MATTER OF WONG In Deportation Proceedings. A-31222150 Decided by Board January 31, 1977 (1) Respondent born October 14, 1944, was admitted to the United States for permanent residence on April 1, 1973, as the unmarried minor child of a lawful permanent resident on the basis of an Appatittha (ceremonial) adoption which took place in Burma. The Service seeks respondent's deportation under section 241(a)(1) of the Immigration and Nationality Act as an alien excludable at entry under section 212(a)(14) of the Act for lack of a valid labor certification based on the fact that the adoption was not registered so as to be classified as a Kittima adoption (the only adoption now considered valid for immigration purposes) until April 22, 1969, after beneficiary passed the age of 14 years. (2) Notwithstanding that an Appatittha adoption was declared to be invalid for immigration purposes in Matter of Kong, 14 I. & N. Dec. 649 (BIA 1974), the Board will not apply that holding retroactively to aliens who were admitted for lawful permanent residence prior to the date of that decision (March 25, 1974), and the instant deportation proceedings brought against respondent must be terminated. CHARGE: Order: Act of 1952-Section 241(a)(1) (8 U.S. C. 1251(a)(1)]—Excludable at entry under section 212(a)(14); no labor certification ON BEHALF OF RESPONDENT: Thomas N. Saldin, Esquire 4676 Admiralty Way Marina Del Rey, California 90291 BY: Wilson, Acting Chairman; Torrington, Maniatis, and Appleman, Board Members In a decision dated May 23, 1975, the immigration judge found the respondent deportable as charged and granted him the privilege of voluntary departure from the United States in lieu of deportation. The respondent has appealed. The appeal will be sustained, and the proceedings will be terminated. The respondent was born in Burma on October 16, 1944. He was admitted to the United States for permanent residence on April 1, 1973, as the unmarried minor child of a lawful permanent resident on the basis of his adoption in Burma. He was the beneficiary of a visa petition approved by the District Director, and a visa was issued by an American Consular official pursuant to 8 C.F.R. 204. 1(a). On March 25, 1974, almost twelve months after the respondent had been admitted for permanent residence, we rendered our decision in Matter of Kong, 14 I. & N. Dec. 649 (BIA 1974), holding that an Appatittha adoption, which is a ceremonial adoption, cannot be considered a valid adoption for immigration purposes. That holding was reaffirmed in Matter of Chang, 14 I. & N. Dec. 720 (BIA 1974). The Service seeks the respondent's deportation under section 241(a)(1) of the Immigration and Nationality Act by reason of his excludability at entry under section 212(a)(14) of the Act for lack of a labor certification. The sole basis for this charge is that there was no registration of the adoption sufficient to classify it as a Kittima adoption (the only adoption under Burmese law recognized for immigration purposes) until April 22, 1969, well after the respondent turned 14 years of age. There has been no allegation of fraud or misrepresentation on the part of the respondent in obtaining his visas or in entering the United States. As we noted earlier, the respondent was admitted to the United States for permanent residence almost twelve months prior to our decision in Matter of Kong, supra. We have held that the only adoption in Burma under the Burmese Buddhist Law that will be recognized for immigration purposes is the Kittima adoption. However, the respondent was adopted within Burmese law under an Appatittha adoption. See Matter of Kong, supra. The respondent was publicly taken into the home of his adoptive parents in 1947, shortly before his natural mother's death and with her consent. The record indicates that he lived from that time on with his adoptive parents and has been treated and recognized as one of the family. The record also contains a copy of a notarized "Declaration of Adoption" executed on April 22, 1969, by the respondent's adoptive parents. This declaration recites that on August 2, 1947, the respondent's adoptive parents openly declared the adoption of the respondent in the presence of invited guests with the consent of the respondent's natural mother. At the time the respondent was admitted for permanent residence we had not yet had occasion to set forth our view on adoption in Burma. There was, at that time, the plausible legal argument, based on certain of our decisions involving Chinese adoptions, that informal adoptions in Burma were sufficient for immigration purposes. See e.g., Matter of Ng, 14 I. & N. Dec. 135 (BIA 1972); Matter of Kwok, 14 I. & N. Dec. 127 (BIA 1972); Matter of Yue, 12 I. & N. Dec. 747 (BIA 1968). We have since repudiated that view. Matter of Kong, supra. Nevertheless, we are not willing to apply Matter of Kong, supra, retroactively to aliens who were admitted for lawful permanent residence prior to the date of that decision. Under the peculiar circumstances of the present case, the Service has not established that the respondent was excludable at the time of his entry. Consequently, the proceedings must be terminated. The appeal will be sustained, and the proceedings will be terminated. ORDER: The appeal is sustained, and the deportation proceedings are terminated. MATTER OF M/V "BERGEN JUNO" In Fine Proceedings NOL 10/61.611 Decided by Board February 2, 1977 (1) Under section 256 of the Immigration and Nationality Act the carrier has an absolute duty not to pay off or discharge any alien crewman employed on board a vessel or aircraft arriving in the United States without having first obtained the consent of the Attorney General. The only exception to this rule is an alien lawfully admitted for permanent residence. (2) The statute is penal in nature; strict proof of the violation is required; and an essential element in establishing this violation is the termination of the crewman's employment by an affirmative act of the parties responsible for the vessel, or the crewman himself, without prior approval of the Attorney General. (3) Where the crewmen were paid off, and separated from the crew list, and one of the vacated positions on the crew was filled by another crewman, the record sufficiently shows that such an affirmative act occurred; prior approval of the Attorney General was not secured; and imposition of the fine was proper. In re: M/V "BERGEN JUNO"; alien crewmen involved: Ismail Ibraim Juwale and Swapan Das Sarma Basis for Fine: Act of 1952-Section 256 [8 U.S. C. 1286] ON BEHALF OF CARRIER: J. Francois Allain, Esquire Chaffe, McCall, Phillips, Toler & Sarpy New Orleans, Louisiana 70112 BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members This case presents an appeal from a decision of the District Director wherein a fine in the amount of $2,000, mitigated to the minimum sum of $1,000, was imposed upon owners of M/V "Bergen Juno" for violation of section 256 of the Immigration and Nationality Act, as amended. The appeal will be dismissed. The specific violation complained of was the failure of the master of the M/V "Bergen Juno" to obtain the consent of the Attorney General before paying off and discharging two alien crewmen upon arrival at New Orleans on April 14, 1976. The ship sailed foreign on April 15, 1976. On April 16, 1976, the crewmen who had been inspected and granted permission to land temporarily in the United States were located at the International Airport in New Orleans, and each signed a Record of Sworn Statement prior to their departure from the United States at no expense to the United States Government. Each crewman stated that he had been paid off from the M/V "Bergen Juno" on April 14, 1976, without first obtaining the permission of the Attorney General. Furthermore, one of the crewmen, Swapan Das Sarma, also stated "on the same day of the arrival I was discharged by the master of the vessel and paid off" (Form I-215B, dated April 16, 1976). Additionally, the Departing Crew List of the vessel showed the two crewmen as "separated crew," and showed an added crewman as "Chief Engineer," the same capacity in which one of the two crewmen had served. Wallem Shipmanagement, Ltd., who employs the officers and crew of the M/V "Bergen Juno," contends that although the two crewmen were paid their earned wages, the crewmen were still under its employment. The crewmen were repatriated to India solely for vacation purposes; afterwards, both crewmen would be reassigned to the same or other vessels managed by Wallem. Under section 256 of the statute, the carrier has an absolute duty not to pay off or discharge any alien crewman employed on board a vessel or aircraft arriving in the United States, without first having obtained the consent of the Attorney General. The only exception to this rule is an alien lawfully admitted for permanent residence. Inasmuch as the statute we administer is penal in nature, strict proof of a violation is required. We have stated in Matter of Yacht Caribbean Star, 9 I. & N. Dec. 272 (BIA 1961), under section 256 of the Act, "the element essential to establish a violation is the termination of the crewman's employment by an affirmative act of the parties responsible for the vessel or of the crewman himself." The words "pay off" as used in section 256 are words of art which, from accepted practice in the shipping industry, carry a clear intention that a seaman receive his wages upon termination of his employment under the articles of his service on board the particular vessel. United States v. Seaboard Surety Company, 239 F.2d 667 (4 Cir. 1957). On the record before us, we are convinced that there was such affirmative act. The two crewmen were paid off, they were separated from the crew list, and one of the positions vacated was filled by another. We have held, when this occurs without first obtaining the consent of the Attorney General a violation of section 256 is established, Matter of SS Republic, 5 I. & N. Dec. 663 (BIA 1954). We find the imposition of a fine under section 256 to be proper. |