FINLAYSON

                                                             Interim Decision #2569




                             MATTER OF FINLAYSON

                            In Deportation Proceedings
                                       A-19791900
                                       A-19791901
                                       A-19791902
                                       A-19791903
                                       A-19791904

                        Decided by Board March 22,1977
(a) Section 7 of P.L. 94-571 (

) removed natives of the Western Hemispher
  from the "special immigrant" category of aliens described in section 101(a)(27)(A) of th
  Immigration and Nationality Act, and placed them in the same preference system wit'
  aliens from the Eastern Hemisphere. As a result, natives of contiguous countries an
  adjacent islands referred to in section 244(f)(3) of the Act are no longer "specu
  immigrants" and are categorically ineligible for "special immigrant" visas. Therefore
  respondents who are natives of Canada are now eligible to apply for suspension c
  deportation. See Matter ofPiggott, Interim Decision 2329 (BIA 1974).
(2) Record will be remanded to permit mother and children to apply for suspension c
  deportation. Record will not be remanded with respect to the father because hi
  application for suspension was previously considered and denied for lack of "extrem
  hardship."
CHARGE:
  Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1261(aXD]—Excludable at time of entr,
                      under section 2l2<aK20). I. 4 N. Act (8 U.S.C. 1182(aX20))-
                      fimmigrant alien without immigrant visa (aliens (I), (2), (4), and (5))

ON BEHALF OF RESPONDENTS: Adalbert Clostermann, Esquire
                          639 Park Havliand Hotel
                          Portland. Oregon 97206
BY: Hilhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members


  On October 15, 1976, we dismissed an appeal from an inunigratioi
judge's decision which denied the respondents suspension of deportatioi
under section 244(a)(1) of the Immigration and Nationality Act. Th<
respondents now move for reconsideration. Their motion will be grantee
and the record will be remanded to the immigration judge.
  The respondents, father, mother, and three children are natives ant

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Interim Decision #2569

citizens of Canada. Until statutory changes took effect on January 1,
1977, the Finlaysons, as natives of an independent country of the Westem Hemisphere, were designated "special immigrants." See section
101(a)(27). Although "special immigrants" are generally eligible to apply
for suspension of deportation, an exception exists with regard to "special immigrants" who are natives of any country contiguous to the
United States or any adjacent island named in section 101(b)(5). This
exception, which is set out in section 244(f)(3), bars from eligibility for
suspension, all natives Of contiguous countries or adjacent islands who
are eligible for "special immigrant" visas. An obvious corollary is that
only those natives of contiguous countries and adjacent islands who can
establish their ineligibility for "special immigrant" visas may apply for
relief under section 244(a). See Matter ofPiggott, Interim Decision 2829
(BIA 1974). In light of these restrictions on suspension, we concluded
that (1) Mr. Finlayson was eligible to apply since he had established his
ineligibility for a "special immigrant" visa on the basis of criminal
convictions, but that (2) Mrs. Finlayson and the three children could not
be considered since they had not established their ineligibility for "special immigrant" visas.1
   Congress has recently enacted amendments to the Immigration and
Nationality Act which call for a modification of our earlier conclusions.
The new legislation, which seeks to equalize the treatment accorded to
the Eastern and Western Hemispheres tor immigration purposes, removes natives of independent countries of the Western Hemisphere
from the "special immigrant" category of section 101(a)(27) and places
them in the same preference system with aliens from the Eastern
Hemisphere. See Section 7 of P.L. 94-571, 

, enacted
October 20, 1976, and effective January 1,1977. As a result, natives of
contiguous countries and adjacent islands, referred to in section
244(f)(8), are no longer "special immigrants" and are now categorically
ineligible for "special immigrant" visas. Hence, they are now eligible to
apply for suspension of deportation.2
  Hence, we shall remand the case to the immigration judge to enable
Mrs. Finlayson and the three children to reapply for relief under section
244(a). Our decision is not modified with regard to Mr. Finlayson as his

   1
     Mr. and Mrs. Finlayson are divorced, a met which prevents us from treating Mrs.
Fin lay son's application as that of an accompanying spouse. Moreover, all of the children
are old enough to have their applications considered separately. The oldest son has
reached his majority and both boys live apart from their parents and are apparently selfsupporting. The daughter, s high school student, lives with her mother.
   2
     This interpretation of the effect of the 1976 amendments on eligibility requirements of
section 344(fX3) is consistent with that formulated by the Commissioner of the Immigration and Naturalization Service in a memorandum from the Commissioner to all Regional
Commissioners, dated December 29,1976.

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                                             Interim Decision #256!
application for suspension has already been considered and denied foi
lack of "extreme hardship." See section 244(a)(1).
   ORDER: The record is remanded to the immigration judge foi
further proceedings.




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