Interim Decision #2325
MATTER OF BRAND! *
In Deportation Proceedings
A-20324237
A-20324239.
Decided by Board September 17, 1974
(1) Respondents, natives and citizens of Mexico are parents of two United States citizen
children. They are not ineligible foi special immigrant visas under any of the provisions
of section 212 of the Immigration and Nationality Act. They are not eligible for
suspension of deportation under section 244(a)(1) of the Act, as persons who. are
ineligible to obtain a nonquota immigrant visa merely because visas are not immediately
available.
(2) The legislative history of the Act shows that within the context of section 244(0(3) of
the Act the term "non-quota immigrant' and "special immigrant" are synonymous.
CHARGE:
Order: Act of 1952 — Section 241(a)(2) [8 U.S.C. 1251(a)(2)] —Nonimmigrant visitors,
remained longer than permitted.
ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE:
Joseph S. He rtogs, Esquire Paul C. Vincent, Esquire
Jackson & H•rtogs Appellate Trial Attorney
580 Washington Street
San Francisco, California 94111
This is an appeal from an order of an immigration judge, finding the
respondents deportable on the above-stated charge, denying their applications for suspension of deportation under section 244(a)(1) of the
Immigration and Nationality Act, but granting them voluntary departure. The appeal will be dismissed.
The respondents are husband and wife, both 30 years of age. They are
aliens, natives and citizens of Mexico, who entered the United States at
Los Angeles, California on or about June 17, 1965 as nonimmigrant
visitors for a temporary period. Thereafter, they were authorized to
remain until August 20, 1966. They failed to depart within the time
specified.
They admitted the truth of the factual allegations in their respective
orders to show cause and conceded deportability. We find that deportability has been established by evidence which is clear, convincing and
unequivocal.
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Interim Decision #2325
To be eligible for suspension of deportation under section 244(a)(1) of
the Act, the respondents must establish, inter alia: (1) physical presence
in the'United States for a continuous period of not less than seven years
immediately preceding the date of application; (2) good moral character
during all that period; and (3) extreme hardship to the respondents or
other specified family members, which would result from deporta.tion -.
Under section 244(0(3) of the Act, the provisions of section 244(a)
shall not be applicable to an alien who is a native of any country
contiguous to the United States or of any adjacent island named in
section 101(b)(5): Provided, That the Attorney General may in his dis-
. eretion agree to the granting of suspension of deportation if the alien
establisheeto the satisfaction of the Attorney General that he is ineligible to obtain a nonquota immigrant visa, Mt- of October 24, 1962 (76
Stat. 1247).
. We agree with the conclusion of the immigration judge that the
respondents are not eligible for suspension of deportation since they did
not establish that they were ineligible to obtain special immigrant visas
as required under section 244(f)(3) for natives of a' country contiguous to
the United States. As parents of United.States citizen children, they are
exempt from the labor certification requirements of section 212(a)(14) of
the Act. The various grounds of ineligibility for immigrant visas are set
out in the separate paragraphs, (1) through (31), of section 212(a) of the
Act. There is no evidence in this record to demonstrate that these
respondents are ineligible under any of the aforesaid paragraphs. The
contention that the respondents are ineligible for special immigrant
visas because visas are unavailable at the present time and will be
unavailable for a substantial period of time was rejected by us in Matter
of Najar,
13 I. & N. Dec. 737 (BIA 1971). In that case we stated:
". . . We concur with the special'inquiry officer's opinion that the nonavailability of an
immigrant quota number under the Western Hemisphere, and the need to wait some
fourteen months for the assignment of a number, is an element of extreme hardship and
is to be distinguished from the matter of being ineligible to obtain an immigrant visa."
Relying' on Matter of Najar, we concur with the immigration judge's
decision that the respondents are not eligible for suspension of deportation under 'section 244(a)(1) of the Act.
Counsel contends that on the basis of our unreported decision in
Matter of Ka Mei Lam, A44702549 (BIA' December 13, 1973), we
should sustain his position that the respondents are ineligible for immigrant visas within the 'meaning of the proviso to section 244(0(3) of the
Act. We do not agree. Although in Matter of Ka Mei Lam, supra, we
found the alien ineligible for a visa, that conclusion was grounded on the
fact that the alien was a citizen of who had failed to establish her
birth in Mexico;
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Interim Decision *2325
The main objection raised by counsel is that the proviso to section
244(f)(3) of the Act pertains, as specified by the language, to ineligibility
to obtain a nonquota immigrant visa and not to ineligibility to obtain a
special immigrant visa as indicated in a footnote in the publication of the
Immigration and 'Nationality Act, printed for the use of the Committee
on the Judiciary, House of Representatives.
Under section 101(a)(27) of the Immigration and Nationality Act,
approved June 27, 1952, provision is made for the admission without a
quota charge of an immigrant who is a native of an independent Western
Hemisphere country, 'U.S. Code Cong. & Adm. News, 82d Cong., 2d
Sess. (1952), p. 1692.. The term "nonquota immigrant" was defined to
mean, inter elia: "(C) an immigrant who was born in Canada, the
Republic of Mexico, the Republic of Cuba, the Republic of Haiti, the
Dominican Republic, the Canal Zone, or an independent country of
Central or South America, and the spouse or the child of any such
immigrant, if accompanying or following to join him. PS
By the Act of October 3, 1965 (70 Stat. 911) the definition of "special
immigrant" was substituted for the definition of "nonquota immigrant."
Section 101(a)(27) of the Act now defines "special immigrant" to mean,
inter alia: "(A) an immigrant who was born in any independent foreign
country of the Western Hemisphere or in the Canal Zone and the spouse
and children of any such immigrant, if accompanying, or following to
join him: Provided, That no immigrant visa shall be issued pursuant to
this clause until the consular officer is in receipt of a determination made
by the Secretary of Labor pursuant to the provisions of section 212
(a)(14)." By section 21(e) of the Act of October 3, 1965 (
79 Stat. 911),
provision was made for a numerical limitation of 120,000 annually on
special immigrants within the meaning of section 101(a)(27)(A), exclusive of special immigrants who are immediate relatives of the United
States beginning July 1, 1968 unless the Congress enacted legislation
providing otherwise prior to that date. See U.S. Code Cong. & Adm.
News, 89th Cong., 1st Sess. (1965), p. 3344.
- After careful analysis of the statutory changes made to section 101
(a)(27) of the Act, we are convinced that it was the intent of Congress to
substitute the term "special immigrant" for the term "nonquota immigrant," since the quota limitation for special immigrants was to begin in
1968 and then only if no legislation was enacted by the Congress prior
thereto. The failure on the part of Congress to change the language in
the proviso to section 244(f)(3) of the Act from "nonquota immigrant" to
"special immigrant" when the Western Hemisphere quota limitations
took effect in 1968 did not in any way alter the Congressional intent with
respect to aliens from Western Hemisphere countries. Our decisions
interpreting section 244(f)(3) indicate that within the context of this
section "nonquota immigrant" and "special immigrant" are synonymous.
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Interim Decision #2325
See Matter of Najar, supra; Matter of Longsworth, 13 I. & N. Dee. 225
(BIA. 1969); Matter of Valesquez-Hernandez, 11 I. & N. Dec. 781 (BIA
1966); Matter of Padilla-Munoz,
11 I. & N. Dec. 836 (BIA 1966); and
Matter of Reeves,
11 I. & N. Dec. 618 (BIA 1966).
We are satisfied that the respondents have not established that the
relief of suspension of deportation under section 244(a)(1) of the Act is
available to them. Voluntary departure is the only discretionary relief
for which the respondents are eligible and they were afforded this relief.
Since execution of the immigration judge's order has been stayed during
the pendency of this appeal, we will provide for voluntary departure for
the respondents in accordance with the time fixed in the order.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondents are 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 in the event of
failure so to depart, the respondents shall be deported as provided in the
immigration judge's order.
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