is whether the applicant is excludable under section 212(a) (23) because of the conviction mentioned above. The fact that the conviction took place subsequent to the alien's application for admission and while he was under parole in the United States is not material. (Matter of K—, 9 I. & N. Dec. 143 (A.G., 1961).

After citing Rosenberg v. Fleuti, 374 U.S. 449 (1963), two subsequent judicial decisions based on the Fleuti holding, and Matter of Quintanilla-Quintanilla, Int. Dec. No. 1537 (1965), the special inquiry officer found that the applicant had not made a departure which was meaningfully interruptive of his legal residence and held that his return to this country could not subject him to the provisions of the Immigration and Nationality Act relating to exclusion.

It was stated in the brief of the appellate trial attorney that the applicant's case was not protected by Fleuti because the applicant had proceeded to Mexico for the purpose of purchasing a narcotic drug. Actually, the applicant testified (Tr. pp. 7-9) that he had used heroin weekly for about one year; that he had always obtained it in Los Angeles with the exception of the one occasion in May 1965; that he did not go to Mexico for the purpose of buying heroin but to get his wife's grandmother; and that he bought the heroin at Tijuana, Mexico, because it was offered to him. There is nothing to contradict this testimony, and we are inclined to believe the applicant's statement that he did not go to Mexico for the specific purpose of buying the heroin.

Although it appears that the applicant did not go to Mexico for the purpose of buying the heroin, we hold that his case is distinguishable from Fleuti because, at the very time of his application for readmission to the United States, he was violating the laws of this country by attempting to bring in a narcotic drug. In addition, the court referred to Fleuti's brief crossing of the border and the irrational hazard of subjecting him to exclusion for a condition for which he could not have been deported if he had remained in this country. On the other hand, this applicant would apparently be deportable under section 241(a) (11) of the Act even if there had been no entry. The applicant's case is distinguishable from Fleuti on its facts and is also distinguishable from Matter of Quintanilla-Quintanilla, supra, in which there was no illegal purpose in the departure or the return to the United States. We believe that the applicant's case is analogous to Matter of Corral-Fragoso, Int. Dec. No. 1549 (January 14, 1966). During a short absence in Mexico, that alien had encouraged and abetted two other aliens to enter the United States in violation of law, and we held that the

facts and circumstances were so different from Fleuti as to render its holding inapplicable.

Although the special inquiry officer stated that he did not have authority either to exclude or to admit the applicant, we hold that the case is properly before us in exclusion proceedings and that the applicant is excludable under section 212 (a) (23) of the Act because of the narcotic conviction. Accordingly, we will withdraw the special inquiry officer's order terminating the proceeding and will direct a substituted finding of fact and conclusion of law. ORDER: It is ordered that the special inquiry officer's order, terminating the proceeding, be withdrawn.

It is further ordered that the following be substituted for the special inquiry officer's eighth finding of fact:

(8) That he purchased two grams of heroin during his absence in Mexico which he was attempting to bring into the United States when he applied for readmission on May 30, 1965.

It is further ordered that the following be substituted for the special inquiry officer's conclusion of law numbered (1):

(1) That under section 212 (a) (23) of the Immigration and Nationality Act the alien is inadmissible on the ground that he has been convicted for importation of a narcotic without payment of tax in violation of 26 U.S.C. 4724 (a).

It is further ordered that the alien be excluded and deported from the United States.

The relationship of stepmother-stepchild, within the ambit of Nation v. Esperdy, 239 F. Supp. 531, does not exist between the petitioner and beneficiary, the alleged child of petitioner's husband, since a family relationship between them did not exist prior to beneficiary's arrival in the United States on April 4, 1964, when she was over 18 years of age; she had met petitioner only once previously when the latter visited Barbados; and at the time of the marriage creating such relationship beneficiary was in an orphanage and remained therein for several years thereafter.

On November 4, 1965, this Board directed that the proceedings herein be remanded to the District Director in order that the petitioner and her husband be accorded the opportunity of submitting evidence establishing the existence of a family unit in Barbados and in the United States between the petitioner, her husband and beneficiary. The purpose of receiving this evidence was to attempt to ascertain if this case would be brought within the decision in Nation v. Esperdy, 239 F. Supp. 531.

The District Director thereafter took sworn statements in the presence of counsel for the petitioner, from the petitioner, her husband, and from the beneficiary. At the conclusion of such testimony, the District Director found that no family relationship involving the petitioner and beneficiary existed prior to April 4, 1964, when the beneficiary arrived in the United States, ostensibly as a visitor and for temporary residence only. He found that the continuous step-mother step-child relationship as contemplated by the Nation decision (supra) had not been established and, accordingly, determined that the beneficiary is not a child as defined by section 101 (b) (1) of the Act. The District Director's decision is now before us by certification.

Oral argument was heard before this Board on April 18, 1966. Counsel for the petitioner appeared as did the Appellate Trial

Attorney for the Immigration Service. The thrust of petitioner's argument seems to be that although a family relationship between the petitioner-beneficiary did not commence until April 4, 1964, nevertheless, the rule in Nation embraces this relationship despite its short existence. Counsel for petitioner claims that there is nothing in Nation that requires that the family unit be formed prior to the time the beneficiary entered into the United States. He points out that immediately upon the beneficiary's arrival in the United States, she went to the home of the petitioner and, thereafter, when she applied for adjustment of status to that of a student, she indicated that the petitioner and her father would support her. Counsel for respondent is cognizant that this contention might well constitute an extension of Nation, but he feels that inasmuch as there is no restriction on duration of the relationship in Nation, that the beneficiary should be found to be the step-child of the petitioner.

The Appellate Trial Attorney for the Service pointed out that the beneficiary here was raised by her natural mother until 1954 (she was then nine years of age), and thereafter, was raised in an orphanage. The putative father of the beneficiary, the husband of the petitioner, came to the United States in 1956, and thereafter married the petitioner. Subsequently, the petitioner visited Barbados for approximately three weeks during which time she met the beneficiary, who was permitted to leave the orphanage in order to have dinner with the petitioner. When the beneficiary arrived in the United States she was over the age of 18 and had met the petitioner only once on the occasion above mentioned.

We note that the marriage between the petitioner and the putative father of the beneficiary took place during the time that the beneficiary was a ward of the government. The beneficiary remained in the orphanage for several years after the marriage between the petitioner and her putative father. Our conclusion is that the relationship so set forth in the facts of this case does not justify a finding that it comes within the ambit of the Nation decision. We do not believe that the petitioner is the step-mother of the beneficiary for the purposes of section 101 (a) (27) (A) of the Act, as amended by Public Law 89-236 and converted to section 201(b). Nor do we believe that the beneficiary is a child as defined by section 101(b) (1) of the Act. Accordingly, the following order will be entered.

ORDER: It is ordered that the order of the District Director be and the same is hereby affirmed.

MATTER OF TALANOA

In Deportation Proceedings

A-13550300

Decided by Board May 17, 1966

Since respondent, a self-employed landscape gardener, comes within the proscription of section 212(a) (14), Immigration and Nationality Act, as amended by P.L. 89–236, he is ineligible to receive a nonpreference immigrant visa in the absence of the required certification issued by the Secretary of Labor and, therefore, is ineligible for adjustment of status pursuant to section 245 of the Act.

CHARGE:

Order: Act of 1952-Section 241(a)(9) [8 U.S.C. 1251(a) (9) ]—Nonimmigrant-Failed to comply with conditions of changed nonimmigrant status.

The case comes forward on appeal from the order of the special inquiry officer dated January 13, 1966 denying respondent's application for status as a permanent resident under section 245 of the Immigration and Nationality Act, granting the privilege of voluntary departure in lieu of deportation, with the further order that if the respondent failed to depart when and as required, he be deported to Tonga on the charge contained in the order to show

cause.

The record relates to a native and citizen of Tonga, 39 years old, male, married, who last entered the United States at the port of Honolulu, Hawaii on or about January 15, 1963 and was admitted as a student. His status was subsequently changed to that of an industrial trainee and he was authorized to remain in the United States in that status until March 16, 1964. He was employed in the United States, without permission, from July 11, 1963 to November 20, 1963 as a laborer. Deportability is conceded.

The respondent has applied for adjustment of status to that of an alien lawfully admitted for permanent residence under section 245 of the Immigration and Nationality Act. In his original order