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tor may determine whether the marriage between the petitioner and the beneficiary is bona fide. See Matter of Phillis, Interim Decision 2407 (BIA 1975).

ORDER: The record is remanded to the District Director for further proceedings consistent with the above opinion, and for entry of a new decision.

Warren R. Torrington, Member, Dissenting:

I respectfully dissent.

At the time when Matter of Concepcion, Interim Decision 2529 (BIA September 8, 1976), was before us, I was unable to express my disagreement with the Board's holding, in a dissenting opinion. I now avail myself of the opportunity to do so.

In my view, the language of section 204(c) of the Immigration and Nationality Act is broad enough to encompass the situations encountered in Concepcion and in the case now before us. A person who has not even bothered to go to the trouble of entering into a sham marriage (that is, a marriage entered into for the purposes of evading the immigration laws), but has merely pretended to be married, and has presented false documents as evidence of a marriage, should not, on what appears to me to be specious reasoning, be considered outside the provisions of section 204(c) of the Act. In my view, he is less entitled to approval of a second visa petition than the person who has previously gone through the formalities of a (sham) marriage; and a holding which treats him better than it does a person who has gone through the motions of a sham marriage does not make good sense. Concepcion permits aliens to avoid the clear provisions of section 204(c) of the Act by not even going to the trouble of entering into actual sham marriages. I cannot consider that a commendable outcome.

This is strictly a visa petition matter. The matter of possible future adjustment of the beneficiary's status is not before us. I therefore fail to see the relevance of the references, in the majority opinion, to a possible future application for adjustment of the beneficiary's status, and to the fact that the record does not reveal whether rescission or deportation proceedings are pending.

As I read the Second Circuit's decision in Tibke v. INS, 335 F.2d 42 (2 Cir. 1964), which the majority opinion does not mention, but which was relied on in the here cited decision in Matter of Calilao, Interim Decision 2555 (BIA February 7, 1977), Tibke does not make rescission or deportation proceedings a prerequisite for approval of visa petitions filed for potentially deportable permanent resident aliens. All we have now before us is such a visa petition.

I would overrule Matter of Concepcion, supra, and would dismiss the appeal.

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 (90 Stat. 2703) removed natives of the Western Hemisphere from the "special immigrant" category of aliens described in section 101(a)(27)(A) of the Immigration and Nationality Act, and placed them in the same preference system with aliens from the Eastern Hemisphere. As a result, natives of contiguous countries and adjacent islands referred to in section 244(f)(3) of the Act are no longer "special immigrants" and are categorically ineligible for "special immigrant" visas. Therefore, respondents who are natives of Canada are now eligible to apply for suspension of deportation. See Matter of Piggott, Interim Decision 2329 (BIA 1974).

(2) Record will be remanded to permit mother and children to apply for suspension of deportation. Record will not be remanded with respect to the father because his application for suspension was previously considered and denied for lack of “extreme hardship."

CHARGE:

Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of entry under section 212(a)(20), I. & N. Act (8 U.S.C. 1182(a)(20))— Immigrant alien without immigrant visa (aliens (1), (2), (4), and (5))

ON BEHALF OF RESPONDENTS: Adelbert Clostermann, Esquire

639 Park Haviland Hotel
Portland, Oregon 97205

BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members

On October 15, 1976, we dismissed an appeal from an immigration judge's decision which denied the respondents suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act. The respondents now move for reconsideration. Their motion will be granted and the record will be remanded to the immigration judge.

The respondents, father, mother, and three children are natives and

citizens of Canada. Until statutory changes took effect on January 1, 1977, the Finlaysons, as natives of an independent country of the Western 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 of Piggott, Interim Decision 2329 (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 for 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, 90 Stat. 2703, 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)(3), 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 fact which prevents us from treating Mrs. Finlayson'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, a high school student, lives with her mother.

2 This interpretation of the effect of the 1976 amendments on eligibility requirements of section 244(f)(3) 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.

application for suspension has already been considered and denied for lack of "extreme hardship." See section 244(a)(1).

ORDER: The record is remanded to the immigration judge for further proceedings.

MATTER OF WING'S TEA HOUSE

In Visa Petition Proceedings

A-16008685

Decided by Acting Regional Commissioner March 22, 1977

(1) To be eligible for preference classification under section 203(a)(6) of the Immigration and Nationality Act, the beneficiary must possess all of the qualifications specified by the petitioner on the Job Offer for Alien Employment as of the filing date of the petition which is the date the request for labor certification was accepted for processing by any office within the employment service system of the Department of Labor. See 8 C.F.R. 204.1(c)(2).

(2) Experience acquired subsequent to the filing date of the petition may not be considered in support of the petition because to do so would accord the beneficiary a priority date for the issuance of a visa as of a date when he was not qualified for the preference sought.

(3) Matter of Katigbak, 14 I. & N. Dec. 45 (R. C. 1971), followed.

ON BEHALF OF PETITIONER:

Alfred J. Del Rey, Jr.

515 Madison Avenue

New York, New York 10022

This matter is before me on appeal from the decision of the District Director who on September 7, 1976, denied the petition to classify the beneficiary as a foreign foods specialty cook under section 203(a)(6) of the Immigration and Nationality Act, as amended. The District Director determined the beneficiary lacked the requisite job experience at the time of issuance of the labor certification.

The petitioner's business is that of a Chinese restuarant located in Lexington, Kentucky. The beneficiary is a single native and citizen of China, age 34, and is currently residing in Hong Kong. He entered the United States as a crewman in August 1973 and was later found to be in violation of that status for having remained longer than authorized. In deportation proceedings he was permitted to depart voluntarily from the United States and did so in April 1975.

Forms MA-7-50A, Statement of Qualifications of Alien, and MA-750B, Job Offer for Alien Employment, were signed by the beneficiary and the petitioner, respectively in July 1974 and were filed with the Employment Service office in Lexington, Kentucky, on August 12, 1974.

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