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Pervieux v. Immigration and Naturalization Service

filed: February 23, 1978.



Author: Adams

Before ADAMS, BIGGS and WEIS, Circuit Judges

ADAMS, Circuit Judge.

This case presents a challenge to an order of the Board of Immigration Appeals denying a petition by Eduardo and Giustina Von Pervieux for adjustment of status, a remedy which allows aliens who are eligible for immigrant visas to obtain the status of permanent residents in this country. See 8 U.S.C. 1255. Since we have concluded that the Immigration and Naturalization Service (hereinafter INS) did not abuse its discretion in rejecting the petitioners' request, we affirm the order of the Board.


Mr. and Ms. Von Pervieux, accompanied by their children, entered this country from Argentina on April 1, 1970, as non-immigrant visitors for pleasure. They did not depart within the required time period for such visitors, but instead they remained and each secured employment here. As a result of an INS inspection held late in 1971 at the factory where Mr. Von Pervieux was employed, the violation of the time provision by the Von Pervieux's as well as their transgression of the rule that visitors may not obtain employment without permission came to the attention of the immigration officials. Deportation proceedings against them were then instituted.

On December 22, 1971, while the deportation proceedings were pending, Mr. Von Pervieux wrote a letter to then-President Nixon to explain his family's plight. He mentioned that he and his wife had sold their home and belongings when they left Argentina, and asked the President to assist them in remaining in the United States. That letter became part of the administrative record in the case.

At the deportation hearing held on January 5, 1972, Mr. and Ms. Von Pervieux admitted that they were deportable, for they had violated the terms of their visas by overstaying the stipulated time limit as well as by becoming employed in the United States without permission. They were granted the right to depart voluntarily no later than March 5, 1972.

The Von Pervieux's did not leave the country by March 5, 1972, and on November 2, 1972, they filed a motion to reopen their case. At a hearing on January 5, 1973, they submitted an application for adjustment of status, and the hearing was continued pending investigation of their application.

Under the statute in effect at the time that the Von Pervieux's applied for adjustment of status, citizens of countries located in the Western Hemisphere were not eligible for such relief. Thus, a threshold issue at the hearing on the Von Pervieux's request was whether they had been born in the Western Hemisphere. There apparently is no doubt that Ms. Von Pervieux was born in Italy. Mr. Von Pervieux claimed to have been born in Berlin and presented an affidavit sworn to by his mother to that effect. However, it appears that there exists a birth certificate in his name from Argentina, and there is no such certificate from Germany.*fn1

Based on an answer to a question regarding Mr. Von Pervieux's place of birth, the INS sought a third deportation hearing, which was conducted on July 24, 1974. The immigration judge found that Mr. Von Pervieux in fact had been born in Argentina, and that it

strains all credibility to believe that when he went to school, went into military service, secured an Argentinian passport, applied for a non-immigrant visa to enter the United States, he stated Argentina as his place of birth if all his life he believed he had been born in Germany. We simply do not believe this. [Certified Record p. 149]

On January 24, 1975, the immigration judge entered an order denying the Von Pervieux's application for adjustment of status and granted voluntary departure with an alternative deportation order. An appeal taken from that order was dismissed by the Board of Immigration Appeals on July 24, 1975.

Petitioners again filed a motion to reopen. They argued, for the first time, that they should be granted adjustment of status because Ms. Von Pervieux qualified as an "investor" under the immigration statute. As such, she claimed, she was not required to obtain a labor certification and therefore was eligible for adjustment of status.*fn2 A fourth hearing was ...

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