HUNG

  Interim Decision #1722




                                MAIL      or HUNG

                 Application for Classification as Refugee

                                    A-12265468

          Decided by Regional Commissioner March 30, 1987
 Applicant, a 25-year old native of Hong Hong and British subiect who fled China
   in 1919 with her parents when the Communists took over their district, residing
   in Hong Kong 6 or 7 years immediately prior to coming to the United States
   where she has been physically present since her admission as a student in
   1960 while still a minor, whom parents and brothers and sisters have been
   paroled into this country from Hong Kong as refugees, and who is unable to
   obtain a visa to reside temporarily in Canada with her student husband, is
   a refugee who has not been firmly resettled in another country for the purposes
   of refugee classification under the proviso to section 203(a) (7) of the Immigration and Nationality Act, as amended.
 In BEBALIT OF APPLICANT     Joseph S. Hertogs, Esquire
                             680 Washington Street
                             San Francisco, California 94111


   This case comes forward on certification by the District Director,
San Francisco who on January 26, 1967 denied applicant's motion
to reopen and reconsider her application for adjustment of status as
a permanent resident pursuant to section 245 of the Immigration and
Nationality Act, as amended. In his order of January 26, 1967 the
District Director stated in part as follows :
  Title 8, Code of Federal Regulations, 103.5, requires that a motion to reopen
or reconsider state new facts to be proved or the reasons for reconsideration and
that they be supported by affidavits or other evidentiary material. The instant
motion seems to be lacking in this respect. The facts show that the applicant did
marry a Peter Chiang on May 5, 1966, who presently is a student in Canada.
According to the record, the applicant's husband has no status in the United
States. It has been established that this applicant was born in Hong Kong, B.C.O.
and is now a citizen of Hong Kong. An applicant's nationality per se is not a basis
for finding the applicant ineligible under the proviso on the ground that he is
able to return to the country of nationality. However, the matter of nationality
may be a pertinent consideration along with other factors in determining
whether the alien has become firmly settled in a foreign country other than the
one from which she lied. Since the applicant's husbanil is residing in Canada
and the applicant is a British =Meet, it is doubtful she would encounter any

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  difficulty in taking up residence with her husband. Moreover, a marriage has
  been defined in law "as a contract by which a man and a woman, capable of
  entering into such contract, mutually engage with each other to live their whole
  lives together in -the state of union which ought to exist between a husband and
   wife.• -
     It is the view of this office that the applicant has been firmly resettled based
  upon the above facts, and is therefore not qualified for adjustment tinder the
  proviso of section 203(a) (7).
   The above view as to the applicant's being "firmly resettled" cannot
 rest on the factual basis asserted. Neither the belief that the applicant
 -could probably join her recently-married husband in Canada nor the
 obligations arising from a marriage contract, support such a finding.
 Thus, the District Director's holding must be rejected.
   The applicant, a 25-year-old married female, a native of Hong
 Kong, B.C.C., was admitted to the United States at Honolulu on September 4, 1960 as a nonimmigrant student to attend Napa Senior High
 School, Napa, California. She received several extensions of stay, the
 last expiring on June 2, 1966 with a voluntary departure date of
 November 15, 1966. On April 22, 1966 she filed an application fox
status as permanent resident pursuant to section 245 of the Immigration and Nationality Act, as amended.
    On May 27, 1966 a petition executed in the applicant's behalf by
her father was approved by this Service according her preference
under section 203(a) (2) of the Act, as amended, as the unmarried
daughter of a lawful-resident alien. Approval of the petition was
revoked pursuant to 8 CFR 205.1 when the applicant subsequently
informed this Service that on May 4, 1966, in Las Vegas, Nevada, she
 had married Peter Chiang also known. as Kai Leung Chiang, a native
of Hong Kong. With this action, her status became that of a nonpreference immigrant. As no visa was readily available, her application
for Oaths as a permanent resident was denied by the District Director
on October 14, 1966. Concurrently with the denial, attorney of record
was advised to have the applicant file an application for status as a
refugee under the proviso to section 203(a) (7) of the Act as amended.
Such an application was submitted on November 23, 1966.
  Section 203(a) (7) of the Immigration and Nationality Act, as
amended, provides, so far as pertinent here:
   Conditional entries shall next be made available by the Attorney General,
pursuant to such regulations as he may prescribe and in a number not to exceed
6 per centum of the number specified in section 201(a) (ii), to aliens who satisfy
an Immigration and Naturalization Service officer at an examination in any
non Communist or non-Communist-dominated country, (A). that (1) because
   -


of persecution or fear of persecution on account of race, religion, or political
opinion they have fled (I) from any Communist or Communist-dominated
country or area, . . . and (ii) are linable nr unwilling to return to snob emu-

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Interim Decision #1722
try or area on account of race, religion, or political opinion, and (iii) are not
nationals of the countries or areas in which their application for conditional
entry is made; . . . Provided, That Immigrant visas in a number not exceeding
one-half the number specified in this paragraph may be made available, in lieu
of conditional entries of a like number, to such aliens who have been continuously physically present in the United States for a period of at least two years
prior to application for adjustment of status.
 The record establishes that the applicant fled from Communist
China with her parents. However, in Matter of Sun. Lit. Dec. No.,



1685, it has been held that an alien who fled from Communist China,
but thereafter became firmly resettled is, by virtue thereof, ineligible
for classification under the proviso to section 203 (a) (7). Thus, it must
also be determined whether such resettlement has been effected in the
present instance.
   In opposition to the District Director's denial of January 26, 1967,
counsel submits that new facts and evidentiary material are set forth
in the applicant's application for refugee status; that her parents,
natives of China, and six brothers and three sisters, born in Hong
Kong, were all documented under the Hong Kong Parolee Program
and subsequently were granted adjustment of status pursuant to the
proviso to section 208(a) (7) and section 245 of the Act, as amended.
  Conned further submits that the applicant was at no time "firmly
resettled" in Hong Kong; that she has never been to Canada nor had
any type of domicile or residence in that country; and that her husband upon completion of his studies in the United States proceeded
to Canada only to further his education and was admittted to that
country in a temporary student status.
  The entire record has been carefully reviewed and considered. One
of the major refugee programs which has been administered by this
Service was that of Chinese refugees in Hong Kong who fled from
the mainland. On May 23, 1062, the President directed steps be
taken to parole into the United States several thousand Chinese from
Hong Kong under section 212(d) (5) of the Immigratioh and Nationality Act to assist in alleviating conditions in that colony caused by
the influx of persons fleeing from Chinese tyranny on the mainland
of China. (Press conference of May 23, 1962, Published Papers of the
President of the United States, John F. Kennedy, 1962, p. 431). In
discussing the use of parole authority, Representative Michael A.
Feigha.n, Chairman of Subcommittee No. 1 of the House Judiciary
Committee, observed "that the conditions of crisis and dire emergency
were present when executive authority was exercised in the case
of ... Chinese refugees in Hong Kong." (Study No. 1, House Judiciary Committee, 1964, page 92; Mr. Feighan's statements in announcing this report. Congressional Record of February 5, 1964, page 1877.)

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                                              Interim Decision #17,22

  The applicant is a. 25-year-old married female, a native of Hong
Kong and according to her passport, a "British subject citizen of the
United Kingdom and colonies", who fled China in 1949 with her parents when the Communists took over their district. She resided in
Hong Kong six or seven years immediately prior, to coming to the
United States in 1960 as a student. In support of counsel's statements
that the applicant's parents, brothers and sisters were admitted to the
United States under the Hong Kong Parolee Program and that their
status subsequently was adjusted to that of permanent residents, the
record evidences that the status of the applicant's father (Yue Hing
Yee SIN, A18 684 413) was so adjusted by the District Director at
San Francisco, March 28, 1966. The applicant was not documented as
a refugee and did not enter the United States under the program
along with her family as she previously had entered as a student.
However, the record evidences that She was registered on the waiting
list of intending immigrants at the American Consulate General,
Hong Hong as of 1952, at which thus, and at the time of her entry into
the United States, she was an unemancipated minor and member of
the household of her parents, whose refugee status has been recognized. It does not appear from the record that the applicant now has
any close family ties or equities in Hong Kong and would be separated
from her parents, brothers and sisters should she have to return to
that country. There is no evidence that she'held any official position in
the Colony or that she otherwise reestablished herself there after fleeing China. Applicant's profession as indicated by her passport is
"Accountant". The applicant has stated under oath to an officer of this
Service that she has never lived in Canada and is unable to obtain a
visa to reside temporarily with her student husband in that country.
   In view of the foregoing, we concluded that the applicant has not
become firmly resettled within the meaning or intent of the
either in Hong Kong or Canada and that, she qualifies for refugee
classification. Her application for adjustment of status was denied
solely because of the District Director's decision that a, visa number
is not immediately available to the applicant. The approval of her
application for refugee classification overcomes that ground. Accordingly, the following orders will be entered. .
  ORDER: It is ordered that the application for• classification as a
refugee under the proviso to section 203 (a) (7) of the Immigration
and Nationality Act, as amended, be approved.
  It is further ordered that the application for status as a permanent
resident pursuant to the proviso to section 203(a) (7) and section 245
of the Immigration and Nationality Act, as amended, be granted.

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