Immigration precedents

An Indian physician sought a waiver of the INA 212(e) two-year foreign residence requirement, claiming exceptional hardship to his U.S. citizen children because his wife's skin condition impaired her ability to care for them. The Regional Commissioner held that the record did not establish past impairment of the mother's caregiving or the unavailability of treatment in India, so exceptional hardship was not shown, and affirmed the denial.

A U.S. citizen's visa petition for his Philippine spouse was denied because his prior Mexican divorce, obtained after only a few hours in Mexico and without his appearance in court, was not recognized under the laws of Nevada (place of celebration) or New York (matrimonial domicile), making the subsequent marriage invalid. The Board also held that the petitioner failed to prosecute by not appearing for requested interviews and did not carry his burden of showing that his prior marriage had been legally terminated.

Dr. Ambe, an Indian exchange visitor, had a young U.S.-citizen son with severe atopic dermatitis, a recognized contraindication to smallpox vaccination, while smallpox was endemic in India. The District Director found that requiring the two-year foreign residence would impose exceptional hardship on the U.S.-citizen child and granted the INA 212(e) waivers.

Vicedo, a Philippine exchange visitor, sought a waiver of the INA 212(e) two-year foreign residence requirement, arguing that her two young U.S. citizen children would have to accompany her abroad, that her Navy-enlisted husband could not join them due to military orders, and that the family would lose his care and support and could not afford transportation or maintenance in the Philippines. The District Director found exceptional hardship to the U.S. citizen children and that her admission was in the public interest, and granted the waiver.

The respondent claimed he was erroneously admitted as a U.S. citizen child in 1948, but no record of that admission could be found. The Board of Immigration Appeals held that the lawful-admission presumption under 8 CFR 101.1(j) requires an actual record of admission, so his 1962 return with a visa was his first lawful permanent residence entry, and his moral-turpitude conviction within five years made him deportable.

A U.S. citizen petitioned for immediate relative status for his 53-year-old Iranian wife; the district director denied the petition, finding no bona fide marriage because the parties lived in separate rooms, never consummated the marriage, and the petitioner said he married to obtain a housekeeper. The Board of Immigration Appeals held that a duly solemnized marriage exists regardless of consummation, that the parties' age, shared residence, year-and-a-half acquaintance and two-year relationship established an intended valid and lasting marriage, and that the motive for marrying is not a primary concern once bona fides are shown; the petition was approved.

The petitioner, owner of a custom dress and boutique shop, sought a third-preference visa classification for an assistant clothes designer; the district director denied the petition because her 1966 net profit of $280 was far below the $6,240 annual wage specified in the labor certification. The Regional Commissioner found the low 1966 profit attributable to temporary factors such as relocation and double rent, noted a $4,774 net profit for January through May 1967, and held that her expectations of continued business and profit growth were reasonable and that she had established the financial ability to pay the certified wage, sustaining the appeal and granting the petition.

The beneficiaries were children of their father's second, polygamous marriage in Pakistan in 1928, and their U.S. citizen half-brother from the father's first marriage filed fifth-preference visa petitions on their behalf. The Board of Immigration Appeals held that because the polygamous marriage was legal under the Hindu law then prevailing in India and Pakistan and the children were legitimate under that law, the brother-sister relationship supported the fifth-preference petitions, which were approved.

A U.S. citizen petitioner sought immediate relative status for her Italian husband, but the district director denied the petition, finding that she had an undissolved common-law marriage to Huff in Ohio. The Board of Immigration Appeals held that Ohio requires clear and convincing evidence of all elements of a common-law marriage, including a present agreement to marry and cohabitation as husband and wife, and that the record did not meet that standard, so the petitioner's 1964 marriage to the beneficiary was valid and the appeal was sustained.

The petitioner, a naturalized U.S. citizen, sought quota preference status for her adopted son in China but failed to produce a written adoption document, and at the time of adoption she was only 15 years older than the beneficiary. The Board of Immigration Appeals held that the petitioner did not establish by a preponderance of the evidence a valid adoption under the Chinese Civil Code, which required a writing and that the adopter be at least 20 years older, and dismissed the appeal.

A U.S. citizen petitioner sought nonquota status for his Philippine spouse but failed to prove legal termination of his prior marriage, relying only on a California presumption of validity for his subsequent ceremonial marriage. The Board of Immigration Appeals held that the burden of proof rests with the petitioner and that the presumption was insufficient to establish a valid marriage, but reopened proceedings to allow sworn inquiry into the first wife's absence and the petitioner's efforts to contact her.

A Chinese national sought adjustment of status under section 249 of the Immigration and Nationality Act, and the Service argued that his voluntary departure after deportation proceedings began broke his continuous residence since before June 28, 1940. The Board of Immigration Appeals held that a voluntary departure, as opposed to a departure under exclusion or expulsion proceedings, did not break the continuity of residence required by section 249 where his United States abode was not abandoned.