11 I. & N. Dec. 42 - KINJ

Interim Decision #14.18

Maw= OF KI'
In Deportation Proceedings
A-10353516
Decided . by Board February 18, 1985
The parent of a minor United States citizen is ineligible for preference quota
classification under section 208(a) (2), Immigration - andNationality Act, as
amended. [Reaffirmed: 800 F.24. 804 (1906)1.
Cam:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—.-Nanizumi.
grant student, remained longer..

The case comes forward on appeal from the order of the special
inquiry officer dated November 17, 1964, denyirlg the application for
adjustment of status .pursuant to section 245' of the Immigration
and Nationality Act, granting voluntary departure in lien of deportation with the further order that if the respondent failed to depart
when and as required, he be deported to Lebanon on the charge contained in the order to show cause.
The record relates to a native and citizen of Lebanon, 30 years old,
male, who last entered the United States at the port of New York
on January 31, 1956. He was then admitted as a nonimmigrant stu- ,
dent,auhoriz mn.suchtailJry5,1968.The
respondent was granted until February 10, 1968, within which to
effect voluntary departure but remained thereafter without authority.
Deportability on the charge stated in the order to show cause is
established.
The case was previously before us on appeal from an order of the
special inquiry officer entered on March 27, 1963, granting voluntary
departure with the alternate order that if he failed to depart as
required, he be deported to Lebanon. The appeal was dismissed.
On August 7, 1964, we ordered proceedings reopened for the purpose
of considering the respondent's request for. adjustment of status
under section 245 of the Immigration and Nationality Act, as
amended, or for such other relief as might be appropriate.

42
Interim, Decision 401430
The record shows• that the respondent on. September 5, 1963, in
the Parish of East Baton Rouge, Louisiana married. Shirley Claudia
O'Hara Mulligan, a native-born citizen of the United States. On
April 19, 1964, at Omaha, Nebraska, the respondent's wife gave birth
to a citizen child. The day after the marriage she completed a visa
petition to accord the respondent nonquota status. In her sworn'
statement of April 20, 1964, the wife asked that the visa petition. be
revoked and on May 19, 1964, the District Director at New Orleans
denied the visa petition. On May 29, 1964, the respondent filed a
petition for separation a metiaa et Moro in the Family Court For
The Parish Of East Baton Rouge, Louisiana in which respondent
asserted under Louisiana law he was the legal father of the child
and was awarded the temporary care, custody and control of the
minor child (Es. R-4). (A final decree in this matter was rendered
on September 9, 1964.) There is some evidence in the file of a sham
marriage for the purpose of avoiding deportation. There is also
evidence that the respondent is not the natural father of the child
(Es. it-4; Er. p. 6; Es. B-11')., However, we need not at this
point consider whether the relief of section 245 of the Act is warranted as a matter of discretion. For the purpose of this discussion.
- we shall also assume, without conceding, that under the laws of the
State of Louisiana the respondent is recognized as the legal father
of the child, Darlene Rachael, born in Nebraska, despite his admission that he is not the biological or natural father of the child and
despite the statement by the mother that there woe never any intercourse hetween.herself and,the respondent.
The critical question in the case is whether the respondent can meet
the requirement of section. 245(a) (3) of the Immigration and Nationality Act (8 U.S.C. 1255 (a) (3) ) that an immigrant visa be immediately available to the alien. Section 203(a) (2) of the Immigration
and Nationality Act (8 U S.O. 1153 (a) (2)) provides:
(2) The 'next 30 per centaur of the quota for each quota area for such year,
plus any portion of such quota not required for the issuance of immigrant
- visas to the classes specified in .paragraphs (I) and (3); shall be made
available for the issuance of immigrant visas to qualified quota immigrants
who tiPe the parents of oittedris of the United States, such citizens being at
least tioentfrone seari . of aim or who are the unmarried sons or daughters of
-

citizens of • the United States., (Emphasis supplied.)
Counsel construes the underlined portion of this section as though
the .language thereof reads: -
• • • to imaged quids immigrants who.are the parents of citizens of the
United. States, such citizens being (a) at least twenty one years of age; or (b)
-

who are the parents of unmarried sons or daughters of citizens of the United' •
States. •

43
Interim Decision 4t1430
Counsel argues that inasmuch as the respondent is the parent of a
citizen who is the unmarried daughter of his citizen wife, he is
therefOre entitled to second preference quota status under the statute
as he interprets it.
The ingenuousness of counsel is commendable but not persuasive.
When the language of a statute is plain and unambiguous there is
no occasion for construction, and the statute must be given effect
according to its plain and obvious meaning. The fundamental rule
of statutory construction is to ascertain and, if possible, give effect
to the intention or purpose of the legislature as expressed. in the
statute. Proper interpretation of a statute requires adherence to the
plain common sense and meaning of the language therein contained,
rather than an application of refined and technical rules of grammatical construction?
As we read section 203(a) (2) of the Immigration and Nationality
Aet (8 U.S.C. 1153(a) (2)), the second. preference category of immigrant visas is available to qualified quota immigrants who are the
parents of citizens of the United States, such citizens being at least
21 years of age, or to qualified quota immigrants who are the unmarried sons or daughters of citizens of the United States. We are
unable to read into the language of the statute the meaning ascribed
by counsel that immigrant visas are available to parents of the unmarried sons or daughters of citizens of the United States.
The report of the committee in each House of the legislature which
investigated the desirability of the statute under consideration is a
much. used source for determining the intent of the legislature, when
it sets forth a committee's grounds for recommending passage of
the proposed bill and, more important, its understanding of the
nature and effect of the measure. Although not decisive, the intent
of the legislature as revealed by the committee report is highly'
persuasive?
Section 1 of the Act of September 22, 1959 (P.L. 86-363) ; 73 Stet.
644, H.R. 5896, provides: .
section 203(a) (2) of the Immigration and Nationality Act is hereby amended
by striking ont the period and adding the following: "or who are the unmarried sons and daughters of damns of 'the United States."
Senate Report No. 962 .(September 8, 1959), to, accompany H.R.
5896, states that section 1 of the Bill 'would improve the quota
immigrant status of the unmarried sons or daughters over 21 years
of age of citizens of the United States by moving them from the
1 2 C.J.S. 577, 560, 683.
1 Suthorlpnd, Statutory Construction* (1943 ed.) pp. 489, 490.

., 44
Interim Decision #1430
fourth to the second preference in the allocation of immigrant visas
within the quotas. The second preference is -presently available only
to parents of United States citizens. The report made ieference to
a letter from the Deputy Attorney General, dated June 23, 1959, to
the Chairman, Committee of the Judiciary, which stated:
Under existing law (section 203(a) (4) of the Immigration and Nationality
Act) aliens who are the sons and daughters of citizens of the 'United States
are accorded fourth preference in the allocation of immigrant visas within
quotas. Under section 1 of the 33111, the adult unmarried sons or daughters of
citizens of the United States would be placed in the second-preference category.
We believe that the plain reading of the statute and the legislative history conclusively deinonstrates that the allocation of quotas
within the second preference group is available only to two categories
of immigrants: (1) immigrants who are the parents of citizens of
the United States, such citizens being at least 21 years of age; or (2)
immigrants who are the unmarried sons or daughters of citizens of
the United States. Inasmuch as the respondent does not fall within
any of these categories, he is eligible only for nonpreference status.
The nonpreference portion of the quota for Lebanon, to which the
respondent is chargeable, is oversubscribed. A visa is not immediately available to the respondent and his application for adjustment of
status under section 245 was properly denied. The respondent has
been granted the privilege of voluntary departure with an automatic order of deportation if he fails to depart as required. The
appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

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