Interim Decision #2203

MATTER OF CHIM
Application for Permission to Reapply
A-15936580

Decided by Regional Commissioner May 25, 1973
(1) In view of applicant's repeated violations of the immigration laws, his
application for permission to reapply for admission is denied where the only
favorable factor is that he is the beneficiary of a sixth preference visa petition.
(2) It is contrary to Service policy to conditionally approve an application for
permission to reapply for admission to the United States except when the
Service grants advance permission to reapply to an alien who will be executing an outstanding deportation order pursuant to exclusion or deportation
proceedings.
ON BEHALF OF APPLICANT: Thomas Sung, Esquire
217 Park Row
New York, New York 10038

This matter is before the Regional Commissioner on appeal from
the denial by the District Director of consent to reapply for
admission after deportation.
The applicant is a 35-year-old native and citizen of China and
resident of Hong Kong who first arrived in the United States at
Baltimore, Maryland on September 25, 1964 as a crewman on a
vessel. Service records reflect that he was refused permission to
come ashore because the inspecting immigration officer was not
satisfied that he was a bona fide nonimmigrant crewman who
intended to depart with his vessel. The ship called again at the
port of Baltimore on October 10, 1964 and upon application for
shore leave the applicant was granted permission to land temporarily pursuant to section 101(aX15XD)(i) of the Immigration and
Nationality Act. fie immediately deserted his vessel, took a train
to New York City and secured employment as a dishwasher in a

restaurant on Long Island. He worked there until January 1965
when he began working at a restaurant in Brooklyn where he was
apprehended by Service officers on January 22, 1965. He was
finally deported to Hong Kong on November 20, 1965 after being
advised that he would be committing a felony if he reentered or
attempted to reenter the United States without first receiving
permission to reapply for admission after deportation.
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Interim Decision #2203
He thereafter in violation of law sought and gained admission to
the United States as a nonimmigrant crewman on three occasions
on April 28, 1968, June 15, 1968, and June 28, 1968. Each time he
failed to reveal to the inspecting immigration officers the fact of
his previous deportation from the United States. After admission
for shore leave at Boston, Massachusetts on June 28, 1968, he
again deserted his vessel and took up illegal employment in this
country. On Apri115, 1969, he was apprehended by Service officers
at his place of employment as a dishwasherlcook at a restaurant in
New Jersey. He was found hiding in a closet under a bag of soiled
linens. He was subsequently ordered deported and a warrant of
deportation was issued. Finally, at the request of counsel the
warrant of deportation was cancelled and he was permitted to
depart voluntarily from the United States at his own expense on
March 22, 1971.
In February 1972 a sixth preference visa petition filed by one of
the restaurants for whom the applicant had worked in the United
States was approved. His services are desired by the petitioner as
a cook. He is said to have three years' experience as a cook. It is
noted that all such experience claimed was gained while the
applicant was residing illegally in the United States. His service
aboard ships as a crewman was not as a cook or related occupation.
The District Director denied the application in the exercise of
the Attorney General's discretion finding no compelling reason for

the applicant's presence in the United States and noting his prior
abuse of the immigration laws.
Counsel has submitted a written brief in support of his appeal.
He sets forth three basic arguments as follows:
Point I—It is the announced policy of the Service to grant permission to
reapply for admission after deportation to aliens under similar circumstances.
Point II—The denial of voluntary departure should not be the basis for
denial of permission to reapply for admission after deportation.

Point III—The need for the services of the applicant is a basis for granting
the application.

In support of Point I, counsel cites three decisions involving
circumstances similar to the matter at hand wherein the applications were granted during the period from 1969 to 1971. He argues
that the Service has consistently followed a policy of granting such
applications when there is an approved sixth preference visa
petition.
We have reviewed five similar cases represented by this counsel
in which the Regional Commissioner anted on appeals from denials
between July 16, 1971 and January 17, 1973. All involved Chinese

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Interim Decision #2203
crewmen who had deserted their vessels in the United States and
had been deported. Each had a sixth preference visa petition
approved as a cook. Of the five decisions, the Regional Commissioner sustained three and dismissed two appeals. Of the three
sustained, each alien had deserted his ship here only once and two
of these three had surrendered voluntarily to the Service.
It is clear that the Service has no policy of automatically
granting such applications simply because a certain set of circumstances exists without consideration of other aspects of the matter
such as the alien's behavior and prior immigration record.
It is not clear to us what counsel has in mind in Point II of the
hrieE We are in complete agreement with this argument. He has
submitted a copy of a decision rendered by the board of Immigration Appeals in deportation proceedings in which the last paragraph reads as folloWs:
Counsel acts upon an improper assumption in stating that the District
Director's refusal to reinstate voluntary departure must necessarily result in
denial of an application by respondent for permission to reenter the United
States after deportation. It does not follow that everyone who is deported is
denied permission to reenter. Determination of such an application requires
cat-v.(14 consideration of all tke faotoro inivolved. (Emphasis added)

In discussing Point III, counsel claims this case falls squarely
within the guidelines set DLit in the Matter of H—R--- ; 5 I. & N.
Dec. 760, which held that permission to reapply would not be
granted unless at least one of the following elements was present:
(1) Unusual hardship would result to persons lawfully in the United States
if the application should be denied.
(2) There is need for the services of the applicant in the United States.
(3) The applicant is a bona fide crewman who has no means of earning his
livelihood other than by pursuing such calling, which necessitates his
coming to the United States.
(4) It is necessary for the applicant to enter the United States frequently
across the international land border to purchase the necessities of life or
in connection with the business in which he is engaged or for some other
urgent reason.

We find that none of these elements is present here. It is argued
that there is a need for the applicant's services here. This may be
true but the record contains no such evidence. The mere approval
of the sixth preference visa petition does not establish a need. It
merely establishes that he has a job offer and that the Labor
Department has determined that there is a shortage of Chinese
cooks here. Even assuming, arguendo, that a genuine need does
exist, this one factor would not be persuasive to override the
unfavorable exercise of discretion in view of the applicant's prior
abuse and total disregard for the immigration laws of this country.
This applicant has twice deserted his vessel in this country. He

359

Interim Decision #2203
has reentered this country at least three times after deportation
without first securing the Attorney General's consent. These acts
are crimes. (8 U.S.C. 1282(c); 8 U.S.C. 1326).
In a case in which a plaintiff challenged the unfavorable exercise of discretion by the Service, the United States Court of
Appeals at Chicago stated on March 28, 1973:
The administrative record clearly shows that appellant is not entitled to a
favorable exercise of discretion by the Attorney General. Appellant has repeat-

edly and willfully violated the Iinmigration and Nationality Act. (Efrain ReyesCerna v. INS, U.S.C.A. (7th Cir.) March 28, 1973) (Emphasis supplied).

We note that the applicant has requested that in the event his
application is not granted for the purpose of obtaining permanent
residence here that it be granted for the purpose of his entering as
a nonimmigrant crewman.' That request will not be granted.
First, except when the Service grants advance permission to
reapply to an alien who will be executing an outstanding deportation order pursuant to exclusion or expulsion proceedings, in
which ease the approval of the application for such permission will
contain the condition that the approval will become effective upon
the applicant's deportation from the United States, it is contrary
to Service policy to approve conditionally an application for permission to reapply. Second, it is clear from the applicant's previous
actions that he is not a bona fide crewman as contemplated by
section 101(a)(15)(D) - of the Immigration and Nationality Act.
After very careful consideration of all the evidence at hand,
including representations made on appeal, we find that the decision of the District Director was proper and did not constitute an
abuse of administrative discretion. Accordingly, the appeal will be
dismissed.
It is ordered that the appeal be and is hereby dismissed.

In accordance with 8 CFR 212.2(a) and 8 CFR 212.4, a nonimmigrant may
apply through a United States consular officer, in conjunction with an application for issuance of a nonimmigrant visa, for permission to be admitted temporarily to the United States pursuant to section 212(dX3)(A) of the Immigration
and Nationality Act, despite inadmissibility under section 212(a)(17) of that Act
or any ground of inadmissibility uthel than those specified in section 212(a)(27)
or 212(a)(29) of that Act.

360


Interim Decision #1982

MATTER

or KwkN

In Visa Petition Proceedings
A-17962954-6
Decided by Board May 9, 1969
Where petitioner, a native of China, was married according to Chinese law
and custom in China in 1921, in 1935 and in 1939 to three different persons; maintained and supported each woman in a separate household; was
domiciled in Hong Kong at the time of the birth there of beneficiaries to
his third wife in 1956 and 1957, the legitimacy of the children is determined by the applicable law of Hong Kong, namely, Chinese law and custom, which recognizes concubinage and under which the children of a secondary wife are treated as lawful children.. Hence, beneficiaries are the
legitimate children of petitioner and are entitled to preference classificaz
tion under section 203(a) (2) of the Immigration and Nationality Act, as
amended.
ON BEHALF OF PETITIONER:

Z. B. Jackson, Esquire

580 Washington Street
San 'Francisco, California 94111

The matter comes up on certification from the District Director, who, on August 16, 1968, approved the visa petitions filed
pursuant to section 209(2) (2) of the Immigration and Nationality Act. Petitioner, a 64-year-old male, married, native and citizen
of China and permanent resident of the United States, seeks second preference classification for his 'two minor daughters. The
beneficiaries were born on March 9, 1956, and April 4, 1957, in
Hong Kong and currently reside there. The record reflects that
petitioner married one Fong Fung Bo on August 10, 1921 in
China. He also married Tam Yee Chong on June 6, 1935 and
Cheng Wai Ying on January 6, 1939, in China. His first wife died
in Hong Kong on January 13, 1965. The second wife immigrated
to the United States and currently resides here. The third wife,
mother of the beneficiaries, is presently living in Hong Kong. In
a sworn statement, petitioner stated that he married each of the
three women according to Chinese law and custom. Petitioner

302

Interim Decision 4t1982
further stated that he maintained each woman in a separate
household and supported all three households.
The District Director concluded that the beneficiaries were petitioner's legitimate children. Relying upon a memorandum supplied by the Library of Congress, the District Director based his
conclusion on Article 1066 of the Chinese Civil Code of 1931
which provides:
A child born out of wedlock who has been acknowledged by the natural father is deemed to be legitimate; where he has been maintained by the natural father, acknowledgement is deemed to have been established.

The Service questions the use of Article 1066 of the Chinese
as the lea loci celebrationis. It argues that the
Civil Code of 1931 abolished concubinage and that, therefore, the
beneficiaries' mother cannot be considered petitioner's concubine
under the 1931 Code. The Service states that the Chinese law applicable in Hong Kong is the Chinese customary law existing in
1843 (Ta-Tsing—lii li) and that Hong Kong does not recognize the
1930 or 1950 modifications in Chinese law. It is argued that
under the Ta Taing lii li, the taking of a concubine involved a
formal ceremony with the introduction of the concubine into her
husband's household. The Service contends that by maintaining
three separate households, the petitioner entered into three bigamous marriages, rather than concubinages. The Service then
urges us to apply English law of Hong Kong which would render
children of bigamous marriages illegitimate.)
The issue presented is whether or not the 1931 Chinese Civil
Code, the law of the place of celebration of the marriage between
petitioner and beneficiaries' mother, or the Chinese.law of Hong
Kong, the place of petitioner's domicile at the time of the beneficiaries' birth in Hong Kong, should apply in determining the status of the beneficiaries.
An examination of the Chinese Civil Code of 1931 and Chinese
law applicable in Hong Kong reveals that under either law the
beneficiaries would be the legitimate daughters of the petitioner.
As correctly noted by the Service, the Chinese Civil Code of
1931 abolishes concubinage. Assuming that petitioner intended to
Civil Code of TM

-

—

!The Service also argues that petitioner's personal law for purposes of acknowledgement is Portuguese law, by virtue of his birth in the Portuguese
Colony of Macao. We disagree. The marital relationships were created in
China. Petitioner left China in 1949 and resided in Hong Kong from 1949 to
1966. The petitioner was domiciled in Hong Kong at the time of the beneficiaries' birth there. Therefore, the law of Macao is not relevant to the disposition of the issues presented.

303

Interim Decision #1982

take the beneficiaries' mother as a concubine in violation of the
Civil Code, nevertheless under Article 1066 of the Civil Code,
children born of such unions are considered legitimate, where
there has been acknowledgement by the natural father." The District Director in applying Article 1066, which refers to "children
born out of wedlock," avoided deciding whether petitioner had legally married the children's mother since all that is necessary is
that the natural father acknowledge the beneficiaries as his
children.' The facts clearly show that petitioner's support of the
children and their mother was sufficient under the Chinese Civil
Code to constitute acknowledgement, and therefore legitimation.
On the other hand, the law of Hong Kong, recognizing the old
Chinese law of 1848, acknowledges the institution of
concubinage. 4 Under the Chinese Code of 1843 (Ch'ing Code), no
formality is required for the taking of a concubine.' While custom
may dictate certain formalities for the establishment of such relationships, opinions vary greatly as to what are the ceremonial requirements for the taking of a concubine.' The criteria for deter2 A noted authority commenting on legitimation under the Chinese Civil
Code states:
.. this chapter has evidently been influenced by the Soviet Code of the
Family which does not distinguish between legitimate and illegitimate children. As a consequence of the system adopted by the Code, it has become
very easy to legitimate children without being married, . . . (Van der Valk,
An Outline of Modern Chinese Law, 133, Peking (1939) ).
3 Article 1065 of the Chinese Civil Code further . provides:
In the case the illegitimate child has been supported and brought up by
the father, it is considered acknowledged.
Professor Van der Valk comments on this section: "This is of great importance to the children of the concubine, since she mostly lives in the same
family as the father, as a rule her childr
en will be supported and brought
up by the natural father and thereby acknowledged" (id at p. 130).
4 The Privy Council in the Matter of Re Khoos Them Tek Settlements,
L.R.A.C. 346 (1930), ruled that the English law should not be applied where
it would result in injustice or oppression. As a result, the courts of the Colony recognize polygamous marriages among the Chinese and the legitimacy
of the offspring (whether male or female) of such marriages (Report of the
Governor's Committee on Chinese Law and Custom in Hong Kong, P. 84
(Hong Kong 1948) ).
The Governor's Committee on Chinese Law and Custom in Hong Kong
stater that the taking of a concubine was purely a matter of bargain and
sale until 1910 when an imperial edict abolished purchase (supra, p. 22).
The Privy Council affirmed the decision of the Supreme Court of the Straits
Settlement that no ceremony is required, Cheang Thye Phin v. Tan Ah Lay,
L.R.A.C. 369 (1920).
The testimony of experts before the Governor's Committee on Chinese
Law and Custom in Hong Kong produced great variations. The experts,

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Interim Decision #1982
mining whether cohmbinage.has been established are intention of
the parties and the permanency of the union.' Where, as here,
there has been the creation of a household and the support of the
concubine and her children, and the maintenance of such a relationship over a period of time, we believe the courts of Hong
Kong would find that concubinage exists. We, therefore, cannot
agree with the Service view that the establishment of concubinage should depend solely on ceremonial formalities.
The status of a concubine and her children under Hong Kong
law has been thus described:
According to judicial decisions, including Privy Council decisions a tsip
(concubine) is in law considered a wife, a secondary or inferior wife it is
true . . . but nevertheless a wife and not a kept mistress and the children of
the principal wife and of the secondary wife are treated alike as to the lawful children.4
It is clear that under the Chinese Civil Code or under Hong Kong

law the beneficiaries are the legitimate children of the petitioner.
We therefore find that Chinese law applicable in Hong Kong
governs in this case. As we previously noted, the petitioner was
domiciled in Hong Kong at the time of the beneficiaries' birth in
Hong Kong. Chinese law and custom (as existing in 1843) apply
only to Chinese domiciled in Hong Kong.', In the instant case, the
law to be followed is the law of the petitioner's domicile at the time
when the question arose, namely the birth of the beneficiaries.]'
We, therefore, believe that under Chinese law applicable in Hong
Kong, the beneficiaries are entitled to preference classification
under section 203 (a) (2) of the Immigration and Nationality Act.

ORDER: It is ordered that the decision of the District Director
be and the same is hereby armed.
however, agreed that the consent of the principal wife (teal) is not necessary to the taking of a concubine (Report of the Committee, supra, at pp.
151-158).
Comments on the Report of 'the Committee on Chinese Law and Custom
in Hong Kong, p. 9 (Hong Kong 1953). Dr. Ping Leung Lam, an authority
on Chinese law, testifying before the Governor's Committee on Chinese Law
and Custom (supra, p. 152), stated: "I have a decision of the 8th Year of
the Chinese Republic by the Courts of China. This was a declaratory decision: 'To marry a concubine there must be the intention of permanent
cohabitation and an intention to have her as a member of the husband's
family and there must be relationship of the couple analogous to that of the

husband's wife. In law there is no provision prescribing any kind of formality'."
9 Man Kam Lo, C.B.E., Comments on the Report of the Committee • on
Chinese Law and Custom in Hong Kong, p. 9 (Hong Kong 1953).
9 Id., at page 3.
29 Id., at page 3.

305


Interim Decision #2789

MATTER OF PRZYGOCKI
In Deportation Proceedings
A-8241801
Decided by Board March 21, 1980
(1) In view of the absence of statutory and regulatory sanctions for "conditional"
waivers of inadmissibility under section 212(c) of the Act, 8 U.S.C. 1182(c), no authority is found for granting such relief subject to conditions subsequent.
(2) Section 212(c) relief should be unconditionally granted as to specified grounds of
inadmissibility where an alien establishes that relief is warranted.
(3) Immigration judge's grant of section 212(c) vacated and the record remanded for

further proceedings where the respondent had been granted section 212(e) relief
conditioned upon not violating "the criminal laws of any state or the United States for
a period of five years ...."
ON BEHALF OF RESPONDENT: Darwin A. Hindman, Jr., Esquire
300 Guitar Building
Columbia, Missouri 65201
Bx Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members

The Service appeals from the February 15, 1978, decision of the
immigration judge conditionally granting the respondent's application
for relief under section 212(c) of the Immigration and Nationality Act,
8 U.S.C. 1182(c). The record will be remanded for further proceedings
and the entry of a new order.
The respondent is a 29-year-old native of Germany and citizen of
Poland who last entered the United States as a lawful permanent
resident in 1952. In May 1975, he was convicted in a Missouri state

court for unlawfully selling a quantity of marijuana and was sentenced
to confinement for a period of five years. He was thereafter charged
with being deportable under section 241(a)(11) of the Act, 8 U.S.C.
1251(a)(11).
Deportation proceedings were held in November 1976 and April 1977
while the respondent was still in confinement. The respondent denied
deportability, but was, properly found deportable as charged. The
remainder of the proceedings below concerned the respondent's application for relief under section 212(c) of the Act. See Matter of Silva, 16
361

Interim Decision #2789
I&N Dec. 26 (BIA 1976).
The record indicates that the respondent entered this country while
under two years of age and that he has lived here ever since. Evidence
submitted in support of the application for relief indicates that: The
respondent's father is deceased. The respondent cared for his mother,
who has suffered from mental illness, until she was committed to a
mental institution in 1974. He assists in supporting his mother when
he is able and provides her "affection and moral support." He has a
United States citizen sister and two citizen children.' He has no relatives, friends or acquaintances outside of the United States and is "not
really" familiar with any language other than English. He has suffered
from drug dependency in the past, which he indicates is the cause of his
criminal record (including a 1969 burglary conviction). While in confinement the respondent earned a high school equivalency degree and
college credits by taking part in a part-time college program. His
confinement record has been "quite good" according to a 1976 report
prepared by his caseworker at the state institution. The caseworker
believed that the respondent would be a "productive, responsible person upon his release from incarceration."
After considering the equities and adverse matters in the respondent's ease, the immigration judge determined that favorable discretionary relief was warranted. He found that the record indicated that a
"reformation [had] taken place." The immigration judge then sought
to conditionally grant the application for section 212(c) relief subject
to the respondent not violating "the criminal laws of any state or of the
United States for a period of five years .. . ." By further order, the
immigration judge provided that if the respondent was convicted of an
offense within five years, the application for relief was automatically

revoked and the respondent would be deported.
The Service appeals from the immigration judge's exercise of discretion, submitting that favorable action was inappropriate in view of the
respondent's "extensive and serious criminal record which extends
from the age of 17 until his present confinement and the lack of any
real showing that he has truly reformed."
We will first address the issue of the immigration judge's authority
under law and regulation to grant section 212(c) relief subject to
specified conditions subsequent. The predecessor provision to section
212(c) of the 1952 Act was the seventh proviso to section 3 of the 1917
Immigration Act. That proviso read:
That aliens returning after a temporary absence to an unrelinquished United States
domicile of seven consecutive years may be admitted in the discretion of the Attorney
General, and under such conditions as he may prescribe.
' The respondent is divorced from his wife and their children are in her custody.

362

Interim Decision #2789
In view of the express statutory language authorizing the Attorney
General to prescribe conditions to grants of relief, the Board held that
restrictions could validly be placed on a grant of seventh proviso relief.
See Matter of V—I—, 3 I&N Dec. 571, 573 (BIA 1949); Matter of L—, 2
I&N Dec. 486 (BIA 1946; A.G. 1946). Such conditions ordinarily
pertained to the applicant remaining a person of good moral character
and not subsequently committing "any offenses." The orders specified
that revocation could only occur "after hearing." See, for example,
4 I&N Dee. 180 (C.O. 1950; BIA 1951; A.G. 1951); Matter
Matter of
of G—Y—G—, 4 I&N Dec. 211 (BIA 1950; A.G. 1951).
The seventh proviso was superseded by section 212(c) of the 1952

Act. This section provides:
Aliens lawfully admitted for permanent residence who temporarily proceeded
abroad voluntarily and not under an order of deportation, and who are returning to a
lawful unrelinquished domicile of seven consecutive years, may be admitted in the
discretion of the Attorney General without regard to the provisions of paragraph (1)
through (25) and paragraphs (30) and (31) of subsection (a). Nothing contained in this
subsection shall limit the authority of the Attorney General to exercise the discretion
vested in him under section 211(b).

The language in section 212(c), thus, contains no express provision for
conditional grants of relief as had been the case with the seventh
proviso. Nonetheless, in cases involving waivers of crimes, the Board

continued using the same "conditional" orders when relief was granted
under section 212(c) as had been used when relief was granted under
the seventh proviso. See Matter of G—A—, 7 I&N Dec. 274 (BIA 1956);
Matter of S—, 6 I&N Dec. 392 (BIA 1954; A.G. 1955); Matter of F—, 6
I&N Dec. 537 (BIA 1955); Matter of M—, 5 I&N Dec. 598 (BIA 1954).
Compare Matter of A—, 7 I&N Dec. 327 (B.C. 1956) (involving inadmissibility based on a prior attack of insanity). The last published Board
decision involving a conditional grant of relief was in 1963. See Matter
of Edwards, 10 I&N Dec. 506 (BIA 1963, 1964).
The question of whether conditional grants of relief were authorized

under the provisions of section 212(c) was never specifically addressed
by the Board. Apparently, no recipient of such a grant felt any need to
challenge its conditional nature and the Board is unaware of ever
reviewing an attempted section 212(e) "revocation" action? The practice of using conditional grants, of section 212(c) relief may have simply
resulted from a continued utilization of seventh proviso "format"
orders without any consideration of the fact that the specific language
authorizing "conditional" waivers contained in the seventh proviso did
not make its way into section 212(c) of the 1952 Aet.
In any case, in view of the absence of statutory and regulatory
2 No statutory or regulatory mechanism for such "revocation" proceedings exist. Nor
can "rescission" of section 212(c) relief be accomplished under section 246 of the Act.

363

Interim Decision #2789
sanctions for "conditional" section 212(0 waivers of inadmissibility',
we cannot find authority for the continued use of such grants of relief.
See, generally, Fulgencio v. INS, 573 F.2d 596 (9 Cir. 1978) (involving
"conditional" grants of adjustment of status under section 245 of the
Act). Such relief should instead be unconditionally granted as to
specified grounds of inadmissibility to those cases where an alien
establishes that relief is warranted; thus, returning the alien to the
same lawful permanent resident status previously held' Accordingly,

in this case, the immigration judge's conditional orders of February 15,
1978, will be vacated.
Moreover, as two years have elapsed since the last consideration of

this application for relief, as the respondent was incarerated at the
time of the application and as the nature of the immigration judge's
conditional order suggests reservations concerning his finding of a
"reformation," the proceedings will be remanded for further evidence
regarding the respondent's post-conviction behavior and his
rehabilitation. A new decision regarding his application for section
212(o) relief should then be entered.

ORDER The February 15, 1978, orders of the immigration judge
are vacated.
FURTHER ORDERe The record is remanded to the immigration
judge for further proceedings in accordance with the above decision
and for the entry of a new decision.

' Compare section 212(g) of the Act which had its origins in section 5 of the Immigration Act of September 11, 1957, and which includes express language authorizing
admission of certain aliens "in accordance with such terms, conditions, and controls, if
any... as the Attorney General ...may by regulations prescribe." See also section 212(h)
of the Act.
' The immigration judge's order here left the respondent in a questionable and
tenuous status. On its face, the orders would result in the respondent being immediately
deportable, without further hearing, if any criminal conviction occurred within five
years, no matter how technical or minor the offense or how mitigating the surrounding
circumstances.

364


MATTER OF C

Y

L

In DEPORTATION Proceedings
A-89,14627
Decided by Board June 10, 1959

Guam—Temporary admissions prior to 1952—Presumption of lawful residence
under 8 CFR 9.2(j) [now 8 CFR 101.1(i)].
Contract laborers—Restaurant manager, supervisory cook and baker not within
definition.
Group of 12 aliens temporarily admitted to Guam prior to 1952 under contract
to food concessionaire to United States Armed Forces, who were intended
for employment in supervisory capacity as restaurant manager, cook, or
baker, whn were occupationally qualified, and who were actually so employed, were not classifiable as contract laborers under the Immigration Act
of 1917. Hence, they are entitled to the presumption of lawful permanent
residence accorded by 8 CFR 4.2(j) [now 101.1(1)].
CHARGE:
Warrant : Act of 1952—Section 241(a) (9) [8 U.S.C. 1251(a) (9)]—Failed to
maintain status—Contract laborer.

BEFORE THE BOARD

Discussion: Respondent is a 38-year-old married male alien, a
native and citizen of China. His last and only entry into the
United States was at the Naval Air Station, Agana, Guam, on
March 6, 1951. On December 9, 1955, the special inquiry officer
ordered respondent deported on the ground that he was a contract
laborer who failed to maintain the status in which he was admitted,
in that he remained in the United States after the date on which
his authorized stay terminated. On appeal, we found that respondent was not a contract laborer and is entitled to the presumption of
permanent residence contained in 8 CFR 4.2(j) 1 [now- 5 CFR
1

8 CFR § 4.2

Presumption of lawful admission.

An alien of any of the

following - described classes shall be presumed to barn been lawfrilly admitted

for permanent residence within the meaning of the Immigration and Nationality Act (even though no record of his admission can be found, except as
otherwise provided in this part) unless the alien abandoned his status as a
tawfnl permanent resident. or lost such status by operation of law, at some
time subsequent to such admission: * * * (j) Aliens admitted to Guam.
(1)
An alien who establishes that he was admitted to Guam prior to December 24,
1952, by records, such as Service records subsequent to June 15, 1952, records
of the Guamanian Immigration Service, records of the Navy or Air Force, or
records of contractors of those agencies, other than as a contract laborer, was
not otherwise excludable under the Act of February 5, 1917, as amended, and
the,
who continued to re s ide in Guam until Deeember. 21, 1952, regardle:.s
period of time for which admitted,
371

101.1(i)]. On motion of the Commissioner of the Immigration ana
Naturalization Service that the record be reopened for the introduc
tion of additional evidence, we withdrew our order of August 31,
1956, and remanded the record for further proceedings.
On September 3, 1958, the special inquiry officer found that
respondent was brought to Guam for the purpose of boil* employed
as a manager, that this is a position of a "mental nature" and that
he was not, therefore, a contract laborer at the time of his arrival
excludable under section 3 of the Immigration Act of 1917. The
special inquiry officer found that respondent is entitled to the
presumption contained in 8 CFR 4.2(j) and terminated the proceedings against him. The case was certified to the Board. When
these case,= were previously before us we chose C
as the leading case, and the principal decision related to him. Much
of the general testimony and many of the exhibits were entered
by the special inquiry officer in the record under his name and case
number. Therefore, we will continue it as the leading case, even
though proceeding as to him have been terminated.
C
C
, a partnership, and its successor
L
and M
corporation, Far East Trading Company, Inc., were concessionaires
operating restaurants, cafes, snack bars, two (or three) bakeries,
ice cream plants, a milk-bottling operation and maintenance facilities on Army and Air Force installations throughout Guam from
December 1947 until some time in 1953. The record shows that
Mr. C L C had engaged in similar activities in the
Philippine Islands, beginning with his operation of the officers clubs
in Manila in 1919. In 1947, Mr. M was Food Service Director,
United States Army, in the Philippines. During 195:1 they operated
20 such outlets on. Guam and employed probably 300 persons. This
case comes before the Board with a group of similar cases concerning Chinese aliens who were imported into Guam for the purpose of employment by C— and M— , and who are still employed by Far East.
Mr. C
and Mr. M — have both testified that they attempted
at first to operate their concessions on Guam with Filipino and
local labor. After a few months they discovered they were on the
verge of losing their substantial investment and informed the military authorities on Guam that they would he unable to continue
unless they were permitted to import from the Philippines skilled
and supervisory personnel who had b een employed by them in the
past. They were given permission to bring 30 Chinese employees
to tlic island, and military security later increased the allow -able
number to 60. All personnel held permanent residence permission
in the Republic of the Philippines and were screened by Unite
States military authorities before proceeding to Guam. The record
372

show that all respondents had been employed by Mr. C
prior to
coming to Guam, except, perhaps, where the respondent. claims the
record does not accurately describe his experience and employment
history. The employers testify, and we see no reason to question
the reasonableness of their assertions, that. they attempi d to bring
in persons who were experienced bakers, cooks, cashiers, and managers, who would give the operations on Guam the kind of supervision needed, who could purchase and distribute supplies, handle
cash receipts, and instruct and supervise, the. rest of the staff. The
employing corporation lost its concessions with the armed services
in 1953, operations being taken over at that time by the Post Exchange. Respondents are now employed on Guam at restaurants
owned and operated by the former employers.
All of the. aliens included in this group are designated by Far
East as managers, chief cooks, and chief bakers, and have been
paid monthly salaries plus expenses and yearly bonuses from the
time they first came to Guam. The special inquiry officer found
that four of the twelve respondents were riot contract laborers at the
time of entry, and terminated proceedings as to them. Proceedings
, A-8944627 (instant case),
were terminated as to C
L
, A-8944604. found to
who Was found to be a manager; L
, .A.8944606, found to be a chief cook;
be a manager; Y
, A-8944635, found to be a chief baker. We agree
T
and T
■ Nith the special inquiry officer that respondent was not a contract
laborer at the time of his arrival and was not, therefore, excludable
on that ground under section 3 of the Immigration Act. of 1917. It
is necessary to determine why the special inquiry officer distinguished
between this respondent and the others as to whom proceedings
were not. terminated.
It is contended by the Immigration and Naturalization Service
that the Immigration Act of 1917, as amended, was applicable to
Guam and constituted the immigration law of Guam, at the time of
respondent's arrival there, even though the statute was not enforced
in that area, and that the aliens, including respondent, necessarily
were brought into Guam under that. law. Section 3 of the Immigration Act of 1917 forbids the importation of contract labor for
permanent residence. 2 However, the 9th proviso to section permits the importation of contract labor for temporary periods. un-

"Oection 0, Immigration Act of 1917, as amended, provider: "That the f,d-

lowing classes of aliens shall be excluded from admission into -United :States:
* * persons hereinafter called contract laborers, who have been induced,
assisted, encouraged, or solicited to migrate to this country by offers or promises of employment, whether such offers or promises are true or false, or in
consequence of agreement, oral, written or printed, express or implied, to perform labor in this country of any kind, skilled or unskine,i *

373

der prescribed rules and conditions. 3 The special inquiry officer
found that because importation of the respondents as contract
laborers for permanent residence was forbidden, necessarily they
were admitted temporarily under the 9th proviso.
Respondent contends that since the record does not show for what
period of time he was admitted nor in what status, necessarily he
was admitted for permanent residence. Counsel argues, first, that
the Immigration Act of 1917, as amended, had no application to
Guam; that it was never enforced in Guam; that the Organic Act
of Guam, effective on August 1, 1950, indicated that the 1917 act
was not intended to apply to Guam; and that respondent was,
therefore, admitted at the time of his first entry for permanent
residence by those responsihle for enforcement of law on Guam.
The special inquiry officer refers to the Penal Code of Guam
which became effective on February 1, 1934 and remained effective
until July 14, 1953. He states that it enumerated in section 175
thereof the classes of aliens who would be excludable from admission into the Island of Guam (exh. SF-1 attached to deposition exh.
R-8). The classes enumerated are similar to those set forth in
section 3 of the Immigration Act of 1917. In addition, subparagraph (k) of section 175 included in the excludable classes,
"All persons who are prohibited by United States law from entering any United States possession." The special inquiry officer concludes from section 175 of the Penal Code that "it is clear that the
applicability of the immigration Act of 1917 to Guam was recognized in the enactment of the Penal Code." The applicability of the
1917 act to Guam was not clearly recognized by the Deputy Chief
of Naval Operations in 1948, nor the Immigration Service. See
discussion of background material in our decision Matter of S—,
3 I. & N. Dec. 589, at 599 and 600 (April 26, 1940). It seems clear
that the exclusion provisions of the Immigration Act of 1917 were
used as a model in the enactment of the Penal Code of Guam, followed for the sake of convenience and consistency.
Section 25(b) of the Organic Act of Guam provided for the
appointment by the President. of the United States of a commission
of 7 persons to ascertain which Federal statutes not applicable to
Guam should be made applicable and which statutes applicable to
Guam should be declared inapplicable. Organic Act of Guam, 64
Shat. *84, section 25(h). A Commission on the Application of
the Federal Laws to Guam was appointed by the President pur- 3 Section 3, Immigration Act of 1917, as amended, provides: "* * Provided
further, [Cl That the CommisNiener of Immigration and Naturalization with
the approval of the Attorney General shall issue rules and prescribe. oonchtiOnS, including exaction of s uch bonds as may he necessary, to control and
regulate the admission and return of otherwise inadmissible aliens applying
ffir temporary atinik.,:ion
•

374

suant to this statute. The findings of this Commission were not
part of the record when this case last came before us, but we rejected counsel's contention at that time that until such a report was
made and acted upon the Immigration Act of 1917 was ineffective in
Guam. The report of the Commission made in 1951 is now part of
the record (exh. R-22A, exh. R-22B, p. 62). The Commission found
that the Immigration Act of 1017 was applicable to Guam and that

there was no need for any change in its applicability. It seems to
us that for the purposes of the present appeals this determination
settles the issue. The 1917 act did apply to Guam, even though
there was no one there to enforce it, and even though a completely
different body of regulations and orders were being enforced. In
Ex parts Rogers, 104 F. Supp. 393 (D.C. Guam, May 9, 1952),
the court held that the Immigration Act of 1917, as amended, is
applicable to Guam; that Guam is included by the definition in
section 1 of that statute; and that the Government of Guam had the
residual authority to enforce the immigration laws of the United
States in default of performance by the United States Immigration
and Naturalization Service.
The special inquiry officer and counsel discuss a number of statutes,
regulations and instructions relating to the control of immigration
into Guam which were effective during the period from 1948 through
1952. In addition to the Immigration Act of 1917 and the Organic
Act of Guam of August 1, 1950, as amended, and the Penal Code
of Guam there were Executive Order No. 8683 establishing naval
defensive sea areas around and naval air space reservations over
the islands of Rose, Tutuila and Guam, signed on February 14,
1941 (exhs. W-1 and W-2 attached to exh. R-7) ; Civil Regulations
with the force and effect of law in Guam, promulgated by the
Acting Secretary of the Navy on August 4, 1947 (exh. W - 5 at-

to exh. R-7) ; Agreement Between the United States and the
Republic of the Philippines for the Recruitment of Filipino Laborers
and Employees by the United States Army, effective by exchange of
notes, signed at Manila, May 13 and May 16, 1947 (exh. W-3 attached to exh. R-7) ; CINCPACFLT Instruction 5521.1A, issued
by the Commander-in-Chief, United States Pacific Fleet on November 10, 1952, relating to clearance for travel in the Pacific
and adjacent areas (exh. W-7 attached to exh. R-6) ; and others.
There is extensive testimony on the manner in which the statutes,
regulations and instructions were applied and enforced on Guam
and the procedures followed with respect to the immigration into
Guam during the period from 1948 to 1952. The record coninns
the testimony of Carlton Skinner, Naval Governor of Guam ruin
September 1949 to August 1, 1950, and Civil Governor of Guam
from September 1950 to March 1953 (exh. R-8), Admiral Arthur
tached

375

Radford, Commander-in-Chief, Pacific Fleet, from May 1, 1949, to
July 10, 1953 (exh. R-6), Captain William Mott, Chief International Law Officer in the Office of Judge Advocate General of the
Na vy from 1946 to 1948 and Legal Officer and Island Government
Officer on the staff of the Commander-in-Chief, Pacific, and High
Commissioner of the Trust Territory of the Pacific Islands from
July 1948 to November 1950 (exit. R-7), and others. Apparently
all this testimony is designed to demonstrate that no -one, including respondent, was admitted to Guam for permanent residence.
We concluded in our previous decision (August 31, 1956, withdrawn) that it was possible that respondents were admitted to the
United States as skilled labor under the 4th proviso to section 3
of the 1917 Act:4 We stated that, while it was true that there was
no hearing and determination by the Attorney General prior to the
importation as provided by the 4th proviso, the Immigration
Service was not operating in that area and such a hearing would
not have been possible. On the subject of available labor, the
Department of Labor and personnel of the Government of Guam
wrote, in part, to the United States Department of Justice, Immigration and Naturalization Service, on December 16, 1953:
This is to advise that we have reviewed the petition of C
L
C
and M—, Guam, M.I., dated December 16, 1953, regarding the renewal of
petition of alien contract laborers.

According to the records of this office there are no qualified workers available locally.

We found that respondents were admitted to Guam by those who
were at that time exercising the "residual authority" to enforce the

immigration laws, in the absence of the Immigration and Naturalization Service; that they were skilled laborers; and that it might
be presumed that they were admitted for permanent residence under the 4th proviso to section 3 of the 1917 act, if that act was
effective on Guam at the time of their admission.
The record now contains a large amount of evidence establishing
that no aliens or citizens were permitted to enter Guam for the
purpose of establishing permanent residence without having its
first obtained the written permission of the Governor of Guam,
and that it was the policy of the Navy, as well as of the Civil
Government of Guam, to deny admission to Guam for permanent
4 Immigration Act of 1917, section 3, 4th proviso, provides:
"Provided further, [4] That skilled labor, if otherwise admissible, may be imported if labor

of like kind unemployed can not be found In this country, and the question
of the necessity of importing such skilled labor in any particular luz•tance
may be determined by the Attorney General upon the application of any person interested, such application to be made before such importation, and such
determination by the Attorney General to be reached after a full hearing and
an investigation into the factrs of the ease."

376

residence. CINCPACFLT Instruction 5521.1A, November 10, 1052,
provides:
Entrance of non-United States citizens to permanently reside on Guam or the
Trust Territory is contrary to existing policy. Entrance of foreign nationals
to Guam or the Trust Territory on a temporary ur interim basis will be
restricted to very compelling reasons, and then, only under carefully controlled
conditions.

On the basis of this instruction and on the basis of Executive
Order 8683, rules and regulations regulating the entry of nonUnited States nationals into the Island of Guam required that all
entries be by specific permission of the Commander-in-Chief and
were temporary. Aside from security reasons, Admiral Radford
testified that the reason for the restriction on the period of stay
-

was that after the termination of the military construction program

on Guam, it was not desired that the population of Guam be
expanded permanently. Other witnesses also testified that security
reasons, plus consideration for the civilian native population, required that the large number of aliens brought into Guam in connection with the military construction program be returned to the
point of recruitment. The former Naval and Civil Governor of
Guam, Carlton Skinner, -testified that, to his knowledge, no aliens
were permitted to reside permanently on Guam except for a number of refugee doctors from Europe who were admitted to Guam
about 1950 under the 4th proviso to section 3 of the Immigration

Act of 1917. In a letter dated March 8, 1950, the Commissioner of
Immigration on Guam, E. R. Jones, stated that the laws of Guam
did not provide for the granting of permanent residence on Guam
(exh. R-16).
Documents now in the record which indicate that respondent's
admission into Guam was only temporary, and that this was the
understanding of everyone concerned, include: (1) Requests for
Clearance to Enter Guam (civilian employee) addressed to "Commanding General, Marianas Bonins Command" signed by the Personnel Director of the Marbo Central Exchange all provide that
"Proposed duration of stay on Guam" shall be one year; (2) Employment Agreements between respondents and the employing concessionaire all provide, "Length of Agreement: Your appointment
is for a period of one (1) year from date of this agreement, unless
terminated sooner by the Concessionaire"; (3) Marbo Central Exchange Officer at Guam on May 12, 1952, requested the Commissioner of Immigration for the Philippines to extend the reentry permits for some of respondents for another year, because they desired
to renew their employment agreements on Guam (Sec PC
, A—S944633, record, exh. R-1) ; (4) Memorandum, .Tune 27,
C
1951, from the Marbo Central Exchange Officer concerning "Emoi l
'g971 2—R1

9,1

ployment of Aliens by Civilian Concerns after Termination of
Employment with Marbo Central Exchange" (exli. R-13F) states
that Command policy prohibits the release of Filipino or Chinese
nationals to civilian concerns after termination or breach of contract and that all such personnel must be returned to point of
origin upon separation from the Command. This memorandum
states further that in accordance with policy established by COMNAVMAR, Chinese nationals who take leave to China and for the
Philippines will not he permitted to return to Guam; (5) A letter
of September 8, 1947, from Brigadier General Farthing to the
Hon. C. A. Pownall, Governor of Guam, requesting reconsideration
for the entry of certain Chinese nationals (description clearly relates to a group such as respondents) for a period not to exceed
one year, and concludes with a clause which appears several places
in the record: "With this control there could be no problem of colonization" (exh. R 13E) ; (6) A memorandum of August: 9, 1949,
from the Acting Attorney General of Guam to the Civil Administrator concerning a request for permanent residence status states
that the Naval Government of Guam discontinued such grants
"over one year ago and the renewed use of this grant now is not
considered timely" (exh. R-11). These and other documents, and
the testimony of the witnesses referred to above, discussed in more
detail by the special inquiry officer, establish that respondents were
not. admitted for permanent residence upon arrival on Guam under
any provision of law.
In the meantime large numbers of construction workers were imported into Guam by the Armed Services and by private companies
operating under contracts with the United States Government. The
Immigration Service has stated that there are, or were when the
present proceedings began, 12,000 alien workers on Guam. Counsel
attempted to demonstrate that there have been exceptions to the
procedures provided; that there were some persons admitted for
permanent residence on Guam; and that groups were brought into
Guam without the permission or knowledge of the Immigration
Department of the Government of Guam. Juan L. Gumataotao, the
-

Customs arid Immigrant Inspector under the Naval Government of

Guam from April 16, 1947, to August 1, 1950, and Supervisory
Immigration Officer under the Territorial Government of Guam
from August 1, 1950, to August 10, 1950, testified that the Armed

Forces brought labor into the Island in large numbers without his
seeing or approving the admission. Confusion arose from exceptions made in behalf of civilian contractors and their employees
traveling under orders issued by the Armed Forces. Mistakes or
exceptions may have been made, and they would be almost unavoidable in as large an undertaking as the construction on Guam under
378

wartime conditions . 5 Fvon

sn,

fail to so.e. that such mistakes and

we

exceptions affect the status of respondents in the present proceedings, whose position must continue to remain peculiarly their own.
On June 16, 1952, the Immigration and Naturalization Service
opened an office on Guam and assumed the responsibility for administering immigration laws in the area. The Immigration and
Nationality Act of 1952 clearly includes Guam. The Immigration
and Naturalization Service, following the policy pursued by this
Government when the Service commenced operations in the Virgin
Islands, purported to presume lawful admission for aliens in Guam
but made an exception of "contract laborers," by 8 CFR 4.2(j), Fed.
Register, December 8, 1954, effective January 3, 1955. See footnote 1.
Following the release of our previous decision on August 31, 1956,
8 CFR 4.2(j) was amended on October 26, 1956.6 The special inquiry officer's excellent statement on the effect of this amendment,
with which we concur, is, in part, as follows:
While the purpose of the amendment of 8 CFR 4.2(j) is obvious, the effect
of the amendment of the regulation on the respondents herein is not so readily
apparent. The residence status of all of the respondents was presented to
this Service for adjudication prior to the amendment of the regulation on
October 26, 1956. If the respondents became entitled to status as permanent
residents under 8 CFR 4.2(j) in the form in which it was originally published
on December 8, 1954, it is not deemed that they would be divested of their
right to such status by rcaon of the amendment of the regulation on October

26, 1956. There is nothing in the amended regulation to indicate that it was
intended to have retroactive effect. In the absence of such indication the
amendment, under the general rule of statutory construction, may be applied
retrospectively if it relates to matters that are remedial or procedural but not
if vested rights are involved. * * * It is noted also that there is nothing in
the regulation which would permit any rebuttal of the so-called "presumption"
since the right to permanent residence status would automatically vest in
any alien who met the description of any of the classes enumerated in the
regulation. Determination of the status of the respondents under 8 CFR
4.2(j) will, therefore, be made on the basis of that regulation as it existed
prior to its amendment.
Korean War—June 25, 1950, to July 27, 1953 (Armistice signed).
8 CFR §4.2(j), as amended October 26, 1956: "(j) Aliens admitted to
01411,1(t. (1 ) Au alien who establishes that he was 219tultlet1 to Guam prior to
6

December 24, 1952, by records, such as Service records subsequent to June 15,
1952, records of the Guamanian Immigration Service, records of the Navy or
Air Force, or records of contractors of those agencies; that he was not exciudahie under the Act of reuruary P 1917, as amenaea; anu that he continued to reside in Guam until December 24, 1952, and thereafter has not
been admitted or readmitted into Guam as a nonimmigrant: Provided, That
the provisions of this subparagraph shall not apply to an alien who was
exempted from the contract la9orer provision of section 3 of the Immigration
Act of February 5, 1917, as amended, through the exercise, expressly or nu,

pliedly, of the 4th or 9th provisos to section 3 of the said act."

379

Radford, Commander-in-Chief, Pacific Fleet, from May 1, 1949, to
July 10, 1953 (exh. R-6), Captain William Mott, Chief International Law Officer in the Office of. Judge Advocate General of the
Navy from 1946 to 1948 and Legal Officer and Island Government
Officer on the staff of the Conimander-in-Chief, Pacific, and High
Commissioner of the Trust Territory of the Pacific rslands from

July 1948 to November 1950 (exh. R-7), and others. Apparently
all this testimony is designed to demonstrate that no-one, including reSpondent, was admitted to Guam for permanent residence.
We concluded in our previous decision (August 31, 1956, withdrawn) that it was possible that respondents were admitted to the
United States as skilled labor under the 4th proviso to section 3
of the 1917 Act. 4 We stated that, while it was true that there was
no hearing and determination by the Attorney General prior to the
importation as provided by the 4th proviso, the Immigration
Service was not operating in that area and such a hearing would
not have been possible. On the subject of available labor, the
Department of Labor and personnel of the Government of Guam
wrote, in part, to the United States Department of Justice, Immigration and Naturalization Service, on December 16, 1953:
This is to advise that we have reviewed the petition of C
L
C
and M---, Guam , M 1_, dated December 16, 1953, regarding the renewal of
petition of alien contract laborers.
According to the records of this office there are no qualified workers available locally.

We found that respondents were admitted to Guam by those who
were at that time exercising the "residual authority" to enforce the
immigration laws, in the absence of the Immigration and Naturalization Service; that they were skilled laborers; and that it might
be presumed that they were admitted for permanent residence under the 4th proviso to section 3 of the 1917 act, if that act was
effective on Guam at the time of their admission.
The record now contains a large amount of evidence establishing
that no aliens or citizens were permitted to enter Guam for the
purpose of establishing permanent residence. without having
first obtained the written permission of the Governor of Guam,
and that it was the policy of the Navy, as well as of the Civil
Government of Guam, to deny admission to Guam for permanent
4 Immigration Act of 1917, section 3, 4th proviso, provides:
"Provided further, [4] That skilled labor, if otherwise admissible, may be imported if labor

of like kind unemployed can not be found in this country, and the question
of the necessity of importing such skilled labor in any particular instance
may be determined by the Attorney General upon the application of any person interested, such application to he made before such importation, and such
determination by the Attorney General to he reached after a full hearing and
an investigation into the facts of the case."

376

perienee, skill and administrative capacity, as lie recognized when
he admitted four of the twelve.
The special inquiry officer found with regard to Y
A-8944606 ; "as a chief cook the work to be performed by the respondent was primarily supervisory or administrative, although it
undoubtedly also involved a certain amount of cooking." We find
that all the cooks, bakers and managers are entitled to the same
finding.
The available payroll information is tabulated for the purpose of
ascertaining the comparative salaries during the same period. See
Appendix I. The cooks received approximately the same salaries.
They were first admitted to Guam at salaries of $125 to $150 a month
except L H , A-8944626, who was both a cook and baker and
was paid $102.:50 from the beginning. The managers received $90
and $100 a month. The three bakers were paid the most—$125,
$150, and $170 a month during this period. They also received all
living and medical expenses Mr M
testified that, respondents
were paid by their contracts a yearly bonus equivalent to one month's
salary. Mr. C testified that the supervisory employees were to
be paid such bonuses in lieu of overtime payments, and depending
on whether the company showed a profit. The non-supervisory employees the waiters, busboys, kitchen helpers received $35 and $40
a month, plus living expenses. Mr. C
testified that he would not
have paid managers' salaries to waiters and that the wage scale
paid in his establishments was comparable to that paid by other
employers in the area.
The cashiers were to account each day for the tickets, and to
receive money, to be responsible for the correct charging of articles
sold and for cash and daily records and reports. Sometimes they
acted as assistant, managers, or managers and were responsible for
the manager's fund of two to five hundred dollars which was used
for the purchase of necessary items, and for monitoring the work of
other employees. Respondents all had some responsibility for training the helpers and apprentices under them, although at the reopened hearings they all felt it necessary to emphasize these activities and to discount any actual cooking or other physical endeavor.
Considering the emphasis on titles in these cases it is understandable. Mr. Karl Giesemlorfer, Security Supervisor for the Army
and Air Force Exchange Service on Guam from July 1948 to January 1958, testified that after C
and M lost its concessions
with the Marbo Central Exchange, it was one of his duties to organize the food services for the Exchange. He took over the Filipino personnel of C and M to operate the food service
organization, and he stated that these people had all been trained
by the Chinese employees of C and M
381

ployment of Aliens by Civilian Concerns after Termination of
Employment with Marbo Central Exchange" (exh. R-13F) states
that Command policy prohibits the release of Filipino or Chinese
nationals to civilian concerns after termination or breach of contract and that all such personnel must be returned to point of
origin upon separation from the Command. This memorandum

states further that in accordance with policy established by COMNAVMAR, Chinese nationals who take leave to China and for the
Philippines will not he permitted to return to Guam; (5) A letter
of September 8, 1947, from Brigadier General Farthing to the
Hon. C. A. Pownall, Governor of Guam, requesting reconsideration
for the entry of certain Chinese nationals (description clearly relates to a group such as respondents) for a period not to exceed
one year, and concludes with a clause which appears several places
in the record: "With this control there could be no problem of colonization" (exit. R 13E) ; (6) A memorandum of August 9, 1949,
from the Acting Attorney General of Guam to the Civil Administrator concerning a request for permanent residence status states
that the Naval Government of Guam discontinued such grants
"over one year ago and the renewed use of this grant now is not
considered timely" (exh. R-1I). These and other documents, and
the testimony of the witnesses referred to above, discussed in more
detail by the special inquiry officer, establish that respondents were
not admitted for permanent residence upon arrival on Guam under
any provision of law.
In the meantime large numbers of construction workers were imported into Guam by the Armed Services and by private companies
operating under contracts with the United States Government. The
Immigration Service has stated that there are, or were when the
present proceedings began, 12,000 alien workers on Guam. Counsel
attempted to demonstrate that there have been exceptions to the
procedures provided; that there were some persons admitted for
permanent residence on Guam; and that groups were brought into
Guam without the permission or knowledge of the Immigration
Department of the Government of Guam. Juan L. Gumataotao, the
Customs and Immigrant Inspector under the Naval Government of
Guam from April 16, 1947, to August 1, 1950, and Supervisory
Immigration Officer under the Territorial Government of Guam
from August 1, 1950, to August. 16, 1950, testified that the Armed
Forces brought labor into the Island in large numbers without his
seeing or approving the admission. Confusion arose from exceptions made, in behalf of civilian contractors and their employees
traveling under orders issued by the Armed Forces. Mistakes or
exceptions may have been made, and they would be almost unavoidable in as large an undertaking as the construction on Guam under
-

378

radical—from laborer to merchant and restaurant keeper. In the
instant cases, the changes were only of a degree. We must look at
the actual work done by respondent, the manner in which he was
employed from the time of his arrival to determine the true capacity
in which he was to be used. Suppose that a group of illiterates was
imported into Guam, all accidentally designated ahead of time as
"inamtgem", suppose further, that following their arrival they were

found to be incompetent and were demoted to sweepers the next day.
Would it still be contended that the original erroneous designation
controls? An employee of C and M— may have been assigned for a few weeks immediately following his arrival on Guam
to work as "counterman" in the same establishment where he became
manager the following month, but this does not mean that he entered as a laborer. Most of these people were coming to Guam as
replacements for those who were returning to the Philippines, or
going on leave. One of the personnel people testified that their
principal problem was one of "home sickness," and that many of
the employees refused to stay on Guam more than three years. It
would seem almost inevitable that a new "manager" or even chief
cook or baker might break in on a new job under the direction of
the departing supervisor.
The records relating to respondents are sparse, partly due to the
fact that prior to the arrival of the Immigration and Naturalization Service on Guam in 1952 immigration records were kept in a
less precise manner than has been customary under the aegis of the
Service. It is also alleged that many of the records of C
and
were destroyed in a typhoon, and that they have moved their
M
offices on Guam many times. Exhibit R-23 is a list of respondents
and the wages shown by the first monthly sheets following their
entries into Guam. This list carries a note to the effect that the
first pay sheets have been turned over to the "United States Immigration, Agana, Guam," as exhibits during the previous trial. There
was considerable discussion as to whether or not these pay sheets
were turned over to a representative of the Immigration Service,
and, if so, their ultimate disposition. So far as we can discover,
there is no conclusion as to whether or not the Immigration Service
actually received these records, or as to the disposition of them if
they did exist.
There are the following kinds of records:
(1) Application and Personal History sheets. Mr. C
testified
that the information forms for each employee were probably filled
out by V
Y
in the Philippines, although the individuals
, and Nat (lie fact that the form
were hired personally by Mr. C
shows that the respondent was entering Guam in the position of
checker is not necessarily conclusive that that is the capacity in
which ho was employed.

383

The special inquiry officer found that four of respondents, including C Y L , were not contract laborers and, therefore, became entitled to the presumption of lawful admission provided by regulation, but that eight others of this group were contract laborers under the law and hence within the exception. Although the language of the statute forbidding the importation of
aliens under contract- "to perform labor in this country of any kind,
skilled or unskilled" is broad, the tendency of the cases has been to
reduce its application. The rule usually cited is from Ex parte
Gouthro, 296 Fed. 506 (E.D: Mich., 1924) (aff'd United States. v.
Gouthro, 8 F.2d 1023 (C.A. 6, 1925)), as follows, at p. 509:
Tt must now be regarded as settled that the purpose of Congress in enact

lug this so-called "contract labor" legislation was to prevent the importation
into this country of an ignorant, servile class of foreign laborers, to work at
a low rate of wages, and thus reduce other laborers engaged in like occupations to the level of the aosioted immigrant; and this provision of the statute
does not refer nor apply to persons whose work requires mental, rather than
merely manual, effort as its dominant element.
Church of Holy Trinity v.
United States, 143 U.S. 457, 12 Sup. Ct. 511, 36 L. Ed. 226; United States v.
Lazes, 163 U.S. 258, 16 Sup. Ct. 998, 41 L. Ed. 151; Settarrenberg v. Dollar
Steamship Co., 245 U.S. 122, 38 Sup. Ct. 28, 62 L. Ed. 189; Gay v. Hudson
River Electric Power Co., 178 Fed. 499; Tatsukichi Kuwabara v. United States,
260 Fed. 104, 171 C.C.A. 140 (C.C.A. 9) ; United States v. Union Bank of Canada., (C.C.A. 2) 202 Fed. M, 8 1438; Ea parte Aird, (D.C.) 216 Fed. 904.

Gouthro held that a Western Union Telegraph operator was not a
contract laborer. Aird held that a "class A draftsman" employed
by Bethlehem Shipbuilding Corp. was not a contract laborer. We
followed these cases in Matter of S , 1 I. & N. Dec. 196 (Feb.
19, 1942). We pointed out that the Immigration and Naturalization Service has held that professional tennis, football, baseball,
hockey and soccer players, and professional boxers, are not contract
laborers. In that case we held that a ski instructor was not a con
tract laborer. In Matter of MeL ,1 I. 8.7, N. Dec. 264 (June 20,
1042), we stated that the Immigration and Naturalization Service
has held further that race track jockeys, race track starters, horse
grooms and trainers are not contract laborers. We held that a
hockey player, temporarily employed in a supervisory or administrative capacity at a public golf course, was not a contract laborer.
See also Matter of B
,1 I. R N. Dec. 593 (Nov. 12, 1943) ; Matter
of Mad?
, 1 I. & N. Dec. 682 (Dec. 16, 1943). The special
inquiry officer's decision declares that the basis of these decisions
was the fact that the work to be performed by them was not a type.
which can be considered manual labor. This is where we part
company with the special inquiry officer. Respondents were not
domestic servants. The services performed by them, mass cooking,
baking and supervising in commercial establishments, required ex-'

380

manager of all of the C
and M
restaurants on Guam, and
that at the time of his statement (exh. 4) he was employed by Far
East Trading Company as manager of the Town House Coffee Shop.
At the reopened hearing additional records and testimony were
obtained, and nothing contradicts the record established in the earher hearing. Respondent, testified on June 3, 1958, that he had
at Clark Field in the Philippine Islands as
worked for C
C
cashier, collecting the receipts and disbursing money for wages and
supplies at all of C 's five restaurants at Clark Field from 1946
to 1949.
Respondent was entitled to a finding that he was brought to Guam
for the purpose of being employed in a position which does not fall
under the contract-labor category, and that he is, therefore, entitled to the presumption contained in 8 CFR 4.2(j) as a person who
was lawfully admitted for permanent residence on his arrival on
Guam on March 6, 1951. This is in accordance with the order we
made on August 31, 1956. The order terminating proceedings as to
him was correct .
In summary as to all employees, the record establishes that it was
well understood by the employees and the concessionaires on Guam
that entry was authorized for periods of one year only. No grant
of permanent residence to respondents was made or intended at time
of entry. Counsel's,- continuons objections, that the testimony taken
and evidence adduced were not within the scope of the Board's 1956
order reopening the record, were time consuming and were correctly overruled. The order was, and was intended to be, broad in
its scope and in its interpretation. The record is much more. informative than it was in its previous state.
employees who were admitted by the
and M
The four C
special inquiry officer are, on the average, better documented than
the eight who were not, admitted, but the existence of more documents should not determine their right to remain. No single test
can determine the classification of contract labor, such as, "Does he
perform mental as opposed to menial labor?" We have attempted
to look at all the elements—the documents, the skill, experience and
.

competence of the employee, and the manner in which his talents

were utilized following his admission. The record establishes that
those who were admitted were not supervisory or superior in relation to the others in the group. Appendix I was designed to show
the comparative salaries and job designations of the twelve. All
were supervisory in relation to the Filipino employees and received
three to five times the pay of the kitchen helpers, bus boys and
waiters. Each of the bakers was in charge of a different shift, or
at a different bakery, at least within a few days of his arrival. Each
cook was head cook in a different restaurant. The cooks and bakers
385

The record indicates that respondents all had, and were expected
to have, a certain amount of versatility in the food preparation and
purveying field. The bakers were also qualified as cooks. The
managers were competent to double as cashiers, checkers and waiters.
Several witnesses mentioned that Chinese restaurants are run differently from other restaurants, in that the managers circulate,
sometimes taking the orders and serving the food themselves and
helping with the cleaning-up. Mr. C and Mr. M both testified that a degree of versatility is necessary ia.all lines of work.
There was no painful stratification by "job sheets," as there is in
the Civil Service system. There was considerable travel among the
employees (until these proceedings began), some of them returning
to the Philippines, or taking leave in Hong Kong, and being replaced by others. The nature of C and M 's operations at
that time was fluid, depending on the movement of troops and the
progress of construction work on Guam. Respondents entered Guam
shortly before or during the Korean War. Snack bars and other
installations opened and closed as the need arose.
The special inquiry officer has stated that the best evidence of the
capacity in which the respondents were employed, the purpose for
which they were brought to Guam, ordinarily would be the official
record of arrival, but here there. was no such record so recourse
must be had to such records as there were. Since respondents arrived during an era of impossible record keeping, the best evidence
is the capacity in which they were actually employed either immediately or within a reasonable time after their arrival. The special
inquiry officer quotes Ex parte Kaiehiro Sugimoto, 33 F.2d 926,
aff'd 38 F.2d. 207, cert. den. 281 U.S. 745, and Tulsidas v. In-sular
Collector of Customs, 262 U.S. 258, that "It is his status at the time
of entry, and not that subsequent to entry which controls." In
Tulsidas and Suginwto there is no indication how long after the
aliens' arrivals as laborers that they changed their occupations and
became a merchant and a restaurant keeper. However, the special
inquiry officer has interpreted this rule most rigidly, declaring that
if there was any lapse of time after an alien's arrival before he
was put into a managerial or supervisory position he was not brought
to Guam to be employed in such a position. The special inquiry
officer found in several cases where the aliens were given temporary
jobs until they were permanently assigned, that it was the temporary employment, no matter how brief, which governed the status
in which they entered. He states (p. 37, special inquiry officer's
decision), "If he arrived on Guam on April 3, 1951, for the purpose
of being employed as a waiter, the fact that the next day he was
assigned to work as a cashier would not have made him admissible
on April 3, 1951." In l'ul8idas and Sugimoto the changes were
AR9

APPENDIX I
Y
-K
L-'( Y 9- )
8-949-606

C
F
Nv--(W F
F
1
8-944-636

Nov. 1948
'125.

Nov. 1948
- 150.

Dec. 1948
150.

Dec. 1948

Jam 1949
Asst.
Cook 150.

Jan. 1949
Asst.
Cook 155.

Feb. 1919
Cook 150.

Feb. 1949
Asst.
Cook 155.

Mar, 1949
- 150.

Mar. 1949
155.

Apr. 1011
- 150.

A pr, 1912

135.

-

A
M
T-•(TT-)
8-944-635

L
II
(II -L
)
8-944-020

F--1FK
(K
F
)
8-94.1-603

C
It
5-944-025

Nor. 1918
- 162.50
Dec. 1948

- 102.50

Jan. 1949
Chief
Baker 162.50

155.

May 1949
- 150.
Juno 1995
- 150.

Julie 1949
102.59

July 1999
150.

July 1599
162.50

July 1919
Chief
Cook 162.50

Aug. 1949
195 month)
155.

Aug. 1949
Baker 162.50

Aug. 1949
162.50

;Sept-. 1949
Cook 150.

Sept. 1949
155.

Sept. 1949
162.50

Sept. 1949
Baker 27.08
(5 days)

Oct. 1949
- 150.

Oct. 1999
Cook 158.88

Oct. 1949
Baker 102.50

Oct. 1949
102.56

Oct. 1949
Cook 150.

Nov. 1950
Chief
Baker 120.42
(21 days)

Nov. 1950
Cook 171.13
2 pages

Nov. 1.950
Cook 45.50
(7 days)

Dec. 1950
Chief
Cook 162.75

Dec. 1950
Chief
Baker 170.63

Dec. 1950
(1a month)
Baker 63.

Sept_ 23, 1951

July 12, 1951

Empl.
Contract
Ch. Cook
167.63

Fob. 1951

Empl.
Contract
Ch. Baker
175.75

Cook 150.

Oct. 1951
Chief
Cook 167.63

Feb. tom
Baker 125.

Sept. 21, 1851
Empl.
Contract
Baker 100.

Jan. 16, 1952
Empl.
Contract
Ch. Cook162.25

Feb. 11, 1952
Empl.
Contract
Ch. Cook
175.75

*Proceedings terminated by spec al inquiry officer.

387

Nov. 22, 1951
Empl.
Cnntrnst
Ch. Cook
150.

Nov. 1951
Asst.
Chief
Baker

APPENDIX I—Continued
C-1----L--*
C—)
(L
8-994-627

L
(A

A
•
L -- )
8-999-604

P--C--C—
(L
F
)
8-949-633

C—(2—
N-Y (N )
8-944-611

K—N-(N--K--)
8 914 602

L—W-P--Q--(L :=1 )
8-944-013

Nov. 1950
Manager 110.
Dec. 1959
Manager 110.

Mar. 1951
"in charge"
65.
(25 days)

Dec. 1950
Cook 150.

Mar. 1951
"counter"
temp. assign.
65.
(26 days)

Apr. 1951
Manager 100,

Apr. 1951
85.
(25 lays)

(2 peer5)

May 1951
Manager 110,
June 1951
Manager 13.5.

Oct. 1951
Manager 150.

Oct. 1951
Alanager
16.15
(5 days)

Oct. 1951
At anger
116.87

Nov. 1951
Manager 126.
Jan. 6, 1952

Mar. 6, 1952

ELLIpl.

Erupt.

July 20, 1951

Contract

Contract
Manager 125,

Contract
Manager
1 15.50

Manager 150.

March 6, 1952
Ealpl.
Contract
Manager 170.

Culp].

*Proceedings terminated by special inquiry officer.

388

Apr. 3, 1952
Euipl.
Contract
Manager 140.

May 26, 1552
Empl.
Contract
Ch. Cook
157.50


Interim Decision #2130

MATTER OF YUEN
In

Visa Petition Proceedings
A-19458534

Decided 51/ Beard March 13, 1972
Beneficiary, who was born in China in 1950, allegedly adopted there in 1956, in
absentia, when the adoptive parents were both permanent residents of this
country, and who did not become a member of their household until he visited
the United States in 1968 at age 18, is denied preference classification under
section 203(a)(1), Immigration and Nationality Act, as amended, as an unmarried son, since (1) a true parental relationship was not created before age 14 so
as to constitute an adoption within the meaning of section 101(bX1XE) of the
Act; (2) there is no showing that the State of New York, of which the adoptive
parents were residents at the time of the claimed adoption, recognizes the
validity of the adoption; and (3) there is doubt as to the bona fides of the
adoption since beneficiary is the blood nephew of the petitioner, a written
agreement of the adoption was never produced, and the only supporting
evidence is the uncorroborated affidavit of the petitoner.
ON BEHALF OF PETITIONER:

Elmer Fried, Esquire
515 Madison Avenue
New York, New York 10022

The United States citizen petitioner applied for immediate
relative status for the beneficiary as his adopted child under
section 201(b) of the Immigration and Nationality Act. The District
Director denied the application in an order dated May 14, 1971, and
the petitioner appeals from that order. The appeal will be dismissed.
The beneficiary is an unmarried male who was born in the
Peoples Republic of China on March 9, 1950. The petitioner claims
that he is his adopted son. The petitioner's affidavit recites the
following facts: (I) he was born in China in 1899; (2) he lived in the

United States since 1915; (3) he visited China in 1933 and got
married there; (4) he then returned to the United States; (5) his
wife remained in China until 1950, when she fled to Hong Kong; (6)
in 1956 the wife entered the United States as an alien lawfully
admitted for permanent residence; ('7) an adoption of the beneficiary purportedly occurred in the Peoples Republic of China on
September 12, 1956; (8) an adoption agreement was allegedly

71

Interim Decision #2130
executed but no copy of it is available; (9) at some undisclosed time
after 1956 the beneficiary was taken to Hong Kong where he
resided with his sister and the petitioner's mother-in-law (possibly
the beneficiary's grandmother) until 1968; (10) on October 5, 1968
the beneficiary came to the United States for a visit and has
resided with the petitioner and his wife ever since; and (11) on
January 13, 1971, before the beneficiary attained the age of 21 years,
the present petition was filed.
The petition was evidently filed to accord the beneficiary immediate relative status as a "child" under section 201(b) of the Act.
Section 101(bX1) defines a "child" to mean an unmarried person
under the age of 21 years. On May 14; 1971, the date of the District
Director's decision, the beneficiary was over 21 years of age.
Immediate relative status under section 201(b) was no longer
available to the beneficiary once he passed his twenty-first birthday, since he no longer was the "child" of a United States citizen.
The District Director apparently treated the petition as one to
accord the beneficiary preference status as an unmarried son
under section 203(a)(1) of the Act. We agree with the District
Director that this was the correct way to consider the present
petition.
There is no definition of "son" in the Immigration and Nationality Act, but "child" is defined in section 101(b)(1XE) to include a child
adopted while under the age of 14 years if the child has thereafter
been in the legal custody of, and has resided with, the adopting
parent or parents for at least two years. This Board has held in a
prior precedent decision that aliens adopted by United States
citizens are not eligible for preference status as a "son" or
"daughter" unless they were adopted in conformity with section
101(bX1XE), Matter of P—, 8 I. & N. Dec. 527 (BIA, 1960). See also
Matter of Calronictinzctna, 12 I. & N. Dec. 47 (BIA, 1967). Hence, the
benefit of section 203(a)(1) is not available to the beneficiary unless
prior to his twenty-first birthday he would have come within the
definition of adopted child set forth in section 101(b)(1XE).
The definition of "child" contained in section 101(b)(1) did not
extend to an adopted child until section 101(b)(1XE) was added by
the Act of September 11, 1957 (71 Stat. 639). The amendment was
designed to prevent hardship and to keep families together. At the
same time Congress desired to prevent the recognition of ad hoc
adoptions made only for the purpose of circumventing the immigration laws. In conformity with the intent of Congress, we have
held that an adoptive relationship relied upon to support the
granting of a petition for visa preference must rest upon a valid
subsisting adoption, Matter of Chan, 12 I. & N. Dec. 513 (BIA, 1967).
In another decision, unfortunately unpublished, we sustained the
72

Interim Decision #2130
denial of a preference petition where the beneficiary had not come
under the parental control of the petitioner but had continued to
reside in the home of her natural parents, Matter of Chapralis,
A-14922517 (unreported, BIA, October 24, 1967). In that case we
found that the existence of an adoption in the ordinary legal sense
of the term had not been established. We take note of the fart that
Bouvier's Law Dictionary, 3rd edition, defines adoption as: "The act
by which a Person takes the child of another into his family, and
treats him as his own."
In the preent case the beneficiary left his birthplace in China
sometime after the alleged adoption occurred and went to Hong
Kong, where he resided with his sister and another woman, the
petitioner's mother-in-law. He remained in Hong Kong until 1968,
when he came to the United State as a visitor. Since that time he
has been living with the petitioner and the petitioner's wife. At no
time between the date of the purported adoption and his fourteenth birthday did the beneficiary spend any time in the same
country as the petitioner or his wife. He was eighteen years of age
when he finally reached them in 1968. It cannot be said that, prior
to the time he attained the age of fourteen years, the beneficiary
actually entered the family or household of the petitioner. On the

basis of these facts we are unable to find that a true parental
relationship was created before the age of 14 years. Therefore, we
cannot find that an adoption occurred within the comtemplation of
section 101(b)(1)(E) of the Act.
In the present case the beneficiary was purportedly adopted in
the Peoples Republic of China at a time when the petitioner and
his wife were both permanent residents of the United States. The
petitioner claims that there was an adoption by his wife, in
absentia, with his approval. In an earlier decision, involving the
adoption of a child residing in Portugal by a United States citizen

residing in New Jersey, which adoption was effected in the
Portuguese consulate in New York City, we refused to recognize
the adoption for immigration purposes in the absence of any
showing that the adoption would be recognized as valid by either
the State of New York or the State of New Jersey, Matter of B—, 5
I. & N. Dec. 733 (BIA, 1954). We realize that in the present case the
question as to the extraterritorial effect to be given a foreign
adoption law has not been raised. Nevertheless, we believe that
the principle set forth in Matter of B—, supra, applies to the
present case as well. The facts in the present case present an even
weaker case in favor of the validity of the adoption than in Matter
of B—, supra. Accordingly, since the petitioner and his wife were
apparently residents of New York State at the time of the claimed
adoption, we cannot accept the adoption as valid for immigration
73

Interim Decision #2130
purposes because there is no showing that the State of New York
recognizes the validity of the adoption.
Furthermore, the fact that the beneficiary is the blood nephew
of the petitioner, coupled with the fact that a written agreement of
adoption was never produced raises doubt as to the bona fides of
the adoption. We also note that the file contains no evidence in
support of the adoption other than the uncorroborated affidavit of
the petitioner. The petitioner has failed to explain away the doubt
present in this case and the file contains insufficient evidence to
prove the existence of any adoption.
The District Director denied the petition for a different reason,
namely, on the ground that "customary adoption cannot have
occurred in Mainland China since May 1, 1950 as all previous laws
were abrogated and no provisions for adoption have since been
created by the Government in power." We need not delve into this
question since we dispose of this appeal on the other grounds set
forth above.
Although for different reasons than the one given by the
District Director, we hold that the District Director was correct in
finding that the petitioner has not borne the burden of establishing that the beneficiary is an adopted child under section 201(b) or
an unmarried adopted son for purposes of section 203(a)(1). Therefore, the beneficiary is not eligible for either immediate relative or
preference status under those sections of the Act. The appeal
accordingly will be dismissed and the following order will be
entered.
ORDER: The appeal is dismissed.

74


Interim Decision #2778

MATTER OF GARCIA

In Deportation Proceedings

A-22290411
Decided by Board January 16, 1980

(1) Respondent who testified that he made admission of alienage only after being led to
believe by Service officers that his deportation was inevitable, that he had no rights
whatsoever, that he could not communicate with his counsel, and that he could be
detained without explanation of why he was in custody, came forward with a prima
fade showing that this admissions were involuntarily given.
(2) w here Service presents no contrary evidence after a respondent mares a prima fade
showing that his admissions were involuntarily made and where only those admissions support finding of deportability, the proceedings will be terminated.
Order Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entry without inspection
ON BEHALF OF SER'VICM

ON BEHALF OF RESPONDENT:

Charles L Stevenson
Acting Trial Attorney

Lawrence Kleinman, Esquire
519 S. W. Third, Suite 418
Portland, Oregon 97204
BY:

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

The respondent appeals from a decision of the immigration Judge
dated September 14, 1977, finding him deportable as charged, but
granting him the privilege of voluntary departure. The appeal will be
sustained and the proceedings terminated.
The respondent is a 20-year-old native and citizen of Mexico. He was
apprehended at a farm in Oregon in August 1977. On August 17, 1977,
he signed a Form 1-274 ("Request for Return to Mexico") which
reflected that he was a citizen of Mexico illegally in the United States
and that he wished to voluntarily depart to that country. After consulting with an attorney that same day, however, the respondent
advised the Service that he desired to have a hearing to determine his
deportability. An Order to Show Cause was then issued charging him
with being deportable under section 241(a)(2) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(2), as an alien who entered the United
States without inspection.
319

Interim Decision #2778
At a deportation hearing held in September 1977, the respondent,
through counsel, objected to the admission into evidence of the Form I274 and a Form 1-213 ("Record of Deportable Alien"), which also
reflected that on August 17, 1979, he had conceded his alienage and
entry into the United States without inspection. It was alleged that his
admissions reflected in those two documents were a direct result of the
respondent's illegal arrest, that they were made only after the Service
officers involved in the case had failed to advise the respondent of his

rights as required under the Constitution and governing Service regulations, and that the admissions were coerced and involuntary.
The respondent testified at the hearing in support of the suppression
motion. He stated that he was arrested on a farm on August 16, 1977.
He testified that after his arrest he was handcuffed and taken to his
home where he was told to gather his belongings because he was going
to be deported to Mexico. While at his home, he saw his employer and
asked him to call his attorney. The respondent testified that he had his
attorney's telephohe number written in ink on his arm, but while he
was showing it to his employer an immigration officer grabbed his arm

and rubbed the number off.
The respondent further stated that on being taken to the District
Office he was placed in detention, was not told why he had been
arrested, was not advised that he had a right to consult with a lawyer,
and was not told of his right to have a hearing before being deported.
See 8 C.F.R. 287.3. He stated that his numerous requests to call his
attorney were ignored and that he finally made his admissions and
requested prehearing voluntary departure only after having "lost
hope" of being able to speak with her.
After the respondent testified, his counsel offered to call a second

witness to corroborate his story. The immigration judge advised counsel that another witness would not be permitted unless the Service
contested the respondent's testimony "in any way." He stated that his
findings of fact would be based on that testimony unless challenged.
The . Service then offered the Form 1-213 and Form 1-274 into
evidence without calling either of the arresting officers to testify. The
immigration judge admitted the documents into evidence after denying the suppression motion and declining to accept the respondent's

brief on this matter. He advised the respondent that he had "the right
to a brief on appeal if [his decision was] adverse to his client."' The
immigration judge then found the respondent deportable as charged
based on the two documents. He apparently adopted the respondent's
' The refusal to accept the brief was error. Moreover, where a basis to refuse admission
of a brief arises (no proper basis was stated here), it should be appended to the record as
an appellate exhibit.

320

Interim Decision #2778
testimony as his own findings of fact, but found no basis to conclude
either that the respondent's arrest was unlawful or that his admissions had been involuntarily given.
We have held that the Fourth Amendment exclusionary rule does
not apply in civil deportation proceedings. See Matter of Scouloval,
Interim Decision 2725 (BIA 1979). Even were that not the case, we
would find that this respondent had not come forward with a prima
facie showing that his arrest was unlawful. See Matter of Tang, 18 MN
Dec. 691 (BIA 1971).
The respondent, however, did present a prima fade case that the
admissions reflected on the Form 1 213 and the Form 1-273 (the only
documents evidencing his deportability) were involuntarily given. His
testimony, which was adopted by the immigration judge as his statement of facts, reflected that, after his arrest, he was led to believe that
his return to Mexico was inevitable, that he had no rights whatsoever,
that he could not communicate with his attorney (his attempts to do so
being actively interfered with), and that he could be detained without
explanation of why he was in custody. His uncontradicted testimony
was that he admitted his alienage to the officers in question only after
a significant period in custody had elapsed, after his requests to
contact his attorney were repeatedly rebuffed, and after he had given
up all hope of speaking with her. On this record, where the Service has
not come forward with any contrary evidence, we are satisfied that the
respondent's admissions which underlie the finding of deportability
were involuntarily made and that the requirements of due process
warrant their exclusion from the record. See Navia-Duran v. INS, 568
F.2d 803 (1 Cir. 1977); Bong nun Choy v. Barber, 279 F.2d 642 (9 Cir.
1960). As this was the sole evidence supporting the finding of deportability, that finding will be reversed and the proceedings ordered
terminated.
ORDER: The appeal is sustained and the deportation proceedings
are terminated.
-

321