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That each such alien is found to be the beneficiary of a visa petition approved by the Attorney General pursuant to section 203 (a) (2) and (3) and section 205 of the Immigration and Nationality Act prior to January 1, 1959, and such petition was filed by a person lawfully admitted into the United States under the provisions of the Refugee Relief Act of 1953, as amended: Provided further, That, upon his application for an immigrant visa, and for his admission into the United States, the alien is found to have retained his relationship to the petitioner, and status, as established in the approved petition.

All the prerequisites for nonquota status described in section 6 of the Act of September 22, 1959, supra, are present in this case. The applicant's husband was lawfully admitted for permanent residence under the provisions of the Refugee Relief Act of 1953. A visa petition in her behalf filed by her husband was approved under section 203 (a) (3) prior to January 1, 1959, and at the time of her application for adjustment of status she was found to have retained her relationship to the petitioner, and status, as established in the approved petition.

The sole question before us is whether section 6 of the Act of September 22, 1959, was intended to benefit persons who were not related to the petitioner at the time he was admitted to the United States for permanent residence under the Refugee Relief Act of 1953. In this case the petitioner was single when he arrived in this country and did not marry the applicant until after he had been in the United States for over a year.

The wording of the statute is clear and unambiguous. In this instance if the applicant were outside the United States, she would clearly come within the scope of section 6 of the Act of September 22, 1959. We are satisfied that she was a bona fide nonimmigrant at the time of her last entry. We are satisfied there is nothing in the provision of section 6 of the Act of September 22, 1959, which would preclude the exercise of the benefits of the same section through proceedings under the provisions of section 245 of the Immigration and Nationality Act. Accordingly, it is held that the applicant is eligible for a special nonquota immigrant visa.

Order: It is ordered that the application for status as a permanent resident be granted.

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MATTER OF D

In VISA PETITION Proceedings

A-11638708

Decided by Regional Commissioner April 6, 1960
Approved by Assistant Commissioner April 14, 1960

Orphan-Eligibility under Act of September 11, 1957-Not eligible where living with mother and stepfather—Adoption must be by citizen and spouse. Thirteen-year-old illegitimate child living with mother and stepfather, who has been adopted by her United States citizen aunt with her mother's consent, does not meet definition of "eligible orphan" under section 4, Act of September 11, 1957, as amended, since such child cannot be regarded as having only one parent. Further ground of disqualification exists in that adoption by aunt who is divorced does not meet statutory requirement that adoption must be by a United States citizen and spouse.

APPLICATION: Petition to classify alien as eligible orphan under section 4, Act of September 11, 1957, as amended.

BEFORE THE REGIONAL COMMISSIONER

Discussion: On January 22, 1960, the District Director, New York, entered an order denying the petition, and it was further ordered the case be certified to the Regional Commissioner for review. Brief was filed by counsel February 4, 1960. Oral argument of counsel was also heard at New York on March 1 by a representative of the Regional Commissioner.

The petitioner is 49 years of age and a native-born citizen of this country. The petitioner has no children. She was formerly married and the marriage was terminated by divorce granted May 14, 1948, in the District Court of Las Vegas, Clark County, Nevada.

The beneficiary is 13 years of age, born August 14, 1946, at Zdyni, Gorlice, Poland. The beneficiary is the illegitimate child of the petitioner's sister. The child lives in impoverished circumstances with her mother, stepfather, and their three children, and petitioner claims to have substantially provided for the beneficiary since birth. She further states the child is unwanted by her brother-in-law, the stepfather, and is subject to abusive surroundings and treatment. The adoption of the beneficiary by the petitioner was granted

December 22, 1958, by the County Court, Gorlicach, Poland, and change of name of the beneficiary to the name of the petitioner was granted. Certified copy of the decree has been presented and reflects that the mother of the child expressed agreement to the adoption. The petitioner states she was physically present in the court when the proceedings were begun.

Under section 4 of the Act of September 11, 1957, as amended by the Act of September 9, 1959, special nonquota immigrant visas may be issued on or before June 30, 1960, to children under fourteen years of age who are found to be "eligible orphans" as defined in the statute and are ineligible for admission to the United States solely because they are chargeable to an oversubscribed quota area. The statute in pertinent part defines the term "eligible orphan" as an alien child who:

*** (1) is an orphan because of the death or disappearance of both parents, or because of abandonment or desertion by, or separation or loss from, both parents, or who has only one parent due to the death or disappearance of, abandonment, or desertion by, or separation or loss from the other parent and the remaining parent is incapable of providing care for such orphan * * *; (2) (A) has been lawfully adopted abroad by a United States citizen and spouse, or (B) is coming to the United States for adoption by a United States citizen and spouse (Emphasis supplied.)

Under the immigration laws the term "parent" includes a stepfather where the relationship was created prior to the child reaching the age of 18 years. Hence, it cannot be said that the beneficiary has only one parent and, under the terms of the statute, she cannot be considered an "eligible orphan." Nor does the petitioner meet the terms of the statute which, it is clear, require that the adoptive parents or prospective parents be a United States citizen and spouse; in other words, a married couple. As the petitioner is presently unmarried she cannot qualify under the explicit requirement of the statute.

It should also be noted that the beneficiary is not eligible for nonquota status pursuant to section 101(a) (27) (A) of the Immigration and Nationality Act since she does not meet the definition of child as set forth in section 101 (b) (1) (E) of said act.

In view of the foregoing, the petition must be denied and the order of the district director will be affirmed.

Order: It is ordered that the petition be denied.

MATTER OF W

In DEPORTATION Proceedings

A-10941470

Decided by Board April 25, 1960

Deportability-Section 241(a)(3), 1952 act—Imposes upon alien burden of establishing that mental disability did not exist prior to entry.

An alien institutionalized at public expense within five years of entry because of mental disability has the burden of establishing that the disability did not exist prior to his entry. Burden is not met where the only evidence offered to show that his mental illness did not exist prior to admission is the testimony of respondent, who is confined under a court order of commitment, and his wife's testimony which is inconsistent with previous statements.

CHARGE:

Order: Act of 1952-Section 241(a) (3) [8 U.S.C. 1251(a)(3)]-Institutionalized at public expense within five years after entry.

BEFORE THE BOARD

Discussion: This case comes forward on appeal by the examining officer from a decision of the special inquiry officer dated December 17, 1959, terminating the proceedings.

The record relates to a native of Poland, presently stateless, 36 years old, male, who last entered the United States on February 14, 1957, and was admitted for permanent residence. The respondent was on May 22, 1959, ordered committed to the New Jersey State Hospital for the Insane at Marlboro, New Jersey, at public expense pursuant to a final order of commitment of the Union County Court of Union County, New Jersey. The commitment paper was predicated upon the certificates of two duly qualified physicians and the testimony of the wife.

In discussing the burden of proof under section 241 (a) (3) of the Immigration and Nationality Act under which deportability is charged, the special inquiry officer sets forth that the Government must establish by reasonable, substantial and probative evidence that the respondent is deportable as charged; that the burden is upon the respondent to show initially that he did not have the disease

before he came to the United States. The special inquiry officer concludes that the respondent has by his own testimony and the testimony of his wife during the course of the hearing sufficiently carried the burden of showing that the illness had not existed prior to his entry into the United States so as to require the Government to controvert that showing by reasonable, substantial and probative evidence.

It is believed that the standard of burden of proof in this type, of case is governed by the decision in Matter of C-R—, 7 I. & N. Dec. 124. Ordinarily, the burden of establishing deportability is upon the Government in an expulsion case. However, the statute in question, section 241(a)(3) of the Immigration and Nationality Act, provides for the deportation of an alien who thereafter, within five years after entry, becomes institutionalized at public expense because of mental disease, defect, or deficiency, unless the alien can show that such disease, defect, or deficiency did not exist prior to his admission to the United States. Thus, the statute specifically places the burden upon the alien to establish that the mental disease for which he "becomes institutionalized" did not exist prior to his admission to the United States. The respondent, if he does not meet this burden which is shifted to him by the specific language of the statute, is subject to deportation if the evidence affirmatively establishes that within five years after his entry he became institutionalized at public expense.

By way of analogy, comparison may be made with a somewhat similar ground of deportation in a prior statute, section 19 (a) of the Immigration Act of 1917 (8 U.S.C. 155 (a)) which provided for the deportation of any alien who, within five years after entry, became a public charge from cause not affirmatively shown to have arisen subsequent to landing. This section was judicially construed to mean that the alien had the burden of proving that the disease did not antedate his landing in the United States.1

In the instant case the only evidence offered to sustain the burden. upon the alien of establishing that his mental illness did not exist prior to his admission was the testimony of the respondent and of his wife. The respondent is confined to a mental institution pursuant to a court order of commitment and his wife has given testimony which is inconsistent with previous statements. It is not believed that this type of evidence is sufficient to sustain the burden placed upon the respondent.

The case will be remanded for further hearing in order that the correct standard of burden of proof be applied. The respondent should have an opportunity to introduce testimony by a psychiatrist

1 Canciamilla v. Haff, 64 F.2d 875; Ex parte Wong Nung, 30 F.2d 766; United States ex rel. Casimano v. Commissioner of Immigration, 15 F.2d 555 (1926).

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