the time of his father's marriage to the beneficiary's mother, the petitioner did not become the stepchild of the beneficiary's mother. He conceded that the beneficiary, five years old at the time of the marriage, became the stepchild of the petitioner's father within the meaning of the Act. Counsel for the petitioner argues on appeal that, under the Board's decision in Matter of Heung, supra, the beneficiary qualifies as the petitioner's stepbrother, notwithstanding the fact that the marriage creating the steprelationship occurred when the petitioner was over 21 years of age. We agree. In Heung, the petitioner was 22 years old when his mother married the beneficiary's father. We held there that the beneficiary became the stepchild of the petitioner's mother and that the petitioner and the beneficiary therefore had a common "parent" and were "children" within the meaning of section 101(b)(1) and (2) of the Act. The District Director cites Matter of Garner, supra, in support of his decision. In Garner, the Board held that, because the beneficiary was over 18 at the time of the marriage between her mother and the petitioner's father, no steprelationship was created under the Act. Unlike the beneficiary in Garner, the beneficiary in the present case was five years old when his mother married the petitioner's father. Under the Board's decision in Matter of Heung, supra, the petitioner and beneficiary are "brothers" for the purposes of section 203(a)(5) of the Act. Accordingly, the appeal will be sustained and the petition will be granted. ORDER: The appeal is sustained; the visa petition is granted. MATTER OF WOLF In Deportation Proceedings A-20535964 Decided by Board March 2, 1977 (1) Respondent conceded deportability under section 241(a)(2) of the Immigration and Nationality Act as a nonimmigrant who remained beyond the authorized period of admission. The only issue on appeal involves respondent's application for adjustment of status under section 245 of the Immigration and Nationality Act which was opposed by the Service on the ground that respondent was inadmissible to the United States under section 212(a)(23) of the Act by reason of his conviction in England for illicit possession of marihuana. (2) Respondent was convicted of having a dangerous drug, cannabis resin, in his possession without being duly authorized, in violation of Regulation 3, Dangerous Drugs (No. 2) Regulations 1964, and Section 12 Dangerous Drugs Act of 1965, a statute which makes lack of knowledge that a prohibited substance is in one's possession irrelevant to the offense. See Lennon v. INS, 527 F.2d 187 (2 Cir. 1975). (3) Since Congress did not intend to impose the harsh consequences of exclusion upon an individual convicted of possession of drugs under a foreign law that made guilty knowledge irrelevant to the offense, the decision of the immigration judge granting respondent's section 245 application was correct. CHARGE: Order: Act of 1952-Section 241(a)(2) (8 U.S.C. 1251(a)(2)]—Nonimmigrant-remained longer ON BEHALF OF RESPONDENT: Dennis M. Mokai, Esquire 5680 Wilshire Boulevard, Suite 1800 BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members In a decision dated February 18, 1976, after finding the respondent deportable as charged, the immigration judge ordered that the respondent's application for adjustment of status under section 245 of the Immigration and Nationality Act be granted subject to the condition that no derogatory information be revealed in the administrative processing of the application. The Service has appealed from that decision. The appeal will be dismissed. The respondent, a native and citizen of Great Britian, admitted the truth of the allegations contained in the Order to Show Cause and has conceded deportability under section 241(a)(2) of the Act as a nonimmigrant who remained beyond the authorized period of admission. The only issue on appeal involves the respondent's application for adjustment of status under section 245 of the Act. The immigration judge found that the respondent was statutorily eligible for section 245 relief and merited a favorable exercise of discretion. The Service, however, opposed the grant on the ground that the respondent is inadmissible to the United States under section 212(a)(23) of the Act by reason of a conviction in England for the illicit possession of marihuana. The respondent admits that he was in fact convicted of illicit possession of marihuana. The immigration judge, however, concluded that the conviction involved in the present case did not subject the respondent to the exclusion provisions of the Act. In so holding, the immigration judge relied on the decision of the United States Court of Appeals for the Second Circuit in Lennon v. INS,527 F.2d 187 (2 Cir. 1975). In Lennon the court held, as did we in Matter of Lennon, Interim Decision 2304 (BIA 1974), rev'd, Lennon v. INS, supra, that Congress did not intend to impose the harsh consequences of exclusion upon an individual convicted of possession of drugs under a foreign law that made guilty knowledge irrelevant. However, in its analysis of the British statute involved, the court reached a conclusion different from ours: it held that the particular statute imposed absolute liability for unauthorized possession of drugs, and it vacated the order of deportation. The record of conviction in the present case indicates that the respondent was convicted of having a dangerous drug, cannabis resin, in his possession without being duly authorized in violation of Regulation 3, Dangerous Drugs (No. 2) Regulations 1964, and Section 12 Dangerous Drugs Act 1965, the statutory provisions involved in the Lennon case (Ex. 3). We have decided to follow the Second Circuit's interpretation of the statute involved, specifically, that lack of knowledge that a prohibited substance is in one's possession is irrelevant to the offense as set out in the British statute. In so holding, we note that, after the Notice of Appeal was filed in the present case, the Service decided to adopt the court's decision in Lennon with respect to convictions for "innocent" possession under the United Kingdom's Dangerous Drugs Act of 1965. See Memorandum to Regional Commissioners from Deputy Commissioner, October 29, 1976. We conclude that the immigration judge's decision granting the application for adjustment of status under section 245 of the Act was correct. Accordingly, the appeal will be dismissed. ORDER: The appeal is dismissed. MATTER OF BATERINA In Deportation Proceedings A-19863283 Decided by Board March 3, 1977 (1) The immigration judge has the authority to make an independent determination as to whether an alien is subject to the foreign residence requirement of section 212(e) of the Immigration and Nationality Act. (2) Even though the regulations governing the applicability of the Skills List (22 C.F.R. 41.65(b)) provide that aliens granted exchange-visitor visas after its effective date (April 25, 1972) shall not be subject to it, and alien reinstated in exchange-visitor status after April 25, 1972, is subject to the Skills List in the same manner as an alien obtaining an exchange-visitor visa for the first time after that date. (3) Proceeding remanded to the immigration judge for a determination of whether the respondent is subject to the foreign residence requirement as a registered nurse trained in a recognized nursing specialty. CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant-remained longer ON BEHALF OF RESPONDENT: William B. Howell, Esquire 1200 Wilshire Boulevard Los Angeles, California 90017 BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members In a decision dated June 1, 1976, an immigration judge denied the respondent's motion to reopen her deportation proceedings so that she could apply for adjustment of status under section 245 of the Immigration and Nationality Act. The respondent has appealed from that decision. The record will be remanded. The respondent is a 29-year-old female, native and citizen of the Philippines. She was admitted into the United States on July 27, 1971, as a nonimmigrant exchange visitor under section 101(a)(15)(J) of the Act to participate in a nurse training program sponsored by Methodist Hospital, Houston, Texas. The record reflects that she was reinstated to exchange-visitor status on March 13, 1974, with extension of time until August 24, 1974. Her subsequent application to change her status to that of temporary worker was evidently denied by the District Director; the record contains a letter from the Regional Commissioner dated June 26, 1975, affirming this denial. The reason for denial was that she was within the category of exchange visitors who are ineligible for adjustment until they have completed the two-year foreign residence requirement under section 212(e) of the Act. On September 17, 1975, the respondent was found deportable under section 241(a)(2) of the Act as an overstayed nonimmigrant and was granted the privilege of voluntary departure. The respondent subsequently applied for adjustment of status and moved to reopen the deportation proceedings for consideration of her application. The immigration judge ruled that he was bound by the District Director's finding that she was subject to the foreign residence requirement. He also stated that he was without jurisdiction to determine whether she was entitled to a waiver of the residence requirement. Prior to 1970, all aliens who were admitted into the United States as exchange visitors were ineligible to apply for an immigrant visa, permanent residence, or for a nonimmigrant (temporary worker) visa unless they had been physically present for at least two years in their country of nationality or last residence following the expiration of their stay. Waivers of the foreign residence requirement were permitted in the case of aliens who established that fulfillment of that requirement would cause extreme hardship or was not in the public interest. The subsequent amendment of section 212(e) in 1970 effectively removed the foreign residence requirement for all exchange visitors except those who (1) participated in programs financed either in whole or in part by their country or the United States, or (2) are trained in an occupation whose skills are required by their country. These exchange visitors may still apply for a personal hardship or public interest waiver. The Department of State is charged with identifying and publishing a list of Government-financed programs and of special skills needed by individual countries. Section 212(e) of the Act. See generally S. Rep. No. 851, 91st Cong., 2d Sess., 7. The respondent contends on appeal (1) that the immigration judge has the authority to review a decision by the District Director that an alien belongs to either category of exchange visitors; (2) that she is not subject to the Skills List, 22 C. F. R. 41.65(b), because she was admitted to the United States before its effective date; and (3) that, even if she is subject to it, she is not "trained in a recognized nursing specialty" and is therefore not a person whose skills are needed by her native country. The immigration judge refused to consider evidence submitted by the respondent because of the District Director's prior determination that she was subject to the foreign residence requirement. We believe that he does have the authority to make an independent determination of this |