Immigration precedents

A U.S. citizen petitioner sought immediate relative status for his natural father; the beneficiary's 1950 divorce obtained at the Egyptian consulate in New York was invalid under New York law and thus for immigration purposes, so his later marriage to the petitioner's mother did not legitimate the petitioner under section 101(b)(1)(C). The Board reaffirmed Matter of H—, 6 I&N Dec. 470 (BIA 1954), and held that 'parent' in section 201(b) must be read with the section 101(b) definition of 'child'; because the petitioner never qualified as a 'child,' he could not confer immediate relative status on his father, and the appeal was dismissed.

A Portuguese uncle and niece, New York residents who could not validly marry in New York, traveled to Georgia solely to marry there and intended to return to New York; the district director denied the spouse visa petition as an evasion of New York law. The Board of Immigration Appeals distinguished Matter of Zappia, held that New York's statute voided only marriages solemnized within New York and did not expressly regulate out-of-state marriages, so the Georgia marriage did not violate New York public policy and was valid for immigration purposes, and sustained the appeal and remanded.

The petitioner, a Palestinian native and New York resident, obtained an in-absentia divorce in Jerusalem from her first husband whose whereabouts were unknown, with service by publication. The Board of Immigration Appeals held that the divorcing jurisdiction had substantial contacts with the parties and the marital res, that service met minimal due process, and that New York courts would recognize the foreign decree as a matter of comity, making it valid for immigration purposes and supporting approval of the spousal visa petition.

A Korean exchange visitor who obtained his J visa by fraud and never participated in the designated exchange program was denied reopening to apply for adjustment of status as the spouse of a lawful permanent resident. The Board of Immigration Appeals held that a person who knowingly and fraudulently acquires J exchange visitor status remains subject to INA section 212(e), and may not apply for adjustment until he fulfills the two-year foreign residence requirement, obtains a waiver, or establishes an exemption.

A U.S. citizen petitioned for immediate relative status for his spouse, but the record showed the parties never lived together as husband and wife, the petitioner never listed the beneficiary as his wife or supported her, their statements about living arrangements and when he learned of her immigration status were inconsistent, and the beneficiary was seeking a divorce at the time of her interview. The Board of Immigration Appeals held that fraud may reasonably be inferred and that the petitioner's testimony denying fraud was insufficient to overcome that inference, so the appeal was dismissed.

A U.S. citizen petitioned for preference classification for her half sister under section 203(a)(5), but the beneficiary was born out of wedlock and was 23 when legitimated by her father's marriage, so she did not satisfy the 18-year legitimation requirement. The Board of Immigration Appeals held that a claimed brother-sister relationship requires proof that both parties once qualified as children of a common parent under sections 101(b)(1) and (2), and dismissed the appeal.

The Iranian nonimmigrant student filed for adjustment of status before his authorized stay expired, and the immigration judge found him deportable for failure to maintain status under Matter of Gallares. The BIA modified Gallares, holding that filing an adjustment application is not necessarily inconsistent with lawful nonimmigrant status, but upheld deportability under section 241(a)(2) because his authorized stay had expired without extension.

A U.S. citizen petitioned for his Mexican wife as an immediate relative, and the district director denied the petition because her prior marriage was undissolved when she married the petitioner. The Board of Immigration Appeals held that marriage validity is generally governed by the law of the place of celebration, and under Texas law the marriage becomes valid once the prior marriage is dissolved and the parties continue to live together and hold themselves out as married, so it remanded the record.

The respondent, a native of the Philippines, entered Guam in 1950, left in 1956, and remained in the Philippines for 12 years before returning to the United States in 1968 as a nonimmigrant visitor. The Board of Immigration Appeals held that even assuming he was entitled to the presumption of lawful permanent residence under 8 CFR 4.2(j), his 12-year absence, with family and employment in the Philippines, changed his status so that he no longer qualified as a returning resident immigrant, and dismissed the appeal.

A lawful permanent resident petitioned for preference status for his alleged adopted son, and the District Director's approval was certified to the Board. The Board held that the 1950 adoption in Burma was governed by Burmese Buddhist law, could not be a Kittima adoption because it was unwritten and unregistered, and that an Appatittha adoption does not confer immigration benefits, so it reversed and denied the petition.

The applicant, over 70 years old with no means of support and no one responsible for her, expected to depend on California old-age assistance; the District Director denied her section 245 adjustment application and certified the case to the Regional Commissioner. The Regional Commissioner held that the section 212(a)(15) 'likely to become a public charge' determination looks to future events and considers age, ability to earn a livelihood, funds for self-support, and the availability of a willing and able sponsor, regardless of whether state law permits reimbursement, so the applicant was excludable and ineligible for adjustment of status.

A Mexican-born lawful permanent resident returned to Mexico in 1963, remained there six years, bought land, built a house and held steady employment, making only brief business trips to the United States; the Board of Immigration Appeals held that his 1969 return was not a 'temporary visit abroad' and that he was not admissible as a returning resident on his alien registration receipt card. The Board also held that because he had not undergone consular screening he was not 'otherwise admissible' and could not benefit from section 241(f) relief, dismissing the appeal while granting 30 days' voluntary departure.