avoided, abandoned or forsaken a danger or evil and that, when the statute is so construed, it becomes immaterial whether the circumstances creating refugee status occurred prior or subsequent to departure from the country or area; that an alien, who departed temporarily from Czechoslovakia prior to a Communist upheaval there in 1968 but who because of political opinion feared to return in view of changed conditions in that country, may be considered as having constructively "fled" within the meaning of the statute.

The Report of the Commissioner, filed herein July 10, 1973, pursuant to our order, is to the effect that the Zedkova ruling that petitioner there had constructively "fled" Czechoslovakia within the meaning of the statute was distinguishable from the present case in that the Zedkova ruling was made in a context of three, specific ancillary findings of fact appearing in that decision but, according to the Commissioner Report, not present in the pending

case.

The Zedkova ancillary findings were as follows:

(1) That "several thousand Czechoslovakian Nationals escaped into Austria and Germany where they sought classification as refugees."

According to the Commissioner, the bearing of this finding on the ultimate finding that Zedkova had constructively "fled" within the meaning of the statute is that an actual exodus of a number of persons from the country in question (because of persecution or fear of persecution on account of race, religion or political opinion) is reasonably required to justify an ultimate finding that one who happens to be outside that country at the time of such exodus and who decides to remain away for similar reasons has constructively fled the country within the meaning of the statute.

The Commissioner contends that in the present case no such essential ancillary finding has been or can be made, pointing out that no such actual exodus of Iranians from their country has been shown or even claimed by petitioners; that in the present case the only showing is that petitioners left Iran as' non-immigrants for temporary residence here in pursuit of their pleasure and/or education.

(2) That it was satisfactorily established in Zedkova that she had formed an intent to abandon her residence in Czechoslovakia because of fear of persecution on account of her political belief.

According to the Commissioner, the bearing of this finding on the ultimate finding that Zedkova had constructively "fled" within the meaning of the statute is that to support a finding of such constructive flight a reasonable showing should be made of an

intent to abandon residence in the former country because of the persecution (or fear of persecution) that caused the actual exodus of others.

The Commissioner contends that no such ancillary finding has been or can be made in the present case, pointing out that the evidence makes it questionable whether either of the two petitioners abandoned their Iran residence because of fear of persecution; that the evidence is such that petitioner Taheri, who came to the United States in 1964 as a nonimmigrant student, and petitioner, Behroozi, who entered in 1968, as a non-immigrant visitor for pleasure (later for study), might well be found to have decided to abandon their Iran residence, not a a result of fear of persecution, but for other reasons formed even before the announcement of any Iranian policy to persecute them.

(3) That in Zedkova there were new circumstances in Czechoslovakia which caused Zedkova to become an alien.

According to the Report, the bearing of this finding upon the ultimate finding of constructive flight is that a showing of changed conditions since an alien's actual departure from his country, is reasonably necessary in the case of aliens who have not physically. fled their country but who claim constructive flight. The Commissioner points out that in Zedkova the finding of changed conditions, i.e., new circumstances, was supported by evidence that a wholly new government had been installed in the country since. her departure, an event that caused the actual flight of thousands of others.

The Commissioner contends that no such ancillary finding has been or can be made in the present case, pointing out that the evidence here is merely to the effect that in January, 1971, the Iranian government announced that members of the Confederation of Iranian students would, after March 21, 1971, be subject to prosecution under an Iranian penal statute enacted as long ago as 1931; that this announcement followed and, according to the Commissioner, was the result of a June 26, 1970 occupation of the Iranian Consulate in San Francisco by forty-one members of the Confederation, including petitioners here, who were thereafter indicted in California on five counts and convicted of false imprisonment.

Review by the District Court of rulings of the Immigration Commissioner is limited to determination of whether there has been an abuse of discretion, i.e., a decision without evidence to support it or a decision based on an incorrect understanding of the law. Song Jook Suh v. Rosenberg, 427 F.2d 1098 (C.A. 9, 1971).

Further, the burden of proof at the administrative level is upon the petitioner, not upon the Commissioner, to show that they fall

within the terms of the statute as reasonably interpreted by the Commissioner.

The court concludes that the Commissioner's interpretation of the statute to the effect that flight may be constructive as well as actual (provided that a claim of constructive flight is supported by the ancillary factual elements above discussed) was not an unreasonable or incorrect interpretation of the law; that in the case at bar the evidence was such that the Commissioner could reasonably find it insufficient to support the essential elements for constructive flight; that the ruling of the Commissioner in the present case was not an arbitrary departure from the ruling in Zedkova on the issue of constructive flight, and, therefore, was not a violation of 8 CFR Part 103.3(e) or 103.9(a).

IT IS, THEREFORE, ORDERED that the defendant's motion for summary judgment be granted and plaintiffs' motion for summary judgment be denied, upon the condition, however, that within thirty (30) days from the date of this Memorandum and Order the Commissioner supplement his previous decisions in Taheri and Behroozi by adding thereto his Report herein, together with a copy of this Memorandum, in order to clearly distinguish this case from Zedkova and so make clear that there has been no violation of 8 CFR 103.3(e) or 103.9(a).

Dated: December 11, 1974.

MATTER OF KATIGBAK

In Visa Petition Proceedings

A-17918512

Decided by Regional Commissioner October 13, 1971

To be eligible for preference classification under section 203(a)(3) of the Immigration and Nationality Act, as amended, the beneficiary must be a qualified member of the professions at the time of the filing of the visa petition. Education or experience acquired subsequent to the filing date of such visa petition may not be considered in support thereof since to do so would result in according the beneficiary a priority date for visa issuance at a time when not qualified for the preference status sought.

ON BEHALF OF APPLICANT:

Earl R. Steen, Esquire

840 North Broadway
Los Angeles, California 90012

This case is before the Regional Commissioner as an appeal from the District Director's decision of January 29, 1971 wherein he denied the applicant's petition for preference classification as an accountant under section 203(a)(3) of the Immigration and Nationality Act, as amended, as not being academically qualified. No appeal was taken from the District Director's denial. On February 3, 1971 counsel for applicant submitted a motion to the District Drector to reopen and reconsider his denial decision. On February 16, 1971, the District Director denied that motion. On August 23, 1971, counsel filed a petition for review in the United States District Court, Central District of California, and on September 9, 1971 the court dismissed the action, upon stipulation of the parties, to allow the petitioner to apppeal from the District Director's denial decision of January 29, 1971 if such appeal was actually filed within 15 days of the court's order. Appeal was received by the District Director, Los Angeles, within the time set and that appeal will be honored.

Oral argument in support of appeal was requested and granted. Counsel appeared as scheduled.

The applicant is a 23-year-old single female, a native and citizen of the Philippines. She was admitted to the United States as a

visitor at San Francisco on December 2, 1967 to June 30, 1968 and was granted a change of status to student at Los Angeles on September 11, 1968 with extensions of stay in student status to June 25, 1971 to attend Woodbury College in Los Angeles. Counsel has advised that the applicant attended Woodbury College until March 1970. She last applied for extension of stay in student status on June 25, 1970, indicating that it was her intention to continue study at Woodbury College. The application for extension of stay was granted with authority to remain until June 25, 1971. The applicant, however, did not again enroll at Woodbury during the period of her last extension.

The record shows that she accepted unauthorized employment on September 29, 1970, during the period of her last extension in student status, and on December 6, 1970 filed the instant petition for classification under section 203(a)(3) of the Act as a member of the professions as an accountant to seek work as such with a firm of certified public accountants in Beverly Hills, California.

By the filing of the petition, the applicant asserts that she is a member of the professions as an accountant and qualified as such by reason of her bachelor of science degree in business administration from a university in the Philippines, and a major in accounting achieved at Woodbury College and experience as a junior accountant since September 29, 1970 with the certified public accounting firm. The approval of the petition would give her a visa availability priority date as of the date of filing the petition, i.e., December 6, 1970. Petitions filed prior to February 4, 1971 for the profession of accounting were covered by the blanket Labor certification provided by 29 CFR 60, Schedule A, Group II.

The occupation of accountant is recognized as being within the professions. The issue in this case is to determine if the applicant was academically qualified as a member of the professions as an accountant at the time the petition was filed and eligible for the preference sought.

The Matter of Asuncion, 11 I. & N. Dec. 660 (modified by the Matter of Panganiban, 13 I. & N. Dec. 581), holds that a characteristic common to occupations in the professions is the minimum of a baccalaureate degree, while the Matter of Shin, 11 I. & N. Dec. 686, points out that the acquisition of a degree does not, per se, make the holder thereof a member of the professions.

The degree or major must be academically appropriate to the profession for which petitioned. A baccalaureate degree in accounting or an academic major in accounting will satisfy the academic qualification requirements for the profession of accounting. The Service has consistently held that 24 semester units in accounting satisfy the requirements for an academic major.