years before he voluntarily departed this country for
Costa Rica in a improvident attempt to legalize his status by obtaining
an immigrant visa. Further, we find that upon his arrival in the United
States following his deportation from Costa Rica, the applicant had the
freedom and the financial means to arrange for his transportation to
Greece, his native country, but chose not to do so. Instead, he decided to
remain in the United States. His statement that he did not go on to
37

Interim Decision #2533
Greece because he did not possess an unexpired passport is curious since
he also did not have proper documentation to enter the United States.
Section 214(b) of the Act provides that every alien shall be presumed
to be an immigrant until he establishes to the satisfaction of the Service,
at the time of application for admission, that he is entitled to nonimmigrant status.
At the time of his inspection, the applicant did not present any
documentation which would entitle him to enter the United States. We

conclude that an exclusion proceeding was the proper forum in this case.
We further conclude that the applicant failed to sustain his burden
under section 214(b) of the Act. Therefore, he must be presumed to be
an immigrant and is excludable under section 212(a)(20). Accordingly,
the appeal will be dismissed.
ORDER: The appeal is dismissed.
Participating Members: Milhollan, Wilson, and Maniatis.
.

38


Interim Decision #2547

MATTER OF CASTRO

In Deportation Proceedings

A-20980487

Decided by Board December 28, 1976
(1)Admission by respondent at deportation hearing that he was not a citizen or national of
the United States, and was a native and citizen of Mexico, is sufficient to establish
alienage and respondent then has the burden to show time, place, and manner of entry
into the United States as required by section 291 of the Immigration and Nationality
Act, and prove his right to be in the United States. Failure to do so establishes
deportability by clear, convincing, and unequivocal evidence.
(2) Once deportability is established by sufficient evidence at hearing, any defect in the
arrest procedure is of no consequence in the deportation proceedings.
(3) While 8 C.F.R. 242.1(b), and 8 C.F.R. 242.13 require that respondent must be notified of
adjournments or continuances after the hearing commences, such notice need not
necessarily be served as provided in 8 C.F.R. 103.5(a). While a written notice might be
helpful for record purposes, verbal noti#ieationto respondent's counsel present at hearing

which gives the necessary details concerning the adjournment to the parties is sufficient
to comply with due process requirements and those of 8 C.F.R. 242.1(b), 8 C. F. R. 242. 13,
and 8 C.F.R. 292.5(a).
CHARGE:

Order: Act of 1952—Section 241(a)(2) {8 U.S.C. 1251(a)(2)] — Entered without inspec-

tion
ON BEHA.12, us RESPONDENT. Gary- II. Manulldn, Esquire

1441 Wright Street

Los Angeles, California 90015
BY:

Milhollan, Chairman;

Wilson, Torrington, Maniatis, and Appleman, Board Members

The respondent appeals from an immigration judge's decision dated
July 15, 1975. The immigration judge found the respondent deportable
as charged, granted him 31 days voluntary departure, and entered an
alternate order providing for the respondent's deportation to Mexico.
The appeal will be dismissed.
Counsel for the respondent attacks the immigration judge's decision,
basically, on the grounds that the evidence submitted by the Service to
establish deportability should have been suppressed, and that the respondent was denied due process of law by the alleged defective notice

81

Interim Decision #2547
of the July 15, 1975, hearing. The legality of the evidence submitted by
the Service need not be discussed since the deportability of the respondent is established by his admissions at the June 2, 1975, hearing. The
respondent's contention that due process was denied is rejected.
At the June 2, 1975, hearing, the respondent, assisted by his counsel,
admitted that he is not a citizen or national of the United States and that

he is a native and citizen of Mexico. These admissions establish alienage.
Once alienage is established, it is the respondent's burden to show the
time, place, and manner of his entry. See section 291 of the Immigration
and Nationality Act. If the alien fails to establish his right to be in the
United States, his deportability is established clearly, convincingly, and
unequivocally. Matter of Fereira, Interim Decision 2251 (BIA 1973);
Matter of Wong, 13 I. & N. Dec. 820 (BIA 1971); Matter of Tang, 13 I. &
N. Dee. 691 (BIA 1971). See Tricts-Hernandez v. INS, 528 F.2d 366 (9
Cir. 1975). Since deportability has been established by the respondent's
own admissions at the hearing where he was represented by counsel, it
is unnecessary to discuss the legality of the other evidence in the record.
We should mention that it is well settled that if deportability is established by sufficient evidence at the hearing, any defect in the arrest
procedure is of no consequence in the deportation proceedings. U.S. ex
rel. Bilokumsky v. Tod, 263 U.S. 149 (1923); La Franca v. INS, 413
F.2d 686 (2 Cir. 1969); Vlissidis v. Anadell, 262 F.2d 398 (7 Cir. 1959).
See Matter of Davila, Interim Decision 2521 (BIA August 23, 1976);
Matter of Rojas, Interim Decision 2444 (BIA 1975).
We also hold that counsel for the respondent was properly informed of
the July 15, 1975, continuance. 8 C.F.R. 292.5(a), which counsel cites on
appeal in support of his argument, requires that when a person is
represented by an attorney, any required notice must be served on the
attorney. However, although the respondent must be apprised of adjournments or continuances, the notification of adjournments or continuances required by 8 C.F.R. 242.1(b) or 8 C.F.R. 242.13 after the
hearing commences before the immigration judge is not the kind of
notice that must necessarily be served in any of the manners specified in

8 C.F.R. 103.5(a). Our interpretation of what due process and 8 C.F.R.
242.13 require is that once the hearing commences, the immigration
juidge can adjourn the hearing, when in his sound discretion such an

adjournment is required, informing the parties so as to give them a
reasonable opportunity to be present. Cf. Matter of Marallag, 13 I. &
N. Dec. 775 (BIA 1971). Of course ; when such information is not given
during the hearing, usually that notification will be effected using one of
the means specified in 8 C.F.R. 103.5(a). While a written communication
which will avoid misunderstandings and preserve evidence of the action
taken is preferable, a verbal communication which gives the necessary

details concerning the adjournment to the parties is equally effective.
82

Interim Decision #2547
In the case at hand, the immigration judge stated at the July 15, 1975,
hearing that he had verbally informed counsel for the respondent of the
new date for the continuation of the hearing. The respondent was present
on that date. Counsel for the respondent does not deny on appeal having
been told orally of the new date. The respondent did not ask for a
continuance at the continued hearing. The respondent was given the
only discretionary relief to which he was entitled, voluntary departure.
The respondent's deportability was sufficiently established by the evidence produced on June 2, 1975, when he was represented by counsel.
Under these circumstances, we find there was no prejudice to the
respondent in the proceedings below. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily
within 31 days from the date of this order or any extension beyond that
time as may be granted by the District Director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
i^runigr ation judge's order.

83


Interim Decision #2594

MATTER OF HADDAD

In Exclusion Proceedings
A-30956128
Decided by Board June 28, 1.977
(1)Applicant was admitted to the United States for permanent residence in 1971. On May
13, 1975, he was paroled into the United States to await exclusion proceedings following
his return from a visit to Jordan to visit his ailing mother. The exclusion proceedings
were brought under section 212(a)(23) of the Immigration and Nationality Act based
on his conviction in 1974 of possession of marihuana in violation of Section
18.1070(41)(4)(d), Michigan Statutes Annotated. However, prior to the exclusion hearing, he moved in the Michigan Court for dismissal of the proceedings and discharge
under Section 18.1070(47), Michigan Statutes Annotated, which was granted November
25, 1975.
(2)Section 18.1070(47), Michigan Statutes Annotated, is a first offender statute. It is a
state counterpart to 21 U.S.C. 844(b)(1), the Federal first offender statute. A conviction
expunged under a state counterpart of the Federal first offender statute cannot be used
as a ground of exclusion under section 212(a)(23) of the Immigration and Nationality
Act. Compare Matter of Werk, Interim Decision 2589 (Bit& 1977).
EXCLUDABLE:

Act of 1952—Section 212(a)(23) [8 U.S.C. 1182(2)(23)1—Convicted prior to entry of a
crime related to the possession of marihuana
ON BEHALF OF APPLICANT: Janet Calvo, Esquire

Legal Aid Society
11 Park Place
New York, New York 10007

BY:

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

In a decision dated August 25, 1976, an immigration judge found the
applicant inadmissible under section 212(a)(23) of the Immigration and
Nationality Act. The applicant has appealed. The appeal will be sustained.
The applicant, a native and citizen of Jordan, was admitted to the
United States for permanent residence in 1971. Con November 18, 1974,
he was found guilty of possession of marihuana, a violation of Section
18.11070(41(4)(d)), Michigan Statutes Annotated, in the District Court or
the 87th Judicial District of the State of Michigan. He was sentenced to

253

Interim Decision #2594
pay $300 court costs, a *50.00 fine, a $4.00 statutory fee, and to serve
one years probation.
In January of 1975, the applicant returned to Jordan to visit his ailing
mother. Upon his return to this country on May 13, 1975, he was paroled
into the United States to await exclusion proceedings. Before a hearing
was held on his admissibility, the applicant moved the District Court
judge in Michigan who had sentenced him on the marihuana charge to
dismiss the proceedings and to discharge him pursuant to Michigan
Statutes Annotated Section 18.1070(47). (See Appendix A.) An order
granting the motion was issued on November 25, 1975.

The issue argued below and raised again on appeal is whether the
applicant is excludable tinder section 212(a)(23) of the Immigration and
Nationality Act in light of the action taken by the Michigan court under
Michigan Statutes Annotated Section 18.1070(47).
In a recent interim decision, Matter of Werk, Interim Decision
2589 (BIA, May 26, 1977), we held that a conviction which has been
expunged under a state counterpart to 21 U.S.C. 844(b)(1), a Federal
first offender statute (See Appendix B), will not be considered a conviction for purposes of deportation. We have concluded that the rationale of
the Werk decision should also apply to eliminate such expunged convic-

tions as grounds for exclusion under section 212 of the Immigration and
Nationality Act.
From the text of section 1M.1070(47) of the Michigan Statutes Annotated, we have concluded that the respondent's conviction was expunged under a statute which is a state counterpart to 21 U.S.C.
844(b)(1). As a consequence, the appeal will be sustained.
ORDER: The appeal is sustained and the applicant's admission as a
returning resident is authorized.

APPENDIX A

Michigan Statutes Annotated 18.1070(47).
Probation, no previous related convictions; violation of conditions; discharge and
dismissal; effect; limitation; nonpublic record, purpose; rehabilitation program; fee
See 47. (1) When any person who has not previously been convicted of any offense
under this act or under any statute of the United States or of any state relating to
narcotic drugs, coca leaves, mariluana, or stimulant, depressant or hallucinogenic
drugs, pleads guilty to or is found guilty of possession of a controlled substance under
subsection (4) of section 41 or of use of a controlled substance under subsection (5) of
section 41, the court, without entering a judgment of guilt and with the consent of the
accused, may defer further proceedings and place him on probation upon terms and
conditions. Upon violation of a term or condition, the court may enter an adjudication of
guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions,
the court shall discharge the person and dismiss the proceedings against him. Discharge

254

Interim Decision #—Appendix
and dismissal under this section shall be without adjudication of guilt and is not a
conviction for purposes of this section or for purposes of disqualifications or disabilities
imposed by law upon conviction of a crime, including the additional penalties imposed
for second or subsequent convictions under section 48. There may be only one discharge
and dismissal under this section with respect to any person. The records and identification
division of the department of state police shall retain a nonpublic record of an arrest and
discharge or dismissal under this section. This record shall be furnished to any court or
police agency upon request for the purpose of showing that a defendant in a criminal
action involving the use of a controlled substance covered in this act has already once
availed himself of the provisions of this section.
APPENDIX B

21 United States Code 844(b)(1).
If any person who has not previously been convicted of violating subsection (a) of this
section, any other provision of this subchapter or subchapter II of this chapter, or any
other law of the United States relating- to narcotic drugs, marihuana, or depressant or
stimulant substances, is found guilty of violation of subsection (a) of this section after
trial or upon a plea of guilty, the court may, without entering a judgment of guilty and
with the consent of sooll person, defer further proceedings and place him on probation
upon such reasonable conditions as it may require and for such period, not to exceed one
year, as the court may prescribe. Upon violation of a condition of the probation, the
court may enter an adjudication of guilt and proceed as otherwise provided. The court
may, in its diserotinn, dismiss the proceedings against such person and discharge him
from probation before the expiration of the maximum period prescribed for such
person's probation. If during the period of his probation such person does not violate
any of the conditions of the probation, then upon expiration of such period the court
shall discharge such person and dismiss the proceedings against him. Discharge and
dismissal under this subsection shall be without court adjudication of guilt, but a
nonpublic record thereof shall be retained by the Department of Justice solely for the
purpose of use by the courts in determining whether or not, in subsequent proceedings,
such person qualifies under this subsection. Such discharge or dismissal shall not be
deemed a conviction for purposes of disqualifications or disabilities imposed by law upon
conviction of a crime (including the penalties prescribed under this part for second or
subsequent convictions) or for any other purpose. Discharge and dismissal under this
section may occur only once with respect to any person.

255


Interim Decision #1339

Moa. J. or Guraasar..s

In EXCLUSION Proceedings
A-8755979

Decided by Board May 154964
Since appellant's absence of a month to Portugal to visit his parents is not
within Rosenberg v. Pleuti, 374 U.S. 449, despite his continuing intent not to
abandon residence here, his return to the United States following such
absence constitutes an entry upon which to predicate a ground of exclusion.
HammAux: Act of 1952—Section 212(a) (22) (8 U.S.C. 1182(a) (22) (1958) ]Ineligible to citizenship—Applied for and received relief from
service in the armed forces.

Applicant, a 55-year-old married male, a native and citizen of
Portugal, admitted to the United States for permanent residence in
1954, sought to enter the United States on February 28, 1960, after
a visit to Portugal of a month. His exclusion was ordered on the
ground that his execution on. April 30, 1943 of an application for
exemption from service in the armed forces of the United States had
made him ineligible to citizenship and, therefore, inadmissible to
the United States. Applicant's appeal was dismissed by the Board
on August 16, 1961.
Applicant requests reopening of his exclusion proceeding for a
reexamination of the circumstances surrounding his visit to Portugal
so that there may be a determination in view of Rosenberg v. Reuel,
374 U.S. 449 (1963), as to whether he intended to make a meaningful
departure. The motion will be denied.
With two exceptions, any coming of an alien from a foreign place,
whether it is a first coming or a return, is an "entry" subjecting the
alien to the exclusion provisions of the immigration law. The two
exceptions are: (1) a coming following an involuntary departure,
(2) a coming following a departure which "was not intended or
reasonably to be expected" by the alien. (Emphasis supplied.) An
alien falling within an exception does not make an "entry" upon his
return; i.e., he is regarded as if he had not left the United States
(section 101(a)

(13) of the Act, 8 U.S.C. 1101(a) (13) (1958)).
529

Interim Decision #1389 In Fleuti, supra, the Court passing on the second exception held
that an alien's departure made without the desire to disrupt his permanent residence was not an "intended" departure within section
101(a) (18) of the Act. The Court did set forth some factors relevant
in determining whether a departure had been intended to be disruptive
of residence (length of the absence, purpose of the visit, need to secure
travel documents) but preferring that interpretation evolve judicially
made no attempt to set down. a firm rule for classifying departures.
The Court did state that an "innocent, casual and brief" trip could be
one which was not "intended"; i.e., one in which the intent to disrupt
residence was absent.
The Board held that Fleuti, a permanent resident, who had briefly
visited Mexico, had been excludable on his return as one afflicted with
psychopathic personality. The Court considering whether Fleuti
came within the second exception but being unable to decide because
the record contained no detailed description or characterization of
the trip to Mexico beyond the fact that Fleuti had gone on a. visit of
a few hours, remanded the case to the Service for further consideration, stating, "If it is determined that respondent [Fleuti] did not
'intend' to depart in the sense contemplated by section 101(a) (13)
[of the Act], the deportation order will not stand * * *" (874 U.S.
463).

Applicant believes that development of the facts concerning his
visit will show that he had a continuing intent to return to the United
States and, therefore, that he did not intend to depart in a manner
disruptive of his permanent residence : he was absent for only a
month—a short time , especially so in terms of the entire period he
had been in the United States; furthermore, he had left only to visit
his aged parents in Portugal, leaving behind his wife and a, child,
a. home he owned, a business, assets, land, and a checking account.
The trial attorney opposes reopening as fruitless because of the contrast between Fleuti's excursion of a few hours and applicant's
longer absence; and Fleuti's casual departure and applicant's departure which required him to obtain a, Portuguese passport and transportation. The trial attorney also raises a new issue: he points out
that Fleuti applies only to an alien admitted for permanent residence,
but he contends that the applicant was not so admitted because his
admission on September 28, 1954, for permanent residence was in error
since he was then inadmissible as one ineligible to citizenship.
Counsel answers these contentions by pointing out that although
Fleuti was absent only a few hours, the Court in reaching its conclusion concerning the necessity for an intent to disrupt residence referred
to the fact that Congress had authorized absence .of aliens for up to
530

Interim Decision #1339
six months without penalty in naturalization proceedings. Counsel
states that Fleuti is not limited to visits to territory bordering the
United States since a trip to Mexico could cover great distances, and a
trip to other foreign lands could with today's rapid means of transportation be accomplished within a matter of hours and might not cover
as much distance as the trip to a. distant part of Mexico. He also
points out that an alien going to contiguous foreign territory is often

required to obtain a ticket for transportation and must obtain consent
of the foreign government to enter. Counsel contends that the issue
raised by the trial attorney as to whether the applicant is a legal resident, cannot be tested here but must be the subject of a deportation
proceeding; he cites Matter of V—G—, 9 I. & N. Dec.18, as authority.
We believe that applicant intended that his departure to Portugal

was to place him in a foreign place within the meaning of section 101
(a) (13) of the Act and, therefore, made him upon his return, subject
to the laws relating to aliens who are seeking to enter the United States.
Under these laws he was properly excluded. That a. resident alien's
possession of a continuing intent to return from a. visit abroad does
not remove him from the exclusion provisions of the immigration laws,
is clear from the fact that Congress provided for the readmission of 9.

returning resident who was excludable under the immigration laws;
in fact, possession of a continuing intent to return is made a condition
of eligibility for relief (Matter of
5 I. & N. Dec. 116; section
212(c) of the Act (8 U.S.C. 1182(e) (1958) ). That Fleuti did not
alter this interpretation of section 212(c) of the Act, may be seen from
the fact that Fleuti, being S. visitor to Mexico, necessarily retained

an intent to return; however, this intent to reurn did not in and of
itself exempt him from the application of the immigration laws upon
his return. This is shown by the fact that the court, despite Fleuti's
intention to return, remanded the case for a determination as to
whether Fleuti intended to depart in a manner disruptive of his residence. In view of the action taken by the court in Fleuti, and the
command of section 212(c) of the Act, we must rule that a, mere
showing by an alien that he intended to retain domicile does not establish that he did not make an "intended" departure when he left
the United States on a visit abroad.
Counsel contends that since one visiting contiguous territory may
require transportation and may travel a great distance, it is proper
to hold that a trip of equal distance to noncontiguous soil should not
be considered an "intended" departure. The reasoning is open to the
objection that Fkuti does not hold that a trip to Mexico of the nature
hypothesized would not constitute an "intended" departure.
531

Interim Decision #1339
The court's statement as to what constitutes an "intended" departure
to foreign territory and -what does not is admittedly general in nature,
but in our opinion nothing said there authorizes us to rule that applitant did not make an "intended" departure. A brief visit of a few
hours is different from the longer period involved. here; the innocent
and casual nature of a trip made by merely stepping over an international boundary contrasts strongly with the comparatively sophisticated, and planned nature of a trip requiring procurement of travel
.documents (passport and tickets), and involving the realization that
'one is separating himself from this country.
The cases relied upon by counsel are not applicable :
Matter of Cardeno,e-Pine,clo, Lit. Dec. No. 1295, involved trips to
Mexico for a few hours.

Matter of Too, Int.

Dec. No. 1305, involved a visit to Mexico for

four hours on a sight-seeing trip.
La Rochelle v. Sahli, 323 F. 2d 364, 6th Cir. (1963), was a remand
of the ease to the Service at the request of the Service. No facts
are stated.
Since we find that applicant is not within Fleuti for the reasons
stated, we do not think it necessary to consider the issue as to legal
residence raised by the Service for the first time upon this appeal.
ORDER: It is ordered. that the motion be and the same is hereby
denied.

532


Interim Decision #1649

Marl= or Papmt.s.-Mumn
In Deportation Proceedings
A-7070942

Decided by Board October 6, 1966
Since respondent, a native of Mexico, who has a permanent resident alien
child and 2 17-g- citizen children, is a "special immigrant" exempt from
the labor certification requirements of section 212 (a) (14) of the Immigration and Nationality Act, as amended by P.L. 89-238, his contention that
be comes within the proiiso to section 244(f) of the Act because of
inability, as a farm laborer, to obtain a certification from the Secretary
of Labor Is without merit, and absent a showing of ineligibility to obtain
a special immigrant visa, be is barred by the provisions of section 244(f) (3)
from establishing statutory eligibility for suspension of deportation under
section 244(a) (1) of the Act because he is a native of a country contiguous to the 'United States.
.

CEEATWE
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)1—Entered
without inspection.

This case comes forward on appeal from an Order entered by the
spacial inquiry officer on June 23, 1966 denying the respondent's

application for suspension of deportation under section 244(a) of
the Immigration and Nationality Act but granting him permission
to depart voluntarily from the United States in lieu of deportation
and directing that he be deported from the United States to Mexico
on the charge set forth in the order to show cause in the event he
fails to depart when and as required. The respondent; a 48-year-old
divorced male, native and citizen of Mexico, has resided continuously
in the United States since last entering without documents and without being examined by. an officer of the Service at of near San
Yeidro, California on or about February 15, 1953

-

Deportation pro;

ceedings were instituted against the respondent on March 22, 1966.
. A hearing in deportation proceedings was held at San Francisco,
California on March 29, 1966 at which time the respondent and
836.

Interim Decision *1649.
counsel admitted the truth of the factual allegations set forth in the
order to show cause and conceded deportability on the charge stated
therein The evidence of record clearly shows that the respondent
is subject to deportation under the provisions of section 241(a) (2)
of the Immigration and Nationality Act, n that; he entered the
United States without inspection. The respondent's application requesting that his deportation be
suspended under section 244(a) (1) of the Immigration and Nationality Act was subscribed, sworn to and submitted for consideration
at the deportation hearing held on 111arch 29, 1966. - The record
reflects that the respondent's- marriage. to a citizen of the -United
• States in November 1948 was terminated by divorce in Reno, Nevada
on September 5, 1962. Three children, two of whom are citizens of
the United States, are Issue of this union. The oldest child is a
lawful permanent resident of the United- States. The respondent's
children live with their mother in Downey, California. The respondent who has not seen his children for at least five years contributes $90 per month toward their support. The respondent declared
that his deportation to Mexico would result in hardship to himself
since he has a good job and steady employment in this country.
The record shows the respondent was deported from the United
States to Mexico through the port of San Ysidro, California on
December 9, 1948. The respondent's testimony indicates that he was
also deported from the United - States in 1952. The District Director
of Immigration and Naturalization at _Los Angeles, California - on
December 24, 1963 granted-the respondent permission to reapply for
admission after arrest and deportation. The respondent did not
return to Mexico to obtain an immigrant visa. The - record indicates
that an immigrant visa: was denied the respondent by the United
States Consul because at 'the -time he Made application therefor he
did. not have permission to reapply for adinission after deportation.
A. further recital of the rambling facts in this case is not' deemed
necessary inasmuch as they have been fully and adequately covered
by the special inquiry officer in his decision of June 23, 1966.
Counsel on appeal urged that the respondent's deportation be suspended because being a farm laborer he will not be able to obtain
the required certification from the Department of Labor prior to
the issuance of an immigrant visa. The respondent is statutorily ineligible for suspension of deportation under section 244(a) of the
Immigration and- Nationality Act, as amended, because he is a native
and citizen of Mexico which is contiguous territory. Under the
pro , •'ens of section 244(f) of the Immigration and Nationality
837

Interim Decision #1649
Act, the provisions of section 244(a) shall not be applicable to an
alien who is a native of any country contiguous to the United
States or * * * named in section 101(b) (5) : provided that the
Attorney General may in his discretion agree to the granting of
suspension of deportation to an alien specified in clause (3) of section 244(f) if such alien establishes to the satisfaction of the Attorney General that he is ineligible to obtain a nonquota (special immigrant) immigrant visa. The respondent is a special immigrant as
that term is defined in section 101(a) (27) of the Immigration and
Nationality Act as amended by the Act of October 3, 1965. Since
there has been no showing that the respondent herein is ineligible

to obtain a special immigrant visa, the relief provided for in section
244(a) (1) of the Immigration and Nationality Act is not applicable
to the respondent because he is a native of contiguous territory. If
the respondent is inadmissible to the United States under section
212(a) (17) of the Immigration and Nationality Act as one who has
been arrested and deported and has not been granted permission to
reapply for admission after arrest and deportation•this circumstance
is one that the Service can rectify by again granting the respondent
permission to reapply for admission to the United States after arrest
and deportation. .
Counsel's assertion that the respondent will be ineligible to receive
an immigrant visa because he will not be able to obtain a certification
from the Secretary of Labor as required by section 212(a) (14) of
the Immigration- and Nationality Act, as amended, is without merit.
Section 212(a) (14) of the Act, among other things, states that the
exclusion of aliens under section 212(a) (14), aupra, shall apply to
special immigrants defined in section 101(a) (27) (A) of the Act

other than the parents, spouses, or children of United States citizens
or parents, spouses of aliens lawfully admitted to the United States
for permanent residence. For the reasons hereinbefore set forth, the
following order will be entered.
ORDER: It is ordered that the appeal be dismissed.

838