Interim Decision #2265

MATTER OF VRETTAKOS

In Deportation Proceedings
A-15721298

Decided by Board June 11, 1973 and March 5, 1974
(1) The Board of Immigration Appeals lacks jurisdiction to review on direct
certification a Regional Commissioner's determination of an application for
permission to reapply for admission following deportation since such application does not come within the jurisdiction of the BOard as specified in 8 CFA
3.1(b).
(2) An immigration judge, like the Board of Immigration Appeals, is without
authority in deportation proceedings to grant MOW pro tune permission to
reapply for admission after deportation unless the granting of such application is appropriate and necessary for the complete disposition of the case, and
is without authority to grant advance permission to reapply.
CHARGE:
order: Art of 1952—Section 24.1(a)(2) [8 U.S.C. 1251(&)(2)]—Crewman—ontorod

the United States after being refused permission to
land temporarily.
ON BEHALF OF RESPONDENT:
Rowena L. Vrettakos (respondent's wife)
4500 Cheltenham Drive
Bethesda, Maryland 20014
Jack Wasserman, Esquire
1707 "H" Street, N. W.
Washington, D. C. 20006

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

BEFORE THE BOARD

(June 11, 1973)
The record relates to a married male alien, a native and citizen

of Greece, 32 years of age, who first entered the United States in
1961 as a nonimmigrant crewman permitted to land temporarily
for a period of 3 days, which was later extended to 13 days. He
remained longer than authorized and was subsequently apprehended by Service officers while engaging in unauthorized employment. Deportation proceedings were commenced and he was
found deportable. On November 25, 1961, he left the United States
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Interim Decision #2265
voluntarily in lieu of deportation. In 1963 the respondent was a
crewman serving aboard a vessel that went to Canada. On May 14,
1963 he deserted his vessel at Vancouver, British Columbia. On
June 16, 1963 he reentered the United States without inspection
by surreptitiously crossing the border near Champlain, New York.
He was apprehended by the Service, and, after a deportation
hearing, was deported to Greece on July 2, 1963.
On March 19, 1970, the respondent was again admitted to the
United States as a nonimmigrant crewman, at Newport News,
Virginia. A conditional landing permit was issued, evidently without knowledge of the respondent's prior deportation. Two days
later, the respondent was apprehended by the Service at a bus
terminal in Newport News when he was about to depart for
Washington, D.C. with a one-way ticket. He was taken into
custody, his conditional landing permit was revoked, he was
returned to his vessel, and his detention on board was ordered
pursuant to section 252(b) of the Immigration and Nationality Act.
The vessel left the United States, with the respondent aboard, but
suffered a collision and returned to port. On March 23, 1970 the
respondent absconded from the ship and entered the United
States illegally.
The respondent married a native-born United States citizen on
May 21, 1971. On July 7, 1971 his wife filed a petition in his behalf
to classify his status as that of an immediate relative of a United
States citizen under section 201(b) of the Act. The petition was
approved on July 17, 1971 and was forwarded to the United States
Consulate at Toronto, Canada, where the respondent intends to
apply for an immigrant visa. The filing of the petition on July 7,
1971 brought the respondent's presence in this country to the
attention of the Service. As a result, on the same day an Order to
Show Cause was issued, charging the respondent with deportability in connection with his illegal reentry into the United States on
March 23, 1970, in violation of section 252(a) of the Act; that is,
after being refused permission to land temporarily as a crewman.
The present deportation proceedings are based upon that charge.
On July 15, 1971 the respondent applied to the District Director
at Buffalo, New York for mow pro tune permission to reapply for
admission into the United States following deportation. The District Director denied the application on September 21, 1971 on the
ground that a favorable exercise of administrative discretion was
not warranted because of the respondent's disregard for the
immigration laws. His decision was appealed to the Service's
Regional Commissioner. On appeal, the respondent asserted that
the District Director had failed to consider that denial would
result in unusual hardship to his United States citizen wire. On
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Interim Decision #2265
February 11, 1972, the Regional Commissioner affirmed the District Director's denial, in view of what he termed the respondent's
deliberate violation of the immigration laws on at least three
occasions. The Regional Commissioner concluded that the favorable factor of the respondent's marriage to a United States citizen
was not sufficient to override the unfavorable factor of the respondent's history of illegal entries and unauthorized employment.
On April 21, 1972 a deportation hearing was conducted before an
immigration judge in Washington, D.C. During the course of the
hearing the respondent moved to renew his application for nuns
pro tune permission to reapply for admission after being deported.

The immigration judge at first denied the application on the
ground that he did not have the jurisdiction to entertain it, but he
subsequently changed his mind and approved the application. He
found the respondent deportable as charged and afforded him the
privilege of voluntary departure, using Form 1-39. In the margin,
he entered the following notation: "Application for permission to
reapply for admission into the U.S. after deportation is hereby
granted nunc pro tune as of March 18, 1970." It is obvious that the
immigration judge meant the nune pro tune relief to relate to the

respondent's illegal entry on March 23, 1970. That illegal entry is
the basis for the present deportation proceedings.
As an aside, we feel it would have been better practice for the
immigration judge to have rendered a written opinion instead of
merely noting the nunc pro tune grant in the margin of a Form I39, which is ordinarily used in very simple cases presenting no

complex issues. However, this is not a crucial matter here, as the
present appeal is concerned with the extent of the immigration
judge's jurisdiction rather than with his reasons for making the
grant.

The Service appealed from that portion of the immigration
judge's order that granted nunc pro tune permission to reapply.
The Service contends that the immigration judge lacked power to
make such a grant because granting nunc pro tune permission
would not make possible the conclusion or termination of the
proceedings.
On July 27, 1972, on motion of the Service's General Counsel, we
remanded the file to the Service to afford the Regional Commissioner an opportunity to reconsider the respondent's application
for nunc pro tune permission to reapply. Additional information
bearing on the respondent's character and behavior had been
obtained by the Service, and the Service felt it desirable that the
Regional Commissioner have an opportunity to review his earlier
decision. The case was remanded pursuant to a stipulation of
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Interim Decision #2265
counsel providing that "such remand shall be without prejudice to
resubmission of the case to the Board by either party, should the
alien not be granted permission to reapply." The Regional Commissioner, in an order dated December 1, 1972, adhered to his
original decision. The Regional Commissioner "certified" his decision to us.
The first question presented is whether we have jurisdiction to
review the Regional Commissioner's decision, even though he
certified it to us. We conclude that we do not have the power to
review directly a matter within the jurisdiction of the Regional
Commissioner. The regulation dealing with certification, 8 CFR
3.1(c), does provide for certification to us by duly authorized
officers of the Service, including, of course, Regional Commissioners. But that regulation pertains only to matters within our
appellate jurisdiction as set forth in 8 CFR 3.1(b). This is not true
of respondent's application for advance permission to reapply for
admission following deportation. Such an application comes instead under the jurisdiction of the District Director and the
Regional Commissioner, pursuant to 8 CFR 103.1(f) and 103.1(e)(7).
We previously held, in Matter of Sum, 13 I. & N. Dec. 65 (BIA 1968),
that we do not have jurisdiction to review directly a District
Director's determination under section 249 of the Act, because
section 249 cases are not enumerated in 8 CFR 3.1(b). We did note,
however, that we could review the section 249 determination if the
issue arose on appeal from an immigration judge's deportation
order. The Sum case involved a District Director's determination
on a matter not within 8 CFR 3.1(b). The same reasoning applies to
a similar determination of a Regional Commissioner.
We shall, however, regard the case as being restored for consideration on the Service's appeal and adjudicate the appeal because
the stipulation referred to above provided for resubmission of the

case to the Board by either party should the alien not be granted

permission to reapply.
On appeal the Service urges (1) that the Board reaffirm its prior
rulings that an immigration judge has no authority to take action
with respect to an application for permission to reapply for entry
after deportation unless necessary to the final disposition of the
case, and (2) that inasmuch as the grant would not result in
adjustment or termination in the present case, the immigration
judge's grant of such relief be declared a nullity. The Service has
no objection to the remainder of the immigration judge's order.
The respondent, on the other hand, maintains that the action of
the immigration judge in granting the respondent nuns pro tune
permission (1) was within the scope of his authority as conferred
by statute and regulation, (2) was a reasonable exercise of adinin596

Interim Decision #2265
istrative discretion, and (3) was consistent with the principle of
maintaining the integrity of the family unit, which is a fundamental policy underlying the immigration laws.
Ordinarily, applications for advance permission to reapply lie
primarily, as we have seen, within the jurisdiction of the District
Director and the Regional Commissioner. In Matter of S—N—, 6 I.
& N. Dec. 73 03IA 1954, AG 1954), it is stated that we do have the
authority to rule on an application for nunc pro tune permission to
reapply, but only in certain cases. That is, our power is to be
exercised only where taking action will completely dispose of a
particular case. The rationale for the decision in Matter of S N ,
supra, was that "it is a basic concept of the Board's appellate
jurisdiction that it must do complete justice for the alien in a given
case, and therefore, must take any action necessary to dispose of
the particular case." •This is in accord with 8 CFR 3.1(d), which
grants to us the power to exercise "such discretion and authority
conferred upon the Attorney General by law as is appropriate and
necessary for the disposition of the case." (Emphasis supplied.)
The same rationale should be applied to the immigration judge,
whose jurisdiction in deportation cases, as set forth in 8 CFR
—

—

242.8(a), contains language similar to that relating to the Board

contained in 8 CFR 3.1(d). The immigration judge is given the
power "to take any other action consistent with the applicable
provisions of law and regulation as may be appropriate to the

disposition of the case." (Emphasis supplied.) In neither statute

nor regulation do we fmd any express grant of authority to the
immigration judge to handle applications for advance permission
to reapply. Hence we believe the limitations on the authority of
the Board contained in Matter of S N , supra, are constraints on
the power of the immigration judge as well. Thus, we find that he
—

—

also may not entertain an application for nunc pro tarty permission

to reapply unless granting the application would completely dispose of the case.
It is clear that a. grant of nunc pro tune permission would not
completely dispose of the respondent's case. The only relief from
deportation that would terminate his case and in connection with
which the retroactive elimination of a ground of inadmissibility
would be relevant would be adjustment of status under. section 245
of the Act. The respondent, however, who is charged with deportability as a crewman who entered after being denied permission to
land temporarily, is expressly barred from section 245 relief by the
very terms of the statute, which excludes crewmen from its scope.
Hence, the grant of nunc pro tune permission, as of March 18, 1970,
or any other date, would not in any way affect his deportability,
render him nondeportable, or permit termination of the proceed597

Interim Decision #2265
ings by allowing him to avail himself of discretionary relief from
deportation. Therefore, we find that we may not entertain an
application for nunc pro tune permission in the present case as it
now stands. See Matter of M—C--, 9 I. & N. Dec. 280, 284 (BIA
1961). By the same token, the immigration judge also lacked
authority to pass on such an application. Consequently, his grant
of nunc pro tune relief was beyond his power and must be
considered a nullity. The Service's appeal will accordingly be
sustained.
In view of the foregoing, there is no need for us to go into the
question of whether the immigration judge's grant of maw pro
tune relief was a proper exercise of administrative discretion. See
GonatlezITimcnez v. Del Guercio, 253 F.2d 420 (C.A. 9, 1958).
Respondent's sole recourse would appear to be to leave the
United States, and, while abroad, to submit a fresh application for
advance permission to reapply to the appropriate United States
Consul, who would then forward the application for decision to the
District Director having jurisdiction over the place where the
deportation proceedings were held, pursuant to 8 CFR 212.2(c).
The following order will accordingly be entered.
ORDER: The Service's appeal is sustained.
Further order: Pursuant to the immigration judge'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 immigration
judge's order.
BEFORE THE BOARD

(March 5, 1974)
The respondent, on July 6, 1973, filed a motion seeking reconsideration of our order of June 11, 1973, in which we sustained an
appeal by the Service, ruling that the immigration judge did not
have authority to grant the respondent nunc pro tune permission
to reapply for admission after deportation because the grant
would not completely dispose of the proceedings. Newly retained
counsel, in his motion, does not dispute our ruling with regard to
nuns pro tune permission to reapply. He contends, rather, that the
immigration judge does have the power to approve, in deportation
proceedings, an application for advance (notnunc pro tune) permission to apply, by virtue of 8 CFR 212.2(g). We do not agree with
counsel's contention and we find no reason to recede from our
order of June 11, 1073. However, we shall amplify our earlier
decision in order to distinguish the factors involved in a grant of
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Interim Decision #2265
nunz pro tune permission to apply for readmission after deportation as opposed to a grant of advance permission to reapply.
The motion to reopen raised a question not considered by us
when we entered our order of June 11, 1973. At that time we were
not confronted with the issue of whether the immigration judge
had power to grant advance permission to reapply after deportation. We merely reviewed the immigration judge's grant, on April
21, 1971, of retrospective or nuns pro tune permission to reapply.
We ruled that, on the basis of the pertinent precedents, the
immigration judge lacked authority to pass upon such an application, absent a specific grant of authority to do so, because a grant
of nunc pro Wit permission would not completely dispose of the
respondent's case. Even with the mote pro tune grant the respondent would remain deportable, being ineligible, as a crewman, for
adjustment of status under section 245 of the Immigration and
Nationality Act. We held that the immigration judge, like this
Board, had authority to rule on an application for nunc pro tune
permission to reapply only when appropriate and necessary for the
disposition of the case. In effect, we extended the limitations on
our authority set forth in the precedent decision of Matter of S—
N—, 6 I. & N. Dec. 73 (BIA 1954, AG 1954), to apply to the
immigration judge as well.
It will be helpful to clarify our earlier order by pointing out that
the actual application submitted at various times by the respondent was for advance permission to 'reapply—not for nunc pro tune
permission. This is true not only of the application filed with the
District Director and reviewed twice by the Regional Commissioner, but also of the application, on Form 1-212, filed with the
immigration judge on April 21, 1971. In effect, what the respondent did was to seek advance permission, prior to going abroad,
either voluntarily or under an order of deportation. The regulations permit this procedure so that many aliens may know in
advance that they will be permitted to return, and are thus saved
the uncertainty and inconvenience of going abroad before submitting such an application. The immigration judge, upon his own
volition, elected to treat the respondent's request for advance
permission to reapply as one for retrospective or nunc pro tune
permission.
At oral argument before this Board, on January 16, 1973, the
respondent was not represented by counsel but his case was well
presented by his United States citizen spouse. She urged that, in
deportation proceedings, an irregularity in entry, including reentry after deportation without permission to reapply, may be cured
599

Interim Decision #2265
by the discretionary grant of nunc pro tune permission to reapply.'
The case of Gonzalez ,Jimenez v. Del Guercio, 253 F2d 420 (C.A. 9,
1958), was cited as authority for this position, both by the immigration judge (Tr. p. 6) and by the respondent's representative. The
court in that case observed that there was no right to be granted
permission to reapply and that it was restricted to examining the
question of whether there had been an abuse of discretion in
denying the application. The court simply ruled that there was no
abuse of discretion. We fail to see how that case supports the
respondent's position.
The appellate trial attorney, in his memorandum of law dated
June 21, 1972, accurately perceived that what the respondent was
seeking was not nunc pro tune permission to reapply for admission, but, in fact, advance permission, so as to waive the disability
arising from his 1963 deportation and from the present deportation proceeding should he fail to depart voluntarily. The appellate
trial attorney cited the regulations providing for seeking advance
permission initially from the District Director, pursuant to 8 CFR
2122(d), with an appeal lying to the Regional Commissioner under
8 CFR 103.1(e)(7). In connection with its appeal from the immigration judge's order, the Service maintained that the immigration
judge's grant of nunc pro tune permission to reapply was not
proper because the grant would not result in termination of the
proceedings. As the Board said in its earlier order of June 11, 1973,

the grant of nunc pro tune permission would be within the scope of
an immigration judge's authority if it would conclude the proceedings before him. This might be true in the case of an alien in
deportation proceedings (1) whose sole ground of deportability is
under section 241(aX1) of the Act, as an alien excludable at entry
under section 212(aX17) for reentering the United States after
deportation without first securing the permission of the Attorney
General; or (2) who seemingly qualified for adjustment of status
under section 245 of the Act, except for his inadmissibility as an
alien who was deported.

In our earlier order, we addressed ourselves only to the second
possibility. To clarify our holding conceptually, we shall now deal
with both. We find, however, that the respondent does not come
within either category.
First, with respect to a nunc pro tune grant that eliminates a
deportation charge, we note that the respondent was not charged
with being deportable under section 241(a)(1) by virtue of inadmissibility under section 212(a)(17). He could have been so charged
although he was not. Even if he had been, any other charges
1 The respondent's representative stated, incorrectly (page 11 of transcript),
that the respondent was not asking for advance permission to reapply.

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Interim Decision #2265
lodged against him would have remained, unless waived. He was
actually charged, and found deportable, under section 241(aX2), as
an alien in the United States in violation of law, having entered as
a crewman after being denied permission to land temporarily.
There is no provision in the law for a waiver of this ground of
deportability. Consequently, a vane pro tune grant relating to his
deportability because of inadmissibility under section 212(aX17)
would not have eliminated the ultimate ground of deportability in
his ease.
Second, paving the respondent's way for adjustment of status
under section 245 of the Act by removing a ground of inadmissibility would be possible only if so curing the respondent's inadmissi-

bility by virtue of his reentry after deportation would, in and of
itself, render the respondent statutorily eligible for consideration
for the discretionary relief of adjustment of status. As we pointed
out in our earlier order, the respondent was barred from section
245 relief for the underlying reason that he is a crewman, and all
crewmen are statutorily excluded from adjustment. Accordingly,
nunc pro tune permission to reapply after deportation would not
have removed the final obstacle to seeking adjustment. Consequently, a "WW7te pro tunic grant would not have enabled the
complete disposition of his case. Therefore, we hold that neither
avenue under which a grant of nunc pro tune permission could

have been made was open to the respondent.
Inasmuch as a grant of nunc pro tune relief could not wrap up
the respondent's deportation proceedings, we held, on June 11,
1973, that the immigration judge did not have authority to make
such a grant. We accordingly sustained the Service's appeal. At
the time, we did not consider the other issue now introduced by
counsel, namely whether the immigration judge had the power to
grant advance, as opposed to retroactive permission to reapply

after deportation.
Counsel's motion for reconsideration reflects some confusion as
to the distinction between nunc pro tune and advance permission
to reapply. The motion states that the Board's order of June 11,
1973 ruled that "the power (of an immigration judge] to take
action as may be appropriate to the disposition of the case did not
include advance permission to reapply after deportation unless
granting the application would completely dispose of the case."

This overlooks the fact that our order of June 11,1973 was directed
solely to the issue of nunc pro tune, not advance, permission to
reapply. As was mentioned above, the issue of the authority of the
immigration judge to grant advance permission was not dealt with
in our earlier order.
Counsel maintains that the immigration judge's decision should
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Interim Decision #2265
be permitted to stand because, under 8 CFR 2122(g), he had
"jurisdiction." Counsel's reading of 8 CFR 212.2(g) is incorrect. The
regulation itself starts off by stating it is applicable "except in the
case of an applicant seeking to be granted advance permission to
reapply." Thus, by the very language of the regulation, it confers
no power upon the immigration judge where an advance grant of
permission to reapply is sought.
The respondent is deportable and he must leave the United
States, whether voluntarily or under an order of deportation. He
will remain inadmissible, even if he departs voluntarily, because of
his deportation in 1963, unless he secures the permission of the
Attorney General to reapply for admission. As we noted in our
order of June 11, 1973, the respondent's sole recourse would appear
to be to journey abroad, and, while there, make a fresh application
with the appropriate United States Consul, who will forward the
application to the Service.
It is clear from the regulations that determinations as to
advance permission to reapply are reserved to the District Director, with review by the Regional Commissioner. We conclude,
therefore, that not only did the immigration judge lack the power
in this case to approve a nunc pro tune grant of permission to
reapply, but he also lacked power to grant advance permission.
The respondent's motion for reconsideration will be denied, and
our order of June 11, 1978 will stand, except as modified by our

decision herein.
Once the respondent leaves the United States, an application for
advance. permission to reapply for admission will no longer be
timely. The advance permission option is reserved for aliens who
are still physically present in the United States. Although the
District Director denied his application for advance permission,
and the Regional Commissioner twice upheld the denial, the
respondent is free to renew his application for permission to
reapply after he leaves the United States, this time not in
advance, not maw pro tune, but contemporaneously, with the
District Director hating jurisdiction over the port of entry selected. See 8 CFR 212.2(e)
ORDER: The motion for reconsideration is denied.

602


Interim Decision #1932

MATTER OF RAJAGOPALAMENON

In Visa Petition Proceedings
A-14972519
Decided by District Director October 22, 1968
Since a Master's degree in anthropology or Its equivalent is the minimum
requirement for professional classification as an anthropologist within the
meaning of section 101 (a) (32) of the Immigration and Nationality Act, as
amended, beneficiary, whose educational attainment is not the equivalent
of such a degree, does not qualify as a member of the professions in the
field of anthropology and he is ineligible for preference classification
under section 203(a) (3) of the Act, as amended, as an anthropologist.

The petition seeks to classify the beneficiary as a preference
immigrant under section. 203 (a) (3) of the Immigration and Nationality Act, as amended, based upon his qualifications as an anthropologist.
Section 203 (a) (3) of the Act provides for the availability of
visas to Qualified immigrants who are members of the professions
or who because of their exceptional ability in the sciences or the
arts will substantially benefit prospectively the national economy,
cultural interests, or welfare of the United States.
Section 101(a) (32) of the Act defines the term "professions"
as including but not being limited to architects, engineers, lawyers, physicians, surgeons and teachers in elementary or secondary schools, colleges, academies or seminaries.
Although the occupation of anthropologist is not listed within
the definition provided by section 101 (a) (32), it should be noted
that it does bear a characteristic common to those occupations.
This characteristic is that each of the occupations normally requires completion of a specified course of study on the college or
university level, culminating in the attainment of a specific type
of degree or diploma which is usually the minimum requirement
for entry into that field. (Matter of Asuncion 11 I. & N. Dec.
660).
The beneficiary has submitted documents showing graduation

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Interim Decision *1932
from the faculty of science, University of Kerala, Trivandrun,
India March 1959 and indicates the award of a Bachelor of Science degree and a diploma from the University of Sanger, India
showing the awarding of a Master of Science degree in anthropology, November 30, 1962. He additionally has submitted indications of further studies at the University of Madras, Madras,
India in the field of anthropology, such courses leading towards a
Ph.D. degree although no such degree was awarded. He was in
attendance at the Ohio State University, Columbus, Ohio from
1966 to 1967 pursuing courses of study leading to a Master's degree in anthropology and again no degree was awarded.
The documents pertaining to his education were submitted to
the comparative research branch, Division of Higher Education

Research, Bureau of Research, Office of Education, Department of
Health, Education and Welfare, for their advisory interpretation
of the level and major field of educational attainment of the bene-

ficiary in terms of education in the United States. That office has
advised that in such terms his education is the equivalency of a
Bachelor's degree in anthropology.
The Occupational Outlook Handbook, 1966-67 edition, a United
States Department of Labor official publication lists anthropologists in the general category of the social sciences and have assigned a code number 055.088 to the profession of anthropology.
Such publication states in part "young people who are interested
in careers in anthropology should obtain Ph.D. degrees. College
graduates with Bachelor's degrees can obtain temporary postitions and assistantships in the graduate department where they
are working for advanced degrees. A Master's degree, plus field
experience, is sufficient for many beginning professional positions, but promotions to top positions is generally reserved for in-

dividuals with the Ph.D. degree. In many colleges and most universities, only anthropologists holding the Ph.D. degree can
obtain a permanent teaching appointment." The Dictionary of
Occupational Titles, 1965, Volume 2, Occupational Classification,

3rd Edition, also places anthropologists in the general category
with social science, psychological, and related research. These
professions are under the general numerical classification .088.
This publication also an official United States Department of
Labor publication states in part, "generally, a Master's degree is
the minimum requirement for professional employment in psychology or in any of the social sciences in this group. Those social
scientists with this degree qualify for college instructorships in
some schools and many nonteaching positions in government and
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Interim Decision *1932
industry. In some social sciences, such as anthropology, training
in the field is a requirement for the Master's degree. In most
schools a Ph.D. is the usual requirement for a faculty position
and for the more responsible administrative and research positions. For the most part a Bachelor's degree is not adequate preparation for entrance into professional employment in any of the
social sciences or in psychology."
It is concluded, then, that a person who possesses the equivalent of a United States Master's degree major in anthropology, is
a member of the professions. In the instant case, the beneficiary
does not possess the equivalent of such a degree. Consequently, he
is not eligible for classification under section 203 (a) (3) as a
member of the professions based on his claimed profession of anthropologist.
ORDER: It is ordered that the petition to classify the status of
Medayil Kesavapillai RajagopalaMenon as a preference immigrant under section 203 (a) (3) of the Immigration and Nationality Act, as amended, be and the dame is hereby denied.

112


Interim Decision #1779

MATTER

or MAIL11

In Visa Petition Proceedings
A-17276575
A-17276577
Decided by Board January 9, 1967
The beneficiaries, issue of a polygamous (second) marriage of their father in

Pakistan in 1928 according to Hindu rites, are entitled to fifth preference
classification upon the filing of a visa petition by their United States citizen
half-brOther, a child of the dame father by his original marriage in 1917 in
India, sine* the polygamous marriage of the father was legal in India and

Pakistan under Hindu law prevailing at that time and the children of such
polygamous marriage were legitimate under the law then prevailing.
ON BEHALF OF PETITIONER Jack C. Dozier, Esquire
Atherton & Dozier
520 Wells Fargo Bank Bldg.
Stoekton,.California 05202
(Brief Sled)

The cases come forward pursuant to certification by the District
Director of his orders dated October 28, 1966 denying the visa, petitions

for the reason that the beneficiaries are the offspring of a second polygamous marriage, which while valid where performed in Pakistan,
cannot be considered as valid for immigration purposes; and that the
issue of such a marriage do not enjoy a brother-sister relationship with
the issue of the original and recognized marriage and are not entitled
to status as the brother and/or sister of a citizen of the United States.
The petitioner, a native of Pakistan, a citizen of the United States
by naturalization on December 12, 1960, seeks preference status under
section 203 (a) (5) of the Immigration and liaticinality Act on behalf
of the beneficiaries as his half brother and half sister, respectively.
The beneficiaries are both married. The male beneficiary was born
December 3, 1929 . in Pakistan and the female beneficiary was born
October 17, 1936 in India.
The information submitted in support of the visa petitions estab•
lished that the petitioner is the legitimate son of Udham Singh Mahal
and Aupar Pirtam Kaur Mahal who were married June 1917 in India
according to the Hindu Rites. The beneficiaries, the half brother and

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Interim Decision #1779
half sister of the petitioner, are the offspring of a second marriage
of the same father to Aupar Kaur Mahal in October 1928 also under
the Hindu Rites. According to information from the Consulate General of India at San Francisco dated September 7, 1966, before the
enactment of the Hindu Code Bill in 1955/1956, a man could legally
marry more than one wife in India. It is established then that the
po_ygamous Mar*
petitioner and the beneficaries are the children of1
riage. It has been ascertained from the Indian Embassy at Washing.
ton, D.C. that the children of these polygamous marriages, which, it.
must be remembered were legal in both India and Pakistan until
1955/1956, under the Hindu law are legitimate in every sense of the
word.
The case therefore falls squarely within the decision in Matter of
K—W—S--, 9 I. & N. Dec. 396 (A.G., 1961). In that case the parties
were a sister and her half brother who were the offspring of a wife and
a concubine, respectively, in China. Under Chinese law the child of a
concubine who is acknowledged by the father, was equally as legitimate as the child of his lawful wife. In affirming the Board's order
that these children, who were legitimated under the law of China,
should be regarded as brother and sister, the Attorney General pointed
out that neither the decision nor the 1952 Act implies any approval
of the institution of concubinage or polygamy, which constitutes a
class excluded from entry into the United States under section 212
(a) (11) of the Immigration and Nationality Act. However, in the
1952 Act, Congress deemed it more in accordance with humanitarian
principles to try to keep together those offspring of a common parent
who have lived together as a family unit in accordance With the established laws and institutions of their place of residence, regardless of
whether or not those laws are in conformity with the long social and
family institutions:

In the instant case the polygamous marriage of the father to two
wives in India or Pakistan was legal under Hindu law prevailing at
that time and the children of such polygamous marriages were under
the law then prevailing considered legitimate. Matter of K—W—S—,
(supra), is considered dispositive of the case to accord recognition of
a brother and sister relationship such as will support a petition for
preference status.
ORDER: It is ordered that the visa petitions be approved for fifth
preference quota status on behalf of the beneficiaries.
'In the unreported case of Matter of Aref Masan Hamden, VPO 7-3592 (July
27, 1955), the children of a polygamous marriage which was legal under the
Moslem faith were recognized as legitimate and eligible for preference quota
status as brothers of the petitioner.

410


Interim Decision #2852

MATTER OF CLAHAR
In Visa Petition Proceedings

A-221609'70
Decided by Board March 24, 1981
(1) To qualify for visa preference status as a brother or sister under section 203(a)(5) of
the Immigration and Nationality Act, 8 U.S.C. 1153(a)(5), both the petitioner and the
beneficiary must once have qualified as the "child" of a common "parent" within the
meaning of sections 101(b)(1) and (2) of the Act.
(2) A child within the scope of the Jamaican Status of Children Act of 1976 is included within
the definition of a legitimate or legitimated "child" as set forth in section 101(bX1) of the
Immigration and Nationality Act, 8 u.S.c. 1so1(b)1), sir lung as the requisite family
ties are established and the status arose within the time requirements of section 101(b)(1).
Matter of Clahar, 16 I&N Dee. 484 (BIA 1978), modified.
(3) To meet the definitional requirements of a "child" as set forth in section 101(b)(1) of the
Act, the person must be under as years of age and any legitimation must hive taken
place before the child reached the age of 18 years.
(4) A brother-sister visa petition involving a petitioner and beneficiary who were both
illegitimate at birth in Jamaica was properly denied for failure to satisfy the definitional requirements of section 101(b)(1) where the petitioner was 33 years old and the
beneficiary 19 years old when the Jamaican Status of Children Act was enacted. '
QN

BEHALF OF PETITIONER: Pro se

BY: Milhollan,

Chairman; Maniatis, Appleman, and Maguire,

Board Members

In Matter of Clahar, 16 I&N Dee.. 484 (BIA 19'78), the Board dismissed an appeal from a decision of the District Director denying a visa
petition submitted by the United States citizen petitioner on behalf of
the beneficiary as his sister. The Immigration and Naturalization Service moves us to reconsider this decision. The motion to reconsider will
be granted and our previous decision will be modified. The petitioner's
appeal from the denial of the visa petition, however, 4761 again be
dismissed.
The petitioner was born out of wedlock in Jamaica in 1943. The beneficiary was born out of wedlock in Jamaica in 1956. They were born .of
different mothers, but it is submitted that they are the children of the
same father," Neither child was legitimated under the provisions of
As this case was preiriously resolved on other grounds, the question of the adequacy of
1

Interim Decision #2852
the "Legitimation Act of Jamaica". 2 The petitioner, however, submitted that the distinction between legitimate and illegitimate children in
Jamaica had in effect been eliminated by the Jamaican Status of Children Act of 1976 and that the visa petition should accordingly be granted.

In our 1978 decision, we rejected the contention that the Jamaican
Status of Children Act had sufficiently eliminated the distinctions in
rights and status between children born in and out of wedlock to support
a finding that children born out of wedlock could be deemed "legitimate"
or "legitimated" within the meaning of section 101(b)(1) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1). The petitioner's appeal
was dismissed for that reason.
Subsequent to our decision, the Jamaican Minister of Justice provided
a memorandum to the United States Consul General in Jamaica regarding the relationship between the Jamaican. Status of Children Act and
that country's Legitimation Act. It was stated that under the Status of
Children Act all children are now accorded equal treatment under the
laws ofJamaica subject only to specific and limited provisions which are
either transitional in nature or which ensure that children born out of
wedlock "are not prejudiced by the difficulty in identifying their natural
fathers. . . ."3 The memorandum further indicates that the minor statutory distinctions that exist result from a legislative attempt to minimize the problems associated with determining rights and status in an
area where difficulties may arise in identifying the natural father of a
child rather than from any intent to treat children born out of wedlock
less favorably than those born in wedlock.
The memorandum prepared by the Jamaican Justice Ministry was
ultimately submitted to the Immigration and Naturalization Service.
The Service requested comments on the memorandum from the American-British Law Division of the Library of Congress. On receipt of a
response from the Library of Congress, the Service filed the present
motion in which the Service's Deputy General Counsel concurs in the
:Jamaican Minister's assessment that under the Jamaican Status of Children Act "the legal duties and obligations of a father towards a child

born out of wedlock are in all significant respects the same as those of a
child born in wedlock." The Service urges the Board to reconsider our
1978 decision and to find that children born out of wedlock, who are

covered by the Status of Children Act, may qualify as legitimate or
proof that the parties had a common natural father was not addressed. The present record.
however, is insufficient to adequately establish this familial relationship.
2 See Legitimation Act ofJamaica, IlJamaica Laws, c. 217 (rev. ed. 1953). as amended by
the 1961 Jamaica Laws, No. 18.
2

For example, domicile and citizenship rights are tied to the child's: mother, where the

child is born out of wedlock in order to provide the child a "measure of certainty." The tie
to the mother ensures that the child will have a readily identifiable domicile and citizenship.

2

Interim Decision #2852
legitimated children under section 101(b)(1) of the Immigration and
Nationality Act.
In view of the detailed assessment of the effect of the Jamaican Status
of Children Act of 1976 provided by the Justice Minister of Jamaica and
the Service's support of his conclusions, we will modify our 1978 decision
in this case. We now hold that a child within the scope of the Jamaican
Status of Children Act may be included within the definition of a legitimate or legitimated "child" set forth in section 101(b)(1) of the Immigration and Nationality Act so long as the familial tie or ties are established by the requisite degree of proof and the status arose within the
time requirements set forth in section 101(b)(1).
. The present case involves a brother-sister petition. In order to establish visa preference eligibility it must be demonstrated that both parties
once qualified as the "child" of a common "parent" with the meaning of
sections 101(b)(1) and (2) of the Act. See Matter of Kong, 17 I&N Dec.
151 (BIA 1979); Matter of Garner, 15 I&N Dec. 215 (BIA 1975); Matter
of Kim, 14 I&N Dec. 561 (BIA 1970_ See also Kazarian° v. Attorney
General, 512. F.2d 936 (D.C. Cir. 1975), cert. denied, 423 U.S. 832
(1975); Beltre v. Kiley, 470 F.Supp. 87 (S.D.N.Y. 1979). In order to
meet the definitional requirements of a "child" contained in section
10I(b)(1), the status must arise before the individual reaches the age of
21 years. Moreover, any "legitimation" must occur heft: re the "child"
reaches the age of 18 years. See Matter of Cortez, 16 I&N Dec. 289 (BIA
1977). In the present case, the petitioner was already 33 years old and
the beneficiary 19 years old when the Jamaican Status of Children Act
was enacted. Accordingly, neither qualified as the "child" of their natural father within the meaning of section 101(b)(1). Therefore, the required
sibling relationship has not been established within the meaning of the

Act even itit is assumed that the familial tie of a common natural parent
was adequately proven. Thus, although we modify our decision regarding the effect of the Jamaican Status of Children Act of 1976, the
petitioner's appeal in this case must again be dismissed.
ORDER: The motion to reconsider is granted.
FURTHER ORDER: Our decision of April 7, 1978, is modified
as provided in the foregoing decision.
FURTHER ORDER The appeal is again dismissed.

3


Interim Decision #1278

- MAITRE OF

SS. RYNDAM

In FINE Proceedings
NYC-10/52.146

Decided by Board Apri119,1969
Decided by' Attorney General April 16, 1963
In a fine proceeding under section 273, Immigration and Nationality Act, the
carrier is not precluded from offering evidence on the question of due diligence
simply because that evidence might tend to impeach the correctness of the
order excluding the alien.

Ia

: SS. RYNDAM, which arrived at the port of New York from foreign on
BRONS.
February 20,1061; Alien passenger involved : HERMANTIS

Basis son FIFE: Act of 1952—Section273 [8 11.S.C. 1323].

BEFORE THE BOARD

In connection with the arrival of the alien passenger mentioned
above, the District Director at New York imposed an administrative
penalty of $1,000 against Holland-Ameries, Line. We withdrew the
District Director's order on November 20, 1961 and remanded the case
to him in order that the carrier might have the opportunity of submitting additional pertinent evidence. On February 12, 1962 we denied a motion of the Service for reconsideration. The matter is now
before us pursuant to the request of the Service on March 6, 1962 that
the case be referred to the Attorney General for review under 8 CFR
3.1(h) (iii).
Hermanus C. Brons, the alien passenger involved, was admitted to
the -United States for permanent residence as an immigrant on December 3, 1956. At the time of the arrival involved here (February 20,
1961), he was in possession- of a valid Dutch passport and an Alien
Registration Receipt Card. (Form 1-151) No. 10443369. Under 8
CPR 211.1, the Form 1-151 would have relieved this alien from the
requirement of a visa if he was returning to an unrelinquished lawful
permanent residence after a temporary absence abroad not exceeding
one year. At the exclusion hearing, the alien testified (p. 5) that he
had received a card from his local draft board in Columbus, Ohio
240

Interim Decision #1278
regarding a physical examination, and that he was planning to go
there directly for the purpose of being inducted as soon as possible.
He also testified that, when he left the United States about November
1959, it was for the purpose of marrying his fiancee and with the
intention of returning to the United States with his wife after the
marriage. The special inquiry officer held that the alien had been
abroad for more than one year and that he had abandoned his status as
a lawful permanent resident. That officer directed that the alien be
excluded and he was returned to the vessel on the same day for deportation. A letter dated September 12, 1961 from the Holland-America
Line contains the statement that, at the time the alien booked passage
on February 6, 1961, he had presented a. letter indicating that he lived
in the United States until February 15, 1980.
In attempting to state the issue in this case, the memorandum of the

Service dated March 6, 1962 shows that it believes that the carrier is
making an "unwarranted collateral attack on a duly-entered final order
of exclusion." However, the actual issue here is simply whether or not
the carrier is entitled to present its defense in full. That this question
must be answered in the affirmative seemed so clear to us that we did not
deem it necessary to answer in detail the arguments in the Service
motion of December 13, 1961. Since the Service memorandum of
March 6, 1962 complains that we did not answer any of the points it
had raised, we believe that some further clarification of the matter is
apprOpriate.
Subsection (a) of § 273 of the Immigration and Nationality Act
[8 U.S.C. 1323 (a)] makes it unlawful to bring to the United States
"any alien who does not have an unexpired visa, if a visa was required
under this Act or regulations issued thereunder" (emphasis supplied) ;
subsection (b) provides that, if the Attorney General is satisfied that
there has been a violation, a fine of $1,000 shall be imposed ; and subsection (c) prohibits remitting or refunding the fine unless it appears

to the satisfaction of the Attorney General that the carrier "did not
know, and could not have ascertained by the exercise of reasonable
diligence, that the individual transported was an alien and that a visa
was required." The carrier is seeking to present evidence on two
points: (1) that this particular alien did not require a visa and (2)
that, even if a visa was required, the fine should be remitted under
§ 273(c).
It was not until March 31, 1961, about a month after the alien's
deportation from the United States, that the carrier was notified by

the District Director concerning his intention of imposing a fine under
§ 273. In the carrier's protest to the imposition of fine, submitted on
May 18, 1961, a request was made for a transcript of the exclusion

proceeding and an opportunity to cross-examine the alien. A letter
241
768-456-65----17

Interim Decision #1278
of the District Director at New York (apparently dated August 25,
1961) informed counsel that no action could be taken upon his request
for cross examination of the alien passenger.
-

Our action in this case, which permits the carrier to present additional pertinent evidence including the testimony of the alien passenger, does not imply that it is the duty of the Service to render assistance
to the carrier in presenting its defense, nor that it is the obligation
of the Service, in a case such as this, to have the passenger available
for cross-examination by the carrier. On the contrary, we do not
hold that the carrier was entitled to cross-examine the alien during the
exclusion proceeding nor that it was necessary to notify the carrier,
prior to the deportation of the alien from the United States, concerning
the possible institution of fine proceedings. However, the carrier here

has assumed the full responsibility for producing the alien before the
American Consular Officer in the Netherlands, and counsel has suggested that he will bear the expense of questioning the alien through
interrogatories and cross-interrogatories. Under the circumstances,
the case is simply one in which the carrier desires to present the testimony of a witness for the consideration of the District Director, and
we do not believe there is any basis for refusing to accept the testimony
merely because the witness happens to be the alien passenger involved.
On the other hand, if an alien departs from the United States and the
carrier is unable to locate him, the carrier would be in the same position
as any other litigant who is unable to produce a witness.
The question of whether or not this alien passenger had abandoned
his residence in the United States and the question of whether he had or
had not been absent for over one year are clearly matters pertinent to
the carrier's defense. Assuming that the carrier will produce the alien
before, the American Consular Officer, we believe that will be the appropriate method of affording the carrier an opportunity to question
the alien as a witness in its defense.
The motion of the Service dated December 13, 1961 refers to "an
unwarranted reexamination of a duly-arrived-at exclusion ruling of a
special inquiry officer, after hearing" (p. 5) and contains the assertion
that counsel is seeking to make a collateral attack on the special inquiry officer's findings (p. 7). At the exclusion hearing, the special
inquiry officer made no formal findings of fact but it is clear that he
did hold that the alien required an immigrant visa. The Service takes
the position that the carrier is conclusively bound by such a finding of
a special inquiry officer and apparently it claims this would be true
regardless of what facts a carrier might be able to present to show
that, in a particular case, the alien did not require a visa. None of the
cases cited by the Service is authority for such a proposition, and the
Service has not brought to our attention any provision of the statute
242

Interim Decision #1278
or regulations which would preclude a carrier from presenting evidence that an arriving passenger actually did not require a visa.
In Matter of .71— , 7 L N. Dee. 407, 409 (1957) , where there had
been a prior judicial decision, we discussed the distinction between res
judicata and collateral estoppel by judgment. Although the Service
has refrained from using these terms, it apparently is seeking to apply
these doctrines to the special inquiry officer's finding that the alien
required a visa. However, these doctrines can be utilized only where
the same parties are involved in the two proceedings and they cannot
be applied to this carrier who was not a party to the exclusion
proceeding.
The carrier is not attacking the exclusion order as such and any
decision which may eventually be made with respect to the carrier
will have no effect on the finality of the order excluding the alien.

In other words, after the carrier has had the opportunity of presenting
its defense in full, the District Director will be able to pass on whether
the carrier is subject to fine, depending on whether this alien did or
did not require a visa. However, if the District Director holds that
the alien did not require a visa, the alien himself will not be able to
attack the exclusion order since it became final as to him on February
20, 1961 under § 236 of the Immigration and Nationality Act.
The Service stated (motion of December 13, 1961, p. 8) that the
Board had uniformly rejected attempts of carriers to bring fine proceedings within the Administrative Procedure Act and the decision in
Wong Yang Sung v. McGrath, 339 U.S. 33 (1950). Although this
statement of the Service is correct, it has no particular relevance since
counsel has not claimed that the Administrative Procedure Act or the
Sung decision have any applicability to this fine proceeding.
As counsel indicated, the court made the following statement in
Lloyd Babaudo Society Anoninta v. Elting, 287 U.S. 829, 336 337
(1932) : "We think it clear * * * that the statute, as it has been consistently construed administratively, contemplates that the Secretary
should fairly determine, after a hearing and upon the evidence, the
facts establishing its violation." The pertinent regulations are contained in Part 280, Title 8, Code of Federal Regulations. 8 OFR
280.14 specifically refers to testimony adduced at the interview, and
we believe it is immaterial that Part 280 contains references to "personal appearance" and "personal interview" rather than to a hearing.
We hold that the regulations in Part 280 provide due process.
In its motion of December 13, 1961 (pp. 5-9), the Service argued
that, on the basis of all the facts of record, the alien required a visa and
the carrier did not exercise reasonable diligence. It may be that this
will be our eventual conclusion. However, the important consideration
in this case is that 8 CFR 280.12 specifically provides: "* * * the
-

243

Interim Decision #1278
evidence in opposition to the imposition of the fine and in support of
the request for mitigation or remission may be presented at such
interview." Here we have a case in which the carrier desires to present the alien's testimony for the consideration of the District Director,
and the Service seeks to preclude the presentation of such evidence.
We find no merit in the contention of the Service that the alien's testimony would be of no value to the carrier. After the testimony is taken,
it may be of no value or it may even be damaging to the carrier. However, the regulation specifically provides that the carrier may present
evidence in opposition to the imposition of fine and, if it desires to
present the alien's testimony, we believe the carrier is entitled to do so.
The Service asserted (motion of December 13, 1961, p. 8) that the
requirements of procedural due process stated in 8 CFR 280 "weir
punctiliously followed in this proceeding". Actually, in certain respects the requirements of the regulation were not observed. In the
first place, when the carrier protested. the imposition of fine, it requested cross-examination of the alien. The District Director's letter

stated that no action could be taken upon this request and referred to
the alien's departure from the United. States. We have held above

that a carrier may present the alien passenger as its witness and that
the testimony may be taken through interrogatories before an American Consular-Officer. The District Director's refusal to take action on
counsel's request was in error since it precluded the carrier from presenting certain evidence in opposition to the imposition of a fine as
provided by 8 CFR, 280.12.
In another respect also there was a failure to comply with the regulation. Where a personal appearance is requested, 8 CFR 280.13(b)
states that the case shall be assigned to an immigration officer and
provides: "The immigration officer shall prepare a report summarizing the evidence and containing his findings and recommendation.

The record, including the report and recommendation of the immigration officer, shall be forwarded to the district director" (emphasis
supplied). 8 CFR 280.14 specifically refers to the "record made under
§ 280.13" and sets forth certain additional matters to be included. The
record before us does not contain the report summarizing the evidence,
prepared by the immigration officer to whom the case was assigned,
nor his findings and recommendation.
A third matter is that 8 CFR 280.14 provides that one of the items
to be included in the record is "documentary evidence and testimony
adduced at the interview" (emphasis supplied). Since we were not
even furnished the immigration officer's report under 8 CFR 280.13 (b) ,
we are unable to determine precisely what transpired at the personal
interview, and we believe the present record is defective for That reason.
244

Interim Decision #1278
We do not regard the copy of the District Director's letter of August
25, 1961 as complying with these specific provisions of the regulations.
The only statement in it relating to the personal interview appears on
page 2 where it was stated that a copy of the exclusion hearing and all
other evidence of record was reviewed by counsel's representative, Mr.
Edward I.. Dubroff, during a personal interview conducted by

Inspector Berry on August 4, 1961.
Paragraph (1) of 8 'OFR 3.1(d) provides that, subject to any specific limitation, "the 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", .and paragraph (2)

provides that the Board may return a case to the Service for such
further action as may be appropriate without entering a final decision
on the merits of the case. At the time of our original consideration of
the case, we concluded that, before rendering a decision on the merits,
it was appropriate and necessary that the carrier be permitted to
present its defense in full, including the testimony of the alien.
In its memorandum of March 6, 1962, the Service stated that our
decision was contrary to long-standing administrative practice and
that it directs a major departure from existing regulations. Actually,
there never has been any practice that a carrier is to be precluded
from presenting his defense in full, whether the defense consisted of
the testimony of our witnesses or the testimony of the alien passenger. Our decision also is not a departure from existing regulations.
On the contrary, it is merely to require that the existing regulations
be observed_

The Service submitted copies of several decisions of the Board, one
of which was dated June 16, 1950 and the others bearing dates between
1957 and 1961. These are unreported decisions which are not available to counsel and he has not been furnished copies of them nor an
opportunity to differentiate between these decisions and his client's
case. One of the matters to which the Service invited attention was
our statement that the regulations do not require that the carrier be
afforded the opportunity of being present at the exclusion hearing of
the alien passenger. In these cases, the carrier was apparently claiming that this was a fatal defect which barred the imposition of a fine,
and we rejected the contention. Here, counsel makes no such claim
but merely asks that the carrier be permitted to now examine the
alien and present his testimony. The other point to which the Service
invited attention in these unreported decisions is that a fine was properly imposed where the procedure specified in the regulation was
followed. Here, as we have pointed-out, certain requirements of the
regulation were not observed.
245

Interim Decision #1278
The Service cited (motion of December 13, 1961, pp. 5 to 8) judicial
authority for statements that the carrier is charged with whatever
knowledge it would obtain from a competent examination of the
alien; that the authority to exact penalties is an incident to the vast
power of Congress to control the entry of aliens; that it is proper
for Congress to invest administrative officers with the power to assess

penalties; that the courts have no direct function in this process except to correct abuses; and that the Attorney General's decision as
to the weight to be given to the evidence in a fine proceeding is final
provided that the decision is supported by substantial evidence. All
of these principles are clear and we are well aware of them. However,
counsel does not dispute any of these; they are not involved in this
case; and we do not perceive why the Service felt it necessary to discuss
matters which are not at issue.
The Service stated (motion, pp. 8-9) that a "careful review of the
pertinent eases" [not otherwise identified] had failed to reveal any

authority in an administrative fine proceeding for a direct attack by
a carrier on the basic exclusion proceeding; and that the carrier's

remedy is a possible defense of due diligence notwithstanding the fact
of a proper exclusion. In a fine proceeding under § 273, there are two
defenses open to a carrier—(1) that there has been no violation of the
statute which is an absolute defense and (2) that, although the statute
was violated, the fine should be remitted or refunded pursuant to
§ 273 (c). The position of the Service seems to be that, as soon as there
is a final decision in an exclusion proceeding, this -wipes out the first
or absolute defense a carrier might have (even though the carrier

is not a party to the exclusion proceeding) and from that point the
carrier is to be relegated to the possibility of securing remission
or refunding of the fine if it can establish the requirements of § 273(c).
As was the case here, the exclusion proceeding would ordinarily be
completed before the carrier had had an opportunity to present any
evidence in the fine proceeding. The effect Of the Service position, in
all or most cases, would be to preclude a carrier from offering any evidence to show that there had, in fact, been no violation of the statute.
In order to sanction a course so drastic, we would expect the Service
to point to some specific authority for depriving a carrier of the possibility of showing that the statute had not been violated, particularly
since the provisions relating to the imposition of fines are penal in
nature. It is a well established principle that penal statutes are to be
construed strictly. Federal Communications Commission v. American
Broadcasting Co., 347 U.S. 284, 296 (1954). The Service has not cited
-

any authority to sustain its theory, and we believe there is ample support for a contrary p6sition.

246

Interim Decision #1278
First, the regulation of the Service [8 CFR 280.12] refers to a
written defense setting forth the reasons (1) why a fine should not
be imposed or (2) if imposed, why it should be mitigated or remitted.

Later in the same section there is again a reference to evidence in opposition to the imposition of fine and in support of the request for
mitigation or remission. If we were to accede to the present position
of the Service, this provision of the regulation authorizing the carrier
to present evidence in opposition to the imposition of a fine would
be rendered practically meaningless, and the carrier, instead of having
ited to a defense only under
two possible defenses, would be lim
§ 273 (c) .
In the second place, the "authority", which the Service says is
lacking, appears sufficiently lu the statute itself. § 278 (a) makes it
unlawful to bring an alien who does not have an unexpired visa if a
visa was required. In order to sustain the imposition of a fine, the
record must show that the passenger was an alien; that he did not
have an unexpired visa; and that a visa was required.- We do not
believe it is open to question that no fine could legally be imposed if
a carrier presented evidence establishing that a particular passenger
was a United States citizen or that he did, in fact, have an unexpired
visa or that he did not require a visa, and this would be true irrespective of what might have occurred in the exclusion proceeding. Hence,
we can perceive no valid legal basis for precluding a. carrier from
presenting evidence along that line merely because these facts may
have been decided adversely to the passenger in the exclusion proceeding. In 'the case before us, there is certain evidence showing
that the passenger is an alien; that he required a visa; and that he did
not have an unexpired visa. However, it is not conclusive evidence
that would preclude the carrier from establishing the contrary and the
carrier does assert, as a defense, that this particular alien did not
require a visa. We do not believe there can be any legal justification
for the attempt of the Service to prevent the carrier from offering
evidence concerning this defense.
A third matter is that there are judicial decisions which indicate that
a conclusion reached in an exclusion proceeding is not necessarily
binding in a fine proceeding. United States v. Compagnie Generale
Transatlantigne, 26 F. 2d. 195 (C.C.A. 2, 1928) ; Compagnie Generale
Transaaantigue v. United States, 78 F. Supp. 797 (Court of Claims,
.

1948).

In Matter of Plane CCA CUT 582, 6 I. & N. Dec. 262 (1954), and
in Matter of Plane CUT 604,7 I. & N. Dec. 701 (1958), we held that
fines were not incurred under § 273 and that a carrier may assert the

defense that a visa was not required. In these cases the exclusion
217

Interim. Decision #1278

proceeding against the passenger had been predicated on lack of a
visa but the passenger was admitted under a, standing waiver of the
visa requirement published in the regulations. In Matter of Cana an
Pacific Airlines, 8 I. & N. Dee. 8 (1957), two aliens did not have
unexpired visas or other entry documents and such documents were

required. There, we adopted a view urged by the Service that no fine
should be imposed under § 273 of the Immigration and Nationality
Act, against a carrier signatory to an Overseas Agreement under § 238
of the Act, for transporting to Canada, destined to the United States,
aliens who were returning United States residents or natives of contiguous territory and who were inadmissible solely on documentary
grounds. These administrative decisions are, of course, distinguishable from the instant case. However, they illustrate that the decision
in an exclusion case is not necessarily controlling in a. fine proceeding;
that a carrier may assert, as a defense, that § 273(a) was not violated
and that a carrier is not restricted to the possibility of asking that the
fine should be remitted or refunded under § 273 (c).
In view of the foregoing, we believe the conclusion is inescapable
that the carrier must be afforded the opportunity of presenting its
defense in full. While the exclusion order has become final as to the
alien passenger, the findings in that proceeding are not binding on the
carrier and cannot be utilized to deprive the carrier of its right to show
that there was no violation of § 273(a). Accordingly, we adhere to
our previous ruling that the ease is not ready for adjudication at this
time and must be remanded to the Service to permit the carrier to
present its defense in full, including the testimony of the alien passenger to be obtained by means of interrogatories.
ORDER: It is ordered that, pursuant to the request of the Service,
this case be referred to the Attorney General for review under 8 CFR
3.1(h) (iii) .
BEFORE THE ATTORNEY GENERAL

This case involves the question whether a transportation company,
the Holland-America Line, is entitled to the opportunity to submit
certain evidence in connection with an administrative proceeding for
the imposition of a fine of $1,000 for bringing an alien to the United
States in violation of section 273 of the Immigration and Nationality
Act, 8 U.S.C. 1323.
Subsection (a) of section 273 makes it unlawful for a transportation
company to bring to the United States an alien who does not have an
unexpired visa, if a visa is required. Subsection (b) provides that if
it appears to the satisfaction of the Attorney General that the alien has
been so brought to the United States, the transportation company must

pay a fine of $1,000. Subsection (c) provides that the fine may not
248

Interim Decision #1278
be remitted, unless it appears to the satisfaction of the Attorney
General that the transportation company prior to the departure of its
vessel (or aircraft) from abroad "did not know, and could not have ascertained by the exercise of reasonable diligence that the individual
transported was an alien and that a visa was required."
Over the company's protest, the District Director of the Immigration and Naturalization Service imposed. a fine against it. On appeal

to the Board of Immigration Appeals, the Board withdrew the order
imposing the fine and remanded the case to the District Director in
order to give the company the opportunity to submit additional evidence. At the request of the Immigration and Naturalization Service,
the Board has certified the case to me for review pursuant to 8 CFR
3.1(h) (iii)
.

Hermanus C. Brons, the alien passenger involved, was admitted to
the United States for permanent residence as an immigrant on December 3, 1956. At the time of the arrival involved here, February 20,
1961, he was in possession of a valid Netherlands passport and an Alien
Registration Receipt Card. (Form 1-151). He did not have a visa.
However, under 8 CFR 211.1 the Form 1-151 would have relieved him
from the requirement of a visa if he was returning to an unrelinquished
lawful permanent residence after a temporary absence abroad not exceeding one year. An exclusion hearing was held on February 20,
1961. On the basis of Mr. Brons' testimony at the hearing, the special
inquiry officer found that Mr. Brons had been abroad for more than
one year and that he had within that period relinquished his permanent
residence in the United States by emigrating to Canada. Consequently, the officer directed that Mr. Brons be excluded pursuant to

section 212 (a) (20) of the Immigration and Nationality Act, 8 U.S.C.
1182 (a) (20), and he was returned to the vessel the same day for deportation. No representative of the company appeared at the exclusion proceeding, and Mr. Brons was represented by a social agency
worker.
On March 31, 1961, the District Director sent the company a notice
of intention to fine. The company filed a protest in which it stated
that it had concluded that Mr. Brons was a permanent resident of the
United States because he had a Form 1-151 and two letters from his
draft board ordering him to report for induction into the Armed
Forces. It stated. further that it did not know that Mr. Brons was
not a lawfully returning resident and could not have established the
fact by the exercise of reasonable diligence. The company requested
an opportunity to examine Mr. Brons' immigration file and the transcript of the exclusion proceeding, and to cross-examine Mr. Brons.
In addition it demanded "a formal due process hearing." The District
Director in a decision dated August 25, 1961, denied the company's re-

249

Interim Decision #1278
quest,2 imposed a fine in the amount of $1,000, and refused to remit the
fine on the ground that the company had failed to exercise reasonable
diligence.

The company appealed to the Board and, at the hearing before the
Board, requested the opportunity to develop additional evidence
through written interrogatories to Mr. Brons. The company also
submitted to the Board a letter received from its Rotterdam office
subsequent to the District Director's decision, setting forth Mr. Brons'
version of the entire episode. The Board ordered that the District
Director's decision be withdrawn and that the case be remanded to the
District Director "to give the carrier an opportunity to submit any
additional pertinent evidence it may desire." As stated above, the
Service moved for reconsideration, the motion was denied, and at the
request of the Service the case was referred to me for review.
Had this case come before me simply as a request to review the
Board's initial decision, it would present no problem, for I have no
doubt that the Board's discretionary authority under 8 CFR 3.1(d) (1)
includes the power to remand a case for the taking of further testimony, whether or not an error of law was committed below. Unfortunately, the motion for reconsideration, the decision on the motion,
the request for referral, and the Board's memorandum accompanying
the order of referral have resulted in a confusing proliferation of the
issues, unjustified by the present posture of the:case.
Basically, it is the position of the Service that no further testimony
should be taken from Mr. Brons because such testimony can be used
only to attack collaterally the determination of the special inquiry
officer that Mr. Brons was required to have a visa, and that the carrier
is bound by this determination. Furthermore, the Service contends
that if the company wishes to develop from Mr. Brons' testimony evidence of its own exercise of due diligence, that factual issue has been
"foreclosed" because the Service has from the beginning accepted
the company's statement as to what information it was acting on in
permitting Mr. Brons to embark. Therefore, the Service reasons, the
only question present in this case is whether the conceded facts do or
do not establish a claim of due diligence under section 273 (c), swpra,
and this question can be determined by the Board on the present record.
The short answer to the latter contention is that inasmuch as the
Board does not regard the present record as sufficient for a disposition
of the issues of this ease, I see no reason why the company should not
-

be afforded an opportunity to present further evidence, either as a
'It appears that the company's representative was permitted to examine a
transcript of the hearing and the other evidence of record at a personal interview held on August 4, 1961, pursuant to 8 G'FR 28012.

250

Interim Decision #1278
matter of discretion or a matter of right.' Furthermore, the Service
is evidently proceeding on an inarticulate premise that in making its
case for remission under section Bin (e) a carrier is limited to evidence
in its possession prior to the time the passenger was permitted to em-

bark, the theory being that no other evidence can be probative of the
carrier's diligence. The difficulty with this theory is that section 273
(c) does not say that the carrier must show that it acted with due diligence in the light of the circumstances known to it at the time, but
that it "did not know, and could not have ascertained by the exercise
of reasonable diligence that the individual transported was an alien
and that a visa was required." Accordingly, even if the carrier is limited to a defense under section 273 (c), it should be permitted to show
not only that it s cted with diligence in the light of its actual knowledge,

but also that if there was a lack of diligence, this did not cause the
carrier to be cut off from a line of inquiry which, if pursued, would
have led to the conclusion that the passenger was an alien who required
a. visa.' It is not inconceivable that Mr. Brous' testimony might be
relevant to this issue.
The major issue in this case is, of course, whether the company is to
be permitted to introduce evidence tending to show that the passenger

was not required to have a visa and thus to make what the Service
describes as "an unwarranted collateral attack on a duly-entered final
order of exclusion." This is a troublesome question, and I do not
belieVe that it should be decided on hypothetical facts. On the present
record the question is premature: The company has made no formal
offer of proof. It is not entirely clear what it hopes to elicit from Mr.
Brons, and I see no need to act now on the basis of speculation. In

any event, the question whether section 273 (a) was violated is not necessarily inseparable from the question of what the company could have
ascertained by the exercise of reasonable diligence. Certainly, the
company should not be precluded from offering evidence on the latter
question simply because that evidence might tend to impeach the correctness of the order of exclusion.
The order of the Board is affirmed.
' The Board points out in its memorandum accompanying its certification for
review that the proceedings before the District Director did not comply with
applicable regulations, 8 CFR 280.12, 280.13, 280.14. The Service has not replied to this contention. It is not clear whether the Board has based its decision to remand on these errors below or on its discretionary power. I conclude
that the order to remand was appropriate in any event since the Company has
not In fact had an opportunity to develop and present evidence which may be
relevant to its defense.
For example, if an alien passenger carries a forged United States passport,
the carrier should be permitted to show that it could not have detected the forgery by the exercise of reasonable diligeifce even if in fact the carrier's representatives did not examine the passport at all.

251


Interim Decision #2844

MATTER OF MCMILLAN

In Visa Petition Proceedings
A-22511152
A-22511133
Decided by Board January 13, 1981
(1) Persons who become stepchildren through the marriage of a natural parent prior to
their eighteenth birthday are entitled to visa preference as a class under section
101(b)(1)(B) of the Immigration and Nationality Act, .8 U.S.C. 1101(b)(1)(B), without
further qualification. The Ninth Circuit rule in Palmer v. Reddy, 622 F.2d 463 (9 Cir.
1980), previously adopted by the Board in cases arising within that jurisdiction in
Matter of Bonnette, Interim Decision 2840 (BIA 1980), will be applied nationwide.
Matter ofMereira, Interim Decision 2720 (BIA 1979), and Matter of Mereira, Interim
Decision 2792 (BIA 1980), overruled.
(2) The beneficiaries, illegitimate offspring of the petitioner's husband, qualified as
stepchildren of the petitioner within the meaning of section 101(b)(1)(B) upon the
marriage of the petitioner and, the beneficiaries' natural father when the beneficiaries
were under eighteen years of age.
ON BEHALF OF PETITIONER: Pro se
BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

In a decision dated July 23, 1980, the Acting District Director denied
the visa petitions filed by the United States citizen petitioner to accord

the beneficiaries immediate relative status as her stepsons pursuant to
section 201(b) of the Immigration and Nationality Act, 8 U.S.C.
1151(b). The petitioner has appealed from that decision. The appeal
will be sustained and the visa petitions will be approved.
The record reflects that the beneficiaries, twin brothers, were born in
London, England, on July 26, 1962, to the petitioner's husband and a
woman who was not then and never became his wife. The beneficiaries'
natural mother abandoned them when they were infants and they have
since resided with their paternal grandmother in Grenada, West Indies. The petitioner and the beneficiaries' father married in March
1964. The Acting District Director determined that the beneficiaries do
not qualify as stepchildren of the petitioner within the meaning of the
Act (see section 101(b)(1), S U.S.C. 1101(b)(1)) inasmuch as the peti.01,110.

Interim Decision #2844
tioner failed to establish the existence of a close family relationship
between herself, her husband, and the beneficiaries.
Section 101(b)(1)(B) of the Act includes within the definition of the
term "child": ".. . a stepchild, whether or not born in wedlock, provided
the child had not reached the age of eighteen years at the time the
marriage creating the status of stepchild occurred; .. ." In construing
section 101(b)(1)(B), we have long adhered to the view that given the
underlying Congressional policy of reuniting families, the mere fact of
a marriage which technically creates a steprelationship does not in
itself establish a stepparent-stepchild relationship for purposes of the
immigration laws. We had until recent date imposed the additional

requirement, apparently applied by the Acting District Director in the
instant case, that a close family unit be shown to exist between the
stepparent, the stepchild, and the natural parent. See Nation v. Esperdy, 239 F.Supp. 531 (S.D.N.Y. 1965); Matter of The, 11 I&N Dec. 449
(BIA 1965).'
We recently reexamined that position in Matter of Moreira, Interim
Decisions 2720 and 2792 (BIA 1979 and 1980), and established a new
standard that modified to some extent the close family unit test. After
careful review of relevant legislative history and pertinent Board and
court decisions,2 we held that a steprelationship exists for immigration
purposes where, prior to the stepchild's eighteenth birthday, the stepparent not only married the child's natural parent but evinced an
active parental interest in the child's support, instruction and general
welfare.
In Palmer v. Reddy, 622 F.2d 463 (9 Cir. 1980), the United States
Court of Appeals for the Ninth Circuit specifically rejected both the
Moreira "active parental interest" test and its predecessor, the "close
family unit" rule, concluding that persons who become stepchildren
through the marriage of a natural parent prior to their eighteenth
birthday are entitled to visa preference as a class under section
101(b)(1)(B) without further qualification. We found ourselves bound
to follow Palmer v. Reddy, id., in Matter of Bonnette, Interim Decision
2840 (BIA 1980), a subsequent case arising in the Ninth Circuit.
We have now determined, with some reluctance, to retreat from our
position in Matter of Moreira, supra, and to apply the holding in
Palmer v. Reddy, supra, nationwide. The difficulties inherent in the
' In Andrade v. Esperdy, 270 F.Supp. 516 (S.D.N.Y. 1967), another judge of the same
judicial district that decided the Nation case, the Southern District of New York, struck
down the close family unit requirement in cases arising within that jurisdiction. We
declined to apply Andrade outside the Southern District of New York. Matter of Amado
and Mmdeiro,13 I&N Dec. 179 (BIA 1969).
= For a full discussion of the legislative history and case law development of the
stepchild provision, see Matter of Moreira, Interim Decision 2720 (BIA 1979).

606

Interim Decision #2844
literal interpretation given section 101(b)(1)(B) by the Ninth Circuit
are manifest. See generally concurring opinion of Board Member Appleman in Matter of Bonnette, supra. However, the Ninth Circuit is the
only Circuit Court of Appeals to have construed the stepchild provision

thus far. The Government appears to have acquiesced in the Ninth
Circuit's interpretation of section 101(b)(1)(B). We shall accordingly
adopt that interpretation as controlling outside as well as within the
Ninth Circuit.
The record establishes that the petitioner married the beneficiaries'
natural father when the beneficiaries were 20 months of age. Under the
rule of Palmer v. Reddy, the beneficiaries thereupon qualified as
stepchildren of the petitioner within the meaning of section
101(b)(1)(B) and are entitled to immediate relative status as the children of a United States citizen. The visa petitions will be approved.
ORDER, The appeal is sustained and the visa petitions are
approved.


Interim Decision #1862

MATTER

OF

RomANo

In Visa Petition Proceedings
A-17477035

Decided by Regiand Comatiasioner May 16, 1968
Preference classification under section 205(a) (6) of the Immigration and Na..

tionality Act, as amended, as a live-in maid, is denied where the evidence
does not establish that beneficiary is physically able to do the work; that
petitioner is financially able to pay her the prescribed rate nor that he, is
fact, intends to employ her to perform all the duties set forth in the job offer.

This matter is before the Regional Commissioner on appeal from
the decision of the District Director denying the petition.
The petitioner seeks to have the beneficiary accorded preference•
immigrant classification under section 203(a) (6) of the Immigration
and Nationality Act on the basis of his offer of employment as a
live-in maid. The petition is supported by a labor certification issued
December 1, 1967 by the Bureau of Employment Security pursuant
to section 212 (a) (14) of the Act for a general maid.
The job offer on which the labor certification was issued is for a
live-in maid to be paid at the rate of $44 a week plus board and room.
The duties to be performed are set forth as keeping the home clean,.
doing all of the cooking, and helping with the children. The requirements for the position are "must be able to do the housework and cook
and babysit."
The beneficiary, the mother of the petitioner, is 55 years of age, &
native and citizen of Italy. In Italy she had worked as a cateress. She
entered the United States on March 5, 1966 as a visitor for pleasure
and resided with the petitioner. On August 11, 1966 she applied foran extension of temporary stay for the reason that her daughter-in-law
was expecting her first child and she wished to help with the baby.
An extension was granted until March 4, 1967. On February 16, 1967
she applied for a further extension of stay as a visitor for medical
reasons. In support of that application, medical certificates dated
January 11, 1967 and May 1, 1967 were presented. The first certificate
said she was under the doctor's care for a gallbladder disease and was
3211-654-69--48

731

Interim Decision #1862
unable to traveL The second certificate stated she had been under professional care for a gallbladder disease and hypertension since September 1966, that her physical condition was still poor, and that the
attending physician was of the opinion that a trip back to Italy would
be hazardous to her health. The further extension of stay> until September 4, 1967 was granted. The beneficiary has now returned to Italy.
The petitioner's wife was employed for the first six months of 1967.
Her gross earnings for that period were only $1,276.97. She expected
the second baby in March 1968. A supplement to the job dated August
10, 1967 said the services of the beneficiary would be required to care
for the new baby and the other child.
The petitioner was interviewed by an officer of this Service on
February 7, 1968. He had a savings bank account with a. balance on
that date of $3,116.30, with interest on the account of $59.64 for the
year 1967. His gross earnings in 1967 amounted to $6,841. He admitted
he had never employed a domestic; that the only effort he had made
to obtain household help was by word of mouth; and that he would
not consider employing any person for this position except his mother.
He asserted the position is permanent, that his mother is in good
health, and expressed the hope the mother will babysit after his wife
had the second baby so that his wife can return to work. On appeal
he says he has to support his mother while she is in Italy, that if the
mother were here he could pay her the salary of a live-in maid, and
his wife could return to her former employment.
The entire record including the representations on appeal has bean
carefully considered. It is noted that the earnings of his wife in her
outside employment, without deductions, approximate the $44 a weak
required to be paid the beneficiary and that her take-home pay may
actually be less. It is found that the evidence does not establish (1)
that the petitioner is financially able to pay the beneficiary the prescribed rate of $44 a week plus board and room; (2) that the beneficiary
is physically able to do the housework, all the cooking, and babysit
in the home as required by the job offer; and (3) that the petitioner
in fact intends and desires to employ the beneficiary to perform all
the duties set forth in the job offer. It is concluded that the petitioner
has not established that the beneficiary is eligible for preference immigrant classification under section 203(a) (6) of the Act. Accordingly, the appeal will be dismissed.
It is ordered that the appeal be and hereby is dismissed.

732


Interim Decision #1301

MATTER OF SIBUCEVIO

In VISA PETITION Proceedings
A-11904545
Deekied by Board September 3, 1963
Since the stepparent-stepchild relationship created by virtue of the petitioner's
marriage in 1952 to the father of the beneficiary (latter then 13 years of age)
was discontinued and brought to an end when said marriage was legally terminated by divorce in 1057 with custody of the beneficiary awarded the father,
and both petitioner and father have subsequently remarried other persons,
the petitioner is not now the "parent" of the beneficiary within the meaning
of section 101(b) (2), Immigration and Nationality Act, and, therefore, ineligible to petition for third preference quota status on his behalf as her stepson.
[Matter of 0—, 8 I. & N. Dec. 592, distinguished.]

The District Director of Immigration and Naturalization at Los
Angeles, California on June 17, 1963 entered an order denying the
visa petition filed by the petitioner on January 7, 1963 to accord the
beneficiary third preference status as provided in section 203(a) (3)
of the Immigration and Nationality Act. The case has been certified
to this Board for final decision in accordance with the applicable
regulations. The petitioner in. her petition to classify status of an
alien for the issuance of an immigrant visa, which was subscribed

and sworn to at San Pedro, California on. January 4, 1963, deposed
that she is a native and citizen of Yugoslavia, lawfully admitted to
the United States for permanent residence at Chicago, Illinois on
April 6, 1960.
The beneficiary was born in Yugoslavia on. February 15, 1939. He
has been living in Canada since October 1962. On examination of the
record we find that the beneficiary was 13 years of age when the petitioner married the beneficiary's father on July 31, 1952. The petitioner separated from the beneficiary's father on October 27, 1956 and
their marriage was terminated by divorce on December 3, 1957, at
which time custody of the beneficiary was awarded to his father with
whom he has since resided. The petitioner testified that no issue was
born from her marriage to the beneficiary's father. The petitioner
363

Interim Decision 4t1301
testified that both she and the beneficiary's father had each remarried
on two occasions since being divorced on December 3, 1957.
Under section 101(b) (1) (B) of the Immigration and Nationality
Act the term "child" means an unmarried person under 21 years of age
who is a stepchild, whether or not born out of wedlock, provided the
child has not reached the age of 18 years at the time the marriage
creating the status of stepchild. occurred. Section 101(b) (2) of the
Act defines the term "parent," "father," or "mother" as meaning a
parent, father, or mother only where the relationship exists by reason
of any of the circumstances set forth in section 101(b) (1) of the Act.
Hence, under the pertinent statutes the petitioner and the beneficiary
acquired the status of "mother" and "child," respectively, when the
petitioner married the beneficiary's father on July 31, 1959..
The District Director's conclusion that the petitioner was not the
beneficiary's parent or mother at the time she executed and filed on his
behalf the petition to accord him preference quota status under section
203 of the Immigration and Nationality Act and his reasons therefor
are concurred in by this Board. In Matter of C—, 8 I. & N. Dee. 592,
this Board held that a married stepdaughter, 45 years of age, was eligible on petition for fourth preference - quota status as a "daughter"
within the meaning of section 203(a) (4) of the Act, as amended, provided there existed an original relationship of "stepparent" and "stepchild" validly created in accordance with the provisions of section
101(b) (1) (B) of the Act, as amended. In Matter of C—, supra, the
marriage between the beneficiary's mother and the petitioning stepfather was in existence when the petition was filed on behalf of the
beneficiary and at the time of the Board's decision on March 4, 1900.
In other words, the relationship established by reason of section
101(b) (1) (B) of the Act does not cease to exist when the stepchild
marries or reaches 21 years of age provided the marriage that created
the status of stepchild is in existence. In Matter of C—, supra, there
was a reuniting of a family unit that had been in existence since the
beneficiary was seven years old.
The facts in the instant case are readily distinguishable from those
present in Matter of C—, supra. In the instant case the evidence
establishes that the relationship between the petitioner and the beneficiary lapsed on October 27, 1956 when the petitioner separated from
the beneficiary's father. In this connection, it is noted that the petitioner in her application for an immigrant visa, subscribed and sworn
to before a United States Consular officer at Oslo, Norway on March 31,
1960, deposed she had been living and employed in Oslo, Norway since
1956. The relationship ceased to exist in fact on December 3, 1957
when the petitioner's marriage to the beneficiary's father was dissolved
pursuant to a decree of divorce. The relationship between the peti364

Interim Decision 4t1301
tioner and •eneficiary that came into being by reason of the petitioner's
marriage to the beneficiary's father in 1952 was one of "aff inity," as
distinguished from consanguinity.
Consanguinity or blood relationship is incapable of dissolution.
"Affinity" is generally defined to be the relationship by marriage between a husband and his wife's blood relatives, or 'between a wife and
her husband's blood relatives. Hence, it has been held that upon dissolution of a childless marriage by divorce and remarriage of wife or

husband, "affinity" between divorced husband and wife's children of
a former marriage is extinguished. When the marriage is dissolved,
and there are no children of the marriage, society is not served or
benefited by the continuance of the fiction when the cause has ceased
(cf. Brotherhood o/ Locomotive Firemen. and Enginemen. v. Hogan,

et al. and authorities cited, 5 F. Stipp. 598).
The petitioner herein has testified that no issue resulted from her
marriage to the beneficiary's father and that she and the beneficiary's
father have each remarried twice since their divorce in December 1057.

The evidence of record shows the beneficiary's father was awarded
custody of him at the time of the aforementioned divorce and that the
beneficiary thereafter resided with his father until at least October
1962. The relationship which came into being between the petitioner
and the beneficiary by virtue of the petitioner's marriage to the beneficiary's father in 1952 was discontinued and brought to an end. when
the aforementioned marriage was legally terminated by divorce in
December 1957. Moreover, the beneficiary's father's two remarriages
created additional stepmothers of the beneficiary. The statute requires that the petitioner be the "parent" at the time of the filing of
the petition. In this case the petitioner cannot meet this statutory
requirement and on the basis of all the evidence present in this record
together with the authorities cited, it is our considered opinion that the
petitioner is not the "parent" of the beneficiary and as a consequence
thereof may not petition for issuance of an immigrant visa, on his
behalf. Clearly, it cannot be held that a, family unit is being reunited
in this case. Upon full consideration. of all the evidence of record,
the findings of fact, conclusion of law and the order entered by the
District Director of Immigration and Naturalization on June 17, 1963
are hereby approved. Hence, the following order will be entered.
ORDER: It is ordered that the order entered by the District Director of Immigration and Naturalization at Los Angeles, California on
June 17, 1963, denying the petitioner's petition to accord the beneficiary third preference status as provided in section 203 (a) (3) of the
Immigration and Nationality Act be and the same is hereby approved.

•

365