Interim Decision #1729

MAT= or LAVER

In Visa Petition Proceedings
A-14863530
Decided by Board April BO, 1987
Paternity acknowledgment alone by petitioner (the natural father) of beneficiary, who was born out of wedlock in Germany in 1950, does not constitute
legitimation for immigration purposes (section 101(b) (1) (C), Immigration
and Nationality Act, as amended) since under German law legitimation is
accomplished either by the subsequent marriage of the natural parents or
upon application by the natural father that the child be declared legitimate
by order of the court or state.
ON BERMS or Swarm: It. A. Vielbaber

Appellate Trial Attorney
(Oral argument)

The case comes forward on appeal from the order of the District
Director, New York District, dated January 26, 1967 denying the visa
petition for the reason that the evidence establishes that the petitioner
was never married to the mother of the beneficiary and, therefore, the
relationship of father and child has not been established as defined
in section 101(b) (1) of the Act, as amendeil.

The petitioner, a native of Ukraine, a lawful permanent resident
of the United States, seeks preference quota status on behalf of the
beneficiary as his legitimated son. The beneficiary is a native and
citizen of Germany, 16 years old, male.
The evidence establishes that the beneficiary was born out of wedlock and that the petitioner acknowledged paternity before the district court in Bamberg on July 10, 1950. The effect of the acknowledgment of paternity is the issue in the case.
Under German law, legitimation is accomplished either by the subsequent marriage of the natural parents, 1 or upon application by the
Section 1719, German Civil Code.

210

Interim Decision #1729
natural father that the child be declared legitimate by order of the
court or state.2
Inasmuch as the beneficiary is not the legitimate nor the legitimated
child of the petitioner, he cannot qualify for preference quota status
as the child of a lawfully resident alien. The question of whether the
beneficiary is exempt from the requirement of a labor certification
pursuant to section 212(0(14) either under 8 CFR 212.8(b) (5) or
whether he can qualify for a preference under section 203(a) (6) of
the Immigration and Nationality Act may be resolved by the appropriate consular officer or the local district director.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Section 1723, German Civil Code. See also, unreported Matter of Stiehl', File
VP3-57228 (November 17, 1954) involving the same circumstances as the instant
case which occurred in 1921. The Library of Congress notifies us that there has
been no change in the German law.

211


Interim Decision #2122

MATTER OF M/V " FERROL"
In Fine Proceedings
SPM-1012.89
Decided by Board January 31,1972
Liability to fine is incurred under section 254(a) of the Immigration and
Nationality Act for failure to detain and deport an alien crewman ordered to
remain on board the vessel, where the crewman in question was admitted in
transit without visa to proceed to the vessel, joined the vessel as a crewman,
and thereafter absconded after having been ordered detained on board.
BASIS FOR FINE: Act of 1952 — Section 254(aX2) [8 U.S.C. 1284].
In re: MN "FERROL," which arrived at the port of Toledo, Ohio, from foreign,
on June 23, 1071. Alien crewman involved! LITMAN° R. L. ROASCIO
ON BEHALF OF SERVICE:

ON BEHALF OF CARRIER:

Thomas A. Clure, Esquire
Suite 700 Torrey Building
Duluth, Minnesota 55802

Charles Gordon
General Counsel
(Brief filed)

These administrative fine proceedings were instituted on the
basis of a charge that the carrier had failed to detain the abovenamed alien crewman aboard the vessel at all times despite the
fact that the Service had refused him conditional landing privileges and ordered him detained on board. The case is before this
Board upon certification by the District Director, St. Paul, Minnesota, of his order that the Notice of Intention to Fine be withdrawn and that the proceedings be terminated.
There is no dispute as to the basic facts of this matter. The alien
named above arrived by aircraft at the port of Boston, Massachusetts, on June 23, 1971. At the time of his arrival, a Form I-95A,
Crewman's Landing Permit, was given to him bearing the notation "Detained on board, adm. in transit to M/V Ferrol T.R.W.O.V."
The alien proceeded in transit to the M/V "Ferrol" which had
arrived at Toledo, Ohio, on the same date. When he arrived at the
vessel, a Form 1-410, Receipt for Crew List, was executed showing
that Roascio, Luciano, cook, arrived in Toledo TRWOV, was ordered detained on board the vessel. The Form I-410 bore a
stamped "Notice" that the crewmen listed on the Form under

"Detentions" were "to remain on board the vessel at all U.S.
18

interim i..?ecision yrzrzz
ports on this voyage" and that failure to detain on board would
result in fine proceedings.
The vessel proceeded from Toledo, Ohio, to: Duluth, Minnesota,
where the Form 1-410 was stamped, . "Received June 25, 1971
Immigration and Naturalization Service, Duluth, Minnesota."
There is a hand-written notation on the form that the alien was on
board on June 29, 1971, but was not on board on June 30, 1971. A
report of an immigrant inspector at Duluth, Minnesota,. shows
that the vessel was boarded on June 30, 1971, after a phone call
from the ship's agent that Roascio and two other crewmen were
missing.
An affidavit by the vessel's Master confirms that/ while in
Toledo, Ohio, notice was received that the thip's cook had to leave
and return to his native Italy; and on June. 23, 1971, Roascio was
placed on the vessel by the ship's agent in Italy to replace the
departed cook; that since Roascio was without a visa, the Master
was informed that Roascio was not to leave the vessel, and both
the immigration officer and the ship's officer told Roascio that he
could not leave the ship. Crewmen were placed on guard on the
dock, both at Toledo and Duluth; and upon arrival of the vessel at
Duluth, an immigration officer told him (the Master) to keep
Roascio on board the vessel. No one, however, told him to hire a
private guard.
Roascio and two other crewmen were last seen on board the
vessel at 11:20 p.m. on June 29, 1971. They are believed to have left

the ship when the first guard awoke the second guard to replace
him at midnight. Thereafter, the Master cooperated with immigration officers, furnishing them information he had available as to
Roascio's possible whereabouts and his seaman's book.
The officer-in-charge, Duluth, Minnesota, recommended that a
fine in the sum of $1,000 be imposed and that no mitigation be
allowed. His proposed order notes a possible question as to

whether section 254(a) of the Immigration and Nationality Act
contemplates only alien crewmen who are on board the vessel at
the time of its arrival in the United States, or whether it also
embraces alien crewmen who join the ship thereafter. He resolves
the issue by the following reasoning.
Section 254(a) directs an agent or Master, among others, of a
vessel arriving in the United States, to detain an alien crewman
on board after inspection, unless a conditional permit to land
temporarily has been granted under section 252 of the Act, under
penalty of $1,000 fine for each alien crewman as to whom there is a
failure of detention. The language "arriving in the United States
from any place outside thereof' primarily differentiates between
vessels in foreign trade and those engaged solely in coastwise or

19

.

Interim Decision #2122
intra-United States trade. Liability under section 254(a)(2) has
been upheld without exception in eases where the violation occurred after the vessel had "arrived" and had sailed coastwise to
other ports. Matter of M/V "Oceanic Amity", 13 I. & N. Dec. 418
(BIA, 1969), affirms the statutory right ro reinspect at subsequent
ports of arrival. Part (8) of section 254(a) imposes a penalty for
failure to deport an alien crewman whether that requirement is
imposed "before or after the crewman is permitted to land temporarily." In the view of the officer-in-charge, the conclusion is

inescapable that the words "arriving in the United States," preceding both parts (2) and (3) of section 254(a), must have wider
application than to the point of time of the vessel's first arrival in
the United States. The M/V "Ferrol" was, therefore, an "arriving"
vessel, and subject to section 254(a) requirements. Since Roascio
was a crewman under a detention order at the time he absconded,
there was liability to fine under section 254(a)(2).
The District Director at St. Paul, Minnesota, has disapproved
the recommendation of the officer-in-charge at Duluth. He has
concluded that there is statutory authority to reinspect only a
nonimmigrant -crewman. It is his view that, while a nonimmigrant
may have his classification changed in the United States under
the procedure set forth in section 248 of the Act (8 1258),
this is not permitted under section 238(d) of the Act (8 U.S.C. 1228)
to one admitted under the transit without visa privileges. Accordingly, he concluded that the action taken on June 23, 1971, at
Toledo, Ohio, "changing" the alien's nonimmigrant classification to
that of a.rionimmigrant crewman under paragraph 15(D) of section
101(a), 8 U.S.C. 1101, was contrary to the Act and without force.
Since he could not be given a change of classification to that of a
nonimmigrant crewman, the District Director found that there
was no statutory authority to order him detained on board
pursuant to section 252 of the Immigration and Nationality Act (8
U.S.C. 1282). Hence, he found that liability to a fine under section
254 of the Act had not been incurred.
The District Director's order points out that he has at least one

other fine proceeding pending, involving the same factual situation, except that the reinspection occurred at a port of entry in
another district. The District Director also points out that his
decision contermands procedures followed in at least two other
districts of the Service. He has, therefore, certified the case to this
Board for review.'

1

The General Counsel has pointed out in his brief that the District Director's

decision actually evuntennancla existing Servicc wide procedures.

20

Interim Decision #2122
The issue presented is whether liability to an administrative
fine under section 254(a) of the Immigration and Nationality Act is
incurred for failure to detain and deport an alien crewman ordered
to remain aboard a vessel, where the crewman in question was
admitted in transit without visa to proceed to the vessel, joined
the vessel as a crewman, and thereafter absconded after having
been ordered detained on board. As indicated in the brief submitted by the General Counsel, Immigration and Naturalization
Service, the problem thus presented is a novel one.
The General Counsel has asked this Board to take administrative notice of the fact that alien crewmen are frequently admitted,
usually in an emergent situation, to replace the loss of a crewman
on a vessel in the 'United States, in the manner that took place in
this instance. From time to time in the past, such cases have
arrived at the Board, but the sole issue raised has been that of
mitigation. We have also had cases presented in such situations
where the question has been whether an air carrier has incurred
liability to a fine under section 273(a) of the Act (8 U.S.C. 1323), for
bringing to the United States without visas passengers who were
in fact crewmen destined to a specific vessel in this country, but
the issue in those cases was solely whether or not the carrier
bringing them to the United States was party to an agreement
under section 238 of the Immigration and Nationality Act and
whether the aliens involved were presented as being brought
therunder.
In this case, Roascio was a crewman by occupation. On arrival
at Boston, he was admitted in transit for the sole purpose of
pursuing his calling as a crewman by ,proceeding directly to the
M/V "Ferrol." The document reflecting that arrival was the document that the Service uses for crewmen, a Form I-95A "Crewman
Landing Permit." When Roascio arrived at. Toledo, Ohio, and
joined his vessel, the purpose of his transit• without visa admission
was fulfilled. The document given him at Boston no longer had
any meaning or validity. It was a nullity. Roascio no longer had
any TRWOV status to be "changed" to some other status.
Toledo is a designated port of entry for all aliens, 8 CFR
100.4(c)(2) (District 24). At Toledo, Roascio was subjected to immigration inspection. It was found that he was a crewman, but that

he had no crewman visa or other documents. It was determined
that he would be allowed to pursue his duties as a crewman on
board the vessel, but would not be permitted to go ashore. There is
no doubt that he was a member of the crew from that time on. He
was added to the crew list, as reflected by the Form 1-410, the
affidavit of the Master, and from the appearance of his name on
the crew list submitted at the time of the departure of the vessel
21

Interim Decision #2122
from Duluth on June 2, 1971. The Master was fully on notice of the
alien's status as a crewman who must be detained on board and of
the liability to a fine for failure to detain him.
When Roascio submitted himself to the immigrant inspector at
Toledo, he was seeking a new admission to the United States just
as surely as if he had proceeded into Canada or some other
country and thereafter sought reentry on the WV "Ferrol." The
immigrant inspector found, as had a previous inspector at Boston,
that he could not be permitted to land for lack of proper documentation. As is customary, he was permitted to remain on board his
vessel, without landing privileges. Yet in doing this the Service
was hardly continuing his transit without visa privileges, which
had already been fulfilled, nor was it according him any other
status than that precisely delineated in the notice to the carrier.
It does not seem reasonable that the United States should be
disadvantaged in its administration of the laws governing the
control of alien crewmen, because it recognizes the possibility that
emergent situations may require replacement of a crewman on a
vessel in United States waters. Clearly, the carrier involved in this
case was not prejudiced by the procedure followed. On the contrary, not only was Roascio permitted to proceed from Boston,
Massachusetts, to Toledo, Ohio, without any immigration documents, and join the vessel, but the carrier was fully and immediately put upon notice that Roascio had been inspected as a
member of the crew at Toledo, Ohio, and Ghat he lacked documents
and could not be admitted. Indeed, the affidavit of the Master, and
even the brief submitted in support of the carrier's notice of
protest to imposition of the fine, reveal complete awareness of this
fact.
Conceivably, the Service could have said to Roascio at Boston,
Massachusetts, "You cannot be admitted here, but you can go to
Canada and from there proceed to Toledo and seek entry on your
vessel." This would have avoided the issue and arrived at the same
result. Yet this would have been a narrow aproach to the law,
meriting criticism of Service action as unresponsive to the needs of
the carrier.
In summary, it is the Service position that when Roascio
completed his transit and arrived at Toledo, the moment he
stepped on board the WV "Ferrol," his transit privileges were
completed in all aspects. He no longer had any transit without visa
status "to be changed" into some other ninimmigrant status. He
had no immigration status whatsoever at that hypothetical point
in time. What took place thereafter was a new 'application for
admission as a crewman at the port of entry into the United
22

Interim Decision #2122
States, just as surely as if his transit had taken him across the
border into Canada.
A somewhat analogous situation exists where an alien enters
the United States in transit in pursuit of his calling as a crewman
to join a vessel in the United States, but after entry abandons his
calling as a crewman and later seeks adjustment of status under
section 245 of the Immigration and Nationality Act, a relief barred

to one who entered as a crewman. This Board has consistently
held that since it was the intent of Congress to bar from adjustment all occupational crewmen who entered by reason of their
occupation, the significant question is whether the alien entered in
pursuit of that calling. The technical recording of entry in transit
has not been permitted to defeat the intent of the statute, Matter
of Concaves, 10 I. & N. Dec. 277 (BIA, 1963); and Matter of Tzimas,

10 L & N. Dec. 101 (BIA, 1962). By analogy, the fact that Roascio
was permitted to transit the United States without a visa in
pursuit of his calling as a crewman should not be permitted to
defeat the Congressional intent for a rigid control of crewmen
entries, and liability for a fine where an alien, occupationally a
crewman, is allowed to debark in violation of the law.
In the light of the foregoing, we agree with the General Counsel
that the District Director's order was incorrect and that liability to
a fine has been incurred in this instance. However, as the General
Counsel has noted, because of the District Director's order terminating proceedings he has not ruled on the recommendation that

there be no mitigation of the fine. We will, accordingly, remand the
case for consideration by the District Director of this aspect of the

matter.

ORDER: It is ordered that the District Director's decision of
August 31, 1971, be withdrawn and that the matter be remanded to
that official for appropriate action not inconsistent with the
foregoing opinion.

23


MATTER of N—
In DEPORTATION Proceedings
A-11500333

Decided by Board October 27, 1961
Misrepresentation-Materiality-Section 212(a)(19)-Failure to reveal arrest
and pending criminal proceeding.
Respondent's willful nondisclosure in his visa application of an arrest three
days earlier on a criminal charge of embezzlement is held to be a material
misrepresentation within section 212(a) (19) of the Immigration and Nationality Act since the consular officer would not have issued the visa if
the facts were known and would have postponed action on the application
until there had been a final disposition of the pending criminal proceeding.
CHARGES :

Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry under S U.S.C. 1182(a) (19)—vid. inocuit d by fraud or
misrepresentation.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) ]—Excludable
at entry under 8 U.S.C. 1182(a) (20)—Immigrant visa not valid.

BEFORE THE BOARD

DISCUSSION: This case is before us on appeal from the special
inquiry officer's decision of June 30, 1900, directing the respondent's

deportation.
The respondent is a 39-year-old unmarried male, native and citizen of Ireland, who last entered the United States on August 22,
1958, at which time he was admitted for permanent residence as a
quota immigrant. He had not previously resided in this country
but had been here in 1955 for a visit. He was arrested in England
on July 15, 1958, on a charge of embezzlement. The special inquiry
officer found that the respondent willfully misrepresented to the
consular officer, in his visa application on July 18, 1958, that he had
never been arrested. On that basis, he sustained the two charges

stated above. The only issues are whether the respondent is deportable and, if so, whether voluntary departure should be granted.
We have carefully reviewed the entire record. The respondent tes-

tified that from 1935 (when he was about 13 or 14 years old) until
about July 18, 1958, he had been a member of a religious order
506

known as the Brother of St. Francis Xavier. During the last nix
years, he had been Secretary of Clapham College. He stated that
as such he was a civil servant employed by the government. The
college was partly supported by government funds although the
property belonged to the religious order.
The respondent testified that he was hired as Secretary of Clapham College by the local education office of the London County
Council ; that the council had sole jurisdiction over this college and
hired and discharged teachers and secretaries; that he received no
salary from the college; that he was an employee of the London
County Council; and that he received from the London County
Council monthly salary checks which were made out in his own name.
He also stated that this salary belonged to him although it was
pooled in one bank account with the salaries received by other
brothers. During the six years that the respondent was Secretary
of Clapham College, his salary checks which were deposited in this
bank account amounted to about 2,000 pounds. He and Brother
Peter (Mr. Poynton) were authorized to draw checks on the account.

Over a period of about six months prior to July 1958, the respondent withdrew approximately 750 pounds from the account but he returned about 550 pounds. On July 15, 1958, he was arrested on a
charge of embezzling 200 pounds from the college. He stated that
he did not consider that he was guilty of embezzlement because the
funds he withdrew for his own use were really his own money that
he had deposited. He testified that after his arrest representatives
of the London County Council inspected his books and cleared him
of any charge of improper conduct or embezzlement and that Mr.
Poynton, the headmaster, who had made the complaint against the
respondent, stated that he was going to drop the charge. However,
the respondent did not produce confirmation of this from Mr. Poynton or any other person, and Exhibit 7 shows that the criminal
charge against the respondent was still pending in February 1960.
When this case was previously before us on July 2, 1959, we directed that the proceedings be terminated. On November 19, 1959,
the Service filed a motion for reconsideration. The Board addressed a letter to the Department of State on December 31, 1959,
with a view of obtaining certain additional information. Following
receipt of a reply from the. Department of State on March 20, 1960,

we entered an order on April 18, 1960, reopening the hearing, and
it is from the special inquiry officer's subsequent decision adverse to
the alien that this appeal was taken.
The respondent again testified during the reopened hearing. The
principal new testimony was that, in addition to withdrawing funds
from the checking account for his use, it was the practice that he
should also withdraw funds upon the request of the other brothers
507

who had money deposited in it; that he recorded all the sums withdrawn in the account books; that the books were examined monthly
by his superior; and that it was due to his having recorded the
amounts he had withdrawn that his superior became aware of these
withdrawals.
With the exception of the respondent's testimony, thi , only additional evidence which was made part of the record during the reopened hearing was Exhibit 7. It includes a copy of the respondent's visa questionnaire which was received by the American Visa
Section on May 27, 1958. This contains the respondent's statement
in Item 30 that he had never been arrested, which statement was correct as of that date.
-

Exhibit 7 also contains a memorandum dated February 29, 1960,

by the consular officer (L—L--) who interviewed the respondent on
July 18, 1958, and issued the visa to him. In her memorandum,
L—L-- stated that, inasmuch as police records are not available in
the United Kingdom, applicants for visas are questioned very closely
concerning offenses and that each applicant is asked the following
three questions in this connection : "Have you ever been involved
with the police in any way whatsoever? Have you ever appeared
before a police constable, judge cr other law enforcement officer for
any reason whatsoever? Have you even been charged with even a
minor offense such as parking violation or traveling on the railway

without paying the fare?" L—L— then said that the respondent
must have answered "no?' to all of these questions, because if he had
answered affirmatively to any of them "he would have been required
to supply the Embassy with a court record or related documentation."
In a deportation proceeding, the burden of proof is on the Government except that under 8 U.S.C. 1361 the burden of proof is on this
respondent to show the time, place and manner of his entry. These
facts are established by the respondent's immigrant visa. Under
8 U.S.C. 1252(b) (4), no decision of deportability shall be valid unless it is based upon reasonable, substantial and probative evidence.
8 U.S.C. 1182(a) (19) provides for the exclusion of an alien "who
* * * has procured a visa * * * by willfully misrepresenting a material fact." Hence, in order to sustain the first charge stated above,
the Government must establish by reasonable, substantial and probative evidence that the respondent (1) made a misrepresentation,
(2) that it was mado willfully, and (3) that it related to a material

fact.
Counsel asserts that it was error to admit L—L—'s memorandum
in evidence. However, it is well settled judicially that the strict
rules of evidence need not be followed in immigration hearings.
United States ex rel. Ali v. Tod, 264 U.S. 131, 133 (1924) ; United
508

8tates ex rel. Impastato v. O'Rourke, 211 F.2d 609 (C.A. 8, 1954),

cert. den. 348 U.S. 827. Accordingly, we hold that there was no
error in the admission of this memorandum.
Counsel also contends that there are certain deficiencies in
L—L 's memorandum and that it has no probative value. It is
true, as counsel asserts, that L—L--'s memorandum was not under
oath ; that it was not signed by her; that she did not state the source
of her information; and that the memorandum is dated over one
and one-half years after the respondent appeared before her for interview. While these technical objections are present, and although
counsel objected to the admission into evidence of L L 's memorandum and the other papers comprising Exhibit 7, he made no
request at the hearing nor in his brief that her testimony be taken
—

—

by deposition or interrogatory. We conclude that this memorandum

constitutes probative evidence that L—L— did ask this respondent
the three questions mentioned above and that he answered in the
negative.
The respondent admitted that his signature appears on the application for immigrant visa, and that this document was executed
by him on July 18, 1958, before the American Vice-Consul at London, England. He also admitted that he was sworn by the consular
officer, but apparently his claim is that he did not know that he
was swearing relative to the truth of the contents of the visa application. The respondent testified that he did not read the visa application; that it was not read to him; that he did not know its contents; and that he was not asked on July 18, 1958, whether he had
ever been arrested. As counsel has asserted, L—L— made no statement in her memorandum as to whether the respondent read the visa
application nor whether it was read to him. However, we had made
no specific request for this information in our letter to the Secretary
of State on December 21,1959 (part of Exh. 7)_
A regulation of the Department of State [22 CFR 42.117 (b)] provides that the applicant shall be required to read the application
for an immigrant visa when it is completed, or that it shall be read
to him in his language or that he shall otherwise be apprised of its
full contents. The prior regulation [22 CFR 42.30(f)] was similar.
There is a rebuttable presumption of official regularity which, under
22 CFR 42.117(14, raises the presumption that the consular officer

informed the respondent as to the contents of the visa application,
including the item concerning arrests. Considering the respondent's
testimony and L—L--'s memorandum in the light of the presumption
mentioned, we hold that the Government has established by reasonable, substantial and probative evidence that the respondent was
sworn to his application for immigrant visa and that he was then
aware that it contained the false statement that he had never been
arrested.
509

The respondent knew that he had stated in the visa questionnaire
that he had not been arrested. He does not say that when he subsequently appeared before the consular officer on July 18, 1958, he had
forgotten the arrest which occurred only three days before that, but
he claims only that he did not realize that the consular officer would
he interested in the arrest. We are not persuaded by the respondent's claim and we conclude that the Government has established that
the misrepresentation was made willfully.
The remaining question is whether the misrepresentation related
to a material fact, and we have considered this case in the light of
the Attorney General's decision of October 2, 1961, in Matter of Sand B—C—, 9--436. As we have indicated above, L—L—'s memorandum is to the effect that if the respondent had revealed his arrest,
he would have been required to supply pertinent information from the
court. We believe it is obvious that the consular officer would not
have issued a visa to the respondent if she had known that a criminal
charge of embezzlement was pending against him and that she would
have postponed action on the application until there had been a final
disposition of the criminal proceeding Under these circumstances,
we hold that the respondent's arrest was a "material fact" within the
purview of 8 U.S.C. 1182(a) (19) and we conclude that the first charge
is sustained.
The second charge is that the respondent was excluchble at. entry

because his visa was invalid. Since we have held that the visa was
procured by a willful misrepresentation of a material fact, it follows that the respondent was not in possession of a valid unexpired
immigrant visa as required by 8 U.S.C. 1182(a) (20) and we hold
that the second charge is sustained. The Service apparently contended that any incorrect statement in an application for immigrant
visa renders the visa invalid. In view of the conclusion which we

have reached, it is unnecessary to consider this contention of the
Service and we decline to express any opinion on that point.
The Service insisted during the oral argument that it had not requested a reopening of the hearing and that we did not grant or deny
the motion for reconsideration. Actually, on April 18, 1960, we
specifically ordered that the motion of the Service he granted insofar as it requested reconsideration. Furthermore, the Service had
stated in its motion of November 19, 1959, as well as during the last
oral argument, that we acted prematurely in finding that the Government had not established that there was a willful misrepresentation inasmuch as the special inquiry officer had sustained counsel's
objection to the Government's offer of a telegram dated August 29,
1958, from the American Embassy at London, England. Hence, we
considered it necessary to reopen the hearing for the purpose of
affording the Government an opportunity to again offer this evidence
510

and also to incorporate into the record the information which had
been obtained from the Department of State.
In his brief on appeal, counsel stated that certain aspects of the
case had been covered in his two prior briefs and during the hearing.
In accordance with his request, we have taken these into consideration. Although counsel asserts that the statute provides that decisions upon review are to be based solely upon the evidence adduced
at the hearing before the special inquiry officer, he neglected to
furnish any reference to the section on which he relies. "While
8 U.S.C, 1226(a) is to that effect, it relates only to exclusion proceedings whereas the respondent's case is a deportation proceeding.
As to such proceedings, there is no similar statutory provision. In
addition, the new evidence (Exh. 7) and the further testimony of
the respondent were made part of the record in the reopened hearing

before the special inquiry officer who then considered this evidence
and rendered a new decision. Accordingly, we believe that the
procedure followed was proper and this contention of counsel is
dismissed.
Counsel urges that it is the rule in the courts that newly discovered
evidence may be introduced only when it could not have been obtained by reasonable diligence before the order or judgment. Whatever the rule may be in the courts, 8 CFR 3.8 requires only that
motions to reopen shall be supported by affidavits as to the new
facts to he proved, and there is nothing therein which would limit.

it to such facts as could not have been adduced at the original
hearing.
Counsel contends that no statutory authority exists for the Board
to reopen a deportation hearing. 3 U.S.C. 1103(a) provides that the
Attorney General "shall establish such regulations * * as he deems
necessary for carrying out his authority under the provisions of
this chapter." in accordance therewith, .8 CFR 3.1(d) (1) provides

that, with certain exceptions, this Board "shall exercise such discretion and authority conferred upon the Attorney General by law as
is appropriate and necessary for the disposition of the case * * *."
8 CFR 3.2 provides, in part, "The Board may on its own motion
reopen or reconsider any case in which it has rendered a decision,"
and 8 CFR 3.8 sets forth the procedure where a motion to reopen or
to reconsider is filed on behalf of the alien or on behalf of the Service. Accordingly, we reject this contention of counsel.
It is also asserted by counsel that we should not have written to
the Department of State and that, in doing no, we performed an in
vestigative function. We do not regard the writing of a letter to

the Department of State as the performance of an investigative function. In our order of April 18, 1960, we stated that, upon consideration of the motion of the Service dated November 19, 1959, we were
511

of the opinion that certain additional information from the Department of State was required. We believe it is apparent from our
letter of December 31, 1959 (a copy of which is part of Exh. 7),
that the information requested had a direct bearing on the issue in
the respondent's case and that it did not .constitute an attempt to
obtain merely information adverse to the respondent. Some of the
information received was advantageous to him For example, the

questionnaire corroborated his testimony that he had submitted this
form prior to his arrest, and that the affidavit of support dated
May 5, 1958, indicates that the consular officer must have been aware
that his immigration to the United States was not being sponsored
by his religious order. 8 CFR 3.1(d) (2) provides that the Board
may return a case to the Service for further action without entering
a final decision on the merits and 8 CFR 3.1(d) (1) confers upon
the Board such authority of the Attorney General as is appropriate
and necessary for the disposition of a case. Under these circumstances, we could have remanded the case to the Service to obtain
the required information from the Department of State, and we
fail to perceive any manner in which the respondent was prejudiced
because the Board instead communicated with that Department.
Hence, we dismiss this contention of counsel. His remaining contentions concerning the issue of deportability are without merit and
do not require specific discussion.
The second issue in this case is whether voluntary departure

should be granted. 8 U.S.C. 1254(e) permits the granting of that
relief if the alien establishes gOod moral character for at least five
years preceding his application. Since we have found that the respondent made a willful misrepresentation of a material fact to the
consular officer on July 18, 1958, we hold that he fails to meet the
good moral character requirement for that reason, and he is not
eligible for voluntary departure. Accordingly, that application will
be denied.
ORDER : It is ordered that the application for voluntary departure
be denied.
It is further ordered that the appeal be and the same is hereby
dismissed

512


Interim. Debision #1438

MIT= Or

COLLETT!

In Visa Petition Proceedings

• A-13417458

Decided by Assistant Commissioner March, 5,.1965
A tailor who has had at least 5 years' Journeyman experience in all of the hand
and/or machine sewing operations necessary to make an entire garment,
such as a snit or overcoat, is accorded first preference quota classification
under section 203(a) (1). Immigration and Nationality Act, as amended,
regardless of his age at the time he acquired such experience.

[Matter of R-

9 L & N. Dec. 299, overruled.]

On December 11, 1964 the Regional Commissioner, Southeast
Region, Richmond, Virginia, affirmed. the decision of the District
Director, Philadelphia, Pennsylvania, who had. denied the visa petition to accord the beneficiary first preference classification under
section 203(a) (1) (A) of the Immigration and Nationality Act.
Thereafter, the Regional Commissioner reopened the petition on his
own motion and, on February 11, 1965, entered an order withdrawing his decision 'of December 11, 1964 and approving the petition.
Since the Regional Commissioner's order of February 11, 1965 was
contrary to the decision of July 10, 1961 by the Assistant Commissioner, Central Office, in the Hatter of
9 L & N. Dec. 299, the
Regional Commissioner certified. his order of Febivary 11, 1965 toy
this office.
The beneficiary is a native and citizen of Italy born. November 8, .
1937. From 1952 to 1956 he served his apprenticeship as a tailor
in Italy. Except during the period July 12, 1959 to December 5,
1960 when he was performing military duty iri the Armed Forces
of Italy, the beneficiary was continuously 'employed in his native
country as a, journeyman tailor from 1956 r nil August 1963 when
he came to the United States. At the time of the adjudication of
the petition by the District Director, the beneficiary had over five
years' journeyman experience, but only about 48 months of which
was acquired after his 21st birthday.
71.

Interim Decision #1438
The District Director had denied the petition on the ground that
the beneficiary did not have five years' journeyman experience as
a tailor, acquired after the age of 21 years, as required by the Matter
of AS—, supra. The Matt& of 8— recited that, after consultation
with representatives of labor and industry the Service had concluded
that an aggregate of five years' actual working experience as a journeyman tailor in the performance of all hand and/or machine sewing operations to make an entire garment, such as a suit or overcoat,
was necessary for an individual to be recognized as a skilled tailor.
Based upon Service experience prior to July 10, 1961 indicating that
many young tailors were deserting the tailoring field after having

gained admission to the United States as first preference quota immigrants, it was further decided in the Matter of B— that the five
years' joUrneyman experience must have been acquired after the beneficiary's 21st birthday in order to qualify for first preference

classification.
Upon further consideration, it has now been concluded that a
tailor who has had at least five years' journeyman experience in all
of the hand and/or machine sewing operations necessary to make
an entire garment, such as a suit or overcoat is qualified as a. skilled
tailor; regardless of his age at the time he acquired such experience.
Therefore, the decision in the Matter of 8—, 9 Z. & N. Dec. 299, is
hereby overruled.
The record establishes that the beneficiary has had the requisite
journeyman experience to qualify as a skilled tailor. The petitioner
has established an urgent need for the beneficiary's services in that
capacity.
The Regional Commissioner's decision of February 11, 1965 approving the petition is affirmed.

ORDER: It is ordered that the petition be approved.

72


Interim Decision #2899

MATTER OF FAKALATA
In Visa Petition Proceedings
A-22464956
Decided by Board March 10,

1982

(1) In order to prove that a customary adoption is valid for immigration purposes, the
petitioner must establish that the adoption creates a legal status or relationship which
is recognized by the government of the place where it occurred as carrying with it
substantial legal rights and obligations.
(2) Notwithstanding that the Crown Solicitor of Tonga is of the opinion that customary
adoptions in that country create a new parent and child relationship, the facts indicate
that this relationship is nett archaise of the natural parents, does not give the adopted
child rights and duties comparable to a natural legitimate child, and does not have any
legal effect under Tongan law.
(3) Where the petitioner has failed to prove that customary adoptions in Tonga create
a parent and child relationship which establishes legal rights and obligations that are
sanctioned by Tongan law, such adoptions are not recognized as valid under United
States immigration laws. Matter of Palelsi, 16 I&N Dec. 716 (BIA 1979) reaffirmed.
(4) Although a Tongan customary adoption was recognized as valid for immigration purposes in Mile v. District Director of Denver, Colorado, 494 F.Supp. 998 (D. Utah
1980), that decision is not binding in cases, as the instant one, arising outside of the
jurisdiction of the District of Utah.
ON BEHALF OF PETITIONER: Terry J. Habash, Esquire
Simmons and Ungar

417 Washington Street

San Francisco, California 94111
BY:

Milhollan, Chairman; Manietis, Maguire, Morris, and Vacca, Board Members

The lawful permanent resident petitioner applied for preference status on behalf of the beneficiary as his adopted son under section 202(a)(2)
of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). In a decision dated October 1, 1979, the District Director denied the petition.
The petitioner has appealed from that decision. The appeal will be
dismissed. The petitioner is a 72-year-old native and citizen of Tonga. The beneficiary is also a native and citizen of Tonga who was born the legitimate
son of the petitioner's cousin on June 80, 1061. At the age of 9 months,
the beneficiary was taken into the petitioner's home and was raised as a
213

Interim. Decision #2899
member of his family. The petitioner argues that under these circumstances the beneficiary qualifies as his adopted son under the customary
law of Tonga_
The District Director denied the petition on the ground that the
"adoption" did not create a legal status or relationship under Tongan
law and therefore was not legally valid. In reaching this conclusion, he
relied on our decision in Matter of Palelei, 16 I&N Dec. 716 (BIA 1979),
where we found that a customary adoption in Tonga would not be considered valid for immigration purposes: In that decision we noted the
opinion of the Crown Solicitor of Tonga which stated that a customary
adoption was not recognized as legally valid under the law of that country.
On appeal, the petitioner has submitted another opinion from the

Crown Solicitor of Tonga dated July 18, 1980,-which states, in pertinent
part:

In Tonga, there is no reported law" concerning parental rights and duties and children's
rights and duties•when customarily adopted. Tongan customary adoptions are an important aspect of our traditional culture and continue to be practiced today very commonly.
There is no need for anyone to go to the courts to enforce parental rights or duties or
children's rights or duties because everyone understands that customarily adopted
children are treated in all respects is if they were legally adopted except that they
cannot inherit. Even illegitimate children adopted according to our statutory law cannot
inherit, but they also are considered legally adopted_
Customary adoptions used to [sic] prior to our Constitution allow the adopted children
to succeed to estates and titles, but the Constitution forbade the inheritance or succession by adopted children. But, the Constitution did not outlaw customary adoptions.
They have continued until this day. Many families in Tonga have one or more members
who are adopted. The adopted children cannot succeed to the estates of their parents,
but in all other ways, they are considered the real children of their adopting parents.
Such adoptions have the effect in Tonga of creating a parent and child relationship_

Accordihg to the petitioner, the Crown Solicitor's statement that customary adoptions create a parent and child relationship indicates that
such adoptions are legally recognized in Tonga. Citing our decisions in
Matter of Ng, 14 I&N Dec. 135 (BIA 1972), and Matter of Yue, 12 I&N
Dec. 74? (BIA 1968), he notes that the Board has previously recognized

customary adoptions as valid for immigration purposes, He therefore
contends that we should overrule our decision in Mader of Palelei,
supra, and find his customary adoption of the beneficiary valid for immigration purposes. After careful consideration, we decline to so act.
The Board has indeed accorded preference status based upon a claimed'
customary adoption under Chinese law. See Matter of 'Rodriguez, 14
I&N Dec. 335 (BIA 1973); Matte• of Poon, 14,I&N Dec. 155 (BIA 1972);
Matter of Ng, supra; Matter of Yue, supra.

However, the customary law applied in those cases consisted of an
established system of law which was based on the Ching Code. The law
set forth specific rules relating to adoption and was recognized in the

Chinese courts as determinative of the validity of customary adoptions
214

Interim Decision #2899
and the legal rights and duties of the parents and children involved in
them. See Matter of. Poon, sizpra; Matter of Ng, supra; Matter of Chin,
12 I&N Dec. 240 (BIA 1967). Thus;_ where we have found that the
claimed adoptions did not comply with the provisions of that customary
law, we have considered them invalid for immigration purposes. See
Matter of Lee, 15 I&N Dec. 221(BIA 1975).
On the other hand, in countries where adoption is practiced according
to local custom, but does not create substantial legal rights and obligations which are sanctioned by the government as having legal force, the
Board has declined to give such customary adoptions recognition. See
' Matter of Benjamin, 15 I&N Dec. 709 (BIA 1976); Matter of Rehman,
15 I&N Dec. 512 (BIA 1975); Matter of Mozeb, 15 I&N Dec. 430 (BIA
1975); Matter ofBh,egani, 15 I&N Dec. 299 (BIA 1975); Matter of Kong,
14 I&N Dec. 649 (BIA 1974), motion to reconsider denied, Matter of
Kong, 15 I&N Dec. 224 (BIA 1975); Matter of Ashree, Ahmed and
Ahmed, 14 _UN Dec. 305 (BIA 1973); Mattel' of Boghdadi, 12 I&N Dec.
6 (BIA 1968); Matter of B-, 9 I&NDec. 521 (BIA 1961).
We must therefore determine whether customary adoption in Tonga
creates a legal status which is recognized by the government in that
country as carrying with it substantial legal rights and obligation& The
evidence which best indicates the Tongan government's position regarding customary adoption consists of the two opinions offered by the Crown
Solicitor. In the first of those opinions, which we cited in Matter of
Palelei, supra, the Crown Solicitor unequivocally pronounced that "there
is no provision in our law for the adoption of children born legitimately"
and that a customary adoption "is not recognized as legally valid under
Tongan law." He further notes in his second opinion that there is no
reported law concerning the rights and duties of parents or children
"involved in customary adoptions. This lack of judicial law is attributed
to the fact that "everyone understands that customarily adopted children are treated in all respects as if they were legally adopted except
that they cannot inherit." In conclusion, the Crown Solicitor states that
customary adoptions have the effect in Tonga of creating a parent and
child relationship.
Other evidence relating to the legal effect of customary adoptions in
Tonga includes a statement from Mr. William Clive Edwards, who states
that he is a licensed lawyer• of the Supreme Court of Tonga, and a
monograph entitled "Tongan Adoption." Morton, Tongan Adoption, in
Transactions in Kinship—Adoption and Fosterage in Oceania 64 (L Brady
ed. 1976). Mr. Edwards asserts that the law "in Tonga only enables
illegitimate children to be adopted and it does not allow for adoption of
legitimate issues." Mr. Morton offers the following statement in regard
to adoption transactions in -Tonga:
The Tongan government sanctions only a few of these adoptions. Few applications for

,

Interim Decision #2899
legal adoption are made to the courts because the circumstances of Tongan adoption are
often incongruent with the European model of adoption applied in the courts.

Morton, supra, at 65.

According to these sources, the statutory law of Tonga only provides
for the adoption of illegitimate children and does not officially recognize
the adoption of legitimate children as establishing any rights or duties of
the parties. involved.' From this we must conclude that customary

adoptions, which are apparently accomplished without the benefit of
any ceremony or formal proceedings, do not create a legal status or
relationship under Tongan law.
The petitioner argues that the Crown Solicitor has indicated that
customary adoptions are legally recognized in Tonga by his statement
that these adoptions create a parent and child relationship. However,
our examination of Mr. Morton's treatise on adoptions in Tonga persuades us that the parent and child relationship resulting from a customary adoption does not carry with it such rights and obligations as we
would characterize as legally sanctioned. For example, he states that
lijn contrast to Western practices of child rearing, the rights and duties
of jural parenthood extend to a large number of kinsmen, neighbors,
and friends." Morton, supra, at 65. He further explains that children
are considered to be valuable resources which are essentially shared
among kinsmen and that adoption transactions are a means of strengthening the bonds of kinship. (pp. 73, 76, 77).
According to Mr. Morton, the adoption of a child does not significantly
alter his kinship status as acquired at birth through his natural parents,
but rather provides him with two overlapping kindreds because most
adoptions take place between blood relatives (p. 77). Since an adopted
child's relationship to his natural parents is generally a continuing one,
he benefits from the adoption in that it gives him the advantage of
manipulating his kinship status by stressing his relationship to either.

his natural parents or his adoptive parents (pp. 77-78, 80).
Although a new parent and child relationship may be created through

customary adoption in Tonga, it appears that it is not exclusive since the

relationship of an adopted child to his natural parents is diminished only
by his own choice. A system which gives an adopted child the option to
maintain a legal relationship with his natural parents is inconsistent
with our concept of adoption and with section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1)(E). Consequently, we
are not convinced that the parent and child relationship resulting from
Tongan customary adoption creates rights and duties which we would
According to Mr. Edwards and the opinions of the Crown Solicitor of Tonga, Cap. 19 of
the Laws of Tonga sets forth a procedure forth adoption of illegitimate children_ That

type of adoption in Tonga is not now before us, so we need not determine its validity for
immigration purposes at this time.

216

Interim Decision #2899
recognize as enforceable by law:
Also of significance to our inquiry is the fact that the Constitution of
Tonga prohibits the inheritance of land by children who are adopted

according to customary practice. Although the petitioner notes that the
Board has found Chinese customary adoptions which bestowed no succession rights to be valid for immigration purposes in Matter of Ng,
supra, and Matter of Yne, supra, we believe, that the situation presented here is distinguishable. Under Chinese customary law, two kinds
Of adoption exist: (1) adoption of a male child for the purpose of instituting him as an heir for perpetuation of the ancestral cult, which requires
that the child come from the same kindred and have the same surname,
and (2) adoption of a child, whether male or female, without intending to
institute it as an heir. See Matter of Young, 14 I&N Dec. 158 (BIA
1972); Matter of Poon, supra; Matter of Ng, septa; Matter of Chin,
supra. Thus, although male children who are without the required qualifications and all females may not inherit from their adoptive parents
under Chinese customary law, they are nonetheless recognized as having equal status with those natural children who also do not have the
right to inherit. Seellatter of Ng, supra.
On the other hand, children adopted in Tonga pursuant to custom are
not permitted to inherit and therefore do not have rights comparable to

those of natural legitimate children. The Board has refused to recognize
as valid for immigration purposes customary adoptions which do not
accord adopted children a status similar to' hat of natural children. See
Matter of Mosel), supra, Matter of Kong, supra.

Customary adoptions in Tonga do not give the adopted child a legal
status or relationship which bestows rights and obligations comparable
to those of natural legitimate children and they do not appear to have
'any legal effect under Tongan law. The Crown Solicitor's original conchsiori that customary adoptions are not recognized as legally valid has not
been retracted or contradicted, nor has the petitioner offered any evidence which has persuaded us that they have any legal effect. We therefore conclude that these adoptions shOuld not be recognized as valid for immigration purposes.
We note in this regard the suggestion

by Mr. Morton that an adoption
may be obtained through application to the courts which is recognized
by Tongan law as according rights of succession to the adopted child.
Morton, supra at 65, 71. The petitioner has offered no evidence that
would either verify or refute the existence of such a procedure. However,
if a means of acquiring legal sanction for an adoption is available, we
believe that our immigration laws would require a person seeking immigration benefits on the basis of an adoption in Tonga to obtain the
endorsement of law in that manner.
We are aware of the decision in Milo. v. District Director of Denver,
217

Interim Decision #2899
Colorado, 494 F.Supp. 998 (D. Utah 1980), which concludes that Tongan

customary adoptions should be recognized as valid for immigration
purposes. With all due respect to the court, we do not accept its opinion
as definitive on this issue. The fact that a lower federal court has rejected
a legal conclusion of this Board does not require us to recede from that
conclusion in other jurisdictions. See Matter of Amado and Monteiro, 13
I&N Dec. 179 (BIA 1969); Matter of Lim, 13 I&N Dec. 169 (BIA 1969).
We disagree with the court's conclusion that there is no reason to
make a distinction between a system of adoption where a parent-child
relationship is sanctioned by law and one where it is only recognized by
custom. We believe that the recognition of an adoption by the Iaw of the
country where it took place offers some assurance that the adoption is
valid. Thus, in our opinion, evidence that an adoption is legally sanctioned provides a necessary safeguard against the possibility. of fraud
which Congress carefully sought to avoid. 2 It does not therefore appear
unreasonable to require that the legal system under which an adoption
took place must recognize that it creates rights and duties which are

enforceable by law.
It is the petitioner's burden in visa petition proceedings to establish
the claimed relationship. See Matter of Brantigan, 11 I&N Dec. 493

(BIA 1966). He further bears the burden of proving any foreign law on
which he relies. See Matter of Annang, 14 I&N Dec. 502 (BIA 1973). We
are not persuaded that the petitioner has met his burden in this case.
Accordingly, for the reasons stated above, we shall dismiss the appeal.
Our decision in Matter of Palelei, supra, is reaffirmed.
ORDER The appeal is dismissed.

2 The concern of Congress that a law granting immigration benefits on the basis of
adoption might lead to abuse is reflected in the fact that no such provision was enacted
until 1957. See S.Rep. 1515, 81st Cong., 2nd Sess. 468 (1950); Act of Sept. Sept. 11, 1957,
Sec. 2, 71 Stat. 639. When it was passed, Congress set forth specific requirements for
residence and legal custody and included a proviso limiting those entitled to benefit so as
to prevent circumvention of the law by fraudulent adoptions. See section 10 1(b)(1)(E) of
the Act.

218


Interim Decision #2112

MATTER OF A—
In Visa Petition Proceedings
A-18349097
Decided by Board December 13, 1971
Under the law of Michigan (section 551.51, Compiled Laws, 1948, and section 551.202 of the Compiled Laws, as amended June 30, 1967), the marriage in that State of a female under the age of consent (16) performed
by a probate judge, as in the instant case, is valid where application for a
marriage license was made to a probate judge, "under oath, containing a
statement that she is with child, . . . or has lived with a man and has
been considered as his wife, or for other good reason," and such application was accompanied by the written request of the parent or guardian of
such female under marriageable age.
ON BEHALF OF PETITIONER: Arpo Yemen, Esquire
7527 Lafayette Street
Dearborn Heights, Michigan 48127

The petitioner, a native of Jordan, was admitted to the United
States for permanent residence at the port of New York on
March 24, 1968. She appeals from an order of the District Director at Detroit, Michigan, dated October 12, 1971, denying her petition for second preference classification of the beneficiary, a native of Jerusalem. Exceptions have been taken to the District
Director's finding that the petitioner's marriage to the beneficiary
is invalid under the laws of Michigan.
The petitioner married the beneficiary at Detroit, Michigan on
August 31, 1971. She attained the age of 15 years on September
12, 1971. Section 551.51, Compiled Laws of Michigan, 1948, provides in substance that.the marriage of a female under the age of
consent, 16 years, is void; also see section 25.51, Michigan Statutes Annotated. Section 551.51, supra, has a proviso which permits a probate judge of any county of the State of Michigan to
perform a marriage under the conditions set forth in section
551.202 of the Compiled Laws of Michigan, as amended June 30,
1967, Public Act No. 175, where one or both of the parties are
under the age of consent.

824

Interim Decision #2112
Section 551.202 provides in substance that a probate judge of
each county in the state has authority :
. . . to issue, without publicity, a marriage license to any female making
application to him, under oath, containing a statement that she is with child,
which if born alive before marriage will become a bastard, or has lived with
a man and has been considered as his wife, or for other good reason, expressed in such application and deemed to be sufficient by the judge of probate.

Section 551.202 also provides the judge of probate with authority "to marry persons under marriageable age" under the conditions set forth above and the application for such license is accompanied by the written request:
. . . of the parent or guardian of the one under marriageable age, where
only one is under the marriageable age now fixed by the statute, when according to his judgement, such marriage would be a benefit to public morals.

The judge of probate is also authorized "to keep the exact date of
the marriage a secret, to protect the good name of [the female
applicant] and the reputation of her family."
The case of Evans v. Ross, 309 Mich. 149, 14 N.W. 2d 815
(1944), concerns a suit by a husband to have his marriage declared void on the ground that his wife was under the age of consent when he married her in 1943. The application for the marriage license falsely stated that the wife was 19 years of age at
the time of the application for the license. The parties separated
prior to the wife's sixteenth birthday and did not cohabit following the separation. The court said that the language used in section 551.51, supra, "strongly indicates that it was the intention of
the legislature to make such marriages void, except marriages
performed by the judge of probate." (Emphasis supplied.) The
marriage under consideration by the court was not performed by
a judge of probate.
The Attorney General of Michigan has ruled that a probate
judge has discretion whether to issue a marriage license under
the provisions of section 551.202, supra, but if he does issue the
license, it becomes his duty to perform the marriage ceremony,
unless one or both of the parties desire to have a ceremony performed by another person competent to perform a ceremonial
marriage in the State of Michigan (Opinions of Attorney General
of Michigan, No. 3626, March 13, 1962).
The petitioner herein was married by a judge of probate in the
County of Wayne, State of Michigan, in the presence of her parents. The certificate of marriage is undated. Under the laws of
Michigan the marriage is valid. It is alleged that there was a reli825

Interim Decision #2112
gious ceremony performed by the pastor of St. Bernadette Roman
Catholic Church on September 25, 1971. We conclude that the petitioner can legally confer second preference status upon the beneficiary. An appropriate order will be entered.
ORDER: The appeal is hereby sustained and the visa petition
filed on behalf of J-0---A— for second preference classification
is hereby granted.

826


Interim Decision *1521

314Truu or TALBOT-P=188
In Deportation Proceedings ,
A-142967
Da

ed by Board November 5, 1965

An alien, who, shortly after birth in 1948 in South Africa, was adopted in
that country within the meaning of section .101(b) (1) (B), Immigration
and Nationality Act, as amended, by nonresidents thereof, with whom she
resided until she Ives 18 years of age, may, puieuant to and :within the
meaning of section 202(a) (4) of the Act, be charged to the gnota of Great
Britain, to which her adoptive father Is chargeable, for the purpose of
adjustment of status wider section 245 of the Act.
CHARGE:
' Order: Act of 1952—Section 241(a) (2) [8 [Lail 1251(a) (2)]—Nonimmi-•
,
grant, remained longer.

An order entered by the special inquiry officer on April 23,•965
grants the respondent's' application for status as a permanent' resi-

dent alien under the protisions of section_ 245 of the Immigration
and Nationality Act, as amended (8 U.S.O. 1255). , The deportation
proceeding was .terminated and the Immigration Service took, no
appeal. The Immigration Service on June 15, 1965 moved for a
reconsideration•of the special inquiry officer's order granting 'relief
under section 245 (supra). The special inquiry officer -in sn•order

• entered on August 4, 1965 affirmed his prior order of Apr11.23, 1965
and certified the case to the Board of Immigration Appeals for
final decision on a matter of law.
The respondent is a native of South Africa and a citizen of 'Great
Britain. She last entered the United States through the port of
Honolulu, Hawaii, on or about February 5, 1964. She was admitted
as a visitor for pleasure authorized to remain in the United States
until August 4, 1964. Thereafter, the time for her departure was
extended. to October 14, 1964. She has remained in 'the' United
States subsequent to October 14, 1964 without permission And she
concedes that she is,deportable as charged in the order to sho4. cause.
The respondent -applied for status as a 'permanent resident alien
under section 245 of the Immigration and Nationality Act; . ns

371'

Interim Decision #1521
amended. She was born on July 28, 1948 at Cape Town, South
Africa, awl. shortly after her birth she was adopted by James Owen
Talbot-Phibbs, a native of Ireland, and his wife, Nancy Jean TalbotPhibbs, a native of Australia. Her adoptive parents were in Northern Rhodesia on assignment by the British Government Colonial

Service at the time of her adoption. The respondent testified that
she was adopted when about three weeks of age and that she resided
with her parents until she was 18 years of age. Immediately after
her adoption she was taken to Northern Rhodesia by her adoptive
parents where they remained until 1952. Documentary evidence submitted by the respondent supports her testimony with regard to her
birth in South Africa and her adoption by the Talbot-Phibbs family.
- By virtue of her adoption -while under the age of 14 years the
respondent Claims that she is chargeable to the British quota since
her adoptive father is a. British subject. The record establishes that
the respondent was inspected and admitted at the time of her entry
on February 5, 1964. She has been examined by an officer of the
• United States Public Health Service and found to be medically

admissible to the United States. She testified that she has never
been arrested or convicted of any-violation of law. An immigration
visa is immediately available to her provided she is chargeable to
the quota for Great Britain which is presently open in all categories.
The issue of law before us concerns an interpretation of section
202(a) (4) 'of the Immigration and Nationality Act (8 U.S.C. 1152
(a) (4) ) 1 which provides in substance that an alien born in a...eountry
in which neither of his parenti was :born or was a resident at the
time of such alien's birth may be charged to the quota area of either
parent.

The special inquiry officer finds that under the provisions

of sections 101(b) (1) (E) 2 and 101(b) (2) of the Immigration and
'Section 202(a) (4) of the -immigration and Nationality Act reads as follows: ".. . For the purposes of this Act, the annual quota to which an
immigrant is chargeable shall be determined by birth within a quota area,
except that—(4) an alien born within any quota area in which neither of
his parents was born and in which neither of his parents had a residence
at the time of such alien's birth may be charged to the quota area of either
parent; ..."
'The Act of September 11, 1957 (71 Stat 639) added subdivision (E) to
section 101(b) (1). It reads as follows: "As used in titles I and II—
(1) Who term "child" means an unmarried person under twenty -one yearn of o
age who is—(E) a child adopted while under the age of fourteen years if
the child has thereafter been in the legal custody of, and has resided with,
the adopting parent or parents for at least two years: Provided, That no
natoral parent of any each adopted child shall thereafter, by virtue of aneh

pazikntage, be accorded any right, privilege, or status under this Act.

372

Interim Decision #152/ '
Nationality Act' the respondent and her adoptive father James
Owen Ta}bot-Phibbs, a British subject, may be considered to have
the relationship of parent and child to each other and. therefore may
be charged to the quota of Greet Britain pursuant to and within the

meaning of section 202(a) (4) of the Immigration:and, Nationality
Act (supra).
It is the Service position that section 202(a) (4) is not brad
enough to encompass an adopted child and its benefits must be limited to a legitimate child of natural parents. It is urged that to
encompass an adopted child such as the respondent, section 202 (a)
(4) would have to be oonstrued as though it read "in which neither

of his parents had a. residence at the time of such alien's birth or
adoption." (Emphasis supplied:) The Service maintains that the
regulations of the Department of State* which implement section
202(a) (4) support this position.
The amendment of section 101(b) of the Act of September 11,
1957 is remedial legislation and should be liberally construed. The
term "parent" is defined in relation to the term "child" in section
101(b) (1) and (2) of the Immigration and Nationality Act. The
significant word in the definition of "parent" is "relationship" and
this is found' in a phrase which reads "where the relationship exists
by reason of any of the circumstances set forth in (1) above." (Em- •
phasis supplied.) The word "circumstances" found in the above
quoted phrase relates to the categories of relationship set forth in
section 101(b) (1) (supra). The categories of relationship were
expanded by the Act of September 11, 1957 to include "an illegitimate child" for whom benefits are sought by virtde of a relationship
• Section 101(b) (2) was not amended by the Art tit Reideroher 11, 1557_

It reads as follows: As used in titles I and II—(2) The terms "parent",
"father", or "Mother" mean a parent, father, or mother only where the relittionship exists by reason of any of the circumstances set forth in (1) above.
'22 CPR 42.54 (revised January 10, 1988, 28 red. Reg. 275) read as follows: •
Exception for alien born. in quota area of which neither of his parents was
a
resident. An alien who is not a Chinese person and who is not otherffise
attributable by as much as one-half of his ancestry to a people or peoples
indigenous to the Asia-Pacific triangle, who was born in a quota area in which
neither of his parents was born and in which neither of his parents had a
residence at the time of his birth, may be charged to the quota of either
parent as provided in section 202(a) (4) of the Act. Thb parents of such an
alien shall not be considered as having acquired a residence within the meaning of section 202(a) (4), if at tea time of such alien's birth. within tlia quota
area they were merely visiting temporarily or were stationed there under
orders or instructions of an employer, principal or superior authority foreign
to such quota area in connection with the business or profession of the era- player; principal or superior authority (Emphasis supplied.) (Sec_ 262, 66
Stet. 177: 8 U.S.C. 1152).

873

Interim Decision #1521
to its mother and a "child adopted while under the age

of fourteen

yiars” provided the child has been in the legal custody of and has

resided with the adopting parents for at least two years.
The Department of State followed this interpretation of section
101(b) (1) and (2) in a case involving an illiterate mother of a 29year-old United States citizen. It was held that the mother was a
"parent" and entitled to the exemption from illiteracy provided by
section 212(b) on the ground that the language used in section 101.
(b) (2) which reads "oirownstanoes set forth in (1) above" refers to
circumstances leading to a child-parent relationship as specified
under subparagraphs (A), (B), (C), (D), (E) ; namely, a legitimate birth, a stepchild relationship, a legitimated child, an illegitimate child. in relationship to its mother, or an adopted child. The
State Department held that the phrase "unmarried person under
twenty - one years of age" did not limit a child -parent relationship
Where the relationship is the determining factor for the accrual of
benefits to the alien. Under this view the word "circumstances"
relates to '"a child adopted while under the age of fourteen years"
provided the child has been in the legal custody of and has resided
with the adopting parents for at least two years.. We find nothing
in either section 202(a) (4) or section 101(b) which distinguishes the
respondent's case from that of the illiterate mother who was given
an exemption under section 212(b) of the Immigration and_Nationality Act.
The language of the statute is clear. Section 202(a) (4) is found
in Title II of the Immigration and Nationality Act. Section 101(b)
specifically states in its preamble that "The term 'child' . . . as used
in titles I and II (of the Act) mean . . ." a child adopted under
the circumstances which prevail in respondent's case. • We find no
basis for the trial attorney's suggestion that the wording of section

202(a) (4) of the Act should be construed as though it read "in
which neither of his parents had a residence at the time of such
alien's birth or adpotion." (Emphasis, supplied.)
We. find the respondent chargeable to the British quota and will
affirm the decision and order of the special inquiry officer granting
her application for status as a perminent resident alien and termina-

ting this proceeding.
ORDER: The order entered by the special inquiry officer on
August 4, 1965 granting the alien's application for status as a permanent resident alien under section 245 of the Immigration and
Nationality Act, as amended, and terminating this proceeding is
'hereby affirmed.
374


MATTER OF DIP—
In EXCLUSION Proceedings
A-12561169
Decided by Board April 26, 1962
Expatriation—Italian law—Acquisition of foreign nationality by operation of
law—Acceptance—Effect upon citizenship of child.
11) Where. under Italian law, a former Italian national reacquires Italian
nationality automatically by operation of law after two years' residence in
Italy, such "naturalization" does not cause loss of United States citizenship
under section 2 of the Act of March 2, 1907, unless the person voluntarily
manifests acceptance of the Italian nationality by a declaration or overt act.
(2) Where acceptance of Italian nationality acquired by operation of law has
been manifested, expatriation dates from the first act evidencing acceptance
of Italian nationality. (Modifies Matter of If—, 6-40, insofar as it relates
to retroactive expatriation.)
(3) A child born abroad to a United States citizen parent subsequent to the
parent's automatic reacquisition of Italian nationality by operation of law,
but prior to acceptance of Italian nationality by the parent, Is held to have
been born at a time when the parent was still a United States citizen, so
that the child became a United States citizen at birth.
EXCLUDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) ( 20)1—No
immigrant visa.

BEFORE THE BOARD

DISCUSSION: The case is before us by certification. The special
inquiry officer ordered the applicant excluded upon the ground stated
above and certified the decision to the Board for final decision. Applicant's admission will he ordered.
The applicant applied for admission on November 3, 1961, as a
citizen of the United States. She was born in Italy but claims
United States citizenship through her father, L—G—. Applicant is
in possession of a United States passport issued to her on October 5,
1961. The Department of State considers her a citizen of the United
States; the Service is of the belief that she is an alien. There is
no issue of fact. The question involves a matter of law, and the
differing position's are based on differing conclusions as to whether
the applicant's father lost his citizenship prior to the birth of the
applicant.

660

Applicant's father became a citizen of the United States by naturalization on April 11, 1919. He returned to Italy in 1921 and resided there until 1926 when he returned to the United States. In
1930 he again returned to Italy and has lived there since that date.
(The applicant was born in Italy on September 1, 1937.) Applicant's
father voted on June 2, 1946, in the Italian elections and lost his
United States citizenship at that time if he had not lost previously
(section 401(e), Nationality Act of 1940; 54 Stat. 1188).
The special inquiry officer found that the applicant's father had
lost United States citizenship by becoming naturalized in Italy in
1932. The Department of State is of the belief that the applicant's
father did not become naturalized in Italy but that his United States
citizenship was lost in 1946 when he first, voted in an Italian political
election.
The special inquiry officer found that United States citizenship
had been lost under - section 2 of the Act of March 2, 1907 (34 Stat.
1228) which in pertinent part provides that :

any American citizen shall be deemed to have expatriated himself when he
has been naturalized in any foreign state in conformity with its laws, * • •.

The special inquiry officer found that applicant's father had been
naturalized in Italy under section 3 of Article 9 of the Italian Nas
tionality Law of June 13, 1912, which provided for the recovery of
Italian citizenship by one who:
buying ceased to be an Italian citizen owing to the acquisition of foreign citi-

has been resident in the kingdom for two years. (UNITED NATIONS PUBLICATION, LAWS CONCERNING NATIONALITY, July 1945,
269)
zenship,

The special inquiry officer's position, correctly based upon precedents which are binding upon him, is that the Italian naturalization
which became available to the applicant's father in 1932 when two
years had passed after his return to Italy, was accepted by the
applicant's father and brought about his expatriation. Acceptance
is shown by his voting in 1946 in Italy. The acceptance manifested
in 1946 is by fiction of law deemed an acceptance of the Italian
naturalization as of the date it first became available. Thus, the
applicant's father lost United States citizenship in 1932 and at the
time of the applirant's birth in 1937 was an alien and could not
pass United States citizenship to the applicant. The Department of
State, on the other hand, is of the belief that an acceptance of foreign nationality acquired solely by operation of law cannot be accomplished by overt acts which are not a ground of expatriation in
and of themselves, and applicant's father being a citizen of the
United States until 1946 when he became expatriated by voting in
Italy could and did pass United States citizenship to his daughter.
661

Until recently, both the Department of State and the Department
of Justice followed a judicially sanctioned policy which, briefly, took
cognizance of the fact that until July 1943, Italy regarded any
naturalized American citizen of Italian origin who resided in Italy
for two years after July 1, 1912, as having acquired Italian nationality by mere residence in Italy for a period of two years, without
reg.rd to whether the naturalized American citizen had intended to
reacquire Italian nationality.' The American Government did not
consider the acquisition of Italian nationality by mere residence a
"naturalization" which would cause loss of American citizenship
under section 2 of the Act of March 2, 1907. Loss of United States
nationality would, however, be found if the individual voluntarily
manifested acceptance of the Italian naturalization by a declaration
or overt act, such as acceptance of employment with the Italian Government, or the acceptance of Italian passport or identity card,
voting in Italy, or joining an Italian political party. (Hackworth,
Digest of International Law, Vol. III, Government Printing Office,
1942, pp. 207-217; Barsanti v. Acheson, 103 F. Supp. 1011, Mass.
(1952), aff'd 200 F.2d 562, C.A. 1; Rosasco v. Brownell, 163 F.
Supp. 45, 55 (E.D. N.Y., 1958) ; United States v. Cuccaro, 138 F.
Supp. 847 (E.D. N.Y., 1956) ; United States ex rel. DeCicco v. Longo,
46 F. Supp. 170, Conn. (1942) ; Matter of P—, 9-362; Matter of M—,
6-70).

The abandonment of the position that expatriation can take place
by reason of a foreign naturalization which arose solely by operation of law was announced by the Department of State in a letter
dated March 10, 1960, addressed to the Service in the case of
P—M— (Exh. 3). We take administrative notice that in pertinent
detail, this letter reads as follows:
The Department of State, after the most careful consideration and study In
the light of recent important court decisions, has reversed its long standing
policy that expatriation under the first paragraph of section 2 of the Act of
March-2, 1907 may be based upon the fact that a person has acquired a foreign nationality solely by operation of law (as, for example, under section
9(3) of the Italian Nationality Law of June 13, 1912), followed by overt acts
voluntarily performed, which may be regarded as "acceptance" of the foreign
nationality. Underlying this determination was the Department's belief, particularly in the light of the Supreme Court decision In the case of Nishikawa
v. Dulles [356 U.S. 129 (1958)] that an administrative decision that a person
has lost United States citizenship will be upheld by the courts only if the
decision Is based upon an act which must be both voluntary and specifically
made expatriating by the statute.

The Board has taken notice of the change in the Department's
position (Matter of P , 9—.362), but has not found it necessary
—

'After July 1943, the Italian government did give some recognition to the
intention of the naturalized American citizen of Italian origin.
.

662

to reevaluate the established doctrine. The Service representative

points out that a conflict exists in the position now taken by the
Department of State and that required by Board precedents.
He requests that the Board fully consider the matter, and he calls
attention to the power of the Board to certify a case to the Attorney General for a ruling. It is counsel's position that even if
expatriation can occur by the voluntary acceptance of naturalization which arises by operation of law, it is nevertheless error to
make the naturalization effective as of the date it arose rather than
the date of the voluntary act of acceptance.
We have reexamined the doctrine of expatriation by the performance of an act showing an acceptance of naturalization which arises
by operation of law and we conclude that modification of the retroactive feature is in order. Because we can decide the case in this
Manner, we are not required to consider whether abandonment of the
established doctrine itself is justified. Nishikawa reasserts the rule
that the facts and law should be considered as far as is reasonably
possible in favor of the citizen and that the burden is upon the
Government to show by clear, convincing, and unequivocal evidence
that the act of renunciation of citizenship was voluntarily performed
(Matter of P, supra). There is, therefore, no longer any justification
for indulging in the fiction that the act showing acceptance of Italian
nationality invariably also shows a voluntary acceptance of Italian
nationality as of the first possible moment such acceptance could be
made. In the interval within which it was possible to make the
choice of becoming an Italian national and the actual making of the
choice, the individual may have been indifferent, undecided, or even
hostile to the acceptance of Italian nationality. Under such circumstances, it would be far from relying upon evidence that is
clear, convincing, and unequivocal in finding expatration occurred as
of the first moment it was legally possible. Since there is nothing
here to show an acceptance of Italian nationality prior to the time
that the applicant was born, we must hold that applicant was born
at a time when her father was still a citizen of the United States and
that she became a citizen of the United States at birth. Her admission as a citizen must be ordered.
In view of the action taken, we see no necessity for certification
of the case to the Attorney General. Matter of M , 6- 70, insofar
as it relates to retroactive acquisition of Italian nationality, is
—

modified.

ORDER: It is ordered that the appeal be sustained and that the
applicant be admitted to the United States as a citizen of the United
States.

663