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MATTER OF BERNABELLA

In Deportation Proceedings

A-14733481

Decided by Board October 18, 1968

Respondent, a native of Curacao, Netherlands Antilles, whose marriage to a

United States citizen occurred subsequent to his last admission to this country (as a nonimmigrant) on or about May 23, 1967, is ineligible for a nunc pro tunc section 212(h) waiver of the criminal grounds of inadmissibility existing at entry; further, he is ineligible as of the present time for a section 212(h) waiver in the current deportation proceedings since section 212(h) benefits are available in deportation proceedings only in conjunction with adjustment of status under section 245 or section 249 of the Immigration and Nationality Act, as amended, and respondent, a native of a Western Hemisphere country, is ineligible for section 245 adjustment, and since he entered the United States subsequent to June 30, 1948 he is

ineligible for the benefits of section 249 of the Act. CHARGES: Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1)]—Excluda

ble at entry as person who admits commission of

crime involving moral turpitude. Lodged: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) ]—Exclud

able at entry, conviction of crime involving

moral turpitude. ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE: Alphonso A. Christian, Esquire

R. A. Vielhaber P.O. Box 327

Appellate Trial Attorney St. Thomas, Virgin Islands 00902

(Memorandum filed)

These proceedings have been certified to us for review and final decision. The special inquiry officer on July 26, 1968 after a reopened hearing, affirmed an earlier decision of November 15, 1967 in which he found respondent deportable as charged, denied his application for voluntary departure, and ordered that he be deported to Curacao, Netherlands Antilles. At the reopened hearing respondent applied for waiver of excludability pursuant to section 212(h), Immigration and Nationality Act. This was denied by the special inquiry officer.

The respondent is a 28-year-old married male alien, who is a native of Curacao, Netherlands Antilles and a citizen of the Netherlands. Respondent's last admission to the United States was at Charlotte Amalie, Virgin Islands, on or about May 23, 1967, at which time he was admitted as a visitor for pleasure. At the time he entered the United States he was married to a citizen of the Netherlands and was the father of one child. In November 1967 he divorced this wife and he then married a United States citizen on January 1, 1968 in Puerto Rico. Respondent is excludable under section 212(a) (9) of the Act as set forth more fully below. It is on the basis of this marriage to a United States citizen that the respondent is seeking a waiver of his excludability under section 212(h), Immigration and Nationality Act. Respondent, however, does not concede that he is deportable. The special inquiry officer found that he was deportable under the lodged charge and not under the charge contained in the order to show cause, a conclusion with which we are in accord.

The facts are not in dispute that respondent, prior to his entry to the United States, was convicted on at least three occasions of crimes involving moral turpitude, to wit, theft in 1958, theft in 1960 and theft in 1963 (Exs. 5, 6 & 8). Respondent admits his convictions. Therefore, respondent is an alien ineligible to receive a visa and is excludable from admission to the United States under section 212(a) (9), Immigration and Nationality Act.

Respondent seeks a waiver of his inadmissibility under section 212 (h) of the Act on the basis that he is now the spouse of a United States citizen, is otherwise admissible, and that his being excluded and deported from the United States would result in extreme hardship to his United States citizen wife.

The respondent is not entitled to a waiver of his inad nissibility nunc pro tunc for the reason that when he entered the country on May 23, 1967, he was not then married to his present spouse and thus at that time had no relation to a citizen or permanent resident as specified in section 212(h) of the Act. Consequently, authority for a waiver did not exist at the time of his entry. Further, section 212 (h) by its wording clearly contemplates that the admission for which a waiver of inadmissibility is considered must have been for permanent residence. In this case respondent entered the country as a visitor for pleasure.

A waiver under section 212(h) as of the present time is also inappropriate. The benefits of section 212(h) are not available in

1 Matter of P-, 7 1. & N. Dec. 713; Matter of Caudillo-Villalobos, 11 I. & N. Dec. 15, 259; affirmed per curiam 361 F.2d 329 (C. A. 5th, 1966).

deportation proceedings unless granted in conjunction with adjustment of status under section 245 or under section 249.? Since the respondent is a native and citizen of a Western Hemisphere country, he is ineligible for adjustment under section 245. Also, since he entered the United States subsequent to June 30, 1948, he is ineligible for the benefits of section 249 of the Act.

The special inquiry officer denied voluntary departure in the exercise of administrative discretion principally on the basis of respondent's rather extensive criminal record. We will not disturb this decision.

Accordingly, we will affirm the decision of the special inquiry officer in toto.

ORDER: It is ordered that the order of the special inquiry officer of July 26, 1968 denying respondent's application for voluntary departure and ordering his deportation to Curacao, Netherlands West Indies be and the same is hereby approved.

2 See Matter of DeFong, 8 I. & N. Dec. 68; Matter of DeGalloway, 8 I. & N. Dec. 325.

MATTER OF CHONG

In Visa Petition Proceedings

A-17119216

Decided by Board November 7, 1968

Beneficiary, who was born to the United States citizen petitioner's husband

and a concubine during the present marriage of petitioner and her husband, who was brought into the household of petitioner and her husband when 2 years of age and reared as one of their own children, and whose birth was registered in the Korean Family Register (even though registered by the husband/father as his child and that of his wife, the petitioner), is deemed adopted under the Korean Civil Code of 1960; hence, beneficiary, having been adopted when under 14 years of age, is an adopted child within the meaning of the Immigration and Nationality Act, as amended.

ON BEHALF OF PETITIONER: Pro se

The case comes forward on appeal from the order of the Officer-in-Charge, Tokyo, Japan, dated July 10, 1968 denying the visa petition for the reason that the facts presented disclose that the petitioner is not the mother of the beneficiary, but the beneficiary was born to her husband and a concubine during their present marriage. The facts further disclosed that the beneficiary has never been legitimated or adopted by the petitioner. It was concluded that the beneficiary was not a child as defined in section 101 (b) (1) of the Act.

The petitioner, a native of Honolulu, Hawaii and a citizen of the United States by birth, 41 years old, female, seeks immediate relative status on behalf of the beneficiary as her stepson or adopted son. The beneficiary is a native and citizen of Korea, 16 years old.

The evidence establishes that the petitioner and her husband, Ki Pong Yun, a native and citizen of Korea, were married on July 28, 1947 as reported in the Korean Census Family Register. Seven children were born of this marriage. The beneficiary was born on January 3, 1952 in Korea to the petitioner's husband and a concubine, Chong Pun Yi, who died on April 8, 1954. Upon the death of the natural mother, the petitioner's husband brought the child into their home and reported his birth in the Family Register on October 4, 1961. The Family Register shows that the beneficiary is registered as the child of Yun Ki Bong, father, and that his mother is shown as Ok Kyung Hee, whereas the true mother was the concubine, Chong Pun Yi. The petitioner and her husband received the beneficiary into the household and raised him as one of their own children. The petitioner seeks to have the beneficiary immigrate with the other members of the family.

Inquiry was directed to the Library of Congress to ascertain whether the beneficiary had any status under Korean law, either as a legitimate or as an adopted child, or as a stepchild.

Under Article 855, paragraph 2, of the Korean Civil Code (Law No. 471, Feb. 22, 1958; effective January 1, 1960) a [recognized] child born out of wedlock shall acquire the status of a legitimate child by reason of the marriage of its father and mother as from the time of the marriage. Therefore, under Korean law, the beneficiary is neither a legitimate nor a legitimated child.

Additional information regarding adoption as well as legitimation has been supplied by the Library of Congress.? The pertinent portion of this article is attached hereto and made a part hereof.

Under the old Korean law, prior to the new Civil Code of 1960, it was not permissible for an individual to adopt his or her child born out of wedlock. Such an adoption was held to be contrary to Korean customary law by the High Court, the court of last resort, during the Japanese occupation.

Under the new Civil Code of 1960, there are no express provisions covering this subject. In the absence of any specific provisions, it may be construed that such an adoption is not prohibited. Regarding this question, Mr. Mun Chong-song, an authority on Korean law, refers to Article 877 of the Civil Code which concerns the prohibition of the adoption of a lineal ascendant or older person, and states that a person may adopt persons to whom he or she actually stands in parental relationship: i.e., a stepchild, a recognized child or a child born out of wedlock, ex

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1 Section 101 (b) (1) (E) of the Immigration and Nationality Act, defines the term “child” to include a child adopted while under the age of fourteen years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years.

2 Prepared by Dr. Sung Yoon Cho, Far Eastern Law Division, Law Library, Library of Congress.

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