Matter of Hung

• Decision Date: 30 March 1967
• Docket Number: A-12265468.,Interim Decision Number 1722
• Citation: 12 I&N Dec. 178
• Parties: MATTER OF HUNG. Application for Classification as Refugee.
• Court: U.S. DOJ Board of Immigration Appeals

12 I&N Dec. 178

MATTER OF HUNG.

Application for Classification as Refugee.

Interim Decision Number 1722

A-12265468.

Board of Immigration Appeals.

Decided by Regional Commissioner March 30, 1967.

Applicant, a 25-year-old native of Hong Kong and British subject, who fled China in 1949 with her parents when the Communists took over their district, residing in Hong Kong 6 or 7 years immediately prior to coming to the United States where she has been physically present since her admission as a student in 1960 while still a minor, whose parents and brothers and sisters have been paroled into this country from Hong Kong as refugees, and who is unable to obtain a visa to reside temporarily in Canada with her student husband, is a refugee who has not been firmly resettled in another country for the purposes of refugee classification under the proviso to section 203(a)(7) of the Immigration and Nationality Act, as amended.

IN BEHALF OF APPLICANT: Joseph S. Hertogs, Esquire 580 Washington Street San Francisco, California 94111

This case comes forward on certification by the District Director, San Francisco who on January 26, 1967 denied applicant's motion to reopen and reconsider her application for adjustment of status as a permanent resident pursuant to section 245 of the Immigration and Nationality Act, as amended. In his order of January 26, 1967 the District Director stated in part as follows:

Title 8, Code of Federal Regulations, 103.5, requires that a motion to reopen or reconsider state new facts to be proved or the reasons for reconsideration and that they be supported by affidavits or other evidentiary material. The instant motion seems to be lacking in this respect. The facts show that the applicant did marry a Peter Chiang on May 5, 1966, who presently is a student in Canada. According to the record, the applicant's husband has no status in the United States. It has been established that this applicant was born in Hong Kong, B.C.C. and is now a citizen of Hong Kong. An applicant's nationality per se is not a basis for finding the applicant ineligible under the proviso on the ground that he is able to return to the country of nationality. However, the matter of nationality may be a pertinent consideration along with other factors in determining whether the alien has become firmly settled in a foreign country other than the one from which she fled. Since the applicant's husband is residing in Canada and the applicant is a British subject, it is doubtful she would encounter any difficulty in taking up residence with her husband. Moreover, a marriage has been defined in law "as a contract by which a man and a woman, capable of entering into such contract, mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and wife."

It is the view of this office that the applicant has been firmly resettled based upon the above facts, and is therefore not qualified for adjustment under the proviso of section 203(a)(7).

The above view as to the applicant's being "firmly resettled" cannot rest on the factual basis asserted. Neither the belief that the applicant could probably join her recently-married husband in Canada nor the obligations arising from a marriage contract, support such a finding. Thus, the District Director's holding must be rejected.

The applicant, a 25-year-old married female, a native of Hong Kong, B.C.C., was admitted to the United States at Honolulu on September 4, 1960 as a nonimmigrant student to attend Napa Senior High School, Napa, California. She received several extensions of stay, the last expiring on June 2, 1966 with a voluntary departure date of November 15, 1966. On April 22, 1966 she filed an application for status as permanent resident pursuant to section 245 of the Immigration and Nationality Act, as amended.

On May 27, 1966 a petition executed in the applicant's behalf by her father was approved by this Service according her preference under section 203(a)(2) of the Act, as amended, as the unmarried daughter of a lawful resident alien. Approval of the petition was revoked pursuant to 8 CFR 205.1 when the applicant subsequently informed this Service that on May 4, 1966, in Las Vegas, Nevada, she had married Peter Chiang also known as Kai Leung Chiang, a native of Hong Kong. With this action, her status became that of a nonpreference immigrant. As no visa was readily available, her application for status as a permanent resident was denied by the District Director on October 14, 1966. Concurrently with the denial, attorney of record was advised to have the applicant file an application for status as a refugee under the proviso to section 203(a)(7) of the Act as amended. Such an application was submitted on November 23, 1966.

Section 203(a)(7) of the Immigration and Nationality Act, as amended, provides, so far as pertinent here:

Conditional entries shall next be made available by the Attorney General, pursuant to such regulations as he may prescribe and in a number not to exceed 6 per centum of the number specified in section 201(a)(ii), to aliens who satisfy an Immigration and Naturalization Service officer at an examination in any non-Communist or non-Communist-dominated country, (A) ...