KHAN

Interim Decision #Z146




                             MATTER OF KHAN

                        In Deportation Proceedings

                                   A-30593139

                     Decided by Board April 17, 1972
Respondent, who was admitted in possession of an immigrant visa issued to him
  as an alien child "accompanying or following to join" his father but who
  preceded his father, the principal alien, to the United States, was not an
  "accompanying" alien within the meaning of section 203(a)(9) of the Immigration and Nationality Act, as amended; further, his immigrant status, which
  was contingent upon the continuing immigrant status of his father, was
  terminated upon the father's death prior to respondent's admission, notwithstanding he lacked knowledge of such death and notwithstanding the approval of the father's visa petition had not been revoked. Hence, respondent is
  deportable because he was not of the status specified in his visa and was not
 in possession of a valid immigrant visa at entry.
CHARGES:
 Order: Aot of 1959—Reetion 241 (O(1 ) f8 U.S.C. 1251 (aX1)]---Excludable at time of
                         entry—not of status specified in immigrant visa under
                         section 203(a)(9) [8 U.S.C. 1153(aX9)]
                      Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of
                         entry (section 212(a)(20))—Immigrant, not in possession
                         of a valid immigrant visa
ON BEHALF OF RESPONDENT:                          ON BEHALF OF SERVICE:
 David Carliner, Esquire                            Irving A. Appleman
 Pennsylvania Building                              Appellate Trial Attorney
 Washington, D.C. 20004
 A. W. Hargreaves, Esquire
 30 Hotaling Place
 San Francisco, California 94111
 (Counsel of record)


  This is an appeal from a decision of a special inquiry officer
dated October 29, 1971, finding the respondent deportable on the
charges in the order to show cause. He was granted voluntary
departure. The appeal will be dismissed.
  The respondent, his father and a brother, all natives and
citizens of Pakistan, obtained immigrant visas from the American
Consulate General at Lahore, Pakistan un January 29, 1971.
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                                            Interim Decision #2143
Respondent's father obtained an immigrant visa.(P5-1) under the
provisions of section 203(a)(5) of the Immigration and Nationality
Act as the brother of a United States citizen. Respondent and his
brother obtained immigrant visas (P5-3's) under the provisions of
section 203(a)(9) of the Act as alien children accompanying or
following to join a parent who had been issued a fifth preference
immigrant visa. Respondent's father and his brother were issued
visas valid for four months but respondent was issued a visa valid
for only one month because he was eligible to enter the United
States only if he arrived on or before March 8, 1971, his twentyfirst birthday. He left Pakistan on February 26, 1971 and was
admitted to the United States as a permanent resident at New
York, New York on March 1, 1971. He was then in possession of
the P5-3 immigrant visa. His father had died in Pakistan on
February 9, 1971 and respondent did not know of the death until
after his admission to the United States.
  Counsel for respondent contends that because the father's visa
petition had not been revoked, the immigrant visa which respondent presented was valid for admission to the United States.
Counsel also contended that the word "accompanying" in section
203(a)(9) of the Act should be given an elastic definition to cover a
relative preceding the principal alien to the United States.
  Paragraph (9) of section 203(a) provides that "A spouse or child
as defined in section 101(b)(1)(A), (B), (C). (D), or (E) shall. if not
otherwise entitled to an immigrant status and the immediate
issuance of a visa or to conditional entry under paragraphs (1)
through (8), be entitled to the same status, and the same order of
consideration provided in subsection (b), if accompanying, or following to join, his spouse or parent." (Emphasis added.) The State
Department regulation, 22 CFR 42.1, defines "accompanying" or
"accompanied by" as meaning an alien in the physical company of
a principal alien, and concludes with this significant statement:
"An accompanying relative may not precede the principal alien to
the United States."
  A definition of "accompany" is not included in the Act, but we
observe that among the meanings attributed to the word in
Webster's New International Dictionary, 2d. edition are "to go
along with," and "to go with or attend as a companion or associate." There is an explanation that the word implies the idea of
going with someone or companionship. We conclude that the
statutory language of section 203(a)(9) is not susceptible of the
elastic construction urged by counsel. Respondent was not accompanying or following to join his father at the time he arrived in the
United States and his immigrant visa was not valid for admission.
His lack of knowledge of his father's death is not relevant.

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Interim Decision #2143
   Another issue that arises is the effect of the father's death on
respondent's immigrant status. The issuance of an immigrant visa
to a spouse or child under section 203(aX9) is dependent upon the
existence of the immigrant status of the principal alien. Thus, the
validity of respondent's immigrant visa depended on the continued
immigrant status of his father, the principal alien. Death terminated the father's immigrant status and thereby stripped respondent of his status.
  There is no dispute as to the basic facts in this matter. It is our
conclusion that respondent did not have the status specified in hii
immigrant visa and was not in possession of a valid immigrant
visa at the time of his entry. The special inquiry officer correctly
found him deportable on both charges by evidence which is clear,
convincing and unequivocal. Accordingly, the following order will
be entered.
  ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
  It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this
order or any extension beyond that time as may be granted by the
District Director; and that, in the event of failure so to depart, the
respondent shall be deported as provided in the special inquiry
officer's order.




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