then, that the standards set forth in Almeida-Sanchez and BrignoniPonce had retroactive application, we find that those standards have been met in the present case.

Secondly, counsel challenges our holding that the doctrine of collateral estoppel prevents the respondent, who was convicted of entry without inspection under section 275 of the Act, from relitigating the illegal entry issue in the present proceedings. In adhering to our previous decision, we have the following comments in response to counsel's arguments.

(1) Counsel is incorrect in asserting that the term "entry" under the Immigration and Nationality Act has a different meaning for deportation as opposed to criminal purposes. Matter of Barragan-Garibay, 15 I. & N. Dec. 77 (BIA 1974).

(2) Counsel's reliance upon Matter of Martinez-Lopez, 10 I. & N. Dec. 409 (BIA 1962; A.G. 1964), is misplaced. In that case, the Attorney General agreed with the Board that there was no true identity of issues. Therefore, the Board's inquiry into the materiality of the respondent's misrepresentation was not foreclosed by his conviction for conspiring to violate the provisions of 18 U.S.C. 1001.

(3) North Carolina v. Alford, 400 U.S. 25 (1970) cited by counsel, has no applicability to the present situation.

(4) Counsel's citation of Rule 803(22) of the Federal Rules of Evidence is inapposite.2 The Federal Rules of Evidence did not take effect until July 1, 1975, long after the respondent's deportation hearing was completed. Those rules, of course, have no binding effect in administrative deportation proceedings. More importantly, however, the commentary by the Advisory Committee on Rules of Evidence, the body that originally formulated the rules, clearly states that Rule 803(22) "does not deal with the substantive effect of the judgment as a bar or collateral estoppel." Commerce Clearing House, Federal Rules of Evidence 122 (February 1975). We adopt this view.

Finally, we reiterate that we have made a thorough review of the entire record. We repeat our prior conclusion that, quite independently from any collateral estoppel effect of the judgment of conviction, on the

2 Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(22) Judgment of previous conviction.-Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

record as a whole the respondent's deportability has been established by clear, convincing, and unequivocal evidence.

We adhere to our decision of June 11, 1975. The respondent's motion will be denied, and his requests for oral argument and a stay of deportation also will be denied.

ORDER: The motion to reconsider is denied, and the requests for oral argument and a stay of deportation also are denied.

MATTER OF KASHRI

Application for Permission to Accept Employment

A-19391793

Decided by District Director September 16, 1975

Application by a nonimmigrant student for permission to accept parttime employment under the provisions of 8 CFR 214.2(f)(6) is denied for failure to establish economic necessity for such employment due to unforeseen circumstances arising subsequent to his acquisition of student status where the application reveals that his income for the year from his parents and other family members exceeds his total annual expenses for tuition, board, and incidental expenses.

The applicant is a male native of Iran and citizen of Israel who was admitted to the United States on July 11, 1971 as a visitor for pleasure. He was subsequently granted a change of nonimmigrant status to that of a student in order to complete his high school education. On August 5, 1974 he was permitted to transfer to Fairleigh Dickinson University and he was granted subsequent extensions of stay until June 30, 1975. He now seeks permission to accept employment.

In his application the alien shows that his need for employment is based upon an increase in tuition at Fairleigh Dickinson University from $66 a credit to $75 a credit. The annual tuition was $2,084, and with the increase, it will be $2,300. The applicant's additional yearly expenses are $850 for board, and $200 for other expenses, thus totalling $3,350 for the year. His sources of income for the year are shown as $2,300 from parents in Israel, $900 from family members and $600 given to him by his brother. His total income for the year will be $3,800.

The subject's prior application for permission to transfer indicated that he had sufficient finances to support himself during the entire period of his studies. His sponsor, an uncle, stated that he would fully support the subject, and the alien's own statements indicated that his income was sufficient to meet his expenses.

A review of the application reveals that the alien's present income is more than sufficient to meet his needs. Therefore, the alien has failed to establish that there is a need for employment due to economic necessity which has arisen as a result of an unforeseen change in financial circumstances since his status was changed to that of a nonimmigrant student.

ORDER: It is ordered that the application for permission to accept employment be denied.

MATTER OF TADENA

In Deportation Proceedings

A-31363405-6-7-8

Decided by Board September 16, 1975

An alien admitted to the United States upon the presentation of an immigrant visa who in subsequent deportation proceedings is the recipient of the benefits of section 241(f) of the Immigration and Nationality Act, as amended, is an alien lawfully admitted for permanent residence.

CHARGE:

Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]-Excludable as immigrant without valid immigrant visa (all respondents).

ON BEHALF OF RESPONDENTS:

Victor Agmata, Jr., Esquire

15 South King Street

Honolulu, Hawaii 96813

ON BEHALF OF SERVICE:

Paul C. Vincent
Appellate Trial Attorney

On December 12, 1973, the immigration judge rendered his decision concerning a husband and wife and their four children. The immigration judge found that the adult aliens, the husband and wife, were not deportable by virtue of section 241(f) of the Immigration and Nationality Act. The immigration judge, however, concluded that section 241(f) did not benefit the four children because they did not have the qualifying relative required for the section 241(f) waiver. The immigration judge certified his decision involving the children to us for final disposition; counsel for the minor respondents also appealed their cases. The record will be remanded for further proceedings.

The four minor respondents, whose cases alone are before us, were all under ten years of age at the time of the immigration judge's decision. They, along with their parents, are natives and citizens of the Philippines. The minor respondents were admitted to the United States as immigrants in April of 1972. Their admissibility depended upon their father's status as an alien lawfully admitted for permanent residence. It is conceded that their father made certain misrepresentations in obtaining his immigrant visa. The minor respondents only contest deportability on the basis of section 241(f).

The immigration judge found that section 241(f) prevented the deportation of the parents of these minor respondents in part because of the subsequent birth of a United States citizen child to the parents. The immigration judge, however, concluded that the minor respondents had no qualifying relative for section 241(f) purposes. We concur with the immigration judge's ultimate holding that section 241(f) does not benefit the minor respondents, although we disagree with his conclusion that the parents are not now aliens lawfully admitted for permanent residence.

The minor respondents have been charged with deportability under section 241(a)(1) as aliens who were excludable at entry under section 212(a)(20). In Matter of Montemayor, 15 I. & N. Dec. 353 (BIA 1975), we held that the interpretation of section 241(f) adopted by the Supreme Court in Reid v. INS, 420 U.S. 619 (1975), precluded its application to the precise charge of deportability alleged against these children. Therefore, they are not benefited by section 241(f), and they are deportable as alleged by the Service.

The parents of the minor respondents, however, were not found deportable by virtue of section 241(f). This determination was correct under the case law applicable at the time of the immigration judge's decision. The Service did not appeal the decision in the cases of the parents. That decision is final and will not be disturbed.

Contrary to the immigration judge's view of this case, the parents of the minor respondents are now aliens lawfully admitted for permanent residence. The immigration judge's finding that the parents are not lawful permanent residents was based on court cases dealing with the effect, for naturalization purposes, of section 241(f) on aliens who had entered the United States under false claims to United States citizenship. See e.g. Yik Shuen Eng v. INS, 334 F. Supp. 897 (S.D.N.Y. 1971), aff'd, 464 F.2d 1265 (C.A. 2 1972). The parents of the minor respondents, however, obtained their admission to the United States upon the presentation of immigrant visas.

If adopted, the immigration judge's approach to section 241(f) would leave any beneficiary of section 241(f) in limbo. The section 241(f) recipient would be nondeportable, but he would not have any immigration status. However, the Act generally contemplates that an alien lawfully in the United States will have a status permitting him to remain. Cf. Matter of Loo, 15 I. & N. Dec. 127 (BIA 1974).

The Supreme Court's decision in Reid v. INS, supra, has resolved most of the questions with respect to the interpretation of section 241(f). We note that the Service would also consider the parents of the minor respondents to be aliens lawfully admitted for permanent residence. See Immigration and Naturalization Service Operations Instruction 241.2.