The respondent refused to testify at the hearing but in a statement which had been taken from him under oath in connection with his petition for naturalization he said that he had no definite ideas about visiting Cuba when he went to Mexico on his vacation, that in Mexico he met an individual who asked him to go to Cuba to make inquiry about the individual's sister, and that it was for this reason and just out of curiosity that he went, that he did not know relations between Cuba and the United States had been broken, that he obtained a passport from the Spanish consul in Mexico and a visa from the Cuban authorities before he left Mexico for Cuba, that he had not applied for permission to visit Cuba in the United States because he did not feel it was necessary since he had "read postcards about Cuba-traveling to Cuba *** in the Agencies a long time ago" (p. 8, Ex. 4). In counsel's brief and at oral argument, however, it was conceded that respondent visited Cuba and reentered on his alien registration receipt card.

Counsel contends that since no statute makes an alien registration receipt card invalid for reentry merely because the holder is coming from Cuba, the regulation creating such a bar administratively is without authority and that a deportation charge which can be sustained only by reference to the regulation is not valid. The simple answer is that the regulation is binding upon this Board (cf. Swissair v. Kennedy, 327 F.2d 860 (D.C. Cir., 1963); Holz v. Del Guercio, 259 F.2d 84 (9th Cir., 1958)).

Counsel contends that respondent is not deportable under section 212(a) (20) of the Immigration and Nationality Act which provides for the exclusion of an immigrant "who at the time of application for admission" was not in possession of the appropriate entry document. Counsel contending that the term "application for admission” contemplates the admission of an alien applying for the first time, concludes it does not apply to an alien who returns to the United States from a visit abroad. Section 101 (a) (4) of the Act defines the term "application for admission" as having "reference to the application for admission into the United States and not to the application for the issuance of an immigrant or nonimmigrant visa"; the term is not limited in any other manner and we know of no holding that prevents its application to a returning resident. Under the law respondent was required to submit a valid immigrant document before his return to the United States could have been authorized (U.S. ex rel, Polymeris v. Trudell, 284 U.S. 279; Holz v. Del Guercio supra; see Cuesta v. United States, 230 F.2d 704, 707 (5th Cir., 1956)). Rosenberg v. Fleuti, 374 U.S. 449, cited by counsel is not applicable. Neither the section of law nor the issue concerning "entry"

found in Fleuti is before us. In the instant case we have a regulation making a resident alien inadmissible if he has visited Cuba and does not have a visa. This regulation is binding upon us and the alien falls within its confines. Moreover, the fact that the respondent visited Cuba in opposition to the policy reflected in the law would make the Fleuti rule inapplicable (see Matter of Kolk, Int. Dec. No. 1443; Matter of Corral-Fragoso, Int. Dec. No. 1549).

Counsel contends that there is a lack of due process in a procedure which results in issuance to respondent of an alien registration identification card which states that he can depart from the United States and reenter within one year and then makes the card invalid for reentry by a regulation promulgated after the issuance of the card. (The card was issued in 1959.)

The alien registration receipt card contains the following pertinent

statement:

This card will be honored in lieu of a visa and passport on condition that the rightful holder is returning to the United States after a temporary absence of not more than one year and is not subject to exclusion under any provision of the immigration laws.

The regulation regarding Cuba came into effect on January 19, 1961 (26 F.R. 482) and was in effect both at the time of respondent's departure to Cuba and his return to the United States. The regulation is part of the immigration laws; the regulation requires the exclusion of a returning resident who has been in Cuba and who does not have a valid visa. The proviso on the card calls attention to the fact that it would not be valid under all circumstances.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.

Since respondent, a native and citizen of Jamaica, is a special immigrant as defined in section 101 (a) (27) (A) of the Immigration and Nationality Act, as amended by the Act of October 3, 1965 (P.L. 89-236) and there has been no showing he is ineligible to obtain a special immigrant visa, he is precluded by the provisions of section 244(f) from establishing statutory eligibility for suspension of deportation under section 244(a)(1) of the Act because he is a native of an adjacent island as defined by section 101(b) (5). CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2) ]—Remained longer-nonimmigrant.

This case comes forward on appeal from an order, entered by the special inquiry officer on February 16, 1966 denying the respondent's application for suspension of deportation and his application for voluntary departure. The respondent, a 50-year-old married male, native and citizen of Jamaica, has resided continuously in the United States since last entering at Detroit, Michigan sometime during January 1952 as a nonimmigrant visitor authorized to remain in the United States for a period of several hours. Deportation proceedings were instituted against the respondent on April 15, 1965. Hearings in deportation proceedings were held at Cleveland, Ohio on April 27, 1965, May 26, 1965 and January 19, 1966. The special inquiry officer on motion of the trial attorney with the consent and approval of respondent's counsel orally amended allegations 3, 4 and 5 in the order to show cause. Allegation No. 3 was amended to read that the respondent entered the United States at Detroit, Michigan in January 1952. Allegation No. 4 was amended to read that he was then admitted as a nonimmigrant visitor for pleasure and authorized to remain in the United States for a period of several hours and allegation No. 5 was amended

United States for a longer
Counsel admitted the truth

to read that he has remained in the period than several hours (pp. 3 & 4). of allegations 1 and 2 and amended allegations 3 and 5 (p. 4). The record convincingly establishes that the respondent was last admitted to the United States as a visitor at Detroit, Michigan for a period of several hours sometime during January 1952. He has remained in the United States without authority since the latter date. On the basis of the evidence present in this record, he is subject to deportation under the provisions of section 241(a)(2) of the Immigration and Nationality Act, in that, after admission as a nonimmigrant under section 101 (a) (15) of the Act, he remained in the United States for a longer time than permitted.

On examination of the record we find the respondent was initially admitted to the United States at Miami, Florida on or about May 20, 1944 under section 5(g) as an agricultural worker for a period of one year. His status was changed to that of a nonimmigrant visitor. Deportation proceedings were instituted against him on January 11, 1951 when a warrant for his arrest was issued. Upon conclusion of the deportation hearing held at New York, New York on February 13, 1951, the hearing officer recommended that he be deported from the United States. The Acting Assistant Commissioner, Adjudications Division, in a decision dated March 28, 1951 denied the respondent's application for voluntary departure and directed that he be deported from the United States pursuant to law under the Immigration Act of 1924, as amended, remained longer, visitor.

The respondent departed from the United States to Canada sometime during April or May 1951 where he remained until he last entered at Detroit, Michigan in January 1952. The facts detailing the respondent's marrying one Lela MacKenzie in Jamaica on or about May 17, 1944 and his being the father of two children born out of wedlock as a result of his intimacies with one Iris Murray, both of whom are adults and his having illicit sexual relations with Mrs. Harriet Pulley, a widow, while a roomer at her home between 1961 and March 1965 as well as his marriage to Lela MacKenzie never having been lawfully terminated have been fully and adequately covered by the special inquiry officer in his decision of February 16, 1966 and need no further discussion herein. A communication dated December 2, 1965 and identified herein as Exhibit 8 states a search was made of the records of the Supreme Court of Kingston, Jamaica, West Indies on December 16, 1965; that no trace was found of any divorce proceeding between the respondent to Lela MacKenzie (Ex. 8).

The special inquiry officer has denied the respondent's applications for suspension of deportation under section 244 (a) of the Immigration and Nationality Act and for voluntary departure on the ground that he is statutorily ineligible therefor since he has failed to establish good moral character for the period required by statute under the provisions of section 101 (f) (2) of the Immigration and Nationality Act. His reasons therefor, which are concurred in by this Board, are clearly set forth in his decision of February 16, 1966. In any event the respondent is statutorily ineligible for suspension of deportation under section 244(a) of the Immigration and Nationality Act, as amended, because he is a native and citizen of Jamaica which is an adjacent island as defined in section 101(b) (5) of the Immigration and Nationality Act. Under the provisions of section 244(f) of the Immigration and Nationality Act the provisions of section 244(a) shall not be applicable to an alien who is a native of any country contiguous to the United States or any adjacent island named in section 101(b) (5): Provided, that the Attorney General may in his discretion agree to the granting of suspension of deportation to an alien as specified in clause (3) of section 244(f) if such alien establishes to the satisfaction of the Attorney General that he is ineligible to obtain a nonquota (special immigrant visa) immigrant visa. The respondent is a special immigrant as that term is defined in section 101(a) (27) of the Immigration and Nationality Act as amended by the Act of October 3, 1965 (Public Law 89-236). Since there has been no showing that the respondent herein is ineligible to obtain a special immigrant visa the relief provided in section 244(a) (1) of the Immigration and Nationality Act is not applicable to the respondent herein because he is a native of an adjacent island named in section 101 (b) (5). For the reasons hereinbefore set forth, the following order will be entered.

ORDER: It is ordered that the appeal be dismissed.

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