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Matter of J-G-P-, Respondent
Decided October 11, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The offense of menacing in violation of section 163.190 of the Oregon Revised Statutes
is categorically a crime involving moral turpitude.
(2) The element of actual inflicted fear is not necessary to determine that a crime
categorically involves moral turpitude where the State statute requires evil or malicious
intent, and the level of threatened harm, or magnitude of menace implicit in the threat,
is serious and immediate. Matter of Solon, 24 I&N Dec. 239 (BIA 2007), distinguished.
FOR RESPONDENT: Stephen Manning, Esquire, Portland, Oregon
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sarah K. Barr, Assistant
Chief Counsel; Kathleen M. Zapata, Associate Legal Advisor
BEFORE: Board Panel: WENDTLAND and O’CONNOR, Board Members. BAIRD,
Temporary Board Member.
O’CONNOR, Board Member:

In a decision dated February 17, 2015, an Immigration Judge pretermitted
the respondent’s application for cancellation of removal under section
240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2012),
and denied his applications for asylum and withholding of removal under
sections 208(a) and 241(b)(3) of the Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3)
(2012). The respondent has appealed from that decision. 1 The panel heard
oral argument in this case. 2 The appeal will be dismissed.

1

The respondent has not challenged the Immigration Judge’s denial of his request for
protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res.
39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into
force June 26, 1987; for the United States Apr. 18, 1988). Therefore, the issue is deemed
waived. See, e.g., Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012).
2
During the pendency of the respondent’s appeal, we also received supplemental briefing
from the parties and a brief from amicus curiae. We acknowledge with appreciation the
thoughtful arguments raised in the briefs.

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I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the United
States without inspection at an unknown time and place. On September 20,
2011, he was convicted of menacing in violation of section 163.190 of the
Oregon Revised Statutes. The Department of Homeland Security (“DHS”)
issued a notice to appear charging him with inadmissibility under section
212(a)(6)(A)(i) of the Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006), as an alien
who is in the United States without permission. In removal proceedings
before the Immigration Judge, he conceded the charge of inadmissibility and
sought relief from removal.
The Immigration Judge found that the offense of menacing in violation
of section 163.190 is categorically a crime involving moral turpitude and
pretermitted the respondent’s application for cancellation of removal on this
basis. 3 She also denied the respondent’s request for asylum as untimely and
his application for withholding of removal for failure to meet his burden of
proof.

II. ANALYSIS
A. Cancellation of Removal
The respondent contends that a violation of section 163.190 of the Oregon
Revised Statutes is not categorically a crime involving moral turpitude and
that the Immigration Judge therefore improperly pretermitted his application
for cancellation of removal under section 240A(b) of the Act. We review
this question of law de novo. 8 C.F.R. 1003.1(d)(3)(ii) (2019).
To be statutorily eligible for cancellation of removal, the respondent must
demonstrate by a preponderance of the evidence that he was not convicted of
a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act.
Section 240A(b)(1)(C) of the Act; see also section 240(c)(4)(A) of the Act,
8 U.S.C. § 1229a(c)(4)(A) (2012); 8 C.F.R. § 1240.8(d) (2019). “The term
‘moral turpitude’ generally refers to conduct that is ‘inherently base, vile, or
depraved, and contrary to the accepted rules of morality and the duties owed
between persons or to society in general.’” Matter of Silva-Trevino, 26 I&N
3
In 2012, the Immigration Judge found that the respondent’s conviction was not for a
crime involving moral turpitude and issued an interim decision denying the DHS’s motion
to pretermit the respondent’s application for cancellation of removal under section
240A(b)(1)(C) of the Act. However in December 2014, the DHS filed a renewed motion
to pretermit, arguing that we had issued two unpublished decisions finding that menacing
under section 163.190 of the Oregon Revised Statutes was categorically a crime involving
moral turpitude, and the Immigration Judge granted that motion.

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Dec. 826, 833–34 (BIA 2016) (citations omitted). A crime involving moral
turpitude “requires two essential elements: reprehensible conduct and a
culpable mental state.” Id. at 834.
At all relevant times, section 163.190(1) of the Oregon Revised Statutes
has provided that a “person commits the crime of menacing if by word or
conduct the person intentionally attempts to place another person in fear of
imminent serious physical injury.” For purposes of this provision, section
161.015(8) of the Oregon Revised Statutes provides that “serious physical
injury” means “physical injury which creates a substantial risk of death or
which causes serious and protracted disfigurement, protracted impairment of
health or protracted loss or impairment of the function of any bodily organ.”
The respondent and amicus curiae characterize section 163.190 as an
“apprehension-only” simple assault statute that does not require a defendant
to actually inflict an injury on the victim. They contend that to violate the
statute, a defendant need only cause the victim to experience the
apprehension of imminent injury and that, according to longstanding
precedent, such assaults are not turpitudinous. See, e.g., Matter of
Ahortalejo-Guzman, 25 I&N Dec. 465, 466 (BIA 2011) (“Simple assault or
battery is generally not considered to involve moral turpitude for purposes of
the immigration laws.”); Matter of E-, 1 I&N Dec. 505, 507 (BIA 1943)
(same).
We disagree. This precedent does not specifically address the issue in
this case: whether an assault statute that requires a defendant to act with the
specific intent to cause a victim to apprehend or fear imminent serious
physical injury involves moral turpitude. Rather, the cases that the
respondent and amicus cite involve the nonconsensual touching of another
person, committed with general intent, and causing only slight injury, if any.
We agree with the Immigration Judge that menacing under section
163.190 of the Oregon Revised Statutes is categorically a crime involving
moral turpitude because the specific intent to cause fear of imminent serious
physical injury involves a culpable mental state and reprehensible conduct.
This finding comports with our case law and the controlling jurisprudence
of the United States Court of Appeals for the Ninth Circuit, in whose
jurisdiction this case arises.
Our analysis begins with the categorical approach embodied in Taylor
v. United States, 495 U.S. 575, 600 (1990). This approach requires us to
focus on the elements defining the crime of menacing under section 163.190
and “the minimum conduct that has a realistic probability of being prosecuted
under the statute . . . , rather than on the facts underlying the respondent’s
particular violation of that statute.” Matter of Silva-Trevino, 26 I&N Dec.
at 831; see also Escobar v. Lynch, 846 F.3d 1019, 1024 (9th Cir. 2017).

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Oregon courts have held that the crime of menacing in violation of
section 163.190 requires the State to prove a “defendant’s intent to engage in
particular conduct and his intent to cause a particular result”—namely, “that
a defendant ‘intentionally attempt[ed] to place another person in fear of
imminent serious physical injury.’” State v. Durst, 273 P.3d 370, 372 (Or.
Ct. App. 2012) (alteration in original) (citation omitted). “Because the
victim’s subjective state of mind is not a defined element of the offense, the
standard is whether a ‘reasonable person’ would have been placed in the
requisite state of fear.” State v. C.S., 365 P.3d 535, 538 (2015); see also State
v. Lee, 23 P.3d 999, 1002 (Or. Ct. App. 2001) (“It bears emphasis that the
statute requires proof of an intent to create fear, not that the actor create actual
fear in a victim.”). Section 163.190 also requires that the defendant take a
“substantial step” toward achieving his or her objective. State v. Garcias,
679 P.2d 1354, 1359 n.8, 1361 (Or. 1984) (en banc); Durst, 273 P.3d at 372.
We recognize that menacing under section 163.190 derives in part from
the common-law crime of assault and the definition of simple assault in the
Model Penal Code. 4 See Model Penal Code § 211.1(1)(c) (Am. Law Inst.
2018) (defining simple assault in part as “attempt[ing] by physical menace
to put another in fear of imminent serious bodily injury”). However, in
contrast to simple assault offenses, which “require general intent only and
may be committed without . . . evil intent,” section 163.190 requires a
specific intent to create fear in the victim, as perceived by a reasonable
person. Matter of Solon, 24 I&N Dec. 239, 241 (BIA 2007). In our view,
the presence of this “specific intent . . . reflects a vicious motive” indicative
of moral turpitude. Burboa-Rocha v. Sessions, 725 F. App’x 588, 589 (9th
Cir. 2018) (upholding our conclusion that menacing under Oregon law
involves moral turpitude); cf. Matter of Solon, 24 I&N Dec. at 242 (stating
that “where no conscious behavior is required, there can be no finding of
moral turpitude”).
However, this conclusion does not end our inquiry. “[I]n the context of
assault crimes, a finding of moral turpitude involves an assessment of both
the state of mind and the level of harm required to complete the offense.”
Matter of Solon, 24 I&N Dec. at 242. “[I]ntentional conduct resulting in a
meaningful level of harm, which must be more than mere offensive touching,
may be considered morally turpitudinous.” Id. We therefore turn to the level
of harm required to complete the crime of menacing under section 163.190.
4

In defining “assault” in 1971, the Oregon Legislature provided that an assault “occurs
when one intentionally . . . causes some degree of physical injury to another,” but it
excluded from the definition “conduct intended to create apprehension, but not necessarily
injury.” Garcias, 679 P.2d at 1356. “[T]he tort law derived concept of ‘intentional
creation of the apprehension of receiving a battery’” was retained, however, “as the newly
designated offense of menacing.” Id. (citation omitted).

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The Oregon Supreme Court has held “that [the] harm . . . caused” by
menacing—namely, “fear of imminent serious physical injury”—may only
occur in “a narrow category of conduct, a face to face confrontation between
[an] actor and victim,” who share “a hostile relationship.” Garcias, 679 P.2d
at 1360–61; see also State v. Ziska, 334 P.3d 964, 965, 970 (Or. 2014)
(en banc) (holding that raising a crowbar and telling the victim, “I’m going
to level you,” constitutes menacing). 5 The respondent argues that, while
threatening to cause this type of harm is distasteful, it is not morally
turpitudinous because a violator of section 163.190 is not required to actually
cause, or intend to cause, any harm to the victim. He cites, inter alia, Matter
of Solon in support of these arguments and maintains that menacing under
Oregon law is indistinguishable from simple assault.
In Solon, we observed that “[m]any simple assault statutes prohibit a wide
range of conduct or harm, including de minimis conduct or harm, such as
offensive or provocative physical contact or insults, which is not ordinarily
considered to be inherently vile, depraved, or morally reprehensible.” Matter
of Solon, 24 I&N Dec. at 241. In doing so, we cited as examples of assault
statutes that do not involve moral turpitude the laws of Arizona, Iowa, Maine,
New Mexico, and Tennessee. The respondent argues that section 163.190 is
analogous to those statutes. However, they differ from section 163.190 in
that they do not require the specific intent to place another person in
apprehension of imminent serious physical injury. 6
We also included a footnote in Matter of Solon where we noted that
menacing under section 120.15 of the New York Penal Law prohibited
“some of the lesser conduct traditionally encompassed within common-law
5

There is insufficient evidence to convict an individual of menacing under 163.190 where
his threats are not imminent and would not place a reasonable person in fear of serious
injury. See C.S., 365 P.3d at 539 (finding insufficient evidence to establish an imminent
threat where an individual’s threats were to be carried out at “an unspecified future date”
and “were not made in the context of a close relationship with any of the victims, or in
response to a specific disagreement or escalating conflict”); cf. Garcias, 679 P.2d at
1359–60 (stating that menacing would not encompass “a police officer communicating a
warning of a bomb threat to the occupants of a building, a doctor informing a patient of a
serious illness and one actor menacing another in the course of a performance”).
6
Ariz. Rev. Stat. Ann. § 13-1203(A)(2) (2019) (“Intentionally placing another person in
reasonable apprehension of imminent physical injury”); Iowa Code Ann. § 708.1(2)(b)
(West 2019) (intending “to place another in fear of immediate physical contact which will
be painful, injurious, insulting, or offensive”); Me. Rev. Stat. Ann. tit. 17-A, § 207(1)(A)
(2019) (intending to cause “bodily injury or offensive physical contact to another
person”); N.M. Stat. Ann § 30-3-1(B) (West 2019) (causing “another person to reasonably
believe that he is in danger of receiving an immediate battery”); Tenn. Code Ann.
§ 39-13-101(a)(2) (West 2019) (intending to cause “another to reasonably fear imminent
bodily injury”).

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assault.” Id. at 244 n.5. Although this statement was dicta, the respondent
characterizes it as holding that menacing under the New York statute does
not categorically involve moral turpitude. He therefore contends that since
section 120.15 of the New York Penal Law is analogous to section 163.190,
the Oregon menacing offense should likewise not be considered to be
turpitudinous. See Garcias, 679 P.2d at 1356–57 (noting that the crime of
menacing under section 163.190 is “similar to that found in the New York
Penal Law § 120.15”). We disagree.
Unlike the New York menacing statute and the assault statutes cited in
Solon, which reach offenses that place another in fear of any physical injury,
section 163.190 requires that a defendant must cause a reasonable person to
fear imminent serious physical injury. 7 We did not have the occasion in
Matter of Solon to highlight the distinction between “physical injury” under
New York law and “serious physical injury” under Oregon law. However,
we now conclude that the seriousness of the threatened physical injury in
section 163.190 distinguishes it from the simple assault statutes we addressed
in Matter of Solon, as well as the menacing statute at section 120.15 of the
New York Penal Law. Thus, Matter of Solon does not preclude us from
holding that intentionally causing fear of imminent serious physical injury
“reflects a level of immorality that is greater than that associated with a
simple offensive touching,” and is therefore morally turpitudinous. Matter
of Sanudo, 23 I&N Dec. 968, 971 (BIA 2006).
Accordingly, we hold that the offense of menacing in violation of section
163.190 of the Oregon Revised Statutes is categorically a crime involving
moral turpitude. In this regard, we also conclude that the element of actual
inflicted fear is not necessary to determine that a crime categorically involves
moral turpitude because section 163.190 requires evil or malicious intent,
and the level of threatened harm, or magnitude of menace implicit in the
threat, is serious and immediate.
We recognize that there is some tension between this conclusion and the
decision of the Ninth Circuit in Fernandez-Ruiz v. Gonzales, 468 F.3d 1159,
7
Section 120.15 of the New York Penal Law provides that “[a] person is guilty of
menacing . . . when, by physical menace, he or she intentionally places or attempts to place
another person in fear of death, imminent serious physical injury or physical injury.”
(Emphasis added.) “Physical injury” is defined in section 10.00(9) of the New York Penal
Law to mean “impairment of physical condition or substantial pain.” Section 161.015(7)
of the Oregon Revised Statutes uses the same definition of “physical injury” as New York.
Both jurisdictions have held that “physical injury” may encompass painful bruising. See,
e.g., People v. Bowen, 17 A.D.3d 1054, 1056 (N.Y. App. Div. 2005); State ex rel. Juvenile
Dep’t of Clatsop Cty. v. Salmon, 730 P.2d 1285, 1287 (Or. Ct. App. 1986). However, this
degree of injury would be insufficient to constitute “serious physical injury” under Oregon
law. See, e.g., State v. Dazhan, 516 P.2d 92, 95 (Or. Ct. App. 1973).

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1167 (9th Cir. 2006), which held that assault under section 13-1203(A)(2) of
the Arizona Revised Statutes is not a categorical crime involving moral
turpitude because that statute contains no element of injury, instead
prohibiting “conduct that merely places another person ‘in reasonable
apprehension of’ physical injury.” The court observed that a “simple assault
statute which permits a conviction for . . . mere threats, or for conduct that
causes only the most minor or insignificant injury is not limited in scope to
crimes of moral turpitude.” Id.
However, like the New York menacing statute we distinguished above,
section 13-1203(A)(2) of the Arizona Revised Statutes only reaches threats
that place another in apprehension of “physical injury,” which Arizona
defines in section 13-105(33) as the “impairment of physical condition.” As
with the New York statute, this lower standard differs significantly from
“fear of imminent serious physical injury,” which is the level of threatened
harm required by section 163.190. Garcias, 679 P.2d at 1361. Indeed, the
DHS conceded at oral argument that if section 163.190 did not require an
intent to cause apprehension of serious physical injury, it would not define a
crime involving moral turpitude.
Moreover, we are not persuaded that Fernandez-Ruiz stands for the
proposition that criminal threats that do not result in actual physical injury to
another can never be a crime involving moral turpitude. The Ninth Circuit
more recently issued an unpublished decision deferring to our conclusion
that menacing in violation of section 163.190 is categorically a crime
involving moral turpitude because “the act of intentionally attempting to
place the victim in imminent fear of serious physical injury makes menacing
reprehensible.” Burboa-Rocha, 725 F. App’x at 589 (emphasis added).
Our conclusion that menacing under section 163.190 is categorically
a crime involving moral turpitude also comports with the holding in
Latter-Singh v. Holder, 668 F.3d 1156 (9th Cir. 2012), and is not precluded
by Coquico v. Lynch, 789 F.3d 1049 (9th Cir. 2015), two Ninth Circuit cases
that we asked the parties to address at oral argument.
In Latter-Singh, the court held that making threats with the intent to
terrorize under section 422 of the California Penal Code is categorically a
crime involving moral turpitude. 8 Unlike the Oregon menacing statute,
8

A person violates section 422 of the California Penal Code if he or she
willfully threatens to commit a crime which will result in death or great bodily injury
to another person, with the specific intent that the statement . . . is to be taken as a
threat . . . which . . . convey[s] to the person threatened, a gravity of purpose and an
immediate prospect of execution of the threat, and thereby causes that person
reasonably to be in sustained fear for his or her own safety or for his or her immediate
family’s safety.

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section 422 requires that the threat caused the victim to experience an
immediate and sustained fear of injury. Latter-Singh, 668 F.3d at 1160,
1162; cf. C.S., 365 P.3d at 538 (holding that section 163.190 only requires
that “a ‘reasonable person’ would have been placed” in “fear of ‘imminent’
serious physical injury” rather than proof that the victim subjectively
experienced fear). The respondent contends that the absence in section
163.190 of an element requiring the actual infliction of fear indicates that
menacing under Oregon law does not involve moral turpitude.
We are not persuaded by this argument. First, Latter-Singh does not state
that the infliction of actual fear is a required element of a crime involving
moral turpitude. It merely indicates that such an element, if present, may be
relevant to analyzing whether an offense is turpitudinous. Specifically,
although the court noted that Fernandez-Ruiz held “that criminal threats
alone, without any attendant serious physical harm, do not necessarily
implicate moral turpitude,” it concluded that, even in the absence of such a
requirement, a violation of section 422 involves moral turpitude because the
underlying harm threatened is itself turpitudinous since the statute
“criminalizes only those statements that threaten ‘death or great bodily
injury.’” Latter-Singh, 668 F.3d at 1161; cf. Uppal v. Holder, 605 F.3d 712,
719 (9th Cir. 2010) (concluding that Canada’s aggravated assault statute did
not define a crime involving moral turpitude because it did “not involv[e] a
specific intent to injure . . . and [did] not requir[e] that the assault cause death
or even serious bodily injury”).
Additionally, the court found that section 422 categorically defines a
crime involving moral turpitude because, like the Oregon menacing statute,
it requires that a violator act with the specific intent to place another in fear
of serious injury. Id. at 1162. The court emphasized that “evil or malicious
intent is . . . the essence of moral turpitude,” which in our view, properly
places the focus on a violator’s intent to cause fear of serious physical injury,
rather than on his victim’s subjective fear, in assessing the reprehensibility
of his actions. Id. at 1161 (citation omitted).
Therefore, even if a threat made under section 163.190 does not cause
actual fear in the victim, it would still be reprehensible because the violator
must specifically intend to place the victim in fear of imminent serious injury
and take a substantial step toward this objective such that a reasonable person
would fear the threatened harm. C.S., 365 P.3d at 538; Garcias, 679 P.2d
at 1359 n.8. In other words, like section 422’s requirement that a threat place
a victim in immediate and sustained fear, the reasonable person requirement
of section 163.190 ensures that empty, meaningless threats are not
criminalized. Latter-Singh, 668 F.3d at 1162 (stating that section 422 does
“not criminalize ‘emotional outbursts’ or ‘mere angry utterances or ranting
soliloquies, however violent’” (citation omitted)).
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In Coquico v. Lynch, the Ninth Circuit compared the criminal threats
proscribed by section 422 in Latter-Singh—which involved the intent to
terrorize by placing another in immediate and sustained fear of death or
great bodily injury—with the threat associated with “unlawful laser activity”
under section 417.26 of the California Penal Code—which “requires only an
intent to place the victim in ‘apprehension or fear of bodily harm.’” Coquico,
789 F.3d at 1054 (citation omitted). Concluding that a violation of
section 417.26 was not a categorical crime involving moral turpitude, the
court observed in a footnote that its prior precedent “casts doubt on
whether an intent to cause ‘apprehension or fear,’ rather than intent to injure,
can ever be a [crime involving moral turpitude].” Id. at 1054 n.4; cf. State
v. Santacruz-Betancourt, 969 P.2d 1040, 1043 (Or. Ct. App. 1998) (holding
that the act of shining a red laser beam into a home and onto an occupant’s
head in imitation of a sighted weapon “could constitute menacing”).
This observation does not preclude us from holding that the respondent’s
offense is turpitudinous, because it was dicta and cannot be reconciled with
Latter-Singh, which concluded that a criminal threat can categorically
involve moral turpitude. We decline to hold that a whole category of crimes
does not involve moral turpitude solely because the offenses lack an element
of actual fear or injury, or of an intent to injure, particularly where a violator’s
conduct would cause a reasonable person to fear serious physical injury. We
are also persuaded by the DHS’s argument that certain criminal threat crimes,
like the California offense defined at section 422 and menacing under section
163.190, involve a fear on the part of the victim that is injurious because of
its seriousness. In other words, we consider the specific intent to cause fear
of imminent serious physical injury to be quite different from a general intent
to cause any apprehension or fear, however slight.
We therefore conclude that menacing in violation of section 163.190 of
the Oregon Revised Statutes is categorically a crime involving moral
turpitude. Consequently, we agree with the Immigration Judge that the
respondent’s conviction precludes him from establishing his eligibility for
cancellation of removal under section 240A(b)(1)(C) of the Act. 9 See
8 C.F.R. § 1240.8(d).
B. Asylum and Withholding of Removal
The respondent also challenges the Immigration Judge’s denial of his
applications for asylum and related relief. We agree with the Immigration
9

In Matter of Ortega-Lopez, 27 I&N Dec. 382 (BIA 2018), we reaffirmed our decision
in Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), regarding the meaning of the phrase
“convicted of an offense under” in section 240A(b)(1)(C) of the Act. We therefore reject
the respondent’s suggestion that Matter of Cortez should be overruled.

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Judge that the respondent is ineligible to seek asylum because he did not file
his application within 1 year of his last arrival in the United States and has not
demonstrated that an exception to the filing deadline applies. See sections
208(a)(2)(B), (D) of the Act (setting forth the 1-year filing deadline and
providing that changed or extraordinary circumstances may be exceptions to
this deadline); 8 C.F.R. § 1208.4(a)(2), (4), (5) (2019).
The respondent last entered the United States in 1992 at age 20, prompted
by the murder of his father and brother in Michoacán, Mexico, over a
property dispute. However, he did not file his asylum application until after
his removal proceedings were initiated in 2012. The respondent suffers from
post-traumatic stress disorder (“PTSD”) as a result of witnessing the murders
and argues that this condition constitutes an extraordinary circumstance that
justifies his untimely filing. We disagree, because the respondent has not
adequately explained how his PTSD could have resulted in a 20-year delay
in filing his asylum application. Accordingly, we affirm the Immigration
Judge’s denial of asylum.
With regard to the respondent’s application for withholding of removal
under section 241(b)(3) of the Act, we discern no clear error in the
Immigration Judge’s factual finding that the respondent’s experience of
witnessing violence against his family does not bear a nexus to a protected
ground but, rather, is reflective of indiscriminate violence in Mexico. See
Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). The respondent has
also not met his burden of establishing that a cognizable particular social
group will be “a reason” for any future threat to his life or freedom in Mexico.
Barajas-Romero v. Lynch, 846 F.3d 351, 358–60 (9th Cir. 2017). We
conclude that his proposed group of “displaced Mexican males with
significant family relationships to the United States” is not defined with
particularity on this record. See Matter of M-E-V-G-, 26 I&N Dec. 227,
237–43 (BIA 2014); Matter of W-G-R-, 26 I&N Dec. 208, 212–18 (2014),
vacated in part on other grounds, Reyes v. Lynch, 842 F.3d 1125 (9th Cir.
2016), cert. denied, 138 S. Ct. 736 (2018) (mem.). We therefore affirm the
Immigration Judge’s denial of withholding of removal under section
241(b)(3) of the Act. Accordingly, the respondent’s appeal will be
dismissed.
ORDER: The appeal is dismissed.

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Interim Decision #4005

Matter of O-M-O-, Respondent
Decided January 8, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An Immigration Judge may find a document to be fraudulent without forensic analysis
or other expert testimony where the document contains obvious defects or readily
identifiable hallmarks of fraud and the party submitting the document is given an
opportunity to explain the defects.
FOR RESPONDENT: Kamah Gueh-Thoronka, Esquire, Woodbridge, Virginia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jorge L. Montesino, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge;
PETTY, Appellate Immigration Judge; MORRIS, Temporary Appellate Immigration
Judge.
MALPHRUS, Deputy Chief Appellate Immigration Judge:

In a decision dated December 19, 2019, an Immigration Judge
denied the respondent’s application for deferral of removal pursuant to
8 C.F.R. §§ 1208.16(c), 1208.17(a), and 1208.18(a) (2019), the regulations
implementing the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted and opened for signature Dec.
10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (“Convention Against Torture”), and she ordered him
removed from the United States. The respondent has appealed from that
decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Nigeria who was admitted to the
United States on May 20, 2011, as a nonimmigrant visitor. On October 24,
2012, his status was adjusted to that of a conditional permanent resident. The
respondent was convicted on August 8, 2014, of conspiracy to commit mail,
wire, and bank fraud, a Federal offense for which he was sentenced to
63 months of imprisonment. On the same day, he was convicted of aiding
and abetting aggravated identity theft in violation of Federal law and was
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sentenced to 24 months in prison. The loss, or potential loss, to the victims
of each offense was greater than $10,000. The respondent’s conditional
permanent resident status was terminated on June 14, 2017, with an effective
date of October 25, 2014. The Department of Homeland Security (“DHS”)
initiated removal proceedings, charging that the respondent is removable
because his conditional permanent resident status was terminated and his
offenses were aggravated felonies and crimes involving moral turpitude.
In proceedings before the Immigration Judge, the respondent admitted the
factual allegations in the notice to appear, conceded removability, and
applied for deferral of removal under the Convention Against Torture. In
support of his application, he testified and reported in his declaration that
while he was attending college in Nigeria, he became active in the Committee
for Defense of Human Rights (“CDHR”). According to the respondent, he
and others in the group met with government officials in Oyo State’s
education ministry to try to increase the funding for education and improve
conditions for students and lecturers. He claimed that, as a consequence of
his activism, the Nigerian State Secret Service detained, interrogated, and
physically mistreated him in 2005, and again in 2010.
During cross-examination by counsel for the DHS, the respondent was
questioned about his familiarity with the Commissioner for Education,
whose purported signature appears on a December 2009 letter that the
respondent submitted in support of his application and referenced in his
declaration. The DHS submitted impeachment evidence indicating that a
different person was serving as Commissioner for Education at that time.
The respondent was also asked about how he obtained a “wanted” flier he
had submitted into evidence, and he was given the opportunity to explain
why “Nigeria” was misspelled and the signature and text were printed over
a seal on the document. At the end of the hearing, the Immigration Judge
gave each party additional time to submit closing statements. The respondent
also submitted rebuttal evidence, which was admitted into the record and
considered by the Immigration Judge.
The Immigration Judge found that the respondent was not credible. She
therefore determined that he had not presented a valid claim or established
his eligibility for deferral of removal under the Convention Against Torture.
The respondent challenges that finding on appeal. We have reviewed
the Immigration Judge’s findings of fact, including her credibility findings,
to determine whether they are “clearly erroneous” under 8 C.F.R.
§ 1003.1(d)(3)(i) (2020), and we will affirm her adverse credibility finding.

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II. ANALYSIS
Credibility findings must be based on the totality of the circumstances
and all relevant factors, including:
the demeanor, candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements (whenever made and whether or
not under oath, and considering the circumstances under which the statements were
made), the internal consistency of each such statement, the consistency of such
statements with other evidence of record (including the reports of the Department of
State on country conditions), and any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant’s claim, or any other relevant factor.

Section 240(c)(4)(C) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229a(c)(4)(C) (2018). The United States Court of Appeals for the Fourth
Circuit, in whose jurisdiction this case arises, has stated that “omissions,
inconsistent statements, contradictory evidence, and inherently improbable
testimony are appropriate bases for making an adverse credibility
determination.” Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011). The
statute “provides an [Immigration Judge] with ample discretion in assessing
credibility,” although an adverse credibility finding must be based on the
totality of the record—not a selective reading of certain facts, evidence, or
inconsistencies to support a particular result. Ilunga v. Holder, 777 F.3d 199,
207 (4th Cir. 2015).
A. Fraudulent Documents
The Immigration Judge found that the respondent’s credibility was
undermined, primarily, but not exclusively, by his submission of two
documents that she determined were falsified. The Immigration Judge first
considered the “wanted” flier submitted by the respondent. She noted that
“Nigeria” was misspelled (as “Nageia Police Authority”) and that the
signature and text of the flier were printed over the seal on the document, “as
if the flier was printed on paper with the seal and signature already on it
instead of the flier being stamped with the seal and signed after it was
created.” The Immigration Judge found that the “wanted” flier was
fabricated. She is qualified to make that judgment because the indicia of
fraud, namely, the misspelling of “Nigeria” and the “peculiar setting of the
text, signature, and seal,” are readily apparent on the face of the document.
The circuit courts have rejected a determination that a document is not
genuine if the Immigration Judge’s suspicions were speculative, particularly
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where the respondent’s testimony was otherwise found credible. See, e.g.,
Niang v. Mukasey, 511 F.3d 138, 147 (2d Cir. 2007). In some circumstances,
forensic analysis or other expert testimony may be needed to support an
Immigration Judge’s determination that a document is fraudulent. See
Kumar v. Gonzales, 444 F.3d 1043, 1050 (9th Cir. 2006) (reversing an
Immigration Judge’s finding that a death certificate was fraudulent based on
his own “uninformed visual comparison” of handwriting on an asylum
application with handwriting on the certificate without evidence from a
forensic handwriting expert); see also Camishi v. Holder, 616 F.3d 883, 888
(8th Cir. 2010) (discussing the importance of forensic evidence to support
the Immigration Judge’s finding of fraud); Lin v. Gonzales, 434 F.3d 1158,
1163 (9th Cir. 2006) (rejecting an Immigration Judge’s finding of fraudulent
documentation but recognizing that such a finding may rest on judicial
expertise, so long as “such expertise [is] articulated on the record so that . . .
the [Immigration Judge’s] determinations are based on objective criteria
particularized to the document”).
“However, forensic evidence of fraud is not necessary where, as here,
the documents bore readily identifiable indications of fraud.” Onsongo
v. Gonzales, 457 F.3d 849, 854 (8th Cir. 2006); see also Bropleh v. Gonzales,
428 F.3d 772, 777 (8th Cir. 2005) (stating that an Immigration Judge’s
finding that the applicant had altered his passport “did not require a forensic
expert” where the passport had been selectively burned in an area where
evidence of a visa application would be found). Courts have long recognized
that Immigration Judges may find that documents are not genuine if they
contain “hallmarks of fraud,” which include misspellings, overwriting,
incorrect information, and alterations. 1 Onsongo, 457 F.3d at 854
(upholding the Immigration Judge’s finding that the applicant’s
“corroborating evidence was not credible because it bore hallmarks of
fraud”); see Selami v. Gonzales, 423 F.3d 621, 625–26 (6th Cir. 2005)
(stating that the fraudulent nature of a newspaper article was readily apparent
from a comparison of its typeface, spacing, and capitalization with a copy of
the original); see also Diallo v. Mukasey, 508 F.3d 451, 453–55 & n.2 (8th
Cir. 2007) (finding that the Immigration Judge reasonably concluded that an
identity card was false where it appeared to have been altered to coincide

1

The Immigration Judge took administrative notice of a report by the Office of Inspector
General for the Department of Health and Human Services, which lists as “obvious” signs
of fraudulent documents “erasures, smudges, white-out, misspelled words, offset margins,
poor seals, dates that do not match, [and] photocopies.” Office of Inspector Gen., U.S.
Dep’t of Health and Human Servs., 0EI-07-99-00570, Birth Certificate Fraud 11 (Sept.
2000), https://oig.hhs.gov/oei/reports/oei-07-99-00570.pdf.

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with information on a birth certificate that a government investigation had
determined was forged). 2
The circuit courts have also affirmed findings of fraud where an applicant
has submitted documents that were purportedly created by different persons
or organizations but have very close similarities to each other. See Capo
v. Ashcroft, 119 F. App’x 823, 826 (7th Cir. 2005) (upholding an adverse
credibility finding based on the Immigration Judge’s belief that four
documents the applicant had submitted from three different organizations
were deliberately forged, because they all appeared to have been produced
on a typewriter with the same defect, a misaligned “O” key); cf. Matter
of R-K-K-, 26 I&N Dec. 658, 661 (BIA 2015) (concluding that an
Immigration Judge may rely on similarities between statements submitted by
applicants in different proceedings in making an adverse credibility
determination).
The Immigration Judge properly relied on the obvious defects or
hallmarks of fraud to find that the “wanted” flier the respondent submitted
was fraudulent. She gave the respondent an opportunity to explain the
defects at his merits hearing when the DHS counsel raised the issue and
questioned him about the document. 3 The Immigration Judge also gave both
parties additional time after the merits hearing to file a closing statement.
The arguments in the respondent’s brief, that Nigerians commonly call
Nigeria “Nageia” and that signatories generally sign what is already printed,
are not evidence. See Matter of J.J. Rodriguez, 27 I&N Dec. 762, 765–66
(BIA 2020) (noting that statements by counsel are not evidence and are not
entitled to evidentiary weight); Matter of S-M-, 22 I&N Dec. 49, 51 (BIA
1998) (stating that “statements in a brief . . . are not evidence and thus are
not entitled to any evidentiary weight”). Even if the respondent had shown
2

The Sixth Circuit has also issued several unpublished decisions that support our
approach in this case. Sultana v. Holder, 350 F. App’x 59, 64 (6th Cir. 2009) (noting that
the Immigration Judge “was clearly within his authority to analyze the authenticity of the
letter” that he found to be unreliable because of inconsistencies between the handwriting
in the letter and on the envelope and in the spelling of the sender’s name, as well as the fact
that it was written in the English language, which the applicant struggled to read);
Sy v. Gonzales, 199 F. App’x 444, 448–49 (6th Cir. 2006) (per curiam) (upholding an
adverse credibility finding where one set of documents that a forensic examiner found
fraudulent was compared to a second set, which the Immigration Judge said had
“dissimilarities obvious even to the Court’s untrained and naked eye,” and the Sixth Circuit
deemed to have an “obviously fake appearance”).
3
If the DHS had challenged the authenticity of the document and the defects were not
obvious, or if the Immigration Judge otherwise determined that forensic analysis was
warranted, she could have required the DHS to seek forensic analysis or provide expert
testimony.

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that “Nageia” is a colloquialism, this is insufficient to establish that the
misspelling would be used in an official document. The Immigration Judge
also considered the respondent’s explanation that he was unaware of the
defects in the “wanted” flier but found it unpersuasive. 4 See Anderson v. City
of Bessemer City, N.C., 470 U.S. 564, 574 (1985) (“Where there are two
permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.”); Dankam v. Gonzales, 495 F.3d 113, 122 (4th
Cir. 2007) (stating that the Immigration Judge was “entitled to reject [the
applicant’s] explanation” even though it was “perfectly plausible”); Matter
of Y-I-M-, 27 I&N Dec. 724, 726–27 (BIA 2019) (stating that the
Immigration Judge is not required to “adopt an applicant’s explanation for
an inconsistency if there are other permissible views of the evidence”).
The Immigration Judge also found that a December 2009 letter
purportedly signed by the Commissioner for Education, Oyo State, was
fraudulent. The DHS provided reliable impeachment evidence that the
person who signed the letter did not become Commissioner for Education
until November 2010 and that a professor held that position at the time of
signing. The pertinent DHS evidence consists of a listing of current and past
Commissioners for Education published by the Oyo State Government on its
official website; the professor’s curriculum vitae, published on his personal
website, confirming that he served as the Commissioner for Education from
April 2009 to October 2010; and a November 25, 2010, article from the
Daily Trust announcing that the Oyo State Government had appointed him
to be the new Commissioner for Education after the person who signed the
letter was appointed as Minister for Special Duties. The evidence that the
individual who signed the letter as Commissioner for Education did not hold
that position until 11 months later was sufficient to show that the letter was
fabricated without the need for forensic analysis. See, e.g., Bropleh, 428 F.3d
at 776–77 (affirming a finding of fraud based on a 1994 memorandum stating
that the applicant was guilty of treason against the government of “President
Charles Taylor,” who became president in 1997).
At the merits hearing, the respondent was questioned about the letter and
was given the opportunity to respond to the impeachment evidence. He
submitted an affidavit as rebuttal evidence, which purported to be from the
statistics officer in the Oyo State Ministry of Education. It explained that the
professor was on assignment to understudy the Minister of Special Duties in
2009, and that the person who signed the letter was assigned to the office of
the Commissioner for Education and was only publicly announced as the
Commissioner in 2010, when the professor was confirmed as the Minister
4

Although the respondent refers to an article attached to his appellate brief, no such
article was received. In any event, we do not consider evidence submitted for the first time
on appeal. See Matter of Kronegold, 25 I&N Dec. 157, 162 (BIA 2010).

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for Special Duties. The affidavit was not accompanied by a reliable form of
identification to verify that the affiant is, in fact, the statistics officer. Nor
does it indicate whether he was the statistics officer 9 years earlier, during
the transition, or identify the source for his information. 5
The Immigration Judge’s finding that the “wanted” flier and letter are
falsified pieces of evidence is not clearly erroneous. The evidentiary
anomalies on the “wanted” flier are apparent on the face of the document,
and the DHS impeachment evidence shows that the individual who
purportedly signed the December 2009 letter as Commissioner of Education
did not hold that office at the time the letter was signed. The respondent
submitted this evidence to establish key elements of his claim under the
Convention Against Torture, but he failed to provide a convincing
explanation for the obvious inconsistencies or sufficient rebuttal evidence,
despite having the opportunity to do so. It was reasonable for the
Immigration Judge to conclude that the respondent was aware this evidence
was fabricated. See Matter of Y-I-M-, 27 I&N Dec. at 728.
B. Eligibility for Relief
The respondent has the burden of establishing his eligibility for relief.
Sections 240(c)(4)(A), (B) of the Act. However, by submitting fabricated
evidence, he “compromised the integrity of his entire claim.” Matter of
O-D-, 21 I&N Dec. 1079, 1084 (BIA 1998); see also, e.g., Siewe v. Gonzales,
480 F.3d 160, 170 (2d Cir. 2007) (noting that “a single false document . . .
may . . . infect the balance of the alien’s uncorroborated or unauthenticated
evidence”); Ambroise v. Gonzales, 411 F.3d 932, 933 (8th Cir. 2005) (per
curiam) (affirming an adverse credibility finding where the applicant
“submitted fraudulent documents relating to a core asylum issue [and] failed
to provide a satisfactory explanation for having done so”).
The immigration court system has no more solemn duty than to provide
refuge to those facing persecution or torture in their home countries,
consistent with the immigration laws. However, “[t]ruthful testimony and
disclosures are critical to the effective operation of the immigration court
system.” Matter of Gomez-Beltran, 26 I&N Dec. 765, 768 (BIA 2016).
5

Although it is not necessary to our decision, we also note that (1) no contemporaneous
evidence was produced to show that the person signing the letter was performing the duties
of the Commissioner for Education during the relevant time period; (2) the December 2009
letter does not use the title of “Acting” Commissioner for Education; and (3) the
November 25, 2010, article regarding his appointment as Commissioner for Education
states that “[u]ntil his appointment, [he] was the Commissioner for Industries, Applied
Science [and] Technology.” See Matter of Pineda, 20 I&N Dec. 70, 73 (BIA 1989) (stating
that the most persuasive evidence presented was “documentary evidence which was
contemporaneous with the events in question” (citation omitted)).

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Those who present false testimony or evidence to manufacture a claim can
raise doubts about the validity of legitimate claims and unfairly undermine
confidence in a system that “depends on the alien’s fundamental obligation
to tell the truth.” Id.
In addition to the fabricated evidence, the Immigration Judge considered
the respondent’s claim that members of the CDHR were persecuted, and she
found that it was inconsistent with an affidavit from an expert, which the
respondent submitted in support of his claim. She also considered the
respondent’s convictions for crimes involving fraud, which further
undermined his credibility. Unuakhaulu v. Gonzales, 416 F.3d 931, 938 (9th
Cir. 2005) (upholding the Immigration Judge’s ruling that corroborating
evidence was needed because the applicant’s conviction for fraud
undermined his credibility); see also Mocevic v. Mukasey, 529 F.3d 814, 817
(8th Cir. 2008) (per curiam) (finding that the Immigration Judge’s adverse
credibility finding was supported by the record, including the applicant’s
conviction, which “involved stealing and not being truthful”). The
Immigration Judge properly determined that the respondent lacked
credibility and did not establish the validity of his claim. See Matter
of J-Y-C-, 24 I&N Dec. 260, 266 (BIA 2007).
The respondent also did not meet his burden to prove his eligibility for
deferral of removal under the Convention Against Torture. See Matter
of Y-I-M-, 27 I&N Dec. at 732; Matter of M-S-, 21 I&N Dec. 125, 129 (BIA
1995). Because the respondent lacked credibility regarding the underlying
basis for his claim, the Immigration Judge properly determined that he did
not demonstrate a likelihood that he will be tortured “by or at the instigation
of or with the consent or acquiescence of a public official or other person
acting in an official capacity.” Matter of J-C-H-F-, 27 I&N Dec. 211, 218
(BIA 2018) (quoting 8 C.F.R. § 1208.18(a)(1)). We will therefore affirm the
Immigration Judge’s decision to deny the respondent’s request for deferral
of removal. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $813 for each day the respondent is in violation. See Section
274D of the Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2020).

198


Interim Decision #1406

MATrza or Dm. Corm
In VISA PETITION Proceedings
A-13793529-530

Decided by District Director July 16,1964
(1) Although beneficiaries, born of an adulterous relationship of their mother,
may be considered to have 2 legal parents, because their mother is unable to
provide care for them, her husband refuses to accept responsibility for their
care and support since they are not his children, and they have been cast from
the family circle because of the circumstances of their birth, they have been
abandoned within the meaning of section 101(b) (6), Immigration and Nationality Act, as amended.
(2) Although a previous petition was approved for petitioners in behalf of a
child as defined in section 101(b) (1) (F), Immigration and Nationality Act, as
amended, the limitation imposed by section 205(c) of that Act does not preclude
the approral of 2 additional petitions in behalf of eligible orphans who are
twin sisters, since the separation of the sisters would thereby be prevented.

DISCUSSION: The petitioners, citizens of the United States, were
married on March 23, 1957. No children were born of this union but
on March 19, 1963 they adopted a child, Michael, born in Italy on
July 0, 1960, who was brought by the petitioners to the United States

as an eligible orphan on the basis of their petition approved by this

office on December 13, 1961. This child is not related by blood to the
beneficiaries of the petitions here considered_ The Boston Children's
Service, affiliated with the International Social Service, is the voluntary agency involved. The home study of the agency is favorable

and the agency has given assurance that the preadoption requirements
of the State of Massachusetts have been met. Investigation of the
petitioners by the Immigration and Naturalization Service is entirely

favorable. Overseas investigation of the mental and physical health
of the beneficiaries reveals no illnesses or defects.
The beneficiaries are twin sisters, born at Campobasso, Italy on August 1, 1962 to Giovannina Del Conte as the result of her adulterous
union with their unnamed father. The beneficiaries have been transferred from their mother's home to the physical custody of the International Social Service, awaiting emigration, and have been irrevocaIG1

Interim Decision #1406
bly released to the International Social Service by their mother and
her husband, Michele Del Conte, for emigration to the United States
and for adoption.
The report of the Officer in Charge of this Service at Rome and the
records of the International Social Service show that Giovannina Del
Conte has been married but once—to Michele Del Conte, in Italy in
1953. From 1955 to 1960 Miehele Del Conte lived in Venezuela while

his wife remained in Italy. During his absence, Giovannina Del Conte
gave birth in 1958 to a child, Maria, the offspring of an adulterous
union. Michele Del Conte returned to Italy in 1980 but did not rejoin

his wife owing to the circumstances of the birth of Maria. While these
spouses were still living apart, Giovamiina Del Conte gave birth on
August 11 1962 to the twin beneficiaries as the result of another adulterous relationship.
The overseas investigation shows further that Michele Del Conte is
residing in marital union with the mother of the beneficiaries but is
unwilling to support or care for them because they are not his children.
Under Italian law, the beneficiaries may well be regarded as the
children of Michele Del Conte in the absence of any legal action to
disclaim them. Michele Del Conte has not legally disavowed their

paternity but the record appears clear that they are not his natural
children.
The subject petitions wore filed with a view to according the beneficiaries nonquota, status under the provisions of section 101 (a) (27)

(A) of the Immigration and Nationality Act as "children" of a citizen
of the United States. Section 101(b) (1) (F) of the same Act defines
the term "child" to mean an unmarried person under 21 years of
age. . . .
who is an eligible orphan, adopted abroad by a United States citizen and spouse

or coming to the United States for adoption by a United States citizen and
spouse: Provided, That no natural parent or prior adoptive parent of any such
child shall thereafter, by virtue of such parentage be accorded any right, privilege,
or statue under this Act.

Section 101(b) (6) of the Act defines an "eligible orphan" as :
Any alien child under the age of fourteen at the time at which the visa petition
is filed pursuant to section 205(b ) who is an orphan because of the death or
disappearance of both parents, or because of abandonment, or desertion by, or
separation or loss from, both parents, or who has only one parent due to the
death or disappearance of, abandonment, or desertion by, or separation or loss
from the other parent, and the remaining parent is incapable of providing care
for such orphan and has In writing irrevocably released him for emigration and
adoption.

Section 205 (c) of the Act provides that . . . .
Not more than two such petitions may be approved for one petitioner in behalf

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Interim Decision #1406
of a child as defined in section 101(b) (1) (E) or (F), unless necessary to prevent
the separation of brothers and sisters.

The issues to be resolved here are: (1) Whether the beneficiaries are
eligible orphans within the meaning of the statute; and (2) May these
petitions be approved in light of the restriction contained in section
205 (c) since the petitions here discussed are the second and third by the
same petitioners?
These beneficiaries were living with their mother and presumably
with the latter's husband at the time of their release to the International Social Service. Although they may be considered to have two

legal parents, they have been cast from the family circle because of
the circumstances of their birth. Their mother is unable to provide

care for them and her husband refuses to accept responsibility for
their care and support. It is clear that the repudiation of the beneficiaries as children of the Del Conte family is as complete at it is
tragic. Their presence in the Del Conte household would be a continual irritant to conjugal harmony and the fact that they have been
thrust from the home for the purpose of surrendering them for
adoption 3,000 miles away is in itself evidence of the finality of their

rejection. This is not a contrived situation, as has been encountered
occasionally in other cases, where the two parents have abandoned or
surrendered, a child to another party for the purpose of enabling the
child to qualify as an eligible orphan in order to immigrate to the
United States. The beneficiaries are as completely orphaned by
abandonment as a result of the family circumstances as those children
orphaned by death of their parents. Therefore, we find the beneficiaries to be eligible orphans within the meaning of this statute.
The remaining issue is whether the petitions may be approved in
view of the restriction of section 205(c) of the Act. The petitioners'

first orphan petition was approved for Michael Toupouzis, now their
adopted son. The second and third petitions by these petitioners are
for the twin beneficiaries. We are satisfied that these letters petitions

come within the exception to the restriction of section 205(c) and their
approval is warranted in order to prevent the separation of the twin
sisters.
ORDER: It is ordered that the visa petitions be approved.

703


MATTER OF

DJ' ----

In DEPORTATION Proceedings
749.8
A-16547428
Decided by Board July 7, 1958 and March 10, 1959

Decided by Attorney General February 26, 1959
Act of September 11, 1957—Availability of waivers under section 5 and second
part of section 7 to aliens ineligible for preexamination.
(1) Aliens within the United States who are ineligible for preexamination
cannot be granted advance waivers of inadmissibility under section 5 and
the second part of section 7 of the Act of September 11, 1957 while they
remain in the United States.
(2) Native and citizen of contiguous territory, to whom preexamination procedures are inapplicable, must depart and apply for waivers at the time she
makes application to enter the United States from her home country.
CHARGES :
Order:

Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Has engaged In prostitution.
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1) I—Not in possession of valid visa.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)7—Excluded
and deported; no permission to reapply.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Procured
visa by willfully mistevruseaLlug material racts.
BEFORE THE BOARD
(July 7, 1958)

Discussion: The Commissioner of Immigration and Naturalization asks that the Board certify its decision in this case to the
Attorney General for review.
The respondent, a 25-year-old married female, a native and citizen of Mexico, was admitted to the United States in February
1956. She is married to a United States citizen. She is deportable
on the grounds shown above. She is not eligible for suspension of
deportation because she lacks the required residence; respondent
must leave the United States. She will be barred from returning by
the provisions of the Immigration and Nationality Act applying to
those who were prostitutes and to those who have secured visas by
fraud. However, sections 5 and 7 of Public Law 85 -316 approved
68

September 11, 1957 permit the Attorney General to waive the
grounds of inadmissibility. The question is whether the respondent
may make the application in the United States and remain here
until the application is decided, or whether she must go to Mexico
to make it and remain those until it is granted. We has, ruled
that the respondent may apply while in the United States. The
Service would require her to depart from the United States to apply
for the waiver. Then she would be required to submit the application for the waiver to the consul abroad and he would forward it
to the Service for action (8 CFR 7.1).
Under our ruling, the respondent may make the application for a
waiver while she remains in the United States and she need not
leave until the application is acted upon. If it is disapproved, she
must depart. If it is approved, she will go to Mexico to apply for
her visa. It is evident that if the respondent is permitted to remain
in the United States while her application is processed there will
be the minimum possible dislocation of family life and adjustment
of status will be accomplished at the minimum expense. Also, there
will be the best opportunity for correcting whatever deficiencies
may appear in the application.
The Service doss not desire to make all aliens leave the United
States to apply for the waiver. It would permit applications for
the waiver to be made in the United States by aliens who qualify
for preexamination—that is, applications could be made by all but
citizens of Canada, Mexico, or islands adjacent to the United States
(8 CFR 235a.1). This distinction between aliens eligible for preexamination and aliens ineligible is made by the Service on the
theory that the request for the waiver under Public Law 85-316
must be made in the court of an application for admission to the
United States; preexamination is considered an application for admission; there ie no other administrative device avellehla to slims
in the United States to make an application for admission. We do
not believe the Service position is correct. We see no connection
between the waiver and preexamination, and we find no requirement
that the request for the waiver must be made during an application
for admission to the United States.
The request for the waiver is not an application for admission.
It is a request that certain barriers which stand in the way of the
issuance of a visa and admissibility to the United Staes be waived.
Application for admission will be made only if the waiver Is granted
and only after the visa is issued. For many years, both under the
7th proviso to section 3 of the Immigration Act of February 5, 1917
(39 Stat. 875) and under section 212(c) of the present act (8 U.S.C.
1182(c)), a similar relief was granted to aliens in deportation proceedings and to aliens in the United States who intended to depart
69

for visits abroad and then return to the United States. (See Matter

of S—, 6 I. & N. Dec. 392.) A careful examination of the law
and of congressional and administrative history revealed no reason
for requiring natives of Canada, Mexico, or adjacent islands to leave
their families to make an application for the waiver while natives
of all other lands may apply while they are in the United States.
On the contrary, we found that congressional desire to prevent needless
family separation and administrative practice involving the grant of
similar relief required that all eligible aliens be permitted to apply for
the relief while they are in the United States.

The Service emphasis upon preexamination requires examination
of that procedure. Preexamination is an administrative device to
permit aliens who are distant from their homelands to enter a convenient contiguous foreign territory to apply for a visa. It was
created to prevent the hardships arising out of extended family
separation and to minimize the financial burden which would arise
if an alien had to return to his distant homeland to apply for a
visa. Preexamination merely puts an alien from distant lands in the
same position in regard to obtaining a visa as the alien from contiguous territory. A grant of preexamination does not remove the
necessity of applying for a waiver if one is needed. Preexamination
is available to aliens who are legally or illegally in the United States.
It is applied fur and passed upon while the. alien romaine in the
United States. Eligibility for preexamination is fixed not by law
but by the Attorney General who can and has varied the classes from
time to time. For administrative efficiency, and to make use of provisions of law relating to medical examinations, preexamination is
regarded as part of the admission procedure. This is a fiction.
Indulgence in the fiction is not called for by the nature of the application for a waiver under Public Law 85-316. However, if it is
necessary to consider an application for a waiver under Public Law
85-316 as part of the admission process, it would be no more and
no less difficult a task than to so consider an application for preexamination.
The Service motion states that the limitation it seeks to impose
in waiver cases is no more illogical than the limitation which now
denies citizens of Canada, Mexico and adjacent islands the right
to preexamination. An examination of the assertion requires that
it he rejected. Preexamination gives an alien the privilege of making application for a visa in Canada. There is no hardship in
denying this right to one who can at will readily enter Canada
(or a nearby foreign country) and apply for his visa. However,
there is a lack of logic in denying Canadians, Mexicans and natives
of adjacent islands the privilege of applying in the United States
for a waiver under Public Law 85-316, because in their cases it will
impose a hardship. It will result in their being subjected to ex-

70

tended family separations and being saddled with the expense of
maintaining separate establishments while these hardships will not
be incurred by natives of the other countries.
The fact that this respondent can freely enter a foreign contiguous territory to apply for a visa dues not justify saddling; her with
the expense of a foreign stay of uncertain duration and the heartache
of family separation when these evils can be avoided so easily.
Order: It is ordered that pursuant to the authority contained
in 8 CFR 6.1(h) (1) (iii) and at the request of the Commissioner of
Immigration and Naturalization, the decision of the Board in this
easy he certified to the Attorney General for review.
BEFORE THE ATTORNEY GENERAL
(February 26, 1959)

Order: The decision of April 14, 1998, by the Board of immigration Appeals remanding this case to the special inquiry officer
for investigation and decision concerning the alien's eligibility for
relief is reversed and the Board is directed to proceed to its decision
in the case.
grenrchrnext with the provisions of
This ease is before me
CFR 3.1(h) (1) (iii) for review of the Board's decision.
Charges requiring deportation of the alien, a native of Mexico,
have been sustained but an unresolved issue concerns her eligibility
for relief under the provisions of sections 5 and 7 of Public Law
85-316, 85th Congress. In this connection, a decision rendered on
June 18, 1958, by the United States District Court for the Eastern
District of Michigan is dispositive. That Court held that the provisions of the law in question are available to aliens making application for admission to the United States, and as to aliens physically
with... the United Staten this means aliens eligible for pre...minaaminarata v. Sahli, 163 F. Supp. 125). See, to the same effect,
tion
Chabolla-Delgado v. Hoy, D.C. Calif. S.D., Cent. Div., Civ. No.
361-58—BH, decided June 20, 1958; Puig p Garcia v. Murff, D.C.
N.Y. S.D., Civ. 131-393, decided Dec. 23, 195S.
The subject alien being a native of Mexico, a contiguous country
to which preexamination procedures are not applicable under the
regulations, is precluded from preexamination while she remains in
the United States. Accordingly, she is ineligible for the relief in
question except as she applies for it in connection with an application to enter the United States from Mexico.

BEFORE THE BOARD
(March 10, 1959)

Discussion: The facts have been fully stated in previous orders.
By order dated April 14, 1958, we found the respondent deportable
71

upon the grounds stated above. We held that respondent must
depart from the United States since there is no administrative power
to adjust her status while she remained in the United States.
Iteepontient desires to return Le the United Stairs to make her home

here with her United States citizen husband. She is inadmissible
to the United States because she obtained a visa by fraud and
because she engaged in prostitution at one time. These grounds of
inadmissibility may be waived under sections 5 and 7 of Public
Law 85-316. We ordered reopening of proceedings to determine
whether respondent was eligible for relief under Public Law 85-316.
This we did in the belief that an alien in the United States could
be given a waiver of the grounds of inadmissibility in deportation
proceedings so that the alien could depart and readily apply for a
visa. The Commissioner took issue with this ruling. ills position
is that the relief may be granted in advance in the United States
but only to an alien who is eligible for preexamination, and that
since respondent, a native of Mexico, a contiguous country, is not
eligible for preexamination, she cannot be given relief while she is
in the United States but must depart and apply for it outside the
United States.
At the Commissioner's request the issue was referred to the Attorney General for review. The Attorney General now has ruled
that respondent, a person precluded from preexamination, is ineligible for relief "except as she applies for it in connection with an
application to enter the, United States from Mexico." Our order
of April 14, 1958, remanding the case to the special inquiry officer
was reversed and we were directed to proceed to a decision in the
case. Respondent's deportability is established. She is ineligible
for administrative relief. Her appeal must be dismissed.
Order! It is ordered that the appeal of the respondent be and

the same is hereby dismissed.

72


Interim Decision #1994

MATTER OF TAFOYA-GUTIERREZ

In Deportation Proceedings
A-8935449
Decided by Board July 18, 1969

Where the court's recommendation against deportation was not made within
30 days of first imposing sentence pursuant to section 241(b) (2) of the
Immigration and Nationality Act, it is ineffective to avert deportation,
notwithstanding the motion to amend sentence was filed, and hearing
thereon scheduled, within 30 days of the original sentencing.
CHARGE:

Order: Act of 1052—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted
of a crime involving moral turpitude within five
years after entry.

ON BEHALF OF RESPONDENT:

R. Stanley Ditus, Esquire
P. 0. Box 463
Burlington, Colorado 80807

ON BEHALF OF SERVICE:

R. A. Vielhaber
Appellate Trial Attorney

The proceedings arc before us on appeal from the decision of

the special inquiry officer who found respondent deportable as
charged and ordered his deportation to Mexico.
The respondent is a 38-year-old single male alien, a native and
citizen of Mexico, who was admitted to the United States for permanent residence on March 7, 1960. He returned to Mexico on
November 15, 1964, remaining there approximately six months.
When he returned to the United States on May 12, 1965, he was
admitted as a returning resident alien upon presenting his alien
registration receipt card.
The record shows that on November 4, 1966 in the Superior
Court for the State of Alaska, Third Judicial District, the respondent was convicted on his plea of guilty of the offense of
rape as charged in the second count of the indictment, and sentenced to serve a term of three years, which sentence was sus-

pended and the respondent placed on probation for a period of
two years (Ex. 4, p. 2). He was thus found guilty of a crime in342

Interim Decision #1994
volving moral turpitude committed within five years after entry,
for which he was sentenced to confinement for a period of more
than a year. He is deportable under section 241 (a) (4), Immigration and Nationality Act.
Counsel's first contention is that his client did not make an

entry when he returned to the United States on May 12, 1965, citing the case of Rosenberg v. Fleuti, 374 U.S. 449 (1963). We
do not think that the circumstances of the respondent's departure
and extended stay outside the United States bring him within the
rule enunciated in the Rosenberg v. Fleuti case. His absence was
a meaningful and intended absence from the United States and
was not a brief and casual visit which might, under the Fleuti
rule, exempt him from the requirements of an "entry" when he
returned. The respondent in this case definitely made an entry
within the meaning of section 101(a) (13), Immigration and Nationality Act (8 U.S.C. 1101 (a) (13) ) .
Counsel contends that since the court which found respondent
guilty and sentenced him has made a recommendation to the Attorney General that he be not deported, these proceedings be terminated because of the provisions of section 241 (b) (2), Immigration and Nationality Act (8 U.S.C. 1251 (h) (2)). The facts
surrounding this recommendation of the court are as follows.
Respondent was found guilty and was sentenced on November
4, 1966, which sentence was entered into the record on November
17, 1966. On December 2, 1966, counsel filed a motion to have the
court amend its order by adding a recommendation against deportation. The hearing was held on this same date, and the record
indicates that the District Director of the Service testified. It does
not appear that any action was taken by the court at that time.
On December 16, 1966, counsel filed a "Motion for Reconsideration". The record is not clear why it was necessary to move the
court to reconsider the original motion, unless the court originally
had denied the motion on December 2, 1966. Be that as it may,
the hearing on this motion, scheduled for January 6, 1967, was

continued until January 13, 1967, and continued again until January 27, 1967, at which time the court granted the motion to
amend its original order to the extent of incorporating a recommendation to the Attorney General that the respondent not be deported.
Section 241 (b) (2) of the Act specifically provides that the
court sentencing an alien must make the recommendation at the
time of first imposing judgment or passing sentence or within 30
days thereafter. This clearly did not occur in this case. A timely
343

Interim Decision #1994
recommendation has not been made. 1 It is true the motion to
amend the order was filed within 30 days and the hearing scheduled within 30 days, but the court's recommendation was not
made within 30 days of the original sentencing. The court has no
power to enlarge its order or to enter a nunc pro tunc order
granting the relief after the expiration of the time provided by
statute. Such an action is a nullity and the courts have so held. 2
Tohldterwisubofatheplincmdof
statute, which limits the time within which the extraordinary
power vested in the trial court must be exercised. We have followed the court's interpretation of the statute in this respect.
Thus, on the basis of the evidence presented, the court's order of
January 27, 1967 does not afford the respondent relief from deportation under section 241 (b) (2) of the Immigration and

Nationality Act.
For the above reasons, the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.

I Matter of S—, 9 I. & N. Dee. 613 (BIA, 1962).

2 pi\oerkoff v. Murff, 267 F.2d 72 (2 Cir., 1959) ; Ex parte Eng, 77 F.
Supp. 74 (N.D. Cal., 1949). See also Matter of S—, supra.

344


MATTER OF D—W—M-

In VISA PETITION Proceedings
A–T134526
Decided by Board April

4, 190

Adopted child—Custody and residence with one adoptive parent—Effect of
divorce.

Where the custody and residence requirements of section 101(b) (1) (E) of
1052 Act are satisfied primarily by residence with adoptive mother, the
divorce of adoptive parents is not disqualifying in view of evidence that
beneficiary (with adoptive mother) has continued to reside with petitioner's
family in Korea, has continued to be regarded as his adopted son, has been
supported by petitioner, and divorced wife has signified her consent and
approval for beneficiary to join his adoptive father in the United States.
BEFORE THE BOARD

DISCUSSION: The case comes forward pursuant to certification
of the order of the District Director, San Antonio District, dated
February 9, 1962, approving the visa petition for nonquota status
on behalf of the beneficiary.
The petitioner, a native of Korea, a naturalized citizen of the
United States, 58 years old, male, seeks nonquota status on behalf
of the beneficiary, a native and citizen of Korea, born on January 19,
1943, as the adopted child of the petitioner.
As evidence of the adoption there has been submitted a copy of the
family register and a copy of an adoption paper indicating that the
beneficiary's name was entered in the family register of the petitioner
on August 1, 1949, as the adopted son of C—W-- and is listed as
the grandson of the head of the family, the petitioner's father,
K—W—M—. In a sworn statement to an immigration of ficer on
Novemhex 98, 1961, the petitioner identified the beneficiary as his
adopted son. He explained that in Korea there is a custom that the
elder son becomes the head of the family when the father dies; that
when the elder son is married but no male child is born, then the
second oldest child gives his first-born male child to the older son
in order that the head of the family may be retained in proper order;
that he was married but had no children and that C I—M—, his
brother and the natural father of the beneficiary, gave his child to
633

the petitioner and his wife in 1945 and the child has resided with
them since 1945 He was placed in the family register as his adopted
son on August 1, 1949. He stated that the beneficiary resided with
him and his wife in Korea from 1945 until November 1948 when he
entered the United States, that the beneficiary resided with them for
about four years including the summer of 1955 when the petitioner
returned to Korea. Evidence has been presented that the petitioner
divorced his first wife on November 30, 1956, by decree of the District Court, Tarrant County, Texas, but the divorce decree makes no
mention of the adopted child. The petitioner states that the beneficiary is known as his son in Korea, that in addition to income from
their family he has sent him money, exhibiting receipts. The adoptive mother, in a statement executed May 2, 1961, before a county
magistrate in Korea certifies that she agrees and consents that the
beneficiary should join his father in the United States; that the
child was adopted by the petitioner and his wife when 5 years old
and that they have lived together for 12 years. There has also been

submitted a statement signed by one L—G—J—, otherwise unidentified, dated August 18, 1961, to the effect that the benficiary is the
adopted son of the petitioner, and has resided with him from
August 1945 to November 1948 and that the petitioner is the legal
custodian of the beneficiary.
In order to be eligible for nonquota status the beneficiary must
qualify as an adopted child under the immigration laws as provided
in section 101(b) (1) (E) of the Immigration and Nationality Act, as
amended. This section defines an adopted child as a child adopted
while under the age of 14 years if the child has thereafter been in
the legal custody of, and has resided with, the adopting parent or
parents for at least two years.
In the instant case the beneficiary was given to the petitioner
and his first wife in 1945. He appears not to have been formally
adopted until his name was placed in the family register on August 1,
1949. • Thereafter, he continued to reside with the adoptive mother
except for the summer months of 1955 when he resided with both
parents. Since the adoptive father's divorce in November 1956, petitioner has been staying with his family with whom his divorced wife
also continues to reside. No question has been raised as to the legality

of the adoption or of the relationship between the husband and wife
or between either of them and the adopted son.
It is believed that the case falls within the principle enunciated
in the holding of Matter of Y—K—TV—, 9-176 (Atty. Gen.,
Feb. 28, 1961), in which it was held that the two year legal custody
and residence requirement imposed upon an adopted child under the
definition of adopted child as set forth in section 101(b) (1) (E) of
the Immigration and Nationality Act, as amended by section 2 of the
-

634

Act of September 11, 19.7. , is satisfied when custody and residence
have been with only one of the adoptive parents rather than both.
In so holding, and'reversing a prior ruling to the contrary, the Attorney General recognized the remedial purpose of preserving rather
than interrupting bona fide family relationships as exemplified in
the legislative history seeking to prevent a separation of bona fide
family units, and pointed out that safeguards against abuses might
better be established by looking at the surrounding circumstances of

the adoption and making a determination on the facts that, assuming
the statutory qualification is met, the legislative purpose would be
served in a particular case.'
There is no doubt that had there not been any divorce the beneficiary would qualify as an adopted child under the holding in Matter of
Y—K—W---, supra. It is not believed that the divorce of the adoptive parents on November 80, 1556, requires any different result in
view of the evidence establishing the continuance of the bona fide
family relationship of adoptive father and adopted child, as evidenced by the fact that the beneficiary has continued to reside with
the petitioner's family in Korea, has continued to be regarded as
his adopted son, has been supported by the petitioner and there is
no objection from the divorced wife who has signified her consent
and approval that the beneficiary join his father in this country.
ORDER: It is ordered that the order of the District Director
dated February 9, 1962, approving nonquota status on behalf of the
beneficiary as the adopted child of the petitioner be and tho same

is hereby affirmed.
The residence requirement of section 101(b) (1) (E), as amended, does not
exclude computation of residence occurring prior to the formal adoption
decree. Mailer of M—, 8-118.

635


• Interim Decision '#1505

MATTE=

or

MANSOOR •

In Section 212(e) Proceedings
A-13971310
Decided by District Directin. Acne 3,..1963
An exchange -visitor from Egypt is granted a waiver of the 2-year foreignresidence requirement of section 212(e) of the Immigration and Nationality
Act, as amended, because compliance therewith would result in exceptional
hardship to his United States citizen wife not only as a result of accompanying him abroad but else as the result of her having to remain in the
United States while he fulfills Las obligation since due to an existing emotional problem, and according to medical opinion, she would suffer undue
:mental anguish at this time if deprived of the companionship of her
husband.
•

Discussion: Applicant is a 83-year-old native -and citizen of Egypt,
who is subject to the requirements of section 212(e) of the Immigration .and Nationality Act, as amended, due to his admission as an
. exchange visitor at New York, New York on November 11, 1958. Ile
has remained in the United States since that time participating in
several exchange visitor programs relating to the field of medicine
and is presently a Research Fellow in the Department of Anatomy at
• the Emory University School of Mecliclice, Atlanta, Georgia. lie
married Miss Virginia May Spaulding, a citizen of the Unifed States
on February 23, 1963 at Cincinnati, Ohio.
•
Section 212(e) of the Immigration and Nationality Act provides as
follows: ,
No person admitted under section 101(a) (15) (I) or acquiring such status
after admission shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a) (15) (H) until
it is established that such person has resided and been physically present in
the country of his nationality or his last residence, or in another foreign
• country for an aggregate of at least two years following departure from the
United States: Provided,: That such residence in another foreign country shall
be considered to have satisfied the requirements of this subsection if the Secretary of state determines that it has served the purpose and the intent of the
Bluthal Educational and Cultural Exchange Act of 1961: Provided further,
306

Interim Decision #1505

favorable recommendation of the Secretary: of State, pursuant
to the request of an interested United States Government agency, or of the
Commissioner of. Immigration and Naturalization after''he has' determined
that departure from the united States would impose exceptional hardship
upon the alien's spouse or child (if such spouse or child is a citizen or the
United States or a lawfully' resident alien), the Attorney General inay waive
the requirement of. such biro-year foreign residence abroad in the case of any
alien. whose admission to the United States is found by the Attorney General
to be the public interest: And provided further, That the provisions of this
paragraph shall apply also to those persons who acquired exchange visitor
status under the United States Information and Educational Exchange Act
That upon the

of1948, as amended.

In determining the merits of an. application f or a waiver of the
foreign residence requirements, we must consider the Congressional
intent of the statute. House of Representatives Report No. 721 dated
July 17, 1901, prepared by Subcommittee No. 1 of the 'Committee on
the Judiciary, on the "Immigration Aspects of the International &in:
rational Exchange Program" is pertinent. On page 121 of this report,
the Subcommittee reiterates and stresses the fundamental significanile
of a most diligent and stringent enforcement of the foreign residence
requirement The report states, "It is believed to be detrimental to
the purposes of the program and. to the national interests of the countries concerned to apply a lenient policy in the ajudicatioii of waivers,
including cases where marriage occuring in the United States, or the ,
birth of a child or children, is used to support the contention that the
exchange alien's departure from this country would cause personal
hardship." This application represents a claim by the applicant that
his departure would impose exceptional hardship upon his United
States citizen spouse. Therefore, it must first be determined whether.
or not ouch hardship would nticur as the consequence of her accompanying him abroad, which, would be the normal course of action to
avoid separation. The mere election by the sponee'to remain in the
United States, absent such determination, is not a governing factor
since any inconvenience or hardship 'which might thereby occur
would be self-imposed. Further, even though it is established. that
the requisite hardship would occur abroad, it must also be shown that
the spouse would suffer as the result of having to remain in the
United States. Temporary separation, even though -abnormal, is a
problem many families face in life and, inand of itself, does not represent exceptional hardship as contemplated by section 212(9), supra.
Applicant is an obstetrician-gynecologist, .who resided in. Egypt
prior to his admission as an exchange alien. He has been absent from
Egypt almost seven years. Although his professional skill would no
doubt be in demand in Egypt, his future would be uncertain and his
earnings considerably less than at present. Ills spouse would, conse307,

Interim Decision #1505
quently, be required to make a major economical adjustment, which
could conceivably result in privation by the end of two years. In
addition, she is of the Christian faith, whereas Egypt is predominantly Moslem. While this would not subject her to persecution, it
would preclude normal assimilation in the country and restrict her
realm of social intercourse. There is also a psychological factor in
that the spouse, knowing that Egypt exercises control over the departure of its nationals, fears the applicant might not obtain permission
to leave the country after completing the required two years' residence, which is a possibility that cannot be ruled out. This fear
extends to any children who might be born to hor while,there, since
they would also, be Egyptian nationals. These circumstances would

obviously subject the spouse to radical changes from her normal way
of life; so we find that exceptional hardship would be imposed upon
her if she accompanied the applicant abroad.
We must now consider whether exceptional hardship would be
experienced by the spouse should she remain in the United States
while applicant is fulfilling his obligation. This requires ei finding
that problems exist which would endanger the spouse's health if separated from applicant or that difficulties incident to her separate maintenance and support would appreciably affect her standard of living
and general welfare or bring about abnormal stress and strain. In
this case, a child recently born to this couple died, at birth of anencephaly. Medical testimony has been presented to point out that
shock and fear for the future are basic reactions of a mother giving
birth to an infant so deformed and that to relict% this anxiety, since
the liklihood of reoccurence is remote, another pregnancy is recommended as soon as possible. Medical opinion also states the spouse
would suffer undue mental anguish at this time if deprived of -the
companionship of her husband. This establishes that separation
would result in exceptional hardship, so it is unnecessary to explore
the factors relating to separate maintenance and support.
In view of the foregoing, it has been determined that the applicant's compliance with the foreign residence requirement would'
impose exceptional hardship upon his United States citizen spouse.
The Department of State has reviewed the application and recommends that the waiver 'be granted. It is further found that admission
of the applicant to the United States would be in the public interest.
ORDER: It is ordered that the application of Dr. Pawzy S. Mansour for a waiver of the two-year foreign residence of section 212(e)
of the Immigration and Nationality Act, as amended, be and the same
is hereby granted.

306


Interim Decision #2069

MATTER OF VARGAS-MOLINA

In Exclusion Proceedings
A-18863065
Decided by Board January 8, 1971
An applicant for admission, whether or not the application is made at a
land port, and whether or not the special inquiry officer has entered a decision, may not withdraw his application as a matter of right; however,
the special inquiry officer, in his discretion, may permit withdrawal of an
application for admission if justice may best be served by permitting the
withdrawal. [Matter of Estrada-Tena, 12 I. & N. Dec. 429, overruled;
Matter of Le Floch, Interim Decision No. 1970, modified.]
EXCLUDABLE: Act of 1952—Section 212(a) (23) [8 U.S.C. 1182(a) (23)]—
Convicted of illegal importation of marihuana.
Act of 1952—Section 212(a) (26) [8 U.S.C. 1182(a) (26)]—
Nonimmigrant not in possession of valid visa.
ON BEHALF OF APPLICANT:
Pro se

ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney

The special inquiry officer excluded the applicant on the grounds
stated in the caption and certified the case to the Board for final
decision. No change will be made in his order.
This case concerns the right of an applicant for admission to
withdraw his application before the special inquiry officer enters
an order in exclusion proceedings.
The applicant, a 31-year-old single male, a native and citizen of
Colombia, applied for admission in June 1969 as a nonimmigrant
visitor for pleasure at San Juan, Puerto Rico. The Service
learned that his nonimmigrant visa had been irregularly issued
and that he had illegal possession of marijuana. The Service paroled him into the United States under section 212(d) (5) of the
Act so that he could be prosecuted for possession of the mari. juana. He was convicted on August 14, 1969 in the United States
District Court for Puerto Rico for illegally importing marijuana.
A Service officer questioned the applicant on August 14, 1969
concerning his immigration status. The applicant attempted to

651

Interim Decision #2069
withdraw his application for admission and stated that he desired
to return to Colombia. However, he was brought before a special
inquiry officer in exclusion proceedings. Here he again sought to
withdraw his application for admission. His request was refused
and he was excluded as we have previously stated.
The regulations and statutes do not provide for the situation
before us. Three cases must be considered.
In Matter of Estrada-Tena, 12 I. & N. Dec. 429 (BIA, 1967),
an exclusion hearing, the applicant for admission attempted to
withdraw his application before the special inquiry officer entered
gis decision. We held that the applicant had the right to withIraw his application. We found a practice existed whereby orgiiarily the Service permitted a withdrawal.
In Matter of Le Floch, Interim Decision No. 1970 (BIA, 1969),
ve held that after the special inquiry officer had entered an order
d exclusion, the applicant had no right to withdraw his applicaion for admission. We indicated, however, that the board or the
pecial inquiry officer could, as a matter of discretion, permit the
vithdrawal of an application for admission if a miscarriage of
ustice would otherwise result.
D'Agostino v. Sahli, 230 F.2d 668 (5 Cir., 1956), a habeas corus proceeding, involved an alien deported to the United States
y the Mexican Government. After the United States authorities
xcluded him, he was turned over to the United States Marshal in
mnection with a narcotic charge pending against him in New
*ork City. The court held that a person presented at a port of
itry, whether voluntarily or otherwise, comes within the excluonary provisions of the Act and that the Service, therefore, had
e authority to examine him, to exclude him, and to transfer
stody to the Marshal. The case therefore indicates that once an
ien comes within the jurisdiction of the Service in an exclusion
oceeding, he has no right to defeat this jurisdiction by withawing his application for admission.
An applicant for admission who comes under the Service jurisAion should not have the power to compel the Service to relinish jurisdiction. Consideration of an application calls for
ocation of Service resources and expenditure of public funds.
to orderly, expeditious and efficient disposition of an application
the applicant or to deny permission for such withdrawal. This
in accord with past practice in which the Service permitted
thdrawals in some cases and not in others. We therefore rule
at an applicant for admission, whether or not the application is
ide at a land port, and whether or not the special inquiry
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officer has entered a decision, may not withdraw his application
as a matter of right. He may be permitted to withdraw his application if justice may best be served by permitting the withdrawal.
Matter of Estrada-Tema, supra, is overruled. Matter of Le
Flock, supra, is modified insofar as its language is in conflict
with this decision.
ORDER: It is ordered that no change be made in the special inquiry officer's order.

653