arguably a deficiency in the Immigration and Nationality Act, if the Congress recognizes it as such, it can correct the problem by amending the statute.

We decline to resolve the beneficiary's case in a manner which would, in effect, preempt the Congress in the creation of preferences in this

area.

ORDER: The appeal is dismissed.

section 202(b)(3) of the Act to a foreign state in the Eastern Hemisphere or a dependent

area of such foreign state of which he was a citizen or subject at the time of approval or in which he then had his residence if he was then stateless. Hence, an expatriate who has previously been granted fifth preference status pursuant to section 202(b)(3) will automatically lose that status if he acquires Canadian citizenship before coming to the United States. According to counsel's argument, the same expatriate can simply reapply for fifth preference as a Canadian citizen and be accorded that status a second time under an alternate theory.

MATTER OF CHUNG

In Section 248 Proceedings

A-21265035

Decided by Regional Commissioner June 4, 1976

(1) Under section 101(a)(15)(E)(ii) of the Immigration and Nationality Act, in order to qualify for classification as a treaty investor, and alien must establish that he has invested or is actively in the process of investing a substantial amount of capital in an enterprise in the United States.

(2) An application filed under section 248 of the Act for change of nonimmigrant classification from visitor to treaty investor as defined by section 101(a)(15)(E)(ii) of the Act was denied where applicant's only showing was that he intended to invest $10,400 on deposit in a savings account, in a shoe manufacturing business, because mere intent to invest does not meet the requirement of the Act.

ON BEHALF OF APPLICANT: Pro se

This case is before the Regional Commissioner on appeal from the decision of the district director who denied the application basically because the applicant has not established that he made an investment or is in the process of making an investment to qualify for treaty investor status. The district director also points out that the applicant had a preconceived plan to obtain treaty investor status at the time of his entry into the United States as a nonimmigrant visitor for business.

In the applicant's statement submitted on appeal, he claimed that he did not know he could invest prior to the Service's approval of his change of status to treaty investor, nor was it necessary for him to invest for one year after obtaining that status. He considered his fifteen years of experience in the export-import business as sufficient qualification for treaty investor status.

The record in this case reflects the applicant is a 44-year-old native and citizen of Korea. He last entered the United States on May 22, 1975 as a nonimmigrant visitor for business representing the I1 Jin Industrial Company, Ltd., Seoul, Korea. He obtained extensions of his temporary stay until September 20, 1975. The applicant, in an interview with an officer of the Service on September 16, 1975, admitted that his entry as a nonimmigrant visitor for business was to enable him to transfer funds to the United States for the purpose of becoming a treaty investor.

That portion of the pertinent statutory provisions relating to the status the applicant is seeking is contained in section 101(a)(15) of the

Immigration and Nationality Act, which includes among the classes of nonimmigrants the following:

(E) An alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him; . . . (ii) solely to develop and direct the operations of an enterprise in which he has invested, or of an interprise in which he is actively in the process of investing, a substantial amount of capital.

Also that portion pertinent to this case in the text of 22 CFR 41.41(a), which states:

41.41 Treaty Investors

(a) An alien shall be classifiable as a nonimmigrant treaty investor if he establishes to the satisfaction of the consular officer that he qualifies under the provisions of section 101(a)(15)(E)(ii) of the Act, and that . . . (2) He is an alien who has invested capital in a bona fide enterprise and is not seeking to proceed to the United States in connection with the investment of a small amount of capital in a marginal enterprise solely for the purpose of earning a living.

The other portions of the above text have been omitted for the sake of brevity, since they are not an issue in this matter. We will concern ourselves with the basic area of dispute, that the applicant failed to establish that he meets the requirement of the statute as quoted above.

In the Matter of Heitland, 14 I. & N. Dec. 563 (1974), it was determined that funds deposited in an idle bank account cannot be considered part of an investment. The record is clear that the applicant has only offered evidence that he has $10,400 in a savings account, but has submitted no record to indicate he has invested or is actively in the process of investing in a business. To the contrary, he admits that his money is idle in a savings account.

The applicant was given an opportunity to present evidence in support of his application. He was instructed to submit such documents as lease contracts, how the money would be invested and other sources of income concerning his investment in the I1 Jin Industrial Company, Ltd. The applicant claims his investment would consist of a shoe manufacturing factor, but submitted no evidence to support his claim. It is obvious that $10,400 would be less than substantial for such an enterprise.

After careful review of the entire record, including the statement submitted on appeal, it is concluded that the district director's decision to deny the application is correct. The appeal shall be dismissed. ORDER: It is ordered that the appeal be dismissed.

MATTER OF PASQUINI

In Deportation Proceedings

A-19530254

Decided by Board June 9, 1976

(1) Respondent was convicted of a violation of Chapter 223, Section 25(5) of the Statute Law of the Bahama Islands for having a dangerous drug, Indian hemp, (marijuana), in his possession without being duly authorized. The statute under which respondent was convicted provided that knowledge of possession was relevant to the offense. Under these circumstances, respondent was deportable under section 241(a)(11) of the Immigration and Nationality Act as an alien who had been convicted of a violation of a law relating to the illicit possession of marijuana, and was therefore statutorily ineligible for adjustment of status under section 245 of the Act.

(2) Matter of Lennon, 15 I. & N. Dec. 9, vacated and remanded sub. nom. Lennon v. INS, 527 F.2d 187 (C.A. 2, 1975), distinguished.

CHARGES:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251]-Nonimmigrant visitor for pleasure remained longer

Act of 1952-Section 241(a)(11) [8 U.S.C. 1251]-Convicted of violation of law or regulation relating to illicit possession of dangerous drugs, to wit: marijuana

ON BEHALF OF RESPONDENT:

David W. Walters, Esquire

Walters and Costanzo

Suite 1001

100 Biscayne Blvd., North

Miami, Florida 33132

ON BEHALF OF SERVICE:

George Indelicato

Appellate Trial Attorney

This is an appeal from an order of an immigration judge, dated January 6, 1976, finding the respondent deportable as charged, denying his application for adjustment of status under section 245 of the Immigration and Nationality Act, and ordering his deportation to Italy. The appeal will be dismissed.

The respondent, a native and citizen of Italy, last entered the United States as a nonimmigrant visitor for pleasure in 1974. Deportation proceedings were instituted against him as an alien who remained beyond the authorized period of his admission under section 241(a)(2) of the Act and as an alien who has been convicted of the violation of law

relating to the illicit possession of marijuana under section 241(a)(11) of the Act.

The immigration judge found the respondent deportable on both charges. The respondent concedes his deportability on the section 241(a)(2) charge but denies that he is subject to deportation under section 241(a)(11). Inasmuch as a finding of deportability on the basis of a marijuana conviction acts as bar to a grant of the respondent's application for adjustment of status under section 245 of the Act, we must decide whether or not the section 241(a)(11) charge has been sustained. The record contains a copy of the judgment and the transcript of the proceedings before a court in the Bahama Islands showing that in 1974 the respondent was convicted of a violation of Chapter 223, Section 25(5), of the Statute Law of the Bahama Islands, specifically, of having a dangerous drug, Indian hemp (marijuana), in his possession without being duly authorized.

The respondent has admitted that the record of conviction relates to him. Nevertheless, he contends that, under the court's decision in Lennon v. INS, 527 F.2d 187 (C.A. 2, 1975), the conviction involved here does not subject him to deportation under section 241(a)(11).

In Lennon, the court held 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.' See Matter of Lennon, 15 I. & N. Dec. 9 (BIA 1974), reversed on other grounds, Lennon v. INS, supra. The court concluded that the British statute under which the alien had been convicted imposed absolute liability for unauthorized possession of drugs and vacated the order of deportation.

The only issue before us is whether or not lack of knowledge that a prohibited substance is in one's possession is relevant to the offense as set out in the Bahamian Statute.

Chapter 223, Section 25(5) of the Bahamian Statute reads as follows:

"Where any drug to which this Act applies is, without the proper authority, found in the possession of any person or store or kept in a place other than a place prescribed for the storage or keeping of such drug, such person or the occupier or owner of such place, unless he can prove the same was deposited there without his knowledge or consent, and also the owner of, or other person responsible for the keeping of such drug shall be guilty of an offense against this Act." (Emphasis supplied.)

We conclude that guilty knowledge is relevant: a defendant who can prove lack of knowledge is not guilty under the terms of the statute. Consequently, this case is distinguishable from the court's decision in Lennon v. INS, supra, and our decision in Matter of Lennon, supra.

'The court's interpretation of Congressional intent in Lennon v. INS, 527 F.2d 187 (C.A. 2, 1975), applies equally to proceedings instituted against an alien under the deportation provision (section 241(a)(11) of the Act).