TISZAI

                                                      Interim Decision #1785




                                MATTER OF 'TISZA!

                        In Visa Petition Proceedings
                                    A-14570254
                    Decided by Board August 81, 1967
Since beneficiary, who was born in Mexico at a time when her father was a
  diplomatic officer representing the Japanese government in that country, is a
  "special immigrant" as defined in section 101(a) (27)(A), Immigration and
  Nationality Act, as amended, anti Is not chargeable to any quota or subject to
  any numerical restriction affecting the issuance of a visa to her, a visa petition
  filed by her husband to accord her preference classification under section
  208(a) (2) of the Act is denied.
Os BEHALF or PETITIONER Hiram W. Kwan, Esquire
                            :


                                1011 N. Broadway, Suite 203
                                Los Angeles, California 90012
                                (Brief filed)

   The District Director at Los Angeles, California, has denied the
petition of the appellant to classify status of his wife under section
208 (a) (2) of the Immigration and Nationality Act. From that decision the petitioner through counsel has appealed to this Board.
  The beneficiary was born in Mexico City, Mexico, at a time when
her parents were living in Mexico, and when her father was representing the Japanese Government as a diplomatic officer. Her birth took
place on the Japanese Embassy grounds in Mexico City, Mexico. It is
the contention of the appellant that because of the above circumstances
of birth, the beneficiary is properly chargeable to the Japanese quota
and hence requires, and is entitled to, status under section 208(a) (2)
as the spouse of a legal resident of the United States. Appellant bases
her contention on the provisions of section 202(b) (4) and 22 CFR
42.54. It is counsel's position that these sections fail to state or even to
imply that the country of birth of the alien has to be a country outside
the Western Hemisphere. He further contends that the clear intention
of the above stated sections is to be applied uniformly regardless of
where the person is born. The appeal will be dismissed.
  Section 202(b) (4) states in pertinent part: "For the purposes of
this Act the foreign state to which an immigrant is chargeable shall
be determined by birth within such foreign state except that . . . .
(4) an alien born within any foreign state in which neither of his
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Interim Decision #1785
parents was born and in which neither of his parents had a residence
at the time of such alien's birth may be charged to the foreign state of
either parent." [Emphasis supplied] Paragraph (4) is then one of four
exceptions to the method described in part (b) of section 202 for ascertaining quota chargeability. Section 202 in general speaks of quotas
and numerical limitations set forth in order to control the issuance of
visas for persons chargeable to quota countries.
   Counsel for appellant contends that 22 CFR 42.54 relates to and
supports his argument. Section 42.54 states:
  Exception for alien born in foreign state of which neither of his parents was a
resident. An alien who was born in a foreign state in which neither of his parents
was born, and in which neither of his parents had a residence at the time of his
birth, may be charged to the foreign state of either parent as provided in section
202(b) (4) of the Act, the parents of such an alien shall not be considered as
having acquired a residence within the meaning of section 202(b) (4), if at the
time of such alien's birth within the foreign state they were merely visiting
temporarily or were stationed there under orders or instructions of an employer,
principal or superior authority foreign to such foreign state in connection
with the business or profession of the employer, principal or superior authority.
   Under 22 CFR the particular section referred to comes under the
heading of "FOREIGN STATE CHARGEABILITY", and is obviously relevant only to persons who are chargeable to a quota. We see
no reason to apply it to the present case where the beneficiary is not
chargeable to any quota by reason of the fact that she was born in
Mexico City, Mexico. We hold that under section 101(a) (27) of the
Immigration and Nationality Act the beneficiary is a "special immigrant". She is a native of a country of the Western Hemisphere and
hence is not chargeable to any quota or subject to any numerical restriction affecting the issuance of a visa to her. No preference then is
needed far the issuance of such a visa. Quite obviously, the intention
of section 101(a) (27) of 611e Act was to assist native born persons of
independent countries in the Western Hemisphere to immigrate to the
United States. For this Board. to now hold that a person such as the
beneficiary, born under such circumstances, is required to await the
allocation of a number to her, would result in an injustice to others in
similar situations and would be, in effect, a. distortion of the clear intent of Congress in its legislative processes. We hold that the appellant's spouse is a special immigrant and needs no preference in order to
secure an immigrant visa. In this particular case it may well be that our
ruling will deprive the appellant's wife of the benefits of section 245
of the Immigration and Nationality Act. This, however, is but a slight
burden compared with the absurd effect that our ruling to the contrary would have. Accordingly, the following order will be entered.
   ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
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