Interim Decision #2198
MATTER OF DONOSO
In Visa Petition Proceedings
A-19368215
A-19368216
A-19368217
Decided by Board April 27, 1973
The preference classifications of section 203(a) of the Immigration and Nationality Act, as amended, are not available to a native of an independent country of
the Western Hemisphere. Hence, beneficiaries, who were born in Ecuador, are
ineligible for preference classification under section 203(a)(2) of the Act as the
unmarried children of the lawful permanent resident petitioner.
The lawful permanent resident petitioner filed applications to
classify the status of the beneficiaries as his unmarried children
under section 203(a)(2) of the Immigration and Nationality Act.
The District Director denied the applications because the beneficiaries, who were all born in Ecuador, are natives of the Western
Hemisphere and, consequently, not eligible for any preference
under the Immigration. and Nationality Act. The petitioner appealed. His appeal will be dismissed.
The preference categories established under section 203(a) of the
Act are available to' aliens who are subject to the numerical
limitations system specified in section 201(a) of the Act. Section
201(a) specifically excludes "special immigrants" from its scope.
According to section 101(aX27XA), persons born in an independent
foreign country of the Western Hemisphere are "special inimigrants." Because of their birth in Ecuador, an independent country of the Western Hemisphere, there is no preference category
available to the beneficiaries. Hence, the District Director's decision was correct.
Even though , we must dismiss the petitioner's appeal, we feel we
should point out that there are two possible courses of action that
may be open to him. First, if he were to become naturalized, he
could bring his unmarried children under the age of 21 years into
the •United States as his "immediate relatives" under seetion
201(b) of the Act. Immediate relatives who are otherwise qualified
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Interim Decision #2198
are admitted without regard to numerical limitations. We mention
this possibility inasmuch as the record indicates that the petitioner was admitted as an immigrant in 1967, and the residence
requirement for naturalization contained in section 316(aX1) of the
Act is five years. Second, the petitioner could apply for special
immigrant visas for his children. This would establish a priority
date for them under the Western Hemisphere annual limitation of
120,000. Pursuant to section 21(e) of the Act of October 3, 1965 (P.L.
89-236,
79 Stat. 920
), a special annual ceiling was established for
Western Hemisphere special immigrants (other than those who
qualify as immediate relatives under section 201(b)).. There are no
preference classes within the Western Hemisphere quota, and
Western Hemisphere special immigrants will be considered for
entry, without priority, on a first -come, first served basis.
-
Petitioner's notice of appeal contains the contention that the
District Director's decision was discriminatory. We regard this as
an attack on the constitutionality of the statutory arrangement
under which natives of independent countries of the Western
Hemisphere do not come within the scope of the preference system
set forth in section 203(a), but come under the Western Hemisphere annual ceiling as special immigrants instead. In Mcitter of
Santana,
13 I. & N. Dec. 362
(BIA, 1969), we rejected a similar
argument. We held in the Santana case that Congress has the
absolute Sand unqualified power to prescribe the conditions under
which an alien may enter the United States. We also reiterated
the conclusion that we lack power to pass upon the validity of the
statutes we administer:
Therefore, despite the sympathetic aspects of this case, we have
no alternative but to uphold the District Director's decision and
dismiss the appeal. The following order will accordingly be entered.
ORDER: The appeal is dismissed.
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