burden of proof is upon him who seeks to attack such marriage, even though such burden might involve the proof of a negative, citing sections 61 of the California Civil Code and the Guam Civil Code. The court relied upon the holding of Petition of Sam Hoo, supra, and stated that the court was making no attempt to pass upon the validity of the petitioner's marriage if the question were raised in a different type of proceeding; however, the court held simply that the petitioner had failed to sustain her burden of proof that she was the wife of a United States citizen.1

In visa petition proceedings, the burden of proof to establish eligibility sought for the benefit conferred by the immigration laws rests upon the petitioner. Both the prior and present regulations 2 require that if a petition is submitted on behalf of a spouse, it must be accompanied by a certificate of the marriage to the beneficiary and proof of the legal termination of all previous marriages of both

spouses.

However, we note that the motion encloses an affidavit by petitioner's daughter, now in the United States, regarding the absence of her mother. In order to give the petitioner every opportunity to establish the validity of his present marriage, we will reopen the proceedings to permit the daughter to be questioned under oath by a Service officer regarding the absence of her mother; and to ascertain what efforts were made by the petitioner to communicate with his first wife. A written memorandum should accompany the decision.

ORDER: It is ordered that the proceedings be reopened in accordance with the preceding paragraph and to afford the petitioner every opportunity to establish the validity of his present marriage.

1See also Matter of T-S—Y—, 7 I. & N. Dec. 582. 28 CFR 205.5(b) and 8 CFR 204.2(d) (2).

MATTER OF ARABIAN

In Section 212(e) Proceedings

A-13821102

Decided by District Director January 4, 1966

Application for a waiver of the foreign residence requirement of section 212 (e), Immigration and Nationality Act, as amended, is granted an exchange visitor from Turkey since compliance therewith would result in exceptional hardship to her 2 stepchildren and United States citizen spouse who has been denied a 2-year leave of absence from his job as a TV technician to accompany her abroad and has no guarantee of reemployment and will lose all existing benefits and rights if he terminates his employment; if he accompanies her abroad he will be unable to secure a job in his field in Turkey and to support those dependent on him, including his partially-dependent mother and mother-in-law by his first marriage; to take to Turkey the 6-year-old children adopted by him and his first wife would defeat the purpose of adoption and in addition to the adverse effects suffered by them upon the death of their adoptive mother, they would be subjected to additional and unnecessary emotional strain if left here and separated from the applicant, the mother they have known for over 2 years.

Discussion: The applicant was born on March 5, 1924 in Istanbul, Turkey. She was admitted to the United States as an exchange visitor nurse on November 8, 1962 destined to Newark Beth Israel Hospital, Newark, New Jersey for participation in Exchange Visitor Program P-102. This training was terminated on October 28, 1963 at the time of her marriage to Jack Arabian, a native-born citizen of the United States. Satisfactory evidence of this marriage has been presented.

Supporting documents submitted with the application reflect that Mr. Arabian, age 50, has been employed as a television technician with ABC-TV Studios in Union City, New Jersey for 12 years. Upon request to his employer for a two-year leave of absence in order to accompany his wife abroad, he was advised that such request could not be granted. In addition, he was informed that should he voluntarily terminate his employment, he would lose all existing benefits and seniority rights and in the event he sought re

employment at a later date, there would be no guarantee that he would be hired inasmuch as such period of absence from an industry with rapid technological advances would preclude proper execution of the job.

Mr. Arabian was previously married to a United States citizen. However, such marriage was terminated by death on October 5, 1962. Prior to the former Mrs. Arabian's death, they adopted two infant children, Gail and Gregory Arabian, born March 24, 1960 and February 9, 1960, respectively. Mr. Arabian has made every endeavor to provide a comfortable home for these children and has assumed all other responsibilities of a good parent. He has stated that taking these children to Turkey would be defeating the purpose for which he adopted them and to leave them in the United States would be unfair. In addition, he has stated that the children were adversely affected by the death of his first wife and if they were now to be separated once again from the mother they have known and loved for over two years, it would be subjecting them to additional and unnecessary emotional strain.

Mr. Arabian's mother, age 78, and his mother-in-law, age 74, from his first marriage, are both partially dependent upon him for support. His mother is in ill health and he feels he is under a moral, as well as a legal, obligation to contribute to her support. His motherin-law, by his previous marriage, is also in ill health and has no close relatives as his former wife was an only child. He also feels morally bound to contribute to her support. If he were forced to leave the United States to accompany his wife, he would be unable to secure a job in the field of work in which he has been trained and could not provide the support to those dependent upon him.

In view of the foregoing, it has been determined that compliance with the foreign residence requirement of section 212(e) of the Immigration and Nationality Act, as amended, would impose exceptional hardship upon Mrs. Arabian's United States citizen spouse and step-children. The Department of State has reviewed the application and recommends that the waiver be granted. It is further concluded, that the admission of the applicant to the United States would be in the public interest.

ORDER: It is ordered that the application of Mrs. Maryann Arabian for a waiver of the two-year foreign residence requirement of section 212(e) of the Immigration and Nationality Act, as amended, be and the same is hereby granted.

MATTER OF WEBB

In Deportation Proceedings

A-10042157

Decided by Board February 16, 1966

Respondent, whose cultivation or growing of marihuana plants resulted in his conviction under section 19-246 (coupled with section 19-265), Connecticut General Statutes, Annotated, for possession and having under his control a narcotic drug, has been convicted of a law relating to the production of a narcotic drug and since his conviction was not timely appealed, it has achieved finality and can properly support a deportation charge under section 241(a) (11), Immigration and Nationality Act, as amended, notwithstanding a civil action to set aside the verdict and for a new trial filed by him after the period for a timely appeal had passed was pending at the time of the deportaton proceedings, no showing having been made that the right to appeal is revived or continued by the filing of the civil action or that the case continues under the control of the trial court.

CHARGES:

Order: Act of 1952-Section 241 (a) (11) [8 U.S.C. 1251(a) (11)]—Convicted of violation of law relating to illicit possession of marihuana.

Lodged: Act of 1952-Section 241 (a) (11) [8 U.S.C. 1251(a) (11)]-Convicted of a law relating to manufacture, production, or possession of a narcotic drug: possession, having under control, administering or dispensing of a narcotic drug: marihuana.

Respondent, a 47-year-old divorced male alien, a native and citizen of Jamaica, was admitted to the United States for permanent residence on August 17, 1956. The Service seeks to deport him because of his conviction for violation of a narcotic law. Counsel contends the conviction is lacking in finality and therefore cannot serve as the basis for an order of deportation.

On November 25, 1964, respondent was convicted under section 19-246 Connecticut General Statutes, Annotated, which broadly speaking defines two types of violation: one concerns possession of a narcotic drug, the other addiction. Whether a conviction is for

possession rather than addiction is dependent upon whether prosecution under section 19-246 is coupled with section 19-265 General Statutes Annotated (1964 Supp.) which provides the penalty for illegal possession or whether it is coupled with section 19-265a General Statutes Annotated (1964 Supp.) which provides the penalty for addiction (United States ex rel. Swanson v. Reincke, 344 F.2d 260 (2d Cir., 1965); State v. Da Vila, 183 A.2d 152 (1962)).1

In respondent's case the conviction was for possession or control. The information coupled section 19-246 with section 19-265 and charged that respondent and another "did possess, have under their control, administer or dispense a narcotic drug, to wit: marihuana ***" The section under which respondent was convicted is similar to section 2 of the Uniform Narcotic Drug Act; while no decisions as to whether guilty knowledge is an essential ingredient of the crime of possession has been found for Connecticut, an interpretation of a similar provision elsewhere states that guilty knowledge is an essential ingredient of the crime (State v. Johnson, 82 So.2d 24 (La., 1955)).

The special inquiry officer did not rule on the charge in the order to show cause; he sustained the lodged charge. The conviction ap

1 Connecticut General Statutes Annotated § 19-246.

Acts prohibited.

No person shall manufacture, possess, have under his control, sell, prescribe, dispense, compound, administer to himself or to another person or be addicted to the use of any narcotic drug, except as authorized in this chapter. (1949 Rev., § 3962; 1959, P.A. 485 § 1.)

Connecticut General Statutes Annotated § 19-265 (1964 Supp.). Penalty for illegal possession or dispensing.

Any person who violates any provision of this chapter, other than by administering to himself or by being addicted to the use of narcotic drugs, for the first offense, shall be fined not less than five hundred dollars nor more than three thousand dollars and imprisoned not less than five years nor more than ten years; or be both fined and imprisoned; and for a second offense, shall be fined not less than two thousand dollars nor more than five thousand dollars or imprisoned in the State Prison not less than ten nor more than fifteen years, or be both fined and imprisoned; and for any subsequent offense shall be imprisoned in the State Prison not less than fifteen nor more than twenty-five years. (1961, P.A. 246; 1963, P.A. 642, § 20.)

Connecticut General Statutes Annotated § 19-265a (1964 Supp.). Penalty for self-administration or addiction.

Any person who administers to himself or is addicted to the use of any narcotic drug, except when such drug is administered by or under the direction of a person authorized by this chapter to prescribe and administer narcotics or is administered under the provisions of section 17-185, shall be imprisoned not more than five years, provided the court may commit the accused to the custody of the commissioner of mental health in accordance with the provisions of chapter 344b. The provisions of section 54-116 shall not apply to convictions under this section. (1963, P.A. 647, § 11.)