passage of the bill incorporating section 212(a)(27) considered that subsection as one relating to subversives. S. Rept. No. 1137, 82d Cong., 2d Sess. 10 (1952); H.R. Rept. No. 1365, 82d Cong., 2d Sess. (1952). We have previously stated that the language of this subsection is broad enough to apply to others than subversives, Matter of M—, 5 I. & N. Dec. 248, 253 (BIA 1953), but we have held that it is not meant to exclude pacifists, id. or aliens who have conspired with others in assisting other aliens to enter the United States unlawfully, Matter of Zamora, A-10550431, unreported (BIA March 11, 1958). In Zamora we stated that section 212(a)(27) was designed to exclude aliens who seek to enter solely, principally, or incidentally to engage in activities inimical to the internal security of the United States. We still hold that view. While the importation for personal use of several marijuana cigarettes may be prohibited by law, it is not an activity which is inimical to the internal security of the United States. The applicants were held in exclusion proceedings because several marijuana cigarettes had been found in their possession. The provision for excluding aliens on account of activity involving narcotics and marijuana is section 212(a)(23). The immigration judge correctly found that the possession of a few cigarettes for personal use did not bring the applicants within the subsection of the Immigration and Nationality Act. Under the circumstances of these cases section 212(a)(27) is inapposite. ORDER: The appeal of the female applicant is sustained and the decision of the immigration judge in the case of the male applicant is reversed. MATTER OF LUI In Deportation Proceedings A-19036861 Decided by Board March 13, 1975 In order for an alien to qualify for exemption from the labor certification requirement of section 212(a)(14) of the Immigration and Nationality Act as an investor under 8 CFR 212.8(b)(4), he must be actively in the process of investing at least $10,000 in a business. Conditional intent to make the investment is not sufficient under the regulation. The record is remanded to the immigration judge for further proceedings to permit respondent opportunity to further document his claim. CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]Nonimmigrant, remained longer. ON BEHALF OF RESPONDENT: Elmer E. Poston, Esquire 770 Kapiolani Blvd. Honolulu, Hawaii 96813 ON BEHALF OF SERVICE David L. Milhollan The alien respondent has appealed from the September 29, 1972 decision of an immigration judge in which the respondent was found deportable, was denied adjustment of status under section 245 of the Immigration and Nationality Act, and was granted the privilege of voluntary departure. The record will be remanded for further proceedings. At the hearing below, counsel for the respondent attacked the manner in which these proceedings were instituted. However, as was acknowledged by counsel at oral argument, and as was set forth in the acting trial attorney's brief, the Service complied with the pertinent regulations in serving the order to show cause on the respondent. The respondent has not been denied due process. The respondent is a native and citizen of Tonga. He has conceded deportability as a nonimmigrant visitor who has remained beyond the authorized length of his stay, and the only issues on appeal involve his application for section 245 relief. The respondent is seeking adjustment of status as a nonpreference immigrant. He claims that he qualifies for an exemption from the labor certification requirements of section 212(a)(14) as an "investor" within the meaning of 8 CFR 212.8(b)(4). The respondent formally presented his "investor" claim prior to the 1973 amendment of the regulation. His claim will therefore be judged by whichever formulation of the regulation is more favorable to him. Matter of Ko, 14 I. & N. Dec. 349 (Dep. Assoc. Comm. 1973); Matter of Heitland, 14 I. & N. Dec. 563 (BIA 1974). Prior to his visit to the United States, the respondent had been a merchant and had resided in American Samoa. The respondent sold his businesses in American Samoa before journeying to the United States. His purpose in coming here was to obtain medical treatment for his son, a native of American Samoa. The respondent operates a landscape and yard service in Hawaii. He commenced this business with an investment of approximately $7,000. At the date of his hearing, he evidently had added to this initial investment, but had still devoted less than $10,000 to the enterprise. He employs two United States citizen laborers, and he appears to have accumulated over $9,000 which he plans also to invest in the business provided he receives adjustment of status. The respondent contends that he is "actively in the process" of investing these additional funds, and that this amount must be added to his actual investment in the business to determine whether he qualifies under the regulation. Under either formulation of the "investor" regulation, capital which is "actively in the process" of being invested may be employed in computing the amount of the alien's investment. This respondent, however, has not committed his new funds to the business; he simply intends to purchase new equipment should he receive status as a permanent resident. While we understand the respondent's hesitancy in acting in the face of uncertainty, such a "conditional intent" to invest does not qualify under 8 CFR 212.8(b)(4). We shall not attempt to set forth a complete definition of this phrase. However, we hold that an alien is not "actively in the process” of making an investment if he merely possesses uncommitted funds which he intends to devote to his enterprise in the event that he receives adjustment of status under section 245. Since the amount of the respondent's investment, as reflected in the record, is under $10,000, he cannot qualify as an "investor" under the present version of the regulation. The respondent predicated his "investor" claim on our decision in Matter of Finau, 12 I. & N. Dec. 86 (BIA 1967), which was decided under the earlier version of the regulation. However, in Matter of Heitland, supra, we overruled Finau. Furthermore, this case arose prior to Matter of Ahmad, 15 I. & N. Dec. 81 (BIA 1974), and the respondent has not sufficiently documented his "investor" claim within the contemplation of that decision. We shall remand the record to the immigration judge in order to give the respondent the opportunity to further document his investment, and in order to permit the immigration judge to determine whether the respondent may qualify as an "investor" under the approach set forth in Matter of Heitland, supra. ORDER: The record is remanded to the immigration judge for further proceedings. Chairman David L. Milhollan abstained from consideration of this case. MATTER OF WONG In Visa Petition Proceedings A-17962992 Decided by Board March 18, 1975 Petitioner, a native of China and lawful permanent resident of the United States applied for classification of the beneficiary as his spouse under section 203(a)(2) of the Immigration and Nationality Act. At the time petitioner took the beneficiary as his concubine, he had a wife and another concubine. After petitioner's wife died and his first concubine obtained a divorce, petitioner and beneficiary were married, in 1956, in Hong Kong, by a priest, before two witnesses. However they had obtained no marriage license nor did they register the marriage. In view of the enactment, in 1971 of the Hong Kong Marriage Reform Ordinance (Chapter 178 of the Laws of Hong Kong, Revised Edition 1971), it is not necessary to look to Chinese law and custom obtaining prior to 1956 to determine the validity of this marriage. It was valid under section 8 of the 1971 Marriage Reform Ordinance because it was celebrated in an open ceremony prior to October 7, 1971, both parties were free to marry and were over the minimum age for marriage. The marriage is considered valid from the date of its celebration, notwithstanding that it was not under and in accordance with the Marriage Ordinance. Therefore the beneficiary spouse was eligible for second preference classificiation. ON BEHALF OF PETITIONER: Charles J. Wong, Esquire 755 Commercial Street San Francisco, California 91108 ON BEHALF OF SERVICE: The Service has moved for reconsideration of our decision of November 21, 1969 in which we sustained the petitioner's appeal from the decision of the district director, and we approved the visa petition filed by the petitioner. The petitioner is a native of China and a lawful permanent resident of the United States. He is applying to have the beneficiary classified as his spouse under section 203(a)(2) of the Immigration and Nationality Act. The beneficiary was taken by the petitioner as his concubine in China in 1945. At that time, the petitioner already had a wife and another concubine. In 1950, the petitioner left China and entered Hong Kong with the beneficiary. The petitioner's wife died in China in March 1953, and the petitioner's first concubine obtained a divorce from the People's Court of Toyshan District, Kwantung, China, in 1952. On May 20, 1956, the petitioner and the beneficiary were married |